On December 28, 2023, the Supreme People's Court held a press conference on the judicial interpretation and typical cases of the application of international treaties and international practices in foreign-related civil and commercial cases. Wang Shumei, vice ministerial-level full-time member of the Judicial Committee of the Supreme People's Court, Shen Hongyu, President of the Fourth Civil Court of the Supreme People's Court, Hu Fang, Vice president of the Fourth Civil Court of the Supreme People's Court, and Yang Xingye, second class senior judge of the Fourth Civil Court of the Supreme People's Court, attended the press conference. The Supreme People's Court issued Several Issues on the Interpretation of the Supreme People's Court on the Application of International Treaties and International Practices in the Trial of Foreign-related Civil and Commercial Cases, typical cases of the application of international treaties and international practices in foreign-related civil and commercial cases, and answered questions from journalists. The press conference was chaired by Wang Bin, Deputy Director of the Information Bureau of the Supreme People's Court.

The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of International Treaties and International Practices in the Trial of Foreign-related Civil and Commercial Cases (hereinafter referred to as the Interpretation) was adopted at the 1908 meeting of the Judicial Committee of the Supreme People's Court on December 5, 2023, and will come into force on January 1, 2024. At the press conference, the Supreme People's Court informed the background, significance and main contents of the Interpretation.

I. The background and significance of the Interpretation

How to apply international treaties and international practices in China is an important issue that people's courts face in foreign-related civil and commercial trials. Article 142 of the former General Principles of the Civil Law of the People's Republic of China (hereinafter referred to as the General Principles of the Civil Law) provides for the application of international treaties and international practices. In the practice of foreign-related civil and commercial trials, a large number of cases have been tried according to this provision, including a number of typical cases with rule of law significance, significant international influence, and promoting the process of rule of law. The Civil Code of the People's Republic of China (hereinafter referred to as the Civil Code), which came into effect on January 1, 2021, does not make specific provisions on the application of international treaties and international practices, and the general principles of civil law have been repealed, so local courts and academia have called for clarifying the relevant rules for the application of international treaties and international practices by people's courts in foreign-related civil and commercial cases as soon as possible. To this end, the Supreme People's Court has comprehensively summarized judicial practice experience, and formulated this Interpretation after full investigation, repeated argumentation, and extensive solicitation of suggestions, which has the following important significance:

First, the formulation of the Interpretation is a major measure to accelerate the construction of foreign-related rule of law and serve to ensure a high level of opening up. Since the 18th CPC National Congress, major opening-up strategies such as the Belt and Road Initiative, the pilot Free Trade Zone and the Hainan Free Trade Port have achieved remarkable results. "One step forward in opening to the outside world, the construction of foreign-related rule of law must be further."

Second, the formulation of the Interpretation is a concrete practice to firmly safeguard the international order based on international law and promote the rule of law in international relations. "Treaties must be honored" is a basic principle of treaty law. Article 26 of the Vienna Convention on the Law of Treaties provides that "a treaty in force is binding on the States parties to it and must be performed in good faith by them". The release of the Interpretation fully demonstrates the good image of China's active implementation of international obligations, demonstrates China's commitment as a major country to firmly safeguard the international order based on international law, and is conducive to enhancing China's voice and influence in the reform of the global governance system.

Third, the formulation of the Interpretation is an important guarantee for the accurate application of international treaties and practices and the improvement of the quality and effectiveness of foreign-related trials. The Interpretation has standardized and guided how to accurately grasp the conditions and scope of application of international treaties and international practices, provided judgment basis for people's courts to correctly try foreign-related civil and commercial cases, and effectively unified the standards for the application of law. It is of great significance to improve the quality and efficiency of China's foreign-related civil and commercial trials, expand the international credibility and influence of China's judiciary, and create a market-oriented and international first-class business environment under the rule of law.

Ii. Main contents of the Interpretation

The nine-point Interpretation embodies three principles to be followed in the application of international treaties and international practices in foreign-related civil and commercial trials, namely, the principle of performing treaty obligations in good faith, the principle of respecting international practices, and the principle of safeguarding national sovereignty, security and social and public interests. The main contents include:

First, clarify the basis for the application of international treaties. Article 30 of the Foreign Relations Law of the People's Republic of China clearly stipulates: "The state concludes or accedes to treaties and agreements in accordance with the Constitution and laws, and performs in good faith its obligations under the relevant treaties and agreements." In accordance with the characteristics of adjusting the personal and property relations between equal subjects in international treaties in the field of civil and commercial affairs, and in accordance with the principle of good faith performance stipulated in the Law on External relations, The second paragraph of Article 1 of the Interpretation stipulates that foreign-related civil and commercial cases outside the scope of adjustment of the maritime Law, the Law on Negotiable Instruments, the Civil Aviation Law, the Maritime Traffic Safety Law and other separate laws shall apply international treaties in the way of "referring to the provisions of the separate law", effectively solving the problem of insufficient basis for judging the application of international treaties in the field of foreign-related civil and commercial matters, and inheriting the spirit of the original general principles of civil law. Where an international treaty concluded or acceded to by China has provisions different from the laws of the People's Republic of China, the provisions of the international treaty shall apply, with the exception of the provisions on which the People's Republic of China has declared reservations.

The second is to clarify the applicable principles in the case of multiple international treaties. In the case that the same dispute in judicial practice involves two or more international treaties, Article 2 of the Interpretation stipulates that the people's court shall determine the applicable international treaties in accordance with the provisions of the applicable relations of international treaties.

The third is to clarify the relationship between the application of international treaties and the autonomy of the parties. Among the international treaties applicable to foreign-related civil and commercial relations, some international treaties allow the parties to exclude the application of the convention or change the application effect of the provisions of the convention by agreement, but some international treaties are mandatory in application and do not allow the parties to exclude the application by agreement. Article 3 of the Interpretation makes it clear that only to the extent permitted by an international treaty can a party by agreement exclude or exclude in part the application of an international treaty.

Fourth, it is clear that if the parties invoke an international treaty that has not yet entered into force for China, it can be used as the basis for determining contractual rights and obligations. International treaties that have not yet entered into force for our country cannot be used as the legal basis for people's courts to make judgments. However, if the parties unanimously invoke the relevant rights and obligations provisions determined by international civil and commercial treaties in the contract, then the relevant provisions of the international treaty will become the contract provisions agreed by the parties. Article 4 of the Interpretation stipulates that the people's court can use this as the contract basis for determining the rights and obligations of the parties, provided that it does not violate the mandatory provisions of Chinese laws and administrative regulations. It will not undermine China's sovereignty, security or public interests.

The fifth is to clarify the application of explicit choice of international practice and the application of supplementary. Articles 5 and 6 of the Interpretation provide for two applications of international practice. On the one hand, if the parties explicitly choose to apply international practice, the rights and obligations of the contract parties can be directly determined according to international practice. On the other hand, if the parties have not made a clear choice, and there is no corresponding provision in Chinese law or in the international treaties concluded or acceded to by China, the people's court may apply international practice.

Sixth, adhere to the principle of safeguarding national sovereignty, security and public interests. The Interpretation implements the provisions of Article 31 of the Foreign Relations Law that the implementation and application of treaties and agreements shall not impair national sovereignty, security and social and public interests, and stipulates in article 7 that "the people's courts shall not apply international treaties and international practices that impair the sovereignty, security and social and public interests of the People's Republic of China". Fully demonstrates the people's court's clear judicial position of firmly safeguarding national sovereignty, security and social and public interests.

In the next step, the Supreme People's Court will adhere to the overall promotion of domestic rule of law and foreign-related rule of law, actively and accurately apply international treaties and practices in foreign-related civil and commercial trials, ensure that international prevailing rules are effectively observed and implemented, effectively demonstrate China's international image of adhering to reform, opening up and multilateralism, and contribute China's rule of law wisdom and strength to the reform and construction of the global governance system!

The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of International Treaties and International Practices in the Trial of Foreign-Related Civil and Commercial Cases, which was adopted at the 1908 meeting of the Judicial Committee of the Supreme People's Court on December 5, 2023, is hereby promulgated and shall come into force as of January 1, 2024.

Supreme People's Court

December 28, 2023