Remarkable results in resolving disputes related to the Belt and Road
Since the launch of the “the Belt and Road” initiative, the People’s Court has adhered to the principle of joint consultation, joint construction and sharing, adhered to fairness, efficiency and convenience, adhered to respect for party autonomy, adhered to the diversification of dispute resolution, and achieved remarkable results in resolving disputes related to the “the Belt and Road” construction.
The 12 typical cases released this time, involving multiple types of foreign-related commercial disputes such as international sales of goods, independent letters of guarantee, letters of credit, audit tort compensation, insurer subrogation, financial derivatives transactions, legal service contracts, equity transfer, as well as cases of recognition and enforcement of Hong Kong arbitration awards, recognition and enforcement of foreign civil judgments, are common cases in the construction of the “the Belt and Road”, The legal disputes involved are highly representative. The people’s courts have provided clear responses to difficult and complex issues in the trial of these cases, which has played a good guiding role in unifying judgment standards and improving trial rules. These typical cases have the following characteristics:
One is to create a high-quality legal business environment and equally protect the legitimate rights and interests of domestic and foreign investors. Reaffirm the institutional value of the independent guarantee letter as “payment on demand”, clarify that the payment obligation of the guarantee letter is not affected by the defense rights under the underlying transaction, and clarify the criteria for determining “good faith payment” under the counter guarantee letter; Clarify the theoretical basis of the duty of care and tort liability of accounting firms in auditing, and emphasize that people’s courts have no right to expand the scope of identifying interested parties beyond the provisions of laws and judicial interpretations; Accurately defining the scope of legal service contracts and the boundaries of commercial risks, pointing out that law firms provide legal services for equity transactions and have no obligation to review whether the engineering contracts signed by the target company before the equity transaction are fair and reasonable, and reminding Chinese enterprises to further enhance their legal awareness and risk control capabilities in the process of “going out”.
The second is to maintain a fair and competitive market order, and unify the judgment scale. Clarify controversial issues such as the determination of matching claims and fraud in foreign-related independent guarantee letter disputes, and explain that the beneficiary of the counter guarantee letter may conceal facts and falsely submit surface matching claim requests without obtaining payment request rights, which may constitute fraud due to the abuse of payment request rights; Emphasize the independent review responsibility of the negotiating bank under the letter of credit transaction, and establish the judgment criteria for whether the negotiating bank’s negotiation behavior is in good faith; Clarify the differences between repurchase commercial arrangements and equity transfer guarantees in equity transfer, and conduct a comprehensive analysis of the purpose of the contract, the subordinate characteristics of the transfer guarantee, and whether the shareholder rights of the transferee are restricted. The selected typical cases fully demonstrate the fundamental, stable, and long-term protection role of the rule of law, which is of great significance for effectively protecting the market expectations of domestic and foreign investors and creating a market-oriented, legal, and international business environment.
The third is to improve the system of rules for the application of foreign-related commercial laws and accurately apply applicable laws. Accurately understand and apply the invalidation clause in the United Nations Convention on Contracts for the International Sale of Goods, defining the period for fundamental breach of contract and the exercise of the right to terminate; According to the provisions of the Vienna Convention on the Law of Treaties, accurately interpret the Montreal Convention and confirm that the two-year statute of limitations stipulated in Article 35 of the Montreal Convention is applicable to the provisions of the law of the forum on the suspension and interruption of statute of limitations; Fully follow the inherent characteristics and international practices of financial derivative transactions, and confirm the nature and effectiveness of early termination netting clauses in oil swap contract disputes. The typical cases selected this time reflect the judicial stance of the People’s Court, which has always adhered to respecting the autonomy of the parties, accurately applying applicable law, adhering to international treaties, and respecting international practices.
The fourth is to strengthen international and interregional judicial assistance and cooperation, and promote cross-border and cross regional recognition, recognition, and enforcement of civil and commercial judgments and arbitration awards. According to the actual circumstances of the case where the person subjected to enforcement has transferred the seized property, initiated a separate lawsuit to confirm the rights of the seized property, and attempted to evade enforcement, the litigation request of the transferee’s objection to enforcement shall be rejected in accordance with the law, ensuring the enforcement of foreign arbitration awards; According to the arrangement between the two regions, recognize and enforce Hong Kong arbitration awards, while ensuring the due process rights of parties, strongly support the construction of the Asia Pacific International Legal and Dispute Resolution Service Center in Hong Kong; Applying the principle of reciprocity to recognize the effectiveness of civil and commercial judgments in Singapore courts, and implementing the spirit of the Memorandum of Guidance on the Recognition and Enforcement of Money Judgments in China and Singapore.
The release of the fourth batch of typical cases related to the “the Belt and Road” construction is not only a concentrated demonstration of the achievements of the people’s courts in ensuring high-quality service and jointly building the “the Belt and Road”, but also an important measure to deeply implement the strategy of high-quality foreign-related trials. We hope that the release of this typical case will not only help to accurately extract legal rules from the judgment, play a guiding and exemplary role in the handling of similar cases, but also encourage courts at all levels to continuously deepen their high-quality strategy, improve the quality and efficiency of foreign-related civil and commercial trials, and continuously improve international credibility and influence.