Enforcement of foreign-related civil, commercial judgments: Part II

By Zhang Yang and Liu Fang, Tiantai Law Firm
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To recognise a foreign-related judicial judgment in China, parties to the case, or the foreign court, must submit documents to a Chinese court with jurisdiction, which follows a set of principles to make a decision

As mentioned in part I of this series, the Civil Procedure Law provides that to recognise and enforce a ruling of a foreign court, an application needs to be made to a Chinese court with apt jurisdiction, which will make a decision based on any international treaty concluded or acceded by China, or the principle of reciprocity. Part II of this series focuses on the operational procedures for recognising foreign judgments.

Enforcement of foreign-related civil, commercial judgments: Part I

By: Zhang Yang and Liu Fang, Tiantai Law Firm

APPLICATION METHODS

Zhang Yang, Tiantai Law Firm
Zhang Yang
Senior Partner
Tiantai Law Firm

Judicial practices of countries are generally divided into two approaches to apply for recognition and enforcement of foreign court judgments: direct submission by the parties to a foreign court; or submission by the court rendering the verdict to a foreign court in accordance with any international treaty, or through diplomatic channels.

Where an application is made to China for recognition and enforcement of a foreign court judgment, if the country issuing the judgment has concluded a bilateral judicial assistance treaty with China, the application shall be conducted in accordance with the provisions of the treaty. If there is no treaty, the parties may directly apply to a Chinese court, or a foreign court may apply in accordance with the principle of reciprocity.

Article 544 of the Interpretation of Civil Procedure Law stipulates that if a party applies to an Intermediate People’s Court for recognition and enforcement of a legally effective judgment issued by a foreign court, if the foreign country has not concluded or acceded to an international treaty with China and there is no reciprocal relationship, the application shall be rejected, except for legally effective divorce judgments made by foreign courts. If the application is rejected by a ruling, the party concerned may initiate a new proceeding in a people’s court.

The application to a Chinese court must be in writing and accompanied by the original judgment and a certified Chinese translation. If a foreign country has a bilateral judicial assistance treaty with China, the party shall submit these relevant documents to the Chinese court in accordance with the provisions of the treaty.

To apply for recognition and enforcement of a foreign court judgment in China, the applicant shall submit the following:

  • An application form stating basic information about the applicant and the respondent, a request, and facts and reasons on which it is based;
  • The applicant’s identity or registration certificate, and the identity certificate of the legal representative and responsible person and power of attorney;
  • The original or a certified copy of the effective judgment/award issued by the court or the arbitration body; and
  • Evidence.

If the materials submitted are in a foreign language, a Chinese translation shall also be provided, certified and notarised by:

  • Foreign notary organisations or authenticated by authorised agencies of the Ministry of Foreign Affairs, and Chinese embassies and consulates abroad;
  • Foreign embassies/consulates directly; or
  • Domestic notary authorities.

JURISDICTION

Liu Fang, Tiantai Law Firm
Liu Fang
Senior Partner
Tiantai Law Firm

Intermediate People’s Courts in China accept applications for recognition and enforcement of judgments of foreign courts. The Provisions of the Supreme People’s Court on Some Issues Concerning the Jurisdiction of Civil and Commercial Cases Involving Foreign Elements states that civil and commercial cases involving foreign elements in the first instance shall be subject to the jurisdiction of: (1) the people’s court of an economic and technological development zone established under the approval of the State Council; (2) the Intermediate People’s Court at the locality of a provincial or autonomous regional capital or a municipality directly under the central government; (3) the Intermediate People’s Court of a special economic zone or a city under separate state planning; (4) any other Intermediate People’s Court designated by the Supreme People’s Court; (5) a Higher People’s Court.

STATUTE OF LIMITATION

Under article 246 of the Civil Procedure Law, the time limit for a party to apply for recognition and enforcement of a foreign judgment is two years. The suspension or interruption of the statute of limitation for applying for enforcement shall be governed by legal provisions for this. The period starts from the last day of the performance period specified in a legal instrument, or the day when the period for the last stage of performance expires, or the effective date of a legal instrument if the instrument does not specify a period of performance.

EXAMINATION AND DISPOSITION

The court shall form a collegial panel to conduct an examination. After the review:

  • If the country of the foreign court has not joined an international treaty with China, and there is no reciprocal relationship, the court shall reject the application;
  • If the country of the foreign court has concluded or acceded to an international treaty with China, or there is a reciprocal relationship, it shall recognise the validity of the foreign judgment, and issue writ of execution if enforcement is necessary. If the conditions are not met, the ruling shall not be recognised or enforced.

When applying reciprocity, the parties have to prove the Chinese court’s decision was once recognised and enforced in the foreign country, and prove that the judgment being applied, if issued by China’s court, would also be recognised and enforced by the foreign court under the same conditions.

Generally, foreign court judgments are not recognised in the following situations:

  • The judgment has not taken legal effect;
  • The foreign court issuing the judgment has no jurisdiction over the case;
  • The judgment was rendered under default and without a lawful summons;
  • The case is being tried or has been adjudicated by a Chinese court, or the judgment of a third country on the case has been recognised by a Chinese court;
  • The judgment violates the basic principles of Chinese law or endangers China’s state sovereignty, security and public interests.

APPROACH FOR RELIEF

A ruling made by a people’s court after examination is final and takes legal effect once served. If a people’s court refused to recognise and enforce a foreign judgment, the parties can file another lawsuit with the people’s court on the same facts.

The third and final part of the series will introduce the procedures for enforcement and explain the relationship between recognition and enforcement.


Zhang Yang is a senior partner at Tiantai Law Firm. He can be contacted at +86 189 1081 2187 or by email at zhangyang@tiantailaw.com

Liu Fang is a senior partner at Tiantai Law Firm. She can be contacted at +86 135 5263 7055 or by email at liufang@tiantailaw.com