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 speeches delivered by the members of expert committee and distinguished guests during the discussion session on Topic One International Experience and Chinese Practice of International Commercial Courts: Procedural Rules, Case Management, and Building Judicial Credibility Building would be posted on the CICC’s website.

Further Improving and Perfecting China’s International Commercial Court System

HUANG Jin

Vice President of the China Law Society

Former President of the China University of Political Science and Law

2018 is the first year of the establishment of China’s International Commercial Court system. On 29 June of that year, the first and second International Commercial Courts of the Supreme People’s Court of China were respectively set up in Shenzhen, Guangdong Province and Xi’an, Shaanxi Province. The establishment and operation of the International Commercial Court of SPC is an important exploration of China’s new judicial system and a major innovation in China’s international commercial trial system. Over the past six years, the International Commercial Court of the SPC has carried out a great deal of productive work.

To further improve China’s international commercial court system, I would like to share the following four proposals. Please feel free to criticize and correct them.

I. On the construction of China’s international commercial trial system

After the establishment and operation of the International Commercial Court of SPC, in September 2019, with the ratification of SPC, the first and second Hainan foreign-related Civil and Commercial Tribunal were set up in Haikou and Sanya respectively. In November 2020, with the ratification of SPC, the International Commercial Court of Suzhou was set up as a specialized trial body of the Intermediate People’s Court of Suzhou City of Jiangsu Province, which was the first International Commercial Court set up in a local court. Subsequently, the SPC has ratified the establishment of International Commercial Courts in Beijing, Chengdu, Xiamen, Changchun, Quanzhou, Wuxi, Nanning, Hangzhou, Ningbo, Nanjing, and Qingdao. The flourishing rise of local International Commercial Courts has a double influence. On the one hand, it has strengthened the development of China’s international commercial trial. On the other hand, due to the lack of direct connection between the local International Commercial Courts and the International Commercial Courts of SPC, the divergence in their names, institutional systems, jurisdictions, and organizational structures, as well as the dependence on the SPC’s ratification to issue their affairs, there exists obvious insufficiency of systematization, specialization, intensification and standardization during the construction of China’s international commercial trial. Therefore, I suggest that we should attach great importance to the construction of China’s international commercial trial system, especially the institutional mechanism of international commercial courts. We should develop research, come up with practical and feasible solutions for integration, optimization, improvement and perfection, promote the establishment of a unified, coordinated, interconnected and organically linked international commercial trial system, and break the current fragmented pattern of international commercial courts.

II. On the jurisdiction of International Commercial Courts

Article 2 of the Provisions of the Supreme People’s Court on Several Issues Concerning the Establishment of International Commercial Court (hereinafter referred to as ‘the Provisions’) determines that five specific types of international commercial cases shall be accepted, reasonably determines the functions of the International Commercial Court, and makes significant innovations within the framework of the current Civil Procedure Law. The system of jurisdiction by agreement, transfer of jurisdiction, and escalation of jurisdiction enables the international commercial court to be qualified to hear major international commercial cases as well as complicated ones while ensuring the stability of the current system of jurisdiction over foreign-related civil and commercial cases. It should be noted, however, that the Provisions only determine that the International Commercial Court shall hear disputes arising from commercial activities between equal commercial subjects, and cannot accept investment or trade disputes between states, nor international investment disputes between investors and host states. In 2023, China published the Law on Foreign State Immunity, with a shifting position from absolute immunity to restrictive immunity. Article 7 of the Law regulates that “A foreign state shall not enjoy immunity from the jurisdiction of a court of the People’s Republic of China in a proceeding arising out of a commercial activity between the foreign state and an organization or individual of another state including the People’s Republic of China, which takes place within the territory of the People’s Republic of China, or takes place outside the territory of the People’s Republic of China but causes a direct effect within the territory of the People’s Republic of China.” In this way, I suggest expanding the scope of jurisdiction of the International Commercial Court, with the acceptance of commercial disputes involving foreign States especially Investor-State disputes under the Law on Foreign State Immunity.

III.On the finality of judgments of International Commercial Courts

Article 15 of the Provisions establishes that judgments and adjudications made by the International Commercial Court of SPC are legally binding. This means the International Commercial Court adopts the system of one-instance final judgment, which is a pioneer in the international commercial judicial field worldwide. The cases handled by the International Commercial Court are foreign-related or international commercial cases, which involve foreign or international elements. Therefore, it inevitably involves issues such as cross-border service of process, cross-border investigation and evidence collection, ascertainment of foreign law, application of foreign law, and recognition and enforcement of foreign judgments. Generally, when a domestic court recognizes and enforces a foreign judgment based on international treaties or reciprocity, it necessarily requires that the foreign judgment be a “final judgment”, which means the foreign court has made a binding and legally effective judgment on procedural and substantive issues in the litigation case under the provisions of its national law. In other words, it is a final judgment. In China’s foreign-related judicial practice, when judgments made by Chinese courts are submitted to foreign courts for recognition and enforcement, they often face doubts about their certainty or finality, which serves as a reason for foreign courts to refuse recognition and enforcement. This is because although China adopts a two-instance final judgment system, in practice, judicial remedies can still be obtained through retrial procedures or the prosecution appeal of the procuratorate, leading foreign courts to believe that the judgments made by Chinese courts under the two-instance final judgment system are not definitive or final. Therefore, under the consideration of the possibility of judgments made by international commercial courts being applied for recognition and enforcement abroad, to further enhance the competitiveness and credibility of international commercial courts, fully leverage their advantage of the one-instance final judgment system, and align with the prevailing international judicial practices, I suggest it should be clearly stipulated that judgments made by international commercial courts, as an exception, are definitive and final, and are not subject to retrial procedures.

IV. On the selection of judges for International Commercial Courts

Article 4 of the Provisions sets out the requirements that the selection of judges for the International Commercial Courts of SPC should be made by the SPC from senior judges who have rich experience in adjudicating cases, are familiar with international treaties, international practice, and international trade and investment practices, and are proficient in the use of both English and Chinese as their working languages. This is a requirement for judges’ working ability and experience. In fact, the selection of judges should also satisfy the requirements of China’s Constitution and the Law of Judges. However, the Constitution and the Law of Judges require that judges must have the nationality of the PRC, obtain legal professional qualifications through the State Unified Legal Professional Qualification Examination, and be appointed or removed through the president of the court to the Standing Committee of the People’s Congress. Obviously, China’s International Commercial Court cannot employ foreign judges. Nonetheless, I suggest that, on the premise of complying with the existing laws, in order to further enhance the representativeness, professionalism, and breadth of the judges of China’s International Commercial Court, to further implement the policy of “one country, two systems”, to further promote the integration and development of Guangdong, Hong Kong and Macao in the Greater Bay Area, and to further enhance the attractiveness and competitiveness of China’s International Commercial Court, the SPC could consider Selecting Chinese judges from Hong Kong SAR and Macao SAR to serve as judges of the International Commercial Court.

*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.