Editor's Note: The Second Seminar of the International Commercial Expert Committee of the Supreme People's Court and Appointment of New Members of the International Commercial Expert Committee was held successfully on December 8, 2020. The theme of this seminar is the Latest Developments of International Commercial Dispute Resolution Mechanism and the Research on Relevant Issues on International Law. The participants, on site or virtually, had discussions on the two topics, the Development of International Commercial Dispute Resolution Mechanism: New Situation and New Challenges and the Research and Application of International Law Related Issues in the Post-Pandemic Era, respectively. The texts of speeches delivered by the participants would be posted on the CICC's website. 

Some Thoughts on the Need to Pay Greater Attention to Public International Law in International Commercial Dispute Prevention and Settlement

Yi Xianhe (Sienho Yee)

It is a special privilege for me, as a public international law scholar, to be amongst the other members of the committee, and I thank all involved for this honor.

The special nature of this honor gives me both pleasure and concern; pleasure because I am one of the few, if not the only one, public international law persons on the Committee, concern also because I am one of the few, if not the only one, public international law persons on the Committee.

This gives me confidence to say that there is a need to pay greater attention to public international law in international commercial dispute prevention and settlement.

Often people would say that if a dispute is one about international commercial matters, it would be commercial law or at most private international law that would be applicable. Indeed, that is true, but it is also true that the resolution of many big and difficult cases in international commercial matters ultimately depends on the resolution of a public law issue having a strong component in public international law. We can also see that trade law disputes may ultimately become public international disputes when they go up to the WTO Appellate Body.

We can further see that in the highest courts of many countries, strictly commercial law issues do not figure as prominently as public law issues, including public international law issues. That is to say, if China International Commercial Court wishes to take a place amongst the most influential international commercial courts around the world, it may have to establish itself as a solid judicial decision-maker in public international law issues also.

Public international law can be important in a variety of ways, even in international commercial matters. A public international law issue may for some reasons become the main subject matter of the dispute. Such an issue may affect the interpretation of a commercial contract or a measure taken by a national public authority. Such an issue may place limits on what private actors can do. All these issues may come to courts for decision.

We all agree that the main goal in international commercial dispute settlement is to settle disputes. While settling disputes, judicial decisions will also speak to the future, however interstitially and incrementally. Accordingly, adroit decision-making in public international law will not only help settle commercial disputes, but will also help commercial actors order their lives in the future, and prevent disputes from arising.

In this regard, public international law decision-making may have an important task in helping to promote the harmonization of law across the world for commercial activities so as to achieve greater standardization and economy of scale. My recent studies in certain international cases give me the preliminary idea that it is important for judicial decision-making not to be too creative, but to be more predictable so that commercial actors may foresee what may come their way, and order their future activities accordingly. That is to say, it is better for commercial actors to be more creative than courts.

In this spirit, I believe that commercial actors may wish to try to take the future into their own hands by directly providing for rules of interpretation in their own agreements or contracts on how to interpret them so as to shape future decisions of courts and tribunals in a certain way, and by doing so, help to prevent disputes from arising. Often such agreements and/or contracts may designate a certain country’s law as the applicable law. But this usually is not specific or clear enough for many issues. If an agreement directly provides for how an agreement should be interpreted, that agreement on interpretation usually would be respected and becomes more specific and clearer than what a certain country’s law may provide. Finally, such rules of interpretation may provide that where a genuine ambiguity exists, the least onerous obligation should be found. This will point a future decision-maker in a certain direction in decision-making. In so doing, parties to commercial agreements or contracts will have some say in how these instruments may be interpreted down the road. And this may play an important role in preventing disputes.

I thank you all for your attention.

*The original text is English and has been translated into Chinese for reference only. If there is any inconsistency or ambiguity between the Chinese version and the English version, the English version shall prevail.

*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.