On 27 Oct. 2015, the Arnhem Leeuwarden Court of Appeal ruled to recognize and enforce a civil judgment made on 12 Oct. 2010 by the High People’s Court of Shandong Province, China, which marks the first time that a Dutch court has recognized and enforced a Chinese monetary judgment.[1] This case is of positive significance for the mutual recognition and enforcement of judgments between China and the Netherlands in the future.
I. Case brief
According to the decision (Case No. ECLI: NL: GHARL: 2015: 8059) of the Arnhem-Leeuwarden Court of Appeal (“Dutch Court”), the applicant (Haier Electrical Appliances) requested the Dutch Court to recognize a judgment made on 12 Oct. 2010 by the High People’s Court of Shandong Province, China (“Shandong High Court”); the respondent X (F.H. Aalderink) though resides in Ireland, has executable property located in the Netherlands.
This was a foreign-related guaranty dispute and the U.K. law was applicable according to the choice of the parties. The first instance was tried by the Qingdao Intermediate People’s Court of Shandong Province, the second instance by the Shandong High Court, and the adjudication supervision by China’s Supreme People’s Court (SPC). [2]
II. Conditions for recognition of Chinese judgment by Dutch courts
According to Article 431 of the Dutch Code of Civil Procedure (“DCCP”), unless otherwise provided by Articles 985 to 994 hereof, foreign judgments cannot be enforced in the Netherlands. The relevant cases can be filed with anew and heard by Dutch courts. In the absence of treaties on mutual recognition and enforcement of civil and commercial judgments with the Netherlands, the recognition and enforcement of foreign judgments should be based on the general rules of private international law. However, in a 1924 judgment of the Supreme Court of the Netherlands, the court noted that “in every independent case, it is necessary to determine whether or not and to what extent the validity of a foreign judgment must be determined”. [3] This judgment not only represents a further development of the case law in the recognition of foreign judgments by Dutch courts, but also establishes four conditions for such judicial practice: (1) the jurisdiction of the court that issued the decision is based on a jurisdictional ground that is acceptable according to international standards; (2) the foreign decision was formed in court proceedings that satisfy the requirements of the proper and sufficiently safeguarded administration of justice; (3) the recognition of the foreign decision is not contrary to the Dutch public order; (4) the foreign decision is not inconsistent with a decision issued by the Dutch court between the same parties, or with a previous decision of a foreign court that was issued between the same parties in a dispute that relates to the same subject matter and is based on the same cause, provided that the previous decision is eligible for recognition in the Netherlands. [4]
Since there is no international treaty on recognition and enforcement of civil and commercial judgments between China and the Netherlands, the Dutch Court has to make its decision based on the above four conditions.
i. Jurisdiction requirements
In the trial of the Dutch Court, the international jurisdiction of Chinese courts should be examined first. As to whether Chinese courts exercise jurisdiction based on internationally accepted standards, Haier believed that Chinese courts had jurisdiction over this case, because China was the place where the contract was established and performed. While the respondent X believed that given the two parties had not reached a contract (at least not a legal and effective contract), Chinese courts, therefore, could not accept the case based on the above reason.
However, the Dutch Court held that, according to Article 6 of the DCCP and Article 7 (1) of the Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Recast), the place of the obligation in question could be regarded as an internationally accepted jurisdiction basis. The determination of the place where the obligation was to be performed shall be based on the applicable law of the contract. According to the agreement of the parties, the U.K. law shall be applicable to the performance of the guaranty, pursuant to which the respondent’s obligation to refund the advance payment based on the guaranty was the debt to be repaid to the creditor (i.e. Haier). Therefore, Qingdao City of China, as the main business premises of Haier, shall be the place of performance of the contract, and Chinese courts shall have jurisdiction over the dispute between the parties. In response, the Dutch Court found that the requirement of jurisdiction was met.
ii. Due process
For the second condition, the respondent X pointed out that China’s judicial system was not independent, and local protectionism had biased the first-instance judgment in favor of Haier However, as the respondent failed to provide sufficient evidence to prove that the local protectionism had actually influenced the judge to make a biased judgment, the Dutch Court did not support the respondent’s claim.
iii. Public order
The Dutch Court found no violation of Dutch public order in this case.
iv. No conflicting judgments
In this case, there were no conflicting judgments mentioned in Condition (4).
Therefore, the Dutch Court held that the Chinese judgment was eligible for recognition, and ruled that the respondent should repay the advance payment according to the judgment of the Shandong High Court.
III. The possibility of recognition and enforcement of Dutch judgments in China
According to Article 282 of the PRC Civil Procedure Law (CPL), if the parties apply to Chinese courts for recognition and enforcement of Dutch judgments, Chinese courts will first consider whether there is a treaty between the two countries, the answer of which is “No” at present. In the absence of a treaty, the court will then consider the existence of reciprocity. Finally, the foreign judgment to be recognized and enforced cannot violate the basic principles of Chinese laws or national sovereignty, security, social and public interests.
According to China’s judicial practice in recent years,[5] if foreign courts have recognized and enforced Chinese judgments before, then Chinese courts are very likely to do the same based on de facto reciprocity. For example, China has recognized and enforced judgments of the U.S., [6] Germany, [7] Singapore, [8] and South Korea[9] based on de facto reciprocity. However, as important as de facto reciprocity is, it is not a panacea; the recognition of foreign judgments cannot be guaranteed merely by the existence of de facto reciprocity, mainly for the following two reasons.
i. The reciprocity is not the only factor considered by Chinese courts.
When it comes to recognition and enforcement of foreign judgments, apart from the general provisions under Article 282 of the CPL, Chinese courts will also, according to the CPL Interpretation and judicial practice, examine whether the foreign courts have jurisdiction over the cases and whether the parties have been duly served according to the laws of such foreign countries. [10]Therefore, meeting the requirements of de facto reciprocity is not enough.
ii. De facto reciprocity is not uniformly applied in judicial practice.
While some Chinese courts, as mentioned before, have recognized and enforced foreign judgments based on de facto reciprocity, some other Chinese courts have refused to do so on the ground of lack of reciprocity. For example, in 2017, the Nanchang Intermediate People’s Court of Jiangxi Province (“Nanchang Intermediate Court”) refused to recognize and enforce the judgment of the Philadelphia Court of Common Pleas in the First Judicial District (FJD) of Pennsylvania ((2016) Gan 01 Min Chu No. 354) ((2016)赣01民初354号). And in June 2017, when S. L. JONAS LTD applied for recognition of the civil judgment of the Jerusalem Magistrate’s Court of Israel, Fuzhou Intermediate People’s Court of Fujian Province (“Fuzhou Intermediate Court”) did not seem to notice the first-instance decision (a decision rendered to recognize a Chinese judgment based on reciprocity) made by the Tel Aviv District Court in 2015, and therefore refused to recognize the Israeli judgment on the grounds that there was neither relevant treaty nor reciprocity. [11]
Still, some reasons may account for the above two exceptional cases concerning de facto reciprocity. For the 2017 ruling of the Nanchang Intermediate Court, given the different legislation and practice among various states of the U.S., the reciprocity between the Chinese court and California does not necessarily mean that there is reciprocity between China and Pennsylvania. As for the ruling of the Fuzhou Intermediate Court, the parties concerned appealed to the Israeli High Court after the first-instance trial, and the Israeli High Court was still in the middle of the second-instance trial when the Chinese court needed to make a decision. [12] Therefore, the reciprocity between China and Israel had not yet be established at that time.
To sum up, the recognition and enforcement of a Chinese judgment in civil and commercial matters by the Dutch Court for the first time is undoubtedly of positive significance for mutual recognition and enforcement of civil and commercial judgments between the two countries. The judgment of the Dutch Court has positively taken the first step in terms of the requirement of de facto reciprocity of China. Although de facto reciprocity is not uniformly applied in China’s judicial practice, according to the trend in recent years, if relevant precedents exist, most courts will not refuse to recognize foreign judgments on the ground of lack of reciprocity. If a Dutch judgment can meet the requirements on jurisdiction and due process, and does not violate China’s public policy, it is very likely to be recognized and enforced by Chinese courts.
References
[1] ECLI:NL:GHARL:2015:8059.
[2] 玛尔斯合作有限公司（Mares Associates Limited）等与海尔集团电器产业有限公司保证合同纠纷申请案，最高人民法院（2012）民申字第1548号民事裁定书。
[3] Mathijs H. Ten Wolde, Recognition and Enforcement of Chinese Money Judgments in Civil and Commercial Matters in the Netherlands: Law and Practice, Chinese Yearbook of Private International Law and Comparative Law 126 (2017).
[4] Id. at pp. 126-127.
[5] China Justice Observer, List of China’s Cases on Recognition of Foreign Judgments, available at https://www.chinajusticeobserver.com/a/list-of-chinas-cases-on-recognition-of-foreign-judgments .
[6] China Justice Observer, Chinese Courts' Ruling on Recognition and Enforcement of U.S. Judgments: (2015) E Wu Han Zhong Min Shang Wai Chu Zi No. 00026, available at https://www.chinajusticeobserver.com/p/2015-e-wu-han-zhong-min-shang-wai-chu-zi-no00026.
[7] 中华人民共和国湖北省武汉市中级人民法院民事裁定书，（2012）鄂武汉中民商外初字第00016号。
[8] China Justice Observer, Chinese Courts' Ruling on Recognition and Enforcement of Singapore Judgments: (2016) Su 01 Xie Wai Ren No. 3, available at https://www.chinajusticeobserver.com/p/2016-su-01-xie-wai-ren-no-3.
[9] China Justice Observer, Chinese Court First Recognizes a South Korean Judgment: Another Sign of Door Open for Foreign Judgments, available at https://www.chinajusticeobserver.com/a/chinese-court-first-recognizes-a-south-korean-judgment .
[10] 沈红雨：《外国民商事判决承认和执行若干疑难问题研究》，《法律适用》2018年第5期，第10-12页。
[11] China Justice Observer, Chinese Court Refuses to Recognize an Israeli Judgment, but It Won’t Exert Further Influence, available at https://www.chinajusticeobserver.com/a/chinese-court-refuses-to-recognize-an-israeli-judgment-but-it-wont-exert-further-influence.
[12] 福州中院作出裁定的时间为2017年6月，以色列高等法院作出裁定的时间为2017年8月。
Cover Photo by Vishwas Katti(https://unsplash.com/@vishkatti) on Unsplash
Contributors: Yahan Wang 王雅菡
