Gao Zhiguo

President of the Chinese Society of the Law of the Sea
Convener Expert of the think tank of Dalian Maritime University

Editors' Note: On 25 May 2023, the Supreme People's Court (SPC) held a seminar on the construction of the "one-stop" diversified international commercial dispute resolution platform of the SPC and development of the Belt and Road demonstration zone for international commercial legal services in the Sixth Circuit Court and the No.2 International Commercial Court of the SPC, Xi'an. The theme of the seminar was "New Era, New Opportunities, New Development". The third batch of newly appointed international commercial expert members attended the seminar. The speech of Professor Gao Zhiguo, representative of the expert members, is hereby published.

In order to effectively enhance the efficiency of the foreign-related commercial dispute resolution mechanism under the Belt and Road Initiative (the BRI), the Supreme People's Court of China set up the First and the Second International Commercial Courts in Shenzhen and Xi'an respectively on June 29, 2018. The Fourth Civil Division of the Supreme People’s Court is responsible for coordinating and providing guidance on related work. [1]Since China International Commercial Court (the CICC) is responsible for ensuring the efficient and orderly operation of foreign-related economic activities through judicial proceedings, the requirements for the internationalism and professionalism of the CICC shall be higher than those of other domestic judicial organs. Therefore, in 2018, the Supreme Court took the lead in setting up an International Commercial Expert Committee (ICEC) for the CICC so as to provide advisory opinions and escort the settlement of foreign-related commercial disputes.

According to the Working Rules of the International Commercial Expert Committee of the Supreme People's Court (for Trail Implementation), members of the Expert Committee (“Expert Members”) assume duties in “mediations of international commercial cases, providing advisory opinions for ascertaining and applying international and foreign laws, providing advice and suggestions on the development of the CICC as well as the judicial interpretations and policies for the Supreme People's Court” and other aspects. [2]The establishment of the ICEC effectively matches the operation of CICC's diversified dispute resolution mechanism in which mediation, arbitration, and litigation coordinately connect. It adheres to the principle of “achieving shared growth through discussion and collaboration” and gives full play to the strengths in resolving disputes in a professional manner, playing a crucial role in protecting the legitimate rights and interests of Chinese and foreign parties concerned and creating a law-based business environment that is stable, fair, transparent, and predictable.[3]

It has not been long since ICEC was set up. Given that its operation is still in the early stages, constant explorations and practices are needed to better identify the role, specific duties, procedures of performing duties and supervision of Expert Members. There is much room for improvement in terms of the small amount of practices at present relative to the high requirements of carrying out foreign-related economic activities in an orderly and effective manner by giving full play to the role of ICEC as well as the experience and capacity of its members.[4]

1. Theoretical Basis for the Appointment of Experts by Judicial Organs around the World

Hiring experts to help resolve complex foreign-related disputes is the common choice of judicial organs in many countries, even international ones. This reflects the internationalism, professionalism, and diversity of relevant judicial organs. [5]From a theoretical point of view, hiring experts brings the court the following significant advantages in settling foreign-related disputes effectively:

(1) Make up for the weaknesses brought by the single nationality of judges in judicial organs or institutions. Parties concerned in foreign-related disputes may come from different countries and regions with different legal systems such as the civil law system, the common law system, and the Islamic law system. Different legal systems differ significantly in law formulation, interpretation, and application. However, judges in a certain country’s judicial organs are generally limited to citizens of the country, which means that judges in this country are generally proficient in interpreting and applying only one specific legal system or even just their national laws. This poses great limitations to their understanding of other legal systems and the ascertaining and application of foreign laws. [6]Therefore, hiring experts has become a common choice for foreign-related commercial courts in many countries including China, Singapore, the United Arab Emirates, and Kazakhstan, especially experts with different legal backgrounds, so as to make up for the shortcomings of domestic judges.[7]

(2) Provide professional skills and perspectives beyond the law to assist with dispute resolution. In addition to providing assistance in ascertaining, interpreting, and applying foreign and international laws, some experts with other professional skills can also use their skills to help the court better understand the background and essence of the disputes, and find out resolution measures that are more appropriate.

(3) Promote the operation of a diversified dispute settlement mechanism. The courts of all countries, as well as some of the international judicial institutions including the International Court of Justice, mainly settle disputes through litigation. However, compared with other dispute resolution mechanisms such as arbitration and mediation, litigation has disadvantages such as time-consuming, strict and rigid procedures, and relatively fixed judges. These problems have a greater impact in the commercial field. If the systemic defects in litigation cannot be properly dealt with, it will be difficult for commercial courts to effectively settle foreign-related commercial disputes. The existence of the ICEC enables commercial courts to explore more dispute resolution mechanisms besides litigation. In the mediation mechanism with Chinese characteristics, experts from the ICEC can directly preside over the mediation of specific cases if entrusted by CICC. [8]The introduction of other dispute resolution mechanisms such as mediation can, for one thing, enables the parties concerned to choose a more suitable way to effectively resolve disputes, and for another, saves existing judicial resources. Therefore, experts play an irreplaceable role in promoting the diversification of dispute resolutions in judicial organs or judicial institutions and in enhancing the connection between different dispute resolution mechanisms.

(4) Enable the judiciary to move towards internationalization better and more appropriately. The judiciary's ability to resolve foreign-related disputes is largely a reflection of the level of the rule of law in a country, and the introduction of experts from different countries with rich experience in handling foreign-related cases, especially those with high international influence , can effectively improve the internationalization of the judiciary. As far as China is concerned, despite remarkable achievements in economic exchanges with the outside world since the reform and opening up, China has never stopped in terms of opening up and implementing the internationalization strategy. Establishing the ICEC to engage experts in all aspects of foreign-related disputes is also an important manifestation of China’s unswerving commitment to the rule of law, opening up to the outside world, and internationalization.

Experts can bring huge practical benefits to the judiciary and the settlement of foreign-related disputes in terms of internationality, professionalism, and diversity. Because of that, the ICEC has continuously introduced experts from different countries, with three batches of Expert Members already appointed, to diversify the composition of the ICEC since its successful inception in 2018. In terms of effect, the Expert Members have used their professional strength and expertise in foreign-related legal matters to assist the adjudication work of the CICC and provided expert consulting and comments on many cases adjudicated by the CICC, which significantly underpins the operation of the CICC.[9]

2. Regulations and Practices of Experts Appointed by International Courts/Tribunals

Hiring experts to assist in resolving foreign-related disputes is a common choice of courts in various countries. In the field of international law, many international judicial institutions also have similar regulations and practices. The duties of experts differ in different judicial organs or judicial institutions. Some focus on providing consulting opinions to assist judges in resolving disputes, while others may directly participate in arbitration, mediation, and other dispute resolution procedures.

Relatively speaking, Singapore's judiciary leads the way in hiring experts. For example, the judges appointed by Singapore International Mediation Center (SIMC) are not only from 23 different countries and regions including China, Australia, France, Germany, and India, but also have expertise in a dozen of areas including accounting, banking, aviation, energy, IT, real estate, and telecommunications, which commends itself to parties involved in different types of commercial disputes. [10]Singapore International Arbitration Center (SIAC) has absorbed experts from more than 50 countries and regions to form its list of arbitrators. [11]In 2022, SIAC accepted a total of 357 new cases, with the amount of the subject matter reaching a staggering US$ 5.61 billion, of which 313 were foreign-related cases and 74 were from China. The data further prove that the introduction of experts is conductive to enhancing the internationalization, professionalism, and diversity of the judiciary.[12]

The Hong Kong International Arbitration Center (HKIAC) is another important commercial dispute resolution institution in Asia, which provides a variety of dispute resolution procedures including arbitration, mediation, and adjudication for parties to choose from. HKIAC’s official website provides a long list of arbitrators and mediators, including many well-known experts and scholars in different fields. Relying on a sound dispute resolution mechanism and a relatively long list of experts, HKIAC has heard a total of 277 arbitration cases and 12 mediation cases in 2021, of which parties from different parts of the Chinese mainland, the United States, the United Kingdom, and Switzerland contributed to the vast majority of disputes.

Dubai International Financial Center Courts (the DIFC Courts) are one of the influential commercial dispute resolution institutions in the Middle East. It pioneered the introduction of a detailed expert system. The Rules of the DIFC Courts 2014 contain a special chapter stipulating the roles and corresponding duties of experts in dispute settlement. For example, Article 31.3 stipulates that “It is the duty of an expert to help the Court on the matters within his expertise.” and Article 31.12 stipulates that “Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.” [13]By virtue of introducing experts to participate in dispute settlement and regulating the duties of experts, the DIFC courts have developed rapidly in recent years, and the types of disputes that can be handled have also expanded rapidly. In 2022, the DIFC courts accepted a total of 861 different cases with the amount of subject matter reaching US$1.2 billion.[14]

In addition to the above-mentioned judicial organs of various countries, experts also play an extremely important role in international judicial institutions, the most typical of which is the WTO. In the WTO dispute settlement system, if countries to a dispute fail to settle the dispute through consultation within the prescribed time limit, they can directly request the Dispute Settlement Body (DSB) to establish panels of experts. Panelists are nominated by the WTO Secretariat based on the indicative list of governmental or non-governmental experts. The parties to the dispute shall not oppose nominations by the Secretariat except for compelling reasons. Once the panel is set up, the dispute shall generally be settled within 6 months, and a panel report shall be distributed to the members. The report shall be adopted at a DSB meeting and directly bind the countries to the dispute unless a party to the dispute formally notifies the DSB of its decision to appeal or the DSB decides by consensus not to adopt the report. [15]In 2005, Chinese experts were included in the WTO’s indicative list for the first time.[16]

The International Chamber of Commerce, considering that the parties concerned in a dispute have a high demand for experts at all stages of dispute settlement, has specifically issued the International Chamber of Commerce Rules for the Proposal of Experts and Neutrals to help the parties concerned make better use of expert resources and better manage the involvement of experts in dispute settlement. In the Preamble to the Rules, the International Chamber of Commerce mentions that, upon the request of the parties concerned, the International Chamber of Commerce can provide the name of one or more experts or neutrals in a particular field. [17]In Article 2 of the Rules, the International Chamber of Commerce shall make all reasonable efforts to propose an expert or a neutral having the attributes set out by the requesting party. [18]According to the International Chamber of Commerce Rules for the Administration of Expert Proceedings, whether the expert’s findings or opinions are binding, or whether the expert’s opinions can be admissible in any arbitral tribunal depends on the parties concerned.[19]

In the International Criminal Court and the International Tribunal for the Law of the Sea (ITLOS), which are mainly used to deal with public law disputes, there are also provisions for hiring experts to assist in dispute settlement or other related matters. The International Criminal Court maintains the lists of experts who may be called to provide services at any time for any organ of the Court or to be participants in Court proceedings.[20]

In the ITLOS, subject to the very special Annex VIII “Special Arbitration”, any state party to a dispute concerning the interpretation or application of the articles of the United Nations Convention on the Law of the Sea relating to[21] (1) fisheries, (2 ) protection and preservation of the marine environment, (3) marine scientific research, or (4) navigation, including pollution from vessels and by dumping, shall be entitled to nominate two qualified experts in each field. The members of the special arbitral tribunal in Annex VIII are chosen from the expert list.[22]

To sum up, currently, judicial organs of many countries, including international judicial institutions, have extensively recruited experts in different fields to promote the settlement of various disputes.

3. Opinions and Suggestions on the CICC Bringing Experts’ Role into Play

Building the ICEC and attracting more Expert Members to participate in the settlement of foreign-related commercial disputes will help make the CICC more international, professional, and diversified. But all of this must be based on the fact that the role of experts can be fully utilized. At present, due to the short establishment of the CICC and the ICEC, the functions, powers and procedures of the ICEC and its Expert Members are not clear enough, which limits the role that they play to a certain extent. The Expert Members still have more room for improvement in assisting the CICC to effectively resolve foreign-related commercial disputes.

（1）The status and duties of the Expert Members and the ICEC need to be further clarified. According to the regulations of the Working Rules of the International Commercial Expert Committee of the Supreme People’s Court (For Trial Implementation), the ICEC mainly plays an auxiliary role. On the other hand, the Expert Members also assume the responsibility of mediation. But “mediation” and “auxiliary role” are two completely different jobs. In a specific case, whether the Expert Members and the ICEC can perform two functions at the same time and how to ensure their independence may be called into question. In addition, since Article 3 only stipulates that “the Expert Members and the ICEC can assume the duties entrusted by the CICC”, apart from serving the CICC, whether they can directly provide services to the parties concerned, such as mediation and the ascertainment of foreign law and international law at the request of the parties concerned cannot be learned from the rules. [23]Therefore currently, the status and duties of the Expert Members and the ICEC still need to be further clarified.

（2）The functions of the Expert Members and the ICEC to participate in court trials are limited. As a group in the CICC with rich practical experience and a deep understanding of foreign and international laws, if the Expert Members have more channels to participate in specific litigations, the CICC can be more professional, international, and diversified. However, the existing Expert Members and the ICEC can’t take part in the court trial as a third party, unless they are entrusted by the CICC. This limits their auxiliary role to the court. [24]Appropriately expanding their qualifications to participate in court trials, such as allowing the Expert Members to directly accept the entrustment of the parties concerned under certain conditions and participating in the trial as amicus curiae, may further strengthen the court’s professionalism, internationalism, and diversity.[25]

（3）The source of the Expert Members in the ICEC should be further expanded. According to Article 2 of the Working Rules of the International Commercial Expert Committee of the Supreme People's Court (For Trial Implementation), experts shall have expertise in international trade law, international investment law, and other fields of international commercial law, with internationally recognized authority. Currently, the vast majority of the Expert Members in the ICEC are professional personnel of law, especially of international law, and most of them are law professors and scholars. [26]However, considering that foreign-related commercial disputes require knowledge of different types of disciplines, countries such as Singapore and some international judicial institutions have added professionals with different disciplines to their recruitment lists or expert lists, so as to improve the abilities of judicial organs or judicial institutions in dispute resolution. Since the CICC bears the burden of economic cooperation and foreign-related commercial dispute settlement under the “the Belt and Road Initiative” (the BRI), it is necessary to bring more types of professionals into the talent pool in the future to make the CICC talent reserve more in line with international standards.

（4）The internal rules and supervision mechanism for the Expert Members and the ICEC need to be further improved. Although all the Expert Members in the ICEC are well-known and internationally recognized scholars, judges, and lawyers in related fields, in specific cases, there may be situations where opinions or suggestions are inconsistent due to different professional backgrounds and practical experiences. Regarding how the ICEC judges different opinions, and whether it needs to be responsible for the final opinions and suggestions, there is no clear regulation in the current Working Rules of the International Commercial Expert Committee of the Supreme People’s Court (For Trial Implement ation). Likewise, although the Rules stipulates that experts should uphold the principles of “independence, objectivity, and inpartiality” when expressing opinions and suggestions,[27] it still lacks clear provisions on the supervision mechanism. In order to effectively deal with potential problems in the performance of duties by the Expert Members and the ICEC, and to ensure their work, future rules need to be more detailed in the evaluation and supervision of the ICEC’s opinions and suggestions.

4. conclusion

It has been 5 years since the SPC established the ICEC. The ICEC’s current operation is quite successful as a whole, and it has also largely promoted the CICC’s professionalism, internationalism, and diversity, realizing the function and role of the court in the BRI. However, comparing the judicial organs of some other countries and international judicial institutions horizontally, there is still room for further improvement in the status, duties, composition, and supervision of the ICEC. Providing support for the Expert Members and the ICEC in settling foreign-related commercial disputes in China is a problem that needs to be further considered and resolved.

[1] China International Commercial Court, ‘A Brief Introduction of China International Commercial Court’, available at https://cicc.court.gov.cn/html/1/218/19/141/index.html.

[2] Working Rules of the International Commercial Expert Committee of the Supreme People’s Court (for Trial Implementation), Art 3.

[3] The Supreme People’s Court of China, ‘Excerpts from the Speeches of the Third Seminar of the International Commercial Expert Committee of the Supreme People’s Court of China’ (August 25, 2022), available at https://www.court.gov.cn/fuwu-xiangqing-369891.html

[4] Hui Huang and Jiawei Liu, ‘Discussions on the Improvement of the Efficiency of International Commercial Expert Committee’ (2023) 1 Journal of China West Normal University (Philosophy and Social Sciences), online edition first published on February 27, 2023.

[5] Wanshu Chen, ‘Innovation, Dilemma and Relief of the Operation Mechanism of International Commercial Expert Committee’ (2022) 5 Wuhan University International Law Review 73

[6] Yuan Xue and Yanqun Cheng, ‘The Establishment of “One-Stop” International Commercial Dispute Resolution Mechanism—from the Perspective of International Commercial Court’ (2020) 1 Politics and Law 152.

[7] Hui Huang and Jiawei Liu, ‘Discussions on the Improvement of the Efficiency of International Commercial Expert Committee’ (2023) 1 Journal of China West Normal University (Philosophy and Social Sciences), online edition first published on February 27, 2023.

[8] Working Rules of the International Commercial Expert Committee of the Supreme People’s Court (for Trial Implementation), Art 3.

[9] The Supreme People’s Court of China, ‘Excerpts from the Speeches of the Third Seminar of the International Commercial Expert Committee of the Supreme People’s Court of China’ (August 25, 2022), available at https://www.court.gov.cn/fuwu-xiangqing-369891.html.

[10] ‘Our Panel’, available at https://simc.com.sg/v3/mediators/?_sft_simc-panelist-type=industry-expert&_sfm_active_since=1979+2023.

[11] https://siac.org.sg/siac-panel-of-arbitrators.

[12] ‘SIAC Annual Report 2022’, available at https://siac.org.sg/wp-content/uploads/2023/04/SIAC_AR2022_Final-For-Upload.pdf.

[13] The Rules of the DIFC Courts 2014, available at https://www.difccourts.ae/rules-decisions/rules/part-31.

[14] ‘DIFC Court Annual Report 2022’, available at https://www.difccourts.ae/media-centre/publications/annual-reports/annual-report-2022-english.

[15] Chuanli, Wang, Guo Ji Jing Ji Fa [International Economic Law] (Beijing: China University of Political Science and Law Press, 2015) 192-193

[16] Ministry of Commerce of the People’s Republic of China, ‘Three Chinese Experts Included in the Indictive List of WTO Experts for the First Time’, available at http://tfs.mofcom.gov.cn/article/ztxx/200607/20060702577589.shtml.

[17] Preamble, ICC Rules for the Proposal of Experts and Neutrals.

[18] ibid, Art 2.

[19] Preamble, ‘Administration of Expert Proceedings’.

[20] International Criminal Court, Expert, available at https://www.icc-cpi.int/get-involved/experts.

[21] United Nations Convention on the Law of the Sea, annex VIII, Art 1.

[22] ibid, Art 3.

[23] Wanzhu, Chen, ‘Innovation, Dilemma and Relief of the Operation Mechanism of International Commercial Expert Committee’ (2022) 5 Wuhan University International Law Review, 78-79.

[24] ibid.

[25] Linping Yang, (2019). ‘Research on the Belt and Road International Commercial Dispute Resolution Mechanism—Centering on the China International Commercial Court of the Supreme People’s Court’ (2019) 25 People’s Judicature 37.

[26] ‘The Expert Directory of the ICEC’,  available at https://cicc.court.gov.cn/html/1//218/226/234/index.html.

[27] Working Rules of the International Commercial Expert Committee of the Supreme People’s Court (For Trial Implementation), Art 4 and 10.

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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.