Softening Reciprocal Recognition and Enforcement of Foreign Judgments in China: A Multiple-Origin Review

• Date: 01 April 2024

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2024 e Institute for Migrant Rights Press

e authors are indebted to Professor Ronald Brand, University of Pittsburgh School of Law,

for his expertise which played a pivotal role in shaping the direction of this research and

enhancing the quality of this article. is work was supported by the “2022 Social Science

Development Research Project of Hebei Province (No. 20220202163)”.

softEning rECiproCal rECognition

and EnforCEmEnt of forEign

JudgmEnts in China: a multiplE-

origin rEviEw

Tao Li

Associate Professor at Hebei University of Economics and Business, Law

School

lawyerlitao@126.com

Zuoli Jiang

Professor at Shandong University, School of Law

jzli@sdu.edu.cn

With a view to safeguarding the formation of a marketized, law-based, and

internationalized business environment in China and the advancement of the

Belt and Road Initiative, the Supreme Court of China has issued a series of

adjudicative policies on liberalizing the reciprocity test for the recognition

and enforcement of foreign judgments in China. ese policies call upon Chi-

nese courts to rectify the rigid de facto reciprocity approach and adopt the de

jure approach, as well as other exible approaches. is article examines the

application of these new reciprocity approaches in Chinese judicial practice

by reviewing cases from ve major countries, namely the United States, Japan,

XI Indonesian Journal of International & Comparative Law 115-47 (April 2024)

116

Li & Jiang

South Korea, Singapore, and Germany. It nds that the Chinese courts have

indeed changed from a pro-denying position to a pro-arming position con-

cerning reciprocity determination. It predicts that as more armative cases

from a wider range of countries accumulate in Chinese courts, a more legal-

ized market with reliable cross-border regimes for recognition and enforce-

ment of judgments will emerge in China.

Keyword s: recognition and enforcement of foreign judgments, de facto reciprocity, de

jure reciprocity, Belt and Road Initiative, business environment, private international

law

INTRODUCTION

e recognition and enforcement of foreign judgments (REFJ) in civil

or commercial matters concerns not only the realization of substantive

rights of the judgment creditor but also the integrity of the judicial pro-

ceeding of the rendering court. If the economic interests acknowledged

by the foreign judgment cannot be recognized and enforced in another

country where the judgment creditor can nd the judgment debtor’s

assets, the work of the rendering court is of negligible value. However,

a general legal design accepted around the world is that the judgment

rendered by a court of a country is of validity only within its sovereign

territory without absolute extraterritorial binding force.1 Observing

that the existence of a common economic market necessitates the free

movement of judgments, both the US and the EU have conrmed this

point in their respective constitutional frameworks.2 e idea of reci-

procity, as one condition to carry out REFJ that may exert pressure on

other states,3 has also been abolished in legislation and adjudication by

1. M B, Private International Law’s Origins as a Branch of the

Universal Law of Nations, in B B  P  P

I L: T C  D S 15,

15–29 (Poomintr Sooksripaisarnkit & Dharmita Prasad eds, Springer

Nature 2022).

2. R A B, T P U R 

J   R  E  J

97-100 (Brill Nijho 2014).

3. Michael Martinek, e Principle of Reciprocity in the Recognition and

Enforcement of Foreign Judgments: History, Presence and No Future, 2017 J.

S. A. L. 36, 54.

117

Soening Reciprocal Recognition and Enforcement of Foreign Judgements

Li & Jiang

many countries during the modernization of their private international

law systems.4

As China has gradually emerged as an essential part of the world

economy, easy REFJ becomes more critical in improving its market

environment reliability for foreign traders and investors. For some

time, China has been criticized for being notoriously dicult in REFJ,

diminishing foreign businesses’ condence in its judicial system.5 But

in recent years, China has prioritized establishing a marketized, law-

based, and internationalized business environment comparable with

advanced counterparts worldwide,6 and therefore adopting more

liberal and friendly REFJ approaches for foreign judgment creditors

needs to be put on the agenda.

Along with China’s more armative promotion of economic

integration at the regional and even global level, signs of improvement

in REFJ have been more visible in its judicial systems.7 Also, the Supreme

People’s Court of China (SPC) has issued a series of work guidelines

on promoting more lenient REFJ approaches among the Chinese

People’s Courts, echoing China’s Belt and Road Initiative and other

international development cooperation plans. Soened and diversied

application of the principle of reciprocity in REFJ has been prioritized

in these policies. rough an empirical review of relevant cases, this

article examines whether Chinese Courts have actually followed a more

lenient approach to reciprocity-based REFJ. e cases under review are

those involving monetary claims in civil and commercial matters as

well as bankruptcy, but exclude those arising from divorce claims.8

4. Béligh Elbalti, Reciprocity and the Recognition and Enforcement of Foreign

Judgments: A Lot of Bark but Not Much Bite, 13 J. P. I’ L. 184, 187-91

(2017).

5. Arthur Anyuan Yuan, Enforcing and Collecting Money Judgments in China

from a U.S. Judgment Creditor’s Perspective, 36 G. W. I’ L. R.

757, 758 (2004).

6. Regulations on Improving the Business Environment, art. 4, promulgated

by the State Council of China, Oct. 8, 2019.

7. Wenliang Zhang, Recognition and Enforcement of Foreign Judgments in

China: A Call for Special Attention to Both the Due Service Requirement and

the Principle of Reciprocity, 12 C J. I’ L. 143, 145 (2013).

8. Under Chinese law, if a party applies for recognition of a foreign divorce

judgment, there is no prerequisite on international treaties or reciprocity.

Supreme People’s Court, Interpretation on the Application of the Civil

Procedure Law of China, art. 542, promulgated Apr. 2, 2022.