Saturday, March 25, 2006
Friday, March 24, 2006
Graeme Johnston, an attorney based in Shanghai, has kindly contributed the following as a comment to my earlier post on the Mainland-Macau agreement for the mutual recognition and enforcement of judgments, but as it seemed too good to stay buried in the Comments page, I am reproducing it here as a blog posting in its own right. This comment discusses Hong Kong's approach to the enforcement of foreign judgments and its forthcoming agreement with the mainland.
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.
Monday, March 20, 2006
The career of Qiu He (仇和), recently promoted to the rank of vice governor of Jiangsu Province, has occasioned quite a bit of controversy. The essence of the issue is that Qiu has apparently run roughshod over what might be called the legal rights of those he has governed in previous positions, but has ultimately delivered impressive economic results and introduced political reforms. Those who support him say, in the words of one blogger, "Can't one use rule by men to promote rule of law? Can't one use non-democratic means to promote democracy?" In the words of another supporter, given that there are no effective political structures, the only way to create healthy institutions is through rule by men.
Others such as Cai Dingjian of the Chinese University of Politics and Law reject these arguments: "The tragedy of strongman politics is that good officials always want to do everything themselves, to change the fate of the people, and to become the savior of the people, but they don't let people grasp their own fates." Cai argues that the test of a good official is the degree to which they contribute to the creation of institutions. Otherwise, even a good official, when he leaves his post, leaves nothing behind.
For a full discussion of the Qiu He phenomenon, to which is owed the above summary and quotations, see Joseph Fewsmith, "Promotion of Qiu He Raises Questions About Direction of Reform," China Leadership Monitor, No. 17, Winter 2006.
Sunday, March 19, 2006
The Supreme People's Court Work Report, delivered on March 11, 2006 to the Standing Committee of the National People's Congress, is now available here.
The Supreme People's Procuratorate Work Report is available here.