How Chinese Courts Review Jurisdiction over International Trade Dispute Cases
Take a dispute case of an international goods sales contract as an example. If the buyer is a US company and the seller is a Chinese company, and the two parties have clearly stipulated in the sales contract that disputes between them shall be arbitrated by an arbitration institution, then neither Chinese courts nor foreign courts have the right to accept this dispute.
If the two parties have agreed that the case shall be under the jurisdiction of Chinese courts, then Chinese courts have jurisdiction over this dispute.
If the two parties have agreed that the case shall be under the jurisdiction of US courts, and the US buyer has already filed a lawsuit in the US, as long as the contract parties have not clearly stipulated in the sales contract to exclude the jurisdiction of Chinese courts over the disputes between them, Chinese courts still have the right to accept this case.
If the two parties have not agreed on the jurisdiction court, how should the jurisdiction be determined?
Still taking the above - mentioned case as an example, if the buyer and the seller have not agreed on the jurisdiction court in the contract, even if the US buyer has not established an office in China, as long as it has property in China that can be seized, or the place of conclusion or performance of the sales contract is in China, both the buyer and the seller can file a lawsuit in China.
It should be particularly pointed out that even if there are no factors for Chinese courts to exercise jurisdiction, but if one party files a lawsuit with a Chinese court, and the defendant does not raise an objection to the jurisdiction of the Chinese court within the defense period and makes a substantive defense, the Chinese court shall have jurisdiction over this case.
Litigation Principles, Requirements and Procedures for Chinese Courts to Adjudicate International Trade Dispute Cases
Litigation Principles that Chinese Judges Must Abide by in the Process of Adjudicating International Trade Dispute Cases
The Principle of Equality
Foreign - party litigants and Chinese litigants enjoy equal litigation capacity and capacity for litigation in civil litigation.
When foreign - party litigants file a lawsuit or respond to a lawsuit in Chinese courts, they enjoy the same civil litigation rights as Chinese litigants and bear the same civil litigation obligations. They should not be discriminated against or given special treatment just because they are foreign - party litigants.
The Principle of Reciprocity
It means that if a foreign court restricts the civil litigation rights of Chinese litigants, Chinese courts will impose the same restrictions on the civil litigation rights of litigants from that country. For example, if a Chinese citizen is engaged in civil litigation in a certain country and that country's court does not allow the Chinese citizen to entrust a litigation agent, then when a Chinese court tries a civil litigation case of a citizen from that country, it will also not allow that citizen to entrust a litigation agent.
Basic Litigation Requirements of Chinese Judges for Parties in International Trade Dispute Cases
Both parties must use the language and characters commonly used in China. If a foreign - party litigant makes a statement in a foreign language during the court session, it must be translated into Chinese by an on - site interpreter. The litigant can request the Chinese court to provide an interpreter, and the cost shall be borne by the litigant. Foreign - language evidence must be submitted with a Chinese translation.
When foreign litigants file a lawsuit or respond to a lawsuit in Chinese courts and need to entrust a lawyer to act as an agent in litigation, they must entrust a practicing lawyer registered in China.
For foreign litigants without a domicile within the territory of China who entrust Chinese lawyers or other persons to act as agents in litigation, the power of attorney sent or delivered from outside the territory of China shall be effective only after going through notarization and authentication procedures.
Particularities of the Litigation Procedure for International Trade Dispute Cases
Different Trial Procedures:
International trade cases are mainly tried in accordance with the litigation procedures stipulated in the Fourth Part of the "Civil Procedure Law" - "Special Provisions on the Procedure of Foreign - related Civil Litigation". Requirements for aspects such as the defense period, announcement period, appeal period, and service methods are different from those of domestic civil and commercial cases. Also, the trial cycle is relatively long. Therefore, the "Civil Procedure Law" does not stipulate a trial time limit for such cases.
Different Service Methods:
In addition to service methods the same as those in ordinary domestic cases, such as service to the person receiving judicial documents on behalf, service by post, and service by announcement, international trade cases also use special service methods such as service under treaties and diplomatic service.
Different Writing Requirements for Judgments:
International trade cases have special requirements for judgment documents. In addition to having the format and requirements of a general judgment, they should also include content reflecting the steps and processes of hearing foreign - related cases, such as identification, determination of jurisdiction, application of conflict rules, and ascertainment of foreign laws. In particular, the reasons for exercising jurisdiction over the case and applying a certain applicable law should be explained. When applying foreign laws, in the part of citing legal basis at the end of a civil judgment, only the conflict rules or other legal provisions based on which the foreign law is applied can be cited, and the foreign law itself cannot be directly cited.
Conflict Rules:
For example, Article 144 of the "General Principles of the Civil Law" of China stipulates: "The ownership of immovable property shall be governed by the law of the place where the immovable property is located." This is a typical conflict rule. A conflict rule consists of three parts: scope, attribution, and connective words. In the above - mentioned conflict rule, the scope is "the ownership of immovable property"; the attribution is "the law of the place where the immovable property is located", and the connective word is "shall be governed by". Conflict rules are neither substantive rules nor procedural rules. They are special types of legal application rules that indirectly regulate overseas civil legal relations.
How Chinese Courts Review and Determine Evidence in International Trade Dispute Cases
Basic Principles of Allocation of Burden of Proof
The system of allocating the burden of proof in international trade dispute cases applies the principle of "whoever claims, bears the burden of proof", that is, a party has the responsibility to provide evidence for the claim it makes.
Requirements for Parties' Evidence Submission
Requirements for the Time Limit for Evidence Submission. The time limit for evidence submission is generally 30 days. However, international trade cases often involve evidence formed outside the country, and parties need a certain amount of time to collect evidence. The court usually approves an extension of the time limit for evidence submission to 60 days or even 90 days upon the application of the parties.
Requirements for the Form of Evidence Formed Outside the Country:
Evidence proving the litigation subject qualification shall go through notarization, authentication, or other certification procedures.
For other evidence, the party providing the evidence can choose whether to go through notarization, authentication, or other certification procedures, except when the people's court deems it necessary. For example, for data messages formed outside the country, due to their reproducibility, notary public officers are required to notarize on - site or witness the entire process of downloading and printing the data message and go through authentication procedures to prove its authenticity.
Certification Rules of Chinese Judges
Evidence recognized by the parties through verification and cross - examination in court or to which no objection is raised shall be used as the basis for the court to decide the case. If a party raises an objection afterwards to deny it or requests re - verification, the court will not accept it. For evidence not recognized or to which an objection is raised by the parties in court, the court shall review the authenticity, legality, and relevance of the evidence and finally decide whether to accept it:
If a party presents evidence that the other party does not recognize, but the counter - argument is obviously unfounded and the other party cannot provide evidence to deny it, the evidence shall be confirmed as valid.
If a party presents evidence that is an effective judgment document of a Chinese court or a document that proves a legal act or legal fact through legal notarization procedures, and the other party cannot provide evidence to overthrow it, the evidence shall be confirmed as valid.
If a party presents evidence, and the other party presents contrary evidence sufficient to deny it, and the party that presented the evidence first can no longer provide evidence to refute it or has no sufficient refuting reasons, the contrary evidence shall be confirmed as valid.
If the evidence presented by a party is found to be illegal in terms of source, form, or content upon review, the evidence shall be confirmed as invalid.
For the facts determined in a civil or commercial judgment made by a foreign court, except when the relevant judgment has been recognized by a Chinese court or recognized by the parties, the facts and judgment results determined in that judgment cannot be directly adopted. It can only be used as evidence material in the litigation.
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