INTERNATIONAL LAW IN NORTH EAST ASIA FORUM (ILNEAF)

ILNEAF - National Decisions involving questions of International Law: China

Selected Chinese National Judicial Decisions Concerning Questions of Public International Law and Private International Law[1]

 

序号

Court

Disputing Parties

Decision date

Case No.

Related Int’l Law

Summary of the case regarding int’l Law

Decision regarding Int’l Law

1

provincial and district court

Tian Jin Maritime Court

Bcen-EuroBank v. FertaTradeLtd.S.A.

2006/3/25

(2005)Jin Hai Fa Shang Chu Zi No.401

Principle of equal sovereignty for all countries; par in parem non habet jurisdictionem; International Convention on Maritime Liens and Mortgages (1993).

Claimant argued mortgage of a ship, which already had been auctioned, in another case decided by Rajin court of North Korea mortgage.

In consideration of the basic principle of equal sovereignty for all countries and par in parem non habet jurisdictionem, whether the auction of ship by Rajin Court of North Korea legal or not, is out of the judicial review scope of Chinese Court, the claimant must assert its claim to a court of North Korea under local legislation.

2

Hainan Province Higher People’s Court

Danzhou Yonghang Stainless Steel Co.,Ltd.  v. Dalian Taijia Shipping Co., Ltd.

2010/5/28

(2009) Qiong Min San Zhong Zi No.18

Chapter VI, Part B, Article 6 of Amendment (1994) and Chapter V, Article 34-1 of the Amendment (May 20, 2004) to International Convention for the Safety of Life at Sea (SOLAS) (1974); Code of Safe Practice for Solid Bulk Cargoes (BC Code).

The case is about whether shipper submitted the qualified inspection certificate in conformity with the Code of Safe Practice for Solid Bulk Cargoes.

The captain involved in this case was required to re-inspect the goods so as to ensure conformity with the requirement of safe carriage under the BC Code and SOLAS Convention.

3

Zhejiang Province Higher People’s Court

Qinzhou city Qinzhou Harbor Yuanshunda Shipping Co., Ltd.  v. Best Sea International Marine Group Co., Ltd.  

 

2010/9/21

 (2010) Zhe Shang Wai Zhong Zi No. 169

International Convention on Tonnage Measurement of Ships, 1969.

The appellant claimed that the first instance court was wrong in identifying the sum of the limitation fund for maritime claims liability.

Zhengjiang Province Higher People’s Court considered that the international tonnage certificate and national tonnage certificate of the ship involved in the case were respectively measured according to International Convention on Tonnage Measurement of Ships (1996) and national Technical Regulation for Statutory Survey of Seagoing Ships (2004). The difference between two recorded tonnages was due to the different measurement rules. So the determination of the first instance court was not improper.

4

Zhejiang Province Higher People’s Court

Green Foods Cooperation v. Zhejiang Jiatengjia Food Co., Ltd.

2011/6/22

 (2011) Zhe Shang Wai Zhong Zi No.45

Principle of estoppel

The appellant Jiatengjia Company denied the authenticity of the evidence that it had confirmed explicitly during the first instance.

This case involves the application of the international principle of estoppel in Chinese judicial practice. The appellate court considered that the appellant violated the principle of estoppel and decided that the conduct of the appellant should be disapproved.

5

Shanghai Higher People’s Court

Symantec Corporation  v. Ma Jingyi

2012/4/18

 (2011) Hu Gao Min San (Zhi) Zhong Zi No.88

Principle of judicial sovereignty,Extraterritorial effects of the judgment rendered in one country.

The defendant argued that the American court had rendered a judgment over its tortious act and therefore the plaintiff could not re-litigate in China.

The court considered the recognition and enforcement of foreign judgments in China in order to decide whether the plaintiff had the right of action. According to the judicial sovereignty, in most circumstances, a court’s judgment only has the effect within its territory without effect outside the forum’s jurisdiction. Furthermore, since there is no agreement on mutual recognition and enforcement of foreign judgments between China and Unites States, we cannot recognize or enforce the American judgment according to the principle of reciprocity.

6

Zhejiang Province Higher People’s Court

Eastern Sea Area Administration of Fishery under the Ministry of Agriculture of People’s Republic of China  v. Shipping Corporation of India, Kang Zhongming

 

2012/4/19

 (2012) Zhe Hai Zhong Zi No.19

Article 3, paragraph 1 of International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001

This case is about whether the ship-owner is liable for pollution damage caused by the oil leak after the ship collision in this case.

The court applied the 2001 Convention to determine the liability. 

7

Guangdong Province  Guangzhou City Intermediate People’s Court

Guangzhou Liyuan Enterprise Management Consultant Co., Ltd.  v. Guangzhou Daming Biotechnology Co., Ltd.

2013/9/17

 (2012) Hui Zhong Fa Min San Zhong Zi No.35

Annex I:5, Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks.

The classification of trademark used by the aqua bottles of cosmetics alleged of infringement.

First instance court determined the container’s category pursuant to the Nice Agreement. This was upheld in the higher court decision.

8

Beijing Xicheng District People’s Court

Beijing Baidu Netcom Science Technology Co., Ltd. v. Beijing Qihoo Technology Co., Ltd.

2013/9/24

(2013)Xi Min Chu Zi No. 08272

Article 2 of World Intellectual Property Organization Copyright Treaty

The case is about whether the content of the right claimed by Baidu Company belongs to expressions with the originality that is protected by the Copyright law.

The court considered that the principle of that “Copyright protection extends to expressions and not to ideas” was not only prescribed in the Treaty but also accepted by our Copyright Law.

9

Beijing First Intermediate People’s Court

Zhang Jianmin v. State Administration for Industry & Commerce of the People’s Republic of China, Trademark Review and Adjudication Board

2013/9/28

 (2013) Yi Zhong Zhi Xing Chu Zi No. 2190 

Article 16, paragraph 3 of Agreement on Trade-Related Aspects of Intellectual Property Rights

Whether the opposed trademark constituted similar trademark to the reference mark on similar products.

The court decided that the relevant content of Article 16, paragraph 3 of TRIPS Agreement has been reflected in Trademark Law, according to which the opposed trademark constituted similar trademark on similar products.

10

Hainan Province Higher People’s Court

Wanning Shimeiwan Hotel Co., Ltd., Hainan Linhe Engineering Consulting Co., Ltd.  v. Lu Shengsu, Huizhou Saxon Property Management Co., Ltd.

2013/11/12

(2013) Qiong Min San Zhong Zi No. 75

Convention on the Taking of Evidence Abroad in Civil or Commercial Matters

The appellant claimed that the court of first instance erred in the application of law. Also, it didn’t ipso jure ascertain the relevant legal provisions so it violated provisions of the Convention and constituted a violation of legal procedure.

Concerning the issues of application of law and the ascertainment of foreign law, pursuant to Article 10 and 24 of the Law of the Application of Law for Foreign-related Civil Relations of the People’s Republic of China, the court maintained that the application of law and procedure of the court of first instance was in conformity with law.

11

Heilongjiang Province Mudanjiang City Intermediate People’s Court

Jin Yingshun v. Li Jinsong, Wang Jiantao, Lang Dongbin, Yu Haitao, China Life Property & Casualty Insurance Co., Ltd. Mudanjiang Center Branch Company Muling Marketing Service Department.

2013/12/9

 (2013) Mu Min Zhong Zi No. 365

National Treatment to Foreigners

The appellant (plaintiff of the first instance) is Foreigner.

The court of first instance considered that citizen’s health right should be protected and foreign nationals were entitled to national treatment. Our court upheld this decision.

 

12

Shandong Province Higher People’s Court

Schwartz Karol Haim (Applicant who requested for reconsideration)

2013/12/10

(2013) Lu Zhi Fu Yi Zi No. 93

One country shall not restrain a foreign national from legally leaving its territory.

The applicant was against the award rendered by Qingdao City Intermediate People’s Court in which he was refrained from leaving the country.

This case concerns the dispute of insurance subrogation right involving foreign litigant. Execution debtor didn’t discharge its statutory duty at the time. Applicant was the legal representative of the debtor. Therefore, the requirements of removing the measures that refrained the applicant from leaving the country were not met.

13

Guangdong Province Higher People’s Court

The accused: Hong Qidong, Zheng Jian, Feng Kui.

2014/3/17

(2014) Yue Gao Fa Xing San Zhong Zi No. 64

A series of international conventions against drugs that China has acceded to.

The appellants argued that this case was about exporting drugs where there was a less severe danger to the society.

Since our country acceded to a series of international conventions against drugs, it is our international duty to fight against drug related crimes. Therefore, the claims of the applicants were rejected.

14

Rongchang County People’s Court

Li Tingbin v. Chongqing City Yongchuan District Human Resources and Social Security Office

2014/5/9

  (2014) Rong Fa Xing Chu Zi No.00011

Article 3(c) of ILO Convention No. 155, Occupational Safety and Health Convention, 1981

The determination of “workplace”.

The court determined the range of the “workplace” according to the Convention.

15

Jiangsu Province Nanjing City Intermediate People’s Court

Nanjing Shenbai Yuandong Chemical Co., Ltd. v. PMC Co., Ltd.

2014/5/16

 (2014) Ning Shang Wai Xia Chu Zi No. 1

Objection of jurisdiction.

Defendant claimed that the order between parties had specified the competent court and asked the court to decide that it had no jurisdiction.

This case concerns the agreement jurisdiction in the contract for international sale of goods. The court considered that the issue of judicial proceeding fell within the public law. The validity of foreign-related jurisdiction agreement clause was governed by the lex fori. In this case, since the jurisdiction agreement confirmed to the Civil Procedure Law of the People’s Republic of China, it was binding for parties. Therefore, the objection of jurisdiction raised by the defendant was tenable.

16

Beijing Higher People’s Court

 

 

Esprit International Co., Ltd. v. State Administration for Industry & Commerce of the People’s Republic of China, Remark Review and Adjudication Board.

2014/5/20

(2014) Gao Xing Zhong Zi No. 1119

Article 8 of Paris Convention for the Protection of Industrial Property

Esprit Company invoked situations as referred to in Article 8 about the protection of trade names’ right of Paris Convention were reflected in Article 31 of Trademark Law of the People’s Republic of China. Whether the opposed trademark constituted damage to the prior trade name’s right of Esprit Company and violated Article 31 of Trademark Law.   

The focus of dispute in this case is that whether the opposed trademark violated Article 31 of Trademark Law, which reflects the content of Article 8 of Paris Convention. Evidence submitted by Esprit Company is not sufficient to prove that “ESPRIT” as trade name of the enterprise was well known. The products that are specified to use the opposed trademark wouldn’t damage the relevant interests of Esprit Company. Therefore, the claim of Esprit Company was disapproved.

17

Hainan Province Higher People’s Court

Getty Images (Beijing) Co., Ltd. and Hainan Quike Pharmaceutical Co., Ltd.

2014/6/5

 (2014) Qiong Zhi Min Zhong Zi No. 7

Article 7 (8) of Berne Convention for the Protection of Literary and Artistic Works; Article 3, paragraph 7 of Memorandum of Understanding Between the Government of the People’s Republic of China and Government of the United States of America on the Protection of Intellectual Property.

Quike Company argued that Getty Images Company didn’t provide with the evidence that could prove that the involved photography works’ copyright was still within the period of protection and that therefore its claims should be rejected.

The court considered Getty Images Company, as the qualified plaintiff in the present case, was entitled to the copyrights of involved photography works. Therefore the claims of Quike Company were disapproved.

18

Fujian Province Fuzhou City Intermediate People’s Court

Applicants: Zeng Chen, Chen Yanmin

2014/6/19

 (2014) Rong Min Ren Zi No. 1

The principle of reciprocity as a rule of customary international law, was incorporated in Article 282 of Chinese civil procedure law

The applicants requested the court to recognize legal effect of the divorce decree rendered by Ontario Superior Court of Justice in Canada.

Based on the principle of reciprocity, the court recognized the legal effect of the decree.

19

Jilin Province Higher People’s Court

 

You Er Te Company and Glass-Grshtlnc Company, Zhang Xiukun, Yu Yang

 

2014/7/16

 (2013) Ji Min San She Zhong Zi No. 12

Article 3 of Berne Convention for the Protection of Literary and Artistic Works; Article 2 of Universal Copyright Convention

Whether U.S Glass-Grshtlnc Company was entitled to the copyright of involved products.

According to the principle of automatic protection under Berne Convention and the principle of national treatment under Universal Copyright Convention, the court decided that the claims of appellant were disapproved and that the U.S Glass-Grshtlnc Company was not entitled to the copyright.

20

Beijing First Intermediate Court

 

Li Enze and Wang Xiurong, China Tobacco Jiangxi Industrial LLC.

2014/7/18

 (2014) Yi Zhong Min Zhong Zi No. 125

Article 11 of World Health Organization Framework Convention on Tobacco Control

Article 11 of the Convention provides that the advertising of “low-tar and low-harm” is prohibited. Appellant argued that the slogan on appellee’s tobacco products saying “low-tar and low-harm” was false advertising.

The court considered that reducing tar is conform with the spirit under World Health Organization Framework Convention on Tobacco Control and principle of China’s Tobacco Monopoly Law, the evidence submitted by the appellant was not sufficient to support his claims and China Tobacco Jiangxi Industrial LLC didn’t conduct false advertising. D.

21

Heilongjiang Province Harbin City Intermediate People’s Court

The accused: Jin Zhongxi

2014/8/28

 (2014) Ha Xing Yi Chu Zi No.88

Extradition

The accused committed crime in China and then escaped to South Korea.

Chinese police and Interpol cooperated to apprehend the accused outside Chinese territory. The South Korean Police caught the accused and then Chinese police sent staff to extradite the accused to China based on the extradition treaty.

22

Hainan Province First Intermediate People’s Court

Zheng Xinhu, Chen Chuanbao et al.v. Wenchang City Government

2014/9/18

(2014) Hainan Yi Zhong Xing Chu Zi No. 148

Principle of reciprocity

Four of the plaintiffs had nationality of Singapore. Defendant argued that the principle of reciprocity should be applied and it was inappropriate to hear all the plaintiffs in the same case.

The court considered that the case where the ethnic Chinese of foreign nationality are involved is case involving foreign elements. In such cases, we could not apply the same law as the one applied to Chinese nationals, especially the procedural law. Therefore, it was inappropriate to hear the case altogether in the same procedure.

23

Guangdong Province Guangzhou City Intermediate People’s Court

Beijing Xiandai Tiankong Wenhua Fazhan Co., Ltd. and Guangzhou KuGou NetWorks Co., Ltd.

2014/9/30

 (2014) Hui Zhong Fa Zhi Min Zhong Zi No. 768

Article 5 of Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms;Article 11 of Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations

Appellee argued that the evidence it submitted had already proved that it was entitled to the author’s right of the album.

The court considered that the appellee – Tiankong Company was entitled to the author’s right of phonograms involved in this case.

24

Shandong Province Higher People’s Court

Shandong Xinfa Co., Ltd. and Yuan Li Shipping Co., Ltd.

2014/12/15

 (2014) Lu Min Si Zhong Zi No. 161

Exclusive economic zone

The case was about the determination of the amount of loss arisen from ship collision.

Holding a Permit of fishing in the EEZ of Republic of Korea, the involved ship was allowed to carry fishery catches in the exclusive economic zone of Republic of Korea. Therefore, the fishery catches obtained by the ship were from legal sources and the loss claim of the ship owner was legal.

25

Hunan Province Higher People’s Court

Ren Hongbin v. Changsha Customs of the People’s Republic of China

2015/6/18

 (2015) Xiang Gao Fa Xing Zhong Zi No. 94

Article 39 of Universal Postal Convention

The procedural question that the defendant entrusted a third party to levy the tax.

According to the relevant domestic laws and Article 39 of the Convention, the tax levy procedure of the defendant was in conformity with legal provisions.

26

Jiangsu Province Yancheng City Intermediate People’s Court

The accused: Zhou Wenhui, Tang Kourong et al.

2015/7/15

 (2014) Yan Xing Er Chu Zi No. 0006

Contiguous Zone

Whether the involved oil product was from abroad.

After investigation, the location of the diesels’ connection was out of the territorial sea and contiguous zone of China. Therefore, the involved oil product was from abroad; this fact was clearly ascertained and the evidence was sufficient.

27

Zhejiang  Province Shaoxing City Intermediate People’s Court

Applicants: Ostin Ltd. and Zhejiang Huatengzhiyi Ltd, etc.

2015/10/26

(2015) Zhe Shao Zhong Que Zi No.3

Article 21, Article 29 of Treaty between the Russian Federation and the People's Republic of China on legal assistance and legal relations in civil and criminal matters (1993)

Recognition of the documents of the related evidence provided by the applicants.

Decision, on the basis of Article 21, Article 29 of the Convention and other related laws and regulations.

28

Shanxi Province Higher People’s Court

Air France and Jingjian Su, Chenxi Zhang

2015/11/20

(2015)Jin Min Zhong Zi No.340

Article 1, Article 17, Article 21 and Article 35 of the Convention for the Unification of Certain Rules for International Carriage by Air (The Montreal Convention of 1999)

The applicable law, the limitation of action, the responsibility of compensation of the defendant, the amount of damages.

The Shanxi Province Higher People’s Court held that Article 1, Article 17, Article 21 and Article 35 of The Montreal Convention (1999) should be applied.

29

Wenzhou Longwan District People’s Court

The accused: Mr. Xia, accused of dangerous driving.

2015/12/8

(2015)Wen Long Xing Chu Zi No.935

The diplomatic immunity

The accused is a staff of the Embassy of the Republic of Sierra Leone

He is the Counselor. The case does not belong to the circumstances of diplomatic immunity.

30

Yantai Zhifu District People’s Court

Illva Saronno Holding SPA v. State Tax Bureau of Shandong Yantai Zhifu.

2015/12/15

(2015)Zhi Xing Chu Zi No.16

The most-favored nation treatment

The applicant claimed to be entitled to tax-refund in the transaction according to the most-favored nation treatment stipulated in the related treaties between China and Italy

The court held that the collection of taxes by the defendant, according to the tax laws of China, is legal. In case of dissenting, the claimant, after exhaustion of domestic proceedings, could apply for the Mutual Agreement Procedure between government of China and Italy.

31

Guangdong Province Dongguan City Third People’s Court

Peng Li v. Bureau of Ethnic and Religious Affairs of Dongguan Municipality and  People's Government of Dongguan Municipality

2015/12/28

(2015)Dong San Fa Xing Chu Zi No.127

Article 18 of Universal Declaration of Human Rights; Article 18 of International Covenant on Civil and Political Rights

The claimant invoked the two conventions to defend his freedom of religion.

The court dismissed the claim of the claimant, holding that the defendant’s regulation of the religious activities of the claimant on the basis of the Regulation on Religious Affairs did not violate the Constitution and the two international conventions.

32

Beijing Third Intermediate People’s Court

The accused: Muhammad Ramadan

2016/1/15

(2015)San Zhong Xing Chu Zi No.00572

Article 31 and article 32 of Vienna Convention on Diplomatic Relations of 1961

Whether the defendant is entitled to diplomatic immunity.

The defendant is not entitled to diplomatic immunity and he should be treated as an ordinary foreigner.

33

Jiangsu Province Higher People’s Court

Taizhou Hope Investment Co., Ltd. And Wicor Holding AG.

2016/4/26

(2013)Su Shang Wai Chu Zi No.0001

Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (1965)

Procedure about service abroad of court summon.

The court summon has been serviced abroad in accordance with the Convention.

34

Anhui Province Jieshou City People’s Court

The accused: Mr. Lu, accused of crime of pollution of environment.

2016/5/17

(2016)Wan 1282 Xing Chu No. 32

Stockholm Convention on Persistent Organic Pollutants (2001)

Determination of toxic substance

The article 10 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Application of Law in the Handling of Criminal Cases of Environmental Pollution includes substances listed in the annexes to the Convention.

35

Shandong Province Higher People’s Court

AGILITY SHIPPING COMPANY, Ningbo Branch of China Life Insurance Co., Ltd, Ningbo China-Base Group.

2016/9/29

(2016)Lu Min Zhong No.1435

Maritimes Labor Convention 2006

The appellant claimed that the respondent’s ship is unseaworthy at the time of sailing.

The court held that at the time of the sailing of the implicated ship, the Convention was not in force, so it could not be invoked as legal basis.

36

Wenzhou Ouhai District People’s Court

Adidas (China) Co., Ltd and Wenzhou Xiaojindan trade Co., Ltd.

2016/10/30

(2016)Zhe 0304 Min Chu No. 2066

Madrid Agreement Concerning the International Registration of Marks (1989)

The defendant registered the trademark in accordance with the Agreement, so he is the right holder of the trademark.

China is a contracting party of the Agreement. The specific elements in the application for international registration comply with those in the application for registration in the country of origin. It is protected by the Chinese trademark law.

37

Shanghai Second Intermediate People’s Court

Divorce dispute between Mr. Fu•Di and Ms. Dong

2013/09/22

(2013)Hu Er Zhong Min Yi (Min) Zhong Zi No. 1661

Article 2 and Article 3 of Convention on the Rights of the Child

Which party of the divorcing parents has the custody of two children.

According to the Law of the Application of Law for Foreign-related Civil Relations of the People’s Republic of China and the relevant provisions in the General Principles of the Civil Law of the People’s Republic of China concerning the application of law, the application of the Convention prevails.

38

Fujian Province Higher People’s Court

The accused: Canzhen Qiu

2014/06/06

(2014)Min Xing Zhong Zi No.180

Criminal Jurisdiction in Territorial sea

The appellant carried and trafficked import limited goods without legal evidence and evaded taxes.

The appellant bought diesel without legitimate formalities in the exclusive economic zone of China, and was seized by the Anti-smuggling Department of Shantou Customs in the territorial sea area of China. In the original judgment, the facts are clear, and the evidences are unquestionable and sufficient. Therefore the appeal should be disapproved.

39

Qingdao Maritime Court

Mingliang Li and Rongcheng Yuanda Ocean Fishing Co., Ltd.

2016/03/26

(2013)Qing Hai Fa Hai Shi Chu Zi No.181

Article 5, Article 6, the first paragraph of Article 14 of the Convention on the International Regulations for Preventing Collisions at Sea, 1972

Allocation of responsibility of the two ships involved in the case of collision.

The two ships violated the Article 5, Article 6, the first paragraph of Article 14 of the Convention. The Chinese law basis for the application of the Convention is Article 268 of the Maritime Code of the People's Republic of China: If any international treaty concluded or acceded to by the People's Republic of China contains provisions differing from those contained in this Code, the provisions of the relevant international treaty shall apply, unless the provisions are those on which the People's Republic of China has announced reservations.

40

Xinjiang Uygur Autonomous Region Higher People’s Court

The accused:  NIZAM-UD-DIN and Chao Yuan

2015/09/30

(2015)Xin Xing San Zhong Zi No.83

Appendix I of Convention on International Trade in Endangered Species of Wild Fauna and Flora

Determination of the nature of the rare animals smuggled by the appellant.

The smuggled geoclemys hamiltonii belongs to the rare animals listed in the Appendix I of the Convention, and it is treated as the first class national protected animals in China.

41

Supreme Court

Maersk (China) Shipping Co., Ltd., Xiamen Maersk (China) Shipping Co. Ltd. and Prime International (Xiamen) Co.,Ltd

2011/6/28

(2010)Min Ti Zi No.213

Principle d of the Convention on a Code of Conduct for Liner Conferences (1974)

The convention prescribed that any measures of the Liner Conference should not discriminate against any ship owners, carriers and foreign trade. Prime International (Xiamen claimed that Maersk Shipping violated it.

The Supreme Court held that the principle stipulated in the Convention was aimed at the Liner Conference rather than liner company. So the claim did not stand on facts and legal bases.

42

 

Supreme Court

Guangzhou Ocean Transportation Co., Ltd. and Anhui Oil And Grain Food Import & Export (Group) Company

2012/2/23

(2012)Min Jian Zi No.17

International Maritime Dangerous Goods Code; Code of Safe Practice for Solid Bulk Cargoes

Whether the party has fault in the management of the goods involved.

According to the International Maritime Dangerous Goods Code and Code of Safe Practice for Solid Bulk Cargoes, the party has fault in the management of the goods involved. The Chinese law basis for the application of the Convention is Article 268 of the Maritime Code of the People's Republic of China: If any international treaty concluded or acceded to by the People's Republic of China contains provisions differing from those contained in this Code, the provisions of the relevant international treaty shall apply, unless the provisions are those on which the People's Republic of China has announced reservations.

43

Beijing Second Intermediate Court

Beijing Chaolaixinsheng Sport Co., Ltd. and Beijing Suowangzhixin Investment Consulting Co., Ltd.

2014/1/20

(2013)Er Zhong Min Te Zi No10670

Paragraph 1 sub-paragraph (a) of Article 5 of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, (New York Convention)

The applicant applied to recognize No.12113-0011, No.12112-0012 arbitral award of the Korean Commercial Arbitration Board (KCAB).

The application is dismissed because the arbitration clause is invalid.

44

Supreme Court

ThyssenKrupp Mentallurgical Products Gmbh and Sinochem International (Overseas) Pte Ltd

2014/6/30

(2013)Min Si Zhong Zi No.35

Article1, Article4, Article25, Article39, Article49, Article74, Article78 of CISG

Both parties are foreign companies, and the dispute is related to international contract of sale of petroleum coke.

The Supreme Court made judgment on the base of Article1, Article4, Article25, Article39, Article49, Article74, Article78 of CISG, and related domestic laws.

45

Supreme Court

The accused: Bosong Jin

2015/12/8

(2015)Xing He Zi No.4

Deportation

The defendants, accused of smuggling products made of rare animals, includes two foreigners.

This case concerns the deportation of foreigner. In addition to the principal penalty, they were sentenced to deportation, which complies with the rules and principles of international law about deportation.

46

Supreme Court

Zhimin Hu and Bo Longkaite Co., Ltd.

2015/12/17

(2015)Min Si Zhong Zi No.65

Nationality

The appellant claimed that the appellee is a Chinese national and therefore, the appellee is not qualified as the claimant of the original proceeding.

China does not recognize double nationality. The appellee has obtained nationality of the Kingdom of the Netherlands, so he lost Chinese nationality.

47

Supreme Court

Bureau of Ocean and Fishery of Dalian, Ondimar Transportes Maritimos Ltda. and The Britannia Steam Ship Insurance Association Limited.

2015/12/29

(2015)Min Shen Zi No.1637

Paragraph 6 of Article 1, paragraph 4 of Article 3, paragraph 8 of Article 7 of the International Convention on Civil Liability for Oil Pollution Damage 1992

The respondent defended that the claims of the National Marine Fisheries Service about the loss of value of marine environmental capacity and the loss of ecosystem service function does not included in the scope of ship oil pollution damage compensation stipulated in the Convention.

According to paragraph 1, Article 268 of the Maritime Code of the People's Republic of China, the Convention prevails. The rules applicable to the claim of damages for the loss relating to marine ecological environment is paragraph 6 of Article 1, paragraph 4 of Article 3. The rules applicable to claims about whether the insurance association should undertake joint liability is paragraph 8 of Article 7.

48

Supreme Court

China Biodiversity Conservation and Green Development Foundation and Ningxia Huayu Chemicals Co., Ltd.

2016/1/28

(2016)Zui Gao Fa Min Zai No.50

Article 2 of the Convention on Biological Diversity

Whether the scope of the activity stipulated in the articles of association of the applicant includes protection of the public environmental interests.

The purpose of the applicant conformed to the Convention on Biological Diversity. Also, the article of association of the applicant was closely related to environmental protection. Therefore the court considered that the scope of the activity of the applicant included protection of the public environmental interests..

49

Supreme Court

the South China Sea Rescue Bureau of Ministry of Transport, Archangelos Investments E.N.E and Shanghai Representative Office of Hong Kong Anda Olsen Co., Ltd.

2016/7/7

(2016)Zui Gao Fa Min Zai No.61

Article12, Article13 of International Convention on Salvage (1989)

How to understand the “salvage contract” stipulated in the Convention and the Maritime Law. The nature of the contract involved and the applicable law.

The salvage contract involved is an employment contract for salvage, instead of a no cure-no pay contract stipulated by the International Convention on Salvage or the Maritime Code of the People's Republic of China. There are no specific rules about this kind of contract, so the applicable law shall be Chinese Contract Law.

50

Supreme Court

Hongyi Oil And Grain Resource Co., Ltd. and Shanghai Times Ship Limited Company

2016/7/28

(2016)Zui Gao Fa Min Shen No.1109

International Convention on Load Lines(1966)

The applicant claimed that the respondent’s enjoyment of exemption from the weight-shortage of goods within the scope of 5‰ violated the Convention.

It is identified that the rate of weight-shortage of the respondent is 3.5‰. It is within the scope of permissible measurement errors. So the claims of the applicant that the  respondent’s enjoyment of exemption from the weight-shortage of goods within the scope of 5‰ violated the Convention are not supported by facts and legal bases.



[1] In China, whether international treaty or custom can be applied directly in domestic court, has been determined on a case by case basis. Based on its legal system, culture and traditions, Chinese Judges have been very cautious on this issue and have preferred to use domestic law instead of using international law to make a decision. That’s why the number of cases involved public international law in China's judicial practices is very few. The only exception is in civil and commercial trials, there exist a lot of judicial precedent cited civil and commercial treaties. For above reasons, Public International Law here has been grouped with Private International Law. All the cases herein are offered for your initial reference. For further reference please refer to the Chinese versions of the cases from the official website of China Judgments Online on http://wenshu.court.gov.cn/. All the cases herein have been selected, edited and translated by Professor Tong Qi with helps from Hongling Ning, Xinyue Rui, Yuan Yan, Yuan Zhou and Sicen Hu.

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