On 1 Dec. 2023, China’s Supreme People’s Court (SPC) issued the “Interpretation on Several Issues Concerning the Application of the Law of the People’s Republic of China on the Application of Laws to Foreign-Related Civil Relations (II)” (Fa Shi [2023] No. 12, “關于適用〈中華人民共和國涉外民事關系法律適用法〉若干問題的解釋（二）”, hereinafter the “Interpretation (II)”).
Interpretation (II) specifically addresses the ascertainment of foreign law, providing rules for Chinese courts to follow when ascertaining and determining foreign law.
Under Chinese law, only Article 10 of the “Law on the Application of Laws to Foreign-Related Civil Relations” (涉外民事關系法律適用法) provides a general rule on the ascertainment of foreign law. This leads to the following issues in the ascertainment of foreign law in Chinese law: (1) incomplete rules; (2) unclear procedures; (3) lack of operability of the rules.
These issues further cause difficulties in foreign-related civil and commercial litigation, such as the difficulty in ascertaining foreign law, low success rates of ascertainment, and lengthy ascertainment process. Both parties and local courts have complained about this situation. Therefore, the SPC formulated this Interpretation (II).
Interpretation (II) consists of 13 articles. Its highlights are as follows:
1. Burden of proof
If the parties choose to apply foreign law, they should provide the law of that country. If the parties do not choose to apply foreign law, the people’s court shall ascertain the law of that country.
2. Means of ascertainment
Courts can ascertain foreign law through the following means:
(1) Provision by the parties;
(2) Judicial assistance;
(3) Provision by the Chinese embassy/consulates in that country or the embassy/consulates of that country in China through the SPC’s request;
(4)Provision by participants in law-ascertainment cooperation mechanisms established or participated in by the SPC;
(5) Provision by experts of the SPC’s International Commercial Expert Committee;
(6) Provision by law-ascertainment service organizations or Chinese and foreign legal experts;
(7) Other appropriate means.
When ascertaining foreign law, courts should make full use of the aforementioned means.
3. How parties should provide proof of foreign law
When parties provide proof of foreign law, they should submit the specific provisions of that country’s laws and explain their source, validity, and relevance to the dispute in the case.
If the foreign law is case law, the parties should also submit the full text of the relevant case.
4. How courts determine the content of foreign law
The court shall deal with the following situations differently:
(1) If the parties have no dispute over the content, understanding, and application of foreign law, the court may confirm it;
(2) If the parties have disputes over the content, understanding, and application of foreign law, they should provide the reasons. The court may further ascertain or request the parties to provide additional materials. If there is still a dispute after further ascertainment or additional materials, the court shall determine it on its own; and
(3) If the content of the foreign law has been recognized by other effective judgments of Chinese courts, the court shall confirm it, unless there is sufficient evidence to the contrary.
Interpretation (II) came into effect on 1 Jan. 2024.
Photo by Emile Guillemot on Unsplash
Contributors: CJO Staff Contributors Team
