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University of Otago Law Theses and Dissertations |
Last Updated: 14 April 2024
Embracing Opacity: Re-evaluating the Enforcement of Judgments from the Chinese Legal System
Jaiden Tucker
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (with Honours) at the University of Otago - Te Whare Wānanga o Ōtākou.
6 October 2023
Acknowledgments
I would firstly like to thank my supervisor, Associate Professor Maria Hook. Without your guidance and support, this dissertation would not have been possible.
Thanks to Mum, Josh, and Georgia for all the time you gave up in proofreading and the valuable insight you gave me.
Finally, thanks to all my friends and family who have made my time at Otago so rewarding.
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I Introduction
When a New Zealand court is given a foreign judgment, it must assess whether it should enforce it domestically. Let’s say a New Zealand court is presented with a judgment with no obvious defects from an authoritarian legal system. This authoritarian legal system often has politically motivated decision-making in their courts, and it is difficult to identify whether legitimate reasoning is used in any individual case. The foreign judgment is in favour of a subsidiary of a state-owned enterprise from the authoritarian state, providing a potential avenue for preferential reasoning. Should a New Zealand court enforce this judgment? This is the situation currently before the New Zealand High Court and this dissertation aims to provide an answer.1
The rapidly changing global environment in the 21st century has created an inevitable collision within private international law. Globalisation has exponentially increased the incidence of transnational commerce, and subsequently, cross-border litigation when things go wrong.2 Furthermore, increasing economic interdependence between western liberal states and non-democratic states from the global south has introduced a new variable into these interactions.3 As the world has become more connected, courts have increasingly been asked to consider the competency of foreign courts from illiberal states and whether their decisions should be enforced domestically. When the world’s largest economy is simultaneously one of the least democratic states, the likelihood of this issue coming to a head is high and the consequences of the judicial response are great.4 This course of events has begun to unfold, with the New York Supreme Court and the New
1 Hebei Huaneng Industrial Development Co Ltd v Shi [2020] NZHC 2992.
2 Andrew Bell “The Future of Private International Law in Australia” (2012) 19 AJIL 11 at 11.
3 For China, see Joseph S Nye “Power and Interdependence with China” (2020) 43 TWQ 7; more generally, see Mathilde Chatin and Giulio M Gallarotti “The BRICS and soft power: an introduction” (2016) 9 J Political Power 335.
4 When measured by PPP – see International Monetary Fund World Economic Outlook Database April 2023 <imf.org>. When ranked by nominal GDP, China is the second largest behind the USA but Chinese nominal GDP is more prone to fluctuations in light of currency volatility.
Zealand High Court both being asked to contemplate whether defects in the Chinese legal system should prevent the enforcement of judgments in the early 2020s.5
To assess whether defects in opaque legal systems, such as the Chinese system, should prevent enforcement of judgments, this dissertation asks three questions:
(a) Firstly, when does the New Zealand legal system refuse to enforce foreign judgments? This part assesses the current position for when the finality of litigation should be trumped by considerations of public policy. By assessing this, the balance between the contrasting principles of comity and fairness can be shown, creating a standard for enforcement against which authoritarian states can be compared.
(b) Secondly, why are there practical failings in the present approach to enforcement in opaque legal systems? To answer this question, this part describes the nature of the Chinese legal system to demonstrate how manufactured opacity is a central tenet of the system. It then turns to the legal response, both in New Zealand and elsewhere, to identify two key failings in how courts have treated the Chinese legal system. It finds that courts struggle with poor evidence and are reluctant to fully engage with these difficulties.
(c) Finally, is there an alternate way to approach enforcement which would better grapple with the problems identified in the previous parts? In doing so, this part asks whether a new approach would better align with the practical context and principled basis for enforcement.
Fundamentally, this dissertation claims that, due to practical issues, the application of private international law rules to opaque legal systems fails to uphold the core principles of enforcement. As such, the approach should be reassessed.
To quickly contextualise this question of enforcement, there are three things to note about the scope of this dissertation. Firstly, as a primer for those who are not well acquainted
5 Hebei Huaneng Industrial Development Co Ltd v Shi, above n 1; Shanghai Yongrun Investment Mgmt Co v Kashi Galaxy Venture Capital Co No 156328/2020 2021 WL 1716424 (NY Sup Ct Apr 30 2021).
with private international law, this area of law responds to situations where two legal systems interact over matters of private law.6 Private international law, while having international elements, is primarily a creature of domestic law.7 This means that the core concern of this dissertation is domestic New Zealand law and its subsequent application. Secondly, there are three primary categories which private international law deals with: jurisdiction, which asks which court should hear a dispute; choice of law, which refers to which country’s law should govern the dispute; and the recognition and enforcement of foreign judgments (collectively REFJ), which determines how domestic courts should treat foreign judgments.8 The topic of this dissertation is solely within REFJ. Thirdly, there are differing approaches to money judgments and non-money judgments. This dissertation confines itself to the former, which is defined as a judgment by a court for a fixed sum of money, such as an award of damages in a contractual dispute.9
II A Framework for Enforcing Foreign Judgments
When a court decides whether or not to enforce a foreign judgment, they must balance two fundamental principles: the finality of litigation, where courts want to respect that the foreign judgments in front of them are already decided; and public policy, where the courts exercise their role as a gatekeeper of rights. This part assesses when courts decide that the importance of public policy overrides the finality of litigation and, ultimately, asks where courts are striking the balance between these two principles. Through this analysis, this part creates a standard against which the approach in opaque legal systems can be measured.
6 Maria Hook and Jack Wass The Conflict of Laws in New Zealand (LexisNexis NZ Limited, Wellington, 2020) at 2.
7 Hook and Wass The Conflict of Laws in New Zealand, above n 6, at 2.
8 Hook and Wass The Conflict of Laws in New Zealand, above n 6, at 3.
9 Hook and Wass The Conflict of Laws in New Zealand, above n 6, at 388-389.
A Legal Regime
New Zealand’s approach to enforcement of judgments is dictated by four different regimes.10 Unless a specific alternate statutory approach applies; New Zealand uses a common law regime.11 For China and most authoritarian states, this common law regime would be the applicable pathway.12
When given a foreign judgment, the common law regime has five requirements for recognition: the judgment was rendered by a court, it was between the same parties, the court had jurisdiction, the decision was final, and the decision was on the merits.13 For enforcement of a money judgment to occur, it must be recognised and be for a fixed sum of money.14 The common law regime also provides exceptions to enforcement.15 These are fraud, breaching natural justice, requiring enforcement of a foreign public law, incompatibility with a prior judgment and finally, being contrary to public policy, which has been conceptualised as the “organising principle”.16 Except for the purpose of investigating whether an exception applies, it is a well-recognised principle that courts should not enquire into the merits of the decision.17
The public policy exception can be amorphous, however, the best exposition of principles in New Zealand is from the leading authority of Reeves v One World Challenge LLC.18 This addressed a question of whether damages were available for contractual breach of a confidentiality agreement when disclosing theft of intellectual property. In Reeves, the
10 Trans-Tasman Proceedings Act 2010; Reciprocal Enforcement of Judgments Act 1934; Senior Courts Act 2016; and Hook and Wass The Conflict of Laws in New Zealand, above n 6, at 343.
11 Hook and Wass The Conflict of Laws in New Zealand, above n 6, at 343.
12 It should be noted that some states which are considered to be either authoritarian or hybrid regimes would come under the Reciprocal Enforcement of Judgments Act 1934, such as Cameroon, Fiji, Hong Kong, Malaysia, Nigeria, Pakistan, Papua New Guinea, and Eswatini. The Reciprocal Enforcement of Judgments Act has different requirements for enforcement, such as reciprocity, however, it codifies the public policy defence in section 6. The approach this dissertation takes, considering when public policy overrides enforcement, would broadly be applicable to these contexts as well.
13 Von Wyl v Engeler [1998] 3 NZLR 416 (CA) at 420-421; and Hook and Wass The Conflict of Laws in New Zealand, above n 6, at 345.
14 Hook and Wass The Conflict of Laws in New Zealand, above n 6, at 388.
15 Hook and Wass The Conflict of Laws in New Zealand, above n 6, at 405.
16 Hook and Wass The Conflict of Laws in New Zealand, above n 6, at 405; and Ross v Ross [2010] NZCA 447, [2011] NZAR 30 at [50].
17 Godard v Gray (1870) LR 6 QB 139 at 150.
18 Reeves v One World Challenge LLC [2005] NZCA 314; [2006] 2 NZLR 184 (CA).
Court of Appeal adopted the Canadian test laid down in Beals v Saldanha.19 This asks whether something would shock the morality or conscience of the average citizen.20 In doing so, the Court of Appeal rejected submissions that the test should be at a lower standard, affirming that the public policy exception is only invoked in rare circumstances.21 Specifically, the majority affirmed the reasoning taken in the High Court, where the importance of not disturbing the finality of litigation was noted.22 The court differed on the factual analysis of this test, with the majority agreeing that the imposition of damages for the breach of the confidentiality agreement would be insufficient to shock the conscience of the average citizen.23 Ultimately, by holding a high standard for disturbing the finality of litigation, this demonstrates that the public policy centrally protects core normative principles.
While this high bar demonstrates that the public policy inquiry is about protecting crucial principles, this provides little insight as to what these principles might be. This paragraph will demonstrate that the core of the exception is about protecting the sanctity of the New Zealand judicial system. Edelman and Salinger say that “fundamental principles of justice are principles that are so fundamental, or so basic, that any legal system would be unjust without them.”24 They continue to explain that “the legal principles which are fundamental to systems of law can usually be identified by reference to rights or freedoms to which a legal system gives direct effect.”25 This aligns with Briggs’ view that this could look like “English notions of freedom, equality, and respect”.26 Edelmen and Salinger’s approach can further be applied to the scenario of enforcement by assessing the issues which give rise to unique exceptions. As Hook and Wass note, the various exceptions all stem from public policy.27 Therefore, the situations when they arise can provide further insight on the kinds of moral hazard which prevents enforcement. As
19 Reeves v One World Challenge LLC, above n 18, at [50]-[51].
20 Beals v Saldanha [2003] SCR 416 at [77].
21 Reeves v One World Challenge LLC, above n 18, at [50]-[67].
22 Reeves v One World Challenge LLC, above n 18, at [43], [66].
23 Reeves v One World Challenge LLC, above n 18, at [76]-[80], [100]-[106].
24 James Edelman and Madeleine Salinger “Comity in Private International Law and Fundamental Principles of Justice” in A Conflict Of Laws Companion (Oxford University Press, 2021) 325 at 341. 25 At 346.
26 Adrian Briggs “Foreign Judgments” in The Conflict of Laws (Oxford University Press, 2019) 126 at 147.
27 Hook and Wass The Conflict of Laws in New Zealand, above n 6, at 405.
noted above, the exceptions are fraud, natural justice, enforcement of a foreign public judgment and incompatibility with a prior judgment.28 These all uphold the centrality of justice. Anything which violates one of these categories would undermine the fairness of the New Zealand legal system. Collectively, this analysis indicates that the core of the exception is about upholding vital principles which are central to the maintenance and sanctity of the New Zealand judicial system.
B Principled Basis
The high threshold for the public policy exception demonstrates that the balance between the finality of litigation and the public policy exception is delicate. The interaction between these principles was perhaps best summarised by the Ontario Court of Appeal in Lloyds, who claimed: “the role of the public policy concept was left, in effect, as a safety valve to prevent anomalies. (emphasis added)”29 This is a particularly apt metaphor and gives an insight into the competing policy values which are at play: comity, efficiency and fairness. This section will assess these various principles, demonstrating that while a range of factors act as an impetus in favour of enforcement, it is fairness alone that helps determine when exceptions should apply.
Broadly, comity refers to the principle of mutual respect between courts of foreign countries. This definition is deliberately imprecise due to the difficulty in singularly defining a term which has stood for many different things over time. Initially, comity was the doctrine which dictated the path of international law.30 Rooted in the exposition of new-found concepts of sovereignty, seventeenth century jurists placed deference on a pedestal. Justice Gray’s often-cited statement from 1895 in Hilton v Guyot is held as the best disposition of this approach (with an American jurisprudential tilt):31
28 Hook and Wass The Conflict of Laws in New Zealand, above n 6, at 405.
29 Society of Lloyd’s v Meinzer (2001) 210 DLR (4th) 519 (ONCA) at [60].
30 Joel R Paul “Comity in international law” (1991) 32 Harv Intl LJ 1; and Ernest Lorenzen “Huber’s De Conflictu Legum” (1918) 13 Ill LR 375.
31 Hilton v Guyot [1895] USSC 185; 159 US 113 (1895) at 163-164.
“Comity”, in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and goodwill, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience and to the rights of its own citizens or of other persons who are under the protection of its laws.
Gray J touches upon a central dispute about comity: is it of lasting relevance in the modern legal era?32 In the 19th century, English cases explicitly disregarded comity as a primary basis for enforcement because of the inherent ambiguity.33 Smit, particularly ruthlessly, reduces Gray J’s statement to “recognition will be given when it will be given".34 At a core level, a system based on deference could not sufficiently identify what factors were relevant in creating a standard for when deference was inappropriate.
However, it would be remiss to explore the principle of comity without referring to
Brigg’s subject-defining Hague lectures on the enduring role of comity. Briggs considers the contested definitions of comity to not be indicative of any flaws but instead demonstrate the central core of mediating respective for territorial sovereignty.35 Without wading into the full debate about the final nature of comity, present judicial practice demonstrates that comity does provide valuable insight as a guiding principle. In New Zealand, courts still refer to comity in their decision-making. In the enforcement realm, this can be seen by the Court of Appeal’s direct consideration of the value of comity in Reeves.36 Comity can be used to mean deference and respect, of the desirability of cooperation or even of the recognition of the interests of other states.37 Through these
32 HL Ho “Policies Underlying the Enforcement of Foreign Commercial Judgments” (1997) 46 ICLQ 443; and Joel R Paul “The Transformation of International Comity” (2008) 71 Law Contemp Probl 19.
33 Russell v Smyth [1842] EngR 521; (1842) 9 M & W 810, 152 ER 343; Williams v Jones [1845] EngR 394; (1845) 13 M & W 628, 153 ER
262; Schibsby v Westenholz (1870) LR 6 QB 155.
34 Hans Smit “International Res Judicata and Collateral Estoppel in the United States” (1962) 9 UCLA L Rev 44 at 54.
35 Adrian Briggs The Principle of Comity in Private International Law (Volume 354) (Collected Courses of the Hague Academy of International Law, 2012) 65 at 80.
36 Reeves v One World Challenge LLC, above n 18, at [56]-[61].
37 Timothy Endicott “Comity among Authorities” (2015) 68 Curr Leg Probl 1 at 4-16; Donald Earl Childress III “Comity as Conflict: Resituating International Comity as Conflict of Laws” (2010) 44 UC Davis L Rev 11 at 11-20.
differing yet interrelated meanings, there is a clear relevance to considerations of comity within the domestic judicial approach. However, this still suffers from the same issue of not determining when the regular course of enforcement should be disturbed. This factor was noted by the Privy Council in Altimo Holding.38 In this, it was held that while comity is naturally relevant, it should not be a barrier to applying an exception.39 Fundamentally, comity still provides an important role in creating a high threshold to disturb the finality of litigation by providing a constant incentive to enforce judgments, but it does not play a large role in determining when this barrier comes into play.
While traditional comity has become less relevant, a line of Canadian jurisprudence provides an interesting reconceptualisation of it. This jurisprudence argues that in an age of international commerce, comity is necessary as an organisational principle to ensure business occurs at maximum efficiency.40 There has been an attempt by Dr John Turner to import this argument into the New Zealand context.41 However, it is not clear that there are sufficient ties to the concept of comity here, nor that this factor has adequate force to override other competing principles of enforcement. This instead appears to be an efficiency theory, or law and economics position, wearing a metaphorical sheep’s clothing. This raises questions around whether economic efficiency (if it could be achieved), is a normatively preferable driver of law, considering the decline of the philosophy of law and economics in New Zealand.42 There are boundless institutions which can drive economic growth and prosperity, from governments, to NGOs, to all private enterprise. The judiciary uniquely serves a role as being able to uphold rights and protect vulnerable individuals and to abdicate from this position would leave these groups without any recourse. Even insofar as international commerce is relevant, it should not be
38 Altimo Holdings and Investment Limited v Kyrgyz Mobil Tel Limited [2011] UKPC 7, [2012] 1 WLR 1804 at [101].
39 Altimo Holdings and Investment Limited v Kyrgyz Mobil Tel Limited, above n 38, at [101].
40 Morguard Investments Ltd v De Savoye [1990] 3 SCR 1077; Tolofson v Jensen [1994] 3 SCR 1022 at
1058.
41 John Turner “Enforcing Foreign Judgments at Common Law in New Zealand: Is the Concept of Comity Still Relevant?” (2013) 4 NZLR 653.
42 Shelley Griffiths “A short history of ‘law and economics’ in New Zealand in the 1990s” in Shelley Griffiths, Mark Henaghan and Marcelo Rodriguez Ferrere (eds) The search for certainty: Essays in honour of John Smillie (Thomson Reuters, Wellington, New Zealand, 2016) 151 at 164-165.
an invitation for courts to undertake granular economic analysis of any individual decision.43 Instead, when international commerce is relevant, it should serve as a force generally in favour of enforcement, adding to the general positive stream. Therefore, the rise of international commerce, while a relevant factor to consider, does not have sufficient force to override competing principled explanations for enforcement.
Individual fairness or justice is a value which is intuitively central to any operation of the judicial system. As a concept, it serves as a basis for the protection of essential rights.Protection of these rights by upholding fairness is especially important for access to justice and public trust in the judicial system.44 Additionally, in the context of enforcement, it is especially important to ensure that the exercise of the overwhelming force of the state is not principally invalid, such as enforcing the whims of an authoritarian state.45
The importance of fairness is revealed in the configuration of the rules. The first factor to note is that fairness cuts both ways. It would be unfair to deny enforcement after legitimate judicial practice has occurred, as that would require the parties to incur additional cost through re-litigation. The importance of fairness is especially reflected in the configuration of the public policy exception to the enforcement rules. The overriding nature of this exception is indicative of the high level of importance placed on fairness. However, the high bar to invoke the exception demonstrates the balance which is struck between fairness and the countervailing principles. Specifically, in the seminal Canadian case of Beals, Major J noted:46
The expansion of this defence to include perceived injustices that do not offend our sense of morality is unwarranted. The defence of public policy should continue to have a narrow application.
43 Griffiths “A short history of ‘law and economics’ in New Zealand in the 1990s”, above n 42, at 160-165. 44 Kevin Burke and Steve Leben “Procedural Fairness in a Pandemic: It’s Still Critical to Public Trust” (2020) 68 Drake L Rev 685.
45 Ho, above n 32, at 461.
46 Beals v Saldanha, above n 20, at [75].
While this explanation is perhaps unintuitive, as it is difficult to think of an injustice which does not offend morality due to the centrality of justice within morality, it still conveys a strong message. That is, fairness should only operate as an overriding force when it is a particularly egregious breach. This explains why the exception is only invoked at a shocking level and courts will enforce decisions which they still may consider to be unfair or legally incorrect. Through this, it helps set out the current balance within the enforcement of judgments. While a range of factors collectively create an impetus in favour of enforcement, when there is a sufficiently intense breach of individual fairness this will override the competing factors and prevent enforcement.
Identifying the situations where public policy considerations will trump the importance of the finality of litigation provides insight into the underpinning principles of enforcement. Specifically, it demonstrates that while multiple factors can create a positive impetus for enforcement, these factors are limited by their failure to differentiate when judgments should not be enforced. Instead, this question sits primarily within the domain of fairness, which acts as a safety valve, overriding other considerations to ensure that the New Zealand judicial system does not enforce illegitimate decisions.
III The Failure in Responding to Opaque Legal Systems
This dissertation argues that the current rules do not work as intended when dealing with opaque legal systems, such as the Chinese system. Firstly, this part will address the nature of the Chinese legal system, aiming to show that manufactured opacity serves as a central tenet of the system. This part will then turn to the judicial response when asked to enforce judgments from the Chinese legal system. Ultimately, it identifies that the current rules fail to achieve the desired balance between the finality of litigation and public policy.
A Manufactured Opacity within the Chinese Legal System
An underlying difficulty that traverses many issues in private international law is the complex nature of engaging with different legal systems. Nothing better represents thisdivide than attempting to reconcile the Chinese and New Zealand legal systems in the enforcement of judgments, where there is substantial academic disagreement on whether the difference in systems is one of kind, or merely of degree.47 To provide a broad overview of the Chinese system, courts are not bound by concepts of stare decisis and there is a hierarchical system of laws, which is similar (albeit more comprehensive) to the concept of delegated legislation.48 The Chinese system is teleological, where there is no principled reversion to fundamental rights.49 This is unusual for a civil law system because the typical response to the diminished judicial influence is to have a high importance placed on the fundamental rights which underpin the basis of the social conception of law. However, the dispute is not about these differences, but rather the mechanisms which have arguably imported authoritarian control into the legal system.
To deconstruct the nature of the Chinese system, this section will proceed in three parts. Firstly, it will begin by exploring the extent of authoritarian control over the decision- making processes. In doing so, it will identify the existence of manufactured opacity, where the structural configuration of the system prevents sufficient information being available about any individual proceeding. It then looks at the two key challenges which academics have raised about the degree of authoritarianism inherent in the system. These are, firstly, whether a “turn towards law” is occurring under the current rule of Xi Jingping and, secondly, whether the legal system has undergone bifurcation. Ultimately, this section will demonstrate that the Chinese legal system retains many tenets of an authoritarian legal system which makes it structurally difficult to identify whether decisions are made legitimately.
47 Donald Clarke “Order and Law in China” (2022) 2 U Ill L Rev 541 at 541-555; Rogier Creemers “Party Ideology and Chinese Law” [2018] SSRN 1; and Shucheng Wang “Authoritarian Legality and Legal
Instrumentalism in China” (2022) 10 Chin J Comp Law 154.
48 Matej Šimalčík “Rule by Law” in Kristina Kironska and Richard Q Turcsanyi (eds) Contemporary China: A new superpower? (Routledge, Abingdon, Oxon ; New York, NY, 2023) 114 at 114-128.
49 Note that while the Chinese constitution gives reference to fundamental rights, the enforcement of these rights is functionally discretionary upon the whims of the party, see Q Zhang “A constitution without constitutionalism? The paths of constitutional development in China” (2010) 8 ICON 950 at 952-963;
Clarke “Order and Law in China”, above n 47, at 545-550.
The structural composition of the Chinese legal system is intertwined with authoritarian control.50 There are three methods through which the legal nature of the Chinese system becomes undermined: the lack of judicial independence, recourse to adjudication committees, and the blurring of professional-personal boundaries.
Judicial independence is considered a core aspect of having a free and functional judiciary.51 Judges need to be free to make decisions based on the law, rather than being subservient to greater political interests. There is an overwhelming body of evidence to demonstrate this ideal has been rejected in China. The courts have distanced themselves from judicial independence, as evidenced by the President of the Supreme People’s Court calling it a “Western Trap”.52 These outward proclamations align with the empirical and external data which are available. Foreign academics have concluded that judicial separation is non-existent to the degree that the judiciary should actively be considered to be a branch of the executive.53 This view is further supported by the US State Department, who have released a report on the absence of judicial independence in China.54 Ultimately, there is no ability for the judiciary to make decisions free from political influence, if the executive deems influence as necessary.
The second structural factor of note is the lack of internal independence of judges through the use of adjudication committees. Adjudication committees consist of a number of officials, including CCP politicians.55 Committees have the capacity to be the highest authority within any court and can override the decision of a judge, without having been
50 Donald C Clarke “Judging China: The Chinese Legal System in US Courts” (2023) 44 U Pa J Intl L 455.
51 Marc Bühlmann and Ruth Kunz “Confidence in the Judiciary: Comparing the Independence and Legitimacy of Judicial Systems” (2011) 34 West European Politics 317.
52 Michael Forsythe “China’s Chief Justice Rejects an Independent Judiciary, and Reformers Wince” New York Times (18 January 2017) <www.nytimes.com>.
53 Clarke “Judging China: The Chinese Legal System in US Courts”, above n 50, at 477-479.
54 US Department of State, Bureau of Consular Affairs Country Information: China.
55 Ji Weidong “The Judicial Reform in China: The Status Quo and Future Directions” (2013) 20 Ind J Global Legal Studies 185 at 185-189.
in the courtroom or involved in the process.56 The separation of decision-making is well summarised by the following commonly-used phrase: “Those who try the case do not decide it, and those who decide the case do not try it”.57 There are many issues with the use of adjudication committees. Firstly, the imposition of political decision-making means that decisions can be made with no regard to the law.58 This is intuitively something which reduces the legitimacy of a legal system. Secondly, there is no requirement for any legal background to sit on an adjudication committee, with political and social status being determinative instead.59 Thirdly, the use of adjudication committees creates a “black hole of responsibility”.60 The abdication from responsibility prevents accountability for poor decision-making, corruption, and political machinations, allowing each of these issues to run rife.61
Finally, adjudication committees are especially problematic because the rate of usage is contested and fundamentally uncertain. Some evidence has pointed to a very consistent recourse to committees, with almost all decisions being made by these committees.62 Others claim that adjudication committees only come into play for particularly difficult decisions, as is the official party line.63 Regardless of the dispute about the extent of recourse to adjudication committees, the inability of external reviewers to adequately discern the how much they are used is indicative of the core problem. It can be nigh on impossible to know whether a decision has been made by an adjudication committee for political reasons. This is manufactured opacity, where the institutional design serves to prevent an understanding of the degree of recourse to non-legal reasoning. Ultimately, the
56 Weidong “The Judicial Reform in China: The Status Quo and Future Directions”, above n 55, at 185- 189.
57 Clarke “Judging China: The Chinese Legal System in US Courts”, above n 50, at 481.
58 Weidong “The Judicial Reform in China: The Status Quo and Future Directions”, above n 55, at 185. 59 Chenglin Liu “Escaping Liability via Forum Non Conveniens: ConocoPhillips’s Oil Spill in China” (2014) 17 U PA JL & Soc Change 137.
60 Xin He “Black Hole of Responsibility: The Adjudication Committee’s Role in a Chinese Court: The Adjudication Committee’s Role in a Chinese Court” (2012) 46 L & Socy Rev 681.
61 He “Black Hole of Responsibility: The Adjudication Committee’s Role in a Chinese Court: The Adjudication Committee’s Role in a Chinese Court”, above n 60, at 683.
62 Clarke “Judging China: The Chinese Legal System in US Courts”, above n 50, at 481-483.
63 Yueduan Wang “Overcoming Embeddedness: How China’s Judicial Accountability Reforms Make Its Judges More Autonomous” (2022) 43 Fordham Intl LJ 737 at 763-766.
system’s recourse to adjudication committees creates a fundamental issue for the inherent legitimacy of the Chinese system.
(c) Personal-Professional Boundaries
The third structural issue is the cultural acceptance of the blurring of personal and professional boundaries. This has resulted in three categories of issues; ex-parte interactions, localism and corruption.
Ex-parte interactions are extra-judicial engagements between judges and parties. Ng and He noted that:64
For example, when judges visit litigants at home to conduct an investigation, they are often invited to stay for a banquet with litigants. Many scholars studying the Chinese legal system, including ourselves, have seen and reported the practice of judges meeting over dinner with disputants and their counsel to talk informally about business related to the case.
This comes across as morally repugnant because there is a substantial chance for non- legal factors to influence decision-making. Secondly, localism is a noted issue in the
Chinese system. Wang noted that judges often bow to “local fiscal imperatives”, which means that judges often are not making decisions based upon legal reasoning.65 Finally, bribery and corruption has been noted to occur at an alarmingly high frequency.66 Notably, this often occurs outside of monetary transactions, with social connections and the complex political network meaning that parties can be favoured for a myriad of reasons. A judge in Shanghai was quoted as saying “In some cases, I have to tilt toward a particular party because they are friends of relatives or friends of friends.”67 This
64 Kwai Hang Ng and Xin He Embedded courts (Cambridge University Press, Cambridge, United Kingdom ; New York, NY, USA, 2017) at 143.
65 Yuhua Wang “Relative Capture: Quasi-Experimental Evidence From the Chinese Judiciary” (2018) 51 Comp Political Stud 1012 at 1015.
66 Ling Li “The ‘Production’ of Corruption in China’s Courts: Judicial Politics and Decision Making in a One-Party State” (2012) 37 LSI 848 at 848.
67 Ng and He Embedded courts, above n 64, at 157.
demonstrates the strong degree to which non-legal reasoning has an influence in the calculus of judges.
Ultimately, there are substantial structural factors within the Chinese legal system which undermines the legitimacy of legal decision-making. Notably, these factors are often very difficult to identify, which makes it unclear whether decisions are being made authentically in any single instance. There is no indicia of when a judgment has been referred to a adjudication committee, or if some form of professional or personal influence has been exerted over judges. This is exacerbated by the long arm of the Chinese state. The ability to punish family members who remain in China or the use of unofficial police offices in foreign states creates a further barrier to the dispersal of legitimate information.68 In light of this, not only does the Chinese judicial system have tenets of authoritarian control which are nearly impossible to identify, but the state also can exert influence over the dissemination of information about the legal system.
The first challenge to the claim that these systemic barriers negatively influence the legitimacy of the Chinese legal system is that China has undergone a “turn towards law”. To contextualise this claim, academic scholarship generally agrees that in the early 21st century, China underwent a retreat into authoritarianism. This was perhaps best demonstrated by Minser, who penned a famous article titled “China’s Turn Against Law”.69 However, it has been argued that under Xi Jingping, China has returned to implementing legal reform.70
Generally, there have been two primary factors noted in the increased legalism under Xi Jingping. The first of these is that the Chinese Communist Party’s internal justifications have increasingly had recourse to law. This has particularly occurred with reference to
68 Amy Hawkins “Explainer: China’s covert overseas ‘police stations’” The Guardian (20 April 2023)
69 Carl Minzner “China’s Turn Against Law” (2011) 59 Am J Comp L 935.
70 Taisu Zhang and Tom Ginsburg “China’s Turn Toward Law” (2019) 59 Virginia J Intl L 306.
the Chinese constitution, which has become far more influential under Xi Jingping.71 This is through both internal rhetoric and in the increasing degree of legal reform.72 The second factor is that the Party has empowered the courts by increasing their institutional capacity and increasing the professionalism of the judiciary.73 This has occurred through systemic reform, including increasing the pay and breadth of the judiciary.74Additionally, courts have been given a greater role in making key decisions. Collectively, it appears that law as a concept has grown in relevance under the current Chinese regime.
This can be seen through the legal approach to the enforcement of judgments in China. This provides both a tangible example of the increased legalism and important background context for understanding the ramifications of reciprocity. China has two regimes for the enforcement of foreign judgments: treaties and domestic law.75 For treaties, each treaty allows for its own terms for enforcement.76 For domestic law, China has historically applied a standard of de facto reciprocity, which requires the other state to have actually enforced a Chinese judgment.77 However, in 2022, the Supreme People’s Court adopted de jure reciprocity, where the standard is Chinese judgments having to be hypothetically enforceable.78 This demonstrates the increased recourse to legalism in the Chinese system, however, the implications of this in the private international sphere will be discussed later in this dissertation.
71 Rogier Creemers “China’s Constitutionalism Debate: Content, Context And Implications” (2015) 74 TCJ 91 at 91-95.
72 Thomas E Kellogg “Arguing Chinese Constitutionalism: The 2013 Constitutional Debate and the ‘Urgency’ of Political Reform” (2016) 11 U Pa Asian L Rev 337 at 403-407.
73 Zhang and Ginsburg “China’s Turn Toward Law”, above n 70, at 324-331.
74 Zhang and Ginsburg “China’s Turn Toward Law”, above n 70, at 324-331.
75 William S Dodge and Wenliang Zhang “Reciprocity in China—US Judgments Recognition” (2020) 53 Vanderbilt J Transnatl L 1541 at 1545-1546.
76 Dodge and Zhang “Reciprocity in China—US Judgments Recognition”, above n 75, at 1546.
77 W Zhang “Recognition and Enforcement of Foreign Judgments in China: A Call for Special Attention to Both the ‘Due Service Requirement’ and the ‘Principle of Reciprocity’” (2013) 12 Chinese JIL 143 at 143- 147.
78 Meng Yu and Guodong Du “China’s 2022 Landmark Judicial Policy Clears Final Hurdle for Enforcement of Foreign Judgments” (1 July 2022) Conflict of Laws <https://conflictoflaws.net>.
Despite the compelling analysis of the increased centrality of the law within the Chinese state, Zhang and Ginsburg themselves identify that a number of these indicia explain very little about the substantive connection with legality:79
If the courts themselves are insufficiently committed to legality, then strengthening them may not amount to a strengthening of law. That is, if courts become stronger and more effective, it is possible that they are becoming more effective at something other than applying the law.
This concern arguably forms the stumbling block for the entire argument. While institutions have clearly been empowered, there is no obvious reason as to why it has been empowered for the purposes of liberalisation. Instead, it is far more conceptually viable to explain this increased legalism as a tool for the maintenance of power, particularly considering the empirical analyses referred to in the prior section.80 Overall, it appears likely that courts have been empowered to serve in the maintenance of power of the Party, rather than to undertake a process of liberalisation.
While the claim of increased legalism contends that decisions are not made in an authoritarian manner because the judiciary is empowered, the stronger argument is that the avenues for authoritarian decision-making are only exercised in cases where it is necessary. This is what is referred to as the bifurcation of legal systems, where there are effectively two separate legal systems.81 Rather than attempting to deny the existence of the various avenues through which non-legal decision-making can occur, this argument attempts to claim their usage is very infrequent and thus does not justify non-enforcement of Chinese judgments. This part will suggest that this argument ignores the ambiguity inherent in bifurcation, which will be shown by analysing the incentives upon actors within the system.
79 Zhang and Ginsburg “China’s Turn Toward Law”, above n 70, at 343.
80 Ng and He Embedded courts, above n 64, at 143; and Wang “Relative Capture: Quasi-Experimental Evidence From the Chinese Judiciary”, above n 65, at 1015.
81 Mark Jia “Illiberal Law in American Courts” (2020) 168 U Pa L Rev 1685 at 1720.
The explanation for why authoritarian governments prefer to bifurcate their legal system is intuitive. Consistent decision-making encourages increased commerce through the predictability of legal repercussions for actions, which assists economic development.82 Yet, consistent decision-making reduces a state’s ability to control the outcome of decisions. Bifurcation allows both consistency, enabling positive outcomes for commerce, and control of politically relevant issues.
However, bifurcation creates doubt and prevents outsiders from piercing the veil of manufactured opacity. It does this in four ways. First, bifurcation typically happens upon various differentiating factors, which can relate to subject matter, political importance, area of law, location of the court or a number of other factors. For example, Ng and He identified that within China, recourse to political decision-making occurs to a greater degree in regional courts than within wealthier urban courts.83 This creates a system where it can often be both difficult to determine if legitimate judicial practice has occurred, but also one where the lines of differentiation are often amorphous and unrelated to the nature of the present decision.
Secondly, it is difficult to identify when the bifurcation has occurred in the Chinese context, because it is hard to understand when an issue is seen as important to the Chinese Communist Party. This is particularly so considering the degree of interrelation between the Party and commercial entities within China.84 The increased prevalence of state- owned enterprises facing requirements for governmental backdoor access emphasises the connectivity between the executive and corporations in China.85 Therefore, determining whether legitimate judicial practice has occurred based off the subject matter is not plausible.
82 Peter Solomon “Law and Courts in Authoritarian States” in James D Wright (ed) International Encyclopedia of the Social & Behavioral Sciences (Elsevier, Amsterdam, 2015) 427.
83 Ng and He Embedded courts, above n 64, at 6-14.
84 Samantha Hoffman “China’s Tech-Enhanced Authoritarianism” (2022) 33 J Democr 76 at 76-78.
85 Jingyang Huang and Kellee S Tsai “Securing Authoritarian Capitalism in the Digital Age: The Political Economy of Surveillance in China” (2022) 88 TCJ 2 at 4-8.
Thirdly, bifurcation can be temporary, especially within a state with limited commitment to legality.86 Fourthly, personal incentives acting upon individuals within the system still exist, whether they are corrupt for personal gain or to attempt to make pro-state judgments for political advancement. While bifurcation provides a ground to suggest increased willingness to engage with courts in certain circumstances, in some ways, it raises more questions than it answers. Overall, the bifurcated nature of the Chinese system emphasises the incessant uncertainty about the legitimacy of any individual judgment.
Ultimately, this section demonstrates why the Chinese legal system is particularly difficult to engage with for courts attempting to enforce judgments. There are competing rational depictions of how the system works, and the opacity inherent within the system makes a determination of legitimacy functionally impossible. While there clearly are avenues for authoritarian decision-making, it is deeply unclear to what degree these avenues are used, as well as whether the system is generally turning towards law or merely using legal institutions for authoritarian ends. Fundamentally, foreign courts have to grapple with a very complex legal system, which creates a difficult underpinning context to understand when approaching enforcement.
B Evidential and Substantive Failings in the Legal Response
In light of the uniquely opaque Chinese system, the task before courts is especially difficult. Parties can resist enforcement using any of the natural justice, fraud, or general public policy exceptions, however, the same problem plagues each formulation of the exception. Under natural justice, a resisting party would have to demonstrate that the individual circumstances of the court were contrary to natural justice. For fraud, the specific judgment must be obtained fraudulently. For public policy, the specific decision must be contrary to public policy. A resisting party cannot demonstrate the individual circumstances of the court were contrary to natural justice because the system's
86 Jia “Illiberal Law in American Courts”, above n 81, at 1720.
manufactured opacity means they have no way of knowing what those individual circumstances are. Similarly, they cannot know whether a judgment was obtained fraudulently or if it was procedurally contrary to public policy. Therefore, the core issue with the present approach is that it fails to respond adequately to manufactured opacity because the burden is placed upon the party protesting enforcement to demonstrate specific impropriety despite the impossibility of the task.
In New Zealand, the issue of enforcement of Chinese judgments has been raised multiple times, however, the argument around the legitimacy of the judicial system has only once been raised in the context of enforcement. This section will explore the key case of Hebei Huaneng Industrial Development Co Ltd v Shi,87 before assessing how the Supreme Court dealt with the Chinese legal system in Minister of Justice v Kim.88
The factual background for Hebei is straightforward. Hebei Huaneng (a subsidiary of a Chinese SOE) paid Shi’s company Qinhuangdao Boen Trading Co Limited to source coal.89 When the company defaulted on a required repayment of an advance payment, Hebei Huaneng attempted to recoup this from Shi as guarantor.90 The Hebei High Court held that Shi had to pay Hebei approximately NZD$23,000,000.91 Shi had very few assets in China (barely enough to cover costs), however, Shi holds significant assets in New Zealand.92 This led Hebei to attempt to enforce the judgment in New Zealand, which has led to an elongated series of litigation with six judgments already issued at an interlocutory stage. This consists of an application for freezing assets, a protest to New Zealand assuming jurisdiction, an application for summary judgment, two applications for leave to appeal the summary judgment being declined, and a security for costs
87 Hebei Huaneng Industrial Development Co Ltd v Shi [2021] NZHC 2687.
88 Minister of Justice v Kim [2021] NZSC 57; and Minister of Justice v Kim [2022] NZSC 44.
89 Hebei Huaneng Industrial Development Co Ltd v Shi [2020] NZHC 2992 at [18].
90 Hebei Huaneng Industrial Development Co Ltd v Shi [2020] NZHC 2992 at [19]. 91 Hebei Huaneng Industrial Development Co Ltd v Shi [2020] NZHC 2992 at [21]. 92 Hebei Huaneng Industrial Development Co Ltd v Shi [2020] NZHC 2992 at [1].
application.93 Naturally, the application for summary judgment is directly relevant to the issue, however, the perspective in the protest to jurisdiction provides useful insight.
In the protest to jurisdiction, the argument that Chinese courts do not have sufficient judicial independence to be considered a court was raised for the first time in New Zealand.94 The approach taken to questions of evidence is particularly problematic. Both sides brought conflicting evidence about judicial separation and the legitimacy of the
Chinese legal system. Overall, the High Court found Hebei’s expert witness to be more compelling and concluded that:95
In this case the Hebei Higher People’s Court was part of the judicial branch of the government of the People’s Republic China and was separate and distinct from legislative and administrative organs. It exercised a judicial function. Its procedures and decision were recognisably judicial. There is no suggestion that the procedures or decision went awry because of any untoward outside influence. Accordingly Hebei Huaneng has established a good arguable case that it is suing on a judgment of a court.
This factual conclusion is one that differs from academic commentary.96 The High Court demonstrated a willingness to disregard evidence about the failures of due process in
China because “there were no judicial committees in this case”.97 This is an assertion that is difficult to justify in light of the opacity surrounding judicial committees, where it is
93 Hebei Huaneng Industrial Development Co Ltd v Shi [2020] NZHC 2470; Hebei Huaneng Industrial Development Co Ltd v Shi [2020] NZHC 2992; Hebei Huaneng Industrial Development Co Ltd v Shi [2021] NZHC 2687; Hebei Huaneng Industrial Development Co Ltd v Shi [2022] NZHC 1484; Hebei Huaneng Industrial Development Co Ltd v Shi [2022] NZCA 534; Hebei Huaneng Industrial Development Co Ltd v Shi [2023] NZHC 2501.
94 Hebei Huaneng Industrial Development Co Ltd v Shi [2020] NZHC 2992.
95 At [60].
96 Clarke “Judging China: The Chinese Legal System in US Courts”, above n 50, at 481-483.; Yuhua Wang “Relative Capture: Quasi-Experimental Evidence From the Chinese Judiciary”, above at 65, 1015-1018; and He “Black Hole of Responsibility: The Adjudication Committee’s Role in a Chinese Court: The Adjudication Committee’s Role in a Chinese Court”, above n 60, at 683.
97 At [49].
impossible to know if referral has occurred.98 This struggle demonstrates the core issue, where manufactured opacity prevents sufficient evidence from being available. This fences in judges, such as Bell AJ, leaving no option except to draw the logical (yet incorrect) conclusion that an absence of evidence indicates an absence of impropriety.
The application for summary judgment took a different approach to a very similar question. The key here is that it was an application for summary judgment to be entered, which means the standard was whether there was an arguable defence to enforcement, rather than whether the argument was made out.99 The implication is that the evidential bar is substantially lower, which allows the court to avoid the troubling evidential questions. This is both because the standard for the argument is substantially lower, and because defences to summary judgment operate with a very permissive approach to facts; if there are factual questions, courts typically prefer for the issue to be referred to a full trial.100 In this case, the decision to decline summary judgment was confirmed by leave to appeal being declined by both the High Court and the Court of Appeal.101 Both noted that these kinds of issues need to be dealt with by a full trial, rather than within the constrained remit of a summary judgment application.
However, within this confined context, a different approach to similar evidence was taken. The expert evidence of Clive Ansley for Shi was considered to be substantially more compelling by Sussock AJ, who also relied heavily upon the conclusions reached by the Supreme Court in Kim (which occurred between these two judgments).102 While this is a preferable approach to evidence, it is accountable to the interlocutory stage of proceedings, rather than an ability to determine specific factual results. An additional
98 Yuhua Wang “Relative Capture: Quasi-Experimental Evidence From the Chinese Judiciary”, above n 65, at 1015-1018; and Weidong “The Judicial Reform in China: The Status Quo and Future Directions”, above n 55, at 185-189.
99 Pemberton v Chappell [1986] NZCA 112; [1987] 1 NZLR 1 (CA) at 3–4; and Hebei Huaneng Industrial Development Co Ltd v Shi [2020] NZHC 2992 at [7].
100 Hebei Huaneng Industrial Development Co Ltd v Shi [2021] NZHC 2687 at [8]- [12].
101 Hebei Huaneng Industrial Development Co Ltd v Shi [2022] NZHC 1484; Hebei Huaneng Industrial Development Co Ltd v Shi [2022] NZCA 534.
102 At [71]-[74], [78]-[88].
feature to note is that Sussock AJ conceptualised this argument as being within the defence against natural justice, rather than as a question of whether this was a court at all. This was despite the fact the defendants did not plead the natural justice defence.However, natural justice constituted a large degree of Sussock AJ’s analysis.103 There appeared to be a strong preference for this framing of the issue and a rejection of the systemic nature of the pleadings. While this is suitable within the context of an application for summary judgment, the issue is the continued failure to identify the evidential issues which stem from opacity. Not only are there evidential barriers, but courts appear unwilling or unable to recognise when a barrier is insurmountable. Sussock AJ notes that judicial committees could constitute a breach of natural justice, however, there is no functional way to identify whether this individual case was heard by an impartial panel or not. Ultimately, while this argumentation succeeded with a lower interlocutory bar to evidence, the likely resolution in a full court is that the evidential issues will rearise.
Hebei has left the current legal status of Chinese judgments in flux. The High Court has concluded that there is both a good arguable case and an arguable defence. Although these approaches are reconcilable because a finely balanced issue can have strong arguments either way, the differentiating factor being the standard required of evidence is worrying. The likely conclusion is that, in a full court, the overriding evidential issues will continue to rear their head.
The decision of the Supreme Court in Minister of Justice v Kim was a uniquely deep look into the Chinese legal system.104 However, this was a judicial review of an extradition decision, which mitigates the direct relevance of the decision.105 The reasoning and sources used were focused on Chinese criminal law, which has been noted as a potential
103 At [89]-[91].
104 Minister of Justice v Kim [2021] NZSC 57.
105 Minister of Justice v Kim [2021] NZSC 57 at [1]- [5].
avenue of bifurcation.106 There was also substantial reliance upon specific concessions made by China, which related to this specific example.107 Despite these mitigating factors, Kim provides a useful look at how New Zealand courts have analysed the Chinese legal system.
On a specific evidential focus, Clive Ansley gave evidence in both Hebei and Kim. The approach of the Supreme Court in Kim identified concerns about judicial independence in China were recognised.108 However, there was also a partially deferential approach to statements given by the Chinese government, continuing the trend of leveraging concerns of comity against active evidential inquiries. The guidelines given by the Supreme People’s Court were considered to make adjudication committees “akin to a preliminary general appeal on the papers”, if they were followed.109 This is a claim which has invited scepticism, and for good reason.110 Although the nature of judicial review allows for abdication by the courts back to minister in charge of the decision, there was a general implication that it was believed that these guidelines were being followed, despite an absence of empirical evidence which would confirm this.111 As noted by High and Geddis, the substance of this element of the decision is alarming.112 While the context of these decisions is markedly different because there is not a threat of torture (as argued in Kim) hanging over enforcement decisions, it still relies on the same unwillingness to engage with the evidential difficulties it is faced with. Overall, while the New Zealand Supreme Court was willing to enquire into the quality of the Chinese legal system, there were still substantial difficulties in aptly engaging with evidential analysis. The New Zealand approach demonstrates the evidential difficulties in identifying structural factors
106 Ng and He Embedded courts, above n 64, at 143; Solomon “Law and Courts in Authoritarian States”, above n 82, at 427-430.
107 Anna High and Andrew Geddis "Diplomatic Assurances as a Basis for Extradition to the People’s Republic of China" (2021) NZLJ 7 226 at 226-228.
108 Hebei Huaneng Industrial Development Co Ltd v Shi [2021] NZHC 2687 at .
109 At [350].
110 High and Geddis "Diplomatic Assurances as a Basis for Extradition to the People’s Republic of China", above n 107, at 226.
111 This was confirmed in Minister of Justice v Kim [2022] NZSC 44, where they considered that assurances by the CCP that law would be followed to be broadly sufficient.
112 High and Geddis "Diplomatic Assurances as a Basis for Extradition to the People’s Republic of China", above n 107, at 254.
which import illegitimacy in the Chinese legal system and a refusal to engage with this difficulty.
While the New Zealand jurisprudence appears to support the central thesis of the factual obstructions, the core question of legitimacy in the enforcement context has not yet had a single hearing in front of a full court. To avoid making a mountain of a molehill, this part will now turn its attention across the Pacific Ocean. The United States provides useful additional context to consider because there is both a relatively high volume of cases and a unique legislative approach. However, the utility of this analysis is tempered to a degree by the different principled context drawing from the unique American jurisprudence surrounding private international law. Despite this limiting factor, the American approach has struggled with similar evidential issues as the fledgling New Zealand jurisprudence.
The United States uses state law rather than federal law for enforcement of judgments, which means there are 50 different iterations of law to consider.113 However, uniform legislation has been adopted across almost 40 states through either the 1962 Uniform Foreign Money-Judgments Recognition Act (Uniform Act 1962) or the updated 2005 Uniform Foreign-Country Money Judgments Recognition Act (Uniform Act 2005) (together, the Uniform Acts).114 In a state which has not incorporated either Uniform Act into law, the state common law regime applies.115
113 Elsemiek Apers “Harmonisation of Conflict of Law Rules in the US? The Example of Recognition and Enforcement of Foreign Money Judgments” in Vesna Lazić and Steven Stuij (eds) International Dispute Resolution (TMC Asser Press, The Hague, 2018) 67 at 67; John B Bellinger and R Reeves Anderson “Tort Tourism: The Case for a Federal Law on Foreign Judgment Recognition” (2014) 54 Va J Int’l L 501.
114 The Uniform Acts are not themselves a source of law. Instead each state which has incorporated the Uniform Acts has it as a part of its state legislation. As such, this dissertation has cited the general source, rather than any individual state legislation and refers to them collectively as the Uniform Acts: Uniform Laws Uniform Foreign Money-Judgments Recognition Act 1962 <uniformlaws.org>; Uniform Laws Uniform Foreign Money-Judgments Recognition Act 2005 <uniformlaws.org>.
115 Apers “Harmonisation of Conflict of Law Rules in the US? The Example of Recognition and Enforcement of Foreign Money Judgments”, above n 113, at 68-69.
The Uniform Acts are broadly very similar to each other (and generally similar to the New Zealand regime). Both Uniform Acts require that decisions are final, conclusive, and enforceable under the laws of the rendering state.116 The onus then flips, and the statute then sets out a range of mandatory and discretionary grounds for non-recognition, which the party resisting recognition must demonstrate.117 These include jurisdiction, fraud, notice and public policy.118 However, there are three additional grounds which are of particular interest to this area of law. Firstly, if the judgment was rendered under a judicial system that does not follow the principles of due process or impartiality, it is mandatory to refuse recognition and enforcement.119 This is known as systemic review because it asks whether the system holistically meets these standards, rather than the individual circumstances of the specific decision. Secondly, the 2005 Act added two discretionary grounds for a lack of integrity or due process in the specific proceedings.120
In the United States, there has been around 20 enforcement cases of Chinese judgments, which gives a greater breadth of analysis to explore.121 However, a number of these cases provide very little insight due to practical defects with the proceedings. There are multiple default decisions, which means that no adversarial process has occurred.122 Additionally, there are a number of cases where the party resisting enforcement has already argued for a forum non conviens dismissal to China.123 In these cases, it is very difficult for a defendant to convince a court that the alternate forum they argued in favour of is actually non-judicial in nature. However, outside of these limiting factors, there are some clearly identifiable trends which are in accord with New Zealand’s current issues. Both the evidential issues and application of the principles of the test have been a source of difficulty. This part will firstly demonstrate how these similar trends have generally occurred, before addressing an additional issue of the path-dependency of litigation.
116 Uniform Acts, above n 114, at §4.
117 Uniform Acts, above n 114, at §4(a)(1).
118 Uniform Acts, above n 114, at §4.
119 Uniform Acts, above n 114, at §4.
120 Uniform Foreign Money-Judgments Recognition Act 2005, §§ 4(c)(7), 4(c)(8).
121 Clarke “Judging China: The Chinese Legal System in US Courts”, above n 50, at 546. 122 Clarke “Judging China: The Chinese Legal System in US Courts”, above n 50, at 546. 123 Clarke “Judging China: The Chinese Legal System in US Courts”, above n 50, at 546.
Summarising every case within the American jurisdiction which questions whether a Chinese judgment should be enforced is beyond the scope of this dissertation. However, the majority of these decisions have limited utility due to issues noted above. For a general summary of the approach, Donald Clarke explores every case in substantial detail in his recent article: Judging China.124 In doing so, he draws the conclusion that:125
the overwhelming feature of the cases is the inability of the courts to undertake an inquiry into the Chinese legal system, even though such an inquiry is specifically contemplated in the common law doctrine of foreign judgment recognition.
This shows that the same dual issue with evidential uncertainty and difficulties with the legal test is not confined to the New Zealand context. There are examples of cases where the exceptions have been successful within American case law, showing this is not an impossibility. However, these cases are some of the most egregious examples. In Xinyi, there was an obvious conflict of interest with a lawyer representing two opposing parties, the judgment was in violation of an arbitration agreement, and it relied upon forged documents.126 Having extreme examples being enforceable also does not attack the core of this dissertation’s argument, which claims that in most cases, evidential difficulties arise.
A strong example of the various ways courts have struggled with applying the test is in the case of Global Material Techs Inc v. Dazheng Metal Fibre Co (GMT v DMF).127 GMT is unusually messy, however, it does clearly demonstrate the difficulty courts have with grappling with exceptions to enforcement. The claim related to alleged appropriation of confidential business information and it proceeded through a convoluted process of
124 Clarke “Judging China: The Chinese Legal System in US Courts”, above n 50.
125 Clarke “Judging China: The Chinese Legal System in US Courts”, above n 50, at 577.
126 Anyang Xinyi Elec Glass Co v B & F Intl (USA) Inc No CV 15–00862- BRO (AJWx), 2015 WL 12859716 (CD Cal Nov 24 2015).
127 Global Material Techs Inc v. Dazheng Metal Fibre Co No 12 CV 1851 2015 WL 1977527 (ND Ill May 1 2015).
litigation.128 Ultimately, the Chinese courts ordered GMT to pay USD$2,000,000 to DMF with a reduction because of a counterclaim of USD$200,000 being awarded to GMT.129 In trying to resist enforcement of the Chinese judgment, the defendant claimed that there was a failure of due process in the specific proceedings. In evaluating this claim, the court demonstrated similar difficulties as was identified in the New Zealand case law.Evidentially, the court utilised unusual sources of information. This is best demonstrated by the conclusion of the court that the proceedings were not biased because each party had been awarded some damages through counter-claims. As Clarke notes, this is absurd in light of the difference between the damages being multiplied by ten.130 This again demonstrates the unclear evidential response and how courts have to resort to tangential sources of information.
On the application of the exceptions to enforcement, the case also serves as a demonstration of the overleveraging of comity to avoid the core role of the test. This was a particularly egregious example, with the court referencing comity to say that any inquiry would be against the principles of enforcement.131 This is simply incorrect. GMT is perhaps an outlier, with the proceedings being tainted by impropriety which prevented a lawyer from ever practicing in Illinois again.132 However, it does show that the same issues which prevent the regular operation of the exceptions are occurring in other jurisdictions.
A particularly pernicious issue, which could arise in New Zealand, is a reliance on insufficient precedents due to the path dependency of litigation.133 A number of cases in
128 Global Material Techs Inc v. Dazheng Metal Fibre Co, above n 127, at 8.
129 Global Material Techs Inc v. Dazheng Metal Fibre Co, above n 127, at 8.
130 Clarke “Judging China: The Chinese Legal System in US Courts”, above n 50, at 537.
131 Global Material Techs Inc v. Dazheng Metal Fibre Co, above n 127, at 8-9.
132 Clarke “Judging China: The Chinese Legal System in US Courts”, above n 50, at 546.
133 Specifically, Chinese judgments have been enforced in New Zealand with Chen v Lin [2016] NZCA 113; [2016] NZAR 606; and Bin v Sun [2023] NZHC 436. In neither of these cases was there any claim about the quality of the Chinese legal system. In Chen, an argument was raised about whether the enforcement of a 30% interest rate was against public policy, which was rejected by the Court of Appeal. In Bin, the defendant was in prison and took no steps to protest the summary judgment application.
the United States, such as the leading authority of Robinson Helicopter, had wildly insufficient evidential bases for their decisions.134 In Robinson Helicopter, litigation happened across multiple courts. Clarke noted that “it appears that none of the courts involved heard any evidence whatsoever—no expert testimony, no governmental reports, no news stories, not even unsupported allegations by counsel—about the quality of theChinese legal system”.135 Despite this, multiple cases rely on Robinson Helicopter as a justification for reaching illogical evidential conclusions. An example of this was in Wan.136 In this case, the court acknowledged that the Chinese courts “are subject to various external and internal influences”.137 However, it refused to allow any defences to the Chinese context because “U.S. courts consistently acknowledge the adequacy of due process in the judicial system”.138 This shows how evidential issues have a tendency to snowball and aggregate into an additional barrier to preventing enforcement.
Through an analysis of cases where enforcement of Chinese judgments has been asked of either New Zealand or American courts, the depth of the evidential issues becomes quickly apparent. Centrally, there appears to be a fundamental inability to overcome the manufactured opacity because it necessarily frustrates the evidential requirements of western legal systems. This is exacerbated by the difficulty courts have with engaging with the evidential test which is required by the exceptions. Moreover, the nature of litigation has given rise to a question of path-dependency, where the weight of previous decisions is misattributed to a general judicial position on enforcement. Therefore, this strongly suggests that there is no ability to overcome the manufactured opacity within the Chinese legal system.
134 Hubei Gezhouba Sanlian Indus Co v Robinson Helicopter Co 425 F Appx 580 (9th Cir 2011).
135At 531.
136 Yancheng Shanda Yuanfeng Equity Investment Partnership v. Wan No 20-CV-2198 2022 WL 411860 (CD Ill Jan 10 2022).
137 Yancheng Shanda Yuanfeng Equity Investment Partnership v. Wan, above n 136, at 10.
138 Yancheng Shanda Yuanfeng Equity Investment Partnership v. Wan, above n 136, at 10.
C Comparison with Framework
The final stage of this enquiry is assessing whether the failure to pierce this manufactured opacity means that exceptions to enforcement fail to balance the finality of litigation and public policy. The Chinese legal system is structurally configured to maximise opacity and prevent access to information. Even under the best operation of the test, there is simply no way to pierce that opacity, because it is impossible to determine when reference to a judicial committee or other impropriety has occurred. Courts have been especially ineffective in attempting to use this evidence and have often ignored the opacity when drawing conclusions. Additionally, courts have a tendency to abdicate from the core inquiry which is asked of them. This is likely to be an escalating problem, considering the issues with path-dependency which have arisen in the United States.
Already, New Zealand has had two decisions where no challenge has been made to the integrity of the proceedings, which begins to create the basis for a court to (incorrectly) claim the weight of precedent goes against enforcement. In light of the evidential difficulties and the growing barriers to an effective application of the test, case specific exceptions are fruitless in attempting to uphold justice. This clearly goes against the principled framework. The depth of unfairness in decisions where there is no due process or fraudulent behaviour, both of which are prevalent within the opaque Chinese system, should be an overriding factor which inhibits enforcement. Due to the practical issues, the balance between finality of litigation and the importance of public policy has been tilted in favour of finality, rendering the public policy exception effectively non-existent when applied to the Chinese context. The tug-of-war between finality and public policy has entirely been avoided because the side of public policy can’t even see the rope. This does not reflect an appropriate balance between the competing principles and as such, implores an alternate response.
IV Canvassing the Alternate Options
The approach to the enforcement of judgments has broadly stayed static for a century.139 However, the international environment has drastically changed around it.140 As noted in the previous chapter, this has led to a situation where the current rules are insufficiently configured to capture any impropriety in the Chinese legal system. Without an alternate approach, there is a risk of private international law falling asleep at the wheel and veering away from the principled balance it tries to uphold. This section turns to alternate configurations of the public policy exception, which could better achieve the underlying goal of balancing the finality of litigation with individual fairness. In doing so, two methods of capture will be assessed: systemic review and a new hybrid approach.
A Systemic Review
Simply put, systemic review asks whether the nature of the system is such that enforcement should be barred. As mentioned above, systemic review has been legally adopted by the United States, although substantively, it is used in a very infrequent manner. There are three preliminary matters to consider.
Firstly, systemic review as a concept is fairly affronting to private international law scholars. Partly, this stems from the origin of systemic review. Kelly considers it an “artifact of an age when it was thought that it made sense to split the world up into civilized and uncivilized nations and treat their judgments accordingly”.141 This is not a particularly apt description of why systemic review is being considered in this situation. Instead, systemic review is being proposed due to the manufactured opacity in the Chinese system. This is motivated by an evidential deficiency and therefore, would probably not be applicable in “uncivilised states” who lack the capacity to control
139 Hook and Wass The Conflict of Laws in New Zealand, above n 6, at 343. Hook and Wass note that the statutory regimes from the early 20th century broadly codified the common law approach, and it is very similar to the modern common law approach.
140 Bell “The Future of Private International Law in Australia”, above n 2, at 11.
141 Thomas Kelly “An Unwise and Unmanageable Anachronism: Why the Time Has Come to Eliminate Systemic Inadequacy as a Basis for Nonrecognition of Foreign Judgments” (2011) 42 Geo J Intl L 555 at 582.
information flow to such a degree. Additionally, there is a concern that this runs contrary to the ideals of internationalisation which sit within private international law discourse.142 While the principled balance will be addressed in depth in the substantive analysis, this initial assumption can be challenged. Private international law is not configured in a way where any foreign judgment can be enforced and this proposed change would merely tweak this configuration further.
Secondly, the standard adopted by some American cases of it being impossible for any fair litigation to occur is not relevant nor useful.143 If it was impossible to have fair litigation in a legal system, then it would be encompassed within the case specific exceptions. If a court could claim that every case was decided unfairly, then every individual case would fail the natural justice exception. Instead, this part asks whether, in a deliberately opaque system with a tendency to have non-legitimate decisions, systemic review is appropriate. The standard, therefore, is whether the system does not sufficiently provide due process or impartial tribunals.
Thirdly, it is unclear whether systemic review is currently a part of New Zealand law. In Hebei Huaneng, an argument about the systemic capacity of the Chinese legal system was advanced under the requirement of whether a judgment was rendered by a court.144 While it is possible to have a functionally similar test under the requirement for a court, this is not a preferable place to conceptualise systemic review. Instead, this dissertation prefers to see it as an affirmative defence, under the organisational principle of public policy. Having an exception within the requirement for a judgment to be rendered by a court artificially extricates this issue from its principled core, as well as inverting the burdens of proof.
This section will firstly address how courts have engaged with systemic review of the Chinese legal system, before addressing whether systemic review overcomes the practical
142 Campbell McLachlan “Reforming New Zealand’s Conflicts Process: The Case for Internationalisation” (1984) 14 VUWLR 443.
143 Dejoria v. Maghreb Petroleum Expl SA 804 F 3d 373 (5th Cir 2015) at 382.
144 Hebei Huaneng Industrial Development Co Ltd v Shi [2021] NZHC 2687 at [89].
issues which cripple case-specific exceptions, and finally turning to whether it strikes an appropriate principled balance.
In the protest to jurisdiction, the inquiry in front of Bell AJ was whether the judgment was rendered by a court.145 The argument advanced by the defendant was that the Chinese courts are insufficiently judicial to be considered courts, which asks a similar question to the American systemic review exception. Bell AJ actively took a deferential and permissive approach towards enforcement, drawing from both American and English authority, to centralise the principle of comity within the core factual enquiry.146 When considering the differences in separation and judicial accountability, Bell AJ referred to the following claim from the American courts: “It is not the business of our courts to assume the responsibility for supervising the integrity of the judicial system of another sovereign government”. A result of this leveraging of comity was a particularly loose definition of legality. Bell AJ referred to the decision of the House of Lords in Carl Zeiss Stiftung, where Lord Reid referred to a decision of East German Courts as:147
behind this ornamentation I find a judicial approach and a reasonable result. And, even if political considerations were apparent, it would remain true that what the courts have decided is in fact the law which is being enforced in the foreign country.
Although Bell AJ does not address this in substantial detail, the consideration that political considerations can be legal if they are internally recognised as such is demonstrative of a deeply formalist approach to law. The loose approach to legality appears to be reliant upon the assumption that an alternate form of recourse is available through case specific grounds. Specifically, Bell AJ considers that due to the affirmative defences, such as public policy, systemic review should be confined to “extreme
145 Hebei Huaneng, above n 1, at [2]
146 At [36]-[40]
147 Carl Zeiss Stiftung v Rayner and Keeler Ltd (No.2) [1967] 1 AC 853 (HL) at 907, as cited in Hebei Huaneng, above n 1, at [33].
cases”.148 This decision demonstrated the hesitancy of courts to exert their ability to review other legal systems due to the conflict with comity and the continued reliance on the misapprehension that case specific exceptions are adequate in the opaque context.
Similarly to in New Zealand, the issue of whether the Chinese legal system is systemically flawed has come under recent judicial attention in the United States. In Shanghai Yongrun, the New York Supreme Court (a first instance court) refused recognition of a Chinese decision because the legal system did not provide impartial tribunals that allow for due process.149 This decision was based upon a rejection of previous case law and a heavy reliance on State Department reports indicating a lack of judicial independence of China.150 This was overturned on appeal, where it was held that “the basic requisites of due process were met” and that the State Department reports were insufficient to demonstrate that the entire legal system was unfair because they primarily focus on cases which regard human rights.151 As is typical, the evidential inquiry has raised substantial practical issues. Even when a will to inquire exists and within the less factually onerous doctrine of systemic review, it was difficult to have sufficient information to draw a rigorous conclusion.
A second feature to note was the academic uproar which was brought about by the initial decision. Fifteen professors of international litigation wrote an amicus curiae brief, which urged for a reversal of the decision.152 It specifically noted that if the decision was upheld on appeal, this reasoning would apply across the entirety of the US, preventing enforcement of judgments from 141 other nations and would end the reciprocal relationship between the US and China, incurring large economic harms.153 Beyond this,
148 At [32].
149 Shanghai Yongrun Investment Mgmt Co v Kashi Galaxy Venture Capital Co No 156328/2020 2021 WL 1716424 (NY Sup Ct Apr 30 2021) at 3-7,
150 Shanghai Yongrun Investment Mgmt Co v Kashi Galaxy Venture Capital Co, above n 149, at 6.
151 Shanghai Yongrun Investment Mgmt Co v Xu, 160 NYS. 3d 874 (NY App Div 2022) at 874.
152 Brief for Amici Curiae George Bermann et al. in Support of Plaintiff-Appellant, Shanghai Yongrun Investment Mgmt Co v. Kashi Galaxy Venture Capital Co 160 N.Y.S.3d 874 (App. Div. 2022) (No. 2021- 01637).
153 Brief for Amici Curiae, above n 152, at 8.
the decision also attracted strong academic backlash, such as from William Dodge who authored a recent article pushing against systemic review.154 Ultimately, there appears to be strong judicial and academic pushback in the United States against the systemic review of the Chinese legal system, especially due to adverse economic consequences.
William Dodge, who is perhaps the strongest opponent to Donald Clarke’s arguments in favour of systemic review, claims that systemic review fails on a practical basis.155 This argument is premised upon three interrelated arguments. Firstly, he identifies there is a judicial hesitancy to apply systemic review, before questioning the capacity of courts to assess systemic factors, and claiming that case specific exceptions are sufficient.156 The argument in favour of case specific exceptions does not adequately engage with the evidential difficulties identified in the previous chapter. Dodge claims that courts are better at evaluating whether proceedings are legitimate because it is within their typical domain.157 However, he fails to identify that sufficient evidence about individual proceedings will never eventuate. These barriers are insurmountable in the unique Chinese context. However, this part will assess the other two limbs and evaluate their relevance.
The first argument advanced by Dodge was that courts simply lack the capacity to make institutional determinations of the quality of legal systems.158 There are two dimensions of knowledge required to evaluate a legal system. The first of these is whether there is sufficient available information. The second is whether courts have the ability to determine how that information should be used. Dodge’s claim focuses primarily upon the latter.
154 William Dodge “Against Systemic Review of Foreign Judgments” (2022) 28 Southwest J Int Law.
155 Dodge “Against Systemic Review of Foreign Judgments”, above n 154, at 98-105. 156 Dodge “Against Systemic Review of Foreign Judgments”, above n 154, at 100-105. 157 Dodge “Against Systemic Review of Foreign Judgments”, above n 154, at 100-105. 158 At 101-102.
However, for completeness, the argument that courts are unable to have sufficient evidence in front of them is a weak argument. Systemic review is comparatively more able to access information than specific review because there is far more information about an entire legal system than individual proceedings. Notably, this analysis should always be done comparatively, as otherwise it runs the risk of deciding inquiry is futile and abdicating from the principles of fairness. Moreover, the type of evidence required for this type of inquiry is not definitive evidence but rather evidence of tendencies, which is more likely to be available. Therefore, there is likely to be sufficient evidence in front of the courts.
The second argument is that judges are hesitant or simply unable to apply this ground, which undermines its relevance. To assess this claim, this part will assess if hesitancy happens and if so, whether it should be a relevant legal factor. The argument about capacity garners the most sympathy from Clarke, who also finds the ability of the judiciary to determine capacity of foreign courts to be lacking.159 This was summarised by Kelly as:160
courts are simply not equipped to jump the epistemological hurdles to determine whether a foreign judicial system judicial (sic) objectively provides impartial tribunals and procedures compatible with the requirements of due process of law.
American courts have historically been very hesitant to systemically review the integrity of other legal systems. The ground of systematic review has existed in America for over 50 years, yet has only been successfully invoked (after appeal) in two instances.161 The first of these assessed the Liberian legal system while it was in the midst of a civil war.162
159 Donald C Clarke “Enforcing Chinese Judgments: A Response” (10 October 2022) Transnational Litigation Blog <https://tlblog.org>.
160 Kelly “An Unwise and Unmanageable Anachronism: Why the Time Has Come to Eliminate Systemic Inadequacy as a Basis for Nonrecognition of Foreign Judgments”, above n 141, at 572.
161 Dodge “Against Systemic Review of Foreign Judgments”, above n 154, at 100.
162 Bridgeway Corp v Citibank, 45 F. Supp. 2d 276 (SDNY 1999); and Bridgeway Corp v Citibank [2000] USCA2 1; 201 F3d 134 (2d Cir 2000).
During this, it was ruled that the courts were effectively non-existent, being subject to the whims of warring factions, as well as endemically corrupt and incompetent.163 The second case regarded Ecuador, where there was substantial unchallenged expert evidence which demonstrated the inherent flaws with the judicial system.164 There have been other cases where this has been raised, but it was either rejected at first instance or on appeal.One such appeal regarded the Moroccan system, where the Fifth Circuit considered the standard to be that “fair litigation is impossible”.165 Through this approach, it is clear that while systemic review does exist as a ground of review under the Uniform Act, it has been very tentatively exercised.
While judicial hesitancy is occurring, the key question is whether this is because judges are unable or merely unwilling to apply the test. Firstly, it often appears that judges feel discomfort with judging the legal system of another state. In the author’s opinion this does not equate to an inability to do so. This discomfort broadly stems from the conflict with comity because it requires scrutiny of the integrity of another legal system.
However, this is a matter of whether the test is principally justified, rather than a practical ability to enforce the test.
Moreover, there are three factors which perversely act upon judges to distort their decision-making processes, further entrenching this discomfort in the specific Chinese scenario. Firstly, China’s reciprocal approach to enforcement creates a disproportionate trade-off in every individual case. The actual calculus becomes increasingly difficult for any court acting on a single case, as the corollary of refusing enforcement is the potential failure to have any future enforcement in China.166 This places an incredibly difficult burden on any single decision, as it (sometimes indirectly) requires a contrast of the refusal to enforce any single decision with the potential loss of reciprocal enforcement.
This reasoning has been evident in New Zealand, as seen in Hebei Huaneng where the
163 Bridgeway Corp v Citibank, above n 162, at 287-288.
164 Chevron Corp v Donziger, 974 F Supp 2d 362 (SDNY 2014); and Chevron Corp v Donziger, 833 F3d 74 833 F3d 74 (2d Cir 2016).
165 Dejoria v. Maghreb Petroleum Expl, above n 143, at 382.
166 Dodge “Against Systemic Review of Foreign Judgments”, above n 154, at 105-112.
“potentially broad ramifications’ were noted.167 Secondly, this phenomenon is enforced by the internal environment, particularly within the United States. The collective response to the decision in Shanghai Yongrun is demonstrative of the immense caution and fear of losing reciprocity.168 This outcry is likely to be targeted towards the individual judges, which means that personal implications such as career impacts may also weigh into these decisions. Thirdly, it is an extremely high burden to place on any individual to have both the competency and confidence to declare an entire country’s legal system as inadequate.169 This makes caution an extremely attractive option, which encourages decision-making to not deviate from the present approach.
However, this is not a particularly strong reason to deviate from systemic review, despite the convergence in opinion between the two leading voices in the area. Fundamentally, the core role of judges is to make determinations on difficult factual and legal areas. If sufficient evidence is put in front of judges, which there is an incentive to do so because of the adversarial system, judges can determine which narrative is more compelling.
Courts should be empowered to do their role and an awareness of these non-legal factors would mostly assist. Given these conclusions, there is not a practical reason to turn away from systemic review.
Systematic review becomes more problematic when ascertaining whether it is likely to achieve the principled balance set out in the framework. The overriding concern in this evaluation is that it is fundamentally unclear how often illegitimate reasoning occurs.This serves as the core factor differentiating from case-specific exceptions, where the guarantee of unfairness overrides. To determine whether a systemic approach is appropriate, it needs to be established that the unfairness clearly overrides alternate principled considerations. Two subsequent questions arise. Firstly, how egregiously does Chinese illegitimate judicial practices conflict with domestic legal norms, violating the
167 Hebei Huaneng Industrial Development Co Ltd v Shi [2020] NZHC 2470 at [98].
168 Brief for Amici Curiae, above n 152.
169 Dodge “Against Systemic Review of Foreign Judgments”, above n 154, at 108-110.
value of fairness? Secondly, should any breach of fairness outweigh the competing principles identified in the framework?
The intuitive understanding of fairness is that enforcement of illegitimate judgments or refusing enforcement of legitimate decisions both create an injustice of equal magnitude. In the instance where systemic review of the Chinese legal system was adopted, it would both prevent the enforcement of legitimate decisions from China and the enforcement of New Zealand decisions in China, through the reciprocal Chinese approach.170 This indicates that there may be an increase in unfairness if systemic review was adopted.
However, there are five factors which shift this calculus, indicating that permitting enforcement would lead to a particularly pernicious violation of fairness.
Firstly, the relative disadvantage is widely disparate. When a court enforces an illegitimate decision, the maximum unfairness occurs. Comparatively, when a court refuses to enforce a legitimate judgment, the parties can seek justice through relitigating the issue. Except in instances where it would not be possible, a court is likely to find New Zealand to be the appropriate forum if it has previously refused to enforce a judgment from the foreign country.171 While re-litigation would incur additional legal and time costs, it is likely this would give rise to the correct decision, so the relative loss is substantially lower.
Secondly, when illegitimate reasoning has occurred, it reaches the current standard for being overriding. If there was sufficient evidence of a political committee overriding a judge’s decision, that would likely give rise to an exception.172 The only differentiating factor is that it cannot be known if the impropriety occurred, rather than the type of impropriety.
170 Yu and Du “China’s 2022 Landmark Judicial Policy Clears Final Hurdle for Enforcement of Foreign Judgments”, above n 78; and Dodge and Zhang “Reciprocity in China—US Judgments Recognition”, above n 74, at 1546.
171 This would depend on the connection to the forum of New Zealand. In some instances, such as Hebei Huaneng, the only connection is the presence of assets which would not allow for re-litigation.
172 Hebei Huaneng Industrial Development Co Ltd v Shi [2021] NZHC 2687 at [88].
Thirdly, the loss of reciprocal enforcement and any subsequent enforcement should be weighed to a lower degree. The Chinese legal system opted to adopt reciprocal enforcement and this choice carries the risk of a lack of enforcement.173 While there is a consequential link, there is extricated from the specific role of the New Zealand court, reducing moral culpability.
Fourthly, while enforcing an illegitimate decision does not meet the standard of the classical maxim of criminal law, where 100 guilty people going free is preferable to imprisoning a single guilty person, this still is an exercise of state power.174 Inherently, there should be a cautious approach to enforcement, as the ultimately coercive nature of state power should have a higher burden to being exercised. The decision to enforce engages the state apparatus, which has the capacity to exercise ultimate force to ensure the repayment of debts by seizing goods and preventing freedom of movement.175 This should not be done lightly.
Fifthly, the deliberate opacity inherent in the Chinese system has implications for this balancing test. Considering the difficulty which courts have had with unpacking the manufactured opacity, a deferential approach creates a perverse incentive to continue this approach. New Zealand’s domestic law should not be rewarding authoritarian states for attempting to hide the impropriety of their judicial decision-making. Overall, incorporating systemic review would be fairer and would prevent decisions which do not accord with domestic legal norms from occurring.
The aversion to systemic review can be assessed through three limbs: inhibiting international commerce, undermining comity and risking an expansionary approach.
173 Dodge “Against Systemic Review of Foreign Judgments”, above n 154, at 95-99.
174 Clarke “Enforcing Chinese Judgments: A Response”, above n 159.
175 Clarke “Enforcing Chinese Judgments: A Response”, above n 159.
(i) International commerceDodge’s centrality of efficiency is a typically American approach, where law and economics remains a part of the legal jurisprudence.176 As noted above, it is fairly tenuous as to what extent economic analyses should remain a part of New Zealand jurisprudence. Specifically, New Zealand courts have shown a broad disregard for the types of granular economic analysis which Dodge undertakes.177 Moreover, insofar as upholding international commerce is a useful factor to consider, it is not particularly clear that there is an obvious benefit. While preventing enforcement may have a cooling effect on international commerce, the same could happen with the enforcement of illegitimate decisions. If there was a risk of unfairly being saddled with additional costs, it could serve as a disincentive to partake in international commerce. Therefore, while international commerce should not be a particularly weighty factor, it also does not indicate a particular course of action is suitable.
The second concern is the extent to which systematic review conflicts with the principle of comity. This approach appears to be behind the New Zealand hesitancy to adopt systemic review.178 A core limb of the aversion centres around the conceptualisation of comity as respecting the integrity of other states. In Hebei, the High Court referred to the following claim: “it is not the business of our courts to assume the responsibility for supervising the integrity of the judicial system of another sovereign government”.179 This draws heavily upon ideas of comity, particularly in the reluctance to question the integrity of a foreign state. However, it should be contrasted with the recent position of the Privy Council in Altimo Holdings:180
The true position is that there is no rule that the English Court (or Manx Court) will not examine the question whether the foreign court or the foreign court system is
176 Dodge “Against Systemic Review of Foreign Judgments”, above n 154, at 95-102.
177 Griffiths “A short history of ‘law and economics’ in New Zealand in the 1990s”, above n 42, at 163-165.
178 Hebei Huaneng Industrial Development Co Ltd v Shi [2020] NZHC 2992 at [35]- [40].
179 Blanco v Banco Industrial de Venezuela [1993] USCA2 647; 997 F 2d 974 (2nd Cir 1993) at 981, in Hebei Huaneng Industrial Development Co Ltd v Shi [2020] NZHC 2992 at [40].
180 Altimo Holdings and Investment Limited v Kyrgyz Mobil Tel Limited, above n 38, at [101].
corrupt or lacking in independence. The rule is that considerations of international comity will militate against such finding in the absence of cogent evidence. ... Otherwise the paradoxical result would follow that, the worse the system of justice in the foreign country, the less it would be permissible to make adverse findings on it.
For example, if a decision came from the North Korean courts, with no apparent impropriety, a New Zealand court would likely be very hesitant to enforce it on the basis of systemic concerns. Moreover, as seen in Kim, courts are willing to inquire into the integrity of other state’s judicial systems when necessary. However, there is still a clear aversion to questioning the integrity of other states unless it is both necessary and factually justified. The other limbs of comity such as deference and respect also clearly push against systemic review. Collectively, there is a substantial push against systemic review through the principles of comity.
(iii) Risk of an expansionary approach
The third concern is whether this reasoning would be expansionary. This concern stems from Dodge’s various articles on the subject, particularly in response to the initial decision in Shanghai Yongrun.181 If this reasoning was applicable to many states, it could lead to litigation generally becoming bogged down in systemic review proceedings.
Dodge was correctly concerned about the overt reliance of the New York Supreme Court on State Department reports, which do not accurately encompass the reality of the majority of inane commercial trials but instead depicts politically sensitive matters.
Following the court’s reliance on these reports, 141 countries would meet the standard laid out for non-recognition.182 However, this concern is not relevant in the New Zealand context because without reliance on these reports, this issue does not occur. Therefore, any expansion to other countries merely applies the same balancing test, so would only occur in justified situations. The second limb of this concern, is that it could be argued that Western countries suffer from corruption as well, especially in light of the Clarence
181 Dodge “Against Systemic Review of Foreign Judgments”, above n 154, at 97; , Dodge and Zhang “Reciprocity in China—US Judgments Recognition”, above n 75, at 1546; and Brief for Amici Curiae, above n 152, at 6.
182 Brief for Amici Curiae, above n 152, at 6.
Thomas scandal.183 However, Clarke outlines two differentiating factors.184 Firstly, the frequency of this structural impropriety is drastically different.185 Secondly, the nature of the system can be identified by whether the response to these issues treat the impropriety as a feature or a bug.186 In Western systems, there is huge controversy if the justice system is interfered with, while in China this is broadly accepted.187 Therefore, the concern about expansion of the test is unlikely to be relevant.
Finally, the interactions between these competing considerations need to be weighed against each other. The current approach to public policy demonstrates that an exceedingly unfair decision would trump any concerns of comity and international commerce, as a safety valve to uphold fairness. However, this is limited. An example of this is the principle against inquiry into the substance of a decision. This means any case which is poorly decided, which itself imputes unfairness, would not trump those external factors. The question is where the principled balance sits on this continuum.
In terms of fairness, the intrusion on individual fairness is strong. The kind of problems which arise behind manufactured opacity are of the nature that should prevent enforcement.188 The core differentiating factor is that the occurrence of this illegitimacy is uncertain. Comparatively, the intrusion on comity is greater. Asking courts to determine the integrity of a foreign judicial system is uncomfortable, however, it is not so undesirable that it should allow for unfairness to enter the domestic legal system.189 When reconciling these competing principles, it is difficult to determine whether the intrusion on fairness should override questions of comity. The court is forced between the
183 Li Zhou “The many ethics scandals of Clarence and Ginni Thomas, briefly explained” Vox (5 May 2023) <www.vox.com>.
184 Clarke “Order and Law in China”, above n 47, at 545-550. 185 Clarke “Order and Law in China”, above n 47, at 547-548. 186 Clarke “Order and Law in China”, above n 47, at 548-550.
187 The outcry about the Clarence Thomas scandal can be contrasted with the rejection of judicial independence in China, see Clarke “Judging China: The Chinese Legal System in US Courts”, above n 50, at 477-479.
188 Hebei Huaneng Industrial Development Co Ltd v Shi [2021] NZHC 2687 at [88].
189 Altimo Holdings and Investment Limited v Kyrgyz Mobil Tel Limited, above n 38, at [101].
rock of enforcing unfair and illegitimate judgments, and a hard place of intruding on comity.
A persuasive method of considering this is through the idea of necessity. Referring back to Lloyds, the Ontario Court of Appeal conceptualised the public policy exception as a safety valve, which serves as a last resort.190 If a case was merely wrongly decided, the ability for an appeal would have the ability to right the decision. Therefore, asking for a determination of a fault from another court intervenes with comity when it is not necessary. This explains why the unfairness imputed by a decision decided incorrectly is insufficient, while a fraudulently obtained decision is sufficient. Moreover, this idea of necessity can find further support by referring to the conclusion of High and Geddis, where the “utilitarian ‘ends justify the means’ reasoning is contrary to the very idea of the right to due process”.191 While in a different context, it assists in rejecting the idea of a utilitarian framework, instead emphasising the principled role of the court.
In this situation, there is a differentiating factor in each direction. There is a similar necessity in the absence of alternate remedies but a diminished degree of certainty of impropriety. The core question which needs to be asked is, in light of the absence of alternate case specific remedies, is systemic review or no response whatsoever preferable? This situation is a lesser of both evils situation. Either systemic review is adopted as a safety valve, which overcorrects and prevent enforcement of legitimate decisions, or there is no plausible remedy and illegitimate decisions are enforced through the New Zealand judicial apparatus.
Ultimately, given the importance of the proper use of the coercive power of the state, and the duty of courts to protect their own citizens from unfairness, this author narrowly concludes that courts should prioritise individual fairness over the principle of comity.
190 Society of Lloyd’s v Meinzer, above n 29, at [60].
191 High and Geddis "Diplomatic Assurances as a Basis for Extradition to the People’s Republic of China", above n 107, at 254.
This means that in the absence of any other alternatives, adopting systemic review is reasonable course of action for New Zealand law to take.
B Alternate Hybrid Proposal
At this point, specific review is ineffective and systemic review is plausible but flawed. If there was an alternate exception which was less intrusive, but would still capture evidentially difficult cases, it would avoid the harms of each. This dissertation proposes a hybrid approach, which would likely mitigate the economic risks and harms to comity, while maintaining judicial flexibility to uphold domestic principles and values. The core issue with the specific approach is that it fails in light of manufactured opacity because the burden is placed upon the party protesting enforcement to demonstrate specific impropriety despite the impossibility of the task. The core issue with the systemic approach is that it overcorrects and prevents enforcement even when legitimate practice has occurred. A plausible solution to this is a hybrid approach. The protesting party would establish systemic issues with the legal system, which would shift the burden. The enforcing party would then have to demonstrate that the proceedings were fair, in order to have enforcement. To evaluate the response, three questions must be asked. Does this overcome the factual issues with manufactured opacity? Second, does this still uphold fairness? Third, does this mitigate the extent of economic and comity-based harms?
The failures of specific review are the evidential issues due to manufactured opacity preventing courts from identifying illegitimate decisions, and the procedural struggle of judges in the application of the test. The hybrid approach would likely capture a far greater amount of these decisions for three reasons. First, opacity now works against enforcement. When only positive indicia of legitimacy give rise to enforcement, this would correct the current imbalance. Secondly, while it would be unlikely to be perfect, it would likely be more accurate than either specific or systemic review. A core issue judges presently struggle with is that in the absence of information, it is difficult to establish the nature of proceedings. This inevitably leads to the question of how it would be established that a proceeding was fair. In the author’s opinion, this could occur through a range of methods. Court documents or evidence could be gained, potentiallimbs of bias could be explored and there could be a quasi-assessment of the merits of the decision. Thirdly, this is the only option which specifically changes the incentive structure to increase information dissemination. This approach would actively discourage opacity, which could lead to greater availability of information in pursuit of the enforcement of judgments. Overall, while this approach would not be perfect, it would create an environment where greater factual availability exists and the approach to that information is likely to be closer to the reality.
It is difficult to assess how judges would apply a hypothetical test. This test is more complex than the previous approach, with which judges have already struggled.192 However, judges should have the capacity to overcome these issues. The ability to establish individual fairness would likely reassure judges that a finding of systemic issues is not fatal to every individual proceeding.193 It would also give judges the ability to exercise their own discretion and also ensure that the two realms do not overlap, as they tend to do. Finally, judges should be trusted to competently do their job. This hybrid remedy would also lessen the non-legal pressures identified above because the lack of an overarching precedent would diminish the personal consequences, such as academic backlash or harms to career prospects. Ultimately, the two core concerns for specific review are likely to be diminished.
The questions of principle, when contrasting this with systemic review, can broadly be split into assessing four categories: the parties attempting to enforce in New Zealand, parties attempting to enforce in China, comity, and external economic considerations.
For the parties in New Zealand, this is likely to capture most of the unfairness of enforcing illegitimate judgments but diminish the refusal to enforce some fair decisions. This generally would seem to uphold fairness and temper any mild economic harm.
192 Global Material Techs Inc v. Dazheng Metal Fibre Co, above n 127, at 8; Clarke “Judging China: The Chinese Legal System in US Courts”, above n 49, at 537; and Yancheng Shanda Yuanfeng Equity Investment Partnership v. Wan, above n 134, at 10.
193 This would prevent the kinds of situations which arose in Yancheng Shanda Yuanfeng Equity Investment Partnership v. Wan, above n 134, at 10.
Secondly, for parties attempting to enforce in China, it is difficult to assess whether this hybrid approach would be contrary to the reciprocal Chinese standard.194 The question is broadly whether there is an ability for Chinese judgments to be enforced under similar circumstances.195 At a theoretical level, there should be continued reciprocity because only illegitimate decisions would be captured. However, there is a risk that China would practically conceptualise this as being similar to systemic review and therefore end the reciprocal relationship with New Zealand.
The intrusion upon comity is similar, although mildly mitigated when compared to systemic review. Following the position of the Privy Council in Altimo Holdings, where cogent evidence is critical, this approach is likely to have the strongest evidential grounding.196 Moreover, it lessens the concern about entirely overriding foreign jurisdictions, by providing an ability to recognise the legitimacy of decisions. However, it still requires supervising the integrity of a foreign judicial system, which still conflicts strongly with the various meanings of comity.197
Finally, with regards to general transnational commerce, this approach is likely to diminish any chilling effect. That is because it both provides an avenue for enforcement which would keep business confidence relatively high, and it would decrease any signaling of economic decoupling which systemic review would imply. Overall, this approach is likely to maintain a lot of the benefits of systemic review, while avoiding the major detracting factors. This appears to align with the identified framework, and therefore, is a principally preferable approach.
194 King Fung Tsang “Enforcement of foreign commercial judgments in China” (2018) 14 J Priv Int Law 262 at 262-264.
195 Tsang “Enforcement of foreign commercial judgments in China”, above n 194, at 264-270.
196 Altimo Holdings and Investment Limited v Kyrgyz Mobil Tel Limited, above n 38, at [101].
197 Briggs The Principle of Comity in Private International Law (Volume 354), above n 35, at 80; Endicott “Comity among Authorities” above n 37, at 4-16; and Childress “Comity as Conflict: Resituating
International Comity as Conflict of Laws”, above n 37, at 11-20.
V Conclusion
Any legal writing about the Chinese legal system must contend with the inherent uncertainty which is structurally rife within the system. However, what this dissertation has attempted to do is embrace this uncertainty and explain why piercing this is often an impossible task. When uncertainty is accepted, there are a few core claims which remain. It is apparent that there are multiple situations where decisions are made by a legal institution (the Chinese Courts) in a non-legal way (adjudication committees, political influence, personal influence) at an uncertain rate (due to manufactured opacity). The core tenet of this dissertation is attempting to resolve the two subsequent issues that arise because of this. Should we be enforcing these decisions generally? If not, how should the law be configured to capture this in the most effective way possible? In answering these questions, this dissertation has demonstrated that there is a strong principled impetus against enforcement and that current legal configurations are premised upon informational certainty which is difficult to find in the Chinese context. Therefore, in light of this manufactured opacity, either systemic review or a new proposed hybrid exception would rebalance the current approach and prevent New Zealand courts from their current course of enforcing the political machinations of an authoritarian state.
More broadly, as authoritarian states are increasing in technological capacity and sophistication, the issue of manufactured opacity is likely to continue to arise. It is imperative that courts have a sufficient response in their arsenal, so that they do not remain fenced into enforcing illegitimate judgments through the state apparatus.
Moreover, by increasing the awareness of the necessity of judges embracing the uncomfortable position of assessing foreign legal systems, it will increase the fairness of outcomes which the New Zealand legal system delivers. Without a change in course, there is a risk that the judicial system continues to navigate down an untenable path.
VI Bibliography
A Cases
Bin v Sun [2023] NZHC 436
Chen v Lin [2016] NZCA 113; [2016] NZAR 606.
Eilenberg v Gutierrez [2017] NZCA 270.
Hebei Huaneng Industrial Development Co Ltd v Shi [2020] NZHC 2470. Hebei Huaneng Industrial Development Co Ltd v Shi [2020] NZHC 2992. Hebei Huaneng Industrial Development Co Ltd v Shi [2021] NZHC 2687. Hebei Huaneng Industrial Development Co Ltd v Shi [2022] NZHC 1484. Hebei Huaneng Industrial Development Co Ltd v Shi [2022] NZCA 534. Hebei Huaneng Industrial Development Co Ltd v Shi [2023] NZHC 2501. Minister of Justice v Kim [2021] NZSC 57.
Minister of Justice v Kim [2022] NZSC 44.
Pemberton v Chappell [1986] NZCA 112; [1987] 1 NZLR 1 (CA).
Ross v Ross [2010] NZCA 447, [2011] NZAR 30.
Von Wyl v Engeler [1998] 3 NZLR 416 (CA).
Carl Zeiss Stiftung v Rayner and Keeler Ltd (No.2) [1967] 1 AC 853 (HL)
Godard v Gray (1870) LR 6 QB 139.
Russell v Smyth [1842] EngR 521; (1842) 9 M & W 810, 152 ER 343.
Schibsby v Westenholz (1870) LR 6 QB 155.
Williams v Jones [1845] EngR 394; (1845) 13 M & W 628, 153 ER 262.
Anyang Xinyi Elec. Glass Co. v. B & F Int’l (USA), Inc., No. CV 15–00862- BRO (AJWx), 2015 WL 12859716 (C.D. Cal. Nov. 24, 2015).
Blanco v Banco Industrial de Venezuela [1993] USCA2 647; 997 F 2d 974 (2nd Cir 1993)
Bridgeway Corp v Citibank 45 F. Supp. 2d 276 (SDNY 1999).
Bridgeway Corp v Citibank [2000] USCA2 1; 201 F3d 134 (2d Cir 2000).
Chevron Corp v Donziger 974 F Supp 2d 362 (SDNY 2014).
Chevron Corp v Donziger 833 F3d 74 833 F3d 74 (2d Cir 2016).
Global Material Techs Inc v. Dazheng Metal Fibre Co No 12 CV 1851 2015 WL 1977527 (ND Ill May 1 2015).
Hilton v Guyot [1895] USSC 185; 159 US 113 (1895) at 163-164.
Hubei Gezhouba Sanlian Indus Co v Robinson Helicopter Co 425 F. App’x 580 (9th Cir 2011).
Shanghai Yongrun Investment Mgmt Co v Kashi Galaxy Venture Capital Co No 156328/2020 2021 WL 1716424 (NY Sup Ct Apr 30 2021).
Shanghai Yongrun Investment Mgmt Co v Xu 160 NYS 3d 874 (NY App Div 2022).
Beals v Saldanha [2003] SCR 416.
Morguard Investments Ltd v De Savoye [1990] 3 SCR 1077. Society of Lloyd’s v Meinzer (2001) 210 DLR (4th) 519 (ONCA). Tolofson v Jensen [1994] 3 SCR 1022.
Altimo Holdings and Investment Limited v Kyrgyz Mobil Tel Limited [2011] UKPC 7, [2012] 1 WLR 1804.
B Legislation
Reciprocal Enforcement of Judgments Act 1934. Senior Courts Act 2016.
Trans-Tasman Proceedings Act 2010.
Uniform Foreign Money-Judgments Recognition Act of 1962. Uniform Foreign Money-Judgments Recognition Act of 2005.
C Books and Chapters in Books
Elsemiek Apers “Harmonisation of Conflict of Law Rules in the US? The Example of
Recognition and Enforcement of Foreign Money Judgments” in Vesna Lazić and Steven Stuij (eds) International Dispute Resolution (T.M.C. Asser Press, The Hague, 2018) 67.
Adrian Briggs “Foreign Judgments” in The Conflict of Laws (Oxford University Press, 2019) 126.
James Edelman and Madeleine Salinger “Comity in Private International Law and Fundamental Principles of Justice” in A Conflict Of Laws Companion (Oxford University Press, 2021) 325.
Shelley Griffiths “A short history of ‘law and economics’ in New Zealand in the 1990s.” in Shelley Griffiths, Mark Henaghan and Marcelo Rodriguez Ferrere (eds) The search for
certainty: Essays in honour of John Smillie (Thomson Reuters, Wellington, New Zealand, 2016) 151.
Maria Hook and Jack Wass The conflict of laws in New Zealand (LexisNexis NZ Limited, Wellington, 2020).
Kwai Hang Ng and Xin He Embedded courts (Cambridge University Press, Cambridge, United Kingdom ; New York, NY, USA, 2017).
Matej Šimalčík “Rule by Law” in Kristina Kironska and Richard Q Turcsanyi (eds) Contemporary China: A new superpower? (Routledge, Abingdon, Oxon ; New York, NY, 2023) 114.
Peter Solomon “Law and Courts in Authoritarian States” in James D Wright (ed) International encyclopedia of the social & behavioral sciences (2. ed ed, Elsevier, Amsterdam, 2015) 427.
Zheng Tang, Yongping Xiao and Zhengxin Huo Conflict of Laws in the People’s Republic of China (Edward Elgar Publishing, 2016).
D Journal Articles
Andrew Bell “The Future of Private International Law in Australia” (2012) 19 AJIL 11.
John B Bellinger and R Reeves Anderson “Tort Tourism: The Case for a Federal Law on Foreign Judgment Recognition” (2014) 54 Va J Int’l L 501.
Marc Bühlmann and Ruth Kunz “Confidence in the Judiciary: Comparing the Independence and Legitimacy of Judicial Systems” (2011) 34 West European Politics 317.
Kevin Burke and Steve Leben “Procedural Fairness in a Pandemic: It’s Still Critical to Public Trust” (2020) 68 Drake L Rev 685.
Connor Cardoso “Implementing the Hague Judgments Convention” 97 NYU L Rev 1507. Mathilde Chatin and Giulio M Gallarotti “The BRICS and soft power: an introduction” (2016) 9 Journal of Political Power 335.
Donald Earl Childress III “Comity as Conflict: Resituating International Comity as Conflict of Laws” (2010) 44 UC Davis L Rev 11.
Donald C Clarke “Order and Law in China” (2022) 2 U Ill L Rev 541.
Donald C Clarke “Judging China: The Chinese Legal System in U.S. Courts” (2023) 44 U Pa J Intl L 455.
Rogier Creemers “China’s Constitutionalism Debate: Content, Context And Implications” (2015) 74 The China Journal 91.
Rogier Creemers “Party Ideology and Chinese Law” [2018] SSRN Electronic Journal.
William Dodge “Against Systemic Review of Foreign Judgments” (2022) 28 SW J Int L 95.
William S Dodge and Wenliang Zhang “Reciprocity in China—US Judgments Recognition” (2020) 53 Vanderbilt Journal of Transnational Law 1541.
Sarah Eaton and Genia Kostka “Central Protectionism in China: The ‘Central SOE Problem’ in Environmental Governance” (2017) 231 The China Quarterly 685.
Timothy Endicott “Comity among Authorities” (2015) 68 Current Legal Problems 1. Tom Ginsburg “Authoritarian International Law?” (2020) 114 AJIL 221.
Xin He “Black Hole of Responsibility: The Adjudication Committee’s Role in a Chinese Court: The Adjudication Committee’s Role in a Chinese Court” (2012) 46 Law & Society Review 681.
HL Ho “Policies Underlying the Enforcement of Foreign Commercial Judgments” (1997) 46 ICLQ 443.
Samantha Hoffman “China’s Tech-Enhanced Authoritarianism” (2022) 33 Journal of Democracy 76.
Jingyang Huang and Kellee S Tsai “Securing Authoritarian Capitalism in the Digital Age: The Political Economy of Surveillance in China” (2022) 88 The China Journal 2.
Mark Jia “Illiberal Law in American Courts” (2020) 168 University of Pennsylvania Law Review 1685.
Thomas E Kellogg “Arguing Chinese Constitutionalism: The 2013 Constitutional Debate and the ‘Urgency’ of Political Reform” (2016) 11 University of Pennsylvania Asian Law Review 337.
Thomas Kelly “An Unwise and Unmanageable Anachronism: Why the Time Has Come to Eliminate Systemic Inadequacy as a Basis for Nonrecognition of Foreign Judgments” (2011) 42 Geo J Intl L 555.
Ling Li “The ‘Production’ of Corruption in China’s Courts: Judicial Politics and Decision Making in a One-Party State” (2012) 37 LSI 848.
Chenglin Liu “Escaping Liability via Forum Non Conveniens: ConocoPhillips’s Oil Spill in China” (2014) 17 University of Pennsylvania Journal of Law and Social Change 137.
Ernest Lorenzen “Huber’s De Conflictu Legum” (1918) 13 Ill LR 375.
Campbell McLachlan “Reforming New Zealand’s Conflicts Process: The Case for Internationalisation” (1984) 14 VUWLR 443.
Carl Minzner “China’s Turn Against Law” (2011) 59 American Journal of Comparative Law 935.
Joseph S Nye “Power and Interdependence with China” (2020) 43 The Washington Quarterly 7.
Joel R Paul “Comity in international law” (1991) 32 Harv Intl LJ 1.
Joel R Paul “The Transformation of International Comity” (2008) 71 Law Contemp Probl 19.
Hans Smit “International Res Judicata and Collateral Estoppel in the United States” (1962) 9 UCLA L Rev 44.
David P Stewart “The Hague Conference Adopts a New Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters” (2019) 113 American Journal of International Law 772.
King Fung Tsang “China’s Rule of Law from a Private International Law Perspective” (2018) 47 Ga J Int’l & Comp L 93.
King Fung Tsang “Enforcement of foreign commercial judgments in China” (2018) 14 J Priv Int Law 262.
John Turner “Enforcing Foreign Judgments at Common Law in New Zealand: Is the Concept of Comity Still Relevant?” (2013) 4 NZLR 653.
Shucheng Wang “Authoritarian Legality and Legal Instrumentalism in China” (2022) 10 The Chinese Journal of Comparative Law 154.
Yueduan Wang “Overcoming Embeddedness: How China’s Judicial Accountability Reforms Make Its Judges More Autonomous” (2022) 43 Fordham International Law Journal 737.
Yuhua Wang “Relative Capture: Quasi-Experimental Evidence From the Chinese Judiciary” (2018) 51 Comparative Political Studies 1012.
Ji Weidong “The Judicial Reform in China: The Status Quo and Future Directions” (2013) 20 Indiana Journal of Global Legal Studies 185.
Q Zhang “A constitution without constitutionalism? The paths of constitutional development in China” (2010) 8 International Journal of Constitutional Law 950.
Taisu Zhang and Tom Ginsburg “China’s Turn Toward Law” (2019) 59 Virginia Journal of International Law 306.
W Zhang “Recognition and Enforcement of Foreign Judgments in China: A Call for Special Attention to Both the ‘Due Service Requirement’ and the ‘Principle of
Reciprocity’” (2013) 12 Chinese Journal of International Law 143.
Wenliang Zhang “Sino–Foreign Recognition and Enforcement of Judgments: A Promising ‘Follow-Suit’ Model?” (2017) 16 Chinese Journal of International Law 515.
E Online Sources
International Monetary Fund World Economic Outlook Database April 2023.
US Department of State, Bureau of Consular Affairs Country Information: China.
Adrian Briggs The Principle of Comity in Private International Law (Volume 354)
(Collected Courses of the Hague Academy of International Law, 2012).
Donald C Clarke “Enforcing Chinese Judgments: A Response” (10 October 2022) Transnational Litigation Blog <https://tlblog.org>.
Michael Forsythe “China’s Chief Justice Rejects an Independent Judiciary, and Reformers Wince” New York Times (18 January 2017) <www.nytimes.com>.
Amy Hawkins “Explainer: China’s covert overseas ‘police stations’” The Guardian (20 April 2023) <www.theguardian.com>.
Meng Yu and Guodong Du “China’s 2022 Landmark Judicial Policy Clears Final Hurdle for Enforcement of Foreign Judgments” (1 July 2022) Conflict of Laws
<https://conflictoflaws.net>.
Li Zhou “The many ethics scandals of Clarence and Ginni Thomas, briefly explained”
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