Interpretation on Several Issues Concerningthe Application of the Law of the People's Republic of China on the Application of Law in Foreign Related Civil Relations (II)
(Approved at the 1898th meeting of theJudicial Committee of the Supreme People's Court on August 30, 2023, effective from January 1, 2024) Fa Shi [2023] No. 12
In order to correctly apply the Law of thePeople's Republic of China on the Application of Law in Foreign Related Civil Relations and in combination with judicial practice, this interpretation is formulated for the purpose of identifying foreign laws in the trial of foreign-related civil and commercial cases by people's courts.
Article 1: If a people's court applies foreign laws to the trial of foreign-related civil and commercial cases, it shall ascertain the laws of that country in accordance with the provisions of Article 10, Paragraph 1 of the Law on the Application of Foreign Civil Relations.
If the parties choose to apply foreignlaws, they shall provide the laws of that country.
If the parties have not chosen to apply foreign laws, the people's court shall determine the laws of that country.
Article 2: The people's court may ascertain foreign laws through the following channels:
（1） Provided by theparties involved;
（2） Provided by thecentral or competent authorities of the other party through judicial assistance
channels;
（3） Requesting theChinese embassy or consulate in that country or the Chinese embassy or
consulate in that country to provide information through the Supreme People's
Court;
（4） Provided by theparties involved in the legal investigation and cooperation mechanism
established or participated in by the Supreme People's Court;
（5） Provided byexperts from the International Commercial Experts Committee of the Supreme
People's Court;
（6） Provided bylegal investigation service agencies or domestic and foreign legal experts;
（7） Otherappropriate channels.
If the people's court is unable to obtainforeign laws through one of the channels specified in the preceding paragraph, or if the content of foreign laws obtained is unclear or insufficient, it shall supplement the investigation through different channels specified in that paragraph.
If the people's court requests the partiesto assist in providing foreign laws in accordance with the provisions of the first item of the first paragraph of this article, it shall not assume that foreign laws cannot be clarified solely on the grounds that the parties have not provided assistance.
Article 3: If the parties provide foreignlaws, they shall submit specific provisions of the laws of that country and explain the channels of acquisition, effectiveness, and relevance to the dispute in the case. If foreign law is case law, the full text of the case law should also be submitted.
Article 4: If a legal investigation serviceinstitution or legal expert provides foreign laws, in addition to submitting the materials specified in Article 3 of this Interpretation, they shall also provide proof of the qualification of the legal investigation service institution, proof of the identity and qualifications of the legal expert, and attach a written statement of no interest in the case.
Article 5: The relevant materials offoreign laws identified shall be presented in court. The people's court shall listen to the opinions of all parties on the content, understanding, and application of foreign laws.
Article 6: The people's court may convene apre-trial meeting or other appropriate means to determine the scope of foreign laws that need to be investigated.
Article 7: If the people's court deems itnecessary, it may notify the legal investigation service agency or legal experts providing foreign laws to appear in court for questioning. If a party applies for a legal investigation service agency or legal expert to appear in court, the people's court may allow it if it deems it necessary.
If it is indeed difficult for a legalinvestigation service agency or legal expert to appear in court on site, they can accept inquiries online, except for cases where the law of the country where the legal investigation service agency or legal expert is located has prohibitive provisions for cross-border online participation in court hearings.
The legal investigation service agency orlegal expert appearing in court only expresses opinions on foreign laws and their understanding, and does not participate in other court proceedings.
Article 8: The people's court shall handlethe content, understanding, and application of foreign laws according to the following situations:
（1） If the partieshave no objections to the content, understanding, and application of foreign laws, the people's court may confirm them;
（2） If the partieshave objections to the content, understanding, and application of foreign laws, they shall explain the reasons. If the people's court deems it necessary, it may supplement the investigation or require the parties to provide additional materials. If the parties still have objections after supplementary investigation or supplementary materials provided, the people's court shall review and determine;
（3） If the contentof foreign laws has been recognized by the effective judgment of the people's court, the people's court shall confirm it, except where there is evidence to the contrary that is sufficient to overturn it.
Article 9: The people's court shalldetermine the time required for the parties to provide foreign laws in accordance with foreign laws, such as the time required to complete relevant procedures. If the parties have specific reasons to explain that they are unable to provide foreign laws within the time limit determined by the people's court and apply for an appropriate extension of the time limit, the people's court may allow it depending on the situation.
If a party chooses to apply foreign law andfails to provide the foreign law without justifiable reasons within the time limit determined by the people's court, the people's court may consider it impossible to ascertain the foreign law.
Article 10: When the people's court appliesforeign laws to hear cases in accordance with the law, it shall specify the process of identifying foreign laws and the content of foreign laws in the judgment documents; If the people's court determines that foreign laws cannot be ascertained, it shall specify the reasons for the inability to ascertain.
Article 11: If there is an agreement amongthe parties regarding the cost burden of identifying foreign laws, such agreement shall prevail; If there is no agreement, the people's court may determine the reasonable burden of the above-mentioned expenses when making a judgment based on the litigation request of the parties and the specific circumstances of the case.
Article 12: When the people's courtdetermines the laws of the Hong Kong Special Administrative Region and the Macao Special Administrative Region, it may refer to the application of this interpretation. If there are other provisions in laws and judicial interpretations regarding the investigation of the laws of the Hong Kong Special Administrative Region and the Macao Special Administrative Region, those provisions shall prevail.
Article 13: This interpretation shall comeinto effect from January 1, 2024.
If there is any inconsistency between thejudicial interpretations previously issued by the Supreme People's Court and this interpretation after its promulgation and implementation, this interpretation shall prevail.