Here are the English and Chinese texts of the trade agreement signed yesterday. I’ve archived them at the perma.cc site to prevent link rot.
I don’t have a lot to say, because there is or will soon be a wealth of commentary by people more qualified to comment than I am. But I do have a few comments, based on a quick review.
Unlicensed Software
Article 1.3 deals with unlicensed software, and states in part:
1. The Parties shall ensure that all government agencies and all entities that the government owns or controls install and use only licensed software.
2. Measures China shall take include requiring annual audits by qualified third parties of China with no government ownership or affiliation and the publication online of the audit results, beginning within seven months after the date of entry into force of this Agreement.
First point: Where do these “third parties of China with no government ownership or affiliation” exist? As is well known, China recognizes no limits on government power, and the 19th Party Congress is 2017 openly declared that ““Party, government, military, civilian, and academic, east, west, south, north, and center, the party leads everything” (党政军民学，东西南北中，党是领导一切的). The idea that a Chinese entity could find that a powerful government agency was using unlicensed software and then publish that result online is fanciful.
Second point: The Chinese version of Para. 2 is a little different from the English. Here it is: “中国应采取的措施包括，在本协议生效后7个月内，在国内聘用合格的非政府所有或附属的第三方进行年度审计，并在网上公布审计结果。” I would translate that as follows: “Measures that should be adopted by China include hiring within China, within seven months after the date of entry into force of this Agreement, a qualified third party neither owned by nor subordinate to the government to undertake annual audits and to post the results of audits online.”
Here are the differences: (1) This makes it sound like the Chinese government has an obligation to hire the auditor on a once-and-for-all basis. (2) 附属 implies a relationship of subordination, not just affiliation. The practical difference is not great, since I can’t think of any entities that are affiliated with but not subordinate to the Chinese Party-state. (3) The Chinese text does not specifically say that the entity must be “of China”, whatever that means.
Third point: There is no limitation here on the audits. Surely the parties did not contemplate that every government organization in China, from top to bottom, would be audited every year to see if it’s using unlicensed software. But if that’s not the scope of auditing the parties contemplated, what is?
Civil Procedure
Articles 1.30 and 1.31 deal with modifications to Chinese civil procedure. Here’s the text, in relevant part:
Article 1.30: Document Authentication (“Consularization”)
1. In civil judicial procedures, the Parties shall not require formalities to authenticate evidence, including requiring a consular official’s seal or chop, that can be introduced or authenticated through stipulation, or witness testimony under penalty of perjury.
Article 1.31: Witness Testimony
1. In civil judicial proceedings, China shall afford a party a reasonable opportunity to present witnesses or experts in its case and cross-examine any witness testifying in the proceeding. 在民事司法程序中，中国应给予当事方在案件中邀请证人或专家，并在庭审中对证人证言进行质询的合理机会。
Authentication of evidentiary material has been a problem in Chinese civil procedure. Courts have often taken a very formalistic approach, refusing to accept as evidence material as to the authenticity of which there is no serious dispute (e.g., a newspaper article downloaded from the web). A more practical approach is therefore welcome.
Article 3.1 addresses the issue of cross-examination of witnesses. The use of un-cross-examined testimony (for example, written witness statements) is a particularly egregious problem in criminal procedure. I don’t have a good sense of how big a problem it is in civil procedure, but I would be surprised if it were not. The Civil Procedure Law, in Article 68, requires that evidence be subject to zhizheng (质证), which in practice seems to mean at most that it should not simply be accepted at face value, but subject to some kind of verification. It doesn’t seem to require literal cross-examination in the US sense.
The term used in the Agreement is zhixun 质询. This term appears from time to time in Chinese legal documents (e.g., the Constitution and the Law on Supervision), and generally seems to mean a kind of questioning by monitors of those being monitored. But it also appears in a 2001 Supreme People’s Court document setting forth rules about evidence (Articles 55 & 59), and there it appears pretty unambiguously to mean “cross-examine”: it is something that witnesses shall “submit to” (接受). (Oddly, the term has disappeared and been replaced by the Civil Procedure Law’s zhizheng in a 2019 revision to that document.) In any case, China has now committed itself under a bilateral agreement to something that is supposed to look like cross-examination. We’ll just have to wait and see how things play out.