On 26 March 2025, China’s Supreme People’s Court (“SPC”) issued a Notice on procedural matters related to civil cases involving foreign state immunity (“Notice”) as a supporting rule for the Law of the People’s Republic of China on Foreign State Immunity (“ FSI Law”) implemented since 1 January 2024. The FSI Law provides specific circumstances where the courts of China may accept civil cases in which a foreign state is the defendant or its property is the object of execution (“Civil Cases”). The Notice, consisting of eight articles in total, involves the provisions on procedural matters such as acceptance, centralized jurisdiction, service, and review of the Civil Cases.
The FSI Law stipulates the exceptions to the jurisdictional immunity enjoyed by Chinese courts over foreign states and their property. The exceptions include the situations where a foreign state explicitly accepts jurisdiction through international treaties, written agreements, written confirmation to relevant courts or through diplomatic channels; a foreign state files a lawsuit as a plaintiff in a Chinese court, or participates in the lawsuit as a defendant or third party; a lawsuit is caused by the commercial activities conducted in China or directly affected in China between a foreign state and organizations or individuals of China or other countries; a foreign state shall bear liability for compensation for personal injury, death or property loss caused by its actions in China; the case involves real estate rights and interests disputes or intellectual property infringement cases in China; or the dispute that the foreign state agrees to submit to arbitration. According to the FSI Law, the “foreign state” refers to the foreign sovereign state, its state organs or components, and organizations or individuals authorized to exercise sovereign power; the “commercial activities” refer to commercial activities such as transactions, investments, loans, etc. on goods or services that are not the exercise of sovereign power.
Article 1 of the Notice is about the acceptance procedure of the Civil Cases. According to this provision, the plaintiff in a Civil Case shall list the specific basis for the lawsuit in the complaint, indicating which clause of the FSI Law it is based on. After receiving the complaint, the court shall firstly examine whether the complaint states which exception stipulated in the FSI Law is applicable. If the complaint does not clearly state the relevant clause, the court shall explain and notify the plaintiff. If the plaintiff fails to list the specific legal basis after the court’s explanation, it will be deemed that it does not meet the acceptance requirements, and the court will not accept the Civil Case.
Article 2 of the Notice provides for centralized jurisdiction over the Civil Cases. According to the provision, the first-instance of the Civil Cases shall be under the jurisdiction of an intermediate people’s court designated in the 31 provincial-level administrative regions of mainland China, including the Fourth Intermediate People’s Court of Beijing designated for Beijing, the First Intermediate People’s Court of Shanghai designated for Shanghai, the Intermediate People’s Court of Hangzhou designated for Zhejiang Province, the Intermediate People’s Court of Guangzhou designated for Guangdong Province, the Intermediate People’s Court of Lhasa designated for Tibet Autonomous Region, and the Intermediate People’s Court of Urumqi designated for Xinjiang Uygur Autonomous Region. For the Civil Cases that the law stipulates should be under the jurisdiction of the maritime, financial, and intellectual property courts, the maritime court, the financial court, and the intellectual property court shall have jurisdiction. In addition, other courts do not have jurisdiction over Civil Cases. If they have accepted the Civil Cases, they should transfer them to the courts with centralized jurisdiction by the provisions of the Notice.
Article 17 of the FSI Law provides for the service procedure. Articles 3 and 4 of the Notice supplement this provision. By Article 17 of the FSI Law, the court can serve summonses or other litigation documents to foreign countries in two ways. One way is to follow the method stipulated in the international treaties concluded or jointly participated in by the foreign state and China and attach a translation in the relevant language. The other way is the methods accepted by the foreign state and not prohibited by Chinese law, and attach a translation in the official language of the foreign state. If service is not possible through these two methods, the court may send it to the diplomatic department of the foreign state by diplomatic note. Articles 3 and 4 of the Notice add more execution details on the method of diplomatic note service and the attachments to the service. The Notice stipulates that for diplomatic note service, the court shall report the summons or other litigation documents to be served to the SPC step by step, and the SPC shall serve it through the Ministry of Foreign Affairs (MOFCOM) by diplomatic note. According to the Notice, when serving a copy of the complaint, the litigation documents such as the response notice and evidence notice shall be served together; and, if an application for postponement of the defense is applied for, the court shall review and decide whether to grant it or not.
Articles 5 and 6 of the Notice require the court to conduct a comprehensive review of whether a foreign state enjoys jurisdictional immunity. According to it, when a foreign state raises a jurisdictional objection and claims that it enjoys jurisdictional immunity during the reply period, the court shall first review whether the reasons raised by the foreign state are valid; secondly, it should take the initiative to conduct a comprehensive review, that is, in addition to the reasons raised, to review whether the foreign state enjoys jurisdictional immunity and does not fall under the circumstances of exceptions to jurisdictional immunity. When a foreign state does not raise a jurisdictional objection and does not appear in court to participate in the litigation, the court should also take the initiative to conduct a comprehensive review of whether the foreign country enjoys jurisdictional immunity by its authority.
Finally, the Notice stipulates that when the court needs the MOFCOM to issue certification documents on factual issues related to state behavior, such as whether the relevant country in the case constitutes a foreign sovereign state, whether the diplomatic note was delivered and when it was delivered, etc., it should report to the SPC step by step to ask the MOFCOM to issue them. Meanwhile, it expanded the scope of application of the Notice to include the situations where foreign countries become defendants or third parties due to being added as parties or counterclaims.
The FSI Law clarifies the specific circumstances under which Chinese courts have jurisdiction over foreign states and their property. The Notice is a supporting judicial rule specially formulated by the SPC for the FSI Law, guiding the courts in accepting and reviewing the Civil Cases.
The FSI Law stipulates the exceptions to the jurisdictional immunity enjoyed by Chinese courts over foreign states and their property. The exceptions include the situations where a foreign state explicitly accepts jurisdiction through international treaties, written agreements, written confirmation to relevant courts or through diplomatic channels; a foreign state files a lawsuit as a plaintiff in a Chinese court, or participates in the lawsuit as a defendant or third party; a lawsuit is caused by the commercial activities conducted in China or directly affected in China between a foreign state and organizations or individuals of China or other countries; a foreign state shall bear liability for compensation for personal injury, death or property loss caused by its actions in China; the case involves real estate rights and interests disputes or intellectual property infringement cases in China; or the dispute that the foreign state agrees to submit to arbitration. According to the FSI Law, the “foreign state” refers to the foreign sovereign state, its state organs or components, and organizations or individuals authorized to exercise sovereign power; the “commercial activities” refer to commercial activities such as transactions, investments, loans, etc. on goods or services that are not the exercise of sovereign power.
Article 1 of the Notice is about the acceptance procedure of the Civil Cases. According to this provision, the plaintiff in a Civil Case shall list the specific basis for the lawsuit in the complaint, indicating which clause of the FSI Law it is based on. After receiving the complaint, the court shall firstly examine whether the complaint states which exception stipulated in the FSI Law is applicable. If the complaint does not clearly state the relevant clause, the court shall explain and notify the plaintiff. If the plaintiff fails to list the specific legal basis after the court’s explanation, it will be deemed that it does not meet the acceptance requirements, and the court will not accept the Civil Case.
Article 2 of the Notice provides for centralized jurisdiction over the Civil Cases. According to the provision, the first-instance of the Civil Cases shall be under the jurisdiction of an intermediate people’s court designated in the 31 provincial-level administrative regions of mainland China, including the Fourth Intermediate People’s Court of Beijing designated for Beijing, the First Intermediate People’s Court of Shanghai designated for Shanghai, the Intermediate People’s Court of Hangzhou designated for Zhejiang Province, the Intermediate People’s Court of Guangzhou designated for Guangdong Province, the Intermediate People’s Court of Lhasa designated for Tibet Autonomous Region, and the Intermediate People’s Court of Urumqi designated for Xinjiang Uygur Autonomous Region. For the Civil Cases that the law stipulates should be under the jurisdiction of the maritime, financial, and intellectual property courts, the maritime court, the financial court, and the intellectual property court shall have jurisdiction. In addition, other courts do not have jurisdiction over Civil Cases. If they have accepted the Civil Cases, they should transfer them to the courts with centralized jurisdiction by the provisions of the Notice.
Article 17 of the FSI Law provides for the service procedure. Articles 3 and 4 of the Notice supplement this provision. By Article 17 of the FSI Law, the court can serve summonses or other litigation documents to foreign countries in two ways. One way is to follow the method stipulated in the international treaties concluded or jointly participated in by the foreign state and China and attach a translation in the relevant language. The other way is the methods accepted by the foreign state and not prohibited by Chinese law, and attach a translation in the official language of the foreign state. If service is not possible through these two methods, the court may send it to the diplomatic department of the foreign state by diplomatic note. Articles 3 and 4 of the Notice add more execution details on the method of diplomatic note service and the attachments to the service. The Notice stipulates that for diplomatic note service, the court shall report the summons or other litigation documents to be served to the SPC step by step, and the SPC shall serve it through the Ministry of Foreign Affairs (MOFCOM) by diplomatic note. According to the Notice, when serving a copy of the complaint, the litigation documents such as the response notice and evidence notice shall be served together; and, if an application for postponement of the defense is applied for, the court shall review and decide whether to grant it or not.
Articles 5 and 6 of the Notice require the court to conduct a comprehensive review of whether a foreign state enjoys jurisdictional immunity. According to it, when a foreign state raises a jurisdictional objection and claims that it enjoys jurisdictional immunity during the reply period, the court shall first review whether the reasons raised by the foreign state are valid; secondly, it should take the initiative to conduct a comprehensive review, that is, in addition to the reasons raised, to review whether the foreign state enjoys jurisdictional immunity and does not fall under the circumstances of exceptions to jurisdictional immunity. When a foreign state does not raise a jurisdictional objection and does not appear in court to participate in the litigation, the court should also take the initiative to conduct a comprehensive review of whether the foreign country enjoys jurisdictional immunity by its authority.
Finally, the Notice stipulates that when the court needs the MOFCOM to issue certification documents on factual issues related to state behavior, such as whether the relevant country in the case constitutes a foreign sovereign state, whether the diplomatic note was delivered and when it was delivered, etc., it should report to the SPC step by step to ask the MOFCOM to issue them. Meanwhile, it expanded the scope of application of the Notice to include the situations where foreign countries become defendants or third parties due to being added as parties or counterclaims.
The FSI Law clarifies the specific circumstances under which Chinese courts have jurisdiction over foreign states and their property. The Notice is a supporting judicial rule specially formulated by the SPC for the FSI Law, guiding the courts in accepting and reviewing the Civil Cases.