Extraterritorial Law Investigation by International Commercial Court
In recent years, the number of civil and commercial cases related to foreign affairs accepted by the Qingdao Intermediate People’s Court has been increasing year by year, with the subject matter of the cases doubling. The number of countries, regions, and jurisdictions involved in the cases has increased, and the types of cases have become more diversified. The demand for extraterritorial legal investigation has increased, and the issues involved in extraterritorial legal investigation have become more refined and complex.
In order to improve the quality of identifying and applying foreign laws in foreign-related civil and commercial trials, and to enhance the level of judicial services, the Qingdao Intermediate People’s Court takes the strategy of high-quality foreign-related commercial trials as its focus, actively strengthens cooperation with universities and academic research institutions, and first establishes a cooperation mechanism for identifying foreign laws with the Foreign Law Identification and Research Center of East China University of Political Science and Law and the Shenzhen Blue Ocean Law Identification and Commercial Mediation Center, effectively enhancing the authority and accuracy of identifying foreign laws, and enhances the trust of the parties involved in China’s judiciary.
The report points out that from 2019 to 2023, the overall trend of cases investigated by the Qingdao Intermediate People’s Court in extraterritorial law is on the rise, with a wide range of regions. The identification of issues is diverse, including substantive laws such as Contract Law, Company Law, Bankruptcy Law, Marriage and Family Law, as well as procedural laws such as Civil Procedure Law and Arbitration Law. Among them, the proportion of identification in Company Law is relatively high. The accuracy and depth of identification are gradually improving, no longer limited to the identification of legal provisions, but also including relevant precedents, bilateral treaty signing, and legal application. Through the correct identification and application of extraterritorial laws, nearly half of the difficult cases related to Hong Kong, Macao, and Taiwan in extraterritorial laws have been properly resolved through reconciliation, mediation, active performance, and withdrawal of lawsuits.
Based on the findings of “weak awareness of corporate legal risk prevention and control”, “lack of relevant legal research on investment destination countries and regions”, “insufficient experience of domestic enterprises participating in overseas arbitration”, “lack of understanding of overseas arbitration rules and procedures”, and “unfamiliarity with international treaties and practices” in the investigation of foreign laws, the report proposes three suggestions: first, strengthen understanding of the laws of investment destination countries or regions, and enhance awareness of relevant international conventions and practices; Secondly, during the contracting process, research should be conducted in advance on the choice of dispute resolution clauses and legal application, and clear provisions should be made in the contract; Thirdly, after disputes arise, hire lawyers with rich experience in international litigation and arbitration, actively participate in litigation or arbitration, and effectively safeguard their legitimate rights and interests.
The typical cases of extraterritorial legal investigation released by the Qingdao Intermediate People’s Court involve various types of disputes such as recognition and enforcement of foreign court judgments and arbitration awards, unjust enrichment disputes, construction contract disputes, shareholder investment disputes, and sales contract disputes. They have guiding significance in the application of applicable law and the determination of legal facts. These typical cases are vivid manifestations of the Qingdao International Commercial Court’s adherence to the rule of law, adherence to international treaties, and equal protection of the legitimate rights and interests of both domestic and foreign parties. They provide reference for enterprises engaged in international trade and investment, preventing legal risks, and better safeguarding their legitimate rights and interests.
