On the afternoon of June 17, 2022, Prof. Jacques deLisle, Global Faculty at Peking University Law School, Stephen A. Cozen Professor of Law & Professor of Political Science; Director, Center for the Study of Contemporary China, gave an online academic lecture on the topic of "Chinese Law in US Courts: Complex Patterns, Many Challenges."The lecture was hosted by Chen Yifeng, Associate Professor of Peking University Law School, with Chen Ruoying, Associate Professor of Peking University Law School, and Cao Zhixun, Assistant Professor of Peking University Law School, attending the lecture as panelists. The lecture attracted more than 100 teachers and students online.

This article presents the key points of the lecture.

Prof. Jacques deLisle：

Currently, there are a large number of cases involving Chinese law in US courts, and a search of about 3,000 cases involving Chinese law in varying degrees can be found. Most of these cases have arisen in the past two decades. Cases generally appear in federal courts because they involve international or transnational law. As a result, US courts decide cases under the doctrine of "diversity jurisdiction."China-related cases are by far the largest volume of cases handled by the U.S. courts in non-common-law countries.

So, the question is, how did Chinese law get into US courts, and thus into US law? It is relatively rare for Chinese law to be the basis for ruling a case. One reason is that, in both US law and Chinese law, the parties to a contract often choose the applicable law on the basis of mutual consent. In a lawsuit filed in US courts, the parties rarely choose Chinese law. Moreover, for practical reasons, it is more difficult for US courts to apply Chinese law, which they are unfamiliar with. This may lead to a US court refusing to hear the case on a variety of grounds, particularly the doctrine of forum non conveniens. As a result, US courts rarely, in practice, rely on Chinese law.

The US courts apply Chinese law in certain circumstances, such as determining whether a patent is infringed, or in disputes over a contract, etc. But it's a different kind of case that I want to focus on today. Chinese law has not been used as the basis for decision-making in each of these cases, but has accessed into the U.S. proceedings in an important way: first, the terms of the contracts in some of the cases purport to refer the case to arbitration proceedings, including whether to enforce the arbitral award if one of the parties alleges that the arbitration clause was defective under Chinese law. In determining the validity of these clauses, the court will refer to China's arbitration law. The second consideration is whether the United States has jurisdiction over a case where the defendant is China or a Chinese governmental agency. Third, when it comes to the alien jurisdiction of the federal court, the U. S. courts refer to the nationality and domicile of the parties under Chinese law to determine whether the jurisdiction exists.  Finally, on the issue of admissibility, the court is left with considerable discretion. The US has refused to accept some cases on the basis of the doctrine of forum non conveniens. Under US law, an important test for applying the doctrine of forum non conveniens is whether the China court is an adequate and substitutable forum.

There is still a great deal of debate about the judgment of Chinese adjudication. Should we look at the history of the courts or at the present day? Should we look at the courts of a particular district or province, or should we look at the differences among lower courts, middle courts, and higher courts? Shall the intellectual property cases be heard by the special court? Is there evidence of incompetence or bias on the part of the courts in these cases? These questions are very specific. Increasingly, the US courts issue qualified dismissals, that is, they do not dismiss the case completely, but instead determine whether the Chinese court did in fact provide an adequate and substitute remedy.

The next major issue concerns the American court's choice-of-law analysis. Even when the US court ultimately concludes that US law applies, the parties are often allowed to base their claims on Chinese law and to discuss the content of Chinese law. At this point, the question is, what would happen if American law applied? What would happen if Chinese law applied? Thus, in these cases, the American court usually evaluates Chinese law in depth.

After reaching a verdict in China court, the parties may seek enforcement of the judgment in US courts. For the past decade or so, there have been about one or two cases per year in American courts involving requests to enforce Chinese judgments. Some might say that China court’s judgments are also easily ignored for political reasons. Another reason for not enforcing a judgment is that the process by which the judgment was rendered generally does not meet the due process standards in US law. This brings us back to the level of adjudication and bias in the courts.

Sometimes Chinese law may and may not flow into American law. One of the key issues is to determine what Chinese law is. In conclusion, there are vast differences in the way US courts approach all of these issues, even in cases that seem very similar. The main driver of the increase in American court cases involving Chinese law is the deepening economic and social interdependence of the two countries. Friction between the two legal systems, and between the two countries, is growing, which could lead to more disputes in the future. Second, US courts, influenced by the political environment. In some cases, US courts have explicitly called on the government to assess the human-rights situation in China. Perhaps most important in the long run, US courts, as in the US legal profession, are becoming more cautious in their approach to Chinese law, which will obviously complicate issues such as injunctions and enforcement of judgments.

Chen Ruoying：

Some states have laws that explicitly prohibit the application of foreign law in their courts, while some states and the federal courts do not. So, how do the differences between federal and state courts, and between different states, come about? Do they involve issues of international law? In addition, some common law countries, such as the United Kingdom and Singapore, take into account other countries' views on foreign law when dealing with it. Is that the case in the United States?

Jacques deLisle：

As far as I know, there are no cases in which state courts have decided that Chinese law can be applied, but it cannot be applied because of provisions of state law. Probably because most of these cases are federal court cases.

On the second question, to what extent do US courts pay attention to how other courts deal with the application of foreign law -- not very much. One view is that the role of US courts is to apply US law, and if you apply foreign law, then on any issue, you can find foreign law to support various claims. That was Scalia's view. Breyer held the opposite view. I would support the latter view. In fact, the US Supreme Court sometimes looks to foreign law and practice, including Chinese law and practice.

Cao Zhixun:

When discussing the application of foreign law, one of the issues that we often discuss is who will provide the foreign law and who will bear the burden of proof. I think this is an important issue in the application of foreign law. In addition, how to deal with due process in different countries is also worth analyzing, because it involves their perceptions of different institutional objectives, and different cultural, political and economic contexts. Third, in addition to considering foreign substantive law, how the courts view agreements of process reached by the parties is also an important topic for discussion.

My question is, can the element of interstate politics provide a new perspective for understanding Chinese law in the US courts? And what should be the role of the legal expert witness in a case?

Jacques deLisle：

Legal expert witnesses do play an important role in the trial, but there is uncertainty about what kind of expert witnesses to choose and how to deal with the different expert opinions. The problem is further complicated by the fact that the US litigation system is adversarial.

With respect to process agreements, I think that can be a good way to resolve some of the confusion. Another advantage of the option of arbitration is that it is easier to enforce.

Due process issues are important in the enforcement of foreign judgments. In most US state or federal law, lack of due process, lack of jurisdiction are explicit grounds for not enforcing foreign judgments. This poses a lot of risks for the parties.

It makes sense to take political considerations into account. The increasingly negative perception of Chinese law in the United States since the Trump administration has indeed led to more challenges to the recognition of Chinese law and judgments in US courts.

Presenter Profile：

Professor Jacques de Lisle's academic works have been published in China Today, Orbis, Asia Policy, and other foreign affairs and regional studies journals, law reviews, interdisciplinary monographs, and the media. His research focuses on China's participation in the construction of the international legal and political order, legal reform and the rule of law in China, and China-US relations. His books include To Get Rich Is Glorious, China's Global Role, New Media, the Internet, and a Changing China, and The China Challenge. He has been invited as an expert witness on China law to advise the US government and various non-governmental organizations on China's legal and judicial reform. He has also served as a Judge Clerk to former Justice Stephen Breyer and as an Associate Counsel in the Office of Legal Counsel, US Department of Justice.

Translated by: Liu Luwu

Edited by: Zhang Dayuan