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The Chinese Court Recognizes an English Commercial Judgment for the First Time
The Chinese Court Recognizes an English Commercial Judgment for the First Time
Written by Zilin Hao, Anjie Law Firm, Beijing, China
Introduction
On 17 March 2022, Shanghai Maritime Court of PRC issued a ruling of recognizing and enforcing a commercial judgment made by the English High Court, with the approval of Supreme People’s Court (“SPC”). This is the first time that Chinese court recognizes an English commercial judgment based on the principle of reciprocity, which is undoubtfully a milestone where the English court has not recognized the Chinese judgment before.
I. Case Overview
1. The Original English Judgments
18 March 2015, the high court of Queen’s Bench Division (Commercial Court), England & Wales made a judgment on the case of Spar Shipping AS v Grand China Logistics Holding (Group) Company, Ltd (hereinafter “Spar Case”) . In the Spar Case, the Claimant (“Spar”) was the registered owner of three supramax bulk carriers each let on long term time charter to Grand China Shipping (Hong Kong) Co Ltd (hereinafter “GCS”) with guarantees issued by the defendant, GCL, incorporated in Shanghai as the parent of the charterer. The charterer failed to pay hire on time and in September 2011 Spar withdrew the vessels and terminated the charterparties under the cancellation clause, which states: “If the vessel is off-hire for more than 60 days continuously, Charterers have the option to cancel this Charter Party.”. Spar then sued the GCL under the guarantees, claiming the balance of hire unpaid under the charters and damages for loss of bargain in respect of the unexpired term of the charters.
In the first instance, Mr Justice Popplewell J. concluded that payment of hire by the Charterers under the three charters was not a condition to cancel charterparties but the liberty to withdraw the vessel from service. The judge also held that payment of hire was that the charterer had renounced the charter parties and that the shipowner was entitled to about USD 24 million in damages for loss of bargain in respect of the unexpired terms of the charter parties. The decision was appealed, the English Court of Appeal upheld the judgment of first instance and ordered the charterers’ parent company GCL as guarantor to pay the shipowner the amounts due under the three charterparties including damages plus interest and costs.
2. The Chinese Ruling- (2018) Hu72Xie Wai Ren No.1
In March 2018, the applicant of Norwegian shipowner applied to the Shanghai Maritime Court, the competent court where the respondent is located, for recognition of the judgment of the English court. On March 17, 2022, the Shanghai maritime court finally made a civil ruling to recognize the judgment made by the English court involved in the case.
According to the ruling, the key issues in this judicial cooperation case are as follows: (1)Whether there is a reciprocal relationship between China and the UK on the recognition and enforcement of civil judgments, including whether there are precedents for English courts to recognize and enforce Chinese court judgments and whether there are precedents for refusing to recognize and enforce Chinese court judgments; (2) In the absence of reciprocal precedent, whether the Chinese court can recognize the judgment of the English court based on the principle of reciprocity; (3)Whether the injunction system of the English court constitutes a reason for refusing to recognize the judgment of the English court; (4) Whether the fines for interest and expenses claimed by the applicant fall within the admissible scope of foreign judgment.
After hearing, the Shanghai Maritime Court decided to recognize the judgment of the English court. Firstly, the PRC Ruling considered that the PRC and United Kingdom have not concluded or acceded to treaties on mutual recognition and enforcement of court judgments in civil and commercial matters, so the principle of reciprocity should be taken as the basis for the recognition of an English Judgment. The claimant argued that “the judgment of Spliethoff’s Bevrachtingskantoor BV v Bank of China Ltd, [2015] EWHC 999 (Comm) of the English High Court of Justice Queen’s Bench Division Commercial Court (hereinafter “Spliethoff Case”) could be regarded as positive precedent of Chinese judgments recognised and enforced by English Courts. In this Case, the English court confirmed that another Chinese judgment in Rongcheng Xixiakou Shipbuilding Co., Ltd., Wartsila engine (Shanghai) Co., Ltd. v. Wartsila Finland Oy decided by Shandong High Court (hereinafter “Xixiakou Case”) was effective and enforceable, but did not actually enforce it. This opinion was not adopted by the Shanghai Maritime Court.
Despite the above, the Shanghai Maritime Court held that “when stipulating the principle of reciprocity, the Civil Procedure Law of the People’s Republic of China does not limit it to that the relevant foreign court must first recognize the civil and commercial judgment of Chinese court. If there are possibilities that the civil and commercial judgment made by Chinese court can be recognized and enforced by the foreign court, it can be considered that there is reciprocity between the two jurisdictions.” Therefore, even if in the absence of reciprocal precedent, the Chinese court still can recognize the judgment of the English court based on the principle of reciprocity.
Secondly, in terms of the anti-suit injunction in the English judicial system, the Shanghai Maritime Court held that in this specific case, the English courts did not issue anti-suit injunctions to prohibiting the parties from litigating in foreign courts. Both parties have agreed that the English court has the jurisdiction and the English court asserted jurisdiction based on the choice of court agreement. The existence of anti-suit injunction in the foreign legal system is not a reason to make foreign judgments unenforceable in China.
Thirdly, in terms of an error in the application of law in the English judgment, the Shanghai Maritime Court held that this was a substantive matter and was not subject to judicial review in recognition and enforcement of foreign judgments. And even if the error of applying the law is indeed proved, it will constitute the reason for refusing recognition and enforcement only when it violates the basic principles, public order and social public interests under the PRC legislation.
Finally, the Shanghai Maritime Court decided that the interest, expenses and fines in this case were due to the respondent’s failure to perform its payment obligations, which were “monetary debt” and admissible matters for recognition and enforcement of the English judgment.
II. Comments
On 31 December 2021, shortly before this ruling, the SPC issued a memorandum on commercial and maritime matters entitled “Memorandum of the National Courts’ Symposium on Trials for Commercial and Maritime Cases” (hereinafter “Memorandum”). Article 44 of the Memorandum provided that “When hearing a case applying for recognition and enforcement of a judgment of a foreign court, the people’s court may recognize that there is a reciprocal relationship under any of the following circumstances: (1) according to the law of the country where the court is located, the civil and commercial judgments made by the People’s Court can be recognised and enforced by the courts of that country; (2) China has reached a memorandum or consensus of mutually reciprocity with the country where the court is located; (3) the country where the foreign court is located has made reciprocal commitments to China through diplomatic channels or China has made reciprocal commitments to the country where the court is located through diplomatic channels, and there is no evidence that the country where the court is located has refused to recognize and enforce the judgments and rulings made by Chinese courts on the ground that there is no reciprocal relationship. Obviously, the principle of the ruling that Shanghai Maritime Court made to recognize English judgment was consistent with the Memorandum.
Article 288 of the Civil Procedure Law of PRC (hereinafter “CPL”) and article 544 of the Judicial Interpretation of CPL issued by the SPC both make reciprocity one of the bases for recognizing and enforcing foreign judgments. When China has committed more to international connection and cooperation, the application of the principle of reciprocity in judicial practice is gradually getting more flexible. The court abandoned the previous rigid ‘de facto’ reciprocity and adopts the “legal reciprocity” or “de jure reciprocity”. As long as the Chinese judgment can be recognized and enforced according to the law of the country where the foreign court is located, the reciprocal relationship exists. According to the Memorandum, the courts of China shall examine and determine whether there is a reciprocal relationship case by case.
Since the UK not a Belt and Road Initiative (“BRI”) country, this case shows China adopts a liberal and flexible approach to enforce foreign judgments as a general policy. Chinese courts also adopts a minimum-review approach to review foreign judgments, which is clearly favourable to foreign judgment enforcement. It indicates China continues an open attitude to international commerce and judicial cooperation in civil and commercial matters.
1. Spar Shipping as v Grand China Logistics Holding (Group) Company Ltd, [2015] EWHC 718 (Comm).
2. Michael Volikas, Court finds payment of charter hire is not a condition: Astra not followed, 20 March 2015, available at https://www.incegd.com/en/news-insights/.
3. Yang Yang and Patrick Lee, PRC Court recognizes an English judgment for the first time – a Gard perspective, 12 April 2022, available at https://www.gard.no/web/updates/content.
4. Grand China Logistics Holding (Group) Co. Ltd v Spar Shipping AS, [2016] EWCA CIV 982.
5. Spar Shipping AS (2018) Hu 72 Xie Wai Ren No 1.
6. Yang Wengui and Luo Yi, The Chinese court recognized the commercial judgment of the British court for the first time (translated), Chinese version published on 24 March 2022, available at HAI TONG & PARTNERS websitehttps://www.haitonglawyer.com/news/598.html. HAI TONG & PARTNERS is the law firm entrusted by the applicant before Shanghai Maritime Court in this case.
7. Spliethoff’s Bevrachtingskantoor BV v Bank of China Ltd [2015] EWHC 999 (Comm) (17 April 2015).
8. Case No.: (2013) Lu Min Si Zhong Zi No. 87, accordingly the case number of the first-instance judgment is Qingdao Maritime Court (2011) Qinghai Fa Hai Shang Chu Zi No. 271.
9. WANG Limin and DING Qixue, Report on the trial of Xixiakou Shipyard Case of Qingdao Maritime Court, published on 24 Arial 2014, available at http://qdhsfy.sdcourt.gov.cn/qdhsfy/394069/394047/548075/index.html.
10. Wang Beibei, Key points of “Memorandum of the National Courts’ Symposium on Trials for Commercial and Maritime Cases”, published on the official social media account of Shanghai Second Intermediate People’s Court “SJ-Research”, 5 May 2022.
Conflict of Laws of Freedom of Speech on Elon Musk’s Twitter
Elon Musk’s purchase of Twitter has been a divisive event. Commenting on the response on Twitter and elsewhere, Musk tweeted:
The extreme antibody reaction from those who fear free speech says it all
>
By “free speech”, I simply mean that which matches the law.
I am against censorship that goes far beyond the law.
If people want less free speech, they will ask government to pass laws to that effect.
Therefore, going beyond the law is contrary to the will of the people.
Ralf Michaels quote-tweeted perceptively: ‘But which law?’
Twitter and the conflict of laws
By their very nature, digital platforms like Twitter present a variety of conflict of laws issues.
‘Twitter’ is not a monolithic entity. The functionality of the social media platform with which readers would be familiar is underpinned by a transnational corporate group. Twitter, Inc is incorporated in Delaware, and has various subsidiaries around the world; Twitter International Company, for example, is incorporated in Ireland and responsible as data controller for users that live outside of the United States. The business is headquartered in San Francisco but has offices, assets, and thousands of staff around the world.
The platform is populated by 400 million users from all over the world. After the US, the top 5 countries with the most Twitter users are comprised of Japan, India, the UK and Brazil. The tweets and retweets of those users may be seen all over the world. Users have wielded that functionality for all sorts of ends: to report on Russia’s war in real-time; to coordinate an Arab Spring; to rally for an American coup d’état; to share pictures of food, memes, and endless screams; and to share conflict of laws scholarship.
Disputes involving material on Twitter thus naturally include foreign elements. Where disputes crystallise into litigation, a court may be asked to consider what system of law should determine a particular issue. When the issue concerns whether speech is permissible, the answer may be far from simple.
Free speech in the conflict of laws
The treatment of freedom of speech in the conflict of laws depends on the system of private international law one is considering, among other things. (The author is one of those heathens that eschews the globalist understanding of our discipline.)
Alex Mills has written that the balance between free speech and other important interests ‘is at the heart of any democratic political order’.[1] Issues involving free speech may thus engage issues of public policy, or ordre public,[2] as well as constitutional considerations.
From the US perspective, the ‘limits of free speech’ on Twitter is likely to be addressed within the framework of the First Amendment, even where foreign elements are involved. As regards private international law, the Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act 28 USC 4101- 4105 (‘SPEECH Act’) is demonstrative. It operates in aid of the constitutional right to freedom of expression and provides that a US ‘domestic court shall not recognize or enforce a foreign judgment for defamation unless the domestic court determines that’ the relevant foreign law would provide the same protections for freedom of speech as would be afforded by the US Constitution.[3]
Other common law jurisdictions have approached transnational defamation issues differently, and not with explicit reference to any capital-c constitutional rights. In Australia, the High Court has held that the lex loci delicti choice-of-law rule combined with a multiple publication rule means that defamation is determined by the law of the jurisdiction in which a tweet is ‘available in comprehensible form’: the place or places it is downloaded.[4] In contrast, where a claim concerns a breach of confidence on Twitter, an Australian court is likely to apply the equitable principles of the lex fori even if the information was shared into a foreign jurisdiction without authorisation.[5] In either case, constitutional considerations are sidelined.
The balance to be struck between free speech on the one hand, and so-called ‘personality rights’ on the other, is a controversial issue within a legal system, let alone between legal systems. So for example, the choice-of-law rule for non-contractual obligations provided by the Rome II Regulation does not apply to personality rights, as a consensus could not be reached on point.[6] Similarly, defamation and privacy are excluded from the scope of the HCCH Judgments Convention by Art 2(1)(k)–(l).
There is a diversity of approaches to choice of law for cross-border infringements of personality rights between legal systems.[7] But the ‘law applicable to free speech on Twitter’ is an issue that goes far broader than personality rights. It touches on as many areas of law as there are aspects of human affairs that are affected by the Twitter platform. For example, among other things, the platform may be used to:
- spread misrepresentation about an election, engaging electoral law;
- influence the price of assets, engaging banking and finance law; or
- promote products, engaging consumer law.
Issues falling into different areas of law may be subject to different choice-of-law rules, and different systems of applicable law. What one system characterises as an issue for the proper law of the contract could be treated as an issue for a forum statute in another.
All of this is to say: determining what ‘the law says’ about certain content on Twitter is a far more complex issue than Elon Musk has suggested.
The law applicable to online dignity
Key to the divisiveness of Musk’s acquisition is his position on content moderation. Critics worry that a laissez-faire approach to removing objectionable content on the platform will lead to a resurgence of hate speech.
Musk’s vision for a freer Twitter will be subject to a variety of national laws that seek to protect dignity at the cost of free speech in various ways. For example, in April, the European Parliament agreed on a ‘Digital Services Act’, while in the UK, at the time of writing, an ‘Online Safety Bill’ is in the House of Commons. In Australia, an Online Safety Act was passed in 2021, which provided an ‘existing Online Content Scheme [with] new powers to regulate illegal and restricted content no matter where it’s hosted’. That scheme complements various other national laws, like our Racial Discrimination Act 1975, which outlaws speech that is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people, and was done because of the race, colour or national or ethnic origin of the person or group.
When a person in the United States posts content about an Australian that is permissible under US law, but violates Australian statute, the difficulty of Musk’s position on the limits of censorship becomes clear. Diverse legal systems come to diverse positions on the appropriate balance between allowing online freedom and protecting human dignity, which are often struck with mandatory law. When your platform is frequented by millions of users all over the world, there is no single ‘will of the people’ by which to judge. Perhaps Musk will embrace technological solutions to give effect to national standards on what sort of content must be censored.
A host of other conflicts issues
Musk-era Twitter is likely to pose a smorgasbord of other issues for interrogation by conflict of laws enthusiasts.
For example: legal systems take diverse approaches to the issue of whether a foreign parent company behind a platform like Twitter can be imposed with liability, or even criminal responsibility, for content that is on the platform. While conservatives in America consider the fate of s 230 of the Communications Decency Act—a provision that means that Twitter is not publisher of content they host—other countries take a very different view of the issue. Litigation involving the companies behind Twitter is likely to engage courts’ long-arm jurisdiction.
Perhaps the thorniest conflicts problem that may emerge on Musk’s Twitter is the scope of national laws that concern disinformation. In an announcement on 25 April, Musk stated:
‘Free speech is the bedrock of a functioning democracy, and Twitter is the digital town square where matters vital to the future of humanity are debated’.
Recent years have shown that the future of humanity is not necessarily benefited by free speech on social media. How many lives were lost as a result of vaccine-scepticism exacerbated by the spread of junk science on social media? How many democracies have been undermined by Russian disinformation campaigns on Twitter? The extraterritorial application of forum statutes to deal with these kinds of issues may pose a recurring challenge for Musk’s vision.[8] I look forward to tweeting about it.
Michael Douglas is Senior Lecturer at UWA Law School and a consultant in litigation at Bennett + Co, Perth.
[1] Alex Mills, ‘The Law Applicable to Cross-border Defamation on Social Media: Whose Law Governs Free Speech in “Facebookistan”?’ (2015) 7 Journal of Media Law 1, 21.
[2] See, eg, International Covenant on Civil and Political Rights, art 19(3).
[3] SPEECH Act s 3; United States Code, title 28, Part VI, § 4102. See generally Lili Levi, ‘The Problem of Trans-National Libel’ (2012) 60 American Journal of Comparative Law 507.
[4] Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575.
[5] But see Michael Douglas, ‘Characterisation of Breach of Confidence as a Privacy Tort in Private International Law’ (2018) 41 UNSW Law Journal 490.
[6] Art 4(1); see Andrew Dickinson, The Rome II Regulation (Oxford University Press, 2008).
[7] See generally Symeon C Symeonides, Cross-Border Infringement of Personality Rights via the Internet (Brill, 2021) ch VI; Tobias Lutzi, Private International Law Online: Internet and Civil Liability in the EU (Oxford University Press, 2020) ch 4.
[8] See generally Matthias Lehmann, ‘New Challenges of Extraterritoriality: Superposing Laws’ in Franco Ferrari and Diego P Fernández Arroyo (eds), Private International Law: Contemporary Challenges and Continuing Relevance (Edward Elgar, 2019) ch 10.
The CISG Applies to Hong Kong and Mainland China Now: Shall Macau Follow Suit?
(This post is provided by Zeyu Huang & Wenhui Chi. Mr. Huang practises law as a Shenzhen-based associate at Hui Zhong Law Firm. He holds LLB (Renmin U.), LLM & PhD (Macau U.). Ms. Chi is now working as a legal counsel at the Shenzhen Court of International Arbitration (SCIA) and the South China International Arbitration Center (Hong Kong) (SCIAHK). She holds BA (PKU), LLM & JD (PKU School of Transnational Law). The authors may be contacted at huangzeyu@huizhonglaw.com or chiwenhui@scia.com.cn.)
The People’s Republic of China (hereinafter “China” or “PRC”) deposited its instrument of ratification for the United Nations Convention on Contracts for the International Sale of Goods (hereinafter “CISG”) on 11 December 1986. Since its entry into force in 1988, it is beyond doubt that CISG applies to the territory of Mainland China albeit with some reservations and/or declarations (e.g. Article 96). However, businesspeople, courts, practitioners and scholars are split, uncertain and inconsistent over the issue whether the CISG should extend to Hong Kong and Macau after their returns respectively in 1997 and 1999. [1]
This issue stemed from the unclear intentions of China when it submitted the diplomatic notes to the United Nations, which purported to inform the Secretary-General of the status of Hong Kong and Macau in relation to deposited treaties. [2] However, China did not mention CISG in the Diplomatic Notes at all. As a result, whether China had expressed its intention of extending or excluding CISG to Hong Kong and Macau has been subject to inconsistent interpretations and enquires conducted by different non-Hong Kong fora. [3]
To solve this problem, China, after seeking the views of Hong Kong SAR Government, determined to actively remove the uncertainty by depositing a declaration of extension of the territorial application of CISG to Hong Kong on 5 May 2022. [4] On and after 1 December 2022, CISG will apply to both Hong Kong and Mainland China. It should be noted that the declaration that China is not bound by Article 1(1)(b) CISG does not apply to Hong Kong. Nevertheless, it remains to be seen whether the Macau SAR government will follow suit on this matter, requesting the Central Government to extend the application of CISG to Macau.
Extension of International Treatises Ratified by China to Hong Kong and Macau
The issue of whether international treaties ratified by China ‘automatically’ applies to the territory of the Hong Kong and Macau SARs was once hotly debated in the investor-State arbitration cases of Tza Yap Shum v. Peru [5] and Sanum v. Laos-I [6]. Contrary to international tribunals and the Court of Appeal of Singapore’s confirmative and liberal stances, Chinese government and commentators said no. [7] They all insist that China has made its intentions clear in the Diplomatic Notes that the treaty to which China is or will become a party applies to Hong Kong and Macau only after China has decided so and carried out separately the formalities for such application. [8] Moreover, the extension of territorial application to Hong Kong and Macau must be in line with the “One Country, Two Systems” policy and the Basic Laws of Hong Kong and Macau. [9] Accordingly, the PRC Central People’s Government in Beijing has the final say over whether the international treaty to which China is or will be a party applies to Hong Kong and Macau after consulting with the two SARs’ governments.
The same problem stays with the applicability of CISG in the Hong Kong and Macau SARs. On the one hand, no mention of CISG in the Diplomatic Notes submitted by China, at least on the side of Hong Kong, demonstrates China’s true intentions in public international law that the CISG shall not apply in the SAR. [10] In this view embraced by some French and US courts, China’s Diplomatic Notes not mentioning CISG qualify as Article 93(1) CISG reservation indicating that CISG does not apply to Hong Kong and Macau. [11] On the other hand, some other foreign courts considered the Diplomatic Notes did not constitute an Article 93(1) CISG reservation and therefore the default rule in Article 93(4) applies, saying that CISG ‘automatically’ applies to all territorial unites of China. [12] This interpretive approach is similar to the confirmative and liberal approach adopted by the tribunals in Tza Yap Shum v. Peru and Sanum v. Laos-I on the issue whether Chinese investment treaty absent in the Diplomatic Notes extends to territory of the Hong Kong and Macau SARs. However, such approach was often criticized as contrary to China’s expressed intentions. [13]
What Does It Mean for Hong Kong?
Legally speaking, the act of China’s depositing the declaration of extension of CISG to Hong Kong has three implications.
Firstly, and most obviously, on and after 1 December 2022 it would be correct for any foreign court or international tribunal to hold that CISG applies to Hong Kong. This will wipe out the “confusion and conflict as to whether or not China’s diplomatic notes for Hong Kong and Macao, deposited in 1997 and 1999 respectively, are sufficient to exclude the application of the CISG” to Hong Kong and Macau under Article 93 CISG. [14] Indeed, they are sufficient; but China has now decided to reverse its previous intention.
Secondly, China has impliedly confirmed that the Diplomatic Notes qualify as Article 93(1) CISG reservation, which means CISG would not automatically apply to territorial units of China such as Hong Kong and Macau unless China has determined so. In other words, China’s Central People’s Government has the final say on whether a Chinese international treaty applies to Hong Kong and Macau or not.
Thirdly, any construction of the Diplomatic Notes by foreign courts or arbitral tribunals which leads to the ‘automatic’ application of CISG or other international treaties (including Chinese investment agreements) to Hong Kong and Macau would be incorrect and in disregard of China’s true intentions expressed in the Diplomatic Notes. This will possibly prevent foreign courts or investment arbitration tribunals from easily reaching the decision that CISG or Chinese international investment agreement ‘automatically’ applies to Hong Kong and Macau. It also means Hong Kong might need seek the views of Central People’s Government on whether or not to extend Chinese international investment agreement to the Hong Kong SAR, especially in cases where the Hong Kong investors intend to rely on these international instruments to safeguard their rights and interests in investments made overseas.
In parallel with the ongoing Reform and Opening-up within and beyond China, China’s accession to CISG has fundamentally shaped the legislative and judicial landscape of codifying Chinese contract law. It is believed that the Ordinance [15] implementing the CISG in Hong Kong would for sure reshape the legislative and judicial landscape of Hong Kong law. [16]
Conclusion: Shall Macau Follow Suit?
The answer is of course yes. As another major player in the Belt and Road Initiative (BRI) and Greater Bay Area (GBA) in China, Macau is now confronted with the same “confusion and conflict” issue once faced by Hong Kong before 5 May 2022. As mentioned earlier, such “confusion and conflict” as to whether the Diplomatic Notes are sufficient to exclude the application of CISG and other international treaties not mentioned therein to Hong Kong and Macau has been removed. China impliedly reiterated itself through this act of extending CISG to Hong Kong that the Diplomatic Notes are sufficient to do so.
Hence, whether CISG or Chinese investment treaty extends to Macau is likewise subject to the final decision of China’s Central People’s Government. Despite divergent opinions and interpretations, Chinese government’s stance has been consistent – CISG or Chinese international investment agreement outside the Diplomatic Notes does not ‘automatically’ applies to Hong Kong and Macau, and such extension needs the Central People’s Government’s final approval. Therefore, according to Article 138(1) of the Macau Basic Law, Macau should follow up on future consultations with the Central People’s Government in Beijing to decide whether the CISG (and Chinese investment treaty) should apply to the Macau SAR, and if so, how they should apply. It is foreseeable that China would probably also deposit another separate instrument of extending the application of CISG to Macau. By then, perhaps we can see the dawn of unifying the sales law as key part of inter-regional private laws within the PRC.
——
Endnotes
[1] See the Department of Justice of Hong Kong, Consultation Paper titled “Proposed Application of The United Nations Convention on Contracts for the International Sale of Goods to the Hong Kong Special Administrative Region” (hereinafter “Consultation Paper”), Consultation Period expired by 30 December 2020, paras. 3.33-3.44. It is available at https://www.gov.hk/en/residents/government/publication/consultation/docs/2020/CISG.pdf.
[2] See United Nations, ‘Multilateral Treaties Deposited with the Secretary-General’ (hereinafter “Diplomatic Notes”), China: Notes 2 and 3, which informed the Secretary-General of the status of Hong Kong and Macau in relation to treaties deposited with the Secretary-General. The diplomatic notes laid out the deposited treaties that would respectively apply to Hong Kong and Macau.
[3] See Consultation Paper, supra note 1, paras. 3.38-3.39.
[4] For Press Release, see https://unis.unvienna.org/unis/en/pressrels/2022/unisl327.html.
[5] See Tza Yap Shum v. Peru, ICSID Case No. ARB/07/6, Award, 7 July 2011, where a Hong Kong resident having Chinese nationality relied upon the Peru-China BIT 1994 to bring the ICSID arbitration against Peru.
[6] See Sanum Investments Ltd. v. Lao People’s Democratic Republic, PCA Case No. 2013-13, Decision on Jurisdiction of 13 December 2013, where a Macau-based company invoked the China-Laos BIT 1993 to initiate the UNCITRAL ad hoc arbitration administered by PCA against Laos.
[7] See e.g., PRC Ministry of Foreign Affairs, ‘Foreign Ministry Spokesperson Hua Chunying’s Regular Press Conference on October 21, 2016’, available at https://www.mfa.gov.cn/ce/cegv//eng/fyrth/t1407743.htm; An Chen, ‘Queries to the Recent ICSID Decision on Jurisdiction Upon the Case of Tza Yap Shum v. Republic of Peru: Should China-Peru BIT 1994 Be Applied to Hong Kong SAR under the “One Country, Two Systems” Policy?’ (2009) 10 Journal of World Investment & Trade 829, at 832-844.
[8] See Diplomatic Notes, supra note 2.
[9] See Article 153 of the Hong Kong Basic Law and Article 138 of the Macau Basic Law.
[10] See Consultation Paper, supra note 1, paras. 3.42 (“While it is not disputed that in Hong Kong at least, the CISG should not apply ….”).
[11] See ibid, at para. 3.38. The Consultation Paper cited the following cases: Telecommunications Products Case, Cour de Cassation, Case No. 04-117726, 2 April 2008 (France); Innotex Precision Ltd v Horei Image Products, 679 F. Supp. 2d 1356 (2009) (US); America’s Collectibles Network Inc. v Timlly (HK) Ltd., 746 F. Supp. 2d 914 (2010) (US); Wuhan Yinfeng Data Network Co. Ltd. v Xu Ming (19 March 2003), Hubei High People’s Court (China).
[12] See ibid, at para. 3.39. The Consultation Paper cited the following cases: CNA Int’l Inc. v Guangdong Kelon Electronical Holdings et al. Case No. 05 C 5734 (2008) (US); Electrocraft Arkansas, Inc. v Super Electric Motors Ltd. (2009) 4:09 CV 00318 SWW (US).
[13] See Consultation Paper, supra note 1, para. 3.42. See also Mahdev Mohan & Siraj Shaik Aziz, ‘Construing A Treaty Against States Parties’ Expressed Intentions: Sanum Investments Ltd v Government of the Lao People’s Democratic Republic’ (2018) 30 Singapore Academy of Law Journal 384.
[14] See Consultation Paper, supra note 1, para. 3.42.
[15] https://www.elegislation.gov.hk/hk/cap641!en.
[16] For comparison between the CISG and Hong Kong law, see Consultation Paper, supra note 1, para. 2.8.
News
The Nigerian Supreme Court now has a Specialist in Conflict of Laws
The authors of this post are Chukwuma Okoli, Assistant Professor in Commercial Conflict of Laws at the University of Birmingham, and Senior Research Associate at the University of Johannesburg; and Abubakri Yekini, Lecturer in Conflict of Laws at the University of Manchester.
On December 21, 2023, the Nigerian Senate in line with Section 231(2) of the 1999 Constitution, confirmed the appointment of Honourable Justice Habeeb A.O. Abiru (“Justice Abiru”), alongside ten other justices, to the Nigerian Supreme Court, following the recommendation of the National Judicial Council and the Nigerian President. This appointment fills the vacancy created by recent retirements or deaths of some justices.
First edition of The Hague Academy of International Law’s Advanced Course in Hong Kong on “Current Trends on International Commercial and Investment Dispute Settlement”
From 11 to 16 December 2023, the first edition of The Hague Academy of International Law’s Advanced Course in Hong Kong was held, co-organised by the Asian Academy of International Law and the Department of Justice of the Government of the Hong Kong Special Administration Region. For this programme, the Hague Academy of International Law convened distinguished speakers to deliver lectures on “Current Trends on International Commercial and Investment Dispute Settlement”.
Private International Law and Business Compliance in Asia Pacific Conference
This international conference will be held on 21 February 2024 at the University of Sydney Law School, Australia.
Keynote: Justice and injustice in foreign judgments – does terminology matter?
Professor Andrew Dickinson, Oxford University Law School