Editor’s Note: The Fourth Seminar of the International Commercial Expert Committee of the Supreme People’s Court and Reappointment (New appointment) Ceremony of Expert Members was held successfully on September 25, 2024. Over 40 experts from more than 20 countries and regions focused on the theme of the “Collaborative Dialogue, Diverse Integration, Peaceful Development” during the seminar. Extensive and in-depth discussions were held within the framework of four specific issues. The texts of opening ceremony speeches delivered by the members of expert committee would be posted on the CICC’s website. 

ADDRESS AT THE FOURTH SEMINAR OF THE INTERNATIONAL COMMERCIAL EXPERT COMMITTEE OF THE SUPREME PEOPLE’S COURT OF CHINA

Hon. James Leslie Bain Allsop

Former Chief Justice of the Federal Court of Australia

International Judge of Singapore International Commercial Court

It is a great honour to be asked to join the expert group and it is an honour and a privilege to speak today.  

The expert group is a unique institution. I know of no other court around the world which has set up such a body. It is constituted to provide advice, and give assistance, to the CICC in mediation and other areas where assistance is sought. It is an exciting and innovative structure.

It reflects the deep internationalism of Chinese law and practice in matters of international commerce and transportation.  I speak most particularly of maritime law and international arbitration law.  

Over the years since the early 2000s, I have been able to observe the truly international character of Chinese law and practice in these fields.  

From 2005 to 2008, as a member of the Board of Governors of the World Maritime University, I met and conversed with the professors from the Shanghai Maritime University.  The University’s magnificent present campus was then still under construction.  In those conversations, I came to learn of the care and scholarship with which the Chinese Maritime Code and Chinese Maritime Procedure Law had been drafted.  The scholarship and attention to detail in preparing an outwardly looking, truly international law, reflecting the best of modern conventions and practice, was remarkable.  

At about this time as a judge of the Federal Court of Australia, I took part in the establishment of the relationship of co-operation between the maritime judges of the Fourth Civil Division with the maritime judges of the Federal Court of Australia.  This too was a remarkable venture which lasted some years, involving dialogue, conference exchanges and mutual understanding of approaches to maritime law and practice.  

During this time, I was teaching maritime law to post graduate students in Australia.  In this course, we taught by reference to convention and major codes and statutes from maritime countries.  Chief among these resources and teaching tools were the English translations of the Chinese Maritime Code and Chinese Maritime Procedure Law.  

The translation had been done with the same care and scholarship.  They were beautifully written, clear and succinct.  They were and are the epitome of great legal writing. They are, I understand, being updated.  

That this year is the 40th anniversary of the first maritime court in China is a testament to the huge strides in establishing a comprehensive, efficient and skilled maritime Court structure. The judges of the Chinese maritime courts are recognised as skilled, knowledgeable and efficient. In a case on which I sat in 2014 in dealing with an argument as to the more convenient forum, one of the reasons for deferring to the Ningbo Maritime Court was the Court’s expressed view that the case was being controlled by a competent and skilled maritime court.

The expert group of which I am honoured and humbled to be part of will assist in the carrying on of these great traditions of internationalism in international commercial law cases, including maritime and arbitration disputes.

That it is only proper to build internationalism into the law and practice of international trade and maritime affairs derives from the true internation character and origins of those matters.

These bodies of law are truly transnational and international in character.  They draw their sources not so much from the land-based communities which form the nodes of interaction, but from the activity, needs and expectations of the seafarers and merchants who engage in international trade.  For instance, maritime law is not the law of a people in a place; it is the law of maritime activity and of the humans who engage in maritime activity and commerce across the world.  It is of great importance to grasp this.  The people for whom maritime law exists are those who engage in seafaring and maritime commercial activity across the seas and across the world.

An illustration of the point I am seeking to make is the organisation of a marvellous treatise by a great American scholar, John Henry Wigmore published in 1928 called “A Panorama of the World’s Legal Systems”11.  Professor Wigmore identified 16 legal systems over history.  His first 12 were of peoples and places (influenced in choice and spelling from his place and time): Egyptian, Mesopotamian, Hebrew, Chinese, Hindu, Greek, Roman, Japanese, Mohammedan, Keltic, Slavic and Germanic.  The last four systems were not of communities and places, but legal systems built on more general conceptions. One was  the maritime legal system, formed by similar and harmonious conceptions in maritime and commercial centres. This reflected  as Wigmore said, “a unity of evolution as a single, distinct and continuous body of maritime custom”. Though expressed as custom, these rules were enforced as law in a-national guild maritime courts in the great maritime cities: a form of self-government of the sea. Though these are ancient expressions of the matter, they still have relevance. We see this living 20th and 21st Century reality if we focus correctly and attend to the nature of maritime law, and as importantly, to its sources, and to how it develops.  

The shaping of a distinctive maritime law from this source can be seen in many cases.  A small sample of expression of this formation of maritime law will suffice: the power of a court exercising admiralty jurisdiction (that is administering admiralty law) to set aside a contract (articles) of a seaman which purported to restrict contractually his right to sustenance and medical care; the formulation of a rule of private international law as to the proper law to govern a decision concerning the legal consequences of sale of a ship, as the law of the flag, such legal consequences  being characterised by the lex fori for the application of arrest legislation of the forum, and in so doing the rejection of the capricious outcome for maritime commerce of the usual non-maritime rule of the physical situs of the chattel (the ship) at the time of sale; the right to salvage and the duty to render assistance when human life is in peril where no such rights or obligations exist in terrene law in many nations.

International dispute resolution, like maritime law, has a rich history. It is to be found as much in the courts of the merchants at fairs, as in sovereign national courts.

It is often difficult to explain to those unfamiliar with the scope, scale and demands of international commerce that the law that regulates it must be truly international, involving compromise in everyone’s long range interests.  

The recently negotiated convention on the sale of ships by Admiralty Courts, suitably named the Beijing Convention given the Chinese involvement in its formulation and coming into existence, is a reflection of the continuing attention of the Supreme People’s Court to these considerations of international activity.

The work of creating internationally inspired commercial, arbitral and maritime institutions is a work in progress for each generation.  The creation of institutions for the fair and just resolution of international disputes and framing the laws and procedures of international commerce and international trade to rise above mere power of the strong is an honourable and just endeavour, of which the CICC and the Expert Group are part.

*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.