S. 3574 — Ending Chinese Lawfare Act

This section sets forth five congressional findings regarding the subordination of the People's Republic of China's judicial system to the Chinese Communist Party, its use as an instrument of state policy to retaliate against foreign officials, governments, businesses, and individuals for protected political speech and sovereign acts, the U.S. interest in safeguarding First Amendment rights and national sovereignty, recognition of foreign judgments as a matter of comity subject to congressional regulation, and the threat posed by politically motivated foreign judgments to democratic governance and judicial integrity.

This section prohibits courts of the United States, its states, territories, or possessions from recognizing, enforcing, or giving effect to any judgment, order, decree, or provisional measure issued by a court of the People's Republic of China (PRC) if the U.S. court determines that the proceeding was (1) initiated, directed, controlled, or materially supported by the Chinese Communist Party (CCP), the PRC government, or any instrumentality thereof; and (2) substantially motivated by retaliation for protected political speech, the lawful exercise of governmental authority, or the exercise of rights secured by the U.S. Constitution or laws. U.S. courts may make such a determination based on the totality of the circumstances, including (1) lack of judicial independence in the originating forum; (2) the plaintiff's identity or affiliation with the CCP or PRC state entities; (3) public statements by Chinese officials relating to the proceeding; (4) the nature of the claims asserted and their relationship to protected speech or sovereign acts; and (5) the absence of due process or neutral adjudication.

This section establishes a fee-shifting requirement under which the prevailing party opposing enforcement of a judgment, order, decree, or provisional measure barred under section 3 is awarded reasonable attorneys’ fees, costs, expenses, and expert fees. (Thus, it deters attempts to seek recognition or enforcement of such barred measures.)

This section establishes original jurisdiction in U.S. district courts over any action seeking recognition or enforcement of a judgment, order, decree, or provisional measure described in section 3(a). It also authorizes removal to the appropriate U.S. district court, by any party, of any such action commenced in state court.

This section authorizes the Attorney General to intervene as of right in any U.S. court proceeding involving the recognition or enforcement of a foreign judgment, order, decree, or provisional measure described in section 3(a). The section further authorizes the Attorney General to submit a statement of interest concerning the political nature of the foreign proceeding, lack of judicial independence, or U.S. foreign policy interests, which the U.S. court must give substantial weight.

This section prohibits recognition or enforcement of judgments described in section 3(a) if such action would (1) penalize, burden, or chill speech or conduct protected by the First Amendment to the U.S. Constitution; or (2) interfere with the lawful exercise of U.S. sovereign authority.

This section authorizes any person, State, or governmental entity that is a party to, subject of, or target of a specified proceeding in a court of the People's Republic of China—and has incurred concrete costs, burdens, or restraints—to bring a civil action in a U.S. district court for declaratory and injunctive relief. For Article III standing, it deems an injury in fact to exist if the plaintiff shows (1) participation in or exposure to such a proceeding and (2) at least one of the following: (A) legal expenses or compliance costs; (B) reputational injury; (C) a credible chilling effect on constitutionally protected speech or conduct; (D) impairment of property, contractual, or financial interests; or (E) a substantial risk of enforcement affecting U.S.-based interests. Available relief includes (1) declaring the foreign judgment or proceeding not recognizable or enforceable in the United States and (2) granting injunctions to prevent recognition or enforcement attempts.

This section provides a rule of construction clarifying that nothing in this Act requires a U.S. court to recognize or enforce any foreign judgment and that the Act establishes only a minimum standard of nonrecognition, without limiting other grounds for refusal under federal or state law.