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Building the Judicial Guarantee of International Commercial Court "Belt and Road" Construction An Exclusive Interview with Gao Xiaoli, Vice President of the Fourth Civil Division, The Supreme People’s Court, PRC

From: 人民法治 最高法院 知产法网         Updated: 2018-03-19

Core tip: In the construction of "Belt and Road", the rule of law is an important guarantee, and the role of the judiciary is indispensable. So far, the Supreme People’s Court has taken a series of effective measures to promote the construction of "Belt and Road", one of which is to study the establishment of an international commercial court. To provide judicial service and guarantee for the construction of "Belt and Road".


In the " Belt and Road " construction, the rule of law is an important guarantee, the role of the judiciary is indispensable. So far, the Supreme People’s Court has taken a series of effective measures to promote the construction of "Belt and Road", one of which is to study the establishment of an international commercial court. To provide judicial service and guarantee for the construction of "Belt and Road". The establishment of the International Commercial Court will provide "one-stop" legal services that are fair, efficient, convenient and low-cost for the parties involved in "Belt and Road", including China. In view of what judicial services and guarantees the court can provide in dispute settlement, what is the background and significance of the establishment of international commercial courts in China, the development and characteristics of international commercial courts and the current situation of international commerce in China. The assumptions of the court, etc., This magazine conducted an exclusive interview with Gao Xiaoli, vice president of the fourth Civil trial Chamber of the Supreme People’s Court.


Reporter: the construction of "Belt and Road" is a major initiative put forward by the CPC Central Committee to deal with the profound changes in the global situation and to coordinate the overall situation at home and abroad. Its implementation involves various economic cooperation with many countries along the route, such as infrastructure construction, financial investment, commercial trade and so on. With the promotion and deepening of the "Belt and Road" initiative, the number of foreign commercial disputes in China is bound to continue to increase. What judicial services and guarantees can the court provide in dispute settlement?


Gao Xiaoli: with the continuous promotion and deepening of the "Belt and Road" initiative, the number of foreign commercial disputes in China will continue to increase. The Supreme People’s Court has been actively considering what kind of judicial services and guarantees can be provided for the construction of "Belt and Road". So far, the Supreme People’s Court has taken a series of measures to promote "Belt and Road" judicial services and protection. The most important of these was the publication in June 2015 of a number of opinions on the provision of judicial services and guarantees for the construction of "Belt and Road". This is the first document issued by the central government concerning the provision of judicial services and guarantees for the construction of "Belt and Road". The opinion points out that the People’s courts need to raise their awareness, enhance their sense of responsibility and mission in providing judicial services and guarantees for the construction of "Belt and Road", and respond positively to the judicial concerns and needs of the "Belt and Road" building market bodies both at home and abroad. We will vigorously strengthen the judicial review of foreign criminal matters, foreign civil and commercial affairs, maritime merchants, international commercial and maritime arbitration and the trial of cases related to the free trade area, so as to create a good environment for the rule of law in the construction of "Belt and Road".


Second, the release of typical cases. The Supreme People’s Court in July 2015 issued the first batch of "Belt and Road" typical cases of 10. In May 2017, the Supreme People’s Court released a second batch of eight typical Belt and Road cases.


In addition, in November 2016, the Supreme People’s Court issued the provisions on several issues concerning the trial of disputes over Independent guarantees. Although this judicial interpretation was not specifically tailored for the "Belt and Road" construction, it began to be studied as early as the year of the Libyan incident and was formally approved in 2012 and promulgated at the end of 2016. But just as the construction of "Belt and Road" has entered the stage of deep cultivation and detailed cultivation, the construction of "Belt and Road" involves a large number of infrastructure construction, international trade and so on, all of which may include independent guarantee transactions, and thus lead to disputes over independent guarantees. Therefore, it is obvious that the judicial interpretation will serve the construction of "Belt and Road" very well.


Reporter: at the "2017 legal Business Environment Forum" held in Guangzhou on November 21, 2017, Justice Liu Guixiang, deputy full-time member of the Supreme Court Judicial Committee and president of the first Circuit Court, revealed that Initially consider building "Belt and Road" international commercial court, form "one-stop" service platform, and provide more convenient and transparent conditions for solving "Belt and Road" international commercial disputes. (link: Liu Guixiang: considering the Construction of "Belt and Road" International Commercial Court) on January 23, 2018, the second meeting of the Central leading Group for Comprehensive deepening Reform considered and adopted the "Establishment of" Belt and Road dispute settlement Mechanism And the agency's views "further clarify that China will establish an international commercial court." (link: the second meeting of the Central leading Group for Comprehensive deepening Reform deliberated and adopted "opinions on the Establishment of" Belt and Road "dispute settlement Mechanism and body.) what is the background and significance of the establishment of the International Commercial Court in China?


Gao Xiaoli: at present, one of the important subjects of the Supreme People’s Court is to study the establishment of "Belt and Road" dispute settlement mechanism and organization. The construction of "Belt and Road" is mainly about economic cooperation, which inevitably leads to disputes in the field of trade and investment. The main types of disputes are as follows. One is the trade dispute between the countries. Besides consultation, the WTO dispute settlement mechanism is accepted by our country. The other is the investment dispute between the investor and the host country. At present, the solutions accepted by our country are embodied in the bilateral investment protection agreement signed by our country, mainly in the ICSID mediation and arbitration mechanism, the application of UNCITRAL arbitration rules and other mediation or arbitration methods. We note that some countries, such as Canada, are studying the establishment of an investment court to resolve investment disputes under investment protection agreements. The Supreme People’s Court is also studying how Chinese courts can support investment dispute resolution mechanisms. As a result of the commercial reservations made by my country upon accession to the New York Convention, In the notice on the implementation of the Convention on the recognition and Enforcement of Foreign Arbitral Awards issued by the Supreme People’s Court in 1987, the understanding of the commercial reservation was to exclude disputes between the host State and the investor, As a result, it is not possible to recognize and enforce the investment arbitration award in Chinese courts through the New York Convention at present. However, with the change of investment status in China, it is worth further study whether the scope of commercial reservation should be reconsidered. Third, the disputes between the equal commercial subjects in the field of trade, investment and other areas, such as the settlement of such disputes, mediation, arbitration, litigation and other dispute settlement methods are generally applicable. The settlement of litigation is through the traditional courts and international commercial tribunals to resolve disputes. The purpose of the establishment of the International Commercial Court is to provide "one-stop" legal services that are fair, efficient, convenient and low-cost to the parties of the "Belt and Road" participating countries, including China. From the current practice of various countries, many countries have seen the importance of the establishment of international commercial courts in the settlement of international commercial disputes, and the positioning of international commercial courts seems to be between the traditional litigation and international commercial arbitration model. We are still studying how to design the international commercial court in China. On the one hand, its function is to resolve disputes through litigation, on the other hand, it also needs to provide international judicial assistance. The Liu Guixiang Special Committee has mentioned at the meeting many times that it will strengthen judicial cooperation with the "Belt and Road" participating countries by focusing on strengthening the judicial cooperation with the "Belt and Road" participating countries. Combined with the existing judicial system to build a wide coverage, timely and efficient international mutual legal assistance mechanism focusing on the recognition and enforcement of judgments and arbitral awards.


Reporter: the International Commercial Court was set up in Britain earlier. Could you give us a brief introduction to the establishment and development of the International Commercial Court in other countries as well as the history and characteristics of the International Commercial Court?


Gao Xiaoli: the International Commercial Court has many advantages in dealing with disputes. It is generally believed that the relatively typical international commercial court established in the early period was the London Commercial Court established in 1895. Since 2010, 50% of the cases of the London Commercial Court have involved more than 80% of cases involving foreign parties at least one party is not British. More than 900 new cases were received in 2015, of which 25 per cent involved arbitration matters. The Court has now been renamed the Commercial and property Court of England and Wales, with uniform jurisdiction over foreign commercial cases. The Gulf region has also set up an international commercial court, which is a court built by the government for economic development and applies common law. For example, the Dubai International Financial Center Court is one of the Gulf International Commercial Courts that follow the British and American legal tradition. Its judges are also Anglo-American, along with the Qatar International Court and dispute Resolution Center, established in 2009, and the Abu Dhabi Global Market Courts, set up in 2015. The Singapore International Commercial Court is part of the Supreme Court system in Singapore and employs a number of prestigious foreign judges. The Netherlands will establish the Amsterdam Commercial Court in 2018 to resolve international trade disputes involving Dutch parties and make judgments in English. The District Court of Frankfurt, Germany, will set up a Commercial Trial Court in January 2018 to use English. Belgium will set up an International Commercial Court to use English. Kazakhstan is about to set up an international financial center court in Astana. India also passed legislation establishing an international commercial court.


Overall, these international commercial courts have shown the following characteristics: 1. Fast; Low cost 3. The procedure is simple; 4. Elastic; 5. Adjudicating high quality; 6. Applicable laws are fair and predictable; 7. The synchronization of law and market development; 8. Maintain the vitality and vitality of the legal framework.


Reporter: What is China's current vision for an international commercial court and how will the judicial system advance the construction of international commercial courts?


Gao Xiaoli: With the deepening of the “Belt and Road” initiative, international disputes in cross-border financial trade and infrastructure construction, international logistics, maritime affairs and maritime affairs, intellectual property rights, etc. continue to grow, relying only on the state’s original judicial system and arbitration and mediation. The negotiation and other methods have been difficult to meet the demand of the “Belt and Road” market players for cross-border dispute resolution. To build a fair, efficient, and convenient "One Belt and One Road" dispute resolution mechanism, it is necessary for all countries along the route to work together to discuss cooperation, build and share, and advance international rule of law.


In addition to the resolution of international civil and commercial disputes through litigation, the Chinese courts have been actively providing international judicial assistance for a long period of time, and have actively recognized and enforced international commercial arbitration awards and foreign court civil and commercial judgments. Chinese courts hold the basic judicial attitude of supporting international commercial arbitration. The judicial interpretation of arbitration law and civil procedure law embodies the supporting attitude of Chinese courts to arbitration. In 2017, the work of the Supreme People’s Court in the area of judicial review of arbitration achieved more results. On May 22, 2017, the Supreme People’s Court issued a notice on the related issues in cases of judicial review of arbitration, requiring courts at all levels to handle cases involving judicial review of arbitration. Both international arbitration and domestic arbitration are subject to review by the foreign commercial trial court. In the past, the judicial review cases of arbitration were scattered in each trial court, and the judgment criteria were not uniform, so it was advantageous to unify the ruling standards to deal with the judicial review cases of arbitration. In addition, at the end of 2017, the Supreme People’s Court issued the relevant provisions of the Supreme People’s Court on the reporting and nuclear issue of arbitration judicial review cases. Not only does it stipulate that the negative evaluation of international arbitration should be reported to the Supreme People’s Court step by step before the final decision can be made, but the reporting and verification system is also extended to the field of domestic arbitration; Issued the "Supreme People’s Court on several issues of judicial review of arbitration cases", which is a unified procedural norms for the adjudication of judicial cases, the purpose is to unify the yardstick of adjudication, more embodies the court's support for arbitration. Chinese courts recognize and enforce civil and commercial judgments of foreign courts in accordance with the provisions of the Civil procedure Law and in accordance with international treaties or the principle of reciprocity. China has more than 30 bilateral treaties on mutual legal assistance in civil and commercial matters, including mutual recognition and enforcement of judgments in civil and commercial matters. At the same time, China actively participates in the negotiation of multilateral treaties on the recognition and enforcement of judgments in civil and commercial matters led by the Hague Conference on Private International Law. The possibility of ratifying the Convention on the Choice of Court Agreement is also under study. The Supreme People’s Court is actively promoting a more relaxed grasp of the principle of reciprocity in order to facilitate the recognition and enforcement of civil and commercial judgments of foreign courts in Chinese courts. The Supreme People’s Court is preparing a judicial interpretation of the provisions on the recognition and Enforcement of Civil and Commercial judgments of Foreign Courts. The International Commercial Court will play the above functions at a higher level.


Specifically, I think that the construction of an international commercial court needs to consider the following factors: First, where will the international commercial court be set up and where it will be set up? After repeated consideration of local hard and soft environments, the Supreme People's Court decided to set up an international commercial court in Xi'an and Shenzhen, and establish an international commercial tribunal in the headquarters of the Supreme People's Court. The International Commercial Court in Xi'an is mainly oriented to the “Land Silk Road”, focusing on the construction of the Silk Road Economic Belt; Shenzhen’s International Commercial Court is facing the “Maritime Silk Road” and will make full use of the Shenzhen-Hong Kong cooperation platform; and Beijing’s international business The trial court is similar to the headquarters and is responsible for overall coordination. Second, what kind of judge is chosen? The use of judges of other nationalities like those in Singapore and Dubai to serve as judges in international commercial courts currently has obstacles in our country regarding the law of judges and the organization of courts. However, if foreign professional talents are not introduced to participate in the construction of international commercial courts, they lack internationality and lack of influence. This is also a question that we are actively thinking about. Third, the freedom to choose the applicable law. The law applicable to civil relations in foreign countries in China gives the parties a great deal of freedom in the application of the law. Therefore, there are no obstacles in the legal aspects of our country’s laws. Fourth, on the procedural convenience. Can the procedures provided for by the Civil Procedure Law break through? Fifth, the language used. Whether English can become the language of trial in international commercial courts, there are currently obstacles to the civil procedure law, and the Civil Procedure Law requires the use of Chinese. Sixth, regarding whether it can be represented by a foreign lawyer. At present, there are obstacles in the civil procedure law. The Civil Procedure Law requires that an attorney be appointed to act as an agent and must appoint a Chinese lawyer. Seventh, regarding information construction. The Chinese courts have vigorously promoted the openness of the judiciary and the construction of a wisdom court, and have achieved great results. This will surely help the construction of an international commercial court. Eighth, can the judgments obtained be conveniently recognized and enforced outside the domain? China is actively participating in multilateral treaty negotiations and bilateral negotiations in the field of recognition and enforcement of civil and commercial judgments, and the channels are becoming more and more open. The construction of international commercial court will be a long-term construction, will also involve other aspects of the problem, we need to explore ideas, of course, the premise is to obtain legislative support.


 

*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.