Having judgments of courts in foreign jurisdictions recognised and enforced in mainland China requires conformity to stringent legal conditions
By October 2021, China had entered into bilateral judicial assistance agreements with 39 countries on civil and commercial matters, 38 of which had come into effect and 34 stipulating the conditions for recognition and enforcement of judgments issued by foreign courts. In addition, Chinese courts have recognised and enforced commercial judgments of courts in Singapore and the US under the principle of reciprocity. Chinese judgments have also been recognised and enforced by courts in Germany, Singapore, the US, Israel and other countries.
From 2018 to 2020, Chinese courts accepted 1,301 applications for recognition and enforcement of civil and commercial judgments by foreign courts, and concluded 1,226 cases, of which 1,142 were recognised and enforced, involving more than 30 countries.
Based on the principle of judicial sovereignty in international law, a judgment issued by a court can only be recognised and enforced in its own country. To become effective elsewhere, it must be recognised and enforced by other jurisdictions. In July 2019, the Hague Conference on Private International Law adopted the Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters.
China had sent senior judges to participate in numerous sessions of the drafting and negotiation of the convention and signed it – though only to confirm the text. The convention is yet to be formally ratified in order to come into force in China.
Until the convention does become effective in China, there are two sources of legal basis for Chinese courts to recognise and enforce foreign judgments: bilateral judicial assistance treaties between China and other countries; and the reciprocity principle.
Current legal norms
Recognition and enforcement of foreign judgments in China is mainly regulated by the Civil Procedure Law and its judicial interpretations.
Article 288 of the law provides: Where an effective judgment or ruling of a foreign court requires recognition and enforcement by a people’s court of the People’s Republic of China, a party may apply directly to the intermediate people’s court having jurisdiction for recognition and enforcement, or apply to the foreign court for the foreign country to request recognition and enforcement by the people’s court in accordance with the provisions of an international treaty concluded or acceded to by the People’s Republic of China, or under the principle of reciprocity.
Article 289 provides: After examining an application or request for recognition and enforcement of an effective judgment or ruling of a foreign court a people’s court shall issue a ruling to recognise the legal force of the judgment, or issue an order for enforcement as needed to enforce the judgment or ruling according to the relevant provisions of this law, if the people’s court deems that the judgment or ruling does not violate the basic principles of the laws, the sovereignty, security and public interest of China. Otherwise, the people’s court shall not grant recognition and enforcement.
By: Zhang Yang and Liu Fang, Tiantai Law Firm
To sum up, there are three basic conditions for Chinese courts to recognise and enforce foreign civil and commercial judgments:
- The foreign civil and commercial judgment has taken legal effect, in other words, it is a definitive judgment;
- China has concluded or joined an international treaty on the recognition and enforcement of civil and commercial judgments with the foreign country, or there is a reciprocal relationship; and
- The recognition and enforcement of the foreign civil and commercial judgment does not violate the basic principles of the law or national sovereignty, security or social and public interests.
The procedural requirements on recognition and enforcement of foreign judgments also include:
- The applicant may be a party to the case or a foreign court;
- The court to which the application is made is an intermediate people’s court with jurisdiction;
- Application materials should be translated into Chinese or other languages stipulated by international treaties;
- The form of examination shall be in accordance with relevant provisions of Chinese laws; and
- Recognition and enforcement of foreign judgments shall be made in the form of an enforcement order.
The Supreme People’s Court’s Interpretation on the Application of the Civil Procedure Law of the People’s Republic of China (2020) provides the following supplementary interpretation on the recognition and enforcement of foreign judgments:
First, according to article 543, the applicant shall submit a written application, to which the original or the certified error-free duplicate and Chinese translation of the effective judgment or ruling of the foreign court shall be affixed. If the judgment rendered by the foreign court is a default judgment, the applicant shall, at the same time, submit the certification documents on a legal summons from the foreign court, unless the judgment has expressly stated the fact.
Second, according to article 548, the people’s court shall form a collegial bench to examine the case and the people’s court shall serve the written application upon the respondent. The respondent may state its or his/her opinions.
Subsequent parts of this series will introduce the specific procedures for recognising and enforcing foreign judgments in China.