In the Nanning Statement, Chinese courts made a commitment to loosen the criteria for recognizing and enforcing foreign judgments in China. Thus, the “Nanning Statement” (南宁声明) is regarded as a milestone in this field, demonstrating a major shift in the attitude of Chinese courts.
This post is an introduction to the article titled “The New Trend in Practical Developments of the Principle of Reciprocity under the Background of the ‘Belt and Road Initiative’” (“一带一路”背景下互惠原则实践发展的新动向), published in the “People’s Court Daily” (人民法院报) on 20 June 2017. The writer of the article is Judge Zhang Yongjian (张勇健), the Director of China’s Supreme People’s Court’s 4th Civil Division. The “People's Court Daily” (人民法院报) is a newspaper which is affiliated to China’s Supreme People’s Court (the SPC).
On 8 June 2017, the Nanning Statement was approved at the 2nd China-ASEAN Justice Forum held in Nanning. In the Article 7 of the Nanning Statement, the consensus of “presumptive reciprocity” (推定互惠) is reached by all participating countries. This marks a dramatic change in the recognition and enforcement of foreign judgments in China.
The contents of the Article 7 of the Nanning Statement are as follows:
Regional cross-border transactions and investments require a judicial safeguard based on appropriate mutual recognition and enforcement of judicial judgments among countries in the region. Subject to their domestic laws, Supreme Courts of participating countries will keep good faith in interpreting domestic laws, try to avoid unnecessary parallel proceedings, and consider facilitating the appropriate mutual recognition and enforcement of civil or commercial judgments among different jurisdictions. If two countries have not been bound by any international treaty on mutual recognition and enforcement of foreign civil or commercial judgments, both countries may, subject to their domestic laws, presume the existence of their reciprocal relationship, when it comes to the judicial procedure of recognizing or enforcing such judgments made by courts of the other country, provided that the courts of the other country had not refused to recognize or enforce such judgments on the ground of lack of reciprocity.
Pursuant to the PRC Civil Procedure Law (CPL), Chinese courts should recognize and enforce foreign civil and commercial judgments in accordance with international treaties and the principle of reciprocity. However, international treaties have played a limited role in China because of the fact that, on the one hand, China has not yet acceded to the Hague Convention on Choice of Court Agreements, and on the other hand, the number of bilateral treaties on judicial assistance in civil and commercial matters which China has concluded, including the contents of recognizing and enforcing foreign civil and commercial judgments in China, is relatively small. In contrast, for Chinese courts, the principle of reciprocity is more important with respect to the recognition and enforcement of foreign judgments.
In the past, China held a relatively conservative position on the recognition and enforcement of foreign judgments, which led to three consequences: (1) Foreign judgments could not be easily recognized and enforced by Chinese courts; (2) It may give rise to cross-border parallel proceedings; (3) Foreign courts, in response to China’s practices, under the principle of reciprocity, also refused to recognize the judgments rendered by Chinese courts.
Now, in the new era of the “Belt and Road Initiative”, the SPC holds the view that Chinese courts should properly determine the review standards of the principle of reciprocity and strengthen the mechanism of the recognition and enforcement of foreign judgments. In this case, the lawful rights and interests of business entities from countries along the “Belt and Road” shall be safeguarded, and a fair and efficient legal environment for the construction of the “Belt and Road Initiative” will be created.
Therefore, in the Nanning Statement, the consensus on the principle of reciprocity, which is reached between judiciaries of China and ASEAN countries, as well as South-Asian countries, is a critical first step forward taken by the SPC. To be more specific:
First, the consensus was proposed by the SPC and supported by ASEAN countries, showing that China and ASEAN will be open, pragmatic and cooperative in their mutual recognition and enforcement of civil and commercial judgments. Undoubtedly, this shall be viewed as a model of judicial cooperation under the “Belt and Road Initiative”.
Second, the consensus promotes the new development of the principle of reciprocity.
The principle of reciprocity can be divided into conclusive reciprocity and presumptive reciprocity. The former requires domestic courts to ascertain that there exist relevant legal provisions (de jure reciprocity) or actual precedents (de facto reciprocity) where domestic judgments could be or have been recognized and enforced in that foreign country. The latter requires that domestic courts should presume the existence of a reciprocal relationship between two countries, provided that there is no evidence that the courts of the other country had refused to recognize or enforce domestic judgments.
Presumptive reciprocity reduces the applicant’s burden of proof for establishing the existence of the reciprocal relationship, thereby increasing the possibility of confirming the existence of the reciprocal relationship between two countries. On this occasion, it will help to improve the possibility of the recognition and enforcement of foreign judgments in China.
Previously, China has long adopted de facto reciprocity in practice. It is the Nanning Statement that first proposed the approach of presumptive reciprocity and therefore it marks the significant breakthrough in this field compared with the past practices of Chinese courts.
Third, the consensus reflects that Chinese courts have taken a positive attitude in advocating and gradually expanding the international judicial cooperation, as well as actively promoting the formation of reciprocal relationships.
In June 2015, the SPC issued the “Several Opinions of the Supreme People's Court on Providing Judicial Services and Safeguards for the Construction of the ““Belt and Road”” by People's Courts” (关于人民法院为“一带一路”建设提供司法服务和保障的若干意见), which emphasizes the need to broaden the scope of international judicial assistance. In other words, for one thing, China will conclude more bilateral or multilateral treaties on judicial assistance, thus facilitating the recognition and enforcement of judgments delivered by courts from countries along the “Belt and Road”; and for another, in the absence of such treaties, based on mutual views in international judicial cooperation and/or the commitments of the requesting state to grant reciprocity, Chinese courts may grant reciprocity first, thus promoting the formation of a reciprocal relationship.
The consensus of presumptive reciprocity in the Article 7 of the Nanning Statement meets the requirements mentioned above.
The SPC believes that the consensus, without doubt, will encourage more countries along the “Belt and Road” to take the position of presumptive reciprocity when cooperating with China, and in the meantime, an agreement is bound to be reached when it comes to strengthening the cooperation with Chinese courts in respect of the recognition and enforcement of judgments. Admittedly, all these will facilitate the developments of the dispute settlement mechanism under the “Belt and Road Initiative”.
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Contributors: Guodong Du 杜国栋 , Meng Yu 余萌
