Opinions on Services and Guarantees for Further Opening-up of Financial Sector Released by Shanghai Court
ISSUING AUTHORITY:
Shanghai High People’s Court
DATE OF ISSUANCE:
November 23, 2020
EFFECTIVE DATE:
November 23, 2020
On November 23, 2020, the Several Opinions of Shanghai Courts on Services and Guarantees for Further Opening-up of Financial Sector (“Opinions”) was promulgated by Shanghai High People’s Court, effective as of the same date.
The Opinions were issued in Chinese and English with a total of 24 articles and divided into four parts as follows:
● General requirements of judicial service and guarantees for further opening-up of the financial sector;
● Judicial system and mechanism shall be established and facilitated commensurate with the expanding opening-up of the financial industry;
● The trial and enforcement of related disputes shall be strengthened; and
● The role of judicial cooperation in the further opening-up of the financial sector shall be fully made use of.
In terms of jurisdiction over foreign-related financial cases, according to the Opinions, the rights of parties concerned in choosing the dispute resolution methods as well as applicable laws and regulations shall be respected. The court shall reasonably determine the basis of jurisdiction, and support shall be provided in accordance with the law if the parties to financial dispute cases involving cross-border and offshore financial transactions choose certain courts in Shanghai to hear the case by agreement. Except for the violation of rules relating to forum level and exclusive jurisdiction, the courts shall not actively review ex officio whether there is any substantial connection between the dispute and the competent court chosen by parties at the stages of case filing and hearing.
For trials of foreign-related financial cases, according to the Opinions, the professional trial mechanism of foreign-related financial cases shall be established and facilitated by exploring the option to involve experts and scholars with international financial legal knowledge to participate in the trial of cases, etc. Considering that international treaties and international practices are often involved in foreign-related financial cases, the Opinions also point out the necessity to correctly apply international treaties and reasonably adopt international market trading rules, clearing rules, self-discipline rules and practices such as the Uniform Customs and Practice for Documentary Credits (“UCP600”) and the Uniform Rules for Demand Guarantees (“URDG758”).
In addition, the Opinions also put forward viewpoints on the establishment of a diversified settlement mechanism and a cohesive mechanism of international financial rules, building of financial trial innovation experimental zone, strengthening of the trial of related cases such as foreign-related financial criminal cases, cases involving cross-border securities and financial derivatives, cross-border investment and financing cases, cases involving cross-border asset management products, cross-border payment and settlement cases, cross-border insurance cases, cross-border financial leasing and factoring disputes, shipping financial disputes, cross-border financial administrative cases as well as strengthening of relevant enforcement, etc.
According to Ronghua Mao, vice president of Shanghai High People’s Court, in the work of services and guarantees for further expanding the opening-up of the financial industry, the Shanghai courts as a whole will play its role of serving the overall situation, performing its judicial duties and establishing and improving a professional financial adjudication mechanism. The goal is to fairly and efficiently resolve foreign-related financial disputes, standardize and regulate financial innovation, effectively prevent financial risks, benchmark the highest international standards, thus expanding the international influence of financial justice and creating a sound legal environment for the healthy and stable development of the financial industry.
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