SPC MONITOR: How the SPC Serves the Greater Bay Area Strategy

This article was originally posted on the Author's personal site: https://supremepeoplescourtmonitor.com/2022/07/16/how-the-supreme-peoples-court-serves-the-greater-bay-area-strategy/

In the run-up to the 25th Anniversary of the establishment of the Hong Kong Special Administrative Region, the Supreme People’s Court (SPC) issued a report on its work (Chinese only) in support of the Guangdong-Hong Kong-Macao Greater Bay Area (GBA) Strategy 2019-2022.  The report was republished on the website of the Liaison Office of the Central People’s Government in the Hong Kong Special Administrative Region (HKSAR)),  the Liaison Office of the Central People’s Government in the Macao Special Administrative Region (Macao SAR) and in mainland Chinese media. The lack of an English (and Portuguese) translation I attribute to the need to publish the report timely.

This report contains useful information for legal professionals in Hong Kong, Macao, and those beyond as it reveals issues and concerns in the area of civil and commercial law as relations between the mainland and the two SARs become closer through the GBA Strategy. For reasons of time, I am focusing my comments on the first two sections but the rest of the report merits analysis as well. My comments are in italics.

I. Political background

The opening sentence of the report states that the development of the  Greater Bay Area is a national strategy personally devised, personally planned, and personally driven by President Xi Jinping. The report sets out how the judicial functions of the courts serve and safeguard the construction of the GBA. The opening paragraph sets out some of the basic principles that the SPC is implementing, including “promoting the convergence (linkage) of judicial legal rules,  deepening judicial exchanges and cooperation among Guangdong, Hong Kong and Macao  (在推进粤港澳司法法律规则衔接，深化粤港澳司法交流合作).

The first sentence frames the political importance of the report and the work of the SPC supporting the GBA Strategy.

The SPC has issued many “judicial services and safeguards” documents setting out the role of the courts in supporting and promoting national strategies. Understanding these documents is important for understanding current issues in the Chinese courts as related to that strategy, as well as the future direction of judicial policy and related measures. This blog has analyzed quite a few of those “judicial services and safeguards” documents.  Of those many posts, GBA-related “judicial services and safeguards” documents are mentioned here and there.  The report sets out a list in the following section.

Section III will briefly address the judicial legal rules linkage and judicial exchanges and cooperation policies.

II. Mechanisms for implementing the GBA national strategy through the courts

The mechanism is “horizontal coordination and vertical implementation.”   The SPC established a GBA special working small group (专项工作小组) jointly composed of relevant SPC departments and the Guangdong Higher People’s Court (Guangdong High Court) The Guangdong High Court is the institution that has principal responsibility. It has involved all levels of the (mainland) Chinese courts.

It is the normal working practice of the SPC and other central institutions to establish working small groups to achieve important tasks that link across institutions.  It appears that a significant part of the GBA strategy involves implementing reforms within the mainland. It is not clear whether there are discussions among the Guangdong High Court and HKSAR and Macao SAR authorities on specific matters affecting the two SARs.  One assumes that to be the case.

The SPC has focused on promoting judicial cooperation mechanisms between the Mainland and Hong Kong and Macau, signed the “Meeting Minutes” (会议纪要) with Hong Kong and Macau on strengthening judicial and legal exchanges and cooperation, and instructed the Guangdong High Court and the Hong Kong Department of Justice (HK DOJ) to sign a “Guangdong-Hong Kong-Macao Greater Bay Area Legal Exchange and Mutual Cooperation Arrangement” (粤港澳大湾区法律交流与互鉴框架安排). 

It appears that the SPC is taking the lead on more major matters involving interactions with Hong Kong and Macao.  I have not been able to find all of the documents mentioned, however. It appears that this legal exchange and mutual cooperation agreement (dated 2019) should be added to the list of arrangements about which I wrote last year. I have not been able to identify the full text of this arrangement and would welcome a citation. Judge Si Yanli mentioned the Meeting Minutes and Mutual Cooperation Arrangement in her article published earlier this year.

To  implement “wherever the Party Center’s policy decisions are deployed, the judicial services of the people’s courts will be there”  (党中央的决策部署到哪里，司法服务就跟进到哪里), the SPC issued the following documents:

A version of the above slogan can be seen across central institutions, including the Central  Commission for Disciplinary Inspection, Sinograin, and the National People’s Congress.  SPC Vice President Yang Wanming has used a version before at a 2020 press conference, as I noted here.

1. Opinion Concerning the Provision of Judicial Services and Safeguards for the Construction of the Guangdong, Hong Kong, and Macao Greater Bay Area 关于为粤港澳大湾区建设提供司法服务和保障的意见》I have not been able to locate this document.
2.  Opinions of the Supreme People’s Court on Providing Support and Guarantee for Shenzhen to Build Itself into a Pilot Demonstration Zone for Socialism with Chinese Characteristics《关于支持和保障深圳建设中国特色社会主义先行示范区的意见》
3. Opinions of the Supreme People’s Court on Supporting and Guaranteeing the Construction of the Guangdong-Macao In-Depth Cooperation Zone in Hengqin《关于支持和保障横琴粤澳深度合作区建设的意见》
4.  Opinions of the Supreme People’s Court on Supporting and Guaranteeing Comprehensively Deepening the Reform and Opening-up of the Qianhai Shenzhen-Hong Kong Modern Service Industry Cooperation Zone (关于支持和保障全面深化前海深港现代服务业合作区改革开放的意见)

I mentioned the latter three documents in earlier blogposts.

The Guangdong High Court, taking the lead in implementing GBA judicial policy, has issued a number of operational plans and assembled a list of reform measures.  The operational plan includes: 1. three-year operational plan for promoting the construction of the GBA (推进粤港澳大湾区建设三年行动方案);

2.  Three-Year Action Plan to Support Shenzhen in Building an Experimental Demonstration Zone for Socialism with Chinese Characteristics(支持深圳建设中国特色社会主义先行示范区三年行动方案)

3.  A list plus ledger of 46 reform measures “清单+台账”方式推动46项改革举措

Other measures that GBA-area  local people’s courts have taken:

1. centralized trial of foreign-related, Hong Kong, Macao and Taiwan civil and commercial cases  (this is a theme in professionalizing the hearing of foreign-related cases);
2. Trying out a trial model of “professional judges + Hong Kong and Macao jurors  + industry experts”; (it is not clear how much this is actually happening in the Covid era, with strict border controls still ongoing);
3. Accumulate practical experience that can be promoted and replicated elsewhere such as the centralized jurisdiction of Hong Kong and Macao-related cases, separation of complicated and simple cases, and expanded application of laws.
4. The Higher People’s Court of Guangdong Province has released 60 typical cases of cross-border disputes in the Guangdong-Hong Kong-Macao Greater Bay Area for three consecutive years, providing professional and clear legal guidance for parties in the three places. See my earlier blogpost on SPC typical cases.
5. The Shenzhen Intermediate People’s Court established the first administrative trial center in the Mainland to implement centralized jurisdiction of administrative cases and took the lead in exploring the transfer of some administrative cases involving Hong Kong and Macao to the jurisdiction of grassroots courts. The People’s Court of the Guangdong-Macao Deep Cooperation Zone in Hengqin was inaugurated,

This last list of matters is highlighting the accomplishments of the GBA courts in implementing judicial reform, especially in mechanisms that can be replicated elsewhere in the Chinese court system.

III. Judicial Legal Rules Convergence and Judicial Exchanges and Cooperation Policies

Section 3 of the report addresses this topic, focusing primarily on what is termed judicial exchanges and cooperation policies (司法交流合作), mentioning that the SPC concluded three arrangements and one judicial assistance document (司法协助文件) with the HKSAR and two arrangements with the Macao SAR.  Because I have previously written about this topic in several earlier blogposts, I will instead focus on the topic of judicial legal rules convergence (linkage, 司法法律规则衔接). The report mentions very little about this.

As mentioned above, Judge Si Yanli published an article earlier this year (2022) in China Law Review（Research into Difficult Issues of Legal Rules Convergence in the Greater Bay Area, Focusing on the Diversified Dispute Resolution Mechanism as an Entry Point中国法律评论, 粤港澳大湾区法律规则衔接疑难问题研究——以多元化纠纷解决机制为切入点 ) with very useful insights for understanding what is meant by judicial legal rules convergence (linkage) and the areas of law that are under consideration. What she discusses in her article are not official statements of policy.

Among the many suggestions for rule convergence in her article are the following: concluding civil and commercial judicial assistance agreements between (or among) Guangdong, Hong Kong and Macao. Among the areas she suggests a GBA judicial assistance agreement would be useful is the service of process and creating a mechanism bringing the entire process online. She also suggests that the three jurisdictions cooperate in areas of law outside of the arrangements that have been reached, such as inheritance and intellectual property.  She also suggests that Hong Kong and Macao invested entities in the GBA be able to choose Hong Kong or Macao law for contracts and Hong Kong or Macao arbitral institutions for arbitration. Note that an article on the website of the Hong Kong Department of Justice mentions that this is being piloted. 

Judge Si very usefully proposes a GBA agreement on the enforcement of mediation agreements that would draw on the Singapore Mediation Convention, discussing the many obstacles in the way of that occurring, including gaps in Chinese (mainland) mediation legislation.  Hong Kong official media has reported on work on GBA mediation platform, with ongoing work on mutual recognition of qualifications, accreditation, and mediator code of conduct.

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 As I have previously commented, the judicial (and more broadly, the legal) aspects of the GBA merit more attention than they have received thus far.  But understanding the documents of the GBA has its challenges. As mentioned previously,  some documents have not yet been made public.  The larger challenge in understanding them for local Hong Kong (and I assume Macao students) is that it requires the reader to be familiar with the language of (mainland) Chinese official documents.   

The GBA is likely to have an impact on the careers of at least some students in the GBA area law schools, including my own students at the Peking University School of Transnational Law (in Shenzhen), as well as in Hong Kong’s and Macao’s three law schools, so I look forward to some group of students taking up the challenge.