Introduction of new legislation welcomed by lawyers and judges
The delivery of legal documents in foreign-related cases is a big problem in China, as many overseas litigants do not authorize Chinese agents to accept such materials. This frequently results in such litigation being time-consuming.
Lawyer Guo Zhen has found herself caught up in such a situation. In a case she is handling, an attorney of a Thai company did not receive authorization, resulting in a lawsuit that remains unresolved.
Guo, who has 13 years of experience in dealing with foreign-related disputes, said that some foreign entities” attorneys are authorized to accept legal instruments from Chinese courts and some are not, and the Chinese Civil Procedure Law allows legal documents to be delivered to only those authorized to accept them.
“A few litigants may take advantage of the difference in authorization to make a delivery more difficult, thus delaying the time taken to handle a case,” she added.
However, Guo’s worries about this issue will soon end, as the newly amended law, which is due to take effect on Jan 1, permits Chinese courts to deliver legal documents to attorneys of litigants involved in foreign-related lawsuits, regardless of whether authorization has been granted.
“I believe this change in the law will bring my Thai-related case to a conclusion as soon as possible,” Guo said.
Li Dongmei, a judge at Beijing International Commercial Tribunal, hailed the revised law as an important step to improving China’s legal system related to foreign affairs.
Strengthening the foreign-related legal system and its capacity in line with the nation’s high-quality development and opening-up was highlighted by the central leadership last month when it held a group study session in Beijing.
At the session, Xi Jinping, general secretary of the Communist Party of China Central Committee, emphasized that the legal system related to foreign affairs is the foundation for the rule of law regarding matters of foreign affairs.
Xi, who is also Chinese president and chairman of the Central Military Commission, said bolstering foreign-related rule of law is a long-term requirement for building China into a strong country and achieving national rejuvenation through a Chinese path to modernization. It is also an urgent task for advancing high-level opening up and dealing with external risks and challenges.
Guo and Li both said construction of the rule of law in foreign affairs has been rapidly accelerated this year, adding that with the high degree of attention from the central leadership, they hoped to see more achievements in this sector.
In addition to amending the Civil Procedure Law, the Standing Committee of the National People’s Congress, China’s top legislature, has drawn up a number of laws to enrich the country’s legal system related to foreign affairs.
In September, the NPC Standing Committee adopted a foreign state immunity law, clarifying that China’s policies on foreign state immunity refer to limited immunity. This means that Chinese courts, in principle, do not exercise jurisdiction over foreign countries and their assets, with exceptions such as lawsuits arising from commercial activities or the performance of labor contracts.
The NPC Standing Committee’s Legislative Affairs Commission said the law that will take effect on Jan 1 will serve China’s high-level opening-up, advance its building of the Belt and Road Initiative, and protect the legitimate rights of Chinese people and enterprises.
At the end of June, China’s milestone Law on Foreign Relations was unveiled, and this legislation has been in effect since July 1.
As the country’s first such legislation, the law was introduced as the nation’s development faced increasing foreign relations challenges, including export restrictions, “long-arm “jurisdiction, and sanctions, the commission said.
To protect its national security and interests, China recognized the urgent need for a domestic legal framework to regulate foreign affairs, it added.
Li, the Beijing judge, said, “The advancement of legislation provides a strong legal basis for safeguarding our country’s sovereignty, trade security and the legitimate rights of our litigants.”
Zhao Manqi, who specializes in handling domestic cases from Shenzhen, Guangdong province, also welcomed the legislative achievements, adding that they are conducive to promoting China’s high-level opening-up and increasing the nation’s judicial credibility and global influence.
“Stronger construction of the rule of law in foreign affairs will ensure that domestic disputes can be settled in a fairer and easier fashion. It will also relieve overseas litigants from concerns when studying, working, living, starting businesses and investing in Shenzhen,” said Zhao, who works at the Shenzhen Family Trial Center Involving Hong Kong-Macao-Taiwan and Foreign Factors.
As the legal system related to foreign affairs is being enhanced, China has also stepped up efforts to give litigants easier access to legal services, no matter whether they are domestic or foreign. This will enable the nation to attract more foreign investors and help Chinese entities going global to solve problems.
In Shenzhen, litigants can file cases, take part in trials and receive legal documents online, Zhao said, adding that the center also provides a service to ensure child visitation rights in divorce disputes via video link.
Li said that in Beijing, similar online platforms have been used to mediate international commercial disputes, helping litigants reduce the burden of travel, and improving judicial efficiency.
She voiced some concerns about the services, such as how to protect information provided by litigants through the internet, and how to guarantee data security in handling cases online. Li suggested that more studies be made in these areas.
As services in Chinese courts have become more convenient and diversified, more Chinese lawyers have joined the team solving international arbitration cases. Guo, the lawyer, said, “This means that the level of our judicial services in handling such disputes has been improved.”
She said that no matter whether an international arbitration case was simple or complex, in the past, Chinese preferred to choose foreign lawyers for trials, because their Chinese counterparts were not proficient or confident in defending cases in English.
“This sometimes resulted in Chinese clients abandoning the pursuit of compensation in cases due to the high costs,” she said.
However, with improvements to legal services and Chinese lawyers’ language proficiency, many lawyers now tackle international arbitration cases on their own, she said.
“For example, in a case heard in Singapore, I drafted legal documents and attended the trial by myself,” Guo said.
The increased participation of Chinese lawyers in handling arbitration cases is due to the nation’s increased training in this regard in recent years. This highlights the greater importance of talent education in promoting the rule of law related to foreign affairs, Guo said.
Li said the increased cooperation between Chinese and foreign entities, and the rapid development of international trade, foreign investments and cross-border e-commerce, has also meant that judges, including herself, need to conform to higher standards.
“We should broaden our global horizons and use international thinking to improve the quality of trials. We also need to increase research on international rules, practices and conventions, and familiarize ourselves with foreign laws,” she said.
Li cited as examples a number of disputes she took on that concerned the Belt and Road Initiative, and which were heard by the Beijing International Commercial Tribunal.
“Our accurate application of foreign laws and international rules has also helped Chinese enterprises involved in these cases learn how to protect their legitimate rights in overseas projects and purchases of international goods,” Li said.
However, Zhao, from Shenzhen, said the ranks of judicial talent are still insufficient to meet China’s growing demand for smoothing construction of the rule of law in matters relating to foreign affairs.
“For instance, our center has received nearly 800 domestic cases since the start of this year, which far exceeded the estimated figure of 300 when it was set up last year. We don’t have enough judges to handle such a large caseload,” she said.
In addition, as some foreign-related cases are complex, and the accurate application of foreign laws is not easy, demand for legal professionals has become more urgent, Zhao added, calling for increased and diverse measures to strengthen talent education.