Wednesday, March 22, 2006
On April 1, 2006, the "Arrangement Between the Mainland and the Macao Special Administrative Region on the Mutual Recognition and Enforcement of Civil and Commercial Judgments" (内地与澳门特别行政区关于相互认可和执行民商事判决的安排) will go into effect. (Bilingual Portuguese-Chinese version here.) The content of the agreement is pretty much spelled out in the title. There are very few grounds on which the courts of one jurisdiction may decline to enforce the covered judgments of the other; certainly no review of the substance of the judgment is permitted, but exceptions on the grounds of public policy are allowed. On the mainland side, the party actually signing the agreement is the Supreme People's Court; it's not clear who signed it on behalf of Macao.
China has very few such agreements with other jurisdictions, and none with its major trading partners. What's interesting about this agreement is what it does not say, and how that contrasts with a forthcoming similar arrangement between the mainland and Hong Kong. According to recent remarks by a senior Hong Kong government official (I haven't yet confirmed that the remarks were on the record), Hong Kong and the mainland are about to enter into an arrangement for the mutual recognition and enforcement of civil and commercial judgments, but the content will be quite different. Judgments of the other jurisdiction will be enforced only where the parties by contract specifically chose the courts of that other jurisdiction as the exclusive forum for the resolution of disputes.
In short, the agreement will treat such choices essentially as arbitration agreements - and indeed, that's pretty much what they are. The Hong Kong legal community is willing to help enforce the judgments of a forum to which the parties have voluntarily submitted their dispute, but won't go any further. Macao, by contrast, has gone all the way to a full-faith-and-credit approach.