Shanghai Oriental Foreign Law Discerning Center

The Rules of Law Discerning (For Trial Implementation)

Chapter I General Principles

Article 1 [Purpose] For the purposes of promoting steadily of the Belt and Road Initiative and the orderly construction of the Shanghai Pilot Free Trade Zone, establish a clear and standardized foreign law discerning system, ensure the quality of service provided by the Shanghai Oriental Foreign Law Discerning Center (hereinafter referred to as "the OFLD"), this rule has been formulated.

 Article 2 [Principles] The OFLD shall handle the law discerning work under the principles of neutrality, profession, and efficiency.

Article 3 [Scope of Application] The provisions of this rule shall apply to the foreign law discerning service accepted by the OFLD upon the entrustment of the client. The foreign law that mentioned in this rule refers to the laws of any country or region other than the Law of the People's Republic of China. The specific content of the foreign law is subject to the provisions of that country or region.

If the client applies to the OFLD to discern the Law of the People's Republic of China, as well as laws of the Hong Kong Special Administrative Region, Macao Special Administrative Region and Taiwan Region of the People's Republic of China, this rule will apply by analogy.

The scope of the law discerning service by the OFLD includes legally binding documents such as statutory laws, international conventions, international practices, and judicial precedents.

Chapter II Entrustment

Article 4 [Entrusting party] The OFLD accepts the entrustment from the people’s court, administrative organ, arbitration authority, legal persons, unincorporated organizations, and natural persons to provide law discerning service for them.

Article 5 [Application Form for the Entrustment of Law Discerning] The client shall fill in the Application Form for Entrustment of Law Discerning and submit to the OFLD. The application shall clarify the specific matters and requirements of law discerning.

Article 6 [Entrustment Contract] Client shall sign a written entrustment contract with the OFLD for matters of law discerning and clarify the rights and obligations of both parties.

Article 7 [Determination of Responding Subject and Forwarding of Materials] Within ten working days after receiving the application form for the entrustment of law discerning, the OFLD shall determine the institution or individual as mentioned in Article 11 in this rule and disclose the entrustment between the entrusting party and the OFLD. The OFLD will notify the entrusting party in writing if the responding subject could not be determined within the time limit due to special reasons.

Within three working days after the determination of responding subject, the OFLD will forward the application form for the entrustment of law discerning, entrustment contract and other relevant materials to the responding subject.

Article 8 [Confirmed Acceptance of Employment] The institution or the individual that accepts the employment of the OFLD shall confirm in writing to the OFLD that the relationship of service contract for law discerning between both parties is established. The OFLD shall promptly serve the photocopy or scanned copy of Confirmed Acceptance of Employment to the entrusting party.

Article 9 [Service Contract] The OFLD shall sign Service Contract with the institution or the individual that determined to be the responding subject of law discerning. The contract shall clearly specify the rights and obligations of both parties.

Article 10 [Text Translation and Other Formalities] If the content applied for discerning is not in Chinese, the entrusting party may provide the Chinese version to the OFLD, or entrust the OFLD, or the OFLD may re-entrust a relevant institution to translation.

If the entrusting party needs translation, notarization, or other formalities for the discerning report or other relevant documents, the OFLD may be entrusted to handle.

Chapter III Reply

Article 11 [Responding subject] onflict of interest, the service provider shall withdraw of his own accord, and shall not participate in such law discerning work.

The responding subject should take prudent security measures after accepting the entrustment and should not disclose any information related to the entrusted matters to the third party.

Article 12 [Reply Requirements] The reply to the law discerning application shall satisfy the following requirements:

In the form of written report.

The report shall give a complete reply to the key points regarding law discerning as listed in the letter of entrustment, but it should not go beyond the scope of law discerning or give conclusive opinions on the final disposition of the litigation or arbitration.

If there is a written legal text regarding the law to be discerned, such legal text shall be provided as an attachment to the discerning report, with its validity indicated (the effective date, expiration date and applicability to the case, etc.).

The report shall be based on the details or the whole course of the case described in the letter of entrustment and give a necessary interpretation to specific articles involved in the legal text, including but not limited to the interpretation by legislative organ, judicial organ, and administrative organ, etc., brief introduction and abstract of judicial precedents with guiding significance and other relevant materials (such as legislative background).

If there is no written legal text regarding the law to be discerned, the latest local judicial precedents in dealing with the related issues in the place where the law belongs to shall be provided (including introduction and abstract of the case), together with other materials that the responding subject finds directly relevant to the reply and understanding of the matters to be discerned.

If the responding subject is an individual, the discerning report shall be signed and confirmed by the responding subject in person; if the responding subject is an institution, the discerning report shall be signed by the person in charge and affixed with the official seal of the institution.

The discerning report shall be attached with relevant introduction (including but not limited to occupational identity, work experience, academic titles, and areas of specialization, etc.) to prove that the responding subject (institutions or individuals) is qualified under Article 10.

The responding subject shall make a statement for conflict of interest in the discerning report.

Article 13 [Discernment Period] In principle, the responding subject shall submit the law discerning report and relevant materials within one month after the issuance of Confirmed Acceptance of Employment.

If the responding subject is unable to complete the discerning work within the time limit due to special reasons, it shall make a written explanation to the OFLD during the time period. It may delay the time limit appropriately upon the consent of the OFLD, the time limit may be extended, but not more than two months in principle.

The OFLD shall notify the entrusting party of the relevant circumstances orally or in writing.

Article 14 [Report explanation] After receiving the discerning report, the entrusting party may request the responding subject to explain the report via the OFLD. The report may be explained by such convenient methods as video and phone.

Article 15 [Supplementary Explanation] Where the entrusting party deems that the written document is insufficient or has objections, it may request the responding subject to give a written supplementary explanation via the OFLD.

The request of supplementary explanation shall be submitted in writing and clearly specify the question that need to be further expound by the responding subject, or the materials that need to be supplemented. Within five working days after receiving Supplementary Explanation Request/ In-person Explanation Request, the OFLD will contact the responding subject to give supplementary explanation within a reasonable time limit.

Article 16 [In-person Explanation] In the case of litigation and arbitration, where a people's court, arbitration authority or administrative organ deems it necessary, it may invite the responding subject or other appropriate subject who is familiar with the law regarding the disputes to give explanation for the doubt or controversial issue in the discerning report via the OFLD upon the application of the party concerned.

The entrusting party may also request the OFLD to give an in-person explanation other than the application made for a purpose of litigation or arbitration.

The specific arrival time will be coordinated and arranged by the OFLD according to the time of both parties.

Where the entrusting party is a party to the litigation or arbitration, the arrival time shall be affirmed by the people's court, arbitration authority or administrative organ.

Chapter IV Expenses

Article 17 [Composition of Fees] The fees charged by the OFLD for law discerning include agency fees and discerning service fees.

Agency fees shall be charged on each piece by the OFLD. In case of other circumstances such as problems in the delivery, notification or expedited handling during the discerning work, the agency fees may be raised appropriately.

Discerning service fees are collected by the OFLD and will be transferred to the responding subject, or the recipient designated by the responding subject after the completion of the discerning work. The specific amount is subject to the charging standard by the responding subject.

If the OFLD is entrusted to handle translation, notarization or other formalities, the relevant fees shall be charged according to the actual expenses.

Article 18 [Advance Payment] When applying for discernment, the entrusting party or the applicant designated by the people’s court, arbitration authority or administrative organ shall pay the discerning service fees in advance.

If the OFLD is entrusted to handle translation, notarization or other formalities, the relevant fees shall be paid in advance together with agency fees and law discerning fees.

The OFLD will forward the letter of entrustment and other relevant materials to the responding subject, and the responding subject will estimate the discerning service fees based on the charging standards of local legal service.

The OFLD will issue the Notification of Advance Payment to the entrusting party or persons designated by the entrusting party. The relevant expenses shall be paid to the account designated by the OFLD within five working days.

If the entrusting party fails to pay in advance the relevant expenses on time, the entrustment shall be deemed withdrawn and the discerning service fees paid in advance may be refunded after deducting the actual expenses within five working days.

Article 19 [Fees in Case of Withdrawal] Where the matters to be discerned in the application are not clear, the OFLD may request corrections. If the entrusting party or applicant refuses to make corrections or the application is still unclear even after corrections, the OFLD may deem that the entrusting party has withdrawn its application and the advanced payment may be refunded after deducting the actual expenses within five working days.

Article 20 [Fees for Supplementary Explanation] If the responding subject is requested to give supplementary explanation, extra fees shall be paid in accordance with Paragraph 3 of Article 18.

Where a concerned party invites the responding subject or other appropriate subject who is familiar with the law regarding the disputes to give an in-person explanation via the OFLD, the entrusting party who submits such application shall pay expenses in advance as per the Notification of Advanced Payment issued by the OFLD within five working days after filing the application (the expenses incurred by the responding subject, including but not limited for transport, accommodation, meals and service fees).  

If the entrusting party fails to pay in advance the expenses according to the rules above, the request of supplementary explanation or in-face explanation shall be deemed withdrawn.

Article 21 [List of Expenses] After completion of the discerning work, the responding subject shall provide a list of expenses to the OFLD and clearly specify the items and amount of f expenses, which should be checked and confirmed by the OFLD.

Article 22 [Refund for Overpayment or Supplemental Payment for Deficiency] The advance payment is subject to refund or supplemental payment in case of overpayment or deficiency. The refund or supplemental payment shall be completed before or at the time of receiving the law discerning report or other discernment supporting materials.

The OFLD may refuse to deliver the discerning report or other discernment supporting materials (such as translated documents and notarial certificates) if the relevant discernment fees are not paid in full.

Chapter V Exceptions Clause

Article 23 [Misjudgment of Applicable Law] The OFLD carries out the discerning work in accordance with the matters of the request in the letter of entrustment but will not assume any liabilities for the misjudgment of applicable law.

Article 24 [Non-adoption of Discerned Law] The genuineness, correctness, admissibility of the discerning report and relevant materials are subject to the verification and affirmation by the people's court, arbitration authority or administrative organ according to law.

The entrusting party shall not pursue legal liabilities against the OFLD or the responding subject merely on the grounds that the discerned laws are not accepted.

Where the entrusting party deems that the responding subject has omissions in the discerning work, the party should negotiate directly with the responding subject.

Article 25 [Failing to Discernment] After accepting the entrustment, if there is no qualified institutions or individuals, or the relevant institutions and individuals refuse to provide the discerning service, the OFLD will not be responsible for this, but shall present a written Notification of Failing Discernment and serve to the entrusting party.

Within five working days of receipt of the notice，the entrusting party could go to the OFLD for settlement and receive relevant entrusted materials.

Within five working days after the completion of settlement, advanced payment shall be refunded after deducting the actual expenses.

Article 26 [No Results within the Specified Period] The OFLD shall not be responsible for the applicant's failure to submit the outcome of the law discerning within the time limit specified by the people's court, arbitration authority or administrative organ.

Chapter VI Other Provisions

Article 27 [Right to Interpret, Amend and Repeal] The OFLD reserve the rights to interpret, amend and repeal the above rules.

Article 28 [Effective Date] This rule shall become effective from the date of promulgation.