01 Preface
Many enterprises hold a misunderstanding that cases are always governed by Chinese law as long as contracts stipulate Chinese jurisdiction. In fact, in foreign-related civil and commercial cases, courts determine the applicable law according to legal conflict rules, and a large number of cross-border disputes are finally tried in accordance with foreign laws. At this time, foreign law ascertainment becomes the core factor determining case outcomes, and most enterprises lose lawsuits due to failure in effective foreign law ascertainment.
02 Definition of Foreign Law Ascertainment
Foreign law ascertainment refers to the judicial process in which people's courts ascertain the specific provisions, applicable rules, judicial precedents and scope of validity of a certain foreign law after determining its applicability to a foreign-related case. Simply put, judges are not familiar with laws of various countries, so parties and lawyers need to prove the specific provisions of foreign laws to the court through professional materials as the basis for case judgment.
03 Burden Allocation for Foreign Law Ascertainment
If parties agree to apply foreign laws in the contract, the parties shall fully bear the burden of foreign law ascertainment. Failure to complete effective ascertainment will lead to court judgment in accordance with Chinese law, completely subverting the contractual expectations of both parties. If the court decides to apply foreign law ex officio, the court takes the lead in ascertainment, and parties cooperate in providing relevant legal materials and verifying facts.
04 Legitimate Ascertainment Methods Recognized by Judiciary
In judicial practice, simple law screenshots, online excerpts and machine translations have no legal effect and will be directly rejected by courts. Effective ascertainment methods include: special legal opinions issued by senior Chinese and foreign legal experts, legal certification documents issued by overseas authoritative judicial institutions and bar associations, official foreign legal provisions and effective precedents, and special demonstration reports on foreign laws issued by foreign-related law firms.
05 Enterprise Risk Prevention Suggestions
In the contract signing stage of cross-border transactions, prioritize the application of Chinese law to avoid foreign law ascertainment risks fundamentally. If foreign law application is necessary, entrust professional foreign-related lawyers to complete foreign law ascertainment and fix compliant legal materials in advance. After litigation occurs, quickly build a foreign law evidence chain and demonstrate the logic of law application combined with precedents to avoid litigation failure caused by unsuccessful ascertainment.