The covid-19 pandemic has accelerated a recent trend towards online litigation in China, which has begun to build a system to handle what has now become a regular court activity.
The Supreme People’s Court (SPC) has issued a series of judicial documents to regulate online litigation, including: the Measures for the Implementation of the Pilot Programme of the Reform of Separating Complicated Civil Proceedings from Simple Ones; the Several Provisions on Providing Online Case Filing Services for Cross-border Litigants; and the Rules of Online Litigation of People’s Courts. These regulations have also introduced a number of innovations to the legal system.
Entrustment of proxy by video
Under the Civil Procedure Law, a foreign party may appoint a proxy in mainland China in one of two ways:
(1) Notarisation of the power of attorney by a notary office in the party’s country, and authentication by the Chinese embassy or consulate in that country before delivering the same to the court; and
(2) Execution of a power of attorney in the presence of a judge.
In contrast, under the cross-border litigation filing provisions, a foreign party may apply to the court to confirm the entrustment by means of a simultaneous appearance of the judge, the foreign party and the proxy through online video.
In this way, the party is no longer required to carry out notarisation and authentication of the power of attorney, or execute the same in the presence of a judge. This greatly facilitates foreign parties that would otherwise find it difficult to carry out the required notarisation and authentication, and that are unable to come to China.
A significant number of foreign parties involved in cross-border disputes have successfully taken this approach for entrustment of Chinese lawyers as their proxy. For example, in cases accepted by the Qianhai Court in Shenzhen and the Suzhou International Commercial Court, the foreign parties were unable to carry out notarisation and authentication due to the pandemic, or other reasons. Assisted by the judges, they were able to complete the execution of the power of attorney by way of video witnessing.
The Civil Procedure Law has long provided that where a witness cannot appear in court due to force majeure or other such reasons, that party may appear online. To prevent witnesses from listening in on a case, or suffering any tampering, the Online Litigation Rules further set out the requirements for witnesses to appear online, including testifying in an online testimony room or other designated venue set up by the court.
It should be noted that precedents exist where witnesses outside China have been permitted by the courts to testify via an online appearance. In Yantai Wanhua Microfiber v Wang Di (2020), the court permitted a witness in Mexico to provide testimony online. Similarly, the Shanghai Maritime Court also ascertained the facts in a contract dispute involving maritime cargo by way of simultaneous video transmission from representatives appointed by both parties to examine the goods in Brazil.
The Civil Procedure Law requires the submission of originals when it comes to documentary evidence, but in online litigation, unless the judge separately arranges for the production of offline evidence, neither the opposing party nor the judge can personally verify the authenticity of the evidence. To this end, the online litigation rules have proposed the digitisation of evidence, permitting parties to scan, photograph, transcribe or otherwise digitise documentary evidence. Where the evidence is properly digitised and no reasonable objection is raised by the opposing party, it can be used directly in the litigation.
Evidence digitisation provides an adequate solution to evidence authentication in online litigation. In one of the above-mentioned cases, the judge successfully verified the originals of evidence by requiring the parties to record and upload videos of themselves flipping through the original documents, and to present the originals again at the online hearing.
Based on the practice of courts trying cases online, the litigation rules have in effect extended the application scope of asynchronous trials to all civil cases such that mediation, exchange of evidence, cross-examination, investigation and questioning, court trial and other litigation procedures can be completed at different times. The judge may conduct court investigation of each party separately, and the parties may likewise express their cross-examination opinions or arguments in their own time.
The asynchronous trial system helps cut the time and costs that litigation participants are required to invest in case filing, mediation, court appearances and other such litigation procedures. This provides, in particular, an effective solution for parties involved in cross-border litigation, where co-ordinating trial times can be difficult due to time zone differences.
Consent still required
While online litigation offers obvious advantages in terms of improving efficiency and overcoming pandemic-related obstacles, it is not better than its offline predecessor in every way. For example, online litigation still faces challenges when it comes to verifying the identity of witnesses, preventing witness tampering, and ensuring consistency between the originals and photocopies of evidence. Additionally, lacking face-to-face interaction in court investigation and arguments, the judge is unable to make intuitive judgments on the credibility of the statements based on the participants’ emotions or body language.
For these reasons, online litigation must be conducted lawfully and on a voluntary basis. Throughout the online hearing, asynchronous trial and every other step in online litigation, consent must be sought from all parties involved and online procedures shall apply only to the consenting party. Courts likewise should carefully consider whether to allow online litigation after considering the circumstances of the case and the wishes of the parties.
The Civil Procedure Law (Draft Revisions), now being reviewed by the NPC Standing Committee, provides that “civil litigation processed on information network platforms shall have the same legal effect as offline litigation”, acknowledging this new form in legislation. Online litigation, it would seem, has a bright future.
Zhang Guanglei is a partner and Chen Cheng is an associate at Jingtian & Gongcheng. Zhang is also an arbitrator of the Hong Kong International Arbitration Centre and Shanghai International Arbitration Centre
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