The butterfly effect of civil procedure law revision on cross‐border bankruptcies in China

Brexit raises a whole range of legal issues in multiple areas. The consequences on the EU framework for jurisdiction, recognition and enforcement of judgments are of particular interest for private parties involved in cross-border commercial agreements. This paper explores the legal basis for the jurisdiction of courts and the enforcement and recognition of judgments between the UK and EU-27 courts after Brexit. In addition, it broadly contrasts the main differences of the proposed solutions compared to the EU system. The paper argues that international conventions can provide answers to some of the questions as they set out rules for the jurisdiction, enforcement and recognition of judgments. However, there are factors that can have an impact on possible legal outcomes, such as the framework of the future deal between the UK and the EU-27, the moment of the commencement of proceedings by the parties in the transition period, or the fact that the parties did not opt for exclusive jurisdiction in their agreements. The Withdrawal Agreement provides for some clarity on which EU law provisions apply during the transition period. In addition, the EC Notices and the UK Brexit legislation provide for guidelines as to the rules applicable in and immediately after the transition period. Nevertheless, as the paper analyses, there is still a need for further clarification. Therefore, other methods of dispute resolution proposed in the article such as moving to arbitration instead of English court jurisdiction could provide legal certainty for private parties. Keywords: EU law, Brexit, art 50, withdrawal agreement, recognition and enforcement of judgements, EU civil justice and judicial cooperation, cross-border commercial disputes. This work is licensed under the Creative Commons Attribution − Non-Commercial − No Derivatives 4.0 International License. Suggested citation: M Kulinska, ‘Cross-Border Commercial Disputes: Jurisdiction, Recognition and Enforcement of Judgments After Brexit’ (2020) 16 CYELP 279.

Both China and Korea have provided for reciprocal enforcement of foreign judgments in their civil procedure law respectively, and in practice, a Korean court first recognized a Chinese judgment in 1999, a Chinese court first affirmed the existence of reciprocity in 2019 after twice refusal based on lack of reciprocity. Given the current situation, there are still inconsistencies in the operation of reciprocal standards between the two countries, which may lead to uncertainties for mutual recognition and enforcement. This Article provides an overview of mutual recognition and enforcement between the two countries and analyzes the similarities and differences in rules and practices, aiming to explore a set of feasible paths for promoting the smooth circulation of judgments between China and Korea.

Chinese judicial practice demonstrates great diversity in enforcing exclusive jurisdiction clauses. In practice, the derogation effect of a valid foreign jurisdiction clause is frequently ignored by some Chinese courts. It may be argued that these Chinese courts fail to respect party autonomy and international comity. However, a close scrutiny shows that the effectiveness of an exclusive jurisdiction clause has close connections with the recognition and enforcement of judgments. If the judgment of the chosen court cannot be recognized and enforced in the request court by any means, the request court may take jurisdiction in breach of the jurisdiction clause in order to achieve justice. Chinese judicial practice demonstrates the inevitable influence of the narrow scope of the Chinese law in recognition and enforcement of foreign judgments. It is submitted that the Chinese courts do not zealously guard Chinese jurisdiction, or deliberately ignore party autonomy and international comity. Instead, the Chinese courts have considered the possibility of enforcement of judgments and the goal of justice. Applying theprima facieunreasonable decision test is the best the courts can do in the specific context of the Chinese law. Thestatus quocannot be improved simply by reforming Chinese jurisdiction rules in choice of court agreements. A comprehensive improvement of civil procedure law in both jurisdiction rules and recognition and enforcement of foreign judgments is needed.

This paper explores the exclusive jurisdiction rule in Article 279 of the Civil Procedure Law (CPL) 2023 of the People's Republic of China (PRC), which introduces two newly covered types of disputes: those involving the establishment, dissolution, liquidation, and validity of resolutions of legal persons or other organizations, and those concerning the validity of intellectual property rights (IPRs). Through a comparative analysis with Article 24 of Brussels I Recast 2012, the study highlights key differences—the Chinese exclusive jurisdiction rule for legal persons or other organizations adopts a hybrid approach combining enumeration and generalization, while Brussels 2012 follows a strictly enumerative method. In addition, the exclusive jurisdiction rule for IPRs adopts the broad term “Intellectual Property” instead of specifying categories like patents or trademarks, as seen in Brussels 2012, and restricts its application to disputes over the validity of intellectual property, explicitly excluding registration disputes. An analysis of nine rulings from 2024 shows that Chinese courts strictly adhere to the scope of this exclusive jurisdiction rule. However, challenges remain in accurately identifying foreign elements and consistently citing Article 279. The findings suggest that China’s two new categories of exclusive jurisdiction in international civil procedure are legal transplants rather than flawed analogies. Consequently, concerns that the expansion of China’s exclusive jurisdiction is unfriendly to foreign companies or parties may be overstated. The article concludes with two recommendations: (1) Chinese courts should enhance their identification of foreign elements in cases before applying the exclusive jurisdiction rule; and (2) Chinese courts should explicitly clarify their obligation to apply the exclusive jurisdiction rule in judicial reasoning and cite Article 279 in the judgment’s result section.

This article discusses the rules for recognition and enforcement of foreign judgments in the Republic of Korea (hereinafter referred to as “South Korea” or “Korea”). Articles 217 and 217-2 of the Civil Procedure Act of Korea and Articles 26 and 27 of the Civil Enforcement Act of Korea provide for the recognition and enforcement of foreign judgments respectively. Korea has not entered into any bilateral or multilateral treaties regarding the recognition and enforcement of foreign judgments and is not a party to the Convention on Choice of Court Agreements. The article also considers the current undesirable status of recognition and enforcement of judgments in the region consisting of China, Japan and South Korea (hereinafter referred to as “Region”) and suggests a course of action to be taken to improve the situation. The author believes that the experts of the Region should embark upon a project to improve the current situation and that the first step should be to exchange and gather information on the current legal regime of the countries in the Region on the recognition and enforcement of judgments. The author looks forward to future cooperation among the experts in the Region on this topic and is confident that the reciprocity requirement, which currently is a major obstacle to the mutual recognition and enforcement of foreign judgments in the Region, will be overcome in the near future.

This article considers the civil procedural legislation of the China, legal status of foreigners, jurisdiction of Chinese courts, and examines the recognition and enforcement of foreign judgments in civil and commercial matters on the territory of China. In order to achieve the above research objectives, we have identified the following research tasks: to summarize the development history of China's legislation related to civil proceedings with foreign participants, especially the changes in the Civil Procedure Law in several amendments; to determine the legal status of foreigners in civil proceedings and the scope of jurisdiction of Chinese courts over civil proceedings with foreign participants; to analyse treaties about judicial assistance signed between China and other countries or international organizations, especially those relating to recognition and enforcement of foreign judgments in civil and commercial matters on the territory of China

Transboundary recognition and enforcement of judgments is of increasing practical significance and it draws a great deal of efforts at various levels. However, the efforts already made are predominantly in relation to cross-border movement of monetary judgments, leaving non-monetary judgments beyond recognizability. Investigation into China’s legislation and adjudication reveals that there is no distinction made between recognition of monetary and non-monetary judgments, and practice also ignores such a distinction. Following the trend of embracing non-monetary judgments within the scope of recognizablility, China’s standpoint seemingly appears to be desirable, although the long-standing non-differentiation of monetary and non-monetary judgments is not presumed to be originally out of promoting recognition and enforcement of foreign non-monetary judgments in China. It is submitted that for promoting recognition and enforcement of foreign non-monetary judgments, China shall introduce independent rules in order to facilitate the circulation of such judgments, which merits a special treatment. For parties to seek the recognition and enforcement of such judgments, prior to any overhauling of the current legal regime, they have to follow China’s persisting general legal regime and judicial practice regarding recognition and enforcement of all categories of foreign judgments, and a special call is made for particular attention to the reciprocity requirement and due service requirement.

In 2022, the Supreme Court issued several significant precedents in Civil Procedure Law. This article highlights seven key precedents relating to the Civil Procedure Law that were issued in 2022. Some of these precedents also touch on other legal areas such as civil law, commercial law, and civil enforcement law, but they were considered within the context of civil litigation legal issues. The seven precedents that are discussed in this article include: 1) the recognition and enforcement of foreign judgments that mandate double compensation; 2) the disclaimer of a lawsuit and the suspension of prescription following the invalidation of a contract name trust; 4) the criteria for determining the eligibility of parties in a lawsuit for the return of co-owned property; and 7) others. Additionally, 14 cases were summarized and classified separately based on the other precedents of the Civil Procedure Act issued in 2022.
 While this article only provides a brief overview of these precedents, it is intended to be a useful resource for future studies on the 2022 civil procedure law cases.

2008年4月30日，香港特别行政区通过了《内地判决(交互执行)条例》，至此，香港特区现行的认可和执行域外法院判决制度有了“内地判决”和“外地判决”之分，这表明香港特区法制有所变化，是香港特区与内地进行相互认可和执行法院判决的新起点。然而，这并没有改变香港特区承认和执行域外法院判决的法律制度。实际上，香港特区认可和执行内地判决要比认可和执行外地判决在范围上更小，在条件上更严格和繁琐。另外，内地与香港、澳门特区之间开展法院判决承认与执行活动的依据问题上有明显的国际因素。但是，内地与香港特别行政区、澳门特别行政区进行的民商事判决承认与执行活动，属于一国之下的区际司法协助问题，不宜参照“国际”做法，也不应墨守成规。三地开展区际法院判决承认与执行活动的重要原因或依据主要有三个方面：一是经贸关系；二是公民权利；三是法律体系。 Mainland Judgments (Reciprocal Enforcement) Ordinance was passed by the government of Hong Kong SAR in April 30, 2008. So far, there are “mainland judgments” and “foreign judgments” in current legal system of the recognition and enforcement of the extraterritorial judgments in Hong Kong, which means that changes are happening in the legal institution of Hong Kong SAR and that a new starting point is arising in the activities of legal recognition and enforcement of judgments between Hong Kong and Mainland China. However, the legal system of the recognition and enforcement of the extraterritorial judgments in Hong Kong SAR has not been transformed. In fact, in Hong Kong, the scope of the recognition and enforcement of mainland judgments is narrower than foreign judgments and the conditions are more rigorous and complex. In addition, the gist in terms of the recognition and enforcement by the courts between Mainland and Hong Kong, Mainland and Macau exhibits evident “international” elements. Nonetheless, the activity of the legal recognition and enforcement of commercial settlement between Hong Kong SAR and Mainland China and between Macau SAR and Mainland China belongs to the scope of regional judicial assistance within PRC. It can’t be referred to the “international” practice and shouldn’t be a stick in the mud. The three significant reasons of the activity of legal recognition and enforcement between three regions are as below: a) the relationship of economy and trade; b) the civic right; c) the legal system.

A somewhat contested basis of international competence in the recognition and enforcement of foreign judgments in South Africa is mere presence. Over the years, an academic debate has raged in South Africa over mere presence as a basis of jurisdiction for the enforcement of foreign judgments sounding in money. A recent decision by the Constitutional Court makes the topic worth revisiting.Practical circumstances, social and political considerations as well as natural justice inevitably call for the recognition and enforcement of foreign judgments. As Forsyth aptly puts it “[a] plaintiff may sue in one country and hear with pleasure judgment given in his favour, then discover, to his dismay, that the defendant, with his assets, has absconded to another country”. In such a situation, the judgment has become brutum fulmen in the court which pronounced it and the plaintiff is placed in a grossly prejudicial position. However, because of widely accepted values and principles, legal systems of the world recognize and appreciate that a judgment rendered by the courts of one country may be enforced elsewhere, provided certain conditions are satisfied.Under South African common law one of the conditions for the enforcement of foreign judgments is that the court which pronounced the judgment must have had jurisdiction to entertain the case according to the principles of our law with reference to the jurisdiction of foreign courts. (In Reiss Engineering Co Ltd v Insamcor (Pty) Ltd 1983 (1) SA 1033 (W) 1037B the court stated that the mere fact that the foreign court may have had jurisdiction under its own laws, is not conclusive. Instead, the question of jurisdiction has to be determined in the light of the principles of our law on the jurisdiction of foreign courts. Other requirements for recognition and enforcement are that (i) the foreign judgment must be final and conclusive in its effect and not have become superannuated; (ii) the recognition and enforcement of the judgment by South African courts should not be contrary to public policy; (iii) the foreign judgment should not have been obtained by fraudulent means; (iv) the judgment must not involve the enforcement of a penal or revenue law of the foreign state; and (v) the enforcement of the foreign judgment must not be precluded by the provisions of the Protection of Business Act 99 of 1978, as amended. See Jones v Krok 1995 (1) SA 667 (AD) 685B−D.) This note is concerned only with the requirement that the foreign court that pronounced the judgment must have had jurisdiction to entertain the case according to the principles of our law with reference to the jurisdiction of foreign courts. The other four requirements are outside the scope of this paper and will not be discussed. It appears that the requirement that the foreign court must have had jurisdiction is a tenet central to the common law world. This requirement is a concept sui generis which is not affected by the internal jurisdiction rules of the foreign court, nor by the internal jurisdiction rules of the South African courts. Under South African common law there are, at least, two grounds which have been established with absolute clarity, that clothe a foreign court with international competence.

On July 2, 2019, the Hague Conference on Private International Law (HCCH) adopted a new multilateral Convention on the Recognition and Enforcement of foreign judgments in civil or commercial matters. When the Convention enters into force, the courts of the Contracting States shall be obliged to recognize and enforce civil and commercial judgments of other Contracting States. Traditionally, the recognition and enforcement of foreign judgments were entirely governed by the domestic laws and practices of each state. It is significant that after a long effort, the Convention on the recognition and enforcement of foreign judgments, which was internationally unified beyond the region, was launched. A substantial risk that a recognition and enforcement of a judgment of one country could be denied in another country has been largely eliminated In the future, the new Convention will complement the 2005 Hague Convention on Choice of Court Agreement and 1958 the New York Convention on the recognition and enforcement of foreign arbitral awards, and could contribute significantly to the stability, predictability of cross-border commercial transactions and thereby improve trade, investment and the global economy. The Convention is now waiting for each country's accession and ratification, and it is noteworthy how well each country will respond and achieve the same success as the New York Convention. In this paper, several issues are reviewed, particularly recognition and enforcement under national law, the method of acceptance by domestic law, fraud as a reason for refusal of recognition and enforcement of judgments, a substantive or procedural violation of public policy, reciprocity, the possibility of setting a uniform standard of habitual residence, the mechanism for declaring of refusal are reviewed. It is necessary to quickly become acquainted with the judgment Convention, in practice and academic circles, including courts dealing with recognition and enforcement of foreign judgments by preparation and distribution of commentary on the Convention. Watching the trend of many countries joining the Convention, we need to review proactively the timing of Korea's accession to the Convention.

In many national systems of private international law, reciprocity is still a condition for the recognition and enforcement of foreign judgments in civil and commercial matters. However, in the modern globalized economic and social context, where legal and natural persons enter into cross-border private law relationships and international transactions on a daily basis, the question is whether this condition is justified and necessary. Although many states have taken a more flexible approach to this issue in the last few decades, this condition still exists in the legislation of a certain number of states and is considered to be a major obstacle to the recognition and enforcement of foreign judgments. In the legislation of the Republic of Serbia, reciprocity is also one of the conditions for the recognition of foreign judgments. In order to be able to respond to the ever-increasing economic interest expressed through crossborder trade and investments, it would be desirable to consider amending our applicable legislation, as well as the Republic of Serbia’s acceding to the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments. Namely, it has entered into force recently and is aimed at giving a truly global significance to the unification of conditions for the recognition and enforcement of judgments. At the same time, this would also eliminate the problem of reciprocity in relations between the Republic of Serbia and states party to the Convention, both in terms of difficulties related to the procedure for its establishment and the recognition of judgments of the courts of the Republic of Serbia in the states requiring diplomatic reciprocity in this respect.

This article deals with the recognition and enforcement of judgments in employment matters in EU private international law. After looking into the theoretical underpinnings of the protection of employees by rules of recognition and enforcement of foreign judgments, this article examines the recognition and enforcement of judgments concerning individual employment contracts under the Recast of the Brussels I Regulation, the European Enforcement Order Regulation and the European Order for Payment Procedure Regulation. It is shown that the lack of a jurisdictional defence for employment disputes in the latter two instruments has the potential to undermine, at the overlap of the fields of application of these instruments and the Brussels I Recast, the protection offered to employees by the Recast’s jurisdictional defence.

This article explores the evolution of judgment reciprocity in China. An introduction of China’s restricted definition of reciprocity is followed by an analysis of the result of mutual retaliation between China and Japan, which represents a negative model of recognition and enforcement of foreign judgments. The successful model, between China and Singapore, of mutual recognition and enforcement of judgments is then discussed and the contributing factors to this success are analysed. Finally, the China’s internal reform and external co-operation is explored, as well as the transformation of the interpretation of reciprocity in recognition and enforcement of foreign judgments. We conclude that reciprocity will serve multiple and flexible functions in China’s legal framework and judicial practice, which will enable China to join the establishment of a global and comprehensive network with respect to the recognition and enforcement of foreign judgments.

The question of the recognition and enforcement of foreign judgments on arbitral awards, as distinct from the recognition and enforcement of the arbitral awards themselves, finds diverging answers in different jurisdictions and in legal doctrine. With respect to judgments on judgments, the general rule is that a judgment rendered in State B, enforcing or recognizing in State B a judgment rendered in State A, cannot as such be enforced or recognized in State C. It is rather the original judgment rendered in State A that has to be relied upon in recognition and enforcement proceedings in all other states. Judgments on arbitral awards may be treated differently. In the European Union, the recognition and enforcement of such judgments is regulated by the legal system of each Member State. Council Regulation (EC) 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (“Brussels I”), and formerly the Brussels Convention (1968), as well as the Lugano Convention (1988), excluded “arbitration” from their scope. The Schlosser Report, as well as the decisions of the European Court of Justice in this matter, made it clear that the exclusion covers not only the recognition and enforcement of arbitral awards, covered already by the New York Convention, but extends also to all court proceedings related to arbitration, including proceedings to set aside an arbitral award and proceedings concerning the recognition and enforcement of a foreign arbitral award. The practice in different states (England, France, Germany, , Israel, the American Law Institute [ALI] first draft proposal of a Federal Statute on Recognition and Enforcement of Foreign Judgments) is diverse. This paper submits that only the arbitral award should be the subject of recognition and enforcement proceedings. Foreign judgments on arbitral awards should not be recognized or enforced. For policy reasons, an exception should be made with respect to a court decision at the arbitral seat to set aside (or vacate) the award. With a view to coordinating results, weight may also be given, depending upon the circumstances, to issues decided by other foreign court judgments on arbitral judgments, as those may indicate that the award-debtor had waived a certain defense, or that he is precluded from raising one. The paper is confined to judgments in proceedings undertaken under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (NYC). As of January 2011, 145 UN Member States have become NYC Contracting Parties. The numerous cases decided by national courts under the Convention and the vast literature devoted to its interpretation provide a rather comprehensive database. Accordingly, this paper addresses the rules concerning recognition and enforcement of foreign arbitral awards under the NYC, noting the differences in practice among the NYC Contracting States (2.); an inquiry whether foreign judgments on arbitral awards should be recognized and enforced which first studies the analogous case of judgments on judgments (3.1), and then considers the differences between enforcing judgments on arbitral awards and enforcing the arbitral awards themselves (3.2); an analysis of the special case of judgments setting aside arbitral awards (4.); the possible coordination of results via waiver and preclusion (5.); and final conclusions (6.)