Opinion Concerning the Establishment of the Belt And Road International Commercial Dispute Resolution Mechanism and InstitutionsFrom: CICC Updated: 2018-06-27
Recently the General Office of the Communist Party Central Committee and the General Office of the State Council of the People’s Republic of China (“PRC”) issued the “Opinion Concerning the Establishment of the Belt and Road International Commercial Dispute Resolution Mechanism and Institutions” (“The Opinion”) and a notice requiring conscientious implementation of the Opinion by relevant regions and departments.
The Opinion requires the thorough implementation of the spirit of the Nineteenth Party Congress and the Second and Third Plenums of the Nineteenth Party Congress, and, under the guidance of President Xi Jinping’s Thought on Socialism with Chinese Characteristics for the New Era, promoting international collaborations under Belt and Road, properly resolving commercial disputes arising during the course of the Belt and Road Initiative, equally protecting legal rights and interests of Chinese and foreign parties, creating a fair and just business environment, in order to provide more powerful judicial services and protections for the purpose of the implementation of the Belt and Road Initiative and the policy of promoting advanced and convenient trades and investments and the establishment of an open global economy.
The Opinion points out that the following principles should be complied with in respect of the establishment of the Belt and Road international commercial dispute resolution mechanism and institutions:
Uphold the principle of planning together, building together and benefiting together. Maintaining openness and inclusiveness. Advocating for active participation by experts specialising in international law as well as domestic laws of their respective jurisdictions from the Belt and Road Initiative participating countries. Respecting parties’ rights in engaging domestic and foreign experts for dispute resolution, so that the international character of the Belt and Road dispute resolution mechanism and the spirit of planning together, building together and benefiting together will be reflected.
Uphold the principle of justice, efficiency, and convenience. Studying and learning from existing international dispute resolution mechanisms. Establishing a widely accepted mechanism and institutions for international commercial dispute resolution, which suits the unique characteristics of Belt and Road participating countries. Resolving cross-border commercial disputes arising in the course of the Belt and Road Initiative with fairness and efficiency.
Uphold the principle of party autonomy. Respecting the rights of the parties from Belt and Road participating countries in respect of adopting different ways of dispute resolution and choosing domestic or foreign laws familiar to them. Actively applying international treaties and customs to protect legitimate rights and interests of all parties.
Uphold the principle of diversified dispute resolution. Fully considering the diversity of parties in the Belt and Road Initiative, the complexity of the types of disputes, and the differences in countries’ legislations, judiciaries, and legal culture. Actively developing and improving protective mechanisms, which integrate litigation, arbitration, and mediation proceedings to meet parties’ need from both China and abroad. Establishing the Belt and Road international commercial dispute resolution mechanism and institutions to create a stable, fair, transparent, and predictable business environment under the rule of law.
The Opinion points out that the Supreme People’s Court of PRC will establish international commercial courts, lead to establish a committee consisting of international commercial experts, support the resolution of commercial disputes arising in the course of the Belt and Road through mediation and arbitration etc., promote the establishment of efficient and diversified dispute resolution mechanisms, which integrate litigation, mediation and arbitration, create a convenient, expeditious and low-cost “one stop” centre for dispute resolution, and provide high-quality and efficient legal services for parties from the Belt and Road participating countries.
The Opinion highlights that the Supreme People’s Court will establish the First International Commercial Court in Shenzhen Municipality, Guangdong Province and the Second International Commercial Court in Xi’an Municipality, Shaanxi Province, in order to entertain cross-border commercial disputes. The Fourth Civil Division of the Supreme People’s Court will be responsible for coordinating and supervising the work of the two international commercial courts.
An international commercial expert committee consisting of experts, who are well versed in international law and domestic laws in their respective jurisdiction, will be established, and relevant operating rules of the committee will be enacted. Regarding cross-border commercial disputes between parties, the committee will attempt firstly to mediate and issue a mediation agreement if parties so agree. When Chinese courts hear cases, under which foreign laws need to be applied, the committee will provide expert opinion in that regard.
Domestic arbitration institutions with sufficient capacities and good international reputations are supported to conduct international commercial arbitrations under Belt and Road Initiative. Domestic arbitration institutions are encouraged to establish joint arbitration mechanisms with other arbitration instructions from Belt and Road participating countries. To attract more outstanding arbitrators, in China and overseas, to provide high-quality arbitration legal services for parties from the Belt and Road countries. When resolving cross-border commercial disputes relating to the Belt and Road, Chinese courts will provide judicial supports, including measures for property and evidence preservation, and actively enforce arbitration awards after convenient and expeditious judicial review.
Domestic mediation institutions with sufficient capacities and good international reputations are supported to conduct international commercial mediations under the Belt and Road Initiative. Law firms with satisfactory qualities are supported to take part in the Belt and Road international commercial mediations, with lawyers functioning fully in international commercial mediations, so as to smooth the channels for mediation services. Specified People’s courts may recognise the mediation agreements to be enforceable, which are issued by Belt and Road international commercial mediation institutions in resolving cross-border commercial disputes between parties from Belt and Road countries.
The Opinion requires that the Central Steering Group for the Belt and Road Initiative should be responsible and coordinate the works related to the establishment of the Belt and Road international commercial dispute resolution mechanism and institutions on a unified basis, the Supreme People’s Court should lead and implement specific work plans, and the National People’s Congress Supervisory and Judicial Affairs Committee, the National People’s Congress Standing Committee Legislative Affairs Commission, the Ministry of Foreign Affairs, the Ministry of Justice, the Ministry of Commerce and the China Council for the Promotion of International Trade should participate in relevant works.
The fruit of construction of smart courts should be utilised to establish with efficiency a Belt and Road legal database and some centres for foreign law ascertainment, to strengthen the management of informatisation and data analysis over cases in relation to the Belt and Road Initiative, and to provide intelligent service to judges to ensure correct and consistent judgments.
Relevant entities are supported to establish mechanisms for the prevention and resolution of international commercial disputes, together with non-governmental organisations, such as commercial associations and legal service institutions from Belt and Road countries.
Emphasising on cultivation and reservation of international legal professionals and establishing Belt and Road talent pool of legal experts, who are specialised in international law and international trade rules with English-speaking ability, to encourage legal experts to participate in dispute resolutions. Guiding domestic legal experts to bolster their studies on issues related to international commercial dispute resolution to generate a valuable series of achievements, and to convert such into practice. Exploring the possibilities of amending the Civil Procedure Law, Arbitration Law, relevant laws and administrative regulations, judicial interpretations, and other normative documents in order to provide ample legal basis and protections for the establishment of the Belt and Road international commercial dispute resolution mechanism and institutions.
*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.