Justice Zhang Yongjian, Member of Adjudication Committee of the Supreme People’s Court, Chief Judge of the Fourth Civil Division of the Supreme People’s Court
(Speech at the FORUM ON THE BELT AND ROAD LEGAL COOPERATION July 2, 2018)
Good afternoon, moderator, Ladies and Gentlemen,
Please allow me to thank the Ministry of Foreign Affairs and the China Law Society for their invitation and organising this conference. It is my honour to attend the “Belt and Road: Conference on International Collaborations on Rule of Law” and address the topic on international dispute resolution. I would like to take the opportunity to introduce China’s latest practice and innovations in relation to international dispute resolution.
In January 2018, President Xi Jinping, presided the meeting of the Central Overall Deepening Reform Leadership Group, which deliberated on and passed the Opinion concerning the Establishment of the “Belt and Road” International Commercial Dispute Resolution Mechanism and Institutions. (“the Opinion”) The Opinion calls for learning from valuable experience of the current international practice regarding dispute resolution, to establish new international commercial dispute resolution mechanism and institutions, which are internationally acceptable and, meanwhile, adapted to the diversified characteristics and conditions of the “Belt & Road” participating countries, and to resolve cross-border commercial disputes fairly, efficiently and conveniently.
Three measures are highlighted. First, the Supreme People’s Court will establish International Commercial Courts; Secondly, the Supreme People’s Court will lead and procure the establishment of an international commercial experts committee (“the Experts Committee”); Thirdly, a convenient, efficient, and low-costs "one-stop" dispute resolution centre will be established, which effectively integrate diversified mechanisms including litigation, mediation and arbitration.
The new international commercial dispute resolution mechanism has the following characteristics:
First, professionalism. In the wave of economic globalisation, multiple counties have established international commercial courts to meet the need for international commercial disputes resolution. For instance, the United Arab Emirates established the Dubai International Financial Centre in 2004, and Singapore established the Singapore International Commercial Court in 2015. Kazakhstan, the Netherlands and other countries have also passed legislations to establish international commercial courts.
The Opinion provides for the establishment of two international commercial courts in China, the First International Commercial Court in Shenzhen, Guangdong Province, and the Second International Commercial Court in Xi’an, Shaanxi province. This is a key reform by China in respect of international commercial disputes resolution, manifesting China’s stance and ambition to provide a business environment governed by rule of law, enhance legal protections over “Belt and Road” Initiative, and promote international collaboration on rule of law.
The Supreme People's Court has just issued a judicial interpretation to clarify the jurisdiction of the International Commercial Courts, procedural rules, manner of trial, and measures to support the diversified dispute resolution mechanism.
In order to ensure the professionalism and credibility of the court, the Supreme People’s Court has set out strict criteria for the selection of judges, which include rich experience, familiarity of international treaties, conventions, and practice experience in international trades and investments, and also proficiency of using both Chinese and English as working language. The first batch of judges will be selected from the current Supreme People’s Court judges based on their performance and ability.
As permanent adjudicating bodies of the Supreme People’s Court, the International Commercial Courts will better deal with international commercial disputes under the new circumstances in light of the “Belt and Road” initiative by strengthening the advantages in resolving disputes in a professional manner.
Secondly, respecting parties’ autonomy. The Opinion enshrines parties’ autonomy under the new mechanism, which embodies two aspects: - first, parties’ choice as to in what manners their disputes should be resolved is respected. The International Commercial Courts will base its jurisdiction on parties’ agreement on the choice of court. Parties are at liberty to choose mediation or arbitration, which are integrated into the court proceeding of the International Commercial Courts.
Second, parties’ choice as to applicable laws is respected. Parties are free to choose domestic or foreign laws familiar to them upon agreement, which may increase the predictability of the proceedings. The International Commercial Courts will only hear trade or investment disputes between equal business parties, not trade or investment disputes between sovereignties nor investment disputes between investors and a host country. Those two types of disputes will be resolved in accordance with the existing international mechanisms. The International Commercial Courts are, therefore, able to broaden channels for parties to resolve the disputes without interfering with existing international dispute resolution mechanisms and become valuable supplement to the current regimes.
Thirdly, diversity. The Supreme People's Court has been committed to supporting the development of the diversified dispute resolution mechanisms, including arbitration and mediation, etc. In the field of international commercial arbitration, Chinese courts have, according to Chinese Civil Procedure Law, Arbitration Law and relevant interpretations, properly handled a large number of judicial review cases concerning arbitration and recognised and enforced timely foreign arbitral awards pursuant to the New York Convention, during which the courts also gained rich experience in that respect.
The Supreme People’s Court will establish an Experts Committee and will promote the new international commercial dispute resolution mechanism together with other selected international dispute resolution institutions, arbitration institutions and international commercial courts.
Under the mechanism, the International Commercial Courts will lend their support to other international commercial arbitration institutions in providing interim measures, including injunctions or preservation of assets or evidence, pursuant to applicable laws, and enforcing arbitral awards upon expeditious and convenient judicial review proceedings.
The International Commercial Courts will appreciate the functions of the international commercial experts and international commercial mediation institutions in the exercise of carrying out mediations, and will enforce agreements under international commercial mediation by way of endorsing the mediation agreement or issuing a judgement to that effect, so that a convenient, expeditious and low-costs "one-stop" dispute resolution centre could be established, which integrates litigation, mediation and arbitration effectively.
Fourthly, internationality and inclusiveness. While advocating for being open and inclusive, the Opinion also initiates the system of an international commercial experts committee and encourages experts from different countries and regions to exert their expertise, advantages and potentials in ascertaining foreign laws and resolving disputes, in order to find the best solution to resolve disputes.
The Supreme People’s Court will invite legal experts with international reputation and practice experience, who are well versed in both international law and domestic laws in their respective jurisdictions, to join and form the Experts Committee.
The members of the Experts Committee may provide legal opinions in relation to the ascertainment of foreign laws relevant to cases heard by the courts. Parties will also be given the rights to choose from the experts for the purpose of commencing mediation. The feature of internationalisation and the spirit of “planning together, building together and benefiting together” will therefore be reflected in such mechanism.
The Supreme People’s Court will also set up a pool of legal talents from “Belt and Road” participating countries, bring together top-notch resources for resolving disputes, and encourage legal scholars to conduct their researches on international commercial dispute resolution and to produce high quality results.
Five, convenience. In recent years, the Supreme People's Court has made remarkable achievements in utilising information technology into the proceedings of trial and enforcement and the management of judiciary. By the end of 2016, 3,520 courts, 9,238 people's tribunals and 39 maritime court dispatched tribunals had all been connected to the court's intranet. In 2014, the Supreme People's Court established a big-data management and service platform. Courts at all levels have widely set up litigation service centres and online litigation service platforms etc., to create intelligent court system of “Internet + Litigation Service”.
We will, together with relevant departments, establish and perfect as soon as possible online legal databases and foreign law ascertainment centres for international treaties, international customs, and domestic laws of the “Belt and Road” participating counties, in order to provide the judges with intelligent service and to ensure the accuracy and consistency of application of laws. We will also make full use of the experience of intelligent courts and set up website for the International Commercial Courts and e-litigation service platform to support online registration of cases, litigation fee processing, perusal of papers, evidence exchange and other comprehensive court services, with the purpose of improving the capacity of the International Commercial Courts and providing services convenient to the parties.
Ladies and gentlemen,
The establishment of a fair, efficient and convenient international commercial dispute resolution mechanism is of great significance for and far-reaching impact on the “Belt and Road” initiative. It will also lead to the establishment of stable, fair, transparent and predictable business environment based on the rule of law, and deepen judicial cooperation between China and other jurisdictions. I sincerely hope that the experts and scholars at this Conference will provide your valuable suggestions and participate in the construction of the international commercial dispute mechanism, together, to promote economic globalization towards more open, inclusive, universal, balanced and win-win development.
*The original text is Chinese and has been translated into English for reference only. If there is any inconsistency or ambiguity between the Chinese version and the English version, the Chinese version shall prevail.