Longtime friend of Letters Blogatory Jie Huang, senior lecturer in the University of New South Wales Faculty of Law, has a short piece on cases in which non-US courts have considered what deference to give to Chinese interpretations of Chinese law. This is obviously of interest in light of the Animal Science Products case. The two cases she discusses may not be that comparable, as she notes, since one is a Hong Kong case and the other is a Singapore case addressing the status of Macao. In both cases, there would seem to be clearer grounds for deference to China’s views. My own take on the overarching issue is that particularly when the foreign state has some outcome in the case (e.g., when it involves a state-owned enterprise), or when the foreign state is a party, it would be a mistake to defer as a matter of course to the foreign state’s view, but that the foreign state’s view may of course be persuasive. Thanks, Jeanne, for this post!

The recently argued U.S. Supreme Court case, Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd., concerns the weight to be given to the Chinese Government’s interpretation of Chinese law. On Page 58 of the oral argument transcript, Justices Kagan and Ginsburg asked how about other countries deal with formal submissions from the Chinese government. There are two examples. 

One is Hong Kong. In TNB Fuel Services SDN BHD v China National Coal Group Corp. ([2017] HKCFI 1016), the issue was whether the defendant, a state-owned enterprise, was protected by Chinese absolute sovereignty immunity under Chinese law. The court deferred to an official letter provided by the Hong Kong and Macao Affairs Office of the State Department in Mainland China. The Office stated that there was no absolute sovereignty immunity to Chinese state-owned enterprises carrying out commercial activities. The Court adopted this opinion without second inquiry (para 14 of the judgment). After considering a bunch of other factors, the court ruled against the defendant.
 
The other is Singapore. In Sanum v. Laos ([2016] SGCA 57), the issue was whether the China-Laos Bilateral Investment Treaty (BIT) would be applied to the Macao Special Administrative Region. The Chinese embassy in Laos and the Chinese Ministry of Foreign Affairs provided diplomatic announcements indicating that the BIT should not be applied to Macao. However, the Singapore Appellate Court held that China’s announcements were inadmissible and, even if admitted, they did not change the applicability of the BIT to Macau. This is partly because, before the dispute with Sanum crystalized, no evidence showed that China and Laos had agreed that the BIT should not be applied to Macau. Therefore, ’s diplomatic announcements could not be retroactively applied to a previous dispute. For a more detailed discussion, please see pages 16-20 of my article.

TNB Fuel Services and Sanum share important similarities with Animal Science Products, because the key issues are all about the proving of Chinese law. In the three cases, Chinese government all provided formal submissions to explain the meaning and the applicability of Chinese law. However, TNB Fuel Services and Sanum can also be distinguished from Animal Science Products, because comity plays no role in the former two cases. TNB Fuel Services concerned sovereign immunity, which is an issue on which Hong Kong courts must follow China’s practices. This is established by Democratic Republic of the Congo v. FG Hemisphere Associates (FACV Nos. 5, 6 & 7 of 2010). Sanum was a case seeking to set aside an investment arbitration award, so the Court of Appeal of Singapore did not have to consider comity between Singapore and China. In contrast, in Animal Science Products, the Second Circuit elaborated the importance of comity between the U.S. and China. Therefore, Animal Science Products should not be considered as a technical case of proving foreign laws. The U.S. Supreme Court may consider deferring to the submissions of the Chinese government to some extent, but requiring judges to decide whether the Chinese Government’s submission is temporally consistent with its position on the relevant issue of Chinese law.