I. Interview with Judge Ma
Ma Zhanju, member of the Adjudication Committee of Shenzhen Qianhai Cooperation Zone People's Court (Qianhai Court), Senior Judge (Fourth Rank) and head of the judicial management office. Judge Ma Zhanju has successively been awarded the Excellent Communist Party Member of Shenzhen and the Excellent Judge of Shenzhen, and has been given merit citation of third class repeatedly. Judge Ma Zhanju has taken the lead in completing a number of judicial reform investigations, among which, projects such as the service of judicial documents by parties in Hong Kong-related civil and commercial disputes, the work mechanism for the new type of adjudication group, and research on factoring contract judgments have achieved remarkable results in both theoretical research and judicial practice. The factoring contract dispute in Shenzhen Guotou Commercial Factoring Co., Ltd v. Tiangu Co., Ltd., which was adjudicated by Judge Ma Zhanju, was selected as "Typical Case of Judicial Protection in Guangdong Pilot Free Trade Zone".
II. Case Facts
In 2014, the defendant Hong Kong Liumou company (Liumou company) submitted a financial lease application to the plaintiff, the Bank of East Asia, and the two parties signed a financial lease agreement. The Bank of East Asia subsequently fulfilled all its obligations under the lease agreement including the purchase of the specified leased equipment. Liumou company paid the rent for the first six installments, and stopped paying the rent since the seventh installment. Given the dispute between parties on contract performance, the plaintiff, the Bank of East Asia, sued Liumou company in Qianhai Court.
According to financial lease agreement between the plaintiff and the defendant, in case of any dispute, it shall be settled in accordance with the laws of HKSAR. In the lawsuit, the plaintiff submitted to the court a "legal opinion" issued by Mr. Cheng Steven John, lawyer at Siao, Wen and Leung, Solicitors & Notaries in Hong Kong, to which the defendant raised objections. The Qianhai Court then organized a hearing between the two parties to confirm the content of Hong Kong laws that needed to be ascertained, and commissioned Benchmark Chambers International & Benchmark International Mediation Center (formerly known as Benchmark Chambers International, hereinafter referred to as BCI & BIMC) to conduct law ascertainment. Subsequently, BCI & BIMC appointed Mak, Andrew Y.S., a barrister from HKSAR, to issue a legal opinion on entrusted ascertainment.
After review, Qianhai Court held that the content of the law ascertainment did not violate the compulsory provisions of Chinese law, nor did it harm the public interest. At the same time, considering the specific circumstances of the case, the Legal Opinion issued by Barrister Mak, Andrew Y.S. meets the requirements of professionalism, objectivity, and comprehensiveness, and the court should adopt it.
The Qianhai Court made the judgment in this case with reference to the "Lenders Ordinance of HKSAR of PRC" and some cases including Richly Bright International Ltd v De Monsa Investments Ltd (2015) 18 HKCFAR232 before the Court of Final Appeal of HKSAR, which are ascertained in the Legal Opinion by BCI & BIMC. The Qianhai court ruled that the lease agreement signed by both parties shall be terminated; and the defendant shall pay the plaintiff the rent of HK $ 2.45 million and the overdue interest; the defendant shall return the three sets of equipment under the lease agreement and the plaintiff was confirmed to be the owner of the equipment.
III. The Judge's Elaboration on Law
The court applies the laws in his country to adjudicate cases, which is a manifestation and inevitable requirement of a country's judicial sovereignty. However, in the context of increasingly frequent international economic and trade, in view of the need to respect freedom of contract, encourage foreign trade and investment, and create an equal and open business environment in international trade exchanges, most countries' legislation allows parties to choose the law of other country or region as applicable law. In accordance with General Provisions of the Civil Law of the People's Republic of China, Law of the People's Republic of China on Choice of Law for Foreign-related Civil Relationships, and relevant judicial interpretations by the Supreme People's Court of China, the parties may choose the applicable foreign laws in accordance with the law when dealing with civil and commercial cases involving foreign countries or Hong Kong, Macao and Taiwan regions. In other words, if a case involves foreign countries or Hong Kong, Macao and Taiwan, the parties can choose the law applicable to the dispute, namely, the applicable law.
Due to the large differences in laws and cultures in different countries and regions, commercial parties who are engaged in trade or investment activities will be very worried about whether they can be protected equally. They are more willing to choose the law they are familiar with to resolve possible disputes, which will help them to predict the outcome of the dispute settlement and also better protect their own interests.
The advantage of this mechanism is that on the one hand, it is conducive to showing the self-confidence of the socialist rule of law with Chinese characteristics. In the Belt and Road Initiative, President Xi Jinping proposed that, the principle of co-consulting, co-construction, and sharing should be adopted, with openness and tolerance as the characteristics, mutual benefit and win-win as the pursuit, and we should agglomerate the greatest consensus for peaceful development. In the trial of cases involving foreign countries, Hong Kong, Macao and Taiwan, the protection of parties' right to choose applicable laws in accordance with the law is an embodiment of our court's professional competence and judicial credibility, and is conducive to highlighting the superiority of our socialist rule of law with Chinese characteristics. On the other hand, this mechanism is conducive to creating an open, inclusive and equal protection legal environment. The ascertainment and application of foreign law are important indicators to measure the level of rule of law and business environment of a country or region. We fully protect the right of the parties to choose foreign law as applicable law, not just allowing parties to choose, but making sure that parties are able to choose, which is conducive to creating an open, inclusive and fair competition business environment, and building the rule of law as the core competence of regional development.
To see the interview video, please click: https://v.qq.com/x/page/j3053sa3jj6.html
Read the original: 马占举：域外法查明与适用在前海
