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. 

The Development of CICC's One-Stop Diversified International Commercial Dispute Resolution Platform: From the Perspective of Foreign Law Ascertainment

Xiao Jingyi

Executive President of Benchmark Chambers International & Benchmark International Mediation Center

Ladies and Gentlemen:

Greetings from Benchmark Chambers International & Benchmark International Mediation Centre. I am Jane Xiao. The privilege is all mines having been invited to this Seminar and may I express my sincerest congratulations to every expert upon the renewal of your appointment. 

On 29th November 2019, the Fourth Civil Division of the Supreme People's Court signed a cooperative framework agreement with BCI&BIMC and four other institutions to establish a unified platform for foreign law ascertainment. Over 50 international commercial legal experts from different jurisdictions were invited to provide ascertainment service and the Platform was launched subsequently on CICC's official website. In July 2021, it was annexed into SPC's One-Stop Diversified International Commercial Dispute Resolution Platform and has become one of the liveliest sectors of the One-Stop Platform ever since. 

I would like to share some of my understandings on the development of the One-Stop Platform, from the perspective of a foreign law ascertainment institution.

1. The Necessity of Building a Platform for Foreign Law Ascertainment

As exposed by judicial practices, ascertainment of foreign laws has long been quite a tricky issue for Chinese judges. It is basically caused by the mismatch between the demand for ascertainment and the deficiencies in traditional ascertainment methods.

1.1 Demand for Foreign Law Ascertainment Service

The increasing demand for foreign law ascertainment service is revealed by the quantity of foreign cases that come before the courts, as well as by the diversity of jurisdictions involved. 

1.2 Calls for Reforms on Traditional Ascertainment Methods

According to laws, regulations, and judicial practices, when Chinese Court applies foreign law in trying a case, it may conduct foreign law ascertainment in the following methods:

This scope was further expanded with the Provisions of the Supreme People's Court on Several Issues concerning the Establishment of the China International Commercial Court of the Supreme People's Court issued on 1st July 2018 by: 

i. provided by the institution rendering law finding services; or-

ii. provided by the member of the International Commercial Expert Committee.

We may just elaborate this point with a simulated case of how ascertainments are conducted BEFORE the establishment of the Platform: 

This is apparently unsatisfactory, as it could be painfully time-consuming and expensive for the Party to seek for and to match with a competent expert. On the other hand, it imposes great burdens on the court as series of review shall be conducted on assessing whether the expert is qualified for providing such an ascertainment service.

The Platform was established, precisely, in an effort to handle these issues and to form a basis for ascertainment institutions and CICC's experts to participate in ascertainment service. 

2. Functions of the Platform

Ever since its operation, the Platform obtained considerable attention. Its on-line operation enables easy connection between ascertainment institutions and the demand side, as well as the maintenance of judicial documents regarding cases where ascertainment is involved. 

From my perspective, the One-Stop Platform provides many benefits as followed:

2.1 Gathering

As illustrated above, the Parties were faced with difficulties in seeking appropriate ascertainment service. Not until the establishment of the Platform with over 50 international legal experts, as well as five of the most reputational ascertainment institutions nationwide, including BCI&BIMC, being integrated into its mechanism. Thereby, it substantially reduces costs for both the Parties and the courts.

2.2 Servicing

With a series of innovations on CICC's rules and practices, foreign law ascertainment, as a categorized legal service, has obtained recognition by the courts and has ever since played a significant role in judicial practices. An online network among these five ascertainment institutions and members of the International Commercial Expert Committee has been formed with the efforts of the Coordination and Guidance Office for China International Commercial Court of the Supreme People's Court

2.3 Bridging

The platform structures and ensures a solid connection between the service providers and demanders. It is accessible not only for people's courts at all levels, disputing Parties and their representatives, but also enterprises in need of ascertainment service for cross-border investment or dispute resolution, as well as arbitral tribunal, legislative, administrative body, or any other organizations demanding any extent of knowledge for foreign law. 

2.4 Demonstrating

International commercial dispute resolution has been increasingly attracting attentions with China's growing ambition on developing free trade zones/ports. Many of these free trade zones has drawn lessons from CICC's experience in establishing a One-Stop Platform for international dispute resolution, with foreign law ascertainment service being considered as an essential element. In my opinion, its exemplary effects may be concluded as followed: 

i. Implementing coordinative connections among every sector of international commercial dispute resolution, and respecting every institution for, subject to its nature, its own rules and features.

ii. Striking a balance among qualification, specialization and practical experience of the institutions and experts.

iii. Enhancing the development of on-line system, especially in distributing and matching the service and in constructing database for cases.

2.5 Propagating

The platform serves as a showcase to display the ideology and capacity of China's judicial system, reflecting the principle of transparency, showing our respect for international rules, as well as the sense of justice and fairness to all foreign Parties.

3. What is to be expected for the Platform?

3.1 Rulemaking

To constantly perfect the mechanisms of the Platform. The SPS is setting about introducing a judicial interpretation on foreign law ascertainment. This is believed to be a further improvement to the system, forming an even-more solid background for the development of the service.

3.2 Internetization

Internetization is one of the highlights of the Platform. The system must be updated from time to time, especially in enhancing the connectivity of all sectors and in enriching the database of cases.

3.3 Promotion of the Service

As mentioned above, the Platform is accessible by the whole communities. In order to enlarge its influence and to avoid duplication, we suggest, where applicable, to promote and orient some functional modules of the Platform to various kinds of organizations. For example, courts of all levels, stated-owned assets supervisors, administrative bodies of free trade zones, the law society, and associations of overseas Chinese, etc.

Thank you so much for listening. Goodbye!

Related Links: 肖璟翊：从域外法查明视角看国际商事法庭的“一站式”平台建设

*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.