Advice of Haikou Maritime Court on Supporting the Building of Hainan Pilot Free Trade Zone and Free Trade Port with Chinese Characteristics
Advice of Haikou Maritime Court
on Supporting the Building of
Hainan Pilot Free Trade Zone
and Free Trade Port with Chinese Characteristics
The following advice is given in order to implement and carry through the keynote speech delivered by Xi Jinping, General Secretary of the CPC, at the 30th anniversary celebration of the founding of Hainan Province and Hainan Special Economic Zone, the spirit of the Guiding Opinions of the CPC Central Committee and the State Council on Supporting Hainan in Comprehensively Deepening Reform and Opening Up, and the specific requirements set out in the Framework Plan for China (Hainan) Pilot Free Trade Zone. This advice on supporting the building of Hainan pilot free trade zone and free trade port with Chinese characteristics is based on our practices in maritime trials and guided by the Opinions of the Supreme People's Court on Providing Judicial Safeguard to the Building of Pilot Free Trade Zones and the Opinions of the Supreme People's Court on Providing Judicial Services and Guarantees for Hainan to Comprehensively Deepen Reform and Opening Up.
I. To have a deep understanding of the significance of building Hainan pilot free trade zone and free trade port with Chinese characteristics as well as the important mission of justice in the maritime sector
1. To have a deep understanding of the significance of building Hainan pilot free trade zone and free trade port with Chinese characteristics
At this new historic point of China’s reform and opening up, General Secretary Xi Jinping and the Central Committee of CPC have assigned Hainan the important mission to build a pilot free trade zone and to gradually and steadily push forward the building of a free trade port with Chinese characteristics. It is a major decision they have made focusing on the overall development situations home and abroad and based on in-depth studies, overall consideration and scientific planning. This significant initiative highlights China’s determination to deepen reform and opening up and to actively promote economic globalization. It also shows that “China's door to the outside world will only open wider”. The building of Hainan pilot free trade zone and free trade port with Chinese characteristics will help overcome the structural and institutional obstacles to the growth of Hainan as an island province. It gives full play the role of this largest special economic zone of the country as a pilot platform for reform and opening up. Beneficial to reform and opening up at a higher level, it is a significant historic opportunity for the development of Hainan.
2. To have a deep understand of the important mission of justice in the maritime sector
Maritime courts are in a special position and play an increasingly prominent role in trials as the strategic position of ocean gradually rises. As a maritime court located at the southernmost of China and with jurisdiction over the largest area of waters, Haikou Maritime Court shoulders heavy responsibilities. Under the new historic circumstances, Haikou Maritime Court has been assigned the historic mission of building Hainan pilot free trade zone and free trade port with Chinese characteristics. This important national strategy has also posed greater challenges of maritime trials. It is important to fully understand the significance of maritime justice in serving the national strategy, and to realize that maritime courts are positioned as a main force and pioneers in building Hainan pilot free trade zone and free trade port with Chinese characteristics. Thoughts and actions should be put in to implement the decisions made by the central and provincial committees, and supporting judicial services should be provided. We should exercise our jurisdiction over the area of waters, and contribute towards an international and convenient business environment governed by law and a fair, open, unified and efficient market.
3. To internalize a judicial ideology that is in accord with the building of Hainan pilot free trade zone and free trade port with Chinese characteristics
We should stay on the path of law-based governance under Chinese socialism based on the rule of law and guided by the new ideology, theory and strategy of comprehensive law-based governance of the country. Applying the ideology and methods of the rule of law, we will handle various conflicts and disputes in the pilot free trade zone and the free trade port within the legal framework and build a business environment governed by law. We should uphold the principles of justice, efficiency and transparency, and protect the lawful rights and interests of Chinese and foreign litigants equally in compliance with law. We will strive to represent fairness and justice for the people in every single legal case.
We should follow international rules, aim at becoming an international maritime justice centre, and strive to meet the standards and requirements for building Hainan pilot free trade zone and free trade port with Chinese characteristics. We should accurately determine and apply foreign laws, and properly apply international conventions and practices. With an open approach and a broad perspective and following international standards, we will exercise our jurisdiction over foreign-related admiralty and maritime disputes.
We should adopt a proactive approach in administering justice, take the initiative to integrate our efforts into the overall development of the country, and actively respond to the needs of economic growth. We should pay close attention to the judicial reaction to various innovative systems, fully use maritime trials to support and guide the innovation of systems, and strengthen and secure the results of such innovation. On this basis, we should continue to take more measures to administer justice for the people, perfect diversified mechanisms for dispute resolution, and provide more efficient and convenient judicial services for Chinese and foreign litigants.
II. To fulfil maritime trial function and create a good law-governed environment for the building of Hainan pilot free trade zone and free trade port with Chinese characteristics
4. To exercise maritime jurisdiction and promote the healthy and orderly development of Hainan pilot free trade zone and free trade port with Chinese characteristics
We should try admiralty and maritime cases within our jurisdiction in compliance with law, properly resolve conflicts and disputes, and create a safe, orderly and law-governed environment for the growth of marine economy and the protection of marine environment. We should fulfil the important role of our jurisdiction in protecting the South China Sea, effectively improve our governance over the ocean, firmly protect our rights in the South China Sea, and guard this south gate of our country.
5. To try cases concerning marine travels in compliance with law, and strengthen the leading role of tourism in Hainan pilot free trade zone and free trade port with Chinese characteristics
We will try admiralty and maritime cases in new tourism sectors, including cruise tourism, yacht tourism, island tourism, tourism on the high seas, and water activities. With continuous efforts to set rules and standards for tourism and the use of sea areas, we strive to create an orderly and law-governed environment for the building of an international tourism centre. We should conduct in-depth studies of jurisdictional limits on and case types of disputes in ocean-related tourism such as cruise tourism and tourism on the high seas, clarify the legal relationships, conflict of laws and applicable laws and rules in each case, and know and understand new situations and issues in ocean tourist disputes. We should actively work towards the removal of restrictions on yacht operation and passenger capacity, expansion of waters navigable by yachts, simplification of formalities for entry and exit, and implementation of laws and regulations with fewer restrictions on yacht tourism.
6. To properly handle shipping and vessel-related disputes and contribute to the building of an international shipping centre
We should properly try cases concerning various shipping disputes in cargo carriage, forwarding, voyage chartering, and supply of vessel stores and spares. Integrating the measures to open up the shipping industry as set out in the “management of negative lists”, we should provide legal support to help effectively implement the policy on opening up the shipping industry. Furthermore, we should properly hear cases concerning shipping economy and transactions of shipping derivatives that take place in the building of a shipping exchange.
We should properly try cases concerning disputes over sales, chartering and other transactions and ownership of vessels, and promote the healthy growth of the shipping exchange market. We should support the effective implementation of international ship registration in Hainan, and facilitate the registration of eligible vessels in Hainan.
We should support innovation and growth in ship finance lease, shipping insurance, shipping offshore insurance, P&I, general average adjustment and other shipping financial business.
We should support the establishment of professional shipping insurance agencies as local corporations and professional third-party shipping management companies, support the building of a vessel arrest and security system, and continuously improve our ability to resolve shipping disputes in a professional and standardized way.
7. To properly try cases concerning ocean-related major projects and exploitation of marine resources, and serve the local economic and social development
To help the building of a service and support base for the South China Sea, we should properly try cases concerning projects in the South China Sea, including the South China Sea resources development service and support base, marine rescue base, cruise home port, marine tourism cooperation development base, and central fishing harbour. We should properly hear cases concerning the exploitation and development of the ocean, including the South China Sea oil and gas resources development, port-centred marine industries, deep sea mining, mariculture, marine project equipment research and development, marine farming and other emerging marine industries. Our strong judicial support will help the marine economy take off from a high starting point.
8. To properly hear cases concerning damage to the marine ecological environment and safeguard the marine ecology
Guided by the conviction that lucid waters and lush mountains are invaluable assets, we should properly hear cases concerning damage to the marine ecological environment caused by emission and leakage of pollutants, land reclamation projects, contacts and collisions between vessels, and other incidents. Our efforts will effectively contribute to the building of a pilot zone for the country's ecological civilization.
We should properly try administrative cases concerning the marine environment, and support the local government in their campaigns to rectify land reclamation, damage to coastal zones and like acts. We should supervise and support administrative authorities in dealing with violations that bring damage to the marine ecological environment.
We should give full play the role of restoration remedy in protecting the marine ecological environment. In cases concerning damage to the marine ecological environment, in addition to ordering the responsible party to assume relevant liability, we should also instruct the infringer to enter into agreements with the marine environment authorities on restoring the ecology and the damaged marine environment, such as agreements on replanting mangrove saplings, releasing fry, and cleaning up pollution in sea waters.
9. To properly hear cases concerning disputes over the development, use and management of coastal zones and support the reasonable development and use of coastal zones
We should properly hear cases concerning the development, use, rectification and management of coastal zones, and actively exercise maritime jurisdiction over civil and administrative disputes over the development and use of coastal zones crossing coastlines and involving overlapping land and sea areas. We should fully use maritime justice to educate, evaluate, guide and standardize projects in coastal zones and help the people become more aware of the protection of the ecological environment of coastal zones.
10. To fulfil our administrative trial function in the maritime sector, and support the institutional innovation in the building of Hainan pilot free trade zone and free trade port with Chinese characteristics
We should properly try maritime administrative cases that take place after the implementation of policies on easing market access for foreign investment, improving trade facilitation, innovating supervision modes, and accelerating the transformation of the government function. With these efforts, we will continuously work towards the establishment of an administrative system that adapts to the building of the pilot free trade zone and free trade port.
We should provide maritime administration in support of the building of Hainan pilot free trade zone and free trade port with Chinese characteristics, and give timely judicial advice about maritime administrative acts we find through trials that are not in accord with this goal. We should strive to resolve potential conflicts between pilot administrative acts and the laws and reforming policies in effect, and promote the implementation of relevant innovations within the legal and administrative framework.
III. To seek innovations in trial procedure, and give fair and efficient trials of cases concerning Hainan pilot free trade zone and free trade port with Chinese characteristics
11. To seek innovations in the system of people’s assessors and specially-invited mediators
We will choose people’s assessors among residents from Hong Kong, Macao and Taiwan who are working or have settled down in Hainan Province to participate in cases involving litigants from overseas or Hong Kong, Macao or Taiwan. In this system that we promote, the people’s assessors will be determined through consultation between the litigant parties, or foreign nationals will be specially invited to act as mediators in major cases or cases involving foreign litigants.
12. To simplify proceedings and expand the scope of judicial confirmation
We should hear cases in the pilot free trade zone and free trade port that involve litigants from overseas or Hong Kong, Macao, or Taiwan. Summary proceeding may apply in cases with simple facts and clear legal relationships. As regards admiralty and maritime disputes, agreements made between the litigant parties under the direction of oceanic administrative authorities may be judicially confirmed by a maritime court and become enforceable.
13. To promote a system of general identification and authorization of foreign litigants
Where a foreign litigant has provided notarized and legalized identification and authorization, thereby authorizing its subsidiary or lawyer to act in all of its proceedings in China for a certain period, we will not require for any further notarization or legalization of identification or authorization for any such proceedings before us.
14. To establish a system to determine foreign laws
We will enter into cooperation agreements with colleges, universities and research institutions to determine foreign laws, and work harder towards the establishment of an efficient and authoritative system to determine foreign laws, especially laws in the ten ASEAN member states. We should continuously improve our ability to apply foreign laws, international conventions and practices.
15. To innovate methods for service of judicial documents
We should strive to resolve difficulties in service by promoting multiple methods for serving judicial documents, including service by digital means, entrusted third parties, notary offices, lawyers, and transfer of documents in cases involving litigants from Hong Kong.
IV. To establish a comprehensive working mechanism that provides strong support for the building of Hainan pilot free trade zone and free trade port with Chinese characteristics
16. To promote the establishment of offshore circuit court and island trial venues in order to strengthen maritime jurisdiction
To ensure the effective maritime jurisdiction over our blue state territory in the South China Sea, we will conduct offshore circuit trials on vessels owned by oceanic administrative authorities and establish island trial venues in our offices on Nansha Islands. We should earnestly implement the Working Mechanism of Offshore Circuit Court and Island Trial Venues, determine responsibilities and functions, ensure personnel and logistics, and promote the stable establishment of offshore circuit court and island trial venues.
17. To seek innovations in the maritime trial mechanism
We should campaign to put ocean-related criminal cases under the jurisdiction of maritime courts, and pay close attention to clues and trends in ocean-related criminal cases in Hainan Province. We should actively coordinate with investigating and prosecuting authorities, and assist higher courts and competent authorities in issuing guidelines for the determination of jurisdiction over ocean-related criminal cases.
18. To seek centralized trial of cases concerning international commercial disputes
We should make full use of the experience and advantages of maritime courts in trials involving foreign litigants, and seek to set up a special body and teams to try cases involving foreign litigants. These efforts will contribute to the beneficial experience of deepening the reform of judicial system as well as the building of a modern mechanism to try commercial disputes involving foreign litigants.
19. To deepen and perfect cooperation between sections
We should actively participate in and attend joint meetings and cooperation for the building of Hainan pilot free trade zone and free trade port with Chinese characteristics, and take the initiative to make announcements about major cases and work progress in relation to the pilot free trade zone and free trade port. We should set up a comprehensive emergency response and cooperation mechanism in order to anticipate risks and resolve disputes, and to enhance the role of maritime justice in support of ocean control and social governance.
We should set up a cooperation mechanism and information sharing platform with oceanic administrative authorities. As regards events which take place in sea areas governed by oceanic administrative authorities and which may lead to major sensitive cases, we should pay attention, interfere as need be, provide timely legal advice, and link up law enforcement and administration of justice.
20. To seek diversified dispute resolutions adapted to the characteristics of admiralty and maritime disputes
We should seek to set up a joint mediation mechanism and coordination mechanism through interaction and cooperation. We should build a platform of diversified resolutions for admiralty and maritime disputes. With full respect to litigants’ choice of available remedies, we will encourage litigants, especially litigants in foreign markets, to resolve admiralty and maritime disputes through arbitration, mediation and other non-litigation methods.
21. To provide judicial services adapted to tourism operations
We will set up circuit trial venues for oceanic tourism and will, according to the trends in the growth of ocean tourism, extend such venues to cruises, passenger vessels and other locations subject to tourist disputes. We will accelerate the entertainment, trial and enforcement of cases by moving forward judicial service points and opening up green channels for tourist litigation. Based on the operations of tourism, we will take measures to resolve oceanic tourist disputes, such as officials in residence during public holidays, and shifts of judges. We will build a convenient network for the people and take measures such as online filing and remote trial to facilitate litigation. We will improve the coordination for resolution of tourist disputes and strengthen cooperation with competent authorities in an attempt to resolve disputes when they just emerge.
22. To set up a comprehensive mechanism for analysis and research
We will set scientific statistical indexes for cases involving the pilot free trade zone and free trade port, set up a special mechanism to study and analyse such cases, and actively study and estimate the variables of judicial statistics and the trends of case types. We will warn the shipping industry of market risks by publishing white papers on trials, trial reports, special reports, reports on typical cases, and other means. We will keep the supervision authorities informed and assist them in overcoming supervision difficulties by giving judicial and legislative advice.
V. To work towards a modern maritime trial system and capacity, and improve our ability to support the building of Hainan pilot free trade zone and free trade port with Chinese characteristics
23. To implement requirements for team research, and enhance participation in and contribution to ability building
We should fully implement the requirements for team research, and integrate the whole court to conduct anticipating research on legal issues in relation to the building of Hainan pilot free trade zone and free trade port with Chinese characteristics. Our focuses will be on analyzing and studying new situations and problems caused by pilot policies, such as international offshore innovations, pre-establishment national treatment before entry of foreign capital plus negative list management, set-up of shipping exchanges, fewer restrictions on yacht tourism, promotion of the exploitation of tourist resources on Xisha Islands, same-vessel transportation in domestic and foreign trades, application of shipping by Chinese vessels, and the building of bonded oil supply base. Stressing the quality and realization of research results, we will work towards setting up an integrated trial team strong at both trials and research.
24. To improve foreign language skills and enhance our ability to hear cases involving foreign litigants
Cooperating with colleges, universities, research institutions and administrative authorities, we will give better training in maritime legal English by ways of English forums, English salons, field practice on foreign vessels, and translation of elite cases. We will build our website in both Chinese and English and set up a legal translation team to give more transparency to our maritime judicial work. We will support our judges in international exchanges so that they will have a broader international perspective and better ability to cope with international affairs.
25. To take advantage of the talent introduction policy and strengthen our team with high-end talents in short supply
We will make full use of Hainan’s talent introduction policy and pilot policy on appointed civil servants. Under our talent program, we will select and introduce a team of high-end talents with high legal accomplishments, good foreign language skills, and an international perspective. We will strive to obtain policy support and actively urge outstanding experts in the trial of foreign-related civil and commercial cases to serve temporary positions in our court.
26. To be a smart court with better trial quality and judicial transparency
We should accelerate the establishment of a litigation service platform and a remote collegiate system, and provide online litigation services integrating online filing, online mediation, online service, and online review. We should improve our platform for live broadcasts of court trials, disclose more information about case procedure, work gradually towards the disclosure of trial records, and continuously improve our judicial transparency. We will strive to set up a comprehensive and smart trial management system and build a case management platform adapted to the characteristics of maritime courts.
Haikou Maritime Court
5 November 2018