I. Basis for Recognizing and Enforcing Foreign Court Judgments in China
Article 298 of the Civil Procedure Law of the People’s Republic of China: For a legally effective judgment or ruling from a foreign court to be recognized and enforced in China, the parties involved may directly apply to a competent intermediate people’s court. Alternatively, a foreign court may request the recognition and enforcement based on an international treaty to which both China and the foreign country are signatories or participants, or on the principle of reciprocity.
1. Recognition and Enforcement of Foreign Judgments in China through International Treaties (Conventions and Bilateral Judicial Assistance Treaties)
– Conventions: China has yet to join any conventions specifically governing the recognition and enforcement of foreign civil and commercial judgments. Although the Chinese delegation signed the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters at the 22nd Diplomatic Session of the Hague Conference on Private International Law, the convention must undergo review by the State Council, approval by the Standing Committee of the National People’s Congress (NPC), and ratification by the President of the People’s Republic of China to become effective domestically.
– Bilateral Judicial Assistance Treaties: China currently has bilateral treaties regarding the recognition and enforcement of judgments with 34 countries. For judgments from these countries, the parties can apply for enforcement in Chinese courts based on the conditions set forth in these treaties, provided the judgments comply with Chinese legal standards. The countries are as follows:
– Asia (12 countries): Mongolia, Turkey, Kazakhstan, Cyprus, Kyrgyzstan, Uzbekistan, Tajikistan, Vietnam, Laos, North Korea, UAE, Kuwait
– Europe (13 countries): France, Russia, Italy, Spain, Poland, Romania, Belarus, Ukraine, Bulgaria, Greece, Hungary, Lithuania, Bosnia and Herzegovina
– Americas (4 countries): Brazil, Argentina, Cuba, Peru
– Africa (5 countries): Egypt, Morocco, Tunisia, Algeria, Ethiopia
Notably, China does not have such treaties with some countries with high levels of interaction, including Japan, Singapore, and the United States, which are frequently referenced in related consultations.
2. Recognition of Foreign Judgments in China Based on the Principle of Reciprocity
In practice, Chinese courts have traditionally applied a conservative and stringent standard in using the principle of reciprocity to recognize foreign judgments. Only a few foreign judgments have met this standard for recognition and enforcement. However, in recent years, China has shifted toward a “presumed reciprocity” approach. The Supreme People’s Court first introduced this concept in its December 27, 2019 opinion on enhancing judicial support for the Belt and Road Initiative. This approach reverses the burden of proof, requiring the respondent to demonstrate the absence of reciprocity, and assumes reciprocity in the absence of contrary evidence. The standard for reciprocity has been relaxed as follows (Memorandum of the National Symposium on Foreign-related Commercial and Maritime Trials, Article 44):
i. Under the law of the foreign country, judgments by Chinese courts may (but are not required to) be recognized and enforced by that country’s courts;
ii. China and the foreign country have reached a reciprocal understanding or consensus [Reference Case: Solar Power Inc. vs. Suntech Power Investments Limited, Shanghai First Intermediate People’s Court (2019) Hu 01 Xie Wai Ren No. 22];
iii. The foreign country has made a reciprocal commitment through diplomatic channels, and there is no evidence that the foreign country has ever refused recognition or enforcement of Chinese judgments due to a lack of reciprocity [Reference Case: SPAR Shipping AS vs. Grand China Logistics Holding (Group) Co., Shanghai Maritime Court (2018) Hu 72 Xie Wai Ren No. 1, where the court stated that reciprocity does not require prior cases of the foreign country recognizing Chinese judgments].
Even in the absence of bilateral treaties, judgments from countries like Germany, Singapore, South Korea, the United Kingdom, and the United States have already been recognized in Chinese courts based on reciprocity. We believe that these countries’ judgments are likely to continue being enforced by Chinese courts.
Other countries, such as Australia, the British Virgin Islands, Canada, the Netherlands, and New Zealand, although lacking bilateral treaties, have recognized Chinese judgments, awaiting reciprocal recognition by China. Based on the principle of international reciprocity, we believe that judgments from these countries may also be enforceable in China, though some uncertainty remains due to the absence of established precedents in China.
