Principal Deputy Assistant Attorney General Bill Baer Delivers Remarks at U.S. - China Judicial Dialogue:In Support of Economic Growth and Reform

Remarks as prepared for delivery

I would like to thank our hosts for making these excellent arrangements for this dialogue, and Chairman Jiang for his kind introductory remarks.  I would also like to thank our esteemed United States federal judges – Judge Diane Wood, Judge Leonie Brinkema, and Judge Lucy Koh – for taking time from their busy court schedules to be here, and my friend and colleague General Counsel Kelly Welsh for his hard work and for the support of others in the Department of Commerce, in making the dialogue possible. 

It is always good to be back in Beijing.  This city has a special place in our family history.  My wife’s parents met here in 1947.  Nancy’s mom was teaching at the Peking American School.  Nancy’s dad was working with the China Relief Mission.  They married here in 1948.  And Nancy was born here, at Peking Union Medical College (PUMC), in 1949. 

Lynn and Jim Hendry loved their time in China and often shared with us their fond memories and their appreciation for the people and the traditions of this great nation.

As you know, this dialogue has been over a year in the making.  It was one of the outcomes coming out of President Obama’s meeting with President Xi Jinping in Washington last September.  We are pleased to have the chance to engage with you on the important topics of judicial reform and to share our experiences in the United States in ensuring fair, transparent and independent application of the rule of law in the commercial context. 

I understand that some of China’s recent actions relate to judicial independence.  For example, in its recent White Paper on Judicial Reform, the Supreme People’s Court states that the people’s courts shall exercise judicial power independently, pursuant to the provisions of law.   

I hope our discussion lends further weight to this commitment to judicial independence because such independence is undoubtedly a prerequisite to any system based on rule of law.  In the United States, our constitutional separation of powers – among the executive, legislative, and judicial branches – helps ensure judicial independence and further the rule of law.  Indeed, the views our judges express here will be entirely their own, reflecting our separation of powers and our respect for their independence.   

Judicial independence is important, of course, because to have faith in the judicial system, citizens must believe that the outcome in a particular case is based solely on the facts of the case and the impartial application of the law. 

In addition, we are firmly of the belief that courts are most effective when their decision-making is transparent. Transparency allows judges to conduct litigation more efficiently by focusing all parties on the real issues in dispute. A transparent process allows courts to refer to prior decisions and demonstrate consistency.  And that, in turn, promotes predictable outcomes, which allows the business community to plan and invest with confidence.

The public conversation on these matters has been taking place for a long time.  To cite just one example, Justice Kennedy of the U.S. Supreme Court spoke on this subject to the Hong Kong High Court in February 1999.  There, he described 1000 years of evolution of rule of law and of the Anglo-American common law system.  He also discussed how our judges and the private bar are all essential actors in rule of law, just as our Constitution, body of laws, and judicial precedents guide the implementation of rule of law in the United States. 

That is why we are here. We believe that China’s interest in court reform presents an opportunity for senior members of the American and Chinese judiciaries to discuss some of the challenges that judiciaries in the United States, China, and elsewhere confront in turning law into justice in the commercial sphere.  These challenges often come in the form of practical issues:  How can parties obtain the evidence they need to prepare for trial?  What evidence should be admissible in court?  How do courts and parties use expert witnesses?  What can courts do to handle a large number of cases fairly, transparently, and efficiently, when resources are finite?  What sort of personnel do we need to implement the rule of law, and how do we ensure that they are properly trained and feel they are part of a justice-focused mission? Finally, what is the role of precedents in providing guidance to business as to what behavior violates the law?

It is our hope that the next two days will be an open exchange of ideas, insights, and viewpoints among the senior-level U.S. and Chinese judges who are participating.  General Counsel Welsh and I, as well as the other members of the U.S. delegation, look forward to a lively and mutually enlightening discussion.  

Thank you.