Reed Smith Client Alerts

On October 26, 2018, China enacted the International Criminal Judicial Assistance Law. This law imposes additional procedures relating to the provision of judicial assistance in criminal matters between China and other countries. This alert considers the key provisions of the law, its potential impact on internal investigations by foreign companies operating in China, and implications on foreign criminal enforcement against Chinese entities and nationals.

Auteurs: Calvin Chan

1. Overview

On October 26, 2018, the People’s Republic of China (PRC) National People’s Congress Standing Committee enacted the International Criminal Judicial Assistance Law (the ICJA Law). 

The ICJA Law regulates requests for “judicial assistance” between China and other countries in relation to international criminal proceedings, including service of documents, investigation and evidence collection, witness testimony, seizure and confiscation of illegal assets, and the transfer of convicted persons. 

This legislation imposes, for the first time, a mandatory pre-approval process before documents, assets, and testimonies relating to criminal matters can be exported out of the PRC. Article 4 of the ICJA Law prohibits institutions, organizations, and individuals within the territory of the PRC from providing evidentiary materials or assistance in connection with criminal proceedings to foreign countries without approval from the PRC competent authorities.  

The ICJA Law sets out specific circumstances in which the competent authorities may refuse requests for judicial assistance. The legislation also contains a catchall provision to deny judicial assistance in “other situations where refusal is allowed.”

Notably, while the ICJA Law paints its primary principles in broad brushstrokes, certain questions remain unanswered with respect to how the law is to be applied in practice. For example, the ICJA Law does not set out specific procedures for requests to be made for judicial assistance, or which PRC divisions are responsible for processing such requests. While the law enumerates specific scenarios under which requests may be denied, it does not set out the factors that the authorities will consider, or the length of time it will take, when deciding to grant such requests. Similarly, the ICJA Law does not address penalties for violations. 

However, it is expected that, as is common with the introduction of a new law in the PRC, the PRC authorities will, in time, issue implementing regulations that provide more details and interpretation of this law.