Judicial support for GBA’s Nansha Plan

To strategically implement the Guangdong-Hong Kong-Macau Greater Bay Area (GBA) initiative, the central government and State Council have separately issued three distinct development plans.

Namely, these comprise: the Overall Plan of Constructing the Guangdong-Macau In-depth Co-operation Zone in Hengqin; the Reform Plan of Advancing the Shenzhen-Hong Kong Modern Service Industry Co-operation Zone in Qianhai; and the Overall Plan of Nansha in Promoting Comprehensive Global Co-operation between Guangdong, Hong Kong and Macau (Nansha Plan).

In tandem, the Supreme People’s Court (SPC) has enacted judicial policies supporting the co-operation zone in Hengqin and reform in Qianhai, which are in many ways similar but not identical to policies in Nansha.

As Guangzhou city’s port district, Nansha is at the nexus of the domestic-international dual circulation system. Externally, it connects to foreign countries along the Belt and Road, and regional development; internally, unique resources include advantageous production capacity of the Pearl River Delta, the need for international economic and trade service organisations to “go out”, and a deeply embedded business culture.

In this article, the author offers recommendations to the SPC for judicially supporting GBA co-operation in Nansha.

MUTUAL JUDICIAL ASSISTANCE

Protection of intellectual property in important areas should be a priority. This includes the transfer and commercialisation of innovative achievements to inspire technological vitality and a legal environment of fair competition.

A uniform set of rules for special litigation involving property rights should also be emphasised. Both local protectionism and, on the flip side, unfair treatment should be prevented and culled to create a business climate governed by the rule of law.

In terms of cross-border crime, Nansha should be enabled to conduct cross-border crime crackdowns, explore overseas forensics and property enforcement, and collaborate on the formulation of trial evidence rules.

Synergy in building the rule of law across the GBA should be promoted by dialling up Nansha’s communication with law enforcement and judicial authorities in Hong Kong and Macau, exploring co-operation in judicial assistance, notification of the law, regulation and policy updates, and publicity of the rule of law.

The appointment and management mechanism for people’s supervisors, people’s jurors and expert panel members from Hong Kong and Macau should also be explored, encouraging the two special administrative regions to familiarise and participate in China’s brand of socialist judicial system.

The public interest litigation trial system should be linked with their counterparts in Hong Kong and Macau to create unified judicial standards on environment protection, and promote environmental-related judicial assistance within and surrounding the GBA.

LEGAL ENVIRONMENT FOR BUSINESS

In line with explicit requirements under the Nansha Plan to “further diversify dispute resolution mechanisms, build a one-stop civil and commercial dispute resolution platform, and promote information exchange and organic connection between litigation, arbitration, mediation and other dispute resolution methods” – and based on existing legislation in important areas of Nansha from both provincial and municipal judicial administrations – efforts should focus on furthering the reform of simplification and decentralisation, creating a “triune” mediation system comprising people’s mediation, administrative mediation and judicial mediation.

This can be accomplished by:

1. Facilitating Nansha courts to work with renowned international commercial arbitration institutions and mediation organisations; and
2. Exchanging litigation and mediation information, and judicial confirmations, in connection with GBA arbitration, mediation and maritime arbitration centres, as well as venues of other types of dispute resolution modelled after standard rules of the Chartered Institute of Arbitrators, London Maritime Arbitration Association, Centre for Effective Dispute Resolution, and Judicial Arbitration and Mediation Services in the US, and focused on commerce and trade, maritime, intellectual property, data protection, financial futures and other professional areas.

In addition, policies should support the exploration and creation of a GBA-wide qualification recognition system for cross-border affairs between mediators on the mainland, and in Hong Kong and Macau.

These should focus on a uniform professional standard evaluation system, providing a systematic foundation for establishing a one-stop civil and commercial dispute resolution platform, and further diversification of dispute resolution.

CONNECT WITH FINANCIAL MARKET

Nansha should be granted a bigger voice in the reform of foreign exchange management in cross-border property insurance, commercial medical insurance, cross-border capital pools and overseas investment. Relevant minutes and judicial interpretations could form the basis of improving the law enforcement and judicial capacity for monitoring, anticipating and handling risks arising in the process of opening up.

APPLYING FOREIGN LAWS

A sound system for identifying and applying extraterritorial law in court cases should be established, including setting up a special platform for looking up foreign laws with the focus on areas such as international trade and commerce, maritime, IP, financial futures and data protection.

Litigation guidelines are needed to facilitate Hong Kong and Macau lawyers to attend and perform legal duties in trials taking place in mainland cities in the GBA. Hong Kong and Macau lawyers should also be allowed to help identify extraterritorial laws in Nansha courts, broadening the path to applicable interjurisdictional laws.

Without compromising basic principles of Chinese law, national sovereignty, security, and social and public interests, Nansha courts should be encouraged to apply as a pilot for applying extraterritorial laws, allowing Nansha-based companies with Hong Kong, Macau, Taiwan and other foreign investments to be governed by laws in other jurisdictions.

Additionally, international treaties, practices and commercial rules – particularly high-level free-trade agreements such as the Regional Comprehensive Economic Partnership, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, and the Digital Economy Partnership Agreement – should be made more available for dispute resolution.

Jeffrey Quan is a senior partner at ETR Law Firm