Editor's Note: The Third Seminar of the International Commercial Expert Committee of the Supreme People's Court and Reappointment Ceremony of the First Group of Expert Members was held successfully on Augest 25, 2022. Over 40 experts from more than 20 countries and regions focused on the theme of the Development, Challenges and Countermeasures of Cross-Border Commercial Disputes during the seminar. Extensive and in-depth discussions were held within the framework of four specific issues. The texts of speeches delivered by the participants would be posted on the CICC's website.
ADDRESS AT THE THIRD SEMINAR OF THE INTERNATIONAL COMMERCIAL EXPERT COMMITTEE OF THE SUPREME PEOPLE'S COURT OF CHINA
Dean of Institute for International Dispute Settlement of Tsinghua University,
Former Chair of WTO Appellate Body
Distinguished President Zhou of the Supreme People's Court of China,
Distinguished Members of the International Commercial Expert Committee,
Ladies and Gentlemen,
Greetings to you all!
On behalf of the first group of members of the Expert Committee, I will report to the SPC on some of our work, personal thoughts, and preliminary suggestions and look forward to your comments.
The International Commercial Expert Committee of SPC was officially established on August 24, 2018. Chinese and foreign experts from 14 countries and regions, including the Hong Kong Special Administrative Region (HKSAR), the Macao Special Administrative Region (MSAR), and Taiwan of China were appointed as the first group of members of the Expert Committee. We were very honored that Mr. Zhou Qiang, President of the SPC, has conferred the Appointment Letters to representatives of the Expert Committee members. Today, President Zhou issued the Appointment Letters to the experts reappointed. We feel that we are taking on glorious missions and great responsibilities. Since the SPC first established the International Commercial Expert Committee, members of the Committee have earnestly performed their duties and given full play to their professional expertise. Experts engaged in a series of activities including mediation of cases entrusted by the International Commercial Court, seminars, and academic exchanges, and provided advisory opinions. They have made positive contributions to supporting parties in resolving international commercial disputes through a diversified commercial dispute settlement mechanism that combines arbitration, mediation, and litigation, promoting the substantive and smooth operation of the China International Commercial Court (CICC) and enhancing the international influence and credibility of CICC and Chinese judiciary.
1. Using professional advantages to assist the trial work of the CICC
Since the CICC was put into operation, a total of 27 international commercial cases has been accepted and 11 has been concluded. The experts have been paying close attention to the trial work of the CICC and giving full play to their expertise in the field of foreign-related legal professions, which provides strong support for the trial. First, they observed court trials and accepted media interviews. In the opening hearing of the CICC's first case, Prof. Shen Sibao, Prof. Liu Jingdong, and Prof. Shan Wenhua were invited to observe the hearing and were interviewed by Chinese and foreign media. The experts shared the view that "this hearing is a milestone as it provides a reference for subsequent similar cases, enabling China to take the first solid step to participate in discussions regarding international commercial dispute resolution mechanisms." Second, the experts provided advisory opinions and gave comments on cases of the CICC. In a case concerning a product liability dispute handled by the First International Commercial Court, Prof. Wang Liming, Prof. Shen Sibao, and Prof. Philip Yang provided advisory opinions on the relevant legal issues. At the end of 2019, the SPC conducted a focused report on the five cases concluded by the First International Commercial Court. Prof. Wang Liming, Prof. Shen Sibao, Prof. Shan Wenhua, and Prof. Susan Finder made high-quality expert comments on the judgments. These comments were published in the People's Court Daily and on the official website of the CICC, arousing widespread attention from legal professionals at home and abroad.
2. Playing the role of "think tank" to provide professional advice for the CICC and the improvement of the international commercial dispute resolution mechanism
First, experts have actively participated in the research, drafting, and evaluating judicial interpretations and policies of the SPC. Many experts put forward valuable and constructive comments during the SPC's process of drafting and formulating documents such as Provisions of the Supreme People's Court on Several Issues Regarding the Establishment of the International Commercial Court, Procedural Rules for the China International Commercial Court of the Supreme People's Court, Working Rules of the International Commercial Expert Committee of the Supreme People's Court, and The Interpretation of the Supreme People's Court on Certain Issues Concerning the Application of the Foreign Investment Law of the People's Republic of China. International commercial experts were invited to attend internal symposiums held by the SPC, the Ministry of Justice, and the Legal Affairs Commission of the National People's Congress successively, providing advisory opinions for the application of law in foreign-related cases, the Development of international commercial mediation law, the provisions on the application of international treaties in the Civil Code, and the application of international treaties and international custom in handling foreign-related civil and commercial cases. In the process of drafting documents that provide judicial services and safeguards for the construction of the Belt and Road Initiative, the Lin-gang Special Area of the Shanghai Pilot Free Trade Zone, and the Hainan Free Trade Port, some experts participated in the research and evaluation and made comments at press conferences, playing a positive role in creating the documents.
Second, experts have actively participated in the discussions and evaluations of international conventions. When the United Nations Commission on International Trade Law (UNCITRAL) drafted United Nations Convention on International Settlement Agreements Resulting from Mediation (i.e., Singapore Mediation Convention), the SPC organized a symposium. Prof. Liu Jingdong and Prof. Lu Song attended the meeting. On August 7, 2019, Prof. Huang Jin and Prof. Liu Jingdong attended the signing ceremony of the Singapore Mediation Convention held in Singapore. On March 2020, UNCITRAL solicited opinions from China on UNCITRAL Mediation Rules (Draft). The SPC solicited the opinions of some experts before replying to the Ministry of Commerce. In this way, experts provided intellectual support for the improvement and revision of international conventions.
3. Participating in academic exchanges at home and abroad, and expanding China's influence in promoting the Rule of Law at the international level
First, experts have actively participated in the seminars held by the International Commercial Expert Committee. In 2018, the SPC held the First Seminar of International Commercial Expert Committee in which sixteen experts attended and gave speeches. In December 2018, Prof. Shen Sibao, Prof. Lu Song, Prof. Liu Jingdong, Prof. Shan Wenhua, and Mr. Tao Jingzhou attended and spoke at the “Symposium on Diversified International Commercial Dispute Resolution Mechanism”. On May 22, 2019, the SPC organized the “Sino-French Symposium on International Commercial Trial”. Prof. Zhang Yuejiao, Prof. Liu Jingdong, and Prof. Lu Song attended the event. In August 2019, The SPC held lectures presented by international commercial experts in whom Prof. Susan Finder and Prof. Liu Jingdong were invited to give lectures respectively on topics regarding “the Impact of the Belt and Road Initiative on Chinese Courts” and “Research on the Construction of the Rule of Law System of the Belt and Road Initiative”. These lectures inspired judges who attended. On November 29, 2019, the SPC officially launched the United Platform for Foreign Law Ascertainment. Committee members were included in the expert directory to provide all sectors of society with high-quality and efficient foreign law ascertainment services. In 2021, Prof. Shan Wenhua and Prof. Liu Xiaohong presided over major research projects of the SPC, “Research on the Operational Mechanism of China International Commercial Court”. Justice Steven Chong, Prof. Anselmo Reyes, and Prof. Sienho Yee attended the first China-Singapore International Commercial Dispute Resolution Conference.
Second, experts have taken an active part in promoting the CICC. On the first anniversary of the establishment of the CICC, Prof. Zhang Yuejiao, Prof. Huang Jin, Prof. Shen Sibao, and Prof. Shan Wenhua were interviewed by the People's Court Daily. Prof. Huang Jin, Prof. Zhang Yuejiao, Prof. Shan Wenhua, Prof. Shi Jingxia, and Mr. Tao Jingzhou wrote articles for China Trial and the China International Commercial Court in 2018. In their articles, they fully affirmed the progress made by the CICC in the past year, as well as the advantages of its operating mechanism and litigation system. On September 16, 2019, Luo Dongchuan, Vice President of the SPC was invited to attend the third episode of “Talk about Rule of Law in China: Safeguarding the Belt and Road Initiative” of the China Central Television (CCTV), which was also joined by Prof. Shen Sibao, Prof. Liu Jingdong, and Prof. Shan Wenhua who, as special advisors, jointly contributed to the heated discussion regarding the major rule of law milestones of the CICC safeguarding the Belt and Road Initiative. On March 10, 2021, China Global Television Network, or CGTN, broadcast “China 24 Rule of Law in China: CICC Escorts the New Journey of Embracing and Opening to the Outside World”. Prof. Zhang Yuejiao and Prof. Liu Jingdong were interviewed for the promotional video.
Third, members of the Committee participated in various academic exchanges at home and abroad to expand their influence. For more than four years, members of the Committee have been active in academic exchanges on the rule of law at home and abroad. They have been given full play to their influence and appeal in the domestic and international legal and judicial communities, publicizing the achievements of the CICC and China's judicial reform. According to incomplete statistics, in the past four years, the experts have participated in nearly 100 academic exchange activities at home and abroad. Although some activities were not organized by the SPC, the experts all included their titles as members of the Committee when participating in the activities, and the topics discussed related to the settlement of international commercial disputes, which expands the influence of the Commit to a certain extent. For example, many experts took part in activities such as the “China Arbitration Summit”, “International Mediation Summit”, “Qianhai Legal Intelligence Forum”, “Greater China Arbitration Forum”, “UK-China International Commercial Arbitration Seminar”, “UK-China Rule of Law Roundtable”, “East Lake International Law Forum” and “Conference on International Investment Dispute Settlement Reforms,” and contributed their insights. Rimsky Yuen SC spoke about the resolution of construction disputes in the Belt and Road and the issues in practice of the Singapore Convention at the “The 2nd Belt and Road Forum for International Cooperation”, “Singapore Convention on Mediation,” and the “The 9th South China In-house Counsel Forum”. Prof. Shan Wenhua introduced the CICC in the “Eastern Economic Forum” held in Russia, and talked about the achievements in the development of “smart courts” in China's judicial reform in the 50th Anniversary of the Egyptian Constitutional Court and the International Symposium, which he attended at the invitation of the President of the Supreme Constitutional Court (SCC) of Egypt and under the assignment by President Zhou Qiang of the SPC.
Fourth, experts have conducted profound theoretical research to provide intellectual support for the development of the CICC's mechanism. The members of the Committee use theoretical research to its advantage and have conducted in-depth research on the international commercial dispute settlement mechanism and the development of the CICC to provide intellectual support for relevant decision-making. For example, Prof. Zhang Yuejiao and Prof. Huang Jin published an article on “China's Important Contributions to the Innovation and Development of International Law” in People's Daily. Prof. Zhang Yuejiao led the establishment of the Institute of International Dispute Resolution of Tsinghua University and was appointed as the Dean. Prof. Liu Jingdong was entrusted by the Ministry of Commerce to carry out thorough research on the subject of the Singapore Mediation Convention to provide expert opinions for China in signing the Convention. Prof. Susan Finder initiated the “The Supreme People's Court Monitor” blog and published articles to promote the CICC. Prof. Shi Jingxia published a research paper on “Several Core Issues of China's International Commercial Tribunal”. Mr. Tao Jingzhou published an article on “The China International Commercial Court (CICC): A New Chapter of Resolving International Commercial Disputes in China”. During the COVID-19 pandemic, many experts contributed legal wisdom to the pandemic prevention in domestic and foreign media. For instance, Mr. Tao Jingzhou published a column article in the Financial Times. Prof. Philip Yang published under the title “Arm Yourself with Evidence-Based Thinking in the Global Pandemic”. On February 28, Prof. Philip Yang gave a lecture on “The Covid-19 Pandemic and Force Majeure in International Commercial Contracts” in an open online class of the Synior Corporate Counsel Institute. The lecture was very well-received and attracted 52,000 viewers in the live broadcast on sina.com.cn.
4. Thoughts and suggestions
Since the establishment of the Expert Committee of CICC more than four years ago, its members have actively participated in the construction of the CICC, providing suggestions for the goal and pathways of its development, promoted the CICC and China's “One-Stop” Diversified International Commercial Dispute Resolution mechanism in academic exchanges at home and abroad, and lived up to the role of a “think tank”. However, we have also seen that due to the deficiencies of the working mechanism, financial budget, and the impact of pandemic control, there exist several problems: The role of the members of the Expert Committee is limited; the legal exchange activities attended by the members have been reduced; opportunities for the members to exchange online are not enough; the participation of foreign experts has been low; opportunities for exchanges and discussions between experts and the judges of the CICC are insufficient, etc. Suggestions to improve the situation are as follows:
1. The systematic planning of the work of the Expert Committee should be enhanced to give full play to the proactiveness, creativity, international backgrounds, and specialized capabilities of the members so as to enhance the credibility of the CICC by exerting the influence of the members. I would also suggest that the capacity of the Coordination and Guidance Office for CICC should be boosted to provide services for experts' work.
2. The specialties of the members should be leveraged to facilitate the summary of experience and the analytical work, as well as problems solving skills. The research on the operation of the “One-Stop” Diversified International Commercial Dispute Resolution Platform should be enhanced and the relevant working mechanisms should be improved.
3. Lectures and training sessions given by the members should be planned out, and seminars involving members and international commercial judges should be held, and research on international commercial trial cases should be strengthened to formulate guiding cases, so as to further improve the professional quality of the judges and experts of the CICC and train and reserve talent for international commercial dispute resolution.
4. International judicial cooperation should be enhanced and international exchanges should be proactively carried out, which should invite and involve members of the Committee and judges in the international commercial field. Research on the theories of international commercial courts should be enhanced, especially comparative studies and research between practices in China and other countries. Based on research, high-level reports should be formulated to support the practice of the CICC and provide decision-making references for high-quality joint construction of the Belt and Road Initiative.
I am pleased to report to you that all the experts my fellow colleagues will continue to perform their duties, join hands to carry out assignments and conduct research, and make greater contributions to the peaceful settlement of international disputes, the international rule of law, and the fairness and justice of the world. To conclude, I wish this seminar a complete success!
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*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.