The first batch of typical cases of identifying and applying extraterritorial laws released by the Supreme People's Court
2024-07-16
In order to enhance the comprehensive and accurate understanding of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the Law of the People's Republic of China on the Application of Foreign Related Civil Relations, which came into effect on January 1 this year, the Supreme People's Court released the first batch of typical cases of identifying and applying foreign laws on July 10. In foreign-related civil and commercial trials, in accordance with the Law of the People's Republic of China on the Application of Law in Foreign Related Civil Relations (hereinafter referred to as the Law) and other legal provisions, identifying and accurately applying extraterritorial laws to resolve disputes between parties is an important manifestation of equal protection of the legitimate rights and interests of both domestic and foreign parties, showcasing the image of the country's judiciary, and promoting international civil and commercial exchanges. On December 1, 2023, the Supreme People's Court issued Interpretation (II), which specifically provides provisions for identifying legal issues outside the jurisdiction. It systematically improves the responsibility, channels, procedures, and standards for identifying legal issues outside the jurisdiction, providing a normative basis for the practice of identifying legal issues outside the jurisdiction. The five typical cases released this time involve common types of foreign-related civil and commercial cases such as company investment, sales contracts, guarantee contracts, multimodal transportation contracts, and engineering supervision contracts, as well as laws in countries and regions such as the United States, the United Kingdom, Mexico, Tajikistan, and the Hong Kong Special Administrative Region of China. The reporter learned from the Supreme Court that the controversial issues of extraterritorial law determination in these typical cases have strong representativeness, which has important guiding significance for enriching the practice of extraterritorial law determination and clarifying the rules of extraterritorial law determination. One is to clarify the responsible parties identified by extraterritorial laws. According to the provisions of the applicable law and its judicial interpretations, in cases where the parties have not chosen to apply extraterritorial laws, the people's court is the responsible party for identifying extraterritorial laws. The people's court should take a proactive attitude and strive to clarify the laws outside the jurisdiction. It shall not transfer the responsibility that should be determined by the court to the parties involved, nor shall it simply assume that the laws outside the jurisdiction cannot be determined and apply Chinese laws instead. In the case of a contract dispute between a medical technology (Hong Kong) Co., Ltd. and Weimou Medical Co., Ltd. in Case 2, the parties provided a large amount of information on extraterritorial laws, including written law, case law, and legal works. There was a significant dispute between the parties regarding the content, understanding, and application of extraterritorial laws. The people's court did not simply determine that extraterritorial laws could not be determined, but instead, after comprehensive analysis and careful comparison, made a cautious determination of extraterritorial laws. The second is to use a rich and diverse approach to identification. Expanding diverse and diverse avenues of investigation is a key step in solving the difficulty of identifying extraterritorial laws. Generally speaking, the means of investigation should be open and not closed. In principle, any reasonable means that are conducive to the investigation of extraterritorial laws can be utilized to ensure the accurate application of extraterritorial laws to resolve disputes between parties. In Case Three, a dispute over a financial loan contract between a Zhejiang branch of a Chinese bank and a (Hong Kong) Technology Co., Ltd., the People's Court, based on the application of the parties, entrusted a package of legal issues related to multiple jurisdictions to a foreign legal investigation and research center for investigation, and resolved multiple legal disputes in one go. The third is to ensure the right of the parties to fully express their opinions. The applicable law is the normative basis for resolving disputes between parties, which is related to how the rights and obligations of the parties are allocated. When the applicable law is an extraterritorial law, regardless of whether the law is obtained by the people's court through its authority or provided by the parties, relevant extraterritorial legal materials should be presented in court for the parties to fully debate and express their opinions. In case I, the people's court took the initiative to use the Internet to check the foreign legal provisions and precedents with objections in court, fully listened to the arguments of both sides, and invited legal experts to express their opinions. The fourth is to improve the efficiency and accuracy of identifying extraterritorial laws. For a long time, the long investigation cycle and low accuracy of extraterritorial law have been one of the challenges that constrain the quality and effectiveness of foreign-related civil and commercial trials. In order to improve the efficiency of identifying extraterritorial laws and avoid duplication of labor, the people's court can negotiate with the parties through pre-trial meetings and other means to determine the scope of extraterritorial laws that need to be identified. In the case of a multimodal transportation contract dispute between a glass company in Jiangsu and a logistics company in Qingdao in Case 4, the maritime court convened the parties in front of the court to determine the points of dispute that need to be identified and the scope of extraterritorial legal investigation involved, greatly improving the efficiency of extraterritorial legal investigation. The trial of foreign-related civil and commercial matters is related to the international influence of China's judiciary and the legal business environment in China. The typical cases released this time demonstrate the clear stance of the people's courts in implementing the theme of "fairness and efficiency", equally protecting the legitimate rights and interests of both domestic and foreign parties, accurately identifying and applying extraterritorial laws in accordance with the law, which is conducive to continuously creating a market-oriented, legal, and internationalized first-class business environment in China. (Lai Xin She)
Edit：Liling Responsible editor：Chenjie
Source：http://rmfyb.chinacourt.org
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