III. Due process guarantee

Due process means that the judgments of foreign courts are obtained through fair and effective trial procedures and fully protect the litigation rights of both parties. Due process guarantees include the right of the parties to receive appropriate notification of their participation in the proceedings and the right to state their case.

(a) Foreign legislative examples

All conventions in the field of recognition and enforcement of judgments, without exception, stipulate due process guarantees as key clauses. For example, Article 9 of the Convention on Choice of Court Agreements of Hague not only stipulates that the document instituting proceedings or the equivalent document does not inform the defendant in a certain way within sufficient time to enable him to arrange his defense in the grounds of refusal of recognition or enforcement. In cases where the manner in which the requested state notifies the defendant does not conform to the basic principle of service of the relevant documents of the requested state; Moreover, it also stipulates that the specific procedure of judgment does not conform to the basic principle of procedural fairness of the requested state, which is a violation of the public policy of the requested state. Article 27 of the Lugano Convention on the Jurisdiction of Civil and Commercial Cases and Enforcement of Judgments stipulates that a judgment in absentia shall not be recognized if the defendant is unable to have sufficient time to arrange his defense due to his failure to receive the relevant prosecution documents in a timely manner. The requirement of due process is also commonly seen in the legislation of various countries to recognize and execute foreign judgments. For example, Article 118 of Japanese Civil Procedure Law stipulates that one of the conditions for the validity of a foreign court judgment is that the defendant who lost the lawsuit has accepted the necessary subpoena or service of an order (excluding public service and other similar service), or has not accepted subpoena or service but has responded to the lawsuit. The proceedings shall not violate Japan's public order and customs. Article 328 of German Code of Civil Procedure stipulates that the grounds for refusing to recognize the judgment include "The German party who is the defendant did not receive a subpoena or other order from the court and therefore did not participate in the hearing of the case.” Article 5 of the Reciprocal Enforcement of Foreign Judgment Act of Singapore stipulates that the defendant's referee debtor's failure to appear in court in the proceedings and his failure to accept service make it impossible to state his opinion in the proceedings ( even if the service is due to the law department of the original referee country), which constitutes a violation of due process.

(b) Provisions of legal and judicial interpretation in China

China's bilateral agreements on judicial assistance in civil and commercial matters and domestic legislation have made corresponding provisions on due process protection. For example, Article 18 of the Treaty on Judicial Assistance in Civil and Commercial Matters between the People's Republic of China and The Republic of Argentina stipulates that according to the law of the party that made the ruling, the party who lost the case has not been legally summoned or has not been properly represented, which constitutes the reason for refusing to recognize the judgment. Another example is the Agreement on Judicial Assistance in Civil and Criminal Matters between the People's Republic of China and The Republic of Poland, which stipulates in Article 20 that the parties concerned are deprived of the possibility of defense, or deprived of their due representation in the absence of legal capacity. Article 543 of the Interpretation of the Civil Procedure Law stipulates, “If the judgment or ruling of a foreign court is a judgment or ruling in absentia, the applicant shall also submit the supporting documents legally summoned by the foreign court, except where the judgment or ruling has clearly stated this. Any international treaty concluded or acceded to by the People’s Republic of China that provides for the submission of documents shall be handled in accordance with the provisions.” In the Provision of the Supreme People’s Court on Issues Concerning the Acceptance of Applications for Recognition of Divorce Judgment Cases in Foreign Courts by the People’s Court, lists "the judgment was made in the absence of the defendant and without legal summons “as a case of non-recognition, and requires Chinese citizens to apply for recognition of divorce judgments made by foreign courts in their absence, and to submit to the People’s Court at the same time relevant supporting documents that the foreign court that made the judgment has legally summoned him to appear in court.

(c) Issues worthy of concern in the review of the due process elements

In judicial practice, when the People’s Court examines whether foreign civil and commercial judgments protect the due process rights of the parties concerned, the following issues need to be clarified:

First, the legal standard for judging legal service. Since the bilateral mutual judicial assistance agreements signed by our country basically stipulate whether or not it constitutes a legal subpoena according to the law of the country where the judgment is made, the judgment of foreign courts that have no treaty relationship with our country should also judge whether or not it is legally served according to the law of the country where the judgment is made when applying Article 543 of the Interpretation of the Civil Procedure Law, but should not be lower than the minimum standard of legal subpoena required by the law of our country. For example, item 7 of Article 267 of our country's Civil Procedure Law stipulates that service can be confirmed by fax, email, etc. If the laws of the country where the judgment is made allow fax and e-mail service and at the same time adopt the principle of sending letters, it will conflict with the stipulation of China's Civil Procedure Law that adopts the principle of arrival. If the party concerned does not receive the notice of action and fails to participate in the action, even if it is legally served in accordance with the law of the country where the judgment was made, it shall still be deemed that the requirements for legal summons have not been met at this time.

Second, service to our country shall not violate the mandatory provisions of our country's Civil Procedure Law on service. According to the provisions of Article 277 of the Civil Procedure Law of our country, requesting and providing judicial assistance should be carried out according to treaties or diplomatic channels. Foreign embassies and consulates stationed in our country may serve documents on citizens of that country, but they may not violate the laws of our country and may not take coercive measures. Except for the aforesaid circumstances, no foreign organ or individual may serve documents within the territory of our country without the permission of our country's competent authority. When China joined the Hague Service Convention, it also explicitly opposed mail service. Therefore, the service of foreign courts to our country shall not violate the above provisions. For example, in Reply of the Supreme People's Court to zprommashimpeks National Corporation's Request for Recognition and Enforcement of the Judgment of Tashkent Economic Court of the Republic of Uzbekistan [2], regarding the application of the Higher People’s Court of Zhejiang province on the recognition and enforcement of the civil judgment made by the Tashkent economic court of the Republic of Uzbekistan, the Supreme People’s Court held that one of the reasons for the non-recognition and enforcement stipulated in Article 21, paragraph 3, of the China-Ukrainian Judicial Assistance Treaty was that "according to the law of the contracting party that made the judgment, the party who did not appear in court did not appear before the court was not legally summoned." However, according to the provisions of the Civil Procedure Law of our country, if there is a mutual judicial assistance treaty relationship between parties serving judicial documents in the territory of our country, it should be carried out in accordance with the ways stipulated in the treaty; in the absence of such treaties, they shall be effected through diplomatic channels; our country's laws clearly oppose foreign courts to send judicial documents directly to parties located in our country's territory by mail or other means. The way Uzbekistan's courts send court summons to Wenzhou Jinshi Entertainment Apparatus Manufacturing Co., Ltd. by post does not conform to the way stipulated in the treaty and undermines our country's judicial sovereignty. According to the provisions of Article 21, paragraph 5, of Public Policies in the Treaty on Criminal Judicial Assistance between the People's Republic of China and the Republic of Ukraine, the judgment in this case should not be recognized and implemented.

Third, the issue of whether legal summons should include public notices. Judging from the provisions of the extraterritorial legislation, some countries and regions have indeed excluded the default judgment served by public notices from the scope of recognition. The most representative one is the provision of Article 118 of Japanese Civil Procedure Law. The judicial practice in Taiwan region of our country also adopts the same view. In TSZ No. 1924 civil judgment in 2002 made by “the Supreme Judicial Court” in Taiwan and ZSZ No. 80 civil judgment in 2002 made by “High Court” in Taiwan,, the court both believed that according to the legislative reasons and intentions of Article 4, paragraph 1, of the Enforcement Law and Article 402, paragraph 2, of the Civil Procedure Law, the provisions of the law " have served me in the country" are not applicable to public service or supplementary service according to the literal interpretation. [3] However, Article 267 of our country's Civil Procedure Law stipulates eight service methods. When other service methods are exhausted and cannot be served, public notice service can be used to prepare service. Therefore, the author tends to believe that if the laws of the country (region) where the judgment is made allow the service of public notices and the applicable conditions are basically similar to those of our country, the legality of the service of public notices should be recognized.

Fourth, regarding the translation of litigation documents, i.e. whether the foreign court should attach the corresponding translation according to the nationality of the losing defendant. The author believes that if the service is through mutual judicial assistance, for example, according to the bilateral mutual judicial assistance treaty or Hague Service Convention, if the translation requirements stipulated in the treaty are violated, the legal service will not take effect. However, if a foreign court serves on the territory of the foreign country and the foreign law does not stipulate the translation that should be attached, the absence of the translation should still be considered as legal service in principle, but a certain amount of translation time should be reserved for the parties concerned in order to fully protect their right to express their opinions.

Finally, even if the foreign court that issued the judgment has defects in the subpoena procedure of the parties, the parties have already appeared in court to answer the lawsuit, that is, they already have the actual opportunity to reply fully. Under such circumstances, they can no longer refuse to recognize and execute the foreign judgment on the grounds that they have not been legally summoned. That is to say, both the absence of the losing party and the absence of legal summons must be met, and the losing party is deemed to have no guarantee of its litigation rights.

Iv. Understanding and Application of Principle of Reciprocity

(a) comparison of legislation in different countries

The principle of reciprocity is developed on the basis of Dutch jurist Huber's “International Comity” and emphasizes the equivalence of interests or obligations between beneficiary countries and preference-giving countries, i.e. the basic rule of maintaining the balance of treatment by giving each other equal rights or obligations. Therefore, the original intention of stipulating the principle of reciprocity is to urge countries to cooperate with each other in the recognition and enforcement of judgments so as to protect the legitimate rights and interests of the parties to a greater extent.

Examining the positions of various countries on reciprocity, we can summarize them into the following four categories: first, some countries' legislation explicitly regards reciprocity as a necessary condition for recognition and enforcement of judgments of foreign courts, that is, only when foreign courts recognize and execute judgments of domestic courts under the same circumstances can they recognize and enforce judgments of foreign courts. For example, Article 118 of Japanese Civil Procedure Law stipulates that recognition of foreign court decisions must be guaranteed by reciprocity. Austria, Spain, Italy, Venezuela, Mexico, Peru and other countries have also adopted this system. [4] The second is to put forward different requirements in different matters, different procedures or different fields. For example, Article 328 of the German Code of Civil Procedure requires reciprocity as a condition for recognition of foreign court decisions, but no reciprocity is required for non-property rights claims or decisions regarding parent-child relationships. Again, as stipulated in Chapter 11 of No. 13 Act on Hungarian International Private Law, reciprocity is only a condition for implementation and not for recognition. Thirdly, some countries do not make reciprocity a condition, but they need to carry out substantial review of foreign court decisions, such as Belgium, Bolivia, India, Greece, Haiti, Portugal, etc. Since this condition is already extremely harsh in order to examine the merits of the case, there is no need for reciprocity. [5] Fourth, some countries do not require the principle of reciprocity or gradually abandon the requirement of the principle of reciprocity. For example, the U.S. Supreme Court refused to recognize and enforce the French judgment on the grounds of non-existence of reciprocity in Hilton v. Guyot, but the Uniform Foreign Money-Judgments Recognition Act adopted by most States later no longer required reciprocity. [6] In the U.S. Federal Court, Central California District Court, recognizing and executing Hubei High Court's judgment on “Central California District Court of the Federal Court of the United States recognizing and enforcing judgment made by Hubei Higher People’s Court on Hubei Gezhouba Sanlian Industrial Co., Ltd., etc. charging American Robinson Helicopter Company, Inc. with infringement disputes” the court made it clear that the Uniform Foreign Money-Judgments Recognition Act does not stipulate that there must be a reciprocal relationship before foreign judgments can be executed. Judging from the application of the law, there is no evidence to show that there is such a requirement. [7] It can be seen that the principle of reciprocity differs greatly in the legislation and practice of various countries.

(b) The evolution of the principle of reciprocity in China's judicial practice

Articles 281 and 282 of our country's Civil Procedure Law both stipulate the principle of reciprocity as a precondition for the recognition and enforcement of foreign court judgments, but the law does not clearly explain the principle of reciprocity. Therefore, there is a great controversy about how to understand and grasp the principle of reciprocity in judicial practice. In the Case on the Application of Gomi Akira (A Japanese Citizen) to Chinese Court for Recognition and Enforcement of Japanese Judicial Decision, the Supreme People’s Court issued a reply in June 1995 on whether the People’s Court of our country should recognize and enforce the judgment of Japanese court with creditor's rights and debts, [8] believing that China and Japan have not concluded or participated in international treaties that mutually recognize and implement the judgment and ruling of the court and have not established corresponding reciprocal relations. According to the provisions of the civil procedure law, the People’s Court should not recognize and enforce the judgment of the Japanese court. Afterwards, the judicial practice dealt with the Request for Instructions Re Application of DNT France Power Engine Co., Ltd. for Recognition and Enforcement of Australian Court Judgment with reference to the spirit of the reply. [9] Although judicial practice does not require reciprocity as a prerequisite for the recognition of divorce judgments of foreign courts, overall, our country takes a conservative factual reciprocity position on the principle of reciprocity. If there is no precedent for recognition and enforcement of court decisions of the other country in judicial practice between the two countries, it is determined that no corresponding reciprocity relationship has been established. This not only makes foreign civil and commercial judgments difficult to be recognized and enforced by our courts, but also easily leads to the phenomenon that foreign courts refuse to recognize our court judgments and a large number of cross-border parallel lawsuits on the grounds of reciprocity. For example, the Japanese court accepted the supreme court's reply in the Gomi Akira case in which the parties provided evidence in cases such as the Case of “Xia Shuqin's Application for Execution of the Judgment of the Nanjing Xuanwu District Court” and found that the mutual guarantee of judgment recognition between China and Japan was not satisfied and refused to recognize and execute the judgment of the Chinese court. [10] Therefore, under the background of the deepening of the Belt and Road Initiative, it is necessary to reasonably determine the applicable standards of the principle of reciprocity and to promote cooperation in the cross-border recognition and enforcement of judgments between countries.

On June 16, 2015, the Supreme People’s Court issued Several Opinions of the Supreme People’s Court on Providing Judicial Services and Safeguards for the Construction of the “Belt and Road” by People’s Courts, explicitly proposing to strengthen judicial assistance. Under the condition that some countries along the line have not yet concluded judicial assistance agreements with China, according to the intention of international judicial cooperation exchange and the commitment of the other country to give judicial mutual benefit to China, the court of our country can give judicial assistance to the other country's parties in advance. This shows the new trend of our country's judicial practice in advocating the adoption of positive and loose standards for the determination of mutual benefit relations.

On June 8, 2017, the 2nd China-ASEAN Justice Forum held in Nanning passed the Nanning Statement, which stipulated in item 7, “cross-border transactions and investments in the region need to be guaranteed by the mutual recognition and enforcement mechanisms of appropriate judgments of various countries. To the extent permitted by domestic laws, participating courts will interpret domestic laws in good faith, reduce unnecessary parallel lawsuits, and consider appropriate promotion of mutual recognition and enforcement of civil and commercial judgments in various countries. Countries that have not yet concluded international treaties on the recognition and enforcement of foreign civil and commercial judgments can presume that there is a reciprocal relationship with the other country if there is no precedent for the courts of the other country to refuse to recognize and execute their own civil and commercial judgments on the grounds of reciprocity in the judicial process of recognizing and executing the civil and commercial judgments of the other country, to the extent permitted by their domestic laws.” The consensus adopts the principle of presumption of reciprocity. As long as there is no evidence to the contrary that ASEAN member states have refused to recognize and implement the precedent of Chinese court judgment on the grounds of reciprocity, it can be presumed that there is a reciprocal relationship between the two countries. This is a major breakthrough in the practice of " real existence and mutual benefit" in the past judicial practice, that is, the practice of requiring the identification of laws or facts that foreign courts have recognized and implemented Chinese judgments. It has strongly promoted the new development of the principle of mutual benefit in China's judicial practice. [11] Nanjing Intermediate People’s Court and Wuhan Intermediate People’s Court recognized and executed commercial judgments of Singapore courts and us courts in late 2016 and June 2017 respectively, further enriching the judicial practice of the principle of reciprocity. [12]

(3) Reflections on Developing Principle of Reciprocity

It should be noted that although the international community has a tendency to cancel or restrict the application of reciprocity legislation, the requirements of our country's legislation on the principle of reciprocity have not changed, and some countries along the Belt and Road line refuse to recognize any foreign court judgment on the grounds of national sovereignty, and the time and conditions for our country's laws to abandon the requirement of reciprocity are not ripe either. [13] When formulating relevant legislation or judicial interpretations in the future, the aim should be to expand international judicial cooperation, enhance judicial comity, and actively promote reciprocal relations. The principle of reciprocity should be more pragmatic and reasonable, with flexible space defined, and the inherent incentive and support functions of the principle of reciprocity should be actively brought into play, so as to build a good atmosphere for mutual recognition and enforcement of civil and commercial judgments between countries. Therefore, the author puts forward the following suggestions:

One is to clearly establish legal reciprocity standards through legislation or judicial interpretation. That is, according to the law of the country where the judgment was made, the possibility of recognition and enforcement of the judgment of the court in our country was judged, thus confirming the existence of reciprocal relations and not requiring the existence of factual reciprocity between the two countries. At the same time, it should be noted that in the absence of an international treaty, the conditions for recognition and enforcement of foreign court decisions between the two countries are completely the same, which is also illogical and will greatly reduce the possibility of recognition of foreign court decisions. Therefore, it is suggested to adopt the “theory of material equal conditions”,, that is, the two countries' laws have the same important conditions for the recognition and enforcement of foreign court judgments, that is, they meet the requirements of reciprocal relations. Or adopt the “theory of reverse presumption”, as long as there is no situation where our judgment cannot be executed or is difficult to be executed within the territory of the country where the judgment is made according to the law of the country where the judgment is made, it shall be deemed that there is a reciprocal relationship between the two parties. However, if the judgment-making country regards the existence of relevant treaties as a necessary condition for the recognition and enforcement of foreign court judgments, and China does not establish treaty relations with that country; Or the state making the judgment does not execute any foreign judgment; Or is it that the judgment-making country carries out strict substantive examination of the judgment of foreign courts. If the judgment of our country cannot or cannot be recognized and executed within the territory of the judgment-making country, it should be concluded that there is no reciprocal relationship between the two countries.

The second is to relax the forms and channels for establishing reciprocal relations. Taking the 1921 Reciprocal Enforcement of Commonwealth Judgments Act as an example, Britain adopted domestic legislation to grant reciprocal treatment in recognition and execution of judgments in other Commonwealth countries and applied convenient registration procedures. Subsequently, other common law countries including Singapore followed suit one after another. In order to apply the reciprocal relationship required by the registration procedure, some countries have established national lists through legislation, while Singapore is made by Singapore's administrative organ, the attorney general, and it can change or revoke the previous decision to have reciprocal relationship. This shows that the ways to establish reciprocal relations are very diverse. For the first time in Nanning Statement, our country has tried to establish the presumed reciprocal relationship with ASEAN countries under certain conditions by means of judicial consensus. Besides signing the mutual judicial assistance treaty in the future, we can also further broaden the ways to establish the reciprocal relationship, including making reciprocal commitments through diplomatic channels, and reaching judicial memorandums of understanding or consensus with our country on mutual recognition and execution of judgments, etc.

The third is to determine the application of the principle of reciprocity and its exceptions according to different categories of judgments. The Supreme People’s Court pointed out in the Provisions of the Supreme People’s Court on the Procedural Issues Concerning Application by Chinese Citizens for Recognition of Divorce Judgments Foreign Courts that for divorce judgments of foreign courts that have not concluded a mutual judicial assistance treaty with China, Chinese litigants can apply to Chinese courts for recognition and do not make it conditional on the existence of reciprocal relations between the foreign country and China, thus establishing an exception to the principle of reciprocity. In addition to the divorce judgment, for the confirmation and judgment concerning the civil rights and legal capacity of citizens and enterprise legal persons, as well as the non-appeal judgment concerning the adoption relationship and guardianship relationship, we can also consider clearly excluding the application of the principle of reciprocity through legislative or judicial interpretation, that is, adding the exception of the principle of reciprocity in the future. In addition, for some countries that only recognize or do not recognize specific types of judgments in our country, for example, those that only recognize money payment judgments or those that do not recognize judgments in absentia in our country, our country can also apply the principle of reciprocity and recognize or do not recognize specific types of judgments correspondingly.

The fourth is to clarify the burden of proof of the principle of reciprocity. Referring to Article 10 of the Law of the People's Republic of China on Choice of Law for Foreign-related Civil Relationships, this Article defines the responsibility for ascertaining foreign laws applicable to foreign-related civil relations as the thinking of the court for ascertaining the responsibility. In principle, reciprocal relations should be ascertained by the People’s Court ex officio, but the People’s Court may require the parties concerned to provide foreign laws. Due to the continuous development of case law and the complexity of the determination of foreign judicial precedents, it is more appropriate to use the precedent of recognizing or not recognizing domestic court decisions as a comprehensive reference factor for determining reciprocal relations. For example, in the 2012 the Case of Israel Telaviv District Court Recognition of Russian Judgment, it believed that although there is a precedent for Russian courts to refuse to recognize Israel's judgment, the precedent is not decisive. According to the development of Russian case law, if Israel can provide reciprocal proof, the Israeli judgment is likely to be recognized and executed in Russia in the future. [14] Israel's practical judicial practice is worthy of our country's reference in determining the standard of proof of reciprocity.

To sum up, the system of recognizing and enforcing foreign civil and commercial judgments is not only a necessary basis to establish a fair, efficient, authoritative, open and inclusive international judicial profile for China, but also an important safeguard to protect the rights and interests of the parties involved and enhance international judicial cooperation. Therefore, the theoretical and practical circles shall research the problems including the above ones, judgment finality, public policy and the connection between the Convention on Choice of Court Agreements of Hague (once approved) and domestic laws in depth, and reach consensus as soon as possible to provide intellectual support and empirical evidence for the formulation of relevant legislative and judicial interpretation.

[1] Xuan Zengyi, Research on the Recognition and Enforcement of Judgments between Countries, China University of Political Science and Law Press, 2009, P257.

[2] Reply of Supreme People’s Court [2014] MSTZ No. 9 (March 6, 2014)

[3] Cited from Tang Minbao, Recognition of Foreign Civil Judgments, doctoral dissertation, Department of Law, National Chengchi University, March 29, 2010, P157..

[4] Xu Hong, International Judicial Assistance in Civil Matters, Wuhan University Press, 1996, P280

[5] Li Shuangyuan, Xie Shisong, International Civil Procedure: An Introduction, Wuhan University Press, 1990, P503.

[6] Wang Keyu, An Analysis of Due Process of Law Under the Perspective of Recognition and Enforcement of Foreign Judgment, Tribune of Political Science and Law, 2009, Issue 1.

[7] Ye Lu, et al., The First Case of Chinese Court Judgment Recognized and Enforced in the U.S., www.kingandwood.com, visited on November 30, 2017.

[8] Reply of Supreme People’s Court [1995] MTZ No. 17

[9] Letter of Reply on Request for Instructions Regarding the Application of DNT France Power Engine Co., Ltd. for Recognition and Enforcement of Australian Court Judgment of Supreme People’s Court ([2006] MSTZ No. 45).

[10] Feng Xi, A Study on the Recognition and Enforcement of Chinese Judgments Concerning Property Law Matters by Japanese Courts, Wuhan University International Law Review, 2017, Issue 3.

[11] Zhang Yongjian, New Trends in the Development of the Practice of the Principle of Reciprocity under the Background of “Belt and Road”, People’s Court Daily, June 20, 2017, V2.

[12] Civil Ruling Paper of Jiangsu Nanjing Intermediate People’s Court (2016) S01XWR No. 3, and Civil Ruling Paper of Hubei Wuhan Intermediate People’s Court (2015) EWHZSWCZ No. 00026

[13] Du Tao, Presumed Reciprocity Promoting the Litigation Dispute Settlement along the “Belt and Road”, People’s Court Daily, June 15, 2017, V2.

[14] “Israeli Court recognizes a Russian Judgment on the Basis of Reciprocity”, www.cisarbitration.com/2013/03/01/Israeli-Court-recognizes-a-Russian-Judgment-on-the-Basis-of-Reciprocity, visited on November 30, 2017.