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 CHINA INTERNATIONAL COMMERCIAL COURT:

TOWARDS AN INTEGRATED DISPUTE RESOLUTION SYSTEM

Shan Wenhua* and Feng Yunya**

Abstract

The recent proliferation of international commercial courts has become a distinct phenomenon in the landscape of international dispute resolution. While the newer international commercial courts have followed the earlier ones and exhibited features of 'specialisation' and 'internationalisation', some have gone further to develop a new feature of 'integration' by incorporating elements of other methods of dispute resolution--notably, arbitration--into their design and operations. In this regard, the newly established China International Commercial Court (CICC) breaks new ground by creating a 'one-stop' and diversified dispute resolution mechanism, which institutionally integrates litigation, arbitration, and mediation into one unified platform. This mechanism is guided by the idea of 'diversified dispute resolution mechanism' reform, promoted and practiced by the Chinese judicial system; underpinned by institutional arrangements such as the International Commercial Expert Committee (ICEC) and the Coordination and Guidance Office of the CICC; and implemented by procedural designs that deeply integrate international commercial litigation with arbitration and mediation. By conceptualizing the mechanism as an 'integrated dispute resolution' (IDR) system, enhancing institutional cooperation and setting up demonstrative IDR centres, the CICC and the 'one-stop mechanism' can be further improved to provide an innovative 'Chinese approach' to international commercial dispute resolution, for the Belt and Road region and beyond.

Keywords

China International Commercial Court (CICC); international commercial dispute resolution; integrated dispute resolution (IDR); Belt and Road Initiative (BRI)

I. Introduction

In July 2018, the China International Commercial Court (CICC) was established with two courts seated in Shenzhen and Xi'an respectively.[1] Within three years, it had already heard and decided on around ten cases. Although there have been a number of international commercial courts established in recent decades, the CICC has been the most closely watched by the international community,[2] as it is a specialized international commercial court established by the world's second-largest economy and a country that represents Eastern culture while implementing a distinct 'socialist market economy'. In substance, while the CICC generally follows the trends of newer international commercial courts, it presents certain distinct features, the most notable of which is that it attempts to systematically integrate litigation with the other two major methods of commercial dispute resolution — namely, arbitration and mediation — to create a 'one-stop' and diversified dispute resolution mechanism (hereinafter the 'one-stop mechanism').

This paper focuses on the integration feature of newer international commercial courts and particularly the 'one-stop mechanism' of the CICC. It presents an examination of the emerging global trend of 'integration' in commercial dispute resolution, as demonstrated by newer international commercial courts, followed by a closer look at the CICC's 'one-stop mechanism'. The paper concludes with suggestions on how to unleash the full potential of the 'one-stop mechanism', with a view to creating a more fully 'integrated dispute resolution' (IDR) system. It is submitted that through more sophisticated design and effective implementation, the IDR system may not only help with upgrading the commercial dispute resolution system within China, but may also provide a valuable new model for international commercial dispute resolution.

II. Integration: an emerging trend among international commercial courts

The proliferation of international commercial courts has become a distinct phenomenon in recent decades in the field of international dispute resolution. New courts have emerged not only in developed economies from Europe, such as the Netherlands, France, and Germany, but also in emerging economies from the Middle East and Asia, such as the United Arab Emirates, Kazakhstan, Singapore, and China.[3] While the newer international commercial courts have generally followed the good practice of earlier international commercial courts in strengthening their 'internationalization' and 'specialization' features, they have also demonstrated an emerging new trend: the feature of 'integration'. This development is particularly visible when looking into the rules of the newer international commercial courts, such as the Singapore International Commercial Court (SICC), Dubai International Financial Centre Courts (DIFC Courts), Abu Dhabi Global Market Courts (ADGM Courts), Qatar International Court and Dispute Resolution Center (QICDRC), Astana International Finance Center Court (AIFC Court), the Netherlands Commercial Court (the NCC), and the international commercial courts in Germany[4] and Belgium.[5] All these new courts have integrated elements of commercial arbitration in an effort to make them more appealing to the international business community. This integration feature is most commonly demonstrated in four aspects — namely, the determination of jurisdiction, selection of judges, acceptance of party autonomy, and the enforcement mechanism, as detailed below.

A. Determination of jurisdiction

Jurisdiction of civil litigation is normally stipulated by legislation which tends to require that the dispute have some real and substantial connection with the place of the court. In contrast, there is no such requirement for determination of jurisdiction in commercial arbitration. The jurisdiction of the arbitral tribunal is based on the arbitration agreement reached by the parties before or after the dispute arises. Clearly, the determination of jurisdiction in arbitration is more flexible, enabling arbitration tribunals to accept a wide range of commercial disputes, which in turn ensures the willingness of disputing parties to recognize and enforce arbitral awards rendered by the tribunals.

To attract disputing parties from around the world, some newer international commercial courts have absorbed the advantage of flexibility in the determination of jurisdiction in arbitration. Thus, the SICC can not only hear and try cases falling within the Singapore High Court's original civil jurisdiction, but it can also hear and try cases based on a written agreement reached by the parties.[6] Further, to guarantee the availability of the agreement jurisdiction, the SICC explicitly provides that '[A] court must not decline to assume jurisdiction in an action solely on the ground that the dispute between the parties is connected to a jurisdiction other than Singapore, if there is a written jurisdiction agreement between the parties'.[7] The jurisdiction clauses of the DIFC Courts are similar. Except for civil or commercial claims in relation to the DIFC, and the claim or action over which the DIFC Courts have jurisdiction in accordance with DIFC laws and regulations, the DIFC Courts may also 'hear and determine any civil or commercial claims or actions where the parties agree in writing to file such claim or action with it whether before or after the dispute arises, provided that such agreement is made pursuant to specific, clear and express provisions.'[8] The NCC jurisdiction rule, by contrast, is not as detailed, but more succinct. It provides that the NCC's jurisdiction may be based on an 'NCC agreement' reached by the parties which provides that 'parties agree to take the case to the NCC and to make English the language of the proceedings'.[9] As a result, the NCC can hear disputes solely between Dutch parties, disputes between Dutch and foreign parties, and cases between foreign parties where there is no link to the Dutch law.

Despite the differences in wording and details, the newer international commercial courts have actively engaged the advantages of arbitration by accepting jurisdiction based on the agreement of parties. Such an 'integration' undoubtedly enhances their competitiveness in international commercial dispute resolution. 

B. Selection of judges

Under domestic laws, disputants normally cannot choose the judges for their cases. Further, judges are normally required to be nationals of the country where the court is located. In contrast, disputants in arbitration and mediation can choose their arbitrators or mediators, who may come from different jurisdictions. Indeed, the right of choosing arbitrators constitutes the most important reason for the disputing parties to prefer arbitration over litigation.[10]

However, newer international commercial courts have started to loosen restrictions on the qualifications of judges, especially that of nationality requirement. For example, in 2014, Singapore revised its Constitution to admit foreign judges to the SICC.[11] At present, the SICC bench is composed of 36 judges, 16 of whom are international judges.[12] Similarly, the judicial bench of the DIFC Courts consists of three domestic judges and five international judges;[13] the judicial bench of the QICDRC consists of two domestic judges and 12 international judges;[14] while the eight judges of the ADGM Courts are all international judges.[15] The Brussels International Business Court even allows global experts in international business law to be appointed as lay judges.[16] Clearly, the newer ICCs are incorporating good practices of commercial arbitration as well in this regard. 

C. Acceptance of party autonomy

As noted above, among the advantages of international arbitration are the flexible procedural rules which give disputing parties more autonomy than traditional litigation. Parties to commercial arbitration are entitled to choose or modify the procedural rules of arbitration upon mutual agreement. In civil litigation, the applied procedural rules are stipulated by legislation, which is not subject to the discretion of the parties. Some of the newer international commercial courts, however, have decided to learn from international arbitration, offering more autonomy to the disputing parties in litigation proceedings. Such integration of party autonomy into litigation proceedings renders the form / processes of newer international commercial courts similar to that / those of 'arbitral courts'.[17] A good example is the SICC, which grants a high degree of autonomy to the disputing parties, particularly in confidentiality assurance, rules of evidence, and an appeal possibility that mimics arbitration in its litigation proceedings.

1. Confidentiality assurance

Confidentiality is considered a fundamental benefit of international arbitration.[18] Although there is an increasing demand for transparency in international commercial arbitration, arbitration hearings are generally held in camera. Only when the disputing parties request an open hearing does the arbitral tribunal decide whether to take a decision.[19] In contrast, most international commercial courts still require that cases be heard in public.[20] In this regard, the rules of the SICC on court hearings adopt an integrated approach. The default position of SICC proceedings is an open court hearing along with the publication of its judgment. Insofar as there is an agreement between the parties, or the case accepted is an 'offshore case',[21] the court may, on the application of one party, make an order that: (i) the case shall be heard in camera; (ii) no person must reveal or publish any information or document relating to the case; and (iii) the court file shall be sealed.[22]

2. Rules of evidence

In traditional litigation, rules of evidence are regarded as part of procedural matters governed by lexi fori, which are mandatory, and subject to no modification by the disputing parties. On the contrary, there is no uniform rule for evidence in international commercial arbitration. Arbitration institutions may have their respective rules of evidence or guidelines on evidence.[23] Where the parties have an agreement specifying the applicable evidence rules, their agreement shall prevail.[24] Unlike with traditional litigation, the SICC provides that the parties may, on mutual agreement, specify certain rules of evidence in replacement of all or part of the Singaporean rules of evidence.[25] In case both disputing parties are unfamiliar with the local law, such replacement of evidence rules shall help facilitate the settlement of disputes and increase the confidence of the parties to the court. Further, in order to guarantee the efficiency of litigation proceedings, the court has discretion 'for the just, expeditious and economical disposal of the proceedings' to modify the parties' agreement or stipulate further conditions.[26] Thus, flexibility of arbitration and the authority of litigation are integrated through the SICC's rules of evidence.

3. Appeal possibility

In most circumstances, international arbitration is subject to no appeal.[27] The award rendered by the arbitral tribunal is final and binding. The 'one-step' design which ensures time and cost efficiency has been considered one of the most significant benefits of arbitration over litigation. In traditional litigation, proceedings normally involve multi-tiered appeal avenues. To cater to the demand of procedural efficiency in the settlement of commercial disputes, international commercial courts integrate the 'one-step' feature of international arbitration into litigation proceedings. Similar to domestic litigation proceedings, decisions made by the SICC can be appealed to the Court of Appeal of Singapore. However, the parties can waive, restrict, or modify their right of appeal under the SICC with their mutual agreement.[28] A litigation proceeding without appeal mechanism will be attractive to commercial disputants who seek a fast and cost-saving dispute resolution mechanism, but for certain reasons are unwilling to resort to arbitration. 

D. An innovative enforcement mechanism

The enforcement of international arbitral awards depends on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (hereinafter 'the New York Convention'), regional international commercial arbitral treaties, and bilateral judicial assistance agreements with provisions on arbitral cooperation. Among them, the New York Convention plays the most significant role, as it has 160 contracting states that cover almost all the important economies.[29] In comparison, the recognition and enforcement of civil and commercial judgments rely primarily on bilateral or multilateral treaties, domestic laws, and the judicial practice of each state. The adoption of the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, in 2019, was an effort by international society to facilitate the enforcement of civil and commercial judgments. However, there remains a long way to go for its entry into force, for it has been signed by only three contracting states until now.[30] The problem of the enforcement of judgments will be even more severe for international commercial courts, since 'the parties before such courts may have little or no presence, and few (if any) assets within the state where the courts are located'.[31] Undoubtedly, the ease in enforcement of arbitral awards under the New York Convention is another major reason behind the continuing popularity of arbitration in resolving international commercial disputes.

Newer international commercial courts have attempted to alter such an imbalance. The DIFC Courts, for instance, have established an innovative enforcement mechanism by incorporating arbitration into litigation proceedings. Usually, the judgment of DIFC Courts can be enforced by virtue of a range of bilateral and multilateral treaties, as well as non-binding Memoranda of Guidance with other courts on the enforcement of judgments.[32] Apart from the above, the DIFC Courts created an unprecedented enforcement avenue, by 'converting' DIFC judgments into arbitral awards.[33] When parties submit to the jurisdiction of the DIFC Courts through a jurisdiction agreement, they may include within their submission an arbitration clause stipulating that any dispute arising out of the enforcement of any judgment pronounced by the DIFC Courts, and satisfying all of its Referral Criteria, shall be referred to, and resolved by arbitration at the DIFC-LCIA Arbitration Centre, or any other arbitration centre.[34] The arbitration centre would process the arbitration, and the dispute would be referred to the arbitral tribunal for its decision in the usual manner. This is conceptualized as a 'conversion' process, but it is not a 'conversion' in the strict sense of the word.[35] Nevertheless, it enables a judgment creditor to have an additional option for enforcement of the judgment. Theoretically, the arbitral award rendered by the arbitration centre acquires broader enforceability through the New York Convention than traditional judgments. Although so far, this innovative 'conversion' mechanism has not been used in any cases accepted by the DIFC Courts,[36] it is the first measure that gives international commercial courts an efficiency in the enforcement mechanism comparable to that of arbitration. This pioneering creation of the DIFC Courts integrates the authority of the judgment with the high enforceability of arbitral awards into one dispute resolution mechanism, which in all likelihood will increase the attractiveness of the DIFC Courts to commercial communities.

By incorporating the advantageous aspects of arbitration — in particular, determination of jurisdiction, the selection of judges, increased party autonomy, and a more effective enforcement mechanism — the newer international commercial courts have integrated with international commercial arbitration in the hope of creating more competitive dispute resolution options. Apparently, new international commercial courts have not adopted exactly the same measures in such integration, and some courts, such as the SICC and the DIFC Courts, have gone further than others. 

III. CICC: a 'one-stop mechanism' for international commercial dispute resolution[37]

The establishment of the CICC is the Chinese response to growing global competition in international commercial dispute resolution, particularly in the context of implementing the Belt and Road Initiative (BRI). Statistics show that since the announcement of the BRI in 2013, there has been a significant increase in commercial activities within the BRI region and, accordingly, a rise in cross-boundary commercial disputes. More than 200,000 cross-boundary civil and commercial cases were concluded by the Chinese people's courts during 2013–2017 — double the number during the previous five years.[38] The number of cases has continued to grow in subsequent years.[39] Comparatively, civil and commercial disputes within the BRI region are complex due to the diversity of legislation, judiciaries, and legal cultures across countries. Against this background, the CICC was created in an effort to resolve cross-boundary commercial disputes in a just, efficient, and convenient manner, with a focus on disputes arising out of the BRI's implementation.[40]

As has been noted by some observers, the CICC as it stands may not necessarily be regarded as an all-round, innovative international commercial court, but it is one with ambitions of 'conservative innovation'.[41] Nevertheless, the CICC is meeting dispute resolution needs in the BRI region and generally is in tandem with global trends in international commercial dispute resolution, particularly when it comes to developing the features of integration. Indeed, one of the most distinct features of the CICC is its deep integration with mediation and arbitration to create a 'one-stop mechanism'. Traditionally, litigation, arbitration, and conciliation are like 'three horses' running on parallel courses. As elaborated above, the newer international commercial courts have attempted to integrate elements of other dispute resolution methods — in particular, arbitration — to a certain extent. However, the 'one-stop mechanism' goes further by trying to integrate and coordinate the three elements within one mechanism: converting the 'three horses' into a 'troika' carriage, for it to provide more comprehensive and competitive dispute resolution services. As discussed below, the 'one-stop mechanism' is rooted in the Chinese concept of a 'diversified dispute resolution mechanism', which has been promoted by the Supreme People's Court (SPC) and practised by people's courts throughout the country, over the course of the judicial reforms of the new century. In practice, the 'one-stop mechanism' is realized by a series of institutional and procedural arrangements made by the SPC.

A. The conceptual basis

The concept of the CICC's 'one-stop mechanism' did not emerge from nowhere. It is rooted in the idea of a 'diversified dispute resolution mechanism' (DDRM), which was first referred to in the 'Outline of the Second Five-Year Reform of the People's Court', released by the SPC in 2005. As one of the reform measures of the litigation system, the Outline stipulates that the people's courts shall: (i) enhance and improve the involvement of mediation in litigation proceedings; (ii) support and supervise arbitration; (iii) explore new dispute settlement mechanisms; and (iv) facilitate the establishment and improvement of a diversified dispute resolution mechanism.[42] There were multiple reasons behind the establishment of the DDRM by the SPC. First, with the high-speed development of the economy and the deepening of social and economic reforms, the numbers, types, subjects, and contents of disputes in China have become increasingly complex and diversified. By itself, litigation — the most authoritative dispute resolution mechanism — is not sufficient to resolve all kinds of disputes. Consequently, there arose urgent demands for the development of a diversified dispute resolution mechanism. Second, in history, mediation as an 'Eastern experience' played a significant role in dispute settlement in China. In civil procedures, 'giving priority to mediation and combining mediation with litigation' is one of the working principles of the people's courts.[43] Meanwhile, various non-litigious dispute resolution mechanisms developed by non-governmental organizations have rapidly expanded in China, especially since the 1990s.[44] The rich experience accumulated by the people's courts and social organizations in the process laid the foundations for the establishment of the DDRM.

The establishment of the DDRM started with the explorations of a few local people's courts in China, from 2007. Since then, a number of local legislations have been promulgated to facilitate and regulate the DDRM at the local level.[45] Although there has been no legislation on the national level so far, an officially recognized system of the DDRM, pillared around central-government documents[46] and local legislation, has been set up. The mechanism includes the establishment of a platform connecting litigation and mediation, and a strengthened connection between arbitration and mediation.[47]

DDRM reforms do not stop at the borders of China. Rather, it has also been extended to cross-boundary dispute resolution. In June 2016, the SPC promulgated its 'Opinions on Further Deepening the Reform of Diversified Dispute Resolution Mechanism in the People's Courts', which expressly states that the courts shall 'promote the internationalization of the DDRM', making full use of the advantages of different methods of dispute resolution in order to serve the diversified needs of the Chinese and foreign parties in dispute resolution, and to provide judicial safeguards and services for the implementation of the BRI and other major national initiatives.[48] Indubitably, international commercial disputes that have arisen in the course of the BRI's implementation are more complex and diversified than ordinary domestic disputes in China.[49] A 'one-stop mechanism' certainly does a better job of settling cross-boundary commercial disputes related to the BRI, compared with traditional litigation, arbitration, or mediation.

The 'internationalization' of the DDRM was later confirmed by a series of official documents by the central Chinese government. As the most authoritative document for BRI dispute resolution mechanism construction, the 'Opinion Concerning the Establishment of the Belt And Road International Commercial Dispute Resolution Mechanism and Institutions' was issued in June 2018 by the General Office of the Communist Party Central Committee and the General Office of the State Council of the People's Republic of China. It highlighted the principle of diversified dispute resolution for the establishment of a BRI dispute resolution mechanism, and entrusted the SPC to establishing the CICC and International Commercial Expert Committee. This in turn promoted the establishment of a DDRM that effectively enjoins litigation with arbitration and mediation, thereby formulating an expeditious, efficient, and economical 'one-stop shop' dispute settlement centre.[50] In 2019, the SPC released its latest judicial reform plan, the 'Outline of the Fifth Five-Year Reform Programme of the People's Courts (2019–2023)', which reemphasized the importance of the establishment and improvement of the 'one-stop mechanism'.[51] Clearly, the concept of DDRM has guided judicial reform not just for domestic dispute resolution, but also when it comes to international dispute resolution — in particular, the establishment of the CICC and 'one-stop mechanism'.

B. Institutional arrangements

In order to facilitate the operation of the 'one-stop mechanism', the SPC has made a series of institutional arrangements — most notably, the establishment of the 'one-stop' platform, the International Commercial Expert Committee (ICEC), and the Coordination and Guidance Office (CGO) of the CICC.

1. The 'one-stop' platform

An institutional 'one-stop' platform combining litigation, arbitration, and mediation institutions lies at the heart of the 'one-stop mechanism'. Through the operation of the institutional 'one-stop' platform, disputing parties have access to any of the major dispute resolution alternatives. In December 2018, a batch of leading Chinese arbitration and mediation institutions was selected by the SPC as the first group of institutions to be included in the 'one-stop' platform.[52] They were to work together with the CICC for an IDR platform, where mediation, arbitration, and litigation would be effectively and efficiently connected. This marked the first milestone in the establishment of the 'one-stop' platform.

Given that the first batch of arbitration and mediation institutions included in the 'one-stop' platform were all Chinese institutions, it has been suggested that foreign institutions should also be included to improve the influence, public credibility, and attraction of the platform. In December 2019, the SPC responded positively to this suggestion and signalled that the CICC will expand the list of arbitration and mediation institutions included in the 'one-stop' platform, and will consider including foreign arbitration and mediation institutions.[53]

2. The ICEC

The ICECis an innovative device of the CICC, created by the SPC. The main purposes of the ICEC are to engage international experts in assisting the operation and development of the CICC and 'one-stop mechanism'. More specifically, the main functions of the ICEC include conducting mediation, offering legal opinions on issues such as the ascertainment of foreign laws, and offering other advice to the CICC and SPC.[54] The CICC does not have any foreign judges, as all judges are required to have Chinese nationality under the law. It is hoped that legal services and opinions provided by ICEC experts with diverse, international legal backgrounds could effectively make up for the lack of foreign judges in the court. At the time of writing, two batches of international commercial experts have been selected for the ICEC, including 55 distinguished judges, jurists, lawyers, and arbitrators from 26 countries and regions.[55]

In operating the 'one-stop mechanism', ICEC experts serve as a connector to link litigation, arbitration, and mediation. On one hand, ICEC experts can conduct mediation in international commercial cases, and in pre-trial mediation proceedings of the CICC. On the other, international commercial experts may provide legal advice on issues in cases heard by the CICC, including providing legal opinions on international and foreign laws when the ascertainment of foreign and international laws is involved.[56] CICC judges are also entitled to directly consult ICEC experts for legal opinions. Through their mediation and advisory involvement, these experts can provide strong support to the work of the CICC and 'one-stop mechanism'.

While it is clear that ICEC experts can directly engage in mediation and litigation proceedings in the 'one-stop mechanism', it is unclear whether they can be directly engaged in arbitration proceedings, as the relevant rules are silent on the latter. Since ad hoc arbitration is unavailable under the current Arbitration Law of China,[57] the only possible way for ICEC experts to participate in the 'one-stop mechanism' is by acting as arbitrators in cases administered by arbitration institutions of the 'one-stop' platform. As ICEC experts are selected from a pool of prominent and influential professionals in the field of international dispute resolution, it is highly likely that disputing parties will choose them as arbitrators in cases accepted by arbitration institutions within the 'one-stop' platform.

It is noteworthy that, in SICC proceedings, a registered expert may provide advice and prepare documents for the purpose of making submissions on matters of foreign law.[58] However, under the rules of the SICC, the registered expert is a representative of the disputing parties, whereas ICEC experts are directly under the administration of the CICC and SPC, thus constituting an integral part of the CICC's 'one-stop mechanism'.

3. The Coordination and Guidance Office

In order to lead, manage, and coordinate the development, adjudication, and external exchange activities of the CICC, and presumably the 'one-stop mechanism', the SPC set up the Coordination and Guidance Office (CGO).[59] The CGO has also undertaken the responsibility of administering the ICEC.[60] The establishment of the CGO marks a further step in the institutionalization of the 'one-stop mechanism', as it is the first specialized office for the CICC, the ICEC, and the entire 'one-stop mechanism'.

Through the setting up of a 'one-stop' platform; the consequent integration of litigation, arbitration, and mediation under one umbrella; the ICEC bringing in international expertise and experience; and the CGO taking care of daily operations, the CICC has successfully constructed an institutional framework for a unique 'one-stop mechanism' and itself.

C. Procedural rules

The operation of the 'one-stop mechanism' depends not only on institutional arrangements that integrate the three dispute resolution methods into one, but also on the procedural rules that implement the integration. As the CICC and 'one-stop mechanism' are still at an early stage of development, many more detailed rules are yet to be put in place. What exist now are rules for closer integration between litigation and mediation, and rules providing stronger judicial support for arbitration. 

1. Deeper integration between mediation and litigation

In the Chinese judicial system, 'giving priority to mediation and combining mediation with litigation' is affirmed as one of the working principles of the people's court in civil procedures.[61] This principle is also embodied in the CICC's rules, especially in the design of pre-trial mediation, which presents several distinct features as compared with mediation proceedings in traditional civil procedures. First, pre-trial mediation is a default regular procedure of CICC proceedings, and will go ahead unless the disputing parties object to it. By contrast, under the general civil procedure law, mediation is not such a default regular procedure, and will not proceed unless the disputing parties so agree. Second, in CICC pre-trial mediation proceedings, the parties are free to choose ICEC experts as mediators or to make use of the mediation institutions within the 'one-stop' platform to conduct mediation. By contrast, mediation under general civil procedure law can only be led by the judges of a people's court. Third, with regard to the period of mediation, in principle, proceedings of pretrial mediation are within 20 working days.[62] According to Civil Procedures Law, however, mediation shall not exceed 15 days in ordinary civil proceedings and seven days in summary proceedings.[63]

Once a case is accepted by the CICC, it will be directed to pre-trial mediation proceedings. If the parties do not agree on such pre-trial mediation, litigation proceedings shall follow.[64] At any stage in CICC proceedings, the disputing parties may initiate mediation upon mutual agreement.[65] They are entitled to choose among the ICEC experts and mediation institutions of the 'one-stop' platform for conducting the mediation proceedings. Although not expressly stipulated in the rules, it can be presumed that, in case the parties have not made any such choice, the CICC's judges shall preside over pretrial mediation. This has been confirmed in a subsequent SPC Opinion.[66]

In pretrial mediation, if the parties fail to reach a mediation agreement, the litigation proceedings shall be started automatically thereafter. The relevant case materials, including a Mediation Form, shall be submitted to the CGO. Mediation records or any concessions made during the mediation proceedings should not be held as unfavourable evidence against any of the parties, unless the parties have otherwise agreed.[67]

In case the parties reach an agreement in pre-trial proceedings, the CICC will review the agreement and issue a mediation statement, or issue a judgment (if so requested by the parties), based on the mediation agreement. Since the CICC is a judicial organ of the SPC, the mediation statement enjoys the same legal effect as an SPC judgment, which is final and binding, and is only subject to retrial by the SPC. The parties can apply to the SPC for the enforcement of any effective mediation statement.[68] In this connection, it should be noted that China has already signed (but is yet to ratify) the 'United Nations Convention on International Settlement Agreements Resulting from Mediation' (hereinafter 'Singapore Convention on Mediation').[69]

2. Stronger support for arbitration

Arbitration, with the advantages of flexibility, confidentiality, and stronger enforceability of arbitral awards, plays a critical role in commercial dispute resolution, especially in the BRI region.[70] For instance, cases involving Belt and Road countries registered at the China International Economic and Trade Arbitration Commission (CIETAC) — a leading Chinese arbitration institution — have continued to grow in recent years.[71]

In order to support the arbitration institutions of the 'one-stop' platform and to facilitate the settlement of disputes through arbitration, the CICC has made two breakthroughs in the design of its procedures. The Court provides that: where a party applies for preservation in certain international commercial arbitration cases, the arbitration institution can directly submit the application to the CICC; also, with regard to the enforcement or setting aside of an arbitral award made by arbitration institutions of the 'one-stop' platform in such cases, the application can be directly submitted to the CICC.[72] The condition for the preservation measure or execution / setting aside of an award is that the amount in dispute exceeds RMB300 million or the case is otherwise of 'significant influence'.[73] Under Chinese civil procedure law, such applications from a party to a foreign-related arbitration proceeding shall normally be directed to intermediate people's courts.[74] By breaking the hierarchical jurisdictional bar and escalating the judicial support to be provided by the highest court, the CICC provides the strongest possible judicial support to arbitration institutions in the 'one-stop' platform, and thereby more closely integrates arbitration with litigation proceedings.

In practice, the CICC has also accepted several cases in which the parties applied for confirmation on the validity of arbitral agreements.[75] In civil procedures, if a party to a foreign-related arbitration case wants to challenge the validity of an arbitral agreement, the application shall usually be submitted to the arbitration commission or to an intermediate people's court.[76] The fact that confirmation of the validity of an arbitration agreement is directly accepted by the CICC reduces possible delays and greatly improves the efficiency of resolving international commercial disputes. However, there is no stipulation on which kinds of cases qualify for being directly submitted to the CICC, regarding the confirmation on the validity of an arbitration agreement. As cases eligible for judicial support from the CICC are limited to those in which the amount in dispute exceeds RMB300 million or which are otherwise of significant influence, it can be inferred that this requirement may also be relevant to such applications.

IV. Towards IDR: ways forward for the CICC and 'one-stop mechanism'

Immediately following their establishment, in the middle of 2018, the first and second courts of the CICC accepted several international commercial cases involving parties including Japan, Thailand, Italy, and the British Virgin Islands. Disputes touched upon issues of illegal enrichment, product liability, shareholder verification, earnings distribution, damage to companies' interests, validity of arbitration agreements, and validity of arbitral awards.[77] Five of the seven concluded cases related to the CICC's support for arbitration (see Table 1).[78]

Table 1 CICC Cases Concluded by March 2021[79]

It is too early, however, to assess the performance of the CICC and 'one-stop mechanism', they having been established, at the time of writing, only three years ago. Clearly, the CICC is trying to demonstrate that it is active and efficient, and that the 'one-stop mechanism' is in operation, which cannot be denied. However, commentators have noted certain insufficiencies and limitations of the courts and their mechanisms, such as the rigid jurisdiction requirement, the uncertainty of judgments' enforceability beyond China, and the lack of foreign judges.[83] The biggest question regarding the 'one-stop mechanism' is its ambiguity, from conceptual basis to operational details, as very few rules are in place, and these few have barely been tested. 

It is therefore suggested that efforts should be made at three levels to improve the 'one-stop mechanism': at the conceptual level, it would be helpful to approach the 'one-stop mechanism' as an IDR mechanism; at the institutional level, the cooperation and integration of the three main methods of dispute resolution should be further enhanced, to ensure it is truly an 'integrated' mechanism; and finally, at a physical level, demonstrative IDR centre(s) might be set up to provide visible IDR models for international commercial dispute resolution. 

A. Conceptual development: an IDR system

The 'one-stop mechanism' established around the CICC is best conceptualized as an IDR system for international commercial dispute resolution. As elaborated above, 'integration' has become a new feature in such dispute resolution, as demonstrated by the practices of the newer international commercial courts that incorporate advantageous elements of alternative dispute resolution methods — most notably, international commercial arbitration. On the other hand, it might be said that international commercial arbitration has evolved from the practices of commercial litigation. For instance, more and more arbitration institutions have adopted codes of conduct that impose ethical requirements similar to those imposed on judges.[84] Further, an increasing number of countries have empowered arbitration tribunals to adopt interim measures that were traditionally reserved for public organs such as courts. In the ongoing discussions on reforms of investor–state arbitration, a number of options aimed at 'publicizing' or 'de-commercializing' investor–state arbitration have been proposed. These include the compulsory roster of arbitrators, arbitrators' code of conduct, and the appellate mechanism to investment court system.[85] Obviously many of these reform measures have been borrowed from the practices of courts. With regards to mediation, the integration of mediation with litigation and arbitration has been taking place for a long time, with mediation becoming a regular stage in arbitration and litigation procedures, particularly in countries such as China. Therefore, adopting the concept of IDR captures a distinct feature and an important trend of international commercial dispute resolution. 

At the same time, IDR also reflects the extensive experience of the Chinese judiciary in DDRM reforms, as elaborated above. Essentially, the reforms were to make use of multiple methods to cater for the increasing and diversified demands of individuals in dispute resolution. Indeed, the CICC's 'one-stop mechanism' has been regarded as an outcome of the 'internationalization' of the DDRM reforms. Ultimately, the DDRM and IDR reforms reflect a deep-rooted Chinese culture, He, which emphasizes harmony and cooperation rather than competition and conflict in social relationships. 

The concept of a 'one-stop mechanism' not only accurately captures the key features of the system, it is also a neat and catchy term, and as such, can help enhance the mechanism's visibility, development, and influence.

B. Institutional improvement: a more substantiated framework

At the institutional level, the operation of the IDR mechanism depends on the fluent connection of various dispute resolution alternatives and the strong support of ICEC members. The current institutional arrangement of the IDR mechanism is more like a general framework, which needs to be further substantiated. Two measures in particular might be important for its substantiation, including closer cooperation within the 'one-stop' platform, and a more fully functioning ICEC.

1. Closer cooperation within the 'one-stop' platform

The present 'one-stop mechanism' has only provided some details on the connection between litigation and mediation. In order to further substantiate the 'one-stop mechanism', it is important to build up a mechanism through which litigation, arbitration, and mediation are seamlessly connected. Taking the idea of the code-sharing system in civil aviation, the CICC may set up a 'case-sharing system' within the IDR system. Under the 'case-sharing system', once a case is accepted by an institution of the 'one-stop' platform, it will be registered by the CGO with a case code. When the case is transferred from one dispute resolution institution to another within the 'one-stop' platform, the new institution may add its own case code to it, although the unified IDR case code shall remain the same. A shared IDR case code will not only give each and every case within the 'one-stop' platform a unified identify code, it shall also facilitate the transfer of cases between different dispute resolution institutions. 

Regarding the transfer of cases between different institutions, it should be noted that the Civil Procedure Law provides that parties to a foreign-related dispute shall not file a lawsuit to the people's court if they have agreed to resort to arbitration.[86] This suggests that cases resorted to arbitration may not be allowed to be transferred to the CICC. However, the Arbitration Law provides that if one party to a dispute files a lawsuit without declaring that there is an arbitral agreement between the parties, and the court has accepted the case, litigation shall proceed in the absence of any objection from the other disputing party.[87] In this regard, Article 271 is not a strict 'fork-in-the-road' provision, as the court is entitled to admit a dispute that is subject to an arbitral agreement under certain conditions. Similar practices can also be found in Hong Kong, where under certain circumstances the court has the discretion to accept cases even after arbitration has commenced.[88] Accordingly, the Arbitration Rules 2018 of the Hong Kong International Arbitration Center (the HKIAC) provide that:

Where the parties agree to pursue other means of settling their dispute after the arbitration commences, HKIAC, the arbitral tribunal or emergency arbitrator may, at the request of any party, suspend the arbitration or Emergency Arbitrator Procedure, as applicable, on such terms as it considers appropriate. The arbitration or Emergency Arbitrator Procedure shall resume at the request of any party to HKIAC, the arbitral tribunal or emergency arbitrator.[89]

The CICC may include a similar provision in its procedural rules that allows cases accepted by an arbitration institution of the 'one-stop' platform to be resorted to the CICC upon mutual agreement of the parties. Likewise, arbitration institutions within the 'one-stop' platform may incorporate provisions similar to those of the HKIAC rules mentioned above, thus permitting suspension of the arbitration proceedings in the event that both parties agree to resort to the CICC. 

2. A more fully functioning ICEC

The ICEC is a Chinese innovation for the CICC and 'one-stop mechanism', that has been well received by the international community. As mentioned, it has been designed in a manner to make up for the lack of international judges in the CICC, through the introduction of eminent judges and scholars of recognized international standing, who shall provide mediation and advisory services. More specifically, these individuals' duties include presiding over mediation, providing legal opinions on CICC cases, and providing other opinions to the SPC on international commercial matters. So far, however, the role that ICEC members have actually played for the CICC seems rather limited. While the advisory role has been fulfilled by some ICEC members, more substantive work on mediation has barely been used.[90] Indeed, according to existing rules, the only avenue by which ICEC members might participate in mediation is through the pre-trial mediation procedure, which should in principle be completed within 20 days. This 20-day participation by international experts as mediators under the CICC system can hardly compare to the role that international judges play in the operation of the SICC or DIFC Courts. 

To live up to the expectations of the international community, and meet the CICC's need for international expertise, the ICEC's role needs to be significantly substantiated. One possible plan to substantiate the ICEC involves setting up an independent ICEC Mediation Center (ICEC-MC) and includes it in the CICC's 'one-stop' platform. ICEC-MC mediators comprise ICEC experts and experts of equivalent qualifications who shall mediate cases independently. The ICEC-MC accepts cases submitted by disputing parties, or conducts 'pre-trial mediation' as stipulated in relevant CICC rules. Mediation agreements reached by the disputing parties out of mediations presided over by the ICEC-MC can, after being checked and approved by the CICC, be converted into mediation statements or judgments, which shall enjoy the same legal effects as CICC judgments.

The establishment of the ICEC-MC will be a development of the working principle of 'giving priority to mediation' by the people's court. It increases the involvement of international commercial experts in international commercial cases, which further substantiates their role as 'mediators'. In comparison with other international commercial courts that only have a few foreign judges, the ICEC-MC will have over 50 renowned international commercial experts. ICEC-MC mediators are highly internationalized and specialized, which should better enable disputants to resolve international commercial disputes efficiently and economically. As the ICEC-MC will be a permanent mediation centre of high international profile, its establishment shall help increase the number of cases in the IDR system and promote the system around the world. 

C. Physical presence: an IDR centre and a 'central legal-services district'

The IDR system should not only stop at the conceptual or institutional level, but should also be realized in physical form. By housing leading ADR institutions under one roof, the Maxwell Chambers provide a window demonstrating Singapore's ambition to become a legal service and dispute resolution centre of Asia.[91] There are now more than 50 international dispute resolution institutions and numerous renowned local legal institutions residing in the Chambers, which have accepted over 200 cases.[92] During the coronavirus pandemic, the Chambers joined forces with the Dispute Resolution Centre of London, and the Arbitration Place of Toronto and Ottawa, to form the International Arbitration Centre Alliance, with the aim of reducing distance-, time-zone-related, and countless other challenges associated with planning and conducting international arbitration hearings and ADR proceedings in the wake of Covid-19.[93]

Likewise, IDR systems should be demonstrated by one or a few IDR demonstrative centres. The IDR centre should host all institutions within the 'one-stop' platform in one compound. Further, suitable infrastructure for all forms of legal services providers — such as law firms, notary publics, process serving companies, and patent agents — should be gathered in a relatively concentrated district, which can be called a 'central legal-services district' (CLD), surrounding the IDR centre. The idea of an IDR centre and a CLD was first proposed in 2017, and has been affirmed by relevant central and local governmental authorities in China. An IDR centre compound has been completed in Xi'an, where the seat of the second court of the CICC and the CLD have been constructed under the official name The Belt and Road Demonstration Zone for International Commercial Legal Services, approved by the Chinese central government. Beyond Shaanxi, several other provinces such as Guangdong (Shenzhen), Hainan, Jiangsu, and Sichuan have also unveiled similar plans. 

While it is important to realize the physical facilities of the IDR system, it is equally important for appropriate measures and incentives to be put in place in order to attract legal service providers to join such IDR centres and CLDs. The relevant authorities in Shaanxi, as well as those in other provinces, have adopted or are considering adopting such measure and incentives.

V. Conclusion

The emergence of new international commercial courts offers new options for the settlement of international commercial disputes. These are not only internationalized and specialized in dispute resolution operations, but also demonstrate the distinct new feature of 'integration', by integrating advantageous elements of arbitration and/or mediation into their litigation proceedings, resulting in blurred boundaries among the three. Such integration is reflected in the design of nearly every new international commercial court, especially in the acceptance of agreement jurisdiction, the selection of foreign judges, more party autonomy in litigation proceedings, and an innovative enforcement mechanism that 'converts' a judgment into an arbitral award.

The CICC was established to facilitate the development of the BRI and the settlement of cross-boundary commercial disputes. It not only follows the trend of recent international commercial courts in engaging internationalization, specialization, and integration, but also goes a step further in integration, by institutionally combining international commercial litigation, arbitration, and mediation into a 'one-stop mechanism'. Such a 'one-stop mechanism' is guided by the idea and practice of the 'diversified dispute resolution mechanism' (DDRM) reform promoted by the SPC throughout the Chinese judicial system. To implement the 'one-stop mechanism', the CICC has established a 'one-stop' platform, the ICEC, as well as the Coordination and Guidance Office. Meanwhile, the CICC has laid down procedural rules which closely connect mediation and litigation proceedings, providing the strongest possible support for arbitration. 

The CICC and 'one-stop mechanism' can nevertheless be improved further. At the conceptual level, the concept of IDR should be introduced to describe the distinct feature of the 'one-stop mechanism' more accurately. At the institutional level, cooperation between the CICC and arbitration/mediation institutions within the 'one-stop' platform should be further strengthened — for example, by adopting a 'case-sharing system'. The ICEC should be substantiated by establishing an ICEC mediation centre to make full use of the expertise of ICEC experts. On a physical level, it helps to have IDR centres and demonstration zones to further promote the IDR system in and beyond China, though it is equally important to adopt suitable measures and incentives to attract legal service providers to gather around them.

In slightly over two years, the CICC has become operative by presenting distinct features including the 'one-stop mechanism'. This has to be commended as a remarkable achievement. With more thorough design and proper implementation, it is believed that the CICC and the IDR system can contribute a unique Chinese approach to international commercial dispute resolution, providing equitable, efficient, expedient, and economical dispute resolution services for the BRI region and beyond.

Acknowledgements

This paper was developed on the basis of a paper first presented at the International Commercial Dispute Resolution Summit in the Context of the Belt and Road Initiative, held in Xi'an in September 2018, and then at the Dispute Settlement in the Belt and Road Initiative conference, held at the National University of Singapore in November 2019. The authors would like to thank the relevant conference organizers — in particular, Professor Jiangyu Wang, (then) of the National University of Singapore — for their hospitality during the conference. The authors are also grateful for the insightful comments and edits by the editors of the Asia Pacific Law Review, as well as the anonymous reviewers who commented on earlier versions. The authors nevertheless remain fully responsible for any errors this paper may contain.

*Shan Wenhua, Dean and Ministry of Education Yangtze River Chair Professor of International Economic Law, Xi’an JiaotongUniversity School of Law, Xi’an, People’s Republic of China.

**Feng Yunya, Ph.Din Law, Xi’an Jiaotong University School ofLaw, Xi’an, People’s Republic of China.

[1] Sun Hang, ‘The First International Commercial Court and the Second International Commercial Court of the Supreme People’s Court Started to Operate Officially’ (People’s Court Daily, 29 June 2018) <http://cicc.court.gov.cn/html/1/219/208/209/814.html> accessed 10 May 2020.

[2] See, e.g., Matthew S Erie, ‘The China International Commercial Court: Prospects for Dispute Resolution for the “Belt and Road Initiative”’ (ASIL Insights, 31 August 2018) <https://www.asil.org/insights/volume/22/issue/11/china-international-commercial-court-prospects-dispute-resolution-belt> accessed October 2021; Zhengxin Huo and Man Yip, ‘Comparing the International Commercial Courts of China with the Singapore International Commercial Court’ (2019) 68 International and Comparative Law Quarterly 903; Wei Cai and Andrew Godwin, ‘Challenges and Opportunities for the China International Commercial Court’ (2019) 68 International and Comparative Law Quarterly 869; Sheng Zhang, ‘China’s International Commercial Court: Background, Obstacles and the Road Ahead’ (2020) 11 Journal of International Dispute Settlement 150; David Holloway, ‘The New Chinese International Commercial Court and the Future of Dispute Resolution in the Belt and Road Initiative’ in Lei Chen and André Janssen (eds), Dispute Resolution in China, Europe and World, Ius Gentium: Comparative Perspectives on Law and Justice 79 (Springer 2020); Xiangzhuang Sun, ‘A Chinese Approach to International Commercial Dispute Resolution: The China International Commercial Court’ (2020) 8 The Chinese Journal of Comparative Law 45; Long Fei, ‘Innovation and Development of the China International Commercial Court’ (2020) 8 The Chinese Journal of Comparative Law 40; Lance Ang, ‘International Commercial Courts and the Interplay Between Realism and Institutionalism: A Look at China and Singapore’ (Harvard International Law Journal, March 2020) <https://harvardilj.org/2020/03/international-commercial-courts-and-the-interplay-between-realism-and-institutionalism-a-look-at-china-and-singapore> accessed 10 October 2020; Julien Chaisse and Xu Qian, ‘Conservative Innovation: The Ambiguities of the China International Commercial Court’ (2021) 115 AJIL Unbound 17.

[3] India, Uzbekistan, and Saudi Arabia have also established or have been considering the establishment of their international commercial courts. See Gillian Hadfield, ‘Saudi Arabia’s TechUtopia Neom Will Have to Reinvent the Rules to Succeed’ (TechCrunch.com, 24 December 2017) <https://techcrunch.com/2017/12/24/saudi-arabias-techutopia-neom-will-have-to-reinvent-the-rules-to-succeed/?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAFzE90b6mNQCIPatf9YBd0wEsHChYahx4MvpL0n7fKyVM14QCF_hjVf8UTGFZaOhwhAO2xFXyNEe4OVOIDdYI-TOYOEfRaN2y4qu0i9ebggt5L68gKPxuINIYP4o64Z_batqqDEU9UmJfJtwt9m6op7-NWlvORuYKMmdNMROxk2b> accessed 8 July 2021; Kiran Nasir Gore and Maria Fanou, ‘Interviews with Our Editors: Highlighting an Emerging Regional Hub with Ms Diana Bayzakova, Director of the Tashkent International Arbitration Centre (TIAC)’ (Kluwer Arbitration Blog, 27 November 2019) <http://arbitrationblog.kluwerarbitration.com/2019/11/27/interviews-with-our-editors-highlighting-an-emerging-regional-hub-with-ms-diana-bayzakova-director-of-the-tashkent-international-arbitration-centre-tiac> accessed 8July 2021; Sai Ramani Garimella and M Z Ashraful, ‘The Emergence of International Commercial Courts in India: A Narrative for Ease of Doing Business?’ (2019) 12 Erasmus Law Review 11.

[4] Jenny Gesley, ‘Germany: Regional Court of Frankfurt Establishes English-Speaking Chamber for Commercial Matters’ (Library of Congress, 6 December 2017) <https://www.loc.gov/law/foreign-news/article/germany-regional-court-of-frankfurt-establishes-english-speaking-chamber-for-commercial-matters> accessed 10 June 2020; Hess Burkhard and Boerner Timon, ‘Chambers for International Commercial Disputes in Germany: The State of Affairs’ (2019) 12 Erasmus Law Review 33.

[5] Guillaume Croisant, ‘The Belgian Government Unveils Its Plan for the Brussels International Business Court (BIBC)’ (Kluwer Arbitration Blog, 25 June 2018) <http://arbitrationblog.kluwerarbitration.com/2018/06/25/the-belgian-government-unveils-its-plan-for-the-brussels-international-business-court-bibc> accessed 15 November 2019; Erik Petermans and Philippe Lambrecht, ‘The Brussels International Business Court: Initial Overview and Analysis’ (2019) 12 Erasmus Law Review 42.

[6] Singapore International Commercial Court Procedural Guide, Art 2.1 <https://www.sicc.gov.sg/legislation-rules-pd/sicc-procedural-guide> accessed 9 July 2021.

[7] Singapore International Commercial Court Rules of Court (hereinafter ‘SICC Rules of Court’), O 110, r 8(2) <https://sso.agc.gov.sg/SL/SCJA1969-R5?ProvIds=PO110-#PO110-P4_7-pr8-> accessed 8 July 2021. 

[8] Dubai Law No. 12 of 2004, Art 5(A).

[9] See <https://www.rechtspraak.nl/English/NCC/Pages/jurisdiction-and-agreement.aspx> accessed 20 March 2021.

[10] 38% of users of international commercial arbitration ranked ‘Selection of Arbitrators’ as one of the three most valuable characteristics of international arbitration. See Queen Mary University of London and White & Case, ‘2015 International Arbitration Survey: Improvements and Innovations in International Arbitration’ (White & Case, 11 March) 6 <https://www.whitecase.com/sites/whitecase/files/files/download/publications/qmul-international-arbitration-survey-2015_0.pdf> accessed 9 July 2021.

[11] Constitution of the Republic of Singapore, Art 65(4)(c).

[12] See <https://www.sicc.gov.sg/about-the-sicc/judges> accessed 21 March 2020.

[13] See <https://www.difccourts.ae/about/court-structure/judges> accessed 6 April 2020.

[14] See <https://www.qicdrc.gov.qa/the-courts/overview> accessed 15 May 2020.

[15] See <https://www.adgm.com/adgm-courts/judges> accessed 10 May 2020.

[16] Croisant (n 5).

[17] Pamela K Bookman and Matthew S Erie, ‘Experimenting with International Commercial Dispute Resolution’ (2021) 115 AJIL Unbound 5.

[18] Gary Born, International Commercial Arbitration: Cases and Materials (2nd edn, Wolter Kluwer 2014), 2779.

[19] Such agreement is subject to limited mandatory obligations required by legislation, e.g. reporting obligations towards shareholders for publicly listed corporations or disclosure obligations to establish a cause of action in court. See Dolling-Baker v Merrett[1990] 1 Weekly Law Reports 1205; Valéry Denoix de Saint Marc, ‘Confidentiality of Arbitration and the Obligation to Disclose Information on Listed Companies or During Due Diligence Investigations’ (2003) 20 Journal of International Arbitration 21.

[20] E.g. the Qatar Financial Centre Civil and Commercial Court Regulations and Procedural Rules, Art 28.3 <https://www.qicdrc.gov.qa/sites/default/files/s3/wysiwyg/qfc_civil_and_commercial_court_regulations_date_of_issuance_15_december_2010_0.pdf> accessed 9 July 2021; ADMG Court Procedural Rules 2016, Art 173 <https://www.adgm.com/documents/courts/legislation-and-procedures/court-procedure-rules/adgm-court-procedure-rules-2016---amended-15-february-2021.pdf> accessed 9 July 2021; Rules of Procedure for the International Commercial Chambers of the Amsterdam District Court (NCC District Court) and the Amsterdam Court of Appeal (NCC Court of Appeal), Art 7.5 <https://www.rechtspraak.nl/SiteCollectionDocuments/draft-ncc-rules-june-2018.pdf> accessed 9 July 2021.

[21] ‘Offshore case’ is an action that has no substantial connection with Singapore and does not include any of the following: (i) any proceedings under the International Arbitration Act (Cap 143A) that are commenced by way of any originating process; (ii) an action in rem (against a ship or any other property) under the High Court (Admiralty Jurisdiction) Act (Cap 123). See SICC Rules of Court (n 7), O 110, r 1.

[22] SICC Rules of Court (n 7), O 110, r 30(2).

[23] The guidelines on evidence are not an integral part of the arbitration rules, and their application is subject to the consent of the parties in a specific case. See, e.g., China International Economic and Trade Arbitration Commission (CIETAC) Guidelines on Evidence <http://www.cietac.org/index.php?m=Page&a=index&id=107&l=en> accessed 7 July 2021.

[24] E.g. United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, Art 1(1); Singapore International Arbitration Centre (SIAC) Arbitration Rules, Art 42(6).

[25] SICC Rules of Court (n 7), O 110, r 23.

[26] Ibid.

[27] Only a few international arbitration statutes allow for an appeal on the merits of the case. Some jurisdictions allow an avenue of appeal on the basis of an error of law when the parties agree to this process (e.g. Israel, Hong Kong, and New Zealand), while others grant a general (waivable) right to appeal (e.g. Argentina, Chile, and Kenya). However, most countries do not allow appeals to courts, and those that do generally require consent or allow a waiver of the process. See Jan Paulsson and Lise Bosman (eds), ICCA International Handbook on Commercial Arbitration (Supplement No. 77, Kluwer Law International 2013).

[28] SingaporeInternationalCommercial CourtPractice Directions (effective 28 June 2021), Art 139(3) <https://www.supremecourt.gov.sg/docs/default-source/default-document-library/20210628-sicc-practice-directions.pdf> accessed 9 July 2021.

  Under the NCC rules, the right to appeal could also be waived by the parties. See Jan Willem de Groot, ‘Appeal Proceedings Under Dutch Law’ (Dutch Law Institute,3 March 2021)<https://dutch-law.com/appeal-proceedings.html> accessed 20 March 2021.

[29] The New York Arbitration Conventionon the Recognition and Enforcement ofForeign Arbitral Awards (10 June 1958) <http://www.newyorkconvention.org/list+of+contracting+states> accessed 4 April 2020.

[30] Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters <https://www.hcch.net/en/instruments/conventions/status-table/?cid=137> accessed 19 March 2021.

[31] Anselmo Reyes, ‘Recognition and Enforcement of Interlocutory and Final Judgments of the Singapore International Commercial Court’ (2015) 2 Journal of International and Comparative Law 337.

[32] The DIFC Courts now have Memoranda of Guidance with the English Commercial Courts, Federal Court of Australia, New South Wales Supreme Court, Kenya’s National Courts, Singapore’s National Courts, and the Judicial Court of the Southern District of New York. See ‘DIFC Courts Enforcement Guideline’ (DIFC Courts, 3 January 2016) <https://www.difccourts.ae/wp-content/uploads/2018/01/ENFORCEMENT-GUIDE-2016-AW.pdf> accessed 21 May 2020.

[33] Michael Hwang, ‘Commercial Courts and International Arbitration — Competitors or Partners?’ (2015) 31 Arbitration International 193.

[34] The Referral Criteria referred to in this model clause were defined in the draft Practice Direction as follows: (i) The judgment has taken effect in accordance with Rule 36.29; (ii) the judgment is a judgment for the payment of money (whether or not the judgment also provides for remedies other than the payment of money); (iii) there is an enforcement dispute in relation to the judgment; (iv) the judgment is not subject to any appeal and the time permitted for a party to the judgment to apply for permission to appeal has expired; and (v) the judgment creditor and judgment debtor have agreed in writing that any enforcement dispute between them shall be referred to arbitration pursuant to this Practice Direction. See Amended DIFC Courts Practice Direction No. 2 of 2015 — Referral of Judgment Payment Disputes to Arbitration <https://www.difccourts.ae/rules-decisions/practice-directions/amended-difc-courts-practice-direction-no-2-of-2015-referral-of-judgment-payment-disputes-to-arbitration> accessed 9 July 2021.

[35] Hwang (n 34).

[36] Matthew S Erie, ‘The New Legal Hubs: The Emergent Landscape of International Commercial Dispute Resolution’ (2019) 60 Virginia Journal of International Law 225.

[37] For an illustration of the operation of the CICC’s ‘one-stop mechanism’, see Cai and Godwin (n 2).

[38] ‘Questions and Answers to the Opinion Concerning the Establishment of the Belt and Road International Commercial Dispute Resolution Mechanism and Institutions of the Supreme People’s Court’ (最高人民法院负责人就《关于建立“一带一路”国际商事争端解决机制和机构的意见》答记者问) (Xinhuanet, 28 June 2018) <http://cicc.court.gov.cn/html/1/218/149/192/550.html> accessed 10 May 2020.

[39] Cao Yin, ‘Supreme People’s Court: Foreign-Related Civil and Commercial Cases Continue to Grow’ China Daily (Beijing, 25 May 2020) <http://cicc.court.gov.cn/html/1/218/62/164/1591.html> accessed 10 June 2020.

[40] Opinion Concerning the Establishment of the Belt and Road International Commercial Dispute Resolution Mechanism and Institutions (hereinafter ‘Opinion Concerning the BRI Dispute Resolution Mechanism’) <http://cicc.court.gov.cn/html/1/219/208/210/819.html> accessed 10 May 2020.

[41] Chaisse and Xu (n 2).

[42] Second Five-Year Reform Programme for the People’s Courts (2004–2008) (人民法院第二个五年改革纲要[2004–2008]), Point 7.

[43] Notice of the Supreme People’s Court on Issuing Several Opinions on Further Implementing the Work Principle of ‘Giving Priority to Mediation and Combining Mediation with Judgment’ (最高人民法院印发《关于进一步贯彻“调解优先、调判结合”工作原则的若干意见》的通知) (hereinafter ‘Notice of the SPC on Giving Priority to Mediation’).

[44] Long Fei, ‘The Establishment of a Diversified Dispute Resolution Mechanism from the Perspective of National Governance’ (论国家治理视角下我国多元化纠纷解决机制建设) (2015) 7 Journal of Law Application 2.

[45] See, e.g., Regulation on the Promotion of a Diversified Dispute Resolution Mechanism in the Xiamen Special Economic Zone (厦门经济特区多元化纠纷解决机制促进条例); Regulation on the Promotion of Diversified Dispute Resolution in Shandong Province (山东省多元化解纠纷促进条例). Meanwhile, a series of local regulations were enacted or put on the agenda in several provinces, including Heilongjiang, Sichuan, and Jilin. 

[46] See, e.g., Opinions on Improving the Diversified Dispute Resolution Mechanism for Conflicts and Disputes (关于完善矛盾纠纷多元化解机制的意见).

[47] Ibid.

[48] Opinions of the Supreme People’s Court on Further Deepening the Reform of the Diversified Dispute Resolution Mechanism of the People’s Courts (最高人民法院关于人民法院进一步深化多元化纠纷解决机制改革的意见) <http://cicc.court.gov.cn/html/1/218/62/84/648.html> accessed 9 July 2021.

[49] The BRI region covers common law, civil law, and Islamic law countries, and there can even coexist two legal systems in one country. In the United Arab Emirates, the general legal system is based on Islamic law, yet the legal system of the Dubai International Financial Centre carries the blueprint of English common law. See Alejandro Carballo, ‘ The Law of the Dubai International Financial Centre: Common Law Oasis or Mirage Within the UAE?’ (2007) 21 Arab Law Quarterly 91; Reza Mohtashami and Sami Tannous, ‘Arbitration at the Dubai International Financial Centre: A Common Law Jurisdiction in the Middle East’ (2009) 25 Arbitration International 173.

[50] Opinion Concerning the BRI Dispute Resolution Mechanism (n 41).

[51] Fifth Five-Year Reform Programme of the People’s Courts (2019–2023) (人民法院第五个五年改革纲要[2019–2023]) <http://www.court.gov.cn/fabu-xiangqing-144202.html> accessed 9 July 2021.

[52] Notice of the Supreme People’s Court on Inclusion of the First Group of International Commercial Arbitration and Mediation Institutions in the ‘One-Stop’ Diversified International Commercial Dispute Resolution Mechanism <http://cicc.court.gov.cn/html/1/219/208/210/1144.html> accessed 10 May 2020.

[53] Opinions on Further Providing Judicial Services and Guarantees by the People’s Courts for the ‘Belt and Road’ Initiative (最高人民法院关于人民法院进一步为“一带一路”建设提供司法服务和保障的意见) (hereinafter ‘Opinions on Further Providing Judicial Service for the BRI’), Art 28.

[54] Working Rules of the International Commercial Expert Committee of the Supreme People’s Court (for Trial Implementation) (hereinafter ‘Working Rules of the ICEC’), Art 3 <http://cicc.court.gov.cn/html/1/219/208/210/1146.html> accessed 9 July 2021.

[55] See <http://cicc.court.gov.cn/html/1//219/235/237/index.html> accessed 20 January 2021.

[56] Working Rules of the ICEC (n 55), Art 3.

[57] Arbitration Law of the People’s Republic of China (中华人民共和国仲裁法) (hereinafter Arbitration Law), Art 16 <http://english.mofcom.gov.cn/article/policyrelease/Businessregulations/201312/20131200432698.shtml>accessed 9 July 2021.

[58] SICC Rules of Court (n 8), O 110, r 1(1) and r 25(2).

[59] The CICC’s Coordination and Guidance Office was formerly known as the Office of the International Commercial Expert Committee. See ‘The Office of the International Commercial Expert Committee in the Supreme People’s Court Is Renamed as the Coordination and Guidance Office for the China International Commercial Court’ (CICC, 8 August 2019) <http://cicc.court.gov.cn/html/1/219/208/210/1313.html> accessed 10 May 2020.

[60] With regards to the specific duties of the CGO to the administration of the ICEC, see Working Rules of the ICEC (n 55), Art 5.

[61] Notice of the SPC on Giving Priority to Mediation (n 44).

[62] Procedural Rules for the China International Commercial Court of the Supreme People’s Court (for Trial Implementation) (hereinafter ‘Procedural Rules for the CICC’), Art 17 <http://cicc.court.gov.cn/html/1/219/208/210/1183.html> accessed 9 July 2021.

[63] Civil Procedure Law of the People’s Republic of China (中华人民共和国民事诉讼法) (CPL), Arts 93 and 94 <http://cicc.court.gov.cn/html/1/219/199/200/644.html> accessed 9 July 2021; Notice of the SPC on Mediation (n 67), Arts 3, 6, and 10.

[64] Procedural Rules for the CICC (n 63), Art 17.

[65] Opinions on Further Providing Judicial Service for the BRI (n 54), Art 29. 

[66] Ibid.

[67] Procedural Rules for the CICC (n 63), Arts 25 and 26.

[68] Provisions of the Supreme People’s Court on Several Issues Regarding the Establishment of the International Commercial Court, Arts 13, 16, and 17 <http://cicc.court.gov.cn/html/1/219/208/210/817.html> accessed 9 July 2021.

[69] Entered into force in 2020, it is the first multilateral legal instrument aimed at facilitating the cross-boundary recognition and enforcement of mediation agreements rendered by international commercial mediation. It is hoped that, over time, the Convention will play a key role, comparable to the New York Convention in international commercial dispute resolution. See United Nations Convention on International Settlement Agreements Resulting from Mediation (New York, 2018) <https://uncitral.un.org/en/texts/mediation/conventions/international_settlement_agreements/status> accessed 8 October 2020.

[70] Most BRI countries have established their domestic arbitration legal systems based on the UNCITRAL Model Law on International Commercial Arbitration. A number of international arbitration institutions are seated within the BRI region, including, e.g., SIAC, the Kuala Lumpur Regional Centre for Arbitration (KLRCA), Vietnam International Arbitration Center (VIAC), National Commercial Arbitration Centre (NCAC) of Cambodia, Dubai International Arbitration Centre (DIAC), and the Cairo Regional Centre for International Commercial Arbitration (CRCICA), among others.

[71] In 2018, 557 cases involving BRI countries were registered at CIETAC, with the total of RMB24.3 billion in dispute. See ‘Annual Report on China International Commercial Arbitration 2018–2019 Released, Summarizing Key Features of Cases Involving the BRI Region for the First Time’ (《中国国际商事仲裁年度报告》发布，首次总结“一带一路”沿线商事案件特点) (21st Century Business Herald, 6 November 2019) <https://k.sina.com.cn/article_1651428902_626ece2602000mgli.html?from=news&subch=onews> accessed 30 June 2020.

[72] Procedural Rules for the CICC (n 63), Arts 34 and 35. 

[73] Ibid.

[74]  CPL (n 64), Arts 272 and 273.

[75] ‘The First International Commercial Court of the Supreme People’s Court Conducted Formal Inquiry into Three Cases of Applications for the Confirmation of the Validity of An Arbitration Agreement’ (CICC, 9 April 2019) <http://cicc.court.gov.cn/html/1/219/208/210/1213.html> accessed 19 June 2020.

[76] If one of the parties submits to the arbitration commission for a decision, but the other party applies to a people’s court for a ruling, the people’s court shall give the ruling. See Arbitration Law (n 58), Art 20.

[77] See ‘The CICC Has Accepted a Batch of International Commercial Cases’ (最高法院国际商事法庭已受理一批国际商事纠纷案件) (CICC, 19 December 2018) <http://cicc.court.gov.cn/html/1/218/149/192/1150.html> accessed 10 October 2020.

[78] See ‘The First International Commercial Court of the Supreme People’s Court Conducted Formal Inquiry into Three Cases of Applications for the Confirmation of the Validity of An Arbitration Agreement’ (CICC, 9 April 2019) <http://cicc.court.gov.cn/html/1/219/208/210/1213.html> accessed 10 October 2020.

[79]  See <http://cicc.court.gov.cn/html/1/219/211/223/index.html> accessed 21 March 2021. Apart from the cases in the form, the CICC has also accepted a batch of cases involving disputes over such issues as standby letters of credit and the confirmation of shareholder qualifications. Public information shows that these cases are still pending. See ‘The China International Commercial Court Hears Its First Case’ (CICC, 30 May 2019) <http://cicc.court.gov.cn/html/1/219/208/210/1237.html> accessed 20 January 2021; ‘The Second International Commercial Court of the Supreme People’s Court Held a Public Hearing on Two Disputes Over Standby Letter of Credit’ (Head News Media Agency of People’s Court, 18 December 2020) <http://cicc.court.gov.cn/html/1/219/208/210/1922.html> accessed 20 January 2021.

[80] Provisions of the Supreme People's Court on Several Issues concerning Deciding Cases of Arbitration-Related Judicial Review, Art 2 <http://cicc.court.gov.cn/html/1/219/199/201/782.html> accessed 15 November 2021.

[81] Ibid.

[82] Ibid.

[83] See, e.g., Susan Finder, ‘Comments on China’s International Commercial Courts’ (Supreme People’s Court Monitor, 9 July 2018) <https://supremepeoplescourtmonitor.com/2018/07/09/comments-on-chinas-international-commercial-courts> accessed 8 July 2021; Erie (n 2); Chaisse and Xu (n 2).

[84] See, e.g., IBA Guidelines on Conflicts of Interest in International Arbitration <https://www.ibanet.org/MediaHandler?id=e2fe5e72-eb14-4bba-b10d-d33dafee8918> accessed 10 October 2020; Draft Code of Conduct for Adjudicators in Investor–State Dispute Settlement <https://icsid.worldbank.org/sites/default/files/draft_code_of_conduct_v2_en_final.pdf> accessed 9 July 2021.

[85] See, e.g., EU–Canada Comprehensive Economic and Trade Agreement (CETA), Art 8.29; Anthea Roberts, ‘Incremental, Systemic, and Paradigmatic Reform of Investor–State Arbitration’ (2018) 112 American Journal of International Law 410; ‘Possible Reform of Investor–State Dispute Settlement (ISDS): Submission from the European Union and Its Member States’ (UNCITRAL, 24 January 2019) <http://undocs.org/en/A/CN.9/WG.III/WP.159/Add.1> accessed 10 October 2020; ‘Possible Reform of Investor–State Dispute Settlement (ISDS): Submission from the Government of China’ (UNCITRAL, 19 July 2019)  <http://undocs.org/en/A/CN.9/WG.III/WP.177> accessed 10 October 2020.

[86] CPL (n 64), Art 271. 

[87] Arbitration Law (n 58), Art 26.

[88] Hong Kong Cap 609 Arbitration Ordinance, Art 20.

[89] Hong Kong International Arbitration Centre Administered Arbitration Rules (2018), Art 13.8.

[90]  So far there has been no cases of pre-trial mediation involving members of the ICEC, according to the CICC website. See <http://cicc.court.gov.cn/html/1/219/211/374/index.html> accessed 20 January 2021.

[91] See <https://www.maxwellchambers.com/about-maxwell-chambers> accessed 6 April 2021.

[92] See <https://www.maxwellchambers.com/directory-partners-related-services> accessed 19 January 2021.

[93] ‘Maxwell Chambers Forms International Alliance’ (In-House Community, 20 May 2020) <https://www.inhousecommunity.com/article/maxwell-chambers-forms-international-alliance> accessed 19 January 2021.

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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.