COURTS PLAY a fundamental role in the administration of justice, authorised to resolve disputes brought before them and make orders binding on the parties to the dispute. However, it is important to ensure that the extensive powers of courts are subject to reasonable restraints. One such restraint is the principle of non ultra petita.
This column explains the concept of non ultra petita and how it is recognised by public international law and the law in civil law jurisdictions. It further examines how the principle is applied in mainland China, and whether a similar principle is recognised in common law jurisdictions.
The concept of non ultra petita
The Latin phrase non ultra petita comes from the following sentence: ne eat iudex ultra petita partium. The literal meaning is that a judge should not go beyond the requests of the parties. In Chinese, the principle is expressed as bu gao bu li (不告不理), which literally means ‘no complaint, no trial’. The principle has its roots in Roman law and is recognised in both public international law and the law in civil law jurisdictions.
In the area of public international law, the International Court of Justice (ICJ) has described the principle as follows:
“It is the duty of the court not only to reply to the questions as stated in the final submissions of the parties, but also to abstain from deciding points not included in those submissions.”
Accordingly, the jurisdiction of a court is limited to deciding the issues that appear in the submissions made by the parties. The doctrinal basis of this principle is related to the concept of party autonomy; namely, that the parties should have autonomy in framing their claims and the relief sought, while courts should not impose their own views about what the parties should claim or what relief they should seek.
It is also related to the concept of rule of law and the need for courts to resolve disputes in accordance with the law and legal procedure. The principle ensures that judges do not arbitrarily expand the scope of the disputes that are brought before them. It has become a key principle of procedural fairness in European civil law jurisdictions.
This principle has many consequences, including the following:
- The scope of a plaintiff’s claims and a defendant’s defence is determined by the parties themselves, and a court has no right to amend the claims or the defence;
- In general, a court cannot award a remedy that is different from the remedy sought by the plaintiff, or award compensation in excess of the amount of compensation sought by the plaintiff; and
- An appeal court can only hear an appeal if an appeal is filed by the parties, and can only decide matters that are subject to the appeal.
It must be recognised, however, that the principle of non ultra petita should not be applied in an absolute manner. Courts should have discretion to depart from the principle in appropriate circumstances.
An example is where an appeal court discovers an error in law that has been made by the lower court. Another example is where a party applies to a court to amend its pleadings and the court grants the application to ensure a fair and efficient process.
The principle has also been recognised in private international law. The Principles of Transnational Civil Procedure, adopted in 2004 by the American Law Institute and the International Institute for the Unification of Private Law establish standards for adjudication of transnational commercial disputes. They recognise the principle of non ultra petita as follows:
10 Party Initiative and Scope of the Proceeding
10.1 The proceeding should be initiated through the claim or claims of the plaintiff, not by the court acting on its own motion.
10.3 The scope of the proceeding is determined by the claims and defences of the parties in the pleadings, including amendments.
10.4 A party, upon showing good cause, has a right to amend its claims or defences upon notice to other parties, and when doing so does not unreasonably delay the proceeding or otherwise result in injustice.
Mainland China
As noted, in Chinese law the principle of non ultra petita is known as bu gao bu li (不告不理). It is embodied within the following provisions in the Civil Procedure Law:
Article 13
Civil litigation should observe the principle of good faith.
The parties have the right to deal with their respective civil rights and litigation rights within the scope as provided by law.
The second paragraph of article 13 reflects the principle of party autonomy.
The principle is also reflected in article 122(3) of the Civil Procedure law, which provides that one of the conditions for an action in a court is that “there are specific claims, facts and reasons”.
However, in line with the position in international law and civil law jurisdictions, the Civil Procedure Law recognises that courts may depart from the principle in appropriate circumstances. One example is article 209, which provides as follows:
Article 209
Where the president of a people’s court at any level discovers any error in any effective judgment, ruling or consent judgment of the court and deems a retrial necessary, the president shall submit it to the judicial committee for deliberation and decision.
Where the Supreme People’s Court discovers any error in any effective judgment, ruling or consent judgment of a local people’s court at any level, or a people’s court at a higher level discovers any error in any effective judgment, ruling or consent judgment of a people’s court at a lower level, the Supreme People’s Court or the court at a higher level shall have the power to directly retry the case, or specify a people’s court at a lower level to retry the case.
In addition, article 54 of the Civil Procedure Law provides that the plaintiff may relinquish or modify its claims and the defendant may admit or repudiate the plaintiff’s claims, and has the right to file a counterclaim.
Common law jurisdictions
Although the principle of non ultra petita is not expressly recognised in common law jurisdictions, the courts recognise similar principles in practice, including the principle that a court should not award relief that has not been specifically sought by the parties. In addition, the courts impose restrictions on when a party can amend its pleadings.
It should be noted, however, that common law jurisdictions often adopt a more flexible approach than civil law jurisdictions, particularly in determining what remedies should be awarded to the parties. In particular, the discretion of courts to award a remedy consistent with the requirements of justice and fairness is supported by equitable principles. For the difference between “law” and “equity” in common law jurisdictions, see China Business Law Journal volume 3 issue 5: Law or equity?
Andrew Godwin previously practised as a foreign lawyer in Shanghai (1996 – 2006) before returning to his alma mater, Melbourne Law School in Australia, to teach and research law. Andrew is currently Joint Associate Director of the Corporate Law and Financial Regulation Research Program at the Melbourne Centre for Commercial Law and Honorary Associate Director (Commercial law) of the Asian Law Centre. Andrew has acted as a consultant to a broad range of organisations, regulators and governments in Australia and abroad. He served as Special Counsel and Acting General Counsel of the Australian Law Reform Commission between 2020 and 2024.
