Justice Tao Kaiyuan: Achieving New Development of China International Commercial Court at a Higher Starting PointFrom: Updated: 2022-09-21
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.
ACHIEVING NEW DEVELOPMENT OF CHINA INTERNATIONAL COMMERCIAL COURT
AT A HIGHER STARTING POINT
Justice and Vice President of the Supreme People's Court of China
Distinguished expert members,
Distinguished guests, ladies and gentlemen,
Since the 21st century, the fair and efficient resolution of international commercial disputes has become an important driving force for modern commercial development and global economic prosperity. In 2018, the General Office of the CPC Central Committee and the General Office of the State Council issued the Opinions Concerning the Establishment of the Belt and Road International Commercial Dispute Resolution Mechanism and Institutions (Hereinafter as "Opinions"), proposing that the Supreme People's Court establish international commercial courts, an international commercial expert committee, and a "One-Stop" diversified international commercial dispute resolution mechanism. This is a major decision of China based on the high-quality development of the Belt and Road Initiative, an expansion of high-level opening-up to the outside world, and building of a community with a shared future for mankind. It is of great practical and far-reaching historical significance in protecting the legitimate rights and interests of Chinese and foreign parties on an equal footing and making economic globalization more open, inclusive, balanced and beneficial to all. Now, I would like to share four points of thoughts regarding the operation of China International Commercial Court and the way forward.
I. Improving the institutional settings to create a model international commercial court
The rule of law is an essential element of a country's core competitiveness. Over the past four years, the Supreme People's Court has aimed to establish a fairer, more efficient, expedite, and cost-effective international commercial dispute resolution. We thoroughly implemented Opinions by establishing the First and Second International Commercial Courts, in Shenzhen and Xi'an, respectively, against the manufacturer promoted the operation of these Courts, and concluded a batch of major and complex international commercial cases with rule-guiding significance. A bilingual official website was built up to provide bilingual litigation and legal database service covering an entire online process from case-filing, mediation and evidence exchanges, etc. The "one-stop" diversified international commercial dispute resolution mechanism integrates litigation, arbitration and mediation, providing convenient and efficient legal services for both Chinese and foreign parties. The case of Luck Treat Limited. v. Zhongyuancheng Commercial Investment Holding Co., Ltd., was concluded by the First International Commercial Court, clarifying the principle of Kompentenz-Kompentenz, that the challenge to the formation of arbitration agreement falls within the meaning of application for confirming the validity of the arbitration agreement. In the product liability dispute case Guangdong Ben Cao Medicine Group Co., Ltd. v. Bruschettini SRL (Italy), the First International Commercial court held that the seller had the right to claim compensation against the manufacturer's infringement if it failed to perform its recall obligation. These two cases were selected in a manuscript titled "A Compendium of Singapore-China International Commercial Cases Curated for Their Relevance to the Belt and Road Initiative" jointly compiled by the Supreme People's Court of China and the Supreme Court of Singapore. On May 29, 2019, the "first gavel" of the public trial was heard by the Second International Commercial Court in a high-profile case of Roychia International Group Co. Ltd (Thailand) v. Red Bull Vitamin Drinks Company. To date, the China International Commercial Court has accepted 27 cases and concluded 11 of them.
Facing new situations, we will strengthen institutional innovation, establish a transparent and efficient adjudication system, develop user-friendly and fast-response technology facilities, and select elite judges with rich experience. In these ways, we are working to build a reputation for China International Commercial Court and to create a stable, fair, transparent, and predictable business environment based on the rule of law.
II. Perfecting the mechanism to highlight commercial dispute resolution's strengths
The International Commercial Court of the Supreme People's Court has adhered to the principle of planning together, building together and benefiting together; the principle of justice, efficiency, and convenience; the principle of party autonomy; and the principle of diversified dispute resolution, to form a fair, just, professional, efficient, transparent, expedite and cost-effective mechanism of international commercial dispute resolution, which is mainly demonstrated by China International Commercial Court's fully respects on party autonomy in the choice of court, applicable law and the dispute resolution method; setting up International Commercial Expert Committee with 47 expert members from 22 countries and Chinese Hong Kong, Macao, and Taiwan, with distinct features of broad representation of different legal systems, neutrality and professionality; Expert members playing an active role in mediating international commercial cases, providing legal opinions, participating in the research and analysis for judicial interpretation and policy drafting, and continuously improving the "one-stop" diversified dispute resolution mechanism that connects litigation, arbitration and mediation. As of June 2022, 10 international commercial arbitration institutions and 2 international commercial mediation institutions have been included into the "one-stop" platform. Moreover, the mechanism for the first time has connected with an arbitration institution from outside the Chinese mainland. In this platform, the mediation agreements assisted by Expert members or international commercial mediation institutions can be confirmed by China International Commercial Court by preparing a consent judgment or judgment in accordance with law. Additionally, in respect of the award rendered by international commercial arbitration institutions within "one-stop" platform, parties may directly apply to the China International Commercial Court for recognition, setting aside or enforcement according to the judicial interpretation.
Facing new missions, we will further enhance the operation of China International Commercial Court towards standardization, specialization and internationalization. We will standardize the procedural rules for determining the jurisdiction, authentication and certification, evidence exchange, court hearings, etc. We will invite more expert members including non-legal professionals specialized in commerce and trades to further optimize the structure of the International Commercial Expert Committee. We will emphasize the important role of the "one-stop" international commercial dispute resolution mechanism, integrating mediation, arbitration and litigation and ensuring efficient operation of China International Commercial Court.
III. Accelerating technology empowerment to enhance international commercial judicial services
The rapid development of modern technologies such as 5G, Big Data, artificial intelligence, cloud computing and block-chain have provided new opportunities for better judicial work. Following the trend, Chinese courts have actively strengthened the construction of smart courts, promoted online trial mechanisms, set up smart trial, judgment enforcement and service systems; and issued the "three major rules" for online litigation, online mediation and online operation. China International Commercial Court has made use of the Smart Court's achievements to set up an online litigation service platform to realize the online handling of cases, such as case registration, filing, distribution, mediation, enquiry, hearing and service of judicial documents. A unified foreign law ascertainment platform is set up to facilitate the finding of foreign law, where upon parties' application, China International Commercial Court may entrust expert members or foreign law ascertainment institutions to provide legal ascertainment opinions. During the epidemic, International Commercial Experts Committee researched legal rules on force majeure, covering over 60 countries and regions, as well as relevant provisions of international conventions and practices, and released 7 research reports. The "one-stop" online platform for the diversified resolution of international commercial disputes has been launched to realize online mediation, arbitration and litigation.
Facing new tasks, we will make full use of the smart court's achievements, further accelerate the empowerment of international commercial disputes through technology, promote the deep integration of international commercial trials with the smart court, strengthen information management and Big Data analysis of international commercial cases, establish a data center for international and foreign law, in order to satisfy the demand of Chinese and foreign parties for online and remote litigation, as well as coordinate the Covid-19 response and judicial work.
IV. Deepening mutual learning and exchange to enhance the international influence of China's foreign-related adjudication
A river becomes an ocean when it does not refuse to merge with other rivers. China attaches great importance to international cooperation in the judiciary field and embraces openness and cooperation for mutual benefit. The Supreme People's Court has established friendly exchange relations with the highest judicial institutions of more than 140 countries and regions as well as over 20 international or regional organizations, with more than70 cooperation agreements or memorandums of cooperation being signed. Over 60 foreign Supreme Court presidents and chief justices were invited to visit our courts. In recent years, we hosted a series of International Judicial Conferences, including the Conference of Presidents of Supreme Courts of China and Central and Eastern European Countries, the World Enforcement Conference, the World Forum on Rule of Law in Internet, the World Judicial Conference on Environment, the Maritime Silk Road (Quanzhou) International Forum on Judicial Cooperation, the China-ASEAN Justice Forum and etc. International judicial cooperation has become increasingly in-depth and intense. Expert members and China International Commercial Court judges have also actively participated in the international conferences such as Standing International Forum of Commercial Courts, the Judicial Seminar on Commercial Litigation, the China Arbitration Summit, the International Mediation Summit, the Legal Forum on Cross-border Trade in Services, the UK-China Judicial Roundtable, the China-Singapore Legal and Judicial Roundtable, the online seminar of the Hague Conference on Private International Law and so on. They have not only promoted publicity of China International Commercial Court，but also absorbed the advanced international experiences on the rule of law.
Moving forward, we will adhere to the principle of equal protection, publish more judgments and decisions of typical cases to solve international commercial disputes in a fair, efficient and convenient manner, and encourage Chinese and foreign parties to choose China International Commercial Court as the agreed jurisdiction. Furthermore, we look forward to a greater role of International Commercial Expert Committee in coordinating and harmonizing international commercial law, bring China International Commercial Court with international community. We will further enhance international judicial civil and commercial assistance, harmonize judicial assistance rules, and promote recognition and enforcement of judgments and arbitral awards among countries.
Dear colleagues, ladies and gentlemen.
Opening up is a distinctive symbol of modern China. China cannot develop in isolation from the world, and the world also needs China for its development. Chinese Courts will always uphold the international order underpinned by international law, continue to strengthen international judicial cooperation, and learn best practices from colleague international commercial courts and tribunals. It is hoped that through these efforts, we will achieve new development of China International Commercial Court at a higher starting point to provide Chinese solution and contribute Chinese wisdom for solving international commercial disputes in a just, efficient, expedite, and cost-effective manner.
Related Links: 陶凯元： 在更高起点上推动国际商事法庭实现新发展
*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.