Finder on the Supreme People’s Court’s Notice on Foreign State Immunity Procedures

The news about the Supreme People’s Court of the People’s Republic of China issuing the Notice on Procedural Matters Related to Civil Cases Involving Foreign State Immunity has been previously reported on this blog.

Following this significant development, Professor Susan Finder, a distinguished Scholar in Residence at Peking University School of Transnational Law, has kindly shared her insights on the matter. Her post was originally published on the Supreme People’s Court Monitor. Given its valuable contribution, we decided to repost it here.

Our sincerest thanks to Professor Susan Finder for her thoughtful analysis and generosity in sharing her thoughts.

 

At the end of March, the Supreme People’s Court (SPC) issued procedures to implement China’s Foreign State Immunity Law (the Law) in the form of a  “Notice on Procedural Matters in Civil Cases Involving Foreign State Immunity” (Guanyu she waiguo guojia huomian minshi anjian xiangguan chengxu shixiang de tongzhi) (Notice). That law has been in force since the beginning of 2024.  Consistent with its practice, the SPC published a press release along with the text of the notice.  The press release, in the form of the head of the SPC’s #4 Civil Division’s answers to reporters’ questions, provides useful background. I surmise that the press release is an edited version of materials submitted to SPC leadership for approval (as described in my 2024 article). I had anticipated that the SPC would do so, after additional research and soliciting comments from both inside and outside the court system but had guessed that a notice would be issued in 2024.  Although the notice does not so state, I surmise that foreign state immunity cases will be considered “important and difficult” and therefore subject to special internal procedures.  See Professor William Dodge’s article for comparisons to US law and comments on the Law.  Professor Huo Zhengxin provides another perspective. This post summarizes the major points of the notice, with my comments.

  1.  The general rule is that foreign governments and their property have immunity, with exceptions as set out in the Foreign State Immunity Law.  The press release usefully makes clear that Article 1 of the Notice requires that a plaintiff filing a civil lawsuits against a foreign state as a defendant or third party, must list in the complaint the specific provisions of the Law the lawsuit is based on, and explain which exception it falls into for the court to review. The court also has the responsibility to clarify (Shiming) the complaint in the process of receiving the complaint. “Clarify/clarification” here is a term in Chinese Civil Procedure Law, analogous to a judge’s right in other civil legal systems–the “right to ask, suggest to or require the parties to clarify or supplement their ambiguous, insufficient or improper claims, submissions or evidence.” If the plaintiff still fails to set out the legal basis after the court’s clarifications,  the plaintiff should be deemed to not have met the court’s requirements, and the court should reject the case.
  2. For those first instance civil cases that fall into the exceptions to the Foreign State Immunity Law, certain intermediate courts in provincial capitals (or their equivalent in directly administered cities, etc) have jurisdiction, as well as financial and intellectual property courts.  The notice limits the number of courts that can hear foreign state immunity cases (as I had surmised), through centralizing jurisdiction (Jizhong guanxia), but permits financial courts and intellectual courts to hear them and requires other courts to transfer cases that they have accepted to ones with jurisdiction.
  3. Article 3 concerns service of process, which must be according to relevant treaties or conventions, or other means not prohibited by the law of the foreign country, or alternatively by diplomatic note (via the Ministry of Foreign Affairs) (Article 17 of the Law).  Service by announcement is prohibited.
  4. The court must serve the complaint and other documents with a translation accompanying the original Chinese.  The foreign government has three months to file a defense. The court has the discretion to permit an extension of time.
  5.  If the foreign state objects to the jurisdiction of the Chinese court, the court shall engage in a comprehensive review ex officio and may hear the views of the parties.  Participation in an objection procedure is not deemed acceptance of Chinese jurisdiction (also Article 6 of the Law).  If the foreign state does not respond or participate in the Chinese proceedings, the Chinese court must proactively review whether the foreign state has immunity and can hear the views of the parties.  (Article 18 of the Law). The press release provides guidance to lower courts on the review:  first, the people’s court should examine whether the reasons put forward by the foreign country for enjoying jurisdictional immunity are valid; second, if the reasons put forward by the foreign country are not valid, the people’s court should also conduct a comprehensive review on its own initiative, that is, in addition to the reasons, examine whether the foreign country really enjoys jurisdictional immunity and does not fall into the exception to jurisdictional immunity.
  6.  If a court requires a certificate  on factual issues of state behavior from the Ministry of Foreign Affairs (further to Article 19 of the Law), it shall report to the Supreme People’s Court level by level (Zhuji bao)  to consult and request (Shangqing) the Ministry of Foreign Affairs to issue a certificate.  This one sentence conveys the bureaucratic operation of the Chinese court system and the nuances of inter-bureaucracy relations.

An attachment to the notice lists the authorized courts. The SPC has approved some of these courts to establish international commercial tribunals (courts).  It is likely that those tribunals will hear sovereign immunity cases:

  1. Beijing Fourth Intermediate People’s Court (with an international commercial tribunal)
  2. Tianjin No.3 Intermediate People’s Court
  3. Shijiazhuang Intermediate People’s Court of Hebei Province
  4. Taiyuan Intermediate People’s Court of Shanxi Province
  5. Hohhot Intermediate People’s Court of Inner Mongolia Autonomous Region
  6. Shenyang Intermediate People’s Court, Liaoning Province
  7. Changchun Intermediate People’s Court of Jilin Province
  8. Harbin Intermediate People’s Court of Heilongjiang Province
  9. Shanghai No.1 Intermediate People’s Court (with an international commercial tribunal)
  10. Nanjing Intermediate People’s Court of Jiangsu Province (with an international commercial tribunal)
  11. Hangzhou Intermediate People’s Court, Zhejiang Province (with an international commercial tribunal)
  12. Hefei Intermediate People’s Court, Anhui Province
  13. Fuzhou Intermediate People’s Court of Fujian Province
  14. Nanchang Intermediate People’s Court of Jiangxi Province
  15. Jinan Intermediate People’s Court, Shandong Province
  16. Zhengzhou Intermediate People’s Court of Henan Province
  17. Wuhan Intermediate People’s Court, Hubei Province
  18. Changsha Intermediate People’s Court of Hunan Province
  19. Guangzhou Intermediate People’s Court, Guangdong Province
  20. Guangxi Zhuang Autonomous Region Nanning Intermediate People’s Court
  21. Hainan Provincial First Intermediate People’s Court
  22. Chongqing First Intermediate People’s Court
  23. Chengdu Intermediate People’s Court of Sichuan Province
  24. Guiyang Intermediate People’s Court, Guizhou Province
  25. Kunming Intermediate People’s Court, Yunnan Province
  26. Lhasa Intermediate People’s Court of Tibet Autonomous Region
  27. Xi’an Intermediate People’s Court of Shaanxi Province
  28. Lanzhou Intermediate People’s Court of Gansu Province
  29. Xining Intermediate People’s Court of Qinghai Province
  30. Yinchuan Intermediate People’s Court of Ningxia Hui Autonomous Region
  31. Urumqi Intermediate People’s Court, Xinjiang Uygur Autonomous Region

 

The Supreme People’s Court of the People’s Republic of China issued the Notice on Procedural Matters Related to Civil Cases Involving Foreign State Immunity

(This is written by Xiaoxuan Gu, a PhD student in School of Law, University of Macau)

The Foreign State Immunity Law of the People’s Republic of China (CFSIL) took effect on January 1, 2024.[i] To ensure its proper implementation and guide courts nationwide in lawfully and efficiently adjudicating civil cases involving foreign state immunity, the Supreme People’s Court (SPC) formulated supporting procedural rules. On March 26, 2025, the SPC issued the Notice on Procedural Matters Related to Civil Cases Involving Foreign State Immunity (hereinafter the “Notice”), which provides definitive guidance to courts at all levels in handling such novel foreign-related cases.

The Notice stipulates provisions on key procedural matters, including case acceptance criteria, centralized jurisdiction mechanisms, service of process rules, jurisdictional immunity review procedures, and protocols for obtaining evidentiary certifications from the Ministry of Foreign Affairs. Read more

Caught Between Legal Boundaries: Child Custody Disputes Across Japan and Bangladesh

I would like to express my sincere gratitude to MD Sanwar HOSSAIN, LLB (Hons) Wolverhampton University, MSS (Dhaka University), PgDiP (Northumbria University), Barrister at law (Hon’ble Society of Lincoln’s Inn), Advocate (Appellate Division) Supreme Court of Bangladesh and Managing Partner, S Hossain & Associates law office, for bringing the Bangladesh courts’ decisions to my attention.

 

I. Introduction

The breakdown of an international marriage often leads to complex cross-border disputes, especially when children are involved. Tensions can intensify if one parent decides to take the children to their home country, often without the consent of the other parent.

In such cases, when the countries involved are signatories to the HCCH 1980 Child Abduction Convention, the Convention’s mechanisms are designed to facilitate the prompt return of children to their country of habitual residence. This framework aims to prevent unilateral relocations that could have lasting impacts on the child’s stability. However, when one or both countries are not parties to the Convention, resolving such cases becomes significantly more challenging. In such cases, national courts are compelled to address competing custody claims, assess allegations of wrongful removal, and determine whether they have jurisdiction to hear the case, all while balancing, often quite differently, the best interests of the children involved.

The case presented here is just one of many unreported cases where a romance relationship turns sour, leading to lengthy and contentious legal battles across jurisdictions. This note will focus on the Bangladeshi court’s treatment of the case, as it offers useful insights into the court’s approach to handling such complex cross-border disputes.

Read more

Anti-Suit Injunctions and Dispute Resolution Clauses

By Adeline Chong, Singapore Management University

  1. Introduction

In two decisions decided within a fortnight of each other, the Singapore Court of Appeal considered anti-suit injunctions pursued to restrain proceedings allegedly brought in breach of arbitration agreements. The first case, Asiana Airlines, Inc v Gate Gourmet Korea Co, Ltd (‘Asiana Airlines’)[1] dealt with whether A could rely on an arbitration agreement between A and B to restrain B’s proceedings against C, a third party. The second case, COSCO Shipping Specialized Carriers Co, Ltd v PT OKI Pulp & Paper Mills (‘COSCO Shipping’)[2] considered whether an arbitration agreement covered a tortious claim. To put it in another way, Asiana Airlines mainly concerned the ‘party scope’ of an arbitration agreement while COSCO Shipping concerned the ‘subject matter’ scope of an arbitration agreement.[3] Where the anti-suit application is to restrain foreign proceedings brought in breach of an arbitration or choice of court agreement, ordinarily it would be granted unless ‘strong cause’ is shown by the respondent.[4] This provides an easier path for the anti-suit claimant compared to the alternative requirement of establishing that the foreign proceedings are vexatious or oppressive in nature. Read more

Trending Topics in German PIL 2024 (Part 2 – Online Marriages, Gender Afiliation and Name Law)

As already mentioned in my previous post, at the end of each year I publish an article (in German) about the Conflict of Laws developments in Germany of the last twelve months, covering more or less the year 2024 and the last months of 2023. This post is the second with an overview over those topics that seem to be most trending.

The two parts focus on the following topics (part 1 contained 1. and 2.):

  1. Restitution of Money lost in Illegal Gambling
  2. Applicable Law in the Dieselgate litigation
  3. The (Non-)Valitidy of Online Marriages
  4. New German conflict-of-law rules regarding gender afiliation / identity
  5. Reforms in international name law

I will now give attention to the last three topics that focus on the three areas that are not harmonized by EU law (yet) and are mainly questions of family law.

The FSIA’s Direct Effects Problem

Post authored by Lance Huckabee, JD candidate and Global Legal Scholar at the University of Pittsburgh School of Law

When a foreign sovereign breaches a commercial contract with a private entity, what recourse does the wronged party have? In the United States, the Foreign Sovereign Immunities Act (FSIA) governs such disputes, providing an exception for commercial activity that causes a “direct effect” in the U.S. Yet, the definition of “direct effect” has remained elusive, leading to decades of judicial inconsistency and a deepening circuit split.

At the heart of this legal uncertainty is the Supreme Court’s decision in Republic of Argentina v. Weltover (1992), which sought to clarify the issue but instead left room for widely divergent interpretations. Some circuits have adopted a flexible, causation-based approach, analyzing whether a foreign state’s breach had an immediate consequence in the U.S. Others, like the recent D.C. Circuit decision in Wye Oak Tech., Inc. v. Republic of Iraq, have imposed rigid bright-line rules—specifically requiring that the contract contemplate the U.S. as a place of performance. This formalistic approach creates a dangerous loophole, allowing foreign states to structure agreements in a way that insulates them from jurisdiction. As a result, a U.S. business may suffer substantial financial harm from a foreign sovereign’s breach but find itself without legal recourse simply because the contract was silent on where payments were to be made.

This restrictive interpretation undermines the FSIA’s core purpose: to hold foreign sovereigns accountable when their commercial activities impact U.S. businesses. By prioritizing contractual language over economic reality, decisions like Wye Oak erode the ability of American companies to seek redress, making sovereign breaches effectively consequence-free. A proper interpretation of the FSIA should align with Weltover’s focus on causation, ensuring that foreign states cannot exploit technicalities to evade liability. If left uncorrected, the current trend risks turning the FSIA into little more than a paper shield—one that protects sovereigns rather than those they harm.

The Wye Oak decision exacerbates both intra- and inter-circuit inconsistencies, further complicating the FSIA’s application and weakening the commercial activity exception in breach-of-contract cases. By imposing a rigid bright-line rule, it unduly narrows the scope of what qualifies as a “direct effect,” creating uncertainty for U.S. businesses engaged in international commerce. With Wye Oak’s attorneys petitioning for certiorari in January 2025, the case presents a critical opportunity for the Supreme Court to resolve the longstanding circuit split on the FSIA’s direct effects clause.

The Explosion of Private International Law in Asian Scholarship

The 21st century has witnessed a remarkable surge in academic scholarship on private international law in Asia. This is not to say that significant studies on the subject were absent before this period. However, in recent decades, Asian scholars have brought renewed vigour and depth to the field, establishing private international law as a critical area of legal inquiry on the continent.

A testament to this intellectual flourishing is Hart Publishing’s extensive series on private international law in Asia, featuring no fewer than 16 volumes with Professors Anselmo Reyes and Paul Beaumont as Series Editors. These works serve as a rich repository of comparative legal thought, offering valuable insights that extend far beyond Asia’s borders. Scholars and practitioners seeking inspiration from diverse jurisdictions will find these books to be an essential resource. Moreover, other publishers have also contributed to this growing body of literature, further amplifying Asia’s voice in the global discourse on private international law.

Having read and reviewed many of these works on the blog, I am continually struck by the depth of scholarship they offer. Each new book reveals fresh perspectives, reinforcing the notion that private international law is not merely a regional concern but a truly global conversation.

As someone deeply engaged with African private international law, I have found immense value in these Asian publications. The parallels between Asia and Africa—particularly in terms of legal pluralism and cultural diversity—make these studies both relevant and instructive. The cross-pollination of ideas between these regions has the potential to strengthen the development of private international law in both continents.

What is most striking about this surge in Asian scholarship is its outward-looking nature. No longer confined to internal discussions, private international law in Asia is now exporting ideas, influencing legal developments worldwide. This is a phenomenon that deserves both recognition and emulation. The rise of Asian scholarship in private international law is not just an academic trend—it is a pivotal force shaping the future of global legal thought.

The $24 Billion Judgment Against China in Missouri’s COVID Suit

This article was written by Prof. William S. Dodge (George Washington University Law School) and first published on Transnational Litigation Blog. The original version can be found at Transnational Litigation Blog. Reposted with permission.

On March 7, 2025, Judge Stephen N. Limbaugh, Jr. (Eastern District of Missouri) entered a default judgment for more than $24 billion against the People’s Republic of China and eight other Chinese defendants for hoarding personal protective equipment (PPE) during the early days of the COVID pandemic in violation of federal and state antitrust laws. The Eighth Circuit had previously held that the Foreign Sovereign Immunities Act (FSIA) barred most of Missouri’s claims but that the hoarding claim fell within the act’s commercial activity exception.

Missouri now has the judgment against China that it wanted. But Missouri may find that judgment hard to enforce. As discussed below, there appear to be significant procedural problems with the judgment that at least some defendants might raise. More broadly, the properties of foreign states and their agencies or instrumentalities are entitled to immunity from execution under the FSIA. Immunity from execution is broader than immunity from suit, and it is not clear that any of the defendants have property in the United States that can be used to satisfy the judgment. Read more

Trending Topics in German PIL 2024 (Part 1 – Illegal Gambling and “Volkswagen”)

At the end of each year I publish an article (in German) about the Conflict of Laws developments in Germany of the last twelve months, covering more or less the year 2024 and the last months of 2023. I thought it would be interesting for the readers of this blog to get an overview over those topics that seem to be most trending.

The article focuses on the following topics:

  1. Restitution of Money lost in Illegal Gambling
  2. Applicable Law in the Dieselgate litigation
  3. The (Non-)Valitidy of Online Marriages
  4. New German conflict-of-law rules regarding gender afiliation / identity
  5. Reforms in international name law

I will start in this post with the two first areas that are mainly dealing with questions of Rome I and Rome II while in my follow-up post I will focus on the three areas that are not harmonized by EU law (yet) and are mainly questions of family law.

Chinese Judicial Practice on Asymmetric Choice of Court Agreements in International Civil & Commercial Disputes

By Yuchen Li, a PhD student at Wuhan University.

A. Introduction

An asymmetric choice of court agreement is commonly used in international commercial transactions, especially in financial agreements, which usually allows one party (option holder) an optional choice about the forum in which proceedings may be brought but the other (non-option holder) an exclusive choice to sue in a designated court.[1] A typical example is as follows:

 ‘(A) The courts of England have exclusive jurisdiction to settle any disputes ….

(B) The Parties agree that the courts of England are the most appropriate and convenient courts … to settle Disputes and accordingly no Party will argue to the contrary.

(C) This Clause is for the benefit of the Finance Parties only. As a result, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions.’ [2]

In recent years, issues concerning asymmetric choice of court agreements have been controversial in cases within some jurisdictions.[3] Despite the significant amount of research on asymmetric choice of court agreements, little attention has been paid to Chinese stance on this topic. With Chinese private parties actively engaging in international transactions, Chinese attitude towards such clauses is important for commercial parties and academic researchers. This article gives a glimpse of how Chinese courts handle asymmetric choice of court agreements in international and commercial civil litigations.[4] Read more