Practice and Improvement of International Commercial Dispute Settlement Mechanism
From: CICC ZHANG Yongjian Updated: 2018-08-26Good morning, everyone!
I am very pleased to discuss with you about the topic of construction, innovation and improvement of the international commercial dispute settlement mechanism. With the deepening process of economic globalization, it is very necessary to establish a fair, just and rational international commercial dispute settlement mechanism to provide more efficient, convenient, expeditious and low-cost solutions for resolving international commercial disputes. The international commercial dispute settlement mechanism includes litigation and alternative dispute resolution methods other than litigation, including mediation, arbitration and negotiation. Different dispute settlement methods have their own strengths. To establish an international commercial dispute settlement mechanism, we must respond to the need for fairness, professionalism, efficiency, convenience and costs-effectiveness when resolving international commercial disputes. It is necessary to integrate the advantages of various dispute settlement methods to establish a diversified dispute settlement mechanism. In the trend of economic globalization, some international commercial courts have been established to meet such demand. The United Arab Emirates established the Dubai International Financial Centre Court in 2004. Singapore, Kazakhstan, Netherlands and other countries have also established their own international commercial courts. On 23rd January 2018, President XI Jinping presided over the meeting of the Leading Group for Deepening Overall Reform with the leaders from the Central Committee of the Communist Party of China, where the Opinion Concerning The Establishment Of The “Belt And Road” International Commercial Dispute Resolution Mechanism And Institutions was assessed and passed, and it identifies the core concepts and basic model for China’s the international commercial dispute settlement mechanism. That is to establish an international commercial court, an international commercial expert committee and a diversified dispute settlement mechanism effectively integrating litigation, mediation and arbitration, so as to form a convenient, expeditious and low-costs "one-stop" dispute settlement centre. This does not only conform to the current trend of the development of the rule of law in the international community, but also constructs a fair, just, efficient, professional, transparent, convenient and low-cost international commercial dispute settlement mechanism, which contributes to the continuous optimization of the business environment under the rule of law and the creation of a new platform for international judicial cooperation.
I. The construction of China's international commercial dispute settlement mechanism is as follows. President ZHOU Qiang appointed the first group of eight judges of the China International Commercial Court on 28th June 2018. On the next day, the official website of the Supreme People's Court of China released the judicial interpretation of Provisions of the Supreme People’s Court on Several Issues Regarding the Establishment of the International Commercial Court（the Judicial Interpretation）. On the same day, the inauguration ceremonies of the First International Commercial Court and the Second International Commercial Court were held in Shenzhen and Xi'an respectively for the official start of operation. This morning, the International Commercial Expert Committee of the Supreme People's Court of China is formally established. President ZHOU Qiang has just delivered an important speech. The Supreme People's Court of China invited 32 Chinese and foreign legal experts to join the International Commercial Expert Committee, who specialize in international law as well as domestic laws of their respective jurisdictions and have ample practical experience and high international reputation.
II. The innovation of China's international commercial dispute settlement mechanism is as follows. We set up the international commercial court and the international commercial expert committee upon fully drawing upon the experiences from overseas commercial courts with particular emphasis on the needs of international business, the innovation of which is mainly reflected in the following aspects:
First is the innovative jurisdiction over international commercial cases. The scope of jurisdiction of their International Commercial Court is relatively broad pursuant to relevant legislation. Article 2 of the Judicial Interpretation provides that the five specific types of international commercial cases can be accepted, including for example: first-instance international commercial cases where the parties choose the Supreme People's Court of China as the forum by written agreement pursuant to Article 34 of the Civil Procedure Law and the subject matter is over 300 million CNY; and cases where the parties apply for preservation of assets in assistance with arbitral proceedings, setting aside or enforcement of arbitral awards pursuant to the "one-stop" dispute settlement mechanism prescribed by the Judicial Interpretation. The above provisions on jurisdiction reasonably determine the functions of the China International Commercial Court, which is also a significant innovation within the framework of the current Civil Procedure Law. It enables the China International Commercial Court to hear major and complicated international commercial cases by virtue of agreements on jurisdiction and transfer of jurisdiction (including transfer to higher court) etc., while maintaining the stability of the current jurisdictional system for foreign-related civil and commercial cases.
Second is the innovative mechanism of the International Commercial Expert Committee. The International Commercial Expert Committee established today is an important part of the innovation in the international dispute settlement mechanism. The members of the International Commercial Expert Committee are to provide advices on specific legal issues involved in cases heard by the court, and upon parties’ voluntary choice, directly participate in the resolution of international commercial disputes, for instance, by presiding over mediation. This innovation reflects not only China's emphasis on internationalization and professionalism in dealing with international commercial disputes, but also our mentality and stance of inclusiveness and opening-up.
Third is the innovative mechanism of the “one-stop” dispute settlement platform. In addition to the establishment of the International Commercial Expert Committee, the Supreme People's Court of China will also select qualified international commercial mediation agencies and arbitration institutions to jointly establish a diversified mechanism for international commercial disputes with the China International Commercial Court. Within this mechanism, the China International Commercial Court provides procedural support for international commercial arbitration institutions in terms of preservation of assets and evidences, and actively enforces arbitral awards upon expeditious judicial review. The China International Commercial Court will also give full play to international commercial mediation by making it legally enforceable in the form of mediation agreements or court decisions. According to Article 18 of the Judicial Interpretation, the China International Commercial Court will provide convenience for litigants through online litigation service platform, platform for transparent court proceedings and other litigation service platforms, and support online filing of cases, payment into court, online exchange and review of documents and evidence, online service, and online trial etc.
Fourth is the innovative mechanism of foreign-related commercial litigation evidences. From the perspective of facilitating litigations, there are some positive changes regarding the evidence rules in foreign-related commercial litigation of the China International Commercial Court as provided in the Judicial Interpretation. For the first time, the mandatory requirements for notarizing extraterritorial evidences are explicitly removed by the judicial interpretation. As the translating work of a large number of evidence and material in English in judicial proceedings always waste a lot of time and costs, it is stipulated that Chinese translations of evidence and materials in English may be exempted upon parties’ agreement. It is also stipulated that the China International Commercial Court may use information technology to investigate and collect evidences, organize cross-examination, and make full use of the achievements and experience of intelligent courts in China.
Fifth is the innovative mechanism of ascertaining foreign laws. The ascertainment of foreign laws has always been a tough problem for foreign-related proceedings. Article 8 of the Judicial Interpretation provides, in addition to the five ways stipulated in Article 193 of the Judicial Interpretation of the General Principles of the Civil Law, the channels through institutions providing law ascertainment services and members of the International Commercial Expert Committee. It is also open to other reasonable ways of ascertainment of foreign law, –for example ascertainment through the Internet, which is to ensure that the ascertainment of foreign laws can be more convenient and expeditious.
With the successful establishment of the China International Commercial Court and the International Commercial Expert Committee, the institutional innovations of China's international commercial dispute settlement mechanism are starting to be achieved, which brings Chinese wisdom and solutions to international commercial dispute resolution. We will take further step to improve the mechanisms of the China International Commercial Court and the International Commercial Expert Committee, fully implement the measures and plans for a diversified dispute resolution, and make full use of advantages of the “one-stop” dispute settlement centre, i.e. fairness, convenience, expeditiousness and low-costs, to provide high-quality and efficient judicial services to Chinese and foreign parties.
Thank you.
Related Links:
1. The Supreme People's Court Established the International Commercial Expert Committee
*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.