March 22, 2006
Mainland - Macao agreement on recognition and enforcement of judgments
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.
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A few contributions, which I hope may be useful:
(1) Yes, the current version of the HK-mainland proposal is restricted to cases where there is an exclusive jurisdiction agreement. For official papers and minutes of the most recent (Feb. 2006) HK legislative debate on the subject, see http://www.legco.gov.hk/yr05-06/english/panels/ajls/papers/aj0227cb2-1202-1e.pdf
(2) Hong Kong has a very liberal approach to enforcement of civil money judgments from elsewhere in the world (i.e. foreign countries and other parts of China), without re-examination of merits (factual or legal). Essentially the same approach applies to the recognition of an issue estoppel created by non-monetary, as well as monetary, civil judgments (e.g. whether a question of fact decided in such a judgment is binding on the same parties in HK). There are various technicalities (I have written 75 pages on the subject elsewhere - see http://www.sweetandmaxwellasia.com/products/prod_spec.asp?ProdId=1742&cvalue=a26a49a121a55), but the major limits are (i) non-enforcement of judgments based on foreign revenue, penal or other "public" laws, (ii) a requirement that the foreign judgment be "final" at first instance(i.e. not interim; a judgment subject to appeal is enforceable in HK though the court has a discretion to stay enforcement e.g. if the appeal sounds arguable); (iii) a requirement that the foreign court's jurisdiction was not exorbitant by HK standards (for this purpose, jurisdiction established by agreement or by service of process within the foreign court's territory is not exorbitant; there are various other recognised bases of non-exorbitant jurisdiction as well); (iv) a "fraud" exception (but the HK courts are usually sceptical of judgment debtors who raise this point and will dismiss it summarily unless supported by prima facie evidence of judicial corruption or the like); (v) residual concepts of due process and public policy (in practice, only applicable in extreme cases e.g. failure to give a proper opportunity to respond to process).
(3) A particularly interesting point is that (a) HK courts will enforce Taiwanese judgments very readily (the HK Court of Final Appeal confirmed this in 2000) notwithstanding the unconstitutional status of the Taiwan court system in HK/PRC eyes; (b) whilst HK courts will, in principle, enforce mainland judgments, in practice summary enforcement has been denied in several recent cases because the judgment debtor has succeeded in arguing that the mainland trial supervision process may prevent mainland civil judgments ever being "final" (see point (2)(ii) above); the HK Court of Final Appeal has yet to deal with the point.
(4) The contrast between (3)(a) and (3)(b) has a certain irony but it's worth noting that Taiwan and the mainland have their own reciprocal enforcement arrangement, and there's some evidence of its application in practice, notwithstanding all the cross-straits rhetoric!
(5) China participated in the negotiations which led to the 2005 Hague Judgments Convention (http://www.hcch.net/index_en.php?act=conventions.text&cid=98) though it is unknown as yet (at least to me) whether it will sign and ratify; and, of course, that Convention only applies in cases of exclusive jurisdiction agreements (and subject to various other limitations).
(6) Finally, the reality of enforcement of foreign judgments in practice in mainland China is of course rather difficult to generalise about: whilst plenty of anecdotes can be given about the position in different cities and regions, I am unaware of systematic official statistics on the subject. It is mildly amusing / disturbing that even the Hong Kong Secretary for Justice was apparently unable to get any meaningful information from the mainland authorities about implementation in practice of the HK-Mainland Arrangement for reciprocal enforcement of arbitral awards (in force since 2000): see the official papers referenced at (1) above. Even enforcement of domestic judgments in China can still cause major problems: the Supreme People's Court President has candidly acknowledged this and improving enforcement is one of the major themes of the reform programme announced at the end of 2005 and reiterated at the March 2006 National People's Congress.
(7) Perhaps I should indicate my background in commenting on these matters: I'm a litigation / arbitration lawyer now based in Shanghai; before that, I practised in London then, for five years, in Hong Kong.
Posted by: Graeme Johnston | Mar 24, 2006 4:02:39 AM