Guiding Cases SeminarsTM - Stanford University · 11/22/2016 · framework, and effectively improve the application of law and their capabilities to use cases. Judge Guo ended his

Guiding Cases SeminarsTM

指导性案例研讨会TM

SEMINAR SUMMARY

CHINA’S GUIDING CASES SYSTEM TURNS SIX:

RETROSPECT AND PROSPECT

STANFORD CENTER AT PEKING UNIVERSITY

NOVEMBER 22, 2016*

I. Overview

On November 22, 2016, the China Guiding Cases Project (“CGCP”; http://cgc.law.stanford.edu) held a Guiding Cases Seminar™ titled China’s Guiding Cases

System Turns Six: Retrospect and Prospect at Stanford Center at Peking University. The seminar featured a keynote session and an interactive panel discussion, both of which were moderated by Dr. Mei Gechlik, founder and director of the CGCP. The keynote speaker was the Honorable

Judge GUO Feng, Deputy Director of the Research Department of the Supreme People’s Court (“SPC”) of the People’s Republic of China. The panelists were Jordan Corrente Beck, a Co-

Managing Editor of the CGCP and an associate at Debevoise & Plimpton LLP; Ke James Yuan, an Associate Managing Editor of the CGCP and an associate at Covington & Burling LLP; Dr.

Changchun Yuan, a founding partner of Broad & Bright; WANG Ziqiang, General Director of the Policy and Regulation Department of the State Administration of Press, Publication, Radio, Film and Television (SAPPRFT) and National Copyright Administration of China (NCAC); and

* The citation of this piece is: Seminar Summary: China’s Guiding Cases System Turns Six: Retrospect and

Prospect, STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, Guiding Cases Seminars™, November 22,

2016, https://cgc.law.stanford.edu/event/guiding-cases-seminars-20161122-and-24. This summary was prepared by

Jordan Corrente Beck, Sharon Cui, DAI Di, Oma Lee, Dimitri Phillips, James Yuan, Minmin Zhang, and Dr. Mei

Gechlik. The biographies were prepared by the speakers, Oma Lee, and Dimitri Phillips. This publication has been

approved by the seminar’s speakers.

Guiding Cases SeminarsTM

features talks on Guiding Case-related subjects presented by scholars, lawyers,

policymakers, and other experts and are disseminated in text summary and video to reach the global audience of the

China Guiding Cases Project.

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Guiding Cases SeminarTM

Copyright 2016 by Stanford University

Dr. YU Jianlong, Secretary General of the China Chamber of International Commerce (CCOIC) as well as Vice Chairman of the China Maritime Arbitration Commission (CMAC) and the China International Economic and Trade Arbitration Commission (CIETAC). Their respective topics were “The Compilation and Application of China’s Guiding Cases”, “China’s ‘Open Judiciary’ Measures and U.S. Court of Appeals for the Second Circuit’s Deference to China’s Interpretation of Its Own Laws: Implications for the Global Legal Practice”, “Guiding Cases and the Development of Family Law”, “China’s Legal Remedies System for the Protection of Copyright and Its Perfection”, and “‘One Belt One Road’: Opportunities and Challenges for Chinese Businesses”.

The CGCP thanks the event sponsors, including Alston & Bird LLP, Broad & Bright, and the Fu Tak Iam Foundation Limited for their kind and generous support.

II. The Compilation and Application of China’s Guiding Cases

Judge GUO Feng began by introducing the key steps taken by the SPC to establish the Guiding Cases System in China, including the release of the Provisions of the Supreme People’s

Court Concerning Work on Case Guidance in November 2010,1 the Opinion Concerning the

Style Used in Writing and Submitting Guiding Cases in January 2012, the Rules and Procedures

Concerning Work on the Selection of Guiding Cases in June 2012, and the Detailed

Implementing Rules on the “Provisions of the Supreme People’s Court Concerning Work on Case

Guidance (the “Detailed Implementing Rules”) in April 2015.2 Thus far, 14 batches of 69 Guiding Cases in total have been released since the first batch came out in December 2011.

In discussing the nature and purpose of the Guiding Cases System, Judge Guo pointed out that it is a judicial system with Chinese characteristics established to summarize adjudication experience, strengthen supervision and guidance, unify the application of law, enhance adjudication quality, and safeguard judicial impartiality. By releasing cases that provide guidance on the adjudication work of courts across China, the SPC aims, through the Guiding Cases System, to regulate judges’ discretionary power, to address the problem that “similar cases are adjudicated differently”, to carry forward the spirit and core value of socialist rule of law, to enhance people’s awareness of the rule of law, and to promote good social practices.

1 《最高人民法院关于案例指导工作的规定》 (Provisions of the Supreme People’s Court Concerning

Work on Case Guidance), passed by the Adjudication Committee of the Supreme People’s Court on Nov. 15, 2010,

issued on and effective as of Nov. 26, 2010, STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English

Guiding Cases Rules, June 12, 2015 Edition, http://cgc.law.stanford.edu/guiding-cases-rules/20101126-english. 2 《〈最高人民法院关于案例指导工作的规定〉实施细则》(Detailed Implementing Rules on the

“Provisions of the Supreme People’s Court Concerning Work on Case Guidance”), passed by the Adjudication

Committee of the Supreme People’s Court on Apr. 27, 2015, issued on and effective as of May 13, 2015, STANFORD

LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Cases Rules, June 12, 2015

Edition, http://cgc.law.stanford.edu/guiding-cases-rules/20150513-english.

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To explain the selection process of Guiding Cases, Judge Guo noted that Guiding Cases are of authoritative, normative, exemplary, and uniformly applicable nature. They are de facto binding; their status, nature, and effect are superior to those of other cases. As a result, the selection process must follow standardized procedures and adhere to strict requirements for high quality and specific standards, as provided by Article 2 of the Detailed Implementing Rules. He went on to discuss the wide range of entities that could recommend candidate Guiding Cases, including anyone who is interested in the adjudication work of China’s courts. Subsequently, he explained in detail the recommendation process as well as the format and style that need to be followed to prepare the text of each Guiding Case. Finally, Judge Guo emphasized the importance of extracting the Main Points of the Adjudication, for which he expounded on the requirements based on the Detailed Implementing Rules. Therefore, summarizing and extracting the main points are essential, as the de facto binding effect of a Guiding Case lies in the Main Points of the Adjudication.

Judge Guo continued to discuss the application of Guiding Cases, for which he focused on two aspects. One was how to understand and use Guiding Cases as provided in Article 9 of the Detailed Implementing Rules, which states:

Where a case being adjudicated is, in terms of the basic facts and application of law, similar to a Guiding Case released by the Supreme People’s Court, the [deciding] people’s court at any level should refer to the “Main Points of the Adjudication” of that relevant Guiding Case to render its ruling or judgment (emphasis added).

To understand the expression “refer to” as used in Article 9, Judge Guo explained that three points should be considered: first, in the process of adjudicating cases, judges need to actively search and find Guiding Cases that are similar to the cases being adjudicated. Second, when adjudicating a case similar to a Guiding Case, judges should try their best to follow the line of reasoning underlying the adjudication of the Guiding Case. Third, the results of the adjudication of a case should not be “clearly different” from those of the Guiding Case to which the case is similar.

Pointing to Articles 9 to 11 of the Detailed Implementing Rules for specific information on how to refer to Guiding Cases, Judge Guo noted that because Guiding Cases are not a source of law, they cannot be cited as a legal basis in the final decision section of the judgment, but could be cited in the reasoning part of the adjudication. The essence of referencing Guiding Cases, according to Judge Guo, is to find the similarity between a case and a Guiding Case, especially in the basic facts and the application of law, but he acknowledged that there is no universal standard for applying Guiding Cases. Drawing from the common law experience of using precedents, Judge Guo encouraged judges in China to consider a comprehensive approach balancing different factors when applying Guiding Cases.

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Judge Guo proceeded to discuss another aspect regarding the application of Guiding Cases. If a judge does not refer to a Guiding Case where needed, a compelling reason must be provided. According to Judge Guo, because Guiding Cases are released after the careful discussion and decision made by the Adjudication Committee of the SPC, they have de facto binding effect on lower courts’ adjudication of similar cases. Therefore, when the adjudication of a similar case is in conflict with the laws, regulations, or judicial interpretations on which the Guiding Case is based, it should be dealt with according to law, including by “amend[ing] the original judgment” or undertaking a “retrial”.

In conclusion, Judge Guo noted that despite the progress, the Guiding Cases System is still new. Its theoretical basis, its relationship with statutes, effect, rules of reference and application, and many other issues merit further study. It needs to be based on China’s circumstances and adjudication practice and to be improved through continuous exploration. Adjudication personnel should increase their awareness of cases, establish a just judicial framework, and effectively improve the application of law and their capabilities to use cases. Judge Guo ended his remarks by welcoming all interested parties to support and contribute to the work of case guidance in China.

At this point, the floor was opened for the audience to ask questions of Judge Guo as well as his colleagues who accompanied him, Judge SHI Lei and Judge LI Bing. The first question concerned the consideration of factors such as social effects in the selection of and subsequent reference to Guiding Cases. Judge Shi answered that the consideration of social effects stems from providing guidance for subsequent cases on matters of judicial interpretation and the application of law. For cases that are relatively controversial or involve difficult new issues, the SPC would carefully evaluate their candidacy as Guiding Cases. They would investigate and study the case and its field further to determine whether there are cases that are more suited to be Guiding Cases. Judge GUO Feng added that the emphasis on social effects in selecting Guiding Cases was meant to convey certain inclination of values through court judgments. Guiding Case No. 24, for example, demonstrates the value of protecting ordinary people in traffic accidents. However, a case involving the crime of extorting a confession by torture in which the police officer finally prevailed due to insufficient evidence should not be chosen as a Guiding Case no matter how well-reasoned the judgment is. This is because choosing such a case as a Guiding Case might send a wrong signal to the government organs with investigation authority, thereby increasing the possibility of compromising the protection of criminal suspects. These two examples illustrate the importance of unifying legal and social effects in selecting Guiding Cases.

Another question raised concerned the treatment of rulings or judgments rendered by higher people’s courts or the SPC that are not Guiding Cases. Judge LI Bing responded that the SPC has released many types of cases through different channels, all of which could serve as important references for a unified judicial system. Guiding Cases are different, however, because there is a strict selection process, in which Guiding Cases are discussed and passed by

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the Adjudication Committee of the SPC. In adjudication practice, judges may look for earlier rulings or judgments that are not Guiding Cases as references, but have no obligation to follow these rulings or judgments. Guiding Cases are released by the SPC to specifically guide the adjudication of subsequent cases; therefore, judges should refer to Guiding Cases when adjudicating similar cases. As a result, Guiding Cases differ fundamentally from other cases in terms of legal effects. Judge GUO Feng added that earlier cases that are not Guiding Cases have neither de jure nor de facto binding effect on subsequent cases, whereas, as mentioned in his presentation, Guiding Cases have de facto binding effect on subsequent cases. The correct decision of a case hinges on the ascertainment of facts as well as the lawful interpretation and application of law. If a party considers a case erroneous in its treatment of factual or legal issues, the party can make an appeal or petition in accordance with law. The failure to follow an earlier ruling or judgment itself, regardless of whether it is a Guiding Case or any other case, cannot be a reason for determining whether the adjudication of a subsequent case was incorrect. If the decision of a subsequent case is inconsistent with that of a Guiding Case, the upper level court that repeals the decision of the subsequent case should do so for specific reasons, including erroneous application of law, instead of for the reason that the relevant Guiding Case was not followed.

III. China’s “Open Judiciary” Measures and U.S. Court of Appeals for the Second

Circuit’s Deference to China’s Interpretation of Its Own Laws: Implications for

the Global Legal Practice; Guiding Cases and the Development of Family Law

Ke James Yuan opened the panel by introducing the doctrine of international comity as applied by a judicial system—that is, the recognition that a court affords to the legislative, executive, or judicial acts of another country and the court’s decision to apply foreign legal principles and/or limit its own jurisdiction accordingly. In considering roadblocks to successful international legal practice, Mr. Yuan pointed to the prevailing assumption that Chinese courts are unlikely to uphold the principle of comity with respect to foreign judgments (e.g., in the enforcement of foreign arbitral awards), and the foreign suspicion that comity is protectively invoked by Chinese parties (e.g., failing to produce documents in discovery on the basis that production would violate Chinese data security and privacy laws). Mr. Yuan stated that the inadequate competency of some Chinese judges, the local protectionism practiced by some Chinese courts, and the long tradition of the non-openness of the Chinese judicial process all make such perceptions understandable. Nonetheless, it is noteworthy that the Chinese judicial system has been working hard on its own self-improvement toward openness, with the release of Guiding Cases by the SPC as one of the most significant examples of this trend.

Jordan Corrente Beck then turned to the Second Circuit’s recent ruling in In Re:

Vitamin C Antitrust Litigation,3 in which the court stated that the principle of comity requires deference to a foreign government’s interpretation of its own laws—in this instance, a deferral to

3 2016 WL5017312 (2d Cir. Sept. 20, 2016).

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statements made by China’s Ministry of Commerce (“MOFCOM”) in its historic appearance as amicus curiae to support defendants’ claim that Chinese regulations required them to fix the price and restrict supply of vitamin C in violation of the Sherman Act in the United States. Chiding the district court that if deference “is to mean anything, it must mean that a U.S. court [will not challenge] a foreign government’s official representation to the court regarding its own laws or regulations, even if that representation is inconsistent with how those laws might be interpreted under the principles of our legal system” and finding the district court abused its discretion in exercising jurisdiction, the Second Circuit reversed the district court’s denial of defendants’ motion for summary judgment and vacated the $147 million jury verdict against defendants.4

Ms. Corrente Beck underscored implications of the decision for global legal practice, including: (i) a potential increase in the number of governmental entities choosing to appear before U.S. courts in matters of state interest, given how much MOFCOM’s appearance seemed to be crucial to the Second Circuit’s opinion; (ii) the need to assume deference to foreign law and government interpretations of that law; and (iii) in assuming deference, the importance of access to foreign law and—pointing to the Second Circuit’s caution that deference is all the more critical when looking to legal systems “stark[ly] different” from the U.S. common law system and relying on translated texts—the importance of high quality translations and analyses of foreign law.

Building on the importance of access to foreign law, including its application in the court system, Mr. Yuan highlighted China’s “open judiciary” initiative (understood as efforts to apply the traditional open government principles transparency, participation, and collaboration to the court system) as it is closely related to the SPC’s release of Guiding Cases. Drawing on research by Dr. Mei Gechlik, DAI Di, and other members of the CGCP team,5 Mr. Yuan showed the development of the initiative by, inter alia, comparing reform tasks related to transparency, participation, and collaboration across the SPC’s four five-year court reform plans.6

4 For a detailed summary of In Re: Vitamin C Antitrust Litigation and its implications, see Lanier Saperstein

& Jeremy Schlosser, International Comity is Alive and Well: Second Circuit Defers to China’s Interpretation of Its

Own Laws in Vacating Multimillion-Dollar Antitrust Judgment, Sept. 29, 2016, Dorsey & Whitney LLP Client Alert,

https://www.dorsey.com/newsresources/publications/client-alerts/2016/09/international-comity-is-alive-and-well. 5 Dr. Mei Gechlik, DAI Di, Jordan Corrente Beck, et al., Open Judiciary in a Closed Society: A Paradox in

China? in ACHIEVING OPEN JUSTICE THROUGH CITIZEN PARTICIPATION AND TRANSPARENCY 56 (IGI Global, 2017),

https://law.stanford.edu/publications/open-judiciary-in-a-closed-society-a-paradox-in-china. 6 《人民法院五年改革纲要》(Five-Year Reform Plan of the People’s Court), issued by the Supreme

People’s Court on Oct. 20, 1999, http://www.chinacourt.org/article/detail/2013/04/id/941425.shtml;《人民法院第

二个五年改革纲要（2004－2008）》(The Second Five-Year People’s Court Reform Plan (2004-2008)), issued by

the Supreme People’s Court on and effective as of Oct. 26, 2005,

http://www.chinalaw.gov.cn/article/fgkd/xfg/sfwj/200904/20090400132177.shtml; 《人民法院第三个五年改革纲

要（2009－2013）》(The Third Five-Year People’s Court Reform Plan (2009-2013)), issued by the Supreme

People’s Court on and effective as of Mar. 17, 2009,

http://www.chinalaw.gov.cn/article/fgkd/xfg/sfwj/201012/20101200330558.shtml; 《最高人民法院关于全面深化

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Ms. Corrente Beck closed by noting that, while questions about the implications of In Re:

Vitamin C Antitrust Litigation linger, it is clear that one can expect greater deference to the Chinese government’s interpretation of its own laws, making knowledge of these laws and the government’s interpretations of these laws relevant for all legal practitioners—and making attention to China’s judicial reform measures and the work of the CGCP all the more important.

The seminar then focused on two Guiding Cases and the development of family law. Dr. Changchun Yuan first presented the facts of Guiding Case No. 12:7 defendant LI Fei broke up with his girlfriend, Ms. Xu, because of frequent quarrels. He subsequently lost his job because his employer discovered that he had a criminal record for theft. LI Fei believed that his termination was related to Ms. Xu. When he found Ms. Xu, he struck her multiple times on the head with an iron hammer and struck Ms. Wang, Ms. Xu’s cousin who was accompanying Ms. Xu, several times, resulting in Ms. Xu’s death and light injuries to Ms. Wang. After leaving the crime scene, LI Fei went to his aunt’s home and let her ask his mother to send him money. After learning of this situation, the mother, Ms. Liang, reported it to the public security authorities in a timely manner and assisted in arresting LI Fei, who came to his aunt’s home to pick up the money. During the handling of this case, LI Fei’s mother provided compensation in the amount of RMB 40,000 to the victims’ families on behalf of LI Fei. The first-instance court determined that LI Fei was guilty of intentional homicide and sentenced him to death. LI Fei appealed. The second-instance court upheld the original judgment and reported to the SPC for authorization of the death penalty. The SPC, however, did not authorize the death penalty and remanded the case to the second-instance court for retrial, which rendered a new judgment: LI Fei’s sentence was amended to death with a two-year suspension of execution.

Dr. Yuan questioned what would have happened had the mother done the opposite, e.g., given her son money, provided him necessities, purchased him a bus ticket, and told him where to flee? Under the current law, the mother would have been held criminally liable regardless of her close family relationship to the defendant. Dr. Yuan then suggested that this Guiding Case reflects the value of encouraging family members to report crime. Dr. Yuan drew the audience’s attention to the amendment to the Criminal Procedure Law of the People’s Republic of China in 2012, 8 i.e., two years after the LI Fei’s case. The amendment has affirmed parent-child testimonial privilege and spousal testimonial privilege in Article 188. Dr. Yuan queried, if family

人民法院改革的意见人民法院第四个五年改革纲要（2014-2018）》(The Opinion of the Supreme People’s

Court Concerning Comprehensively Deepening the Reform of the People’s CourtThe Fourth Five-Year Reform

Plan of the People’s Court (2014-2018)), issued by the Supreme People’s Court on Feb. 4, 2015,

http://www.court.gov.cn/zixun-xiangqing-13520.html. 7 《李飞故意杀人案》(LI Fei, An Intentional Homicide Case), STANFORD LAW SCHOOL CHINA GUIDING

CASES PROJECT, English Guiding Case (EGC12), Nov. 9, 2012 Edition, https://cgc.law.stanford.edu/guiding-

cases/guiding-case-12. 8 《中华人民共和国刑事诉讼法》 (Criminal Procedure Law of the People’s Republic of China), passed on

July 1, 1979, issued on July 7, 1979, effective as of Jan. 1, 1980, amended two times, most recently on Mar. 14,

2012, effective as of Jan. 1, 2013, http://www.gov.cn/flfg/2012-03/17/content_2094354.htm.

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members cannot be forced to testify against each other, should family members be encouraged to report each other’s crime to the authorities? Dr. Yuan urged more in-depth study of these and related issues.

Turning to Guiding Case No. 50,9 Dr. Yuan continued the topic of family law with a succession dispute. The basic facts: Ms. Li and Mr. Guo owned a house during their marriage. After Mr. Guo’s death, his son was born. In a suit related to the allocation of Mr. Guo’s estate, Mr. Guo’s parents claimed that Mr. Guo left a will to give the aforementioned house to his parents and declared in the will that he did not want the child, who was born through artificial insemination. In fact, after learning that he was suffering from cancer, he told Ms. Li that he did not want the child, but Ms. Li persisted in giving birth to the child. Therefore, as argued by Mr. Guo’s parents, Ms. Li should be responsible for the child, who should not be listed as Mr. Guo’s successor. After relating the facts, Dr. Yuan highlighted the Main Points of the Adjudication of this Guiding Case:

1. Where, during the time of a spousal relationship, [a husband and wife] together

agree to use another person’s sperm to conduct artificial insemination causing the

wife to become pregnant, [and] the husband then reneges, but the wife persists in

giving birth to the child, [the child] should be regarded as a legitimate child of both the husband and the wife regardless of whether the child is born during the

time of a spousal relationship.

2. If a will made by a husband or a wife does not reserve a share of the estate for

[their] fetus, the content of that part of the will is invalid because [it] violates

Article 19 of the Succession Law of the People’s Republic of China.10

When the

estate is divided, a share of the succession should be reserved for the fetus in

accordance with Article 28 of the Succession Law of the People’s Republic of

China.

Guiding Case No. 50 resolved an issue arising from artificial insemination, but given the

enormous progress of assisted reproductive technology in recent years, a lot of new legal issues need to be examined carefully. For example, if an unmarried couple has a child by using assisted reproductive technology, what is the legal status of the child when the couple separates? While awaiting more Guiding Cases to address these issues, Dr. Yuan suggested that useful foreign judgments be studied for reference.

9 《李某、郭某阳诉郭某和、童某某继承纠纷案》(A certain Ms. LI and GUO X Yang v. GUO X He and a

certain Ms. TONG, A Succession Dispute), STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English

Guiding Case (EGC50), Nov. 15, 2015 Edition, https://cgc.law.stanford.edu/guiding-cases/guiding-case-50. 10

《中华人民共和国继承法》 (Succession Law of the People’s Republic of China), passed and issued on

Apr. 10, 1985, effective as of Oct. 1, 1985, http://www.npc.gov.cn/wxzl/gongbao/2000-12/06/content_5004457.htm.

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IV. China’s Legal Remedies System for the Protection of Copyright and Its

Perfection; “One Belt One Road”: Opportunities and Challenges for Chinese

Businesses

Mr. WANG Ziqiang then discussed how China’s Guiding Cases System has helped supplement China’s copyright law remedy system, filling in some gaps in the law that the judicial and administrative remedies were not able to fill.

Mr. Wang pointed out that copyright protection is a dynamic legal system closely following the development of science and technology. The fast-paced development of technology and the relative stability of the copyright law system have led to certain problems in the practice of copyright protection, which, to a certain extent, influence adjudication and administrative enforcement. Although adjustments in legal remedies are helpful in the development of China’s copyright legal system, there are still gaps in remedies that need to be filled by Guiding Cases.

Mr. Wang provided context in the form of a general overview of China’s copyright law remedy system. He first pointed out that judicial remedies are the most fundamental remedial measures, which are complemented by administrative remedies. He then explained that the copyright law remedy system consists of a few key regulations, including the Regulation on

Computer Software Protection and the Regulation on the Protection of the Right of

Communication through Information Networks, as well as judicial interpretations and guiding opinions issued by the SPC.

Mr. Wang then highlighted relevant adjustments to remedial measures in the draft amendment to the copyright law. Adjustments to civil judicial remedies include summarizing, instead of listing, different types of civil tort, incorporating the liability of network service providers into the draft amendment, and expanding the scope of application of the presumption of fault. Adjustments to administrative remedies include giving law enforcement agencies’ authority to seal up and distrain property, providing for administrative mediation, and providing for customs investigations of allegedly infringing articles. Mr. Wang also touched on a few adjustments to criminal justice remedies and noted how copyright protection was strengthened in the 2015 criminal law amendments.

Although various legal remedies have been modified to fit the fast-paced copyright protection legal system, there are still a lot of holes to be filled. Copyright-related Guiding Cases are important in helping to clarify these holes. Mr. Wang noted how China’s copyright law Guiding Cases could help the judiciary and administrative departments to implement the law accurately, to make up for deficiencies in the legal system, to promote fair justice and strict law enforcement, and to safeguard legal authority and social fairness and justice.

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Dr. YU Jianlong closed the series of panel talks by introducing a new initiative involving the Chinese judiciary: the “One Belt One Road” (aka “Belt and Road”) Initiative. Proposed by President XI Jinping on his visits to Kazakhstan and Indonesia in 2013 and envisioning extensive economic cooperation between China and over sixty countries along the newly-defined “Silk Road” and the so-called “Maritime Belt”, this project has prodigious economic parameters: for example, already-involved countries accounted for roughly USD 1 trillion (25%) of China’s total foreign trade in 2015 and, combined with China, accounted for USD 20 trillion (33%) of the world’s total GDP.

Dr. Yu highlighted some of the benefits, focusing particularly on the advantages for Chinese businesses, seen in the Belt and Road Initiative. Thus, in addition to general improvement of infrastructure, facilitation of customs work, and acceleration of trade through free trade agreements, among other benefits, deeper integration of the supply and value chain and advances in production capacity, technologies, and financial resource allocation are all heralded by the initiative. Areas of cooperation also include power generation, agriculture, e-commerce, and tourism, with specific projects such as railways linking China with Laos, Thailand, and even Europe as well as new industrial parks planned.

Having highlighted the importance and advantages of the Belt and Road Initiative, Dr. Yu proceeded to sketch some of the measures supporting—and challenges still facing—it. One of the primary bases of the Belt and Road Initiative consists of bilateral and multilateral economic cooperation and trade agreements, which China already has with over 30 countries. Support also stems from certain government programs and forums, centralized banks, and funds, e.g., the Asia Infrastructure Investment Bank and the Silk Road Fund, as well as business initiatives such as missions, match-making endeavors, bilateral and multilateral business councils, and the Silk Road Chamber of Commerce. Nevertheless, considerable challenges may threaten the effectiveness of the Belt and Road Initiative: political uncertainties, language and cultural barriers, obstacles to trade facilitation (including protectionism), corruption, and legal risks.

Dr. Yu’s presentation culminated in the consideration of certain legal risks and potential remedial measures. Apart from a general lack, to varying extents, of a legal infrastructure and the rule of law in many “Belt and Road” countries, the Belt and Road Initiative faces the fundamental hurdle of crossing legal traditions: civil law countries, common law countries, Islamic law countries, and countries with legal systems that blend different legal traditions. The “Belt and Road” countries can best meet these legal challenges by leveraging their governments, educating and engaging their judiciaries, and making strategic use of legal services, particularly litigation and especially arbitration. Dr. Yu recommended the Guiding Cases System, along with the exchange of trial experience and training programs, as an efficacious instrument in this arsenal while emphasizing the augmentation of resources concerning arbitration, such as the publication of arbitration cases as guidance.

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V. Closing

Following Dr. Yu’s presentation, Dr. Mei Gechlik, due to time constraints, could not invite the audience to pose questions to the speakers. She wrapped up the seminar by unveiling the Belt and Road Series that the CGCP recently launched (https://cgc.law.stanford.edu/belt-and-

road). In line with Dr. Yu’s recommendation, the SPC has released representative court cases (though in the form of “Typical Cases”, which, unlike Guiding Cases, do not have de facto binding effect) involving parties from relevant “Belt and Road” countries to showcase how these foreign parties’ interests are protected in China. As argued by Dr. Gechlik, the release of these Typical Cases, which are quite well-reasoned on the basis of not only Chinese law but also bilateral or multilateral agreements between China and these “Belt and Road” countries, is likely an attempt by the SPC to encourage foreign courts in “Belt and Road” countries to adopt similar, friendly approaches when they preside over cases involving Chinese investors in their countries. Given the importance of this initiative and its potential impact on bringing about more judicial reforms in China, the CGCP has decided to launch a new series of products:

B&R CasesTM, a serial publication of the China Guiding Cases Project that

provides full-text versions and high-quality English translations of court cases in China that are related to the country’s Belt and Road Initiative.

B&R TextsTM, a compilation of primary sources forming the legal framework of

China’s Belt and Road Initiative, including legal cooperation agreements between China and countries along the “Belt and Road” routes.

At the end of the seminar, Dr. Gechlik suggested that the SPC re-issue these B&R Typical Cases as Guiding Cases because the superior status of the latter allows the SPC to more effectively facilitate the implementation and expansion of the Belt and Road Initiative.

Appendix

MODERATOR

Dr. Mei Gechlik

Dr. Mei Gechlik is Founder and Director of the China Guiding Cases Project (CGCP). Formerly a tenured professor in Hong Kong, she founded the CGCP in February 2011. With support from an international team of nearly 200 members and an advisory board of approximately 50 distinguished experts, including justices from the U.S. Supreme Court and the Supreme People’s Court, the CGCP has quickly become the premier source of high-quality translations and analyses of Guiding Cases, China’s de facto binding precedents (http://cgc.law.stanford.edu). The CGCP has presented at various notable forums, including the World Bank, the Open Government Partnership Global Summit, and a U.S.-China Legal Exchange Conference. In 2012, the China eGovernment Development Index, which Dr. Gechlik and a few international

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experts created to assess e-government development in Chinese localities, made a big splash in China and was extensively covered by Chinese media, including the official People’s Daily. From 2001 to 2005, Dr. Gechlik worked for the Carnegie Endowment for International Peace, a Washington D.C.-based think tank, testifying before the U.S. Congress on various topics about China and advising the United Nations and the Chinese government on implementing rule of law programs. Dr. Gechlik is admitted as a barrister in England, Wales, and Hong Kong and is a member of the Bar in New York and the District of Columbia. She received her Doctor of Science of Law (JSD) from Stanford Law School and her MBA in Finance from the Wharton School at the University of Pennsylvania.

KEYNOTE SPEAKER

The Honorable Judge GUO Feng

Judge Guo Feng is the Deputy Director of the Research Department of the Supreme People’s Court of China. Serving in this position since 2014, he has been in charge of, among other responsibilities, the development of the Guiding Cases System. Prior to this, Judge Guo was the dean of the law school of the Central University of Finance and Economics in Beijing for eight years. As a result of his leadership, the school has become a first-tier law school in China, with particular strengths in such fields as banking law, capital markets, and financial regulation. As one of a few pioneers to receive a PhD in law in the early 1990s, Judge Guo was appointed as a professor at the reputable law school of Renmin University of China.

Aside from his impressive accomplishments within academia, Judge Guo is also known for his distinguished legal practice. His most significant case was his representation of hundreds of investors who successfully claimed damages from the Shanghai Stock Exchange-listed Daqing Lianyi Oil and Chemical Industrial Company for fraud and misleading disclosures with respect to share issuances and transactions. The initial class action complaint was rejected and the suit was ordered to be split up into multiple individual actions. This landmark case demonstrated Judge Guo’s distinctive expertise in securities law. Leveraging its success, Judge Guo founded the China Securities Law Institute (CSLI), for which he served as chairman for eight years. CSLI remains China’s most prestigious legal institute in the field of capital markets. SPEAKERS

Jordan Corrente Beck

Ms. Jordan Corrente Beck is a Co-Managing Editor with the CGCP and previously served on-site as Project Manager, where she assisted with a number of broader initiatives, including successful proposals for inclusion in the Open Government Partnership Summit in Mexico City and the 2015 Law, Justice and Development (LJD) Week co-organized by the World Bank Group and the

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Global Forum on Law, Justice and Development. Ms. Corrente Beck is an associate at Debevoise & Plimpton LLP in the Mergers & Acquisitions Group, where her practice focuses on cross-border transactions. Ms. Corrente Beck received her JD cum laude from the University of Michigan Law School and her BA from Vassar College. She is a member of the New York Bar.

James Yuan

Mr. Ke James Yuan serves as an Associate Managing Editor of the China Guiding Cases Project at Stanford Law School and an Associate at Covington & Burling LLP. As a professional with truly bilingual and bicultural skills, Mr. Yuan primarily focuses on corporations’ internal investigations, anti-corruption matters, and defense of complex white-collar crimes. He has assisted multinational companies and financial institutions in handling their internal investigations, foreign-related litigation, regulatory supervision, and business transactions. Mr. Yuan received his JD cum laude from Mississippi College School of law and his MPA and BA from The Evergreen State College. He is a member of New York Bar.

WANG Ziqiang

Mr. Wang Ziqiang is the General Director of the Policy and Regulation Department of the State Administration of Press, Publication, Radio, Film and Television (SAPPRFT) and National Copyright Administration of China (NCAC). Since entering the former General Administration of Press and Publication (GAPP, now the SAPPRFT) in 1986, Mr. Wang has engaged in copyright work for 30 years and been heavily involved in the formulation and revision of China’s copyright legal system and relevant policies. He was also responsible for drafting the National Copyright Strategy, a sub-strategy under China’s National Intellectual Property Outline, as well as organizing the drafting of China’s National Copyright Second-Five-Year Plan. Mr. Wang is also the Editor-in-chief of the China Copyright Yearbook and an editor of the Copyright Bulletin (Chinese version) of UNESCO. He is the Editor-in-chief of many books on copyright and has published articles on copyright theory and practice in various law journals and newspapers. Mr. Wang is currently Vice Chairman of the China Copyright Association.

Dr. YU Jianlong

Dr. Yu Jianlong is the Secretary General of the China Chamber of International Commerce (CCOIC) as well as Vice Chairman of the China Maritime Arbitration Commission (CMAC) and the China International Economic and Trade Arbitration Commission (CIETAC), of which latter he also served as the Secretary General from March 2006 to July 2016. Dr. Yu also served as President of the Asia Pacific Regional Arbitration Group (APRAG) from 2013 to October 2016 and is a member of the Governing Board of the International Council for Commercial Arbitration (ICCA); his previous posts include Director General of the Economic Information Department of the China Council for the Promotion of International Trade (CCPIT) between 2004 and 2006 and

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Deputy Director General of the International Relations Department of the CCPIT between 1998 and 2004. Dr. Yu received his PhD in International Economic Law from the School of Law of the University of International Business and Economics (UIBE), a Master of Executive Business Administration and a Master of Inter-Cultural Communications from Peking University, and his BA in British and American Literature from Capital Normal University.

Dr. Changchun Yuan

Dr. Changchun Yuan is one of the founding partners of Broad & Bright. He has more than 20 years of experience in advising multinational companies on their operation in China and assisting domestic companies in their investment abroad. His practice focuses on foreign direct investment, M&A, general corporate matters, and highly regulated industries (insurance, pharmaceutical, and medical devices). He received legal education in both China and the United States and is admitted to practice in both China and New York. In addition to practicing law, he has an academic interest in sociology of law. Dr. Yuan holds a master’s degree in law from the Chinese Academy of Social Sciences and a doctoral degree in law from Stanford Law School.

Documents

Guiding Cases SeminarsTM - Stanford University · 11/22/2016 · framework, and effectively improve the application of law and their capabilities to use cases. Judge Guo ended his