Recognition and enforcement of foreign judgments in China
Authors
jurisdiction
1. Is there an exequatur procedure?
Yes. A party may apply to a local court in mainland China for the recognition and/or enforcement of a foreign judgement or arbitral award. A foreign court that renders a judgement may also request an intermediate court for the recognition and/or enforcement of its judgement. In practice, applications for recognition and enforcement are usually submitted to an intermediate court at the same time.
An application or request shall be submitted to the intermediate court of the place where the party against whom the judgement or award is made is domiciled or where the property of such a party is located.
An intermediate court will decide whether to recognise and/or enforce the judgment or award in accordance with international treaties to which both China and the foreign country are parties, or pursuant to the principle of reciprocity
2. What are the applicable statutes?
2.1 Judgments and arbitral awards from Hong Kong, Macau and Taiwai
Hong Kong, Macau and Taiwan have their own legal systems. Judgements rendered by courts in these regions are not considered domestic Chinese judgements. The rules and procedures for recognition and enforcement of such judgements are mainly provided in the following statutes:
- Arrangement of the Supreme People’s Court between the Mainland and the Hong Kong Special Administrative Region on Reciprocal Recognition and Enforcement of the Decisions of Civil and Commercial Cases under Consensual Jurisdiction (最高人民法院关于内地与香港特别行政区法院相互认可和执行当事人协议管辖的民商事案件判决的安排) (2008)
- Arrangements of the Supreme People’s Court on the Reciprocal Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region (最高人民法院关于内地与香港特别行政区相互执行仲裁裁决的安排) (2020)
- Arrangements of the Supreme People’s Court on the Reciprocal Recognition and Enforcement of Civil and Commercial Judgments between the Mainland and the Macao Special Administrative Region (最高人民法院关于内地与澳门特别行政区相互认可和执行民商事判决的安排) (2006)
- Arrangements of the Supreme People’s Court on the Reciprocal Recognition and Enforcement of Arbitration Awards between the Mainland and the Macau Special Administrative Region (最高人民法院关于内地与澳门特别行政区相互认可和执行仲裁裁决的安排) (2007)
- Provisions of the Supreme People’s Court on the Recognition and Enforcement of the Civil Judgments of Courts of the Taiwan Region(最高人民法院关于认可和执行台湾地区法院民事判决的规定 (2015)
- Provisions of the Supreme People’s Court on the Recognition and Enforcement of the Arbitral Awards of the Taiwan Region (最高人民法院关于认可和执行台湾地区仲裁裁决的规定) (2015
Meanwhile, the Arrangement of the Supreme People’s Court and the Government of the Hong Kong Special Administrative Region on Reciprocal Recognition and Enforcement of Civil Judgments in Matrimonial and Family Cases by the Courts of the Mainland and of the Hong Kong Special Administrative Region (最高人民法院、香港特别行政区政府关于内地与香港特别行政区法院相互认可和执行婚姻家庭民事案件判决的安排) and the Arrangement of the Supreme People’s Court and the Government of the Hong Kong Special Administrative Region on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong Special Administrative Region (最高人民法院、香港特别行政区政府关于内地与香港特别行政区法院相互认可和执行民商事案件判决的安排) were also signed by the parties in 2017 and 2019 respectively. However, these arrangements have not yet come into effect, pending the internal approval procedures of the parties.
2.2 Foreign judgments
The rules and procedures for recognition and enforcement of foreign judgements are mainly provided in the PRC Civil Procedure Law (中华人民共和国民事诉讼法) (2017)：
第281条 外国法院作出的发生法律效力的判决、裁定，需要中华人民共和国人民法院承认和执行的，可以由当事人直接向中华人民共和国有管辖权的中级人民法院申请承认和执行，也可以由外国法院依照该国与中华人民共和国缔结或者参加的国际条约的规定，或者按照互惠原则，请求人民法院承认和执行。 | Article 281 If a legally effective judgment or ruling made by a foreign court requires recognition and enforcement by a people’s court of the People’s Republic of China, the party concerned may directly apply for recognition and enforcement to the intermediate people’s court with jurisdiction. Alternatively, the foreign court may, pursuant to the provisions of an international treaty concluded between or acceded to by the foreign country and the People’s Republic of China, or in accordance with the principle of reciprocity, request the people’s court to recognise and execute the judgment or ruling. |
第282条 人民法院对申请或者请求承认和执行的外国法院作出的发生法律效力的判决、裁定，依照中华人民共和国缔结或者参加的国际条约，或者按照互惠原则进行审查后，认为不违反中华人民共和国法律的基本原则或者国家主权、安全、社会公共利益的，裁定承认其效力，需要执行的，发出执行令，依照本法的有关规定执行。违反中华人民共和国法律的基本原则或者国家主权、安全、社会公共利益的，不予承认和执行。 | Article 282 Having received an application or a request for recognition and enforcement of a legally effective judgment or ruling of a foreign court, a people’s court shall review such a judgment or ruling pursuant to international treaties concluded or acceded to by the People's Republic of China or in accordance with the principle of reciprocity. If, upon such a review, the people’s court considers that the judgment or ruling neither contradicts the basic principles of the law of the People’s Republic of China nor violates State sovereignty, security or the public interests, it shall rule to recognise it. If enforcement is requested, the people’s court shall issue an order of enforcement, which shall be implemented in accordance with the relevant provisions of the Civil Procedure Law. If such a judgment or ruling contradicts the basic principles of the law of the People’s Republic of China or violates State sovereignty, security or the public interests, the people's court shall refuse to recognise or enforce the judgment or ruling. |
China has so far only concluded around 38 bilateral treaties with other countries, but none with its major western business partners. Foreign judgments in China are thus mainly acknowledged and enforced based on the principle of reciprocity (i.e. whether or not the other state also acknowledges and enforces Chinese judgements). However, it is relatively rare for a Chinese court to recognise a judgment made in a western court.
One exception applies to the recognition of foreign divorce judgments. According to the Notice of the Supreme People’s Court on the Provisions Concerning the Application of Chinese Citizens for Recognition of Foreign Divorce Judgments (关于中国公民申请承认外国法院离婚判决程序问题的规定) (1991), an applicant may be able to enforce a foreign divorce judgment even in the absence of any international or reciprocal treaties.
On 2 July 2019, the Hague Conference on Private International Law announced the conclusion of a new international convention, the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. Once ratified, the contracting countries will be required to recognise and enforce judgments given in civil or commercial matters in the states that have acceded to or ratified the Judgments Convention. However, China has not ratified the convention yet.
In addition, with the development of the Belt and Road Initiative, more judicial cooperation including the recognition and enforcement of foreign judgements rendered by courts in the belt and road countries will be established in the near future.
2.3 Foreign arbitral awards
Articles 274 and 283 of the PRC Civil Procedure Law (中华人民共和国民事诉讼法) (2017) governs the recognition and enforcement of foreign arbitral awards:
| 第283条 | Article 283 |
| 国外仲裁机构的裁决，需要中华人民共和国人民法院承认和执行的，应当由当事人直接向被执行人住所地或者其财产所在地的中级人民法院申请，人民法院应当依照中华人民共和国缔结或者参加的国际条约，或者按照互惠原则办理。 | If an award made by a foreign arbitration institution requires recognition and enforcement by a people’s court of the People's Republic of China, the party concerned shall directly apply for recognition and enforcement to the intermediate people’s court of the place where the party against whom the judgement or award is made is domiciled or where such a party’s property is located. The people’s court shall handle the matter pursuant to the provisions of an international treaty concluded between or acceded to by the foreign country and the People’s Republic of China, or in accordance with the principle of reciprocity. |
| 第274条 | Article 274 |
| 对中华人民共和国涉外仲裁机构作出的裁决，被申请人提出证据证明仲裁裁决有下列情形之一的，经人民法院组成合议庭审查核实，裁定不予执行： | A court can refuse to enforce a foreign award on any of the following grounds: |
| （一）当事人在合同中没有订有仲裁条款或者事后没有达成书面仲裁协议的； | (i) Lack of a valid arbitration agreement. |
| （二）被申请人没有得到指定仲裁员或者进行仲裁程序的通知，或者由于其他不属于被申请人负责的原因未能陈述意见的； | (ii) The respondent is not served with the arbitral proceeding or given notice of the opportunity to appoint an arbitrator, or does not have the opportunity to present a case for reasons not attributable to the respondent. |
| （三）仲裁庭的组成或者仲裁的程序与仲裁规则不符的； | (iii) The composition of the arbitral tribunal or the conduct of the arbitral procedure is not in line with the arbitration rules. |
| （四）裁决的事项不属于仲裁协议的范围或者仲裁机构无权仲裁的。 | (iv) The matter dealt with by the arbitration is not arbitrable or is outside the scope of the arbitration agreement. |
| 人民法院认定执行该裁决违背社会公共利益的，裁定不予执行。 | Enforcement of an arbitration award is contrary to social and public interests. |
China is a contracting party to the New York Convention. When ratifying the convention, China has made reservations. Only awards made in another contracting state and resulting from contractual and non-contractual legal relationships that are considered commercial under Chinese law can be enforced in China in accordance with the New York Convention.
When deciding whether an award is made in another contracting state, Chinese courts usually refer to the location of the arbitration institution rather than the seat of arbitration. There is a trend in recent years to change this practice to be consistent with the general international practice, which has not been reflected at the statutory level yet.
3. What are the important judicial precedents?
China does not use a common law model, thus, “judicial precedents” do not apply. Chinese law is based on statutory law.
Nevertheless, court decisions made by the Supreme People’s Court or higher courts might be taken as reference by lower courts in practice.
4. Does the exequatur procedure mean that the case must be retried on the merits?
Chinese courts do not revisit the merits of the underlying dispute in the recognition and enforcement proceedings of a foreign judgment or arbitral award, unless such a review is required by the relevant treaties or for determining whether a ground for refusal of recognition and enforcement exists (e.g. violation of State sovereignty, security or the public interests, or circumstances under Article 274 of the PRC Civil Procedure Law).
5. How long does the exequatur procedure take?
There is no generally applicable statutory time limit within which a court must make its decision on whether to recognise or enforce a foreign judgment or arbitral award. In practice, this depends largely on the circumstances of the matter.
6. Is the opponent given the opportunity to challenge the exequatur?
No. According to Article 548 of the Interpretation of the Supreme People’s Court on the Application of the PRC Civil Procedure Law, a people’s court’s ruling on the recognition and enforcement of a foreign judgment or arbitral award takes effect once it is served upon the relevant parties, and becomes final and cannot be appealed.
