On 2 June 2020, the Chenzhou Intermedia People’s Court in Hunan Province of China (hereinafter “the Chenzhou Court”) rendered a ruling to dismiss the application for recognizing and enforcing a Myanmar civil judgment in Tan Junping et al v. Liu Zuosheng et al, ((2020) Xiang 10 Xie Wai Ren No.1)(（2020）湘10协外认1号), on the ground that the applicants failed to submit the original or a certified copy of the effective judgment.
To our knowledge, this is the first reported case where a Chinese court accepted a case on recognition and enforcement of Myanmar money judgments.
I. Case Overview
The applicants, Tan Junping(谭军平), Liu Xukun(刘旭坤) and Jin Zhike(金志科), and the respondents Liu Zuosheng(刘作生) and Chen Zhengliang(陈正良) are all Chinese nationals.
The applicants and respondents had disputes over the shares of a Myanmar mine. On 17 Mar. 2017, the High Court of Wa State in Myanmar rendered the civil judgment (2017) Wa Judicial Min Zhong Zi No. 003 (“the Myanmar Judgment”).
Afterward, the applicants applied to Chenzhou Court for recognition and enforcement of the Myanmar Judgment.
On 20 Jan. 2020, the Chenzhou Court accepted the case.
The applicants stated that the respondents should pay CNY 3 million to them, while the respondents believed that the Myanmar judgment had already been enforced.
On 2 June 2020, the Chenzhou Court rendered a ruling to dismiss the application on the ground that the applicants failed to provide the original or a certified copy of the effective foreign judgment.
II. Our Comments
- What is the result of not submitting the foreign judgment?
In this case, the Chenzhou Court dismissed the application with the reason that the applicants failed to provide the foreign judgment. Under this circumstance, the applicants may have two options:
(1) filing a new lawsuit, that is, according to Chinese law, if the application for recognition and enforcement of a foreign judgment is dismissed by a ruling, the parties may file a lawsuit to a Chinese court. [1]
(2) re-applying after preparing the application materials, that is, according to Chinese law, if the application (lawsuit) is dismissed, the parties may file the application again to a Chinese court, and if the conditions are met, the court should accept the case. [2]
Clearly, a ruling to dismiss the application (裁定驳回申请) and a ruling against recognition and enforcement (裁定不予承认与执行) differ in terms of legal consequences.
(1) If, during the preliminary review, a Chinese court discovers a case fails to reach the requirements for acceptance, such as the absence of treaties or reciprocity, or failure to provide a foreign judgment (such as this case), the court will rule to dismiss the application, and the applicants may have the previous two options.
(2) If, the case passes the preliminary review, and then goes through the geneal review, during which the Chinese court considers that the application fails to meet the requirements for recognition and enforcement, it will rule against recognition and enforcement. In this circumstance, the ruling is final.
- Did we miss the chance of applying the Nanning Statement?
In a circumstance (just as in this case), where there is neither an international treaty on the recognition and enforcement of judgments nor a reciprocal relationship between China and the country where the judgment is rendered, the Chinese court will deliver a ruling to dismiss the party’s application. In this very case, no such treaty is concluded between China and Myanmar, and nor there exists any reciprocity between the two countries, since Myanmar courts, to our knowledge, have never handled a case on the recognition and enforcement of Chinese judgments. (Note: Based the existing de facto reciprocity test adopted in Chinese courts, the lack of a precedent where a foreign court recognizes a Chinese judgment would result in “nonexistence of reciprocity”).
However, it is worth noticing that both the president of China’s Supreme People’s Court and the Chief Justice of the Republic of the Union of Myanmar had participated in delivering the Nanning Statement of the Second China-ASEAN Justice Forum (“Nanning Statement”), which involved the recognition and enforcement of judgments.
In accordance with Article 7 of the Statement, “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.”
According to Nanning Statement, it seems that the Chenzhou court should presume that there is a reciprocal relationship between China and Myanmar. However, Nanning Statement is neither a treaty nor a domestic law, and thus it is not a legal provision that Chinese courts may invoke. Therefore, we are all curious about how the Chinese courts may apply the Nanning Statement in practice.
This case could have been an opportunity to observe Chinese courts’ attitude towards Nanning Statement, so as to help us to establish a clear expectation for China’s recognition and enforcement of judgments made by Southeast Asian countries.
Unfortunately, because the applicants did not provide the necessary materials for their application, the Chenzhou court did not need to consider the Nanning statement.
Nonetheless, we are optimistic that cases related to the Nanning statement will appear sooner or later.