SINOTALKS.COM (Page 2)

Image: George Hodan, Judge Gavel
(Publicdomainpictures.net)

The coming into effect of China’s Foreign State Immunity Law at the beginning of 2024 has sparked concerns about how the Chinese judiciary will subject foreign states to the Chinese legal system because the law represents China’s transition from affording foreign states “absolute immunity” in Chinese courts to restricting the immunity to certain types of lawsuits. Amidst these concerns, the Supreme People’s Court just released a Guiding Case to illustrate its new, proactive approach to recognizing and enforcing foreign judgments. This approach not only evokes more optimism about the Chinese judiciary, but also increases the capacity of Chinese courts to help China revive its economy in 2025 and beyond by increasing the confidence of foreign parties in China’s willingness to recognize and enforce foreign judgments.Read this article

Image: Gerd Altmann, One Humanity (Publicdomainpictures.net)

China’s ongoing effort to amend its “mini-criminal law” has drawn praises because the latest draft amendment reflects the authorities’ positive responses to public comments. If key provisions that have aroused widespread concerns can be ultimately improved with clarity, China will be able to gain more support from the United Nations, which just completed its fourth-cycle Universal Periodic Review of China’s human rights record. Strong support from the United Nations—through which China has increased its influence with other member states in the past decade—is crucial to China’s development of its global leadership in an increasingly contentious world.Read this article

Image: Gerd Altmann, Business People (Publicdomainpictures.net)

China is seeking public comments on a draft law aimed at promoting the development of the country’s private enterprises. The draft law requires Chinese authorities to timely update a private enterprise’s records publicized on official “credit information platforms” after the enterprise no longer has irregularities undermining its credibility. Having clean records on these platforms is important as private enterprises’ business partners and clients are increasingly relying on these platforms to assess where these enterprises stand. However, these platforms have limitations, which, if not addressed properly, could compromise the development of Chinese private enterprises and, thereby, the country’s private economy.Read this article

Image: Linnaea Mallette, Shipping Port (Publicdomainpictures.net)

The growing importance of global business to China makes it crucial for the country to show its commitment to recognize and enforce foreign arbitral awards. Since 1987, China has been a contracting state of the New York Convention, which requires each contracting state to ensure that its judiciary recognizes and enforces an arbitral award made in another contracting state, unless such recognition or enforcement would be contrary to the contracting state’s “public policy”, among other exceptions. The convention does not interpret the “public policy” exception. How the Chinese judiciary interprets it directly influences foreign parties’ level of confidence in doing business with China. A recent court case in China sheds light on the interpretation of this exception.Read this article

Image: Mikhail Denishchenko, Production Technology (Publicdomainpictures.net)

Coined by President XI Jinping in 2023, the term “new quality productive forces” is of great significance because related reforms, with reference to various types of investment, have been identified by the Chinese leadership. Key talks given in 1992 by the late reformist leader DENG Xiaoping and select court cases recently released by China help illuminate the meaning of the term. Actions taken by the courts in these cases to support the development of “new quality productive forces” allow investors to better assess related opportunities.Read this article

Image: Axelle B, Euros Handshake (Publicdomainpictures.net)

“Strengthening the regulation of listed companies” and “improving the mechanism for protecting investors” are among the many reform tasks identified in the widely anticipated decision adopted at the third plenary session of the 20th Central Committee of the Communist Party of China on July 18, 2024. While China’s newly amended Accounting Law may help accomplish these goals, a case decided by the Supreme People’s Court suggests that additional measures are required.Read this article

Images: George Hodan, Judge Gavel;
Maliz Ong, Black and White Brick Wall (Publicdomainpictures.net)

In 2018, I co-authored an article titled Propagation of a Case Culture in China and Potentially Beyond.  Based on an analysis of how 96 Guiding Cases, de facto binding cases released by China’s Supreme People’s Court available at the time, had been referenced in 1,281 subsequent cases decided by courts across the country, my co-authors and I drew this conclusion: “the preliminary success of [Guiding Cases] seems to have provided fertile ground for the propagation of a case culture in China and, given the country’s eagerness to increase its presence around the world, this culture may have a chance to be propagated elsewhere.”  Just such an opportunity for China to propagate a culture of applying case-based legal reasoning in the BRICS arose in mid-June.Read this article

Image: Gerd Altmann, Binary Contacts (Publicdomainpictures.net)

In mid-May, the Lin-Gang Area of the Shanghai Free Trade Zone (“FTZ”) issued trial measures to allow eligible companies in the area—criteria used suggest that Tesla is eligible—to export certain data without going through China’s complicated approval system. Similar measures were adopted by Tianjin’s FTZ in early May, while other FTZs in China are expected to follow suit. These measures can benefit foreign investors in China significantly. Yet, the fundamental goal of their issuance is not a mere increase in domestic foreign investment, but rather the implementation of China’s plan to develop its digital economy globally.Read this article

Image: Gerd Altmann, Business (Publicdomainpictures.net)

The U.S. House Committee on Oversight and Accountability is investigating whether the Public Company Accounting Oversight Board (“PCAOB”) is “empowered to ensure meaningful oversight of auditors of [China]-based firms”. The Committee should welcome a document recently released by China’s State Council that aims at improving the country’s capital markets by strengthening information disclosure, among other measures. Interestingly, the Supreme People’s Court of China has taken steps that, if followed consistently by all courts in the country, can empower this document.Read this article

Image: Linnaea Mallette, Mountain Landscape Illustration (Publicdomainpictures.net)

A little-known Q&A tool used within China’s court system since 2023 was recently brought to the spotlight. With its promising performance, the tool allows China’s highest court to “free several birds with one key”. The far-reaching impact of the tool also lays a solid foundation for China to develop AI-assisted adjudication.Read this article

Image: Gerd Altmann, Judge Gavel (Publicdomainpictures.net)

China’s enactment of the Foreign State Immunity Law marks the country’s formal transition from affording foreign states “absolute immunity” in Chinese courts to restricting the immunity to certain types of lawsuits. This transition is in line with the approach used in the United States, as codified in the Foreign Sovereign Immunities Act (“FSIA”). However, a comparison between China’s Foreign State Immunity Law and the FSIA and related U.S. jurisprudence——as discussed by Circuit Judge John M. Walker Jr. in an article published by SINOTALKS®——reveals key differences between the two countries’ approaches.Read this article

Image: Anthony Nava, Blue, Red, and Green Gears (Publicdomainpictures.net)

China’s reduction of the reserve requirement ratio for all banks beginning from February 5 is expected to help revive the economy by injecting more cash into the banking system. Another measure that is likely to help improve China’s economy but seems to have drawn little attention outside the legal community is the release of a set of revised rules to implement China’s Patent Law. If applied effectively, these revised rules have the potential to strengthen China’s patent protection mechanism, making the country more appealing to foreign investors.Read this article