The judicial reception of international law in China: aligning domestic adjudication with international obligations

Accurate application of civil, commercial and investment treaties matters to cross-border economic activities. China’s current legal system lacks a unified general rule governing the domestic application of international treaties; the relevant rules are dispersed across specialized laws and regulations and judicial instruments issued by the Supreme People’s Court (SPC). The SPC’s Interpretation of Several Issues Concerning the Application of International Treaties and International Practices in the Trial of Foreign-Related Civil and Commercial Cases, accompanied by Model Cases, sets out rules for applying treaties in foreign-related civil and commercial cases. In the investment field, the Foreign Investment Law permits more favourable treaty provisions concerning foreign investor market access to apply. This article compares current legal frameworks with selected earlier decisions to examine judicial treaty application in the two fields. Tracing the historical evolution of China’s treaty practice and its political and legal challenges, it constructs a double-helix analytical framework anchored in national sovereignty and security while balancing economic development and Party authority. It advocates incorporating a principled mandate under the Foreign Relations Law that ‘a treaty shall apply according to its nature’. While adhering to pacta sunt servanda, this clause preserves strategic flexibility and institutional space for sector-differentiated practices. Operationally, it proposes targeted pathways: unifying sequential judicial reasoning in foreign-related civil and commercial disputes through SPC Guiding Cases, leveraging the advisory function of the SPC International Commercial Expert Committee to address investment treaty complexities, and institutionalizing a regular, two-way liaison and consultation mechanism between the judiciary and competent executive authorities.