The Great Britain-China Centre and the University of Durham Law School’s Centre for Chinese Law and Policy hosted a roundtable between current and former members of the judiciary and legal practitioners from China and the UK in early 2021.
The Chinese Supreme People’s Court (SPC) supported participation of judges from the China International Commercial Court, SPC Intellectual Property Court, Hangzhou Internet Court and Xiamen Maritime Court, with support from the SPC International Cooperation Department. GBCC and the University of Durham convened a group of current and former English judges and legal practitioners, including a former Judge in Charge of the Commercial Court, British Overseas Territory Judges, two Queen’s Counsel and a leading junior barrister.
The roundtable engagement consisted of three sessions of thematic interest to both parties: anti-suit injunctions, a common feature of common law jurisdictions but a more recent feature in China’s legal system; smart courts and new technologies, increasingly important considering the COVID-19 pandemic; and precedent and law-making, exploring the role of judge-made law in relation to commercial law in both jurisdictions.
Anti-suit injunctions
During the session focused on antisuit injunctions, Chinese participants introduced the legal basis and practice of anti-suit injunctions in China, China’s Civil Procedure Law and relevant judicial interpretations. Antisuit injunctions are still rare in China, but are a regular occurrence in the English courts, and the UK side outlined the historical development of antisuit injunctions in England and Wales, explaining how antisuit injunctions were developed three centuries ago in England.
Smart courts and new technologies
Chinese participants highlighted the increasing use of technology in China’s courts, in particular in terms of remote trials and filing applications, recent efforts to update judge interface terminals, the use of asynchronous hearings and employing blockchain to verify authenticity of online agreements. Big data is employed by judges to find similar cases, and they are aided by big data, but judges make final decisions, not AI.
The UK side highlighted the effect that the pandemic has had on the English courts. Including moving rapidly to adopt video hearing technology to avoid a hearing backlog. It was also commented that in a common law system, court hearings are comparatively more important than in a civil law jurisdiction, so developments in online hearings had been considered very carefully, taking into consideration issues of fairness. Feedback mechanisms, like the system of Court Users’ Committee in England and Wales, were also outlined to the Chinese participants.
Judge-made law and commercial courts
The Chinese side explained how case categorisation systems are used in China, breaking large numbers of cases down into vertical and horizontal categories. Judges in China need to search for similar cases and so-called “guiding cases” issued by the SPC, as SPC judgments act as a precedent for lower-level courts. This aims to support consistency in application of the law across the lower-level courts in China.
UK participants analysed similarities and differences in terms of how the courts in China and the UK strive in their respective systems for consistency, noting that in the UK that the system has a cascade effect from Supreme Court judgments as well. The UK side concluded by highlighting that the predictability of the English system was its key strength and supported the role of London as an international legal hub.
This project was funded through the UK-China Business Environment Programme, a UK Government prosperity programming initiative.