This post is part of a symposium on China and the Political Economy of the International Legal Order.
American and Chinese courts have adopted largely contrasting approaches to the design and operation of civil procedure doctrines governing transnational cases. China, in particular, is implementing jurisdictional rules that diverge from those applied in the U.S. as well as those long-employed by Western European countries. As Chinese courts rise in prominence, they are challenging existing norms for distributing cross-border cases, shifting incentives that shape the governance of transnational litigation, and generating new possibilities for judicial conflict and cooperation.
American courts increasingly adjudicate a narrower set of transnational cases. This is, in part, the product of recent decisions by the Supreme Court. Two cases, Goodyear Dunlop Tires Operations SA v. Brown (2011) and Daimler AG v. Bauman (2014), have reduced the reach of general personal jurisdiction to individuals domiciled and corporations incorporated or headquartered in the U.S. Another case, J. McIntyre Machinery Ltd. v. Nicastro (2011), reduced the reach of specific personal jurisdiction to foreign defendants that target specific states. As a result, plaintiffs can no longer sue defendants—typically multinational corporations—that are domiciled abroad and that target the country as a whole. Meanwhile, judges frequently exercise their discretion under the doctrine of forum non conveniens to dismiss cases over which they have jurisdiction but consider better suited for adjudication in foreign courts. They rely on the ill‑defined doctrines of international abstention and preclusion to dismiss U.S. litigation in deference to substantially similar parallel litigation abroad. And U.S. courts are notoriously generous in assisting foreign litigants with evidence-gathering and enforcing foreign judgments. Taken together, these doctrines can make litigation in foreign courts followed by judgment enforcement in the U.S. more appealing than litigation here. Unsurprisingly, American scholars have criticized U.S. courts for too readily relinquishing adjudicatory authority over transnational cases in which Americans have an interest, and for doing so based on problematic and confusing grounds.
Chinese courts, by contrast, tend to retain transnational cases. They exercise jurisdiction not only over disputes concerning defendants domiciled in China but also over foreign defendants if the dispute concerns a contract that is signed or performed in China, the subject matter of the dispute is located in China, the defendant has a representative office in China, or the defendant has property that can be seized in China. The Chinese doctrine of forum non conveniens is stringent, permitting dismissal in favor of foreign adjudication only if several conditions are simultaneously met, including that the case does not implicate Chinese national interests or the interests of any Chinese citizen or corporation, and that the main facts occurred outside China and the governing law is foreign. There is no doctrine of international abstention and preclusion is limited to when a foreign judgment is recognized before any parallel proceeding is instituted in domestic court. Because a foreign judgment has no effect until recognized, and recognition is not permitted if a parallel case has been filed, Chinese courts adjudicate cases regardless of parallel litigation abroad. But absent parallel litigation, Chinese courts have recently started recognizing and enforcing foreign judgments—including those from the U.S. Taken together, these doctrines ensure that cases filed in China remain there while at the same time increasing the international circulation of judgments.
My empirical analysis confirms that Chinese courts regularly adjudicate cases involving American parties and rarely forfeit authority over transnational cases that could be, is being, or has already been heard abroad. Relying on China Judgments Online, China’s official though imperfect national legal database, I found that, from 2015 through 2019, Chinese courts heard thousands of cases annually involving American individuals or corporations. During that same period, I found only one case, involving divorce between two non-Chinese individuals, that was dismissed on the basis of forum non conveniens in favor of litigation in the U.S. Meanwhile, requests to enforce U.S. judgments have been repeatedly granted except when there was parallel litigation in China.
These developments are reshaping the landscape and governance of transnational litigation. China’s appetite for taking on transnational cases calls attention to the advantages of exercising jurisdiction over a case—advantages that some American courts may now be recognizing too. Exercising jurisdiction over a case enables a court to apply its procedural and choice of law rules, which can dictate the outcome of cases in favorable ways. For instance, in the 2013 case Beijing Zhongyi Zhong Biao Elec. Info. Tech. Co. v. Microsoft Corp., the Chinese court applied Chinese law and ruled in favor of the Chinese party, whereas the Western District of Washington applied Washington state law in a parallel litigation and ruled in favor of the U.S. party. In the 2019 case, Beijing iQIYI Science & Technology v. iTalk Global Communications, the Western District of Texas broke from existing forum non conveniens practice by raising the typically low bar for dismissal specifically for intellectual property disputes connected to China. More broadly, considerations beyond doctrine are infiltrating into cases involving China. Last year, in the oral argument for Shanghai Yongrun Inv. Mgt. Co. v. Maodong Xu , Judge Manzanet of New York’s Appellate Division repeatedly returned to the consequences of denying enforcement of a Chinese judgment for U.S.-China commercial relations—a factor nowhere found in the applicable doctrinal analysis.
Each of these cases points toward ways in which international political or economic considerations can become intertwined with procedural doctrines that appear technical and neutral on their face. In China, the connection between procedural doctrines and foreign affairs strategy is explicit. Under Xi Jinping’s regime, China has established numerous specialized courts over the past decade, intending to draw more foreign litigants and transnational cases into the Chinese legal system. These include intellectual property courts in Beijing, Shanghai, Guangzhou, and Hainan; financial courts in Shanghai and Beijing; internet courts in Hangzhou, Guangzhou, and Beijing; and the China International Commercial Court (CICC) in Shenzhen and Xian. The CICC specifically adjudicates commercial cases in which a party is foreign or domiciled abroad, the object of the dispute is located abroad, or the facts underlying the commercial relationship is located abroad—precisely those cases that application of U.S. procedural doctrines often lead courts to avoid. The CICC is an extension of China’s Belt and Road Initiative, a central component of Xi’s foreign policy goal of expanding China’s leadership role internationally. In the U.S., the connection between procedure and foreign affairs appears to be more ad hoc and case-by-case.
That the connection between international relations and procedural doctrines is more apparent in the China than in the U.S. is in part due to the design and politics of domestic judicial institutions. Chinese courts have a top-down logic that facilitates political control over sensitive cases. They are embedded within the Communist Party’s authoritarian regime, supervised vertically by senior judges, and constrained horizontally by party officials. Decisions on the enforcement of foreign judgments, for example, must be reported upward to and approved by the Supreme People’s Court before they can be issued. Formally and informally, transnational cases are treated differently from cases without a foreign component. They are typically handled by dedicated court divisions or are funneled to higher level and specialized courts. This bifurcated system enables Chinese courts to invite transnational litigation while pushing other cases away from litigation and toward mediation in order to mitigate an explosion in caseload. In the U.S., the principal of separation of powers and a largely bottom-up approach to litigation produce a different set of incentives for judges and limit the ability of foreign affairs goals to influence judicial doctrines and outcomes.
The connection between judicial procedure and the U.S.-China relationship is multifaceted. Distinct features of the two legal systems affect the degree to which foreign policy agendas might permeate procedural doctrines. Inversely, these doctrines can serve as foreign policy instruments that affect the distribution and resolution of transnational cases in which both sovereigns have an interest and thereby play an underappreciated role in the configuration of the international legal order.