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Enforcing Commercial Judgments between China and South Africa in the Context of BRICS and BRI
Published online by Cambridge University Press: 04 December 2020
Abstract
The frequent business transactions between China and South Africa in the context of BRICS and the Belt and Road Initiative have resulted in many commercial disputes. The ultimate resolution of such disputes requires a feasible enforcement mechanism for commercial judgments, but some obstacles remain when enforcing commercial judgments from each side. Both countries have adopted different approaches and principles to ascertain the jurisdiction of the adjudicating court, the application of reciprocity and an understanding of public policy. This article examines these obstacles by comparing the two enforcement regimes, and explores ways to overcome these obstacles and to realize the free flow of commercial judgments between both sides.
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- Research Article
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- Copyright © SOAS University of London, 2020
Footnotes
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Professor of law, University of Chinese Academy of Social Sciences; director, Center for African Laws, China-Africa Institute.
References
1 On the Chinese mainland, there are no separate civil and commercial codes; accordingly, there is no division between civil and commercial judgments. Generally, they are just categorized as civil and commercial judgments. However, commercial judgments in practice refer to those to pay a fixed or fixable sum of money. In South Africa, commercial judgments usually refer to financial judgments. This article only deals with the recognition and enforcement regimes on the Chinese mainland, not including those in the Hong Kong Special Administrative Region, Macao Special Administrative Region or Taiwan, where different enforcement regimes apply.
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8 The data collected in this part is as of 4 November 2020.
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10 For example, 11 judgments in each of 2014 and 2015, 10 in 2016, 11 in 2017 and 18 in 2018.
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30 According to article X of this convention: “Any judgment given by a court with jurisdiction in accordance with Article IX which is enforceable in the State of origin where it is no longer subject to ordinary forms of review, shall be recognized in any Contracting State, except: (a) where the judgment was obtained by fraud; or (b) where the defendant was not given reasonable notice and a fair opportunity to present his case.” The full text of the convention is available at: <https://treaties.un.org/doc/Publication/UNTS/Volume%20973/volume-973-I-14097-English.pdf> (last accessed 25 October 2020).
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39 Enforcement of Foreign Civil Judgments Act, 1988, arts 2 and 3.
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