The Chinese Journal of Comparative Law (2014) Vol. 2 No. 1 pp.

175^180
Advance Access publication 5 February 2014 doi:10.1093/cjcl/cxu001

Interpretation I of the Supreme

People’s Court on Certain Issues
Concerning theApplication of the
‘Law of the People’s Republic of
China on Application of Law to
Foreign-Related Civil Relations’

Downloaded from http://cjcl.oxfordjournals.org/ by guest on April 23, 2014

Qisheng He*

Announcement of the Supreme People’s Court

Interpretation of the Supreme People’s Court on Certain Issues Concerning the
Application of the ‘Law of the People’s Republic of China on Application of
Law to Foreign-Related Civil Relations’, which has been adopted at the 1563rd
Meeting of the Trial Committee of the Supreme People’s Court on 10 December
2012, is hereby promulgated and enters into force on 7 January 2013.
Supreme People’s Court
28 December 2012
Fa shi [2012] No. 24
In order to correctly handle foreign-related civil cases in accordance with the
provisions of the Law of the People’s Republic of China on Application of Law
to Foreign-Related Civil Relations [Law on Application of Law to Foreign-
Related Civil Relations], certain issues concerning the application of this law
by the people’s courts are interpreted as follows:

Article 1
The people’s court may determine that a civil relation is a foreign-related rela-
tion in any of the following situations:
(1) where either or both parties are foreign citizens, foreign legal persons or
other foreign organizations, or stateless persons;

* Qisheng He, Professor of Law, Wuhan University School of Law, Wuhan 430072, P.R.China, Tel:
0086-13971351878, Email: heqisheng@yahoo.com. The translator thanks Susan Gale
Wintermuth for her English language improvements.

ß The Author (2014). Published by Oxford University Press. All rights reserved.
For Permissions, please email: journals.permissions@oup.com
176 The Chinese Journal of Comparative Law

(2) where the habitual residence of either or both parties is located outside the
territory of the People’s Republic of China;
(3) where the subject matter is outside the territory of the People’s Republic of
China;
(4) where the legal facts that establish, alter or terminate the civil relation
occurred outside the territory of the People’s Republic of China; or
(5) any other situation that may be determined by a foreign-related civil relation.

Article 2
With regard to a foreign-related civil relation that occurred prior to the imple-
mentation of the Law on Application of Law to Foreign-Related Civil Relations,

Downloaded from http://cjcl.oxfordjournals.org/ by guest on April 23, 2014

the people’s courts shall determine the applicable law in accordance with the
provisions of the relevant laws at the time of occurrence of such foreign-related
civil relation. In the absence of such provisions, the applicable law may be
determined with reference to the Law on Application of Law to Foreign-
Related Civil Relations.

Article 3
In case of any discrepancy between the provisions of the Law on Application of
Law to Foreign-Related Civil Relations and other laws on the application of law
to the same foreign-related civil relation, the provisions of the Law on
Application of Law to Foreign-Related Civil Relations shall prevail, except for
the special provisions of laws in the commercial area, such as the Law of the
People’s Republic of China on Negotiable Instruments, the Maritime Law of the
People’s Republic of China, and the Civil Aviation Law of the People’s Republic
of China, and the special provisions of laws in the area of intellectual property.
In the absence of any applicable provision in the Law on Application of Law
to Foreign-Related Civil Relations and the presence of such provision in an-
other law, the provision of the other law prevails.

Article 4
Where the application of law to a foreign-related civil relation involves an interna-
tional convention, the people’s courts shall apply such international convention
in accordance with the provisions of law, such as Article 142(2) of the General
Principles of Civil Law of the People’s Republic of China, Article 95(1) of the Law
of the People’s Republic of China on Negotiable Instruments, Article 268(1)
of the Maritime Law of the People’s Republic of China, and Article 184(1) of the
Civil Aviation Law of the People’s Republic of China, except for international
conventions in the field of intellectual property that either have already been
transformed or must be transformed into domestic law.
Law of the People’s Republic of China on Application of Law to Foreign-Related Civil Relations 177

Article 5
Where the application of law to a foreign-related civil relation involves the
application of any international practice, the people’s courts apply international
practice in accordance with the provisions of law, such as Article 142(3) of the
General Principles of Civil Law of the People’s Republic of China, Article 95(2) of
the Law of the People’s Republic of China on Negotiable Instruments, Article
268(2) of the Maritime Law of the People’s Republic of China, and Article184(2) of
the Civil Aviation Law of the People’s Republic of China.

Article 6

Downloaded from http://cjcl.oxfordjournals.org/ by guest on April 23, 2014

Where the law of the People’s Republic of China does not explicitly specify that
the parties may choose the law applicable to a foreign-related civil relation,
but the parties choose the applicable law, the people’s courts shall determine
that such a choice is invalid.

Article 7
Where a party claims that the choice of law is invalid on the grounds that
the law agreed upon by the parties is not actually associated with the
foreign-related civil relation at issue, the people’s courts do not uphold the
claim.

Article 8
Where the parties agree to choose or change the applicable law prior to the
conclusion of oral arguments at the court of first instance, the people’s court
shall give the approval.
Where both parties invoke the law of the same country and neither has
raised any objection to it, the people’s courts may determine that the parties
have chosen the law applicable to the foreign-related civil relation.

Article 9
Where the parties invoke in their contract an international convention not yet
effective in the People’s Republic of China, the people’s courts may determine
the rights and obligations between the parties in accordance with such an
international convention, unless its provisions prejudice China’s socio-public
interests, or violate the mandatory rules of law or administrative regulation of
the People’s Republic of China.
178 The Chinese Journal of Comparative Law

Article 10
In any of the following situations, the provisions of law or administrative regu-
lation involving the socio-public interests of the People’s Republic of China,
which the parties may not exclude from their application through agreement
and which are directly applicable to a foreign-related civil relation without the
guidance of conflict rules, are to be recognized by the people’s courts as the
mandatory provisions specified in Article 4 of the Law on Application of Law
to Foreign-Related Civil Relations:
(1) where protection of the interests of workers is involved;
(2) where safety of food and public health is involved;
(3) where environmental safety is involved;
(4) where financial safety, such as foreign exchange controls, is involved;

Downloaded from http://cjcl.oxfordjournals.org/ by guest on April 23, 2014

(5) where anti-monopoly or anti-dumping are involved; or
(6) other situations that should be recognized as mandatory provisions.

Article 11
Where a party deliberately creates a point of contact in a foreign-related civil
relation so as to evade being subject to the mandatory rules of law or adminis-
trative regulation of the People’s Republic of China, the people’s courts shall de-
termine that the foreign law is not applicable.

Article 12
Where the resolution of a foreign-related civil dispute must be premised on
confirmation of another foreign-related civil relation, the people’s courts shall
determine the law applicable to the preliminary question in accordance with
the nature of such a question per se.

Article 13
Where a case involves two or more foreign-related civil relations, the people’s
courts shall determine the applicable laws respectively.

Article 14
Where the parties did not choose the law applicable to a foreign-related arbitra-
tion agreement, nor did they agree on the arbitration institution or the place
of arbitration, or where their agreement to arbitrate cannot be ascertained,
the people’s courts may apply the law of the People’s Republic of China to deter-
mine the validity of the arbitration agreement.
Law of the People’s Republic of China on Application of Law to Foreign-Related Civil Relations 179

Article 15
The place where a natural person continuously lived as his/her living centre for
over one year when the foreign-related civil relation arose, was altered, or ended
may be determined by the people’s courts as the habitual residence of the natural
person as specified by the Law on Application of Law to Foreign-Related Civil
Relations, except for situations where the natural person seeks medical treatment
abroad, is posted to work abroad, or performs professional activities abroad.

Article 16
The people’s court shall determine the registered place where a legal person is

Downloaded from http://cjcl.oxfordjournals.org/ by guest on April 23, 2014

established as the place of registration of the legal person as specified by the
Law on Application of Law to Foreign-Related Civil Relations.

Article 17
Where a people’s court fails to ascertain a foreign law through reasonable
channels, such as those provided by the parties, specified by international con-
vention effective in the People’s Republic of China, or provided by Chinese and
foreign legal experts, the people’s court may determine that the foreign law
cannot be ascertained.
Where, pursuant to Article 10(1) of the Law on Application of Law to
Foreign-Related Civil Relations, a party is required to provide a foreign law but
fails to provide such a foreign law without justifiable cause within the reason-
able time limit designated by a people’s court, the people’s court may determine
that the foreign law cannot be ascertained.

Article 18
The people’s court shall listen to the opinions of the parties on the contents, inter-
pretation, and application of an applicable foreign law. Where the parties do not
raise any objection to the contents, interpretation, and application of the foreign
law, the people’s court may affirm the foreign law.Where the parties raise any objec-
tion, the people’s court shall conduct an examination and make a determination.

Article 19
This Interpretation applies as the reference for the application of law to civil
relations involving the Hong Kong Special Administrative Region and the
Macao Special Administrative Region.
180 The Chinese Journal of Comparative Law

Article 20
For a foreign-related civil case that occurs after the implementation of the Law
on Application of Law to Foreign-Related Civil Relations, if the final judgment
has not been made at the time of the implementation of this Interpretation,
the Interpretation applies. Where the final judgment has been made prior to
the implementation of this Interpretation, but the parties apply for a retrial
or the retrial is determined in accordance with the trial supervision procedure,
the Interpretation does not apply.

Article 21

Downloaded from http://cjcl.oxfordjournals.org/ by guest on April 23, 2014

In case of any discrepancy between judicial interpretations issued previously
by the Supreme People’s Court and this Interpretation, this Interpretation
prevails.