Guiding Opinions of the Supreme People's Court on the Issues of Properly Hearing Civil Cases involving the COVID-19 Pandemic in Accordance with the Law (III)

For the purposes of properly hearing cases over the foreign-related commercial and maritime disputes invloving the COVID-19 pandemic in accordance with the law, equally protecting lawful rights and interests of domestic and foreign parties concerned, creating a law-based business environment that is fair, transparent and predictable, in accordance with the provisions of laws and judicial interpretations and in light of experiences in judicial practices, the guiding opinions are hereby offered as follows.

I. Parties in litigation

1. Foreign enterprises or organizations shall submit identity certificates and certificates of their representatives participating in litigation proceedings to the people's courts. If, due to the pandemic or any prevention and control measures, foreign enterprises or organizations fail to go through notarization, certification or other relevant formalities in a timely manner, and apply for postponing the submission, the people's courts shall approve the application and determine a reasonable time limit for such postponement according to the actual conditions of cases.

If a power of attorney mailed or forwarded from outside the territory of China by a foreign national, stateless person, or a foreign enterprise or organization that has no domicile in China may not be able to go through notarization, certification or the relevant formalities in a timely manner due to the pandemic or any prevention and control measures, and an application for postponing the submission is filed, the people's court shall handle it according to the preceding paragraph.

II. Evidences in litigation

2. If, due to the pandemic or any prevention and control measures, a party fails to present evidence taken from outside the territory of China within a specified time limit for producing such evidence and applies for extending the time limit, the people's court shall request it to explain basic information about the form, content, object of proof of such evidence to be collected and provided. If the grounds are tenable upon review, the people's court shall allow it to appropriately extend the time limit and notify other parties concerned. The extended time limit shall be applicable to other parties.

3. If, after a party's documentary evidence taken from outside the territory of China fails to go through notarization or the relevant formalities due to the pandemic or any prevention and control measures, the other party raises an objection only on such grounds, the people's court may notify the other party of commenting on the relevance and effect of proof of such documentary evidence while maintaining its objection.

If, after cross-examination, the aforesaid documentary evidence is irrelevant to the facts to be affirmed, or unable to prove the facts to be affirmed though it complies with the requirements of the relevant formalities, and the party that should present such evidence applies for extending the time limit for producing evidence, the people's court shall disapprove such an application.

III. Time limit and period

4. If, due to the pandemic or any prevention and control measures, a party who has no domicile in China is unable to forward a motion of defense or file an appeal within the period of time prescribed by law and therefore requests an extension of the period in accordance with the provisions of Articles 268 and 269 of the Civil Procedure Law of the People's Republic of China , the people's court shall approve such a request according to the law and determine a reasonable extension of the period as appropriate according to the actual conditions of the case, except that there is any evidence proving the party's malicious delay of litigation.

5. In accordance with Article 239 of the Civil Procedure Law of the People's Republic of China and Article 547 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China, the period of a party's application for recognition and enforcement of an effective judgment or ruling of a foreign court or a foreign arbitration award shall be two years. If a party is unable to apply for recognition and enforcement due to the pandemic or any prevention and control measures within the last six months of the period and therefore claims suspension of the period according to subparagraph 1, paragraph 1 of Article 194 of the General Provisions of the Civil Law of the People's Republic of China, the people's court shall approve such a claim.

IV. Application of laws

6. For the application of laws to cases involving foreign-related commercial and maritime disputes related to the pandemic, the people's courts shall determine the law that should be applied according to the provisions of the Law of the People's Republic of China on Law Application for Foreign-related Civil Relationships and the relevant judicial interpretations.

If Chinese laws shall be applied, the specific application of the rules of force majeure shall be subject to the Guiding Opinions of the Supreme People's Court on Issues of Properly Hearing Civil Cases regarding the COVID-19 Pandemic (I).

If foreign laws shall be applied, the people's courts shall accurately understand the provisions in foreign statutory laws or content in foreign case laws similar to the rules of force majeure and correctly apply such provisions, rather than simply understand the similar provisions in foreign laws based on the rules of force majeure in Chinese laws.

7. The people's courts shall determine the application of an international treaty in accordance with the provisions of Article 4 of the Interpretations of the Supreme People's Court on Several Issues in Application of the Law of the People's Republic of China on Law Application for Foreign-related Civil Relationships (Ⅰ). For any matter that is not governed by an international treaty, the application of laws shall be determined under the guidance of the rules of conflict in Chinese laws.

When applying the United Nations Convention on Contracts for the International Sale of Goods, the people's courts shall be aware that in 2013 China has withdrawn the declaration that the country is not bound by Article 11 and any contents relating to Article 11 of the Convention, but has still reserved the declaration that the country is not bound by paragraph 1(b) of Article 1 of the Convention. Whether a country is a contracting state of the Convention or has made any reservation can be confirmed by access to the information about contracting states of the Convention on the portal website of the United Nations Commission on International Trade Law. In addition, according to the provisions of Article 4, the Convention is not concerned with the validity of a contract or the effect which a contract may have on the property in the goods sold. The law by which the two matters are governed shall be determined under the guidance of the rules of conflict in Chinese law, and the two matters shall be specified in the governing law.

If a party claims part or whole exemption of liability in a contract due to the pandemic or any prevention and control measures, the people's court shall, according to Article 79 of the Convention, examine and ascertain the conditions according to which this Article can be applied. Bona fide interpretations shall be made on the clauses of the Convention on the basis of their contexts and by reference to the purposes and objectives of the Convention. In the meanwhile, it is worth noting that the Digest of Case Law on the United Nations Convention on Contracts for the International Sale of Goods is not a part of the Convention, and it can serve as a reference but not a legal basis for hearing cases.

V. Trials of foreign-related commercial cases

8. When hearing disputes over letters of credit, the people's courts shall observe the autonomy principle and the doctrine of strict compliance in letters of credit, and accurately distinguish malicious refusal to deliver goods from failure to deliver goods due to the pandemic or any prevention and control measures. The people's courts shall, in accordance with the provisions of Article 11 of the Provisions of the Supreme People's Court on Several Issues concerning the Trial of Cases of Disputes over Letters of Credit, examine if a party's application for suspending the payment under a letter of credit for the reason of a letter of credit fraud shall be approved.

If the Uniform Customs and Practice for Documentary Credits of the International Chamber of Commerce (UCP600) is applied, the people's court shall correctly apply the specific provisions of Article 36 of the Customs for circumstances under which a bank will not honor or negotiate. If a party claims that a bank's business is interrupted by the pandemic or any prevention and control measures, the people's court shall determine if such interruption is caused by the force majeure specified in this Article, except that it is otherwise agreed by the parties on force majeure and their liabilities.

9. When hearing disputes over independent guarantees, the people's courts shall observe the autonomy principle and the doctrine of strict compliance in independent guarantees. The people's courts shall, in accordance with Article 12 of the Provisions of the Supreme People's Court on Several Issues concerning the Trial of Cases of Disputes over Independent Guarantees , strictly determine the circumstances under which an independent guarantee fraud is committed, and, in accordance with Article 14 of the Provisions, examine if a party's application for suspending the payment under an independent guarantee for the reason of an independent guarantee fraud shall be approved.

If an independent guarantee provides that it is governed by the Uniform Rules for Demand Guarantees of the International Chamber of Commerce (URDG758), the people's court shall correctly apply the provisions of Article 26 of the Rules for the prevention of presentation or payment under an independent guarantee or counter-guarantee due to force majeure and the rules to extend periods. If a party claims that the relevant business is interrupted by the pandemic or any prevention and control measures, the people's court shall determine if such interruption is caused by the force majeure specified in this Article, except that it is otherwise agreed by the parties on force majeure and their liabilities.

VI. Trials of cases involving transport contracts

10. According to Article 291 of the Contract Law of the People's Republic of China, a carrier shall carry cargoes to the agreed destination via the agreed route or the customary carriage route. If, after a carrier provides evidence to prove that a carriage route is changed due to a pandemic outbreak on the means of transport and immediate confirmation and quarantine measures are needed and the carrier has promptly notified consignors, a consignor claims that the carrier has violated the obligations specified in this Article, the people's court shall disapprove such a claim.

If, after a carrier provides evidence to prove that a carriage route is changed or loading and unloading are limited, thereby causing delays in delivering goods, due to the pandemic or any prevention and control measures or traffic control measures at the starting place or destination, and consignors have been promptly notified, the carrier claims exemption of the relevant liabilities, the people's court shall approve such a claim.

VII. Trials of maritime cases

11. A carrier shall, before and at the beginning of a voyage, exercise due diligence to make the ship seaworthy. If a carrier fails to exercise due diligence, thereby disabling a ship from transporting specified cargoes due to epidemic prevention and control measures such as disinfection and fumigation, or making the number of certified healthy crew members unable to meet the requirements of seaworthiness, and a consignor claims unseaworthiness of the ship, the people's court shall approve such a claim.

If a consignor claims unseaworthiness of a ship only on the grounds that the ship has moored in a pandemic-affected area or a crew member has contracted COVID-19, the people's court shall disapprove such a claim.

12. If, before a voyage, a transport contract is unable to be performed under any of the following circumstances due to the pandemic or any prevention and control measures, and a carrier or consignor requests the cancelation of the contract according to Article 90 of the Maritime Law of the People's Republic of China , the people's court shall approve such a request: (1) a ship is unable to be equipped with necessary crew members and stores within a reasonable period; (2) a ship is unable to arrive at the loading port or the port of destination; (3) a ship can no longer be able to continue its normal sails or berthing once it enters into the loading port or the port of destination; (4) import and export of cargoes are temporarily forbidden by the country or region where the loading port or the port of destination is located; (5) a consignor is unable to transport cargoes to the wharf at the loading port within a reasonable period due to the blocking of land transport; or (6) other circumstances not attributable to the fault of a carrier or consignor under which a transport contract is unable to be performed.

13. If a carrier loads cargoes at a safe port or a place near the port of destination which restricts berthing or loading due to the pandemic or any prevention and control measures, and a consignor or consignee requests the carrier to bear the liabilities for breach of contract, the people's court shall disapprove such a request, unless otherwise agreed upon in the contract.

If a carrier fails to properly arrange storage of cargoes after unloading and notify consignors or consignees in a timely manner, and a consignor or consignee requests the carrier to bear the relevant liabilities, the people's court shall approve such a request.

14. If a consignee or consignor requests to adjust or reduce the charges for overtime containers caused by the pandemic or any prevention and control measures, the people's court shall try to guide the parties concerned to negotiate a solution. If the negotiation fails, the people's court may adjust or reduce the charges as appropriate according to the actual conditions of the case, and the replacement price of a similar container shall generally be determined as the upper limit of the charges for an overtime container.

15. If, after a freight forwarding enterprise books cargo space from a carrier in the name of a consignor, the carrier cancels the sailing voyage or changes the schedule due to the pandemic or any prevention and control measures, and the consignor claims that the freight forwarding enterprise should compensate for damages, the people's court shall disapprove such a claim. If, however, the freight forwarding enterprise fails to notify the consignor of voyage cancelation or schedule change in a timely manner without performing its duty of prudence and diligence, or is at fault when working with the consignor to handle the subsequent matters, and the consignor requests the freight forwarding enterprise to bear the relevant liabilities, the people's court shall approve such a request.

16. If a ship building enterprise requests to extend the time for delivery of ships due to labor shortage, delayed delivery of equipment and supplies, or failure to resume production caused by the pandemic or any prevention and control measures, the people's court shall approve such a request as appropriate according to the seriousness of the impact that the pandemic or any prevention and control measures has on ship building, unless otherwise agreed upon in a contract.

If, due to the pandemic or any prevention and control measures, delayed delivery of ships causes the application of new ship building standards, and a party requests to share the additional costs and expenses arising thereof among all parties concerned, the people's court shall approve such a request as appropriate by taking into full account the impact that the pandemic or any prevention and control measures has on delayed delivery of ships and whether there is any cause attributable to a party's performance of the contract.

17. In accordance with the Urgent Notice by the Ministry of Transport of Coordinating the Work between Pandemic Prevention and Control and Water Transportation issued on January 29, 2020, port operation enterprises shall be forbidden to adopt such measures as prohibiting or restricting the berthing of cargo ships or instituting a 14-day quarantine in anchorage at will in the name of pandemic prevention and control. If, without any specific requirement from the maritime department or port administration department of the place where a port operation enterprise is located, the port operation enterprise restricts the berthing period of ships on the grounds of quarantine and isolation without authorization, and ship owners or operators request the port operation enterprise to bear the liability for compensation, the people's court shall approve such a request.

VIII. Green channels for litigation

18. In hearing foreign-related commercial and maritime disputes related to the pandemic, the people's courts shall actively build green channels for litigation, make full use of the achievements made in the construction of smart courts, continue to combine online and offline services, and optimize cross-border litigation services. The people's courts shall also improve online litigation procedures and guidelines, so as to ensure that online litigation activities are standardized, convenient and feasible with clear guidelines.

IX. Trials of cases involving Hong Kong, Macao and Taiwan

19. The people's courts may refer to this Opinions for the trials of commercial and maritime cases involving the Hong Kong Special Administrative Region, the Macao Special Administrative Region, and the Taiwan Region.