Courts in Shanghai are implementing a newly issued guidance on the ascertainment of foreign law, from which we can learn how Shanghai promotes a better mechanism for ascertaining foreign law.
Shanghai High People's Court and East China University of Political Science and Law (ECUPL) (one of China's top law schools in Shanghai) have jointly formulated the "Operation Guidance on Special Cooperation Mechanisms for Ascertaining Foreign Law (For Trial Implementation)" (外国法查明专项合作机制操作指引(试行)) (hereinafter referred to as “the Guidance" ), thus providing a set of procedures for Shanghai courts to cooperate with the ECUPL's Center for Discerning Foreign Law (ECUPL Center), so foreign laws could be ascertained more efficiently.
I. How to Ascertain Foreign Law
In accordance with "Law of People's Republic of China on the Application of Laws to Foreign-related Civil Relations" (中华人民共和国涉外民事关系法律适用法), in general, it is the courts that are responsible for ascertaining foreign laws ex officio. However, if the parties choose to apply foreign laws, they shall provide the laws of that country. According to the Guidance, if foreign laws cannot be ascertained by the court or provided by the parties, the ECUPL Center can be commissioned by the court to provide opinions on foreign laws.
In terms of costs incurred in the ECUPL's ascertainment work, If the court shall ascertain foreign laws, the court shall pay the ECUPL Center; if the parties are required to provide foreign laws, the expenses shall be borne by the parties.
According to one of my research projects, most courts do not have sufficient funds to pay the cost of hiring experts to ascertain foreign laws. Therefore, the questions arise if the court shall ascertain foreign laws according to the law, and the court is unwilling to hire experts due to insufficient funds while the parties are willing to bear the expenses for the court; nevertheless, the Guidance currently does not specify what to do under such circumstances.
II. Which Foreign Laws Shall be Ascertained
Foreign laws ascertained by the ECUPL Center for courts include laws, regulations and normative materials of foreign jurisdictions. Here, the foreign laws include but are not limited to statutory laws, case law, customary law, legal theories, legislative preparation materials, etc.
III. Work Procedures
1. The court solicits opinions: The court firstly informs the ECUPL Center by letter the country and the branch of law to which the foreign laws to be ascertained belong, the legal issues, along with some written pleadings.
2. The ECUPL Center communicates with judges: The ECUPL Center will have a face-to-face conversation with judges. After further communication between the two parties, the ECUPL Center will decide whether to accept the commission.
3. Accept the commission: Upon the decision to accept the commission, the ECUPL Center signs the commission agreement with the court.
4. Appoint experts: After accepting the commission, the ECUPL Center will appoint experts or team of experts.
5. Draft expert opinions: The experts write a draft of expert opinions, stating the contents of the ascertained foreign laws and their understanding, information retrieval methods, etc. Foreign materials shall be translated into Chinese accordingly.
6. Deliberate the draft: The draft will be discussed within the ECUPL Center, and the ECUPL Center may also discuss with the judges if necessary.
7. Issue expert opinions: The ECUPL Center shall issue the expert opinions on the ascertainment of foreign laws to the court within 45 to 60 days after accepting the commission.
IV. Review of Expert Opinions
The court will send a copy of the expert opinions to the parties, and the opinions will be debated by the parties. The judges will finally determine how to apply foreign laws.
The court may also notify the experts to appear in court if needed. The experts can be examined in court by the parties and by the collegial panel on issues, such as the drafting process, the content of the expert opinions and the understanding of related foreign laws.
The parties may cross-examine experts. However, the parties shall not require experts to express their opinions on the substantive issues of the case and the application of the law.
If there are more than two different expert opinions of different sources on the ascertainment of foreign laws, the court may notify the experts to appear in court at the same time to be examined and to explain the opinions issued by them.
V. Commentaries
At present, Chinese courts have begun to attach importance to the ascertainment of foreign law and have established cooperation with four centers for discerning foreign law in China. Shanghai's practice can provide a model for courts in other parts of China to cooperate with centers for discerning foreign law.
