The China International Commercial Court (CICC) in 2018
By | Liu Tingmei
In the principle of "achieving shared growth through discussion and collaboration", the First International Commercial Court and the Second International Commercial Court of the Supreme People's Court of China (SPC) were established and put into operation on June 29, 2018. They began court sessions on May 29 and 31, 2019 respectively, once again attracting global attention. Over the past year, the China International Commercial Court (CICC) of SPC has thrived.
Operate from a strategically advantageous position
"Chinese solution" for commercial disputes
Under the backdrop of the deepening development of the Belt and Road Initiative, foreign-related cases are not only the window of China's judicial system, but also the barometer of China's open economic development. With the continuous advancement of economic globalization, exchanges between countries are becoming more frequent, and there are more foreign-related commercial disputes. Reportedly, from 2013 to 2017, the People's Courts at various levels had tried and concluded more than 200,000 foreign-related civil and commercial cases, which more than doubled in past 5 years. As a new platform for resolving international commercial disputes, the CICC has shouldered great responsibility ever since its establishment.
On January 23, 2018, President Xi Jinping held the session of Central Leading Group for Deepening Overall Reform, examining and approving the Opinion Concerning the Establishment of the Belt and Road International Commercial Dispute Resolution Mechanism and Institutions (hereinafter referred to as the "Opinion"), which clearly stated that China will establish an international commercial court, i.e. the CICC.
To ensure the principled establishment of the CICC, Zhou Qiang, President of SPC held the plenary meeting of the Adjudication Committee of SPC on June 25, 2018, examining the Provisions of the Supreme People's Court on Several Issues Regarding the Establishment of the International Commercial Court (hereinafter referred to as the "Provisions").
On June 29, 2018, the First International Commercial Court and the Second International Commercial Court of the SPC were inaugurated in Shenzhen and Xi'an respectively, and officially started to operate.
Once the cornerstone was set, further construction followed.
On August 24, 2018, the SPC issued the Decision on the Establishment of International Commercial Expert Committee. 31 experts from 14 countries and regions strived together to establish a robust mechanism for resolving international commercial disputes.
On December 5, 2018, the SPC convened a symposium on "Diversified Resolution Mechanism for International Commercial Disputes", and officially promulgated three regulatory documents: Notice of the Supreme People's Court on Inclusion of the First Group of International Commercial Arbitration and Mediation Institutions in the "One-stop" Diversified International Commercial Dispute Resolution Mechanism (hereinafter referred to as "Notice"), Procedure Rules for the China International Commercial Court of the Supreme People's Court (For Trial Implementation) (hereinafter referred to as "Trial Procedure Rules") and Working Rules of the International Commercial Expert Committee of the Supreme People's Court (For Trial Implementation).
According to the Notice, several arbitration and mediation institutions are included in the first batch of "one-stop" mechanism for resolving international commercial disputes, including five international commercial arbitration institutions, namely China International Economic and Trade Arbitration Commission, Shenzhen Court of International Arbitration, Shanghai International Economic and Trade Arbitration Commission, Beijing Arbitration Commission and China Maritime Arbitration Commission, as well as two international commercial mediation institutions including China Council for the Promotion of International Trade Mediation Center and Shanghai Commercial Mediation Center. These provide a clear institutional safeguard for the establishment of a "one-stop" mechanism for resolving international commercial disputes.
More In-depth Work
Another "experimental field" of the rule of law
"It is manifested from last year's work that each step, from the CICC's establishment to its actual operation, was taken seriously and solidly to achieve steady advancement. The CICC shall provide high-quality and practical legal services and safeguards for the Belt and Road Initiative," said Luo Dongchuan, Vice President of the SPC in an interview.
Establishment of the CICC opened up yet another "experimental field" for the reform of the judicial system in the new era. In this "experimental field", the CICC continues to work on judicial reform, explore new ideas for international commercial dispute resolution, and implement new measures for international commercial dispute resolution.
In accordance with Article 11 of the Provisions, the CICC is committed to supporting the development and improvement of diversified dispute resolution mechanisms (including arbitration, mediation and litigation) by establishing a "three-in-one", one-stop platform for resolving international commercial disputes. "In other international commercial courts, there is only one way to resolve the dispute: litigation; whereas parties enter the CICC, they can choose to resolve the dispute through mediation, arbitration or litigation." Shen Sibao, Expert Member of the International Commercial Expert Committee and Director of Institute of International Business Law at University of International Business and Economics, added that the one-stop dispute resolution mechanism of mediation, arbitration and litigation reflected the unique Chinese wisdom of the CICC.
The Opinion advocates the system of international commercial expert committee for the first time, and welcomes the participation of legal experts from different countries and regions within the "Belt and Road" in seeking the best option for dispute resolution by applying their respective strengths in foreign law ascertainment and dispute resolution, giving full play to their advantages and potentials.
Luo Dongchuan remarked, "Internationalization is the prominent characteristic of the CICC, which pioneered the system of international commercial expert committee composed of legal experts from all over the world who specialize in international law and their own domestic laws. This joint participation in international commercial dispute resolution fully embodies the principle of ‘achieving shared growth through discussion and collaboration'." Luo hopes that the joint acumen of legal experts from all countries will maximize the professionalization, internationalization and neutralization in dispute resolution, providing Chinese and foreign parties with more options for dispute resolution.
Ascertainment of foreign laws has always been a difficult problem that may undermine trials of cases involving foreign elements. The Provisions listed a series of methods of such ascertainment, and provided open regulations for other reasonable methods (such as ascertainment via internet), thus promoting flexibility and feasibility, and ensuring that ascertainment of foreign laws can be done more quickly and conveniently, which increases trial efficiency.
In addition, the CICC has carried out fruitful explorations on issues of jurisdiction, evidence and reasoning of judgments in relation to international commercial cases. This was an innovative breakthrough in multiple institutions and yielded a pioneering effect as a role model in the judicial field.
Fast but steady
Open hearing of the CICC's first case
On April 29, 2019, the First International Commercial Court of SPC held a pre-trial conference concerning a product liability dispute between the plaintiff Guangdong Bencao Medicine Group Co., Ltd. and the defendant Bruschettini S.R.L. in accordance with Trial Procedure Rules. This was the CICC's first pre-trial conference.
The Collegiate Bench hearing the above case consists of 5 CICC judges: Zhang Yongjian, Gao Xiaoli, Xi Xiangyang, Sun Xiangzhuang and Ding Guangyu. Zhang Yongjian, head of the First International Commercial Court and judge of the CICC, served as the presiding judge and presided over the pre-trial conference with Xi Xiangyang, member of the Collegiate Bench and judge of the CICC.
The two parties failed to reach an agreement on mediation; a public hearing was therefore held on May 31, 2019 by the First International Commercial Court.
On May 15, 2019, the Second International Commercial Court of SPC held pre-trial conferences for two cases concerning dispute on shareholder qualification conformation dispute: One was among the plaintiff Ruoychai International Group Co., Ltd. and the defendant Red Bull Vitamin Drink Co., Ltd. and the third party Red Bull Vitamin Drink (Thailand) Co., Ltd.; another was among the plaintiff Ruoychai International Group Co., Ltd. and the defendant Red Bull Vitamin Drink Co., Ltd. and third party Inter-Biopharm Holding Limited. Wang Shumei, president of the Fourth Civil Division of SPC and judge of the CICC, served as the presiding judge.
Reportedly, the plaintiff originally commenced proceedings in the People's Court of Huairou District, Beijing on December 23, 2016. After the case was filed on January 4, 2017, two hearings were held on November 21, 2018 and February 25, 2019.
"Given the fact that the Second International Commercial Court of the Supreme People's Court has already accepted a series of cases regarding Red Bull, and trial of this case will help other cases to be dealt with in a timely manner. Following CICC's principles of fairness, efficiency, convenience and cost-effectiveness in dispute resolution, the SPC decided that this case should be heard by the CICC on May 5, 2019 with its first instance judgment being final'," Wang Shumei said.
On May 27, 2019, the Collegiate Bench reconvened a pre-trial conference to arrange for evidence exchange among the three parties and to determine relevant procedural matters.
On May 29, 2019, the Second International Commercial Court heard its very first case in an open hearing for a shareholder qualification conformation case among the plaintiff Ruoychai International Group Co., Ltd. and the defendant Red Bull Vitamin Drink Co., Ltd. and the third party Inter-Biopharm Holding Limited. The case was heard by a Collegiate Bench composed of CICC judges Wang Shumei, Sun Xiangzhuang, Zhang Xuemei, Ding Guangyu and Guo Zaiyu.
These two open hearings received wide attention from the international community. NPC deputies, CPPCC members, foreign diplomatic envoys in China, special supervisors of the SPC, expert members of the International Commercial Expert Committee, representatives from international commercial arbitration and mediation institutions, as well as representatives of teachers and students from universities sat in as audience.
Shan Wenhua, Expert Member of the International Commercial Expert Committee of SPC, and Dean of the School of Law of Xi'an Jiaotong University, was invited to observe the trial. He said, "this trial will provide a blueprint for the resolution of international commercial disputes of the CICC. This is a very fruitful and rewarding attempt in respect of establishing a fair, efficient and cost-effective mechanism for resolving international commercial disputes (including those involving the Belt and Road Initiative), providing fair protection for the parties (whether Chinese or foreign), and creating a stable, fair, transparent and predictable business environment with the rule of law. "
Reportedly, apart from these two open hearing cases, the CICC has already accepted a number of cases involving parties from Japan, Italy, Thailand and other countries. For some cases, pre-trial conferences, inquiries and other procedures have already taken place.
"We will resolve these cases in a fair and efficient manner in accordance with the law. With fairness and efficiency in respect of both process and results, we will present the image of Chinese courts on the international stage, enhance judicial credibility, and effectively provide services and safeguards for the construction of the Belt and Road Initiative", remarked Luo Dongchuan.
On May 22, 2019, the Sino-French Symposium on International Commercial Trial was held in Beijing. Luo Dongchuan, Vice President of SPC, attended the meeting and delivered a speech.
Breaking the waves
Opening up a new world of judicial exchange
In order to further promote mutual exchange and appraisal, and to deliver Chinese voices, the CICC actively carried out international exchanges.
The 2018 China Arbitration Summit ("the Summit"), jointly organized by SPC, the United Nations Commission on International Trade Law (UNCITRAL), China Council for the Promotion of International Trade (CCPIT) and the China International Economic and Trade Arbitration Commission (CIETAC), was inaugurated on September 17, 2018. Luo Dongchuan, Vice President of SPC, attended the Summit and delivered a keynote speech, wherein Luo introduced some new developments of the SPC in promoting judicial review of arbitration in China. Many honored guests attending the Summit made comments on the CICC.
Since September 2001, Luo Dongchuan has met respectively with Anna Joubin-Bret, Secretary of UNCITRAL, Liu Xiaohong, Vice Chairman of ICC Commission on Arbitration and ADR, and Emmanuel Gaillard, President of Association for International Arbitration. Luo introduced to them China's plan of establishing the CICC, forming the International Commercial Expert Committee, and striving to build a fair and just, open and inclusive, and transparent and convenient mechanism for resolving international commercial disputes.
Emanuel Gaillard spoke highly of the efforts of the Chinese courts in international commercial dispute resolution, and expressed his honor to be appointed as one of the first committee members of the International Commercial Expert Committee of the SPC.
On May 22, 2019, the Sino-French Symposium on International Commercial Trial was held in Beijing. Representatives of the two countries introduced their respective commercial courts and had discussions on case management, recognition and enforcement of judgments in foreign countries, and challenges faced by judges of international commercial courts. Everything is ready! As a new part of the beautiful rule-of-law landscape in the world, we look forward to the new achievements of the CICC.
Think Tank for International Commercial Dispute Resolution
By | LIU Tingmei and HE Danying
On August 26, 2018, the Supreme People's Court (SPC) established the International Commercial Expert Committee. 31 experts from 14 countries including China, Russia, the United States, the United Kingdom, France, Germany, South Korea and Australia and regions including Hong Kong, Macao and Taiwan have been entrusted by the China International Commercial Court (CICC) to provide mediation and other services for parties to resolve international commercial disputes, to offer advice on special legal issues involved in international commercial disputes, and to provide the SPC with opinions and suggestions for its formulation of relevant judicial interpretations and judicial policies. This unique and innovative system embodies the CICC's principle of "achieving shared growth through discussion and collaboration".
What have been the major tasks of Expert Committee Members since the establishment of the Expert Committee? What is the significance of this special job? Five Expert Committee Members have been interviewed about their insights and feelings of their work since their inauguration, including: Huang Jin, Professor of Law from China University of Political Science and Law and Vice President of China Law Society; Zhang Yuejiao, former Chief Justice of the Appellate Body of the World Trade Organization; Shan Wenhua, Dean of the School of Law and Dean of the School of International Education of Xi'an Jiaotong University; Shi Jingxia, Dean of the School of Law of University of International Business and Economics; and Tao Jingzhou, Managing Partner of Dechert LLP responsible for developing the Asia Practice and member of the International Advisory Board of the Hong Kong International Arbitration Centre.
Promoting the development of international commercial dispute resolution
Since the establishment of the CICC last year, the CICC has developed rules and regulations, innovated the mechanism for resolving international commercial disputes, heard international commercial cases, served and safeguarded national development in respect of "reform and opening up", protected the legitimate rights and interests of Chinese and foreign parties on an equal footing, and created a fair and just business environment. With a good start and such significant achievements, the future is promising.
The world is undergoing profound changes which were unseen in a century. The world's economic growth is lacking momentum. The gap between the rich and the poor keeps widening and regional hot-spot issues are on the rise. Terrorism, trade protectionism, cybersecurity, climate change and other threats continue to spread, causing tremendous impact on the existing international order. But we must believe that peace and development remain the themes of our era. The Chinese dream of building a great modern socialist country and realizing the great rejuvenation of the Chinese nation cannot be realized without a peaceful international environment and a stable international order. China must always adhere to the path of peaceful development and promote the development of a community of shared future for human being. In accordance with the Charter of the United Nations and the accepted principles of international law, all countries must resolve international disputes through peaceful means and prohibit the threat or use of force. Therefore, applying the rule of law in both thinking and action and resolving international problems, conflicts and disputes via mediation, arbitration and litigation are the corollary of China's insistence on opening-up and following the path of peaceful development.
The SPC implemented the Opinion Concerning the Establishment of the Belt and Road International Commercial Dispute Resolution Mechanism and Institutions (hereinafter referred to as the "Opinion"), established the CICC, set up the Expert Committee, and developed a "3-in-1" mechanism for resolving international commercial disputes integrating mediation, arbitration and litigation. The mechanism is a major innovative reform that coordinates domestic and international landscapes, deepens the reform and opening up, adheres to the principle of the international law of peaceful settlement of international commercial disputes, and promotes the development of a community of shared future for human being. It will promote China to become a builder of world peace, a contributor to global development, and a defender of the international order.
The international commercial dispute resolution mechanism established by the CICC, in fact, integrates the dispute resolution mechanisms including mediation, arbitration, and litigation into one-stop platform so as to meet parties' diversified needs in dispute resolution. According to the design, the CICC can try international commercial cases independently. Alternatively, based on parties' autonomy, the CICC can entrust Expert Committee members or international commercial mediation institutions to mediate the dispute, to make good use of mediation in resolving international commercial disputes. The CICC also encourages domestic arbitration institutions that meet certain requirements and have a good reputation in the world to carry out international commercial arbitration for disputes involving "Belt and Road" constructions. The court will provide judicial support such as preservation of assets and evidence. Obviously, this is a diversified dispute resolution mechanism that centers on the CICC and supports parties to adopt diversified dispute resolution mechanism to solve disputes, which realizes the organic convergence and functional complementation of mediation, arbitration and litigation. The establishment of an integrated and diversified mechanism of dispute resolution is not only an exploration of judicial reforms in China, but also an innovation in the international commercial dispute resolution system.
The Expert Committee is an important part, a crucial operational link, and a major institutional innovation of the SPC's integrated international commercial dispute resolution mechanism. The Expert Committee members come from different legal systems, countries, or regions. They are experts and scholars who are knowledgeable in international trade, investment law and other fields and have recognized influence in the judicial or arbitration practices. They demonstrate the professionalism, neutrality, representativeness and internationalism of the Expert Committee. With the effective operation of the Expert Committee, the integrated international commercial dispute resolution mechanism will play an increasingly important role. I look forward to advancement in several aspects in the future. First, improving rules and regulations of the CICC through legislation or judicial interpretation so as to ensure its fair and effective operation. Second, further optimizing institutional mechanism of the CICC by establishing some cross-provincial international commercial courts in places with relatively more foreign-related cases and making them the court of first instance in international commercial cases, so that the international commercial disputes can be dealt with in an appellate court. Third, further strengthening the building of foreign-related trial teams through internal training and external introduction so as to cope with the growing demand for foreign-related trials and the increasingly complex foreign-related trial challenges. Fourth, enabling the Expert Committee to play an active role in case consultation, mediation, arbitration, facilitation and international exchanges.
Settling international commercial disputes in a just, fair and effective manner
Since the Convention on the Recognition and Enforcement of Foreign Arbitral Award (hereinafter referred to as the "New York Convention") issued by the United Nations Commission on International Trade Law was put into force in 1958, global commercial arbitration has developed rapidly. Arbitration is widely adopted by parties in international commercial contracts because of its flexibility, low costs and finality. Another advantage is that international commercial arbitration awards are recognizable and enforceable in signatories of the New York Convention. In recent years, problems of international commercial arbitration such as long processing time, high costs, and low proportion of arbitrators from developing countries have been widely criticized.
The establishment of the CICC can promote cross-border trade through proper resolution of commercial disputes. It can also promote the professionalization of China's international commercial trials and promote the development of China's international civil litigation system. The CICC has the advantages of international commercial arbitration such as flexibility, finality, and cost-effecitveness. It also shortens the processing time and enhances transparency, which responding to international concerns about international arbitration issues and improving international influence and credibility of the CICC.
The establishment of the Expert Committee is China's innovation and reflects China's openness and internationalization. It is manifested from the list of the first batch of Expert Members appointed by the CICC that these experts are internationally recognized in commercial law and arbitration or mediation, and have decades of experience in resolving international disputes. Most of the first batch of Expert Committee Members are arbitrators from arbitral institutions designated by the CICC. Appointed by the parties or by the Arbitration Commission designated by the CICC, the Expert Committee Members are fully qualified for mediation or arbitration. Independence, impartiality, professionalism and dedication are the key to the Expert Committee's credibility. Therefore, experts should avoid direct or indirect conflicts of interest and should constantly improve the individual information disclosure mechanism and code of conduct.
Legal and practical issues such as the CICC's rules, jurisdiction, procedures, application of law, damages calculation, enforcement of judgments, and coordination between mediation, arbitration and litigation require more publicity and discussions. The Expert Committee can organize academic exchange activities, introduce the latest laws and practices of specific countries, or regularly organize international seminars to study the reform of international arbitration, so as to give full play to the role of international commercial experts in international commercial dispute resolution. It is also conducive to the training of personnel for foreign-related commercial disputes in China.
As the Chinese proverb goes, well begun is half done. Since the establishment of the CICC and the Expert Committee, a lot of fruitful work has been carried out in system formulation, personnel selection, regulation establishment, and domestic and international legal promotion. The selection of international commercial experts has had a positive impact on the international community. Looking ahead, we still have a long way to go. As a member of the Expert Committee, I will bear in mind our original intentions and make progress, make contribution to the just, fair and efficient resolution of international commercial disputes, and provide Chinese wisdom for the international rule of law.
Chinese solutions for global commercial dispute resolution
June 29, 2019 marked the first anniversary of the CICC. Currently, the CICC has not only established major supporting rules and regulations but also tried the first batch of international commercial cases, which could be considered as a great progress with fruitful result and creativity. In synchronization with our country's development, the CICC is moving rapidly and steadily towards the center of the world's international commercial dispute resolution stage. Looking ahead, the CICC needs to further clarify the scope of jurisdiction, give full play to the Expert Committee, improve the "3-in-1 integrated solution" mechanism, and provide more comprehensive and attractive Chinese solutions for global commercial dispute resolution.
It is difficult to establish a brand new high-end international dispute resolution mechanism. It is more difficult to create such a mechanism in China, a large country that plays an important role in the world. The CICC has not only established its regulations and institutional framework from scratch within one year, but also tried the first batch of cases openly, which was rapid compared with other international commercial courts.
The first step is always the hardest. The CICC overcame various difficulties and had great achievements in the first year, which was a wonderful start. Looking ahead, in order to increase the CICC's effectiveness, I propose the following:
First, further clarify the scope of jurisdiction, so as to effectively exercise jurisdiction over purely international cases. On the one hand, the "internationality" standard as to when the CICC will assume jurisdiction requires clarification and specification; the connotation and extension of "involving foreign elements" in foreign-related civil litigation must be distinguished. On the other hand, the "substantial connection" requirement in jurisdiction agreement also requires change, so as to ensure that the CICC may accept purely "international" commercial cases even where there is no substantial connection with China.
Second, give full play to the Expert Committee Members and enable them to participate more in arbitration and mediation of commercial disputes. The Expert Committee is the most significant innovation of the CICC and has attracted the greatest attention in international communities of dispute resolution. At present, this mechanism plays a limited role; its specified operational function is limited to pre-trial mediation only. Bearing in mind the 20-day time limit for pre-trial mediation, the Expert Committee's actual space for playing a role is even more limited. In the future, we need to seriously consider how to make better use of the Expert Committee in a more comprehensive and substantive manner so that Expert Members can carry out independent arbitration and mediation activities more frequently and more directly. In this way, we can give full play to their expertise and international influence in dispute resolution, so as to serve the CICC more effectively.
Third, improve the coordination among different modes and create a large integrated platform for international commercial dispute resolution. The CICC, with its "one-stop" dispute resolution mechanism, should be a platform for international commercial dispute resolution that puts together the best resources in arbitration, mediation and litigation. Within the platform, parties can switch freely between different dispute resolution organizations and modes, realizing smooth transitions. Its core is to serve the parties to the dispute and strive to provide the best dispute resolution services at the lowest costs. To design such a large and integrated platform, two factors must be considered: First, the switching mechanism between different dispute resolution methods within the platform. Second, the corresponding charge and its circulation and distribution mechanism. When the coordination mechanisms and details are specified and parties involved work in a united and cooperative way, we can make the best use of the CICC and its "one-stop" platform in facilitating or even leading the development of the Belt and Road Initiative and the world's commercial dispute resolution in the near future.
The CICC's mechanism has room for improvement
The SPC pointed out in Provisions of the Supreme People's Court on Several Issues Regarding the Establishment of the International Commercial Court (hereinafter referred to as the "Provisions") that, in the CICC, parties' jurisdiction agreement must meet the requirement that the court chosen by the agreement must bear a substantial connection with the country, which is different from the jurisdiction requirements of other countries' international commercial courts. From the development of international commercial courts, when parties from different countries wish to appoint a neutral third-party country to resolve the dispute, they are most likely to choose the international commercial courts. Regarding the CICC, in the future, it should also consider to abandon the substantial connection requirement of jurisdiction agreement. Yet, for the sake of fairness, the court can be given the right to refuse jurisdiction.
In respect of the facilitation of litigation procedure, it is necessary to keep an eye on and make improvement in the following aspects.
First, autonomy and legitimacy issues in respect of procedure. The party's autonomy in the CICC is mainly reflected by allowing parties' jurisdiction agreement and prioritizing parties' choice of law. In the future, consideration may be given to allowing parties to apply for the appointment of specific judges and allowing parties to apply for the appointment of Expert Members to ascertain foreign law, etc.
Second, striking a balance between procedural fairness and efficiency. The CICC has made innovations in respect of evidence. For example, extraterritorial evidence is not subject to the mandatory requirement of notarization. Also, with the consent of the other party, submission of English documentary evidence no longer requires submitting the Chinese translation thereof. The CICC adopts a "first instance being final" system; to ensure the fairness, it is necessary to set strict criteria for the selection of judges and the composition of the Collegiate Bench, and to clarify that the minority opinions of the Collegiate Bench can be stated in the judgment. This will yield positive impact on enhancing the meticulous reasoning in judgments and improving the quality of adjudication.
Third, openness and privacy of proceedings. Trials of the CICC should sufficiently comply with the principle of judicial openness. At other stages except for mediation, proceedings should be done openly, unless the case involved state secrets, personal privacy or other situations stipulated by law.
"One-stop" dispute resolution mechanism is the CICC's main characteristic
On January 23, 2018, the Central Leading Group for Deepening Overall Reform has reviewed and approved the guiding Opinions, clearly stating that we must fully consider the diversity of participants in the Belt and Road Initiative, the complexity of the types of disputes, and the differences in respect of legislation, judiciary, and rule-of-law culture among different countries. Safeguards of dispute resolution services with smooth transition among litigation, arbitration and mediation must be developed proactively. Different, diversified needs of both Chinese and foreign parties as to dispute resolution must be satisfied.
Providing a convenient, efficient and cost-effective "one-stop" dispute resolution mechanism is one of the main characteristics of the CICC which distinguishes itself from other countries' international commercial courts. Articles 11 to 17 of the Provisions, officially entered in force since July 1, 2018, provided detailed rules as to how to coordinate mediation, arbitration and litigation, and how the parties can benefit from the "one-stop" dispute resolution platform.
Regarding the coordination between mediation and litigation, parties who choose mediation to resolve the dispute can, after successful mediation, directly request the CICC to make a judgment, thereby giving rise to an effective judgment. Parties who have already filed a lawsuit in the CICC can also transfer the dispute to the Expert Committee or an international commercial mediation organization for mediation.
Regarding the coordination between arbitration and litigation, parties who choose arbitration to resolve dispute can apply to the CICC for preservation of evidence, assets and behavior before or after the proceedings begins. One can directly apply to the CICC for revocation or enforcement of an arbitral award made by an international commercial arbitral organization.
Currently, the international commercial mediation institutions and international commercial arbitration institutions listed in the Provisions consist of organizations specified in the Notice of the Supreme People's Court on Inclusion of the First Group of International Commercial Arbitration and Mediation Institutions in the "One-stop" Diversified International Commercial Dispute Resolution Mechanism, namely: China International Economic and Trade Arbitration Commission (CIETAC), Shanghai International Economic and Trade Arbitration Commission (SHIAC), Shenzhen Court of International Arbitration (SCIA), Beijing Arbitration Commission (BAC), China Maritime Arbitration Commission (CMAC), China Council for the Promotion of International Trade Mediation Center, and Shanghai Commercial Mediation Center (SCMC). These two international commercial mediation institutions and five international commercial arbitration institutions mentioned above have more foreign-related businesses and a larger number of cases, and have a relatively mature development. Therefore, they have been included in the first batch of arbitration and mediation organizations in the "One-stop" Diversified International Commercial Dispute Resolution Mechanism. As time progresses, it is believed that more organizations will be included in the list of the "one-stop" dispute resolution mechanism platform.
The "one-stop" dispute resolution mechanism not only provides parties to international commercial disputes with convenience and multiple choices with lower costs; it also provides a "direct train" to the SPC, crossing the traditional territorial jurisdiction limit and level jurisdiction limit and avoiding potential local protectionism. It helps maintain the quality and consistency of international commercial dispute resolution. It is worth noting that, being consistent with Chinese traditional culture, the "one-stop" dispute resolution mechanism also encourages parties to first consider mediation in resolving disputes before resorting to litigation or arbitration.
Working Highlights of the Judges of the China International Commercial Court (CICC)
By | Liu Tingmei
Scene of the first hearing of the First International Commercial Court
Scene of the first hearing of the Second International Commercial Court
"It seems that they were always holding an English book."
"It is common for Collegiate Bench's meetings to last until 10 p.m. or later."
"Given more than 60 evidential documents, they were so focused that they were nearly on the verge of selflessness."
During the interview, Ding Guangyu, Judge of the CICC of the SPC, made the three statements above to describe his colleagues in work. Throughout the year, CICC judges have demonstrated in their daily work their professionalism and dedication to upholding justice.
Expert in resolving international commercial disputes
"As a judge at the CICC, our mission is to hear international commercial cases in a just and efficient manner. As a liaison of the Second International Commercial Court, I welcome consultations from the parties and keep contact with international commercial arbitration and mediation institutions, manage cases at hand and promote the CICC, always being there to serve the CICC. In order to increase professionalism among judges, each CICC judge must also hear domestics cases. As the Presiding Judge of the Sixth Circuit Court of the SPC, I have to deal with some 100 cases every year which in turn strengthens my judicial capacity and experience." Ding Guangyu felt very proud yet also challenging when introducing his "multi-roles" to the journalist.
Since its founding last year, under the leadership of the SPC, the CICC's influence has escalated, along with increasing attentions from the international community and more consultations from parties. "The most intuitive impression is that Vice President Luo Dongchuan, committed to the construction and improvement of the CICC, has relentlessly conducted research, made various arrangements, personally organized, drawn up and improved a range of judicial interpretations and regulations, and established the International Commercial Expert Committee. Vice President Zhang Shuyuan, together with other leaders from the Sixth Circuit Court of the SPC, has made great contributions to the construction and coordination of the CICC. Professional judges, high-tech courts and offices for committee experts are popping up in a short time. In light of these foundations, there is an increasing number of consulting parties and visiting agencies. Many parties said they are ready to choose the CICC to have jurisdiction over their case and to commence proceedings here." Ding Guangyu said.
According to the information provided, the First International Commercial Court and the Second International Commercial Court of the SPC have established windows for consultation and registration at the service halls of the First Circuit Court and the Sixth Circuit Court of the SPC to make procedures more convenient for parties. The CICC's official website has published liaisons' telephone and email. "International commercial cases are demanding on efficiency and confidentiality, thus mediation is relatively more feasible," said Xi Xiangyang, Presiding Judge of First International Commercial Court. Therefore, when a case commences, the judge should first ask for parties' intention as to whether they wish to mediate.
After entering litigation procedure, one of the fundamental work of judges is "perusal of papers". Since international commercial cases are first-instance cases, immense quantities of materials and evidence are often involved, so that judges often have to work overnight.
Piles of complicated cases were unraveled one by one by the professional judges of the CICC, identifying the core issues in dispute and finding the truth of the case.
From April to May 2019, the First and Second International Commercial Court held pre-trial meetings where related issues were discussed and ample preparatory work was carried out.
"To implement the principle of efficiency and convenience, the Collegiate Bench made innovative changes in relation to trial procedures. The first pre-trial meeting was to discuss proceeding issues and evidential materials. The second pre-trial meeting was to confirm admitted and undisputed facts so as to condense the focus in trial. Trial proceedings of international commercial cases become more streamlined and efficient," said Wang Shumei, President of the Fourth Civil Division of the SPC, Judge of the CICC and Presiding Judge of the first case.
As the court clerk handling the Second International Commercial Court's very first case, Chen Xin'er was deeply impressed by the dedication, excellence and case management skills of the Collegiate Bench judges.
At 3 p.m. on May 29, as presiding judge Wang Shumei announced "Trial begins!", the 4-hour trial commenced wherein the parties fruitfully debated on 5 issues in dispute.
"This is a first-instance international commercial case of great significance and influence. Large interests were at stake in this case with entwined and complicated facts, attracting widespread attention from the public. The Second International Commercial Court therefore accepted five cases including this case. The successful settlement of this case will lay a good foundation for subsequent cases of the same kind." as Wang Shumei claimed.
From providing trial facilities to securing its live streaming, and detecting potential risks, He Li, Head of the Second International Commercial Court, together with her team members, provided sound assistance for the trial and held a symposium after the trial to discuss with and solicit opinions from NPC representatives and CPPCC Members present at the trial venue.
"Pioneer" with a global perspective
After work, CICC judges were also busy with learning about the trend of commercial rules, enhancing professionalism, or improving proficiency in foreign languages.
According to the Opinion Concerning the Establishment of the Belt and Road International Commercial Dispute Resolution Mechanism and Institutions, the CICC respects the rights of the parties from countries engaged in the "Belt and Road" to choose agreed dispute resolution methods and familiar national laws or third-country laws, proactively applies international treaties and international customs, and protects the legitimate rights and interests of all parties in a fair manner.
This regulation shows full respect to parties' autonomy while requiring a higher professional standard for the CICC judges. If parties choose applicable foreign laws or international customs, judges must have knowledge of related foreign legal systems.
"Nowadays, many countries are establishing or planning to establish international commercial courts. The CICC has gradually become an integral part of the international judicial system. The cases we hear, laws we apply and decisions we make are of close attention," said Zhang Yongjian, Head of the First International Commercial Court.
As Zhang Yongjian put it, all his colleagues are highly concerned about the latest judgments abroad and are keeping an eye on frontier topics of rule of law in the world. Everyone is trying to broaden international judicial vision.
In accordance with the Provisions of the Supreme People's Court on Several Issues Regarding the Establishment of International Commercial Court, CICC judges are chosen by the SPC from senior judges who possess rich experience in judicial work, are familiar with international treaties, international customs and international trade and investment practices, as well as have a good command of Chinese and English as working languages.
Currently, the SPC has appointed Zhang Yongjian, Wang Chuang, Wang Shumei, Wei Wenchao, Gao Xiaoli, Xi Xiangyang, Sun Xiangzhuang, Yu Xiaohan, Zhang Xuemei, Ding Guangyu, Shen Hongyu, Zhu Li, Guo Zaiyu and Du Jun as CICC judges. These 14 judges possess more than 10 years of experience in civil and commercial trials and over 90% of them have obtained a doctorate in law. They are familiar with international treaties, international customs and international trade and investment practices, and are proficient in using Chinese and English as working languages.
"We are confident that the CICC will provide fair and efficient judicial services. We also believe that, owing to the joint efforts of the professional CICC judges, we will win local and foreign parties' trust and respect and attract more parties to international commercial disputes to have their dispute resolved at the CICC," said Luo Dongchuan, Vice President of the SPC of China.
*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.