Guiding Opinions of the Supreme People's Court on the Services and Guarantees of the People's Courts for Further Expanding Opening-up

〔2020〕Fafa No.37

For the purposes of further implementing the major strategic arrangements of the CPC Central Committee with Xi Jinping at its core on further expanding opening-up and promoting the pursuit of opening-up on all fronts, fully leveraging the role of the people's courts in adjudication, and providing strong judicial services and guarantees for building a new open economic system at a higher level, the guiding opinions are hereby offered as follows in light of the actual conditions of the people's courts.

I. Improving political stance and determining the key areas in which judicial services and guarantees are needed for expanding opening-up

1. Reinforcing the sense of responsibility and mission to promote judicial services and guarantees for expanding opening-up: Further opening up to the outside world is an objective requirement for deepening the reform in all aspects, boosting high-quality economic development, and building a new open economic system at a higher level; it is urgently needed in advancing market reform and creating a law-based, international and convenient pro-business environment; and it is an inevitable trend in facing unprecedented changes in a century, promoting the reform of the global governance system, and encouraging a system of cooperation, win-win and openness. Expanding opening-up is also a concrete action in supporting economic globalization and building a community with a shared future for mankind. Comprehensive opening-up on a wider, broader and deeper level signifies that China has ushered in a new phase of transition from opening-up in the flows of goods and production factors to opening-up based on rules and systems, thus needing a more favorable market environment governed by law and stronger judicial services and guarantees. The people's courts shall follow the guidance of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, earnestly implement the underlying principles of the 19th CPC National Congress and the 2nd, 3rd and 4th Plenary Sessions of the 19th CPC Central Committee, fully recognize the new needs and new challenges that further opening up to the outside world poses to the people's courts, have an accurate understanding of their goals and tasks in providing judicial services and guarantees, and accelerate the modernization of foreign-related judicial system and trial capability. Furthermore, in order to maintain the stable overall state of foreign trade and investment, the people's courts shall continue to serve the country's overall strategies, optimize the business environment, deepen international cooperation, and provide better judicial services and guarantees to ensure higher-level opening-up.

2. Pinpointing key areas in which judicial services and guarantees are needed: The people's courts shall harness their role in adjudication, hear foreign-related cases in a fair and efficient way according to the law, protect the lawful rights and interests of Chinese and foreign parties, and promote fair competition between Chinese and foreign-funded enterprises. With focus placed on serving and safeguarding the state's major strategic measures, the people's courts shall advance the co-building of the Belt and Road, the establishment of pilot free trade zones, the construction of the Hainan Free Trade Port, the building of the Guangdong-Hong Kong-Macao Greater Bay Area, the coordinated development of the Beijing-Tianjin-Hebei Region, the integrated development of the Yangtze River Delta Region, the development of the Yangtze Economic Belt, the establishment of the Pioneering Demonstration Zone for Socialism with Chinese Characteristics in Shenzhen, the construction of the China-Shanghai Cooperation Organization Demonstration Zone for Local Economic and Trade Cooperation, and the implementation of the strategy of building China into a maritime power. The people's courts shall introduce innovative trial mechanisms, study issues that have a far-reaching effect and are associated with innovation, improve the rules for the application of law, and support the creation of a stable, fair, transparent and predictable business environment that is governed by law, complies with international standards and facilitates the development of enterprises.

II. Following the basic principles of foreign-related litigation, and protecting the lawful rights and interests of both Chinese and foreign parties

3. Maintaining equal protection of Chinese and foreign parties according to the law: The lawful rights and interests of both Chinese and foreign parties shall be equally protected in the entire judicial process so as to ensure the equal status and rights of Chinese and foreign parties as well as equal treatment for them in the application of law and legal protection. The people's courts shall strive to provide Chinese and foreign parties with judicial services that are beneficial to all, convenient, efficient, intelligent and precise, create a market environment in which various market entities enjoy equal access to resources and production factors, participate in competitions in an open, fair and impartial manner, and are equally protected by law.

4. Respecting the autonomy of the will of the parties: The rights of Chinese and foreign parties to choose courts, choose the application of law, and choose to solve disputes through mediation, arbitration or litigation shall be fully respected and guaranteed, and their autonomy of solving international commercial disputes shall be improved.

5. Exercising judicial jurisdiction according to the law: The people's courts shall, according to Chinese laws, correctly exercise judicial jurisdiction, protect the judicial sovereignty of China, and provide timely and effective judicial remedies for both Chinese and foreign market entities. The people's courts shall firmly safeguard the judicial jurisdiction of China while properly resolving international conflicts in foreign-related jurisdiction and issues of international parallel proceedings.

III. Further advancing the modernization of foreign-related commercial and maritime systems, as well as the liberalization and facilitation of trade in services and investments

6. Improving the rules and systems regarding the application of law in foreign-related cases: International treaties, international conventions and governing laws shall be adequately applied in the trial of foreign-related commercial and maritime disputes, foreign laws shall be ascertained and applied in an accurate manner, the guiding role of the rules for court trials shall be leveraged, and market entities shall be encouraged to comply with international rules in foreign-related transactions. The Civil Code shall be effectively implemented, the relevant judicial interpretations shall be improved without delay, guiding cases shall be released to the public, and the criteria for the application of law shall be unified. Accurate application of laws, regulations and judicial interpretations regarding foreign investment shall be supported, the administrative system of pre-establishment national treatment plus negative list for foreign investment shall be fully implemented, the criteria for determining ineffective foreign investment contracts shall be strictly controlled, and the lawful rights and interests of both Chinese and foreign investors shall be protected according to the law. The people's courts shall actively participate in the development of international treaties and rules, promote the revisions of the Arbitration Law, the Maritime Traffic Safety Law, the Maritime Law, the Special Maritime Procedure Law, and other laws, and support the improvement of international logistics rules such as international multi-modal transport of goods and cross-border railway documents. Support shall be provided for China to participate in the formulation of international rules and standards in such fields as financing, trade, energy, intellectual property, digital information, agriculture, environmental protection, and hydropower, and to strive to form and improve international commercial and legal rules. The people's courts shall publish guiding cases and model cases tried by Chinese courts in multiple languages, lay a solid foundation for courts and arbitration institutions to correctly understand and apply Chinese laws, strengthen the understanding and trust of international businesses on Chinese laws, and extend their influence. The functions of the platform in ascertaining foreign laws shall be further strengthened, the rules for ascertaining and applying foreign laws shall be standardized and enhanced, and the construction of a database of legal resources and cases for ascertaining foreign laws shall be supported, so as to improve the capability of the people's courts in ascertaining and applying foreign laws in foreign-related cases.

7. Leveraging the special strengths of foreign-related commercial and maritime trials in serving and safeguarding cross-border trade: The people's courts shall resolutely support the multilateral trade framework and economic globalization, properly hear disputes over international sale of goods, cross-border investments and acquisitions, financing guarantee, and e-commerce, actively promote the development of cross-border trade in services, digital trade and other emerging trading modes, and effectively ensure that both industrial and supply chains remain stable. Cases concerning maritime affairs such as construction of ports, manufacturing of ships, shipping finance, maritime cargo transportation, cruise transportation, and marine ecological protection shall be properly tried according to the law. A special mechanism for hearing cases related to China-Europe express trains, new land and sea corridors, and international highway transport shall be explored to provide judicial services and guarantees for the construction of major international logistics and trade corridors such as China-Europe express trains and new land and sea corridors in western China. Foreign-related commercial and maritime cases involving COVID-19 shall be properly tried according to the law, and the efficiency in trials of foreign-related commercial and maritime cases shall be increased. The people's courts shall provide specific services and guarantees for stabilizing the overall state of foreign trade and foreign investment, as well as maintaining the sound development of the shipping market.

8. Promoting the integration of foreign-related trials and Internet-based judicial services: In order to meet the needs of a new open economic system, the outcomes in the construction of smart courts shall be fully commercialized, and the application of cutting-edge technologies such as big data, cloud computing, block-chain, artificial intelligence, and 5G in the trial of foreign-related cases shall be strengthened. A litigation service platform for foreign parties shall be established to provide them with efficient, convenient and low-cost judicial services. With the consent of the parties concerned, information-based technologies shall be used to facilitate the participation of Chinese and foreign parties in litigation. Online litigation rules for foreign-related cases shall be explored and improved, and more information technologies shall be applied in the trial of foreign-related disputes. Internet-based courts and other courts with better information systems shall be encouraged to introduce new service modes and platforms, conduct pilot programs, accrue experiences and create new rules in the trial of foreign-related cases, construction of platforms, litigation rules, application of technologies, and governance of cyberspace.

9. Improving the diversified resolution mechanism for international commercial disputes: The development of the International Commercial Court of the Supreme People's Court shall be advanced, its procedures and mechanisms in handling cases shall be optimized, and the information-based ‘one-stop' dispute resolution platform for the International Commercial Court shall be enhanced. The parties in dispute shall be encouraged to consent to the jurisdiction of the International Commercial Court in the resolution of their international commercial disputes and their choice shall be respected, so as to maximize the role of consent jurisdiction. The scope of selecting the members of the International Commercial Expert Committee of the Supreme People's Court shall be expanded, with a view to fully harnessing the functional role of the International Commercial Expert Committee. In order to provide fair, efficient and convenient judicial services to both Chinese and foreign parties, international commercial arbitral institutions and international commercial mediation institutions shall be introduced to the ‘one-stop' diversified resolution mechanism for international commercial disputes, and the establishment of a demonstration zone for international commercial and legal services based on the Belt and Road Initiative shall be advanced. Trials of international commercial disputes in the New Lingang Area of China (Shanghai) Pilot Free Trade Zone and the Hainan Free Trade Port shall be strengthened, and their expertise in the trial of cases shall be fully leveraged, so as to provide high-quality judicial guarantees for the innovation and development of free trade zones (ports). Branch offices set up by foreign arbitration institutions in certain areas upon registration and record-filing shall be supported in providing arbitration services to international commercial cases based on arbitration contracts. The Hong Kong Special Administrative Region shall be supported in establishing an international legal and dispute settlement services center in the Asia-Pacific region. Joint efforts shall be made to develop an international legal services center and an international commercial dispute resolution center in the Guangdong-Hong Kong-Macao Greater Bay Area, and support lawyers of Hong Kong and Macao in participating in dispute resolution as mediators. The pilot program of allowing legal practitioners from Hong Kong and Macao to practice law in nine cities within the Guangdong-Hong Kong-Macao Greater Bay Area shall be supported. Border areas, key cities and central areas shall be encouraged to explore a bilateral or multilateral regional dispute resolution and cooperation mechanism according to the principle of extensive consultation, joint contribution and shared benefits, as well as to establish a joint dispute resolution platform.

IV. Strengthening judicial protection in various sectors that need opening-up, and creating a business environment that is law-based, international and convenient

10. Supporting the government in profoundly promoting the reform of “simplification of administrative procedures, devolution of powers, combination of devolution and regulation, and optimization of services”: Administrative cases involving foreign trade, investment and financing, finance and taxation, financial innovation, intellectual property protection, exit-entry administration, and customs control shall be heard according to the law. Based on the principle of legality review, judicial review shall be conducted on administrative licensing, administrative penalty, administrative compulsion, and other administrative actions, so as to protect the lawful rights and interests of administrative counterparts. The exercise of the functions of administrative organs shall be supervised and supported, the substantive resolution of administrative disputes shall be strengthened, and the establishment of a government ruled by law and government integrity shall be encouraged. The relationship between the government and the market shall be correctly handled. The decisive role of the market in the allocation of resources shall be harnessed, and the functions of the government shall be better leveraged in the meantime, so that a market supervision pattern that is fair, impartial, transparent and efficient, governed by law, and with clear rights and responsibilities can be formed which will provide judicial guarantees for the adjustment of the state's macro-economic policies.

11. Strengthening the protection of intellectual property rights: The punitive damages system for the infringement of intellectual property rights shall be strictly implemented, and the effect of punitive damages in deterring crimes shall be magnified. The protection of trade secrets shall be strengthened, the acts of monopoly and unfair competition shall be regulated according to the law, and a unified and open market environment based on fairness and order shall be maintained. The system for the judicial protection of technological innovation shall be improved, and more efforts shall be made to protect intellectual property rights in key sectors and core technologies. The procedures of foreign-related intellectual property litigation shall be improved, and the study of and response to international parallel proceedings concerning intellectual property protection shall be emphasized. The people's courts shall build themselves into places that are preferred and trusted by the parties in the protection of international intellectual property rights and the resolution of disputes. The Foreign Investment Law and the relevant laws and regulations shall be strictly implemented, and foreign-related cases involving the transfer of technologies shall be properly heard so as to ensure that Chinese and foreign-funded enterprises can exchange and cooperate with each other on technologies based on market rules and the rule of law. Crimes of intellectual property infringement shall be resolutely punished according to the law.

12. Properly dealing with cross-border cases involving bankruptcy, finance and enforcement: The people's courts shall, by following the principle of equal protection for claims of the same category, actively participate in and promote the development of international cross-border bankruptcy treaties, improve the mechanism of coordinating cross-border bankruptcy, and protect the rights and interests of creditors and investors. The expertise in the trial of financial disputes involving cross-border investment and financing, securities and insurance shall be enhanced. Cross-border financial disputes shall be heard according to the law, and the legal effect of cross-border investments that circumvent foreign exchange control policies shall be accurately determined. The application of law in cross-border financial disputes shall be further regulated and unified. The people's court shall strengthen coordination and cooperation with financial administration institutions, industrial associations and mediation organizations, further advance the establishment of a diversified resolution mechanism for disputes in the banking industry, securities, futures and insurance, protect the lawful rights and interests of financial consumers, prevent and resolve financial risks, and promote the sound and sustainable development of the financial industry. The enforcement of foreign-related cases shall be strengthened, and international cooperation on cross-border enforcement shall be deepened, so as to ensure that the rights and interests of the prevailing parties, either Chinese or foreign, can be equally protected. The people's courts shall actively promote the construction of a social credit system and create a favorable credit environment and pro-business environment.

V. Preventing and resolving various major risks, and resolutely maintaining a stable development environment 

13. Improving the risk prevention and control mechanism for major cases: The overall national security concept shall be firmly upheld, overall plans shall be made to coordinate domestic and international efforts, the worst-case scenario thinking and the awareness of risks shall be maintained, and the domestic and international situations as well as risks and challenges facing China in the process of opening-up shall be clearly identified. The risk recognition, prevention and control mechanism for major cases shall be improved. Major cases involving trade, investment, finance, data flow, ecology and public health shall be properly heard, and various major risks shall be prevented and resolved. The fundamental principles of international law and the norms of international relations shall be strictly observed, and China's judicial sovereignty and national security shall be firmly safeguarded.

14. Maintaining national security and the economic and social order: Participation in the fight against infiltration, espionage, separatism, terrorism and cults shall be encouraged. Various crimes including infiltration, subversion, sabotage, espionage, violent terrorism, ethnic separatism, and religious extremism shall be vigorously clamped down. Criminal and judicial cooperation shall be strengthened, and joint efforts shall be made to combat cross-border crimes. Crimes that endanger national economic security in such sectors as investment, trade, finance, telecommunications network, and intellectual property shall be punished according to the law. Measures shall be taken to encourage participation in the construction of an overseas security protection system to maintain China's development interests, as well as the security of overseas institutions and personnel. Crimes involving food and drug safety, environmental pollution, drug trafficking, human trafficking and other crimes that cause harm to the security of the people, and disrupting social management and the order of the socialist market economy shall be severely punished, so as to provide a safe and stable social environment, as well as a favorable economic and social order for the expansion of opening-up. The people's courts shall actively participate in the establishment of a cyber-security system, work together to combat cybercrimes that infringe on citizens' personal information, intensify the legal protection of personal information, and take active part in building a cyberspace with a shared future.

VI. Deepening international judicial assistance and judicial exchange, and increasing the international influence of China's judicial system

15. Strengthening international judicial assistance: The people's courts shall actively participate in signing bilateral or multilateral judicial assistance treaties, and take active measures to deal with the requests for international judicial assistance such as service of judicial documents, investigation and evidence collection, and recognition and enforcement of foreign civil and commercial court decisions and foreign arbitral awards in strict accordance with international treaties co-signed by China and other countries, or under the principle of reciprocity. The procedural rules and review standards for the recognition and enforcement of foreign civil and commercial court decisions shall be enhanced. A more open and tolerant attitude shall be taken towards the determination of reciprocal relationship, and the mutual recognition and enforcement of civil and commercial decisions among different countries shall be advanced. The people's courts shall strengthen cross-border judicial cooperation, participate in improving the network of bilateral judicial assistance treaties, and create a judicial environment favorable for a new open economic system.

16. Deepening international judicial exchange and cooperation: The channels of international judicial exchange shall be further expanded, and cooperation with international organizations such as World Trade Organization, China International Economic Trade Arbitration Center, World Bank Group, World Intellectual Property Organization, and International Court of Justice shall be conducted on a wider scope and on a larger scale. The people's courts shall actively participate in the development of the rules for the reform of the global governance system and international law, promote the coordination and unification of legal rules for international trade, and maintain the multilateral trade system and the international legal order. Exchange and mutual learning shall be strengthened in key fields such as informatization, judicial reform, case studies, law ascertainment, and mutual recognition and enforcement of civil and commercial decisions in the form of signing a memorandum of understanding with the highest courts of other countries or regions, so as to promote legal cooperation. More publicity activities shall be carried out in the aspects of China's judicial system, judicial culture, judicial reform, and smart courts. The success stories of the Chinese rule of law shall be widely spread so as to allow more people to hear the voice of China in the rule of law.

17. Cultivating a team of highly competent personnel in the trial of foreign-related cases: In order to meet the needs of international judicial exchange and cooperation, as well as the trial of foreign-related cases in sectors such as business and trade, finance, science and technology, intellectual property, environmental protection and marine, the people's courts shall improve the mechanism for the recruitment, selection, use and management of qualified personnel in the trial of foreign-related cases, and strengthen the mechanism for the cultivation of qualified personnel based on practices. The people's courts and universities shall recruit foreign-related legal qualified personnel from each other, and exchange and co-train qualified personnel with each other, so as to cultivate and reserve legal professionals in the trial of foreign-related cases. A regular exchange mechanism with the relevant international organizations and international commercial courts of other countries shall be established, and judges engaging in cross-border cases shall be supported in participating in international exchange and the development of international rules in respective fields. Efforts shall be made to train legal professionals in the trial of foreign-related cases who have an international vision and a good knowledge of international laws and rules, and are familiar with foreign laws, so as to further improve the trial of cross-border cases.

 

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