In today’s article of the day, Conflicts Between Civil Law and Common Law in Judgment Recognition and Enforcement: When is the Finality Dispute Final?, 29 Wis. Int’l L. J. 70 (2011), Professor Jie Huang, of the Shanghai Institute of Foreign Trade’s School of Law, examines the difficulties involved in recognition and enforcement of Mainland Chinese judgments in Hong Kong. The culture clash is fascinating.
The basic problem, from the Mainland Chinese perspective, is that under Chinese law on the Mainland, there is a procedure for retrying cases even after they have gone to judgment. The basic idea is that the court, on its own motion or at the request of the procuratorate (either the Supreme People’s Procuratorate or a local people’s procuratorate) can retry the case even if the judgment is final. I don’t reprint the relevant sections of the law here, but you can find them in Articles 177 to 190 of the PRC Civil Procedure Law.
But the existence of this procedure causes problems for Mainland Chinese judgment creditors seeking recognition and enforcement of their judgments in Hong Kong, where finality of the judgment is a prerequisite to recognition and enforcement. In Chiyu Banking Corp. v. Chan Tin Kwun, [1996] 2 H.K.L.R. 395 (H.C.), the court refused to recognize and enforce a Mainland judgment where the defendant had asked the procuratorate to seek a retrial, and it was possible, under the provisions of Chinese law cited above, that the case would be retried. Later Hong Kong cases extend the principle to cases where a party has not asked the procuratorate to seek a retrial, on the grounds that there is no time limit on making such a request and the procuratorate can act at any time.
Huang attacks Chiyu on both doctrinal grounds and empirical grounds. On the empirical side, Huang presents statistics showing that only a vanishingly small percentage of cases are accepted for retrial in the first place (1% or less in recent years) and that substantially more than half of the cases that were retried were affirmed. Why should the Hong Kong courts, he suggests, treat all Mainland Chinese judgments as non-final when in practice a reversal after a retrial almost never happens?
On the doctrinal side, Huang asserts that Chiyu is based on an English case, Nouvion v. Freeman, that denied recognition and enforcement to a Spanish judgment that was summary in nature and that was not res judicata even under Spanish law. But under Chinese law, the mere fact that a request for a retrial could be made, or even that one had been made, does not render a judgment unenforceable. Only the actual grant of a retrial suspends enforcement. Huang also points out that the Hong Kong courts will recognize and enforce United States judgments, even though under Fed. R. Civ. P. 60, the court entering the judgment may in certain circumstances vacate it even after the time to appeal has expired.
I think there is much sense to Huang’s view on this, though I do think the reliance on the treatment given to US judgments may not be as straightforward as the article suggests. It’s true that Rule 60(b) provides various grounds for vacating a judgment. But some of those grounds must be asserted within a limited time, see Fed. R. Civ. P. 60(b)(1)-(3), and others (e.g., the judgment is void, Rule 60(b)(4), or the judgment has been satisfied or discharged, Rule 60(b)(5)) are grounds that would, in US law, permit a court to refuse recognition and enforcement regardless whether the court issuing the judgment in the first instance had power to vacate the judgment. (In other words, the Full Faith and Credit Clause, which Huang cites, does not require a state to recognize or enforce a void judgment of a sister state, or to enforce a judgment that has been satisfied). Still, Rule 60(b)(6) provides a residual basis, without a strict time limit, for vacating judgments, so Huang is right to point out a disparity between the Hong Kong treatment of US judgment and the Hong Kong treatment of Mainland Chinese judgments.
I’m surprised by this article since I thought that the issue of finality had been settled legislatively. The Mainland Judgments (Reciprocal Enforcement) Bill passed in 2008 implements ‘The Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong Special Administrative Region Pursuant to Choice of Court Agreements between Parties Concerned’ signed in 2006. Under those ordinances a judgment that has been affirmed by certain courts is considered “final.”
Also the issue of “final judgment” is not a civil/common law issue. The provision that allows a case to be reopened is uniquely PRC.
Thanks for the comment, Twofish. I don’t know the answer to your point. I’ll try to correspond with the author of the article and see whether I can get a clarification, and I’ll do a little digging. I’ll leave a comment here if I learn anything. Simply looking at the title of the law your cite, is it possible it relates only to cases where the parties have entered into a choice of court agreement.
I agree with you that the PRC provisions on reopening cases seems unique. The author analogizes it with Rule 60 of the Federal Rules of Civil Procedure, though for the reasons I give in the post, I am not sure that this is a successful analogy.
Twofish, as I suspected, the statute applies only when the parties have chosen a Mainland court as the forum. See in particular section 5 of the statute, and the definitions of “chosen court” and “designated court” in section 2. So the statute, it seems to me, does not apply generally to Mainland judgments. I’ll be curious to know your thoughts.