Shanghai Maritime Court and Shanghai Maritime University cope with problems
to find foreign law
On October 23, Shanghai Maritime
Court and Shanghai Maritime University signed the “Cooperation
Agreement on Foreign Law Finding”. The two sides will cooperate in the maritime areas of finding foreign law and actively handle the problems that restrict the efficiency of foreign-related trials in ascertainment and application of foreign law.
Foreign-related maritime cases account
for more than 40%
Shanghai, standing at the forefront of reform and opening up, now is an international shipping center where
the Free Trade Zone locates and many national strategies gather.
The unique geographical
advantage makes the maritime cases accepted by Shanghai Maritime
Court show a strong transnational and foreign-related character.
According to introduction,
the foreign-related cases handled by the
Shanghai Maritime Court possess the following characteristics: First, the
number and ratio is large. Cases involved with foreign factors account for 40% of first
instance cases accepted with the sum being on an upward trend yearly. Second,
the types of foreign-related cases are diversified and the legal relations,
controversial issues involved are becoming increasingly complicated. Third, the
cases involve a wide range of areas among 40 countries and regions. Fourth, there
are a certain percentage of cases with bothparties overseas,
and they are more likely to reach the agreement of choosing to be under the
maritime court’s jurisdiction.
Work together to
break the problems of the proof of foreign law
While the
international credibility and influence of maritime jurisdiction in our country are
constantly on the rise, the bottleneck issue
which restricts foreign-related trial works of ascertainment and application of foreign law has become increasingly obvious. At present, since the methods of proofing is inadequate; the responsibility attribution is not clear enough; also there are difficulties in identifying foreign law provided by parties, thus, some cases should have applied effectively foreign law according to conflict rules due to the failure at
identifying foreign law in judicial practice.
This
time, Shanghai Maritime Court and Shanghai Maritime University joined forces together to carry out cooperation in the maritime field of the proof of foreign law, in order to resolve the problems for courts
and parties in foreign-related trials, to ensure that the commercial subjects are equally protected by choosing applicable laws
freely to solve disputes between the two parties and to enhance the
ability and level of internationalization of maritime justice in our country.
It is reported that in August 2016, the two sides signed the “Cooperation Agreement on Maritime Law
Research and Talent Training” to carry out all-round and deep-level strategic
cooperation in legal research, resource sharing, expert consultation, training
exchange and personnel cultivation. Based on that, the two sides further
conducted special cooperation to identify foreign law in maritime field. On one hand, it is beneficial for Shanghai Maritime University to give full play to the unique professional advantages which
will provide specialized intellectual support for the proof of foreign law in
maritime law area; on the other hand, it is also conducive for Shanghai
Maritime Court to make
use of rich case resources from foreign-related trials so as to accumulate more practical experiences and provide more
research materials for the improvement of the ascertainment and application of
foreign law and the internationalization of maritime legal system in our
country.
Co-build a working mechanism to
find foreign law
For
the specific methods to find foreign law by legal experts, the relevant person who
is in charge introduced that Shanghai Maritime Court will issue a letter of
entrustment to Shanghai Maritime University if there is any need to find foreign
law. So it is the university who will assign experts or an expert group to work
on this mission, including ascertainment and translation, then announce the professional
opinions, the opinions will be testified in court and the expert will attend
the court for questions himself.
Shanghai
Maritime Court claims that the ascertainment and application of foreign law is
an internationally accepted standard taken for measuring the foreign-related
judicial work and the level of the rule of law in international community.
Cooperating with colleges, scientific research institutes and third-party
social organizations is an effective way to solve these problems of ascertainment
and application of foreign law. In future, the sides will continue to improve
the mechanism and enhance the level of ascertainment and application of foreign
law, and jointly make positive contributions to the construction of an
international maritime judicial center.