Opinions of the Supreme People's Court on Further Providing Judicial Services and Guarantees by the People's Courts for the Belt and Road Initiative

[2019] Fafa No. 29

For the purposes of fulfilling the Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, maximizing the role of judicial functions, and striving to create an international, law-based and convenient business environment with more stability, fairness, transparency and predictability for jointly building the Belt and Road with high quality, in accordance with the Several Opinions on Providing Judicial Services and Guarantees by the People's Courts for the Belt and Road Initiative (No. 9 [2015], Supreme People's Court), further guiding opinions are hereby offered as follows:

I. Comprehensively grasping new requirements and new tasks in serving the Belt and Road Initiative

1. Accurately understanding the fundamental task of the people's courts in further providing judicial services and guarantees for the Belt and Road Initiative: Currently, the international community has reached a greater consensus on profoundly co-building the Belt and Road, the areas and scope covered by the Initiative have constantly expanded, the connectivity among the “six corridors and six channels serving multiple countries and ports” has been enhanced, and the cross-border economic corridors and the economic and trade cooperation have seen significant growth. The number of law-related fields has increased, legal relationships have become more complicated, and there has been more diversity in legal systems. Therefore, the creation of an international, law-based and convenient business environment with stability, fairness, transparency and predictability, based on a wider scope and strict rules is the common concern of all parties participating in co-building the Belt and Road; and it is also the essential task of the people's courts in fully serving and safeguarding the Initiative in the new era.

2. Keeping committed to the concept of further providing judicial services and guarantees by the people's courts for the Belt and Road Initiative: The people's courts shall firmly take the Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era as the guideline, study and fulfill the spirit of the 19th CPC National Congress and the Second, Third, and Fourth Plenary Sessions of the 19th CPC Central Committee, as well as the essence in the key speech of General Secretary Xi Jinping on the Second Belt and Road Forum for International Cooperation. They shall also strengthen the consciousness of the need to maintain political integrity, think in big-picture terms, follow core leadership, and keep in alignment; increase confidence in the path, theory, system and culture of socialism with Chinese characteristics; and resolutely uphold General Secretary Xi Jinping's core position on the Party Central Committee and in the Party as a whole, and resolutely uphold the Party Central Committee's authority and its centralized, unified leadership. Furthermore, the people's courts shall continue to enhance their judicial functions, and stand firm in the promotion of economic globalization and trade liberalization with fair and efficient judicial services and guarantees.

3. Correctly following the work principles based on which the people's courts further provide judicial services and guarantees for the Belt and Road Initiative: The people's courts shall work to serve the overall construction, and take more measures to actively provide specific and effective legal guarantees for the reform and opening-up policy. They shall follow a demand-oriented approach, improve legal proceedings, strengthen the construction of litigation service centers, vigorously support the development of international arbitration and mediation, upgrade the new international commercial dispute resolution mechanism, and continuously meet the requirements of the participants in the Belt and Road Initiative for dispute resolution. They shall also carry forward the spirit of rule of law, intensify procedural justice, equally protect the lawful rights of concerned domestic and foreign parties, accurately apply international rules, actively participate in the development of international rules, and strive to engage in and guide the improvement of legal rules related to the Belt and Road Initiative. Furthermore, they shall continue to pursue reform and innovation, deepen judicial reform, promote transparency in judicial services, strengthen the development of smart courts, and further establish a fair, efficient, convenient, and cost-effective mechanism of dispute resolution. The people's courts shall uphold the green principle, conserve resources, protect ecological environment, proactively integrate the trial of cases related to environment and resources in China into the process of global environmental governance, and protect environmental interests and environmental security. Finally, they shall adhere to the strategy of wide consultation, joint construction and shared benefits, strengthen judicial exchanges with the countries participating in the Belt and Road Initiative, advance international judicial cooperation, enable think-tanks to play an important role, and work effectively to combine the efforts of judicial organs in co-building the Belt and Road Initiative.

II. Further performing the role of judicial trials, and serving and guaranteeing the co-building of the Belt and Road with high quality in all aspects

4. The people's courts shall strengthen the judicial cooperation on criminal matters, persistently combat corruptions, jointly promote the implementation of the Beijing Initiative for the Clean Silk Road, support transparency and compliance, and join hands to build a clean silk road. The people's courts shall also work with the judicial organs of other countries and regions along the Belt and Road to co-build a judicial anti-terrorism mechanism, curb the spread of terrorism, and jointly create a secure and stable environment for the Belt and Road Initiative.

5. The people's courts shall protect the personal rights and property rights of concerned domestic and foreign parties, comprehensively apply the principles of territorial jurisdiction, personal jurisdiction and protective jurisdiction, exercise their respective jurisdictions according to law, prevent and redress foreign-related violations, punish criminal acts that infringe upon personal rights or property rights, adequately try foreign-related administrative cases according to law, protect the lawful rights and interests of concerned parties, and make the participants in the Belt and Road Initiative feel more secure.

6. The people's courts shall resolutely support multilateralism, follow the spirit of the Initiative on Promoting Unimpeded Trade Cooperation along the Belt and Road in international trade and cross-border trade disputes, and apply the relevant rules of determining the contract validity and liabilities in civil and commercial cases involving free trade agreements or cooperation documents signed between China and other countries. They shall also support the free flow of goods, funds, technologies and personnel, and give impetus to a global economy that is more open, inclusive, balanced, and beneficial to all.

7. The people's courts shall promote the development of international logistics, explore a special mechanism of hearing cases related to international shipping, China-Europe express trains, new land and sea corridors, and international highway transport, correctly apply governing laws and international conventions, and support the improvement of international logistics rules such as international multi-modal transport of goods and cross-border railway documents. They shall also work to safeguard the connectivity among “six corridors and six channels serving multiple countries and ports”, such as the New Eurasian Land Bridge and other economic corridors.

8. The people's courts shall support the opening-up policy in the financial sector. The exemplary role of financial courts shall be maximized. Eligible courts shall be encouraged to build special trial teams for financial cases. The application of law in foreign-related financial cases shall be further regulated and standardized. Close attention shall be paid to studying legal issues such as special loans for the Belt and Road Initiative, the Silk Road Fund, various special investment funds, Silk Road-related bonds, multilateral cooperation for development finance, and export credit insurance. Valuable experiences of foreign countries in efficiently hearing financial cases shall be drawn upon, and financial institutions from other countries shall be supported in participating in investment and financing for the Belt and Road Initiative.

9.The people's courts shall support the development of information technologies, pay attention to the trends of the fourth industrial revolution, improve judicial policies in the fields of e-commerce, block-chain, artificial intelligence, and 5G information network, encourage innovation on new technologies, new business types and new models brought about by digitalization, network, and intelligence, promote network connectivity, and advance the construction of a digital silk road.

10. Innovations on services and guarantees shall be encouraged to drive forward the development of the Belt and Road Initiative. The role of the intellectual property right tribunal of the Supreme People's Court and local intellectual property right courts (tribunals) shall be harnessed. The spirit of the high-level conferences on intellectual property right cooperation for the Belt and Road Initiative shall be fulfilled. The Common Initiative on Strengthening Cooperation in Intellectual Property Rights between Countries for the Belt and Road Initiative shall be implemented. Cases involving issues such as technical innovation and action plan, joint laboratory, cooperation on science park, technological transfer, and cooperation on scientific research for the co-building of the Belt and Road shall be tried in an efficient manner. Certain malicious acts such as patent infringement, preemptive registration of trademarks, trademark hoarding, utilizing the reputation of other trademarks, and using counterfeit trademarks shall be cracked down on. Various conduct constituting unfair competition shall be prevented. An eco-system of intellectual property rights that respect the value of knowledge and innovations shall be created, and a path towards innovations for the Initiative shall be established.

11. The people's courts shall protect green development according to law, implement the Green Investment Principles for the Development of Belt and Road Initiative, improve the system of public interest litigation and ecological environment damage compensation litigation, prevent environmental torts, implement the damage liability principle, promote the restoration of ecological environment, participate in the co-building of a big data platform for ecological environment protection along the Belt and Road, push forward the construction of green infrastructure, green investment and green finance, strive to advance the development of the Green Belt and Road Initiative, and protect the environment that we all share and live in.

III. Further improving the application of law in cases involving the Belt and Road Initiative, and building a stronger rule-based business environment that is governed by law

12. The people's courts shall accurately understand the legislative spirit in the Foreign Investment Law, accelerate the issuance of the relevant judicial interpretations, strictly apply the system of pre-establishment national treatment plus negative list to foreign investment, determine the circumstances of invalid contracts, maintain the validity of contracts to the greatest degree, maintain the stability of the economic order and business rules, protect the lawful interests of foreign investors, and promote the country's opening-up policy in an all-round way.

13. The people's courts shall vigorously carry forward the spirit of contract and the good faith principle, and determine acts of fraud and malicious collusion based on the rules of evidence beyond a reasonable doubt. If, in a civil or commercial case involving the construction, operation, purchasing, or bidding process of a project, there is a discrepancy on contract validity between the laws of the relevant countries, the people's courts shall apply the law that holds the contract valid without damaging the honest party or benefiting the dishonest one, and shall promote mutual trust and benefits between the participants in the Belt and Road Initiative.

14. The people's courts shall improve the mechanism of preventing and responding to environmental risks in cross-border trade and investment, strengthen research on laws related to the environmental protection pilot programs in investment in the mining sector for the Belt and Road Initiative, jointly combat cross-border wildlife crimes, and work together to handle the issues of global climate change and cross-border environmental protection.

15. The people's courts shall fully respect the rights of the parties concerned in choosing the application of law, and, when determining the governing law based on the principle of the most significant relationship, explain the reasons of determining the governing law, and strengthen the arguments of such determining on the grounds of identifying the basis of claim and defining the conflict rules and the point of contact.

16. The achievements in the construction of smart courts shall be leveraged, and the scientific research institutes, lawyers' organizations, industrial associations, and chambers of commerce shall be supported in providing research and training on the laws of the relevant countries (regions) along the Belt and Road, jointly building a legal database and a database of cases for the Belt and Road Initiative, issuing cases that have applied foreign laws, improving the transparency of rules, guiding the parties concerned in understanding and observing the laws of the relevant countries, and lowering and preventing legal risks.

17. The people's courts shall consolidate resources such as ascertaining centers and research bases for foreign laws, build an integrated platform for ascertaining foreign laws, maximize the role of the International Commercial Expert Committee, and explore multiple channels based on which applicable foreign laws can be accurately ascertained.

18. The people's courts shall actively apply international conventions applicable to China, respect international practices and international commercial rules, and strive to form and improve regional and international commercial and legal rules.

19. The people's courts shall strengthen international judicial cooperation, coordinate the exercise of jurisdictions, clarify the legal status of international cooperation centers at the border areas, explore the application of foreign laws in the economic and trade cooperation zones in China and the application of Chinese laws in the economic and trade cooperation zones in foreign countries, as well as take active measures to facilitate the recognition and enforcement of civil and commercial judgments of foreign courts.

20. The people's courts shall extend the influence of Chinese laws, publish typical cases tried by Chinese courts in multiple languages, lay a solid foundation for courts and arbitration institutions to correctly understand and apply Chinese laws, and strengthen the understanding and trust of international businesses on Chinese laws.

IV. Further improving the mechanism of international commercial courts and continuously improving the influence, creditability and attraction of international commercial courts.

The people's courts shall uphold the principles of fairness, efficiency, convenience and low cost, further promote the establishment of international commercial courts, take into consideration the actual conditions of China, take reference from the international commercial courts of other countries, listen to the opinions of participants in the Belt and Road Initiative, optimize case-handling procedures and the working mechanism of international commercial courts, and constantly improve the influence, creditability and attraction of international commercial courts.

22. The role of international commercial courts in demonstration and guidance shall be leveraged, areas with necessary conditions such as the China (Shanghai) Pilot Free Trade Zone and the China (Hainan) Pilot Free Trade Zone shall be guided in building international commercial dispute trial organizations, the international commercial dispute resolution mechanism shall be enhanced and the judicial demands of international businesses shall be fully satisfied.

23. The people's courts shall work alongside international commercial courts in other countries to establish a mechanism for the exchange and sharing of cases, a mechanism for exchange on the application of law, and a mechanism for cooperation on training judges, strengthen the understanding and trust placed on each other's legal systems, reduce the conflict of laws, and continue to improve the capabilities of accurately applying international commercial rules and using judicial trials to develop such rules.

24. The people's courts shall adopt the judicial criterion of presumptive reciprocity, and gradually promote mutual recognition and enforcement of judgments between international commercial courts.

25. The guidance to the trial of international commercial cases shall be strengthened, a statistical file system shall be established, the websites of international commercial courts shall be effectively utilized to publish typical cases on an unscheduled basis and issue white papers in a timely manner, and the role of cases in determining rules and guiding behaviors shall be leveraged.

26. Publicity and exchanges with international commercial courts shall be reinforced, the parties to an international commercial dispute shall be encouraged to reach a consensus on the selection of an international commercial court, and international commercial courts shall support the resolution of international commercial disputes all over the world.

27. The autonomy of will of the parties concerned shall be fully respected. In an international commercial case, parties concerned shall be allowed to reach a consensus on simplifying or determining legal proceedings, and shall be encouraged to submit the case to the jurisdiction of foreign laws, so as to further improve the autonomy in solving international commercial disputes.

28. The list of international commercial arbitration institutions and international commercial mediation institutions on the “one-stop” dispute resolution platform shall be expanded, and international commercial arbitration institutions and international commercial mediation institutions of foreign countries shall be introduced so that more international commercial disputes can be efficiently resolved in China.

29. In an international commercial case, the principle of giving priority to mediation shall be implemented, and, if reaching an agreement, the parties concerned may at any stage jointly select an international commercial expert, an international commercial mediation institution, or an international commercial court for judicial mediation.

V. Further strengthening the development of a “one-stop” international commercial dispute resolution mechanism, and providing high-quality and efficient legal services to participants in the Belt and Road Initiative

30. 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 wide consultation, joint construction and shared benefits. A joint dispute resolution platform shall be established in the area of border trade, cooperation centers, and port areas. Information technologies and an online dispute resolution (ODR) mechanism shall be utilized to optimize the means of service, reform the dispute mediation and settlement procedures, address actual difficulties in foreign-related cases such as difficult service of documents, time-consuming process, slow notarization, and insufficient knowledge of foreign laws, and resolve international commercial disputes in an efficient and low-cost manner.

31. The mechanism of coordinating cross-border bankruptcy shall be improved, and both the application of the main bankruptcy procedures and the system of the center of the debtor's main interest shall be explored to protect the rights and interests of creditors and investors according to law.

32. Relevant departments shall be supported in improving international investment dispute resolution mechanisms and organizations, respecting the dispute resolution clauses in bilateral and multilateral investment agreements, and resolving international investment disputes in a fair and efficient manner. 

33. Development of the International Commercial Expert Committee shall be strengthened, the scope of candidates for expert members shall be expanded, and industrial representatives for the Belt and Road Initiative and expert members from developing countries shall be increased, so as to introduce expert members that come from more countries, represent more people, and provide services that are more professional. The functions of the International Commercial Expert Committee shall be fully leveraged, and local courts with necessary conditions shall be encouraged to build a mechanism in which expert members will participate in the resolution of disputes over international commercial cases through various means.

34. The development of the regional legal service and dispute resolution center of the Hong Kong Special Administrative Region (“Hong Kong SAR”) shall be further supported, the cooperation between arbitration institutions in Hong Kong such as the Hong Kong International Arbitration Center and arbitration institutions in the Mainland, the arbitration institutions in the Hong Kong SAR shall be introduced to the construction of the “one-stop” dispute resolution platform of international commercial courts, more expert members from the Hong Kong SAR shall be added to the International Commercial Expert Committee, and the Hong Kong SAR shall play a more important role in the joint development of the Belt and Road Initiative.

35. Arbitration institutions in China shall be encouraged to establish a joint arbitration mechanism with the arbitration institutions of other countries participating in the Belt and Road Initiative. A model shall be explored to settle the relevant disputes by arbitration of special personnel in special locations in the Mainland China according to special arbitration rules agreed upon by enterprises registered in the pilot free trade zones, and foreign arbitration institutions shall be supported in setting up branch offices in the New Lingang Area of China (Shanghai) Pilot Free Trade Zone to provide arbitration services.

36. The strengths of non-governmental organizations such as the federations of overseas Chinese, industrial associations, and chambers of commerce shall be harnessed in order to support the establishment of an international commercial dispute resolution mechanism as well as promote the resolution of disputes in an easy and peaceful manner.

VI. Further strengthening the organizational structure and team building to coordinate efforts to serve and guarantee the Belt and Road Initiative

37. The people's courts shall strengthen and improve the mechanism of coordination and guidance, and strengthen communication and cooperation with the relevant entities and departments. The specific tasks of the people's courts in serving and guaranteeing the Belt and Road Initiative shall be coordinated in an all-round way, the work recording system and communication mechanism shall be enhanced, unified statistical information shall be created, applicable and replicable experiences shall be analyzed, problems in practical work shall be discovered and solved in a timely manner, and more targeted and effective services and guarantees shall be provided.

38. The people's courts shall establish a mechanism of cultivating international legal professionals to meet the requirements in the new era, develop a regular exchange system with international commercial courts of other countries and international organizations, and work together with colleges and universities to develop training and teaching plans so as to train and prepare a pool of international legal practitioners.

39. The role of international exchange and research platforms such as international forums, legal roundtables, the Judicial Research Center on the Belt and Road Initiative, and the Environment and Resources Judicial Research Center shall be further strengthened, and the exchanges and cooperation with the judicial systems of other countries shall be conducted. Training and studying programs for foreign judges shall be supported, and foreign legal service providers and think-tanks for the Initiative shall be invited to China to exchange views with Chinese counterparts so as to promote the formation of a diverse and interactive platform of legal exchange. The wisdom of various parties in co-building the Belt and Road based on legal rules shall be utilized to provide intellectual support to a new system of international rules in which the Silk Road Economic Belt and the Maritime Silk Road can integrate and promote each other.

 

Supreme People's Court

December 9, 2019

 

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