A Study On The Extraterritorial Judicial Application Of The Anti-Sanctions Law

With the advancement of globalization and the development of China’s economy,China has become the main competitor in the eyes of the United States.In order to achieve the goal of curbing China’s development,the United States has taken a series of unfair sanctions against China,attacking China from all aspects and perspectives;On the other hand,countries such as the United States have begun to break through the limitations of their national boundaries,increasingly using various pretexts to apply their domestic laws and develop extraterritorial rule of law systems.In this international context,China has duly authorized recourse litigation in the Anti Foreign Sanctions Act for violations caused by the enforcement or assistance of discriminatory restrictive measures against foreign entities.The Anti-Sanctions Law,as the first formal legislation on anti-sanctions in China,demonstrates China’s resolute attitude towards opposing improper foreign sanctions and its determination to counter them,safeguard national sovereignty,national security,and development interests.It also formally authorizes the recovery and prosecution of losses caused by discriminatory restrictive measures.According to the provisions of Article 12 of the Anti-Sanctions Law,"any organization or individual" is not limited to organizations and individuals within the jurisdiction of our country,which fully reflects its extraterritorial effectiveness.It is also a clear authorization for Chinese citizens and organizations to pursue civil actions against any organization or individual,including foreign entities,for losses suffered by discriminatory restrictive measures,The extraterritorial judicial application of China’s anti-sanctions law has a clear legal basis.However,at present,it is only a framework system construction,which is relatively brief and lacks corresponding implementation rules.The provisions on how to determine whether or not to have the qualification to initiate a recovery lawsuit,the level of court to accept and jurisdiction such cases,how to allocate the burden of proof,and how to implement judgments and remedies after the case is heard are all missing,making the law to a certain extent lacking in practical operability.Therefore,there are currently no relevant judicial cases in China.At present,foreign entities,Chinese courts,and aggrieved parties face varying degrees of dilemmas in practice,which are manifested in the following aspects: foreign entities in international trade face increased litigation risks and fall into a dilemma of choice;China’s courts are facing the dilemma of a large number of potential cases and difficult implementation of the law;The aggrieved party faces difficulties in prosecution and proof.Analyze the causes of the dilemma,mainly in the following aspects.First,the definition of discriminatory restrictive measures is unclear.Because China adopts general provisions for relevant discriminatory restrictive measures,there are disputes and doubts in the determination in practice.On the one hand,entities in international trade cannot judge and select cooperation objects in advance,which increases litigation risk.On the other hand,the lack of threshold for face to face litigation leads to a large number of potential cases,At the same time,it is also difficult for the victims to determine whether the act that caused their infringement is to implement or assist in the implementation of discriminatory restrictive measures,and they are unable to carry out recovery proceedings,resulting in the contradiction that China faces a large number of potential cases but no actual cases.Second,the exercise of the right of recourse is not clear.First,the subject of the exercise of the right of recourse needs to be further clarified;Secondly,due to the lack of the judgment standard of "execution or assistance in execution",it is difficult to judge whether the defendant has intentionally implemented or assisted in the implementation of the discriminatory restrictive measures,and when to start implementing or assisting in the implementation of the discriminatory restrictive measures,which makes it very difficult to identify the damage in practice.Third,there is a lack of supporting mechanism to link up with the civil litigation system.In terms of the jurisdiction and burden of proof of the case,first of all,due to the high political nature of such claims,which has a certain impact on the national sovereign security and development interests,it is no longer suitable to directly apply the jurisdiction standard of foreign-related civil and commercial cases;Secondly,the particularity of the case causes the plaintiff to have difficulties in adducing evidence in the process.Fourth,the lack of relief channels.In the Anti-Sanctions Law,the exception exemption mechanism and the relief and compensation mechanism are both missing,which makes it difficult to guarantee the rights of the defendant.For the above series of problems,the following strategies can be used to improve.First of all,the scope of discriminatory restrictive measures should be clarified by properly enumerating the discriminatory restrictive measures,regularly updating the list of countermeasures,and interpreting Article 12 and Article 4 of the Anti-Sanctions Law;Secondly,the exercise subject of the right of recourse should be clearly defined,confirming that implied "execution or assistance in execution" can also be recovered,and the exercise scope of the right of recourse should be limited by setting the time node of "execution or assistance in execution" and causing substantial damage;Thirdly,we should strengthen the connection with the civil legal system by setting specific jurisdiction standards and trial teams and reasonably distributing the burden of proof;Finally,by setting up the necessary exemption mechanism and relief compensation mechanism to improve and refine the relief channels,promote the balance of the legitimate rights and interests of both parties.The smooth progress of the whole litigation process can effectively promote the Anti-Sanctions Law to achieve its legal objectives of safeguarding national sovereignty,security and development interests.