How Is Foreign Law Established in PRC Civil and Commercial Litigation?

1. Confirm that foreign law actually governs a defined issue

This guide concerns foreign-law ascertainment in civil and commercial cases before courts in Mainland China. It does not treat PRC-seated arbitration, Hong Kong proceedings or Macau proceedings as interchangeable. Start with PRC conflicts rules, the validity and scope of any choice-of-law clause, directly applicable mandatory PRC rules and relevant treaties. Only then identify which issues—contract validity, performance, tort, corporate authority or another matter—are governed by foreign law.

The parties may agree to select or change the applicable law before the conclusion of oral argument at first instance, but party choice is not available for every relationship. A foreign governing-law clause also does not displace directly applicable PRC mandatory provisions or a treaty rule that controls a particular issue.

2. Allocate responsibility correctly

Article 10 of the PRC Law on the Application of Laws to Foreign-Related Civil Relations states that the court, arbitral institution or administrative authority ascertains foreign law. If the parties chose foreign law, they must provide it. The Supreme People's Court further states that a court cannot treat foreign law as unascertainable merely because a party that did not choose it declines to assist.

Where a party selected foreign law, the court will set a reasonable period for provision. Failure without good reason may lead to a finding that the law cannot be ascertained. The practical model is therefore court-led ascertainment with a defined burden on the selecting party, plus participation, supplementation and challenge by the other parties.

3. Frame questions rather than uploading an entire code

Turn the dispute into adjudicable foreign-law questions. These may include whether an exclusive jurisdiction clause is effective, whether notice is a condition precedent, whether a limitation clause covers gross negligence, how damages are measured, or whether a cited case remains good law. The answers may involve federal and state rules, legislation and precedent, or different court levels.

A PRC court may define the scope of ascertainment at a pre-trial conference. Prepare an issue matrix linking each question to the rule, authority, factual interface and proposed answer, including adverse authority. This makes it easier to decide whether a second ascertainment route, expert questioning or additional time is genuinely necessary.

4. Select among seven recognised routes

The SPC interpretation identifies seven routes: provision by the parties; judicial-assistance channels; assistance requested by the SPC from Chinese missions abroad or foreign missions in China; a legal-ascertainment cooperation mechanism established or joined by the SPC; experts of the China International Commercial Court Expert Committee; legal ascertainment institutions or Chinese or foreign legal experts; and other appropriate means.

If one route produces unclear or insufficient material, the court should supplement it through a different route. Official legislation and validity records may suffice for an uncontested statutory question. Precedent-heavy, conflicting or specialist issues more often justify an independent expert or ascertainment institution. Official assistance can carry particular authority, but timing and procedural uncertainty should be built into the plan.

• Public legislation: obtain the enacted text, applicable version and status from an official publisher
• Case law: provide the full decision, court hierarchy, appellate history and subsequent treatment
• Contested specialist issues: consider a suitably qualified expert or ascertainment institution
• Official assistance: make a focused request early where authenticity or current status is central

5. Build a package the court can verify

A party providing foreign law should submit the specific rules and explain their source, validity and connection to the dispute. A party relying on case law should provide the complete judgments. An institutional or expert opinion should also include qualifications and identity materials, together with a written declaration that there is no interest in the case.

Organise the record by evidentiary purpose and retain the retrieval date and native electronic files. Use a consistent Chinese translation and preserve key terms in the original language. If the rule was amended after the relevant conduct, identify the applicable version. If federal, state, provincial or court hierarchy matters, explain why the cited level controls.

• Content: exact provisions, complete judgments and necessary context
• Authority and status: official source, court level, commencement, repeal and later treatment
• Scope: the relevant time, territory, persons and transaction
• Relevance: which issue each rule answers and how it connects to the facts
• Testing: Chinese translation, glossary, expert credentials and no-conflict declaration
• Costs: engagement scope, invoices and payment evidence if reasonable ascertainment costs are claimed

6. Treat the court-set period as a real deadline

No single number of days applies to every foreign-law submission. The court sets a reasonable period based on the case and difficulty. On receiving directions, confirm the questions, source path, translation work and expert timetable. If completion is genuinely impossible, request an extension before expiry and show the steps taken, remaining obstacle and realistic delivery date.

A selecting party that provides nothing by the deadline without good reason may trigger an inability finding. The same consequence does not automatically follow from non-assistance by a party that did not select the law. Waiting until the hearing to deliver an untranslated bundle or commission an expert compresses both adversarial testing and judicial verification.

7. Prepare for agreement, conflict and expert questioning

All ascertainment materials should be presented in court and the parties heard. The court may confirm an agreed understanding where neither side disputes the content, interpretation or application of foreign law. If they disagree, the court should examine the competing positions and state its reasons. A foreign-law finding in an effective judgment may be recognised unless sufficient contrary evidence or reason is produced.

Expert opinions remain open to testing. With the court's permission, an expert may attend or be questioned online in a manner lawful where the expert is located. Test whether the source set is complete, whether the opinion improperly resolves disputed facts, and whether it omits adverse precedent, amendments or a conflict of interest.

8. Inability to ascertain is a reasoned fallback, not a shortcut

If foreign law genuinely cannot be ascertained, or contains no relevant rule, PRC law applies. But the judgment should record the ascertainment process and content; where ascertainment failed, it should explain why. An unclear result from one channel should ordinarily lead to supplementation through a different route.

Frequent failure modes include treating the English contract as proof of foreign law, relying only on a blog or machine-translated extract, omitting full decisions and later treatment in a common-law jurisdiction, assuming an expert binds the court, hiding contrary authority, missing the court's deadline, or assuming the other side's silence automatically brings PRC law into play.

9. Plan costs and next actions at the outset

An agreement on ascertainment costs governs between the parties. Without one, a court may support reasonable costs on request and in light of the case. An expert or institution engagement should define the questions, deliverable, qualifications and independence, attendance obligations, translation responsibility, timing and cost evidence. A generic legal memorandum may not be fit for courtroom use.

Preserve the governing-law and dispute clauses; create an applicable-law and issue matrix; fix the temporal and geographic version of every rule; choose a primary route and fallback; reverse-plan expert, translation and response work from the court's deadline; disclose adverse authority; and retain cost evidence. Targeted advice is worth obtaining early if clause validity is disputed, precedent determines the outcome, authoritative sources conflict or the court-set period is already tight.