Wang Xuelin: Improve the Diversified International Commercial Dispute Resolution Mechanism, Demonstrate the Strength of Rule of Law of ChinaFrom: 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.
IMPROVE THE DIVERSIFIED INTERNATIONAL COMMERCIAL DISPUTE RESOLUTION MECHANISM, DEMONSTRATE THE STRENGTH OF RULE OF LAW OF CHINA
Chairman of Hainan International Arbitration Court
The "one-stop" diversified international commercial dispute resolution mechanism established by the SPC is a significant achievement made in practicing Xi Jinping's thought on rule of law and simultaneously advancing rule of law at domestic and international level in a coordinated way. Giving full play to the role of the "one-stop" diversified international commercial dispute resolution mechanism is of great significance for improving the international commercial dispute resolution mechanism and creating a stable, fair, transparent and predictable business environment under the rule of law.
I. With Xi Jinping's thought on rule of law as the guiding principle, further improve the diversified international commercial dispute resolution mechanism.
First, we should resolutely implement the important instruction of General Secretary Xi Jinping on "insisting on making the Alternative Dispute Resolution as the first resort". Arbitration and mediation are the two most important legal systems of Alternative Dispute Resolution ("ADR"). The development of arbitration and mediation is directly related to the functioning of the "one-stop" diversified international commercial dispute resolution mechanism. Litigation, arbitration and mediation are the three pillars of this great strategy of diversified international commercial dispute resolution mechanism. "People who have high aspiration will formulate strategy in the first place". We should improve our political stance and deeply understand the important role of this diversified international commercial dispute resolution mechanism in serving the high-level opening-up strategy and enhancing China's ability to participate in the global governance. We should be fully aware of the international common practice and reality that arbitration is the first choice for international commercial dispute resolution, and we need to address the unbalanced development of litigation, arbitration and mediation, attach equal importance to arbitration, mediation and litigation, plan, deploy and promote these three methods at the same level, so as to give full play to the roles of mediation and arbitration in the international commercial dispute resolution and truly make ADR as the first resort for dispute resolution.
Second, we should establish and improve the rules and regulations of "one-stop" diversified international commercial dispute resolution mechanism. In order to give full play to the roles of the people's courts, arbitration institutions and mediation institutions, we suggest studying and formulating the relevant work rules or guidelines on "one-stop" platform, clarifying the working mechanism and procedures on how people's courts should assist and cooperate with various institutions, instructing the arbitration institutions, mediation institutions and the China International Commercial Court ("CICC") to orderly carry out work on the "one-stop" platform, and publishing the working rules to increase the awareness of and trust on this "one-stop" diversified resolution mechanism of Chinese and foreign parties.
II. Increase the support for arbitration and mediation, placing litigation and ADR at the same level in international commercial dispute resolution
In recent years, the arbitration and mediation systems have been developing rapidly and have played significant roles in resolving international commercial disputes. However, we should realize the problems, among others, of unbalanced development and underperformance of arbitration and mediation and that their potentials have not been fully realized yet. These two dispute resolution methods should be promoted at a higher level. We should facilitate the development of arbitration as a dispute resolution means and improve the laws and rules of mediation with the guidance and support of the people's courts, so as to push the construction of the diversified international commercial dispute resolution mechanism to a new level.
First, we should support the revision of the Arbitration Law, incorporating into the Arbitration Law the concept and practice of the people's courts of supporting arbitration. The SPC has always been taking a positive attitude towards arbitration. In recent years, it has promulgated a number of judicial interpretations and documents, building up the concept of actively supporting arbitration at the highest judicial authority, encouraging the construing of arbitration agreements in a way that uphold their validity and recognizing and enforcing the arbitral awards to the fullest extent permitted by law in line with the spirit of the New York Convention. All of these efforts lend strong and powerful judicial support to the development of arbitration in China. The Arbitration Law is currently under revision. Great progress has been made in the legal regime to bring it more in line with international practice. For example, the Arbitration Law has introduced the concept of "seat of arbitration," adopted the system of "ad hoc arbitration", and permitted the arbitral tribunals to issue interim measures. The revision of the Arbitration Law needs the strong support of the people's courts as there are still some difficulties in the revision work. The concept and practices of the people's courts of supporting arbitration, as well as the achievements made on the establishment of the diversified international commercial dispute resolution mechanism shall be reflected in the Arbitration Law as revised, and turned into legislation, so that they will be endowed with stronger legal effect. Such effort will provide legislative guarantee for the "one-stop" diversified international commercial dispute resolution mechanism.
Second, we should facilitate the incorporation of the people's courts' recognition and enforcement of arbitral awards into the "one-stop" diversified international commercial dispute resolution mechanism. The organic convergence of litigation and arbitration is embodied in four aspects: examination of arbitration agreements, support for preservation measures at arbitration, and application for revocation or enforcement of arbitral awards. After an arbitral award or statement of mediation is made, in some cases, the dispute resolution is only considered final and conclusive after the award or agreement is enforced by competent people's courts. In practice, in some cases, the courts find that the conditions for the enforcement of the arbitral awards are insufficient, while in other cases, the courts do not enforce the arbitral awards by refusing the enforcement application. Incorporating the enforcement into the "one-stop" platform will help the enforcement bodies of the people's courts to better understand and support arbitration, and guide the arbitration institutions on how to improve the enforceability of the arbitral awards, ultimately, a "one-stop" and comprehensive resolution of international commercial disputes becomes a reality.
Third, we should give full play to the expertise of CICC and resolve the difficulties in commercial mediation. Commercial mediation is an integral part of the "one-stop" platform. At present, apart from the lack of the legislative support for commercial mediation, there are still many hindrances in the development of mediation, e.g., in the establishment of mediation institutions, mediation procedures formulation, mediation charges setting and other aspects. Commercial mediation is an independent legal procedure, which is different and separate from "people's mediation". When accepting a mediation case re-entrusted by CICC, a commercial mediation institution will charge a certain amount of fee to pay for the remuneration of mediators and overhead expense. If and when the parties request a judicial or arbitral confirmation of the statement of mediation after it is successfully made, the competent people's court or relevant arbitration institution will also charge litigation fee or arbitration fee. However, repeated charge undermines the flexibility, efficiency, low-cost and other advantages of mediation; it is not conducive to the functioning of the "one-stop" diversified international commercial dispute resolution mechanism.
Hainan International Arbitration Court ("HIAC") took the lead in establishing an International Mediation Centre in Hainan province on June 1, 2020, and, drawing on its own expertise, HIAC meticulously designs the mechanism for seamless connection between mediation and arbitration. A roster of international mediators is established, the rules for international commercial mediation are promulgated, and the fee is set, which is 50% of the standard fee for arbitration cases. If the parties reach a mediation agreement, they may, by concluding an arbitration agreement in advance or afterwards, file a request for arbitration to HIAC, seeking a statement of mediation or arbitral award. The agreement to mediation is made valid and enforceable in this way. The arbitration fee in such case will be charged at 50% of the standard arbitration fee. If the mediation is concluded without a settlement agreement, the parties may voluntarily submit the dispute to arbitration or alternative means. The mediation fee will be refunded to the parties after deducting the remuneration of the mediator and the expenses that have occurred. Nevertheless, the problem of repeated charge still exists, which brings inconvenience and confusion to the parties.
How to avoid repeated charge and lower the fees for mediation is a problem needs to be addressed in practice. We suggest that CICC, by drawing on its expertise as a professional think tank, comes up with a guideline to resolve the difficulties in the development of commercial mediation, so as to give full play to the role of commercial mediation in the "one-stop" diversified international commercial dispute resolution mechanism.
Fourth, we should support and promote the legislation of commercial mediation and improve the commercial mediation system.
A condition of the ratification of Singapore Convention in China is that the provisions of the Convention shall be aligned with the effective legal regime in China, for example, to make the existing provision of judicial confirmation of statement of mediation in China in alignment with the provision of direct enforcement of the mediation agreement, or to establish the rules and procedures supporting the enforcement of the agreement. The CICC may make the mediation agreement enforceable by way of a statement of mediation or a judgment, but this will not reflect the status and role of mediation as a system for the resolution of commercial disputes in parallel with litigation and arbitration. Commercial mediation is still a weak link in the "one-stop" diversified international commercial dispute resolution mechanism. The SPC holds an important position in the national legal system, and CICC plays a leading role in promoting the "one-stop" diversified international commercial dispute resolution mechanism. It is suggested that the SPC play a greater role in supporting the legislation of commercial mediation, improving the commercial mediation system, and making up the deficiencies of commercial mediation in the "one-stop" diversified international commercial dispute resolution mechanism.
III. Strengthen exchanges and cooperation, and realize complementation of advantages, resource sharing and common development
As an international commercial arbitration institution established by the Hainan Provincial Party Committee and Provincial Government to adapt to the reform and development of the Hainan Free Trade Port, the HIAC has established a corporate governance structure led by the Board of Directors, a governance mechanism in which decision-making, execution and supervision are mutually checked and balanced, and a world-class Board of Directors has been set up as the decision-making body. Members of the Board of Directors are authoritative experts from the legal and arbitration fields at home and abroad, one third of which are from overseas, and the Board of Directors is of international and authoritative significance. Five Board members of HIAC, namely, Zhang Yuejiao, Huang Jin, Johan Achiel Erauw, Liu Jingdong and Michael Hwang, are members of International Commercial Expert Committee of the SPC, making the board independent, open, impartial and professional arbitration, but also highly aligned with and complementary to the Committee.
Through strengthening its foundation, making up for its shortcomings, promoting its improvement, and constant reform and innovation, HIAC has achieved "six internationalizations", namely, the internationalization of decision-making body, enforcement body, governance mechanism, mediation mechanism, arbitration rules and arbitrator structure. Such a high degree of internationalization has enhanced the brand influence and coverage of Hainan arbitration on one hand, and promoted the specialization building on the other. With the dual blessing of high degree of internationalization and specialization, the social credibility and international influence of Hainan arbitration have been significantly improved. CICC is a court set up to resolve international commercial disputes by drawing on the advanced experience of international commercial courts of other countries and considering the national conditions of China. All aspects of CICC, from the composition of judges to the creation of the system of expert committee, have reflected a high degree of internationalization and specialization, demonstrating high authority and credibility. HIAC and CICC share the common goal in the pursuit of internationalization, specialization and credibility.
HIAC has 259 foreign arbitrators from 40 countries and regions. Some arbitrators are also members of International Commercial Expert Committee. It is also highly complementary to the team of judges of CICC in terms of the specialization and internationalization, and can share resources with CICC. HIAC explores the practice of appointing foreign arbitrators to handle domestic cases, so that foreign arbitrators can have a deep understanding of the laws and arbitration system in China, and promote the exchange and integration of Chinese and foreign arbitration systems. Last September, Tang Yijun, Minister of Justice, and Shen Xiaoming, Secretary of Hainan Provincial Party Committee, made a special visit to HIAC, and gave a full recognition of the work of HIAC.
CICC and the arbitration institutions in the "one-stop" platform are highly complementary to each other in terms of expert resources, operation, research and coordination. This may be the starting point. We may properly leverage the dual or multiple identities and international influence of the members of the International Commercial Experts Committee, members of the Board of Directors of the arbitration institutions and arbitrators, and to give play to the role of the expert think tank, so as to carry out theoretical and practical research and provide jurisprudence support for improving the "one-stop" diversified international commercial dispute resolution mechanism. Arbitration institutions and CICC can also establish a two-way recommendation mechanism. CICC can recommend members of the International Commercial Experts Committee to act as members of the decision-making body of the arbitration institution, arbitrators or mediators. Arbitration institutions can recommend members of their decision-making bodies, arbitrators with greater influence or mediators to act as members of the International Commercial Experts Committee. In this way, a mechanism of mutual recognition and recommendation, two-way and multi-directional exchange takes shape, and the development of the "one-stop" diversified international commercial dispute resolution mechanism is deepened. In the "one-stop" platform, institutions can also carry out overall planning and exchange and cooperate in aspects such as talent cultivation, business training, project research, think tank development and international exchange, and produce more achievements. HIAC is willing to cooperate with SPC in giving full play to the leading roles of various experts in the diversified international commercial dispute resolution mechanism, improve the two-way and multi-directional exchange mechanism, and actively contribute to the development of the "one-stop" diversified international commercial dispute resolution mechanism as a think tank.
As an old-saying goes, by drawing on the wisdom of people, one can perform any responsibilities, by drawing on the strength of people, one can succeed in any matters. HIAC, together with other arbitration institutions, will actively cooperate with CICC in the improvement of the "one-stop" diversified international commercial dispute resolution mechanism, and make greater contributions to the building of the rule of law in China.
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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.