61 Asian Legal Business | December 2024 Commercial Disputes 61 It is worthy of expectation that Chinese Arbitration Law is under the process of amendment. According to the Arbitration Law of the People's Republic of China (Revision) (Draft for Comments) released by the Ministry of Justice, this revision will summarize previous successful experience, deal with practical problems, keep in line with international best practices, optimize arbitration procedures, and enhance the international credibility and competitiveness of arbitration in China. It can be foreseen that China will deepen international cooperation with a more open and inclusive attitude and strive to build a more just, efficient and convenient system for recognizing and enforcing foreign arbitral awards. II. Recognition and Enforcement of Foreign Court Judgments Due to the lack of judicial mutual assistance arrangements between China and most countries, foreign court judgments are recognized and enforced in China mainly based on the principle of reciprocity. 4When applying this principle, Chinese courts need to determine whether there is a reciprocal relationship between China and the country where the judgment was made. Regarding this issue, Chinese judicial practice undergone a shift from "examining whether Chinese court judgements have been recognized and enforced in this foreign country before"5 to "examining whether Chinese court judgments could be recognized and enforced under the law of this foreign country" 6. This shift has increased the possibility of foreign judgments to be recognized and enforced in China. Chinese courts also need to consider whether recognition and enforcement of a foreign judgment matches Chinese legal principles and public interests, as well as whether there are 4 Article 299 of the Civil Procedure Law: Having received an application or a request for recognition and execution of a legally effective judgment or ruling of a foreign court, a people's court shall review such judgment or ruling pursuant to international treaties concluded or acceded to by the People's Republic of China or in accordance with the principle of reciprocity. If, upon such review, the people's court considers that such judgment or ruling neither contradicts the basic principles of the law of the People's Republic of China nor violates State sovereignty, security and the public interest, it shall rule to recognize its effectiveness. If execution is necessary, it shall issue an order of execution, which shall be implemented in accordance with the relevant provisions of the Law. If such judgment or ruling contradicts the basic principles of the law of the People's Republic of China or violates State sovereignty, security or the public interest, the people's court shall refuse to recognize and execute the judgment or ruling. 5 In the Civil Ruling (2016) Su 01 Xie Wai Ren No. 3, Nanjing Intermediate People's Court of Jiangsu Province recognized and enforced the civil judgment of the Singapore court because the Singapore High Court had previously enforced the civil judgment of the Chinese court. 6 In the Civil Ruling (2018) Hu 72 Xie Wai Ren No. 1, Shanghai Maritime Court pointed out that if civil and commercial judgments made by Chinese courts can be recognized and enforced by courts of a foreign country, it can be determined that there exists a reciprocal relationship between China and that country. fraud, false litigation and other irregularities.7In judicial practice, judgment debtors rarely invoked such requirements to persuade the court to refuse recognition and enforcement. However, in the case of (2019) Yue 01 Xie Wai Ren No. 3, a local court in Guangzhou province denied the punitive damages awarded in a U.S. judgment that largely exceeded the actual losses. The reason for this refusal is generally considered to be that punitive damages violate a basic principle of Chinese law, i.e., civil and commercial damages are usually limited to actual losses. In brief, when recognizing and enforcing foreign judgments, China strives to balance efficiency and fairness by many means, such as clarifying review standards, standardizing application processes, reasonably determining reciprocal relationships, and strictly applying the causes for non-recognition and nonenforcement. This contributes to promoting international judicial cooperation while resolutely safeguarding China's judicial sovereignty, the legitimate rights and interests of parties and public interest. III. Interaction among Domestic law, Foreign Law and International Law Two cases are briefly summarized below to illustrate how Chinese courts review the application for recognizing and enforcing foreign arbitral awards and judgments: In the case of (2018) Hu 01 Xie Wai Ren No. 23, the court first found that the arbitral award in question was made in Singapore and therefore applied New York Convention to review the recognition and enforcement issues. Regarding the respondent's objection to validity of the arbitration clause, the court applied the judicial precedent of the Court of Appeal of Singapore and ruled that the arbitration clause was valid. The court then decided to recognize and enforce the arbitral award. In the case of (2018) Hu 72 Xie Wai Ren No. 1, the court first found that China and the UK had not concluded or participated in any international convention on mutual recognition and enforcement of civil and commercial court judgments. The principle of reciprocity was thus used as the legal basis. The court considered the possibility of Chinese judgments being recognized and enforced under English law and accepted the existence of a reciprocal relationship between China and the UK. Finally, the court rejected the grounds for non-recognition 7 Article 300 of the Civil Procedure Law stipulates that in any of the following circumstances, a ruling shall be made not to recognize and enforce a judgment made by a foreign court: (1) According to Article 301 of this Law, the foreign court has no jurisdiction over the case; (2) The respondent has not been lawfully summoned, or although lawfully summoned, has not been given a reasonable opportunity to present or argue, or the party without legal capacity for litigation has not been properly represented; (3) Judgments and rulings were obtained through fraudulent means; (4) The people's court has already made a judgment or ruling on the same dispute, or has recognized a judgment or ruling made by a third country court on the same dispute; (5) There is violation of the basic principles of the laws of the People's Republic of China or harming national sovereignty, security, and public interests.
RkJQdWJsaXNoZXIy MjA0NzE4Mw==