To provide judicial support for the Belt & Road Initiative ("BRI"), the Supreme People's Court of the People's Republic of China ("Supreme Court") launched two international commercial courts ("China International Commercial Court" or "CICC")1 in June 2018, which are respectively based in the southern Chinese city Shenzhen and the northern city Xi'an.2 The establishment of CICC is a ground-breaking innovation for the judiciary system in China, and may have a profound impact on the resolution of cross-border disputes arising from international commercial transactions connected to the BRI. Since their foundation, these courts have administered more than a dozen of cases. The Supreme Court has issued several judicial documents to guide the operation of CICC, such as the Provisions on Several Issues regarding the Establishment of the CICC,3 the Procedural Rules for the CICC,4 and Working Rules of the International Commercial Expert Committee.5 In December 2020, upon the Supreme Court's approval, the first local international commercial court was launched in Suzhou to adjudicate foreign related disputes in this city.
Salient features of the China International Commercial Court
CICC is similar to the circuit courts of the Supreme Court, seated outside Beijing yet being an integral part of the Supreme Court. As such, decisions rendered by the CICC are final and not subject to appeal, but may be revoked so that another tribunal of the same institution could retry the case anew. Only the justices of the Supreme Court who are familiar with international treaties and customs and practices of international trade and investment can sit on the benches of a CICC tribunal, which should be composed of three or more judges.6 These judges are also required to be capable of working in both Mandarin Chinese and English. The proceedings, however, are conducted in Mandarin Chinese only, and the representation can only be undertaken by Chinese-qualified lawyers.
CICC has a number of features that distinguish it from other PRC courts. First, as opposed to the common judicial practice in the country, CICC may include dissenting opinions in the decisions rendered,7 with a view to promoting judicial transparency and confidence of international actors in the Chinese judicial system. Second, a party can choose to submit documentary evidence in English without providing any translation if agreed by the opposing party, saving significant time and cost.8 Third, the taking of evidence, oral testimony and hearings can be conducted remotely with the aid of telecommunication and other technological means.9 Fourth, although the CICC judges are required to be Chinese nationals, an International Commercial Expert Committee consisting of Chinese and foreign legal experts has been constituted under the CICC. These prominent legal experts are retained primarily to assist CICC judges in ascertaining the content of foreign laws, to preside over mediations and to provide advice and suggestions on the formulation of judicial interpretations of the Supreme Court.10
For the judicial practice in China, the ascertainment of applicable foreign law has always been challenging. The CICC thus launched a "foreign law ascertainment platform" at the end of 2019 to assist the People's Courts of all levels, disputing parties, counsel, legislature, governmental agencies and arbitration institutions, among others, in this exercise.11
As it is usually the case, the CICC may exercise jurisdiction over a dispute with a jurisdictional nexus.12 Nonetheless, a 2019 Supreme Court opinion concerning judicial services provided for the BRI demonstrates that the Supreme Court is inclined to encourage and attract parties to an international commercial dispute to opt for the jurisdiction of CICC, even absent an actual connection with the forum.13
Comment
Since the foundation of the Dubai International Financial Centre Court in 2006 and the Singapore International Commercial Court in 2015, international commercial courts have been burgeoning in various jurisdictions.14 Some of these initiatives may be intended to compete with national courts in other jurisdictions and international arbitration for resolving international and cross border disputes.
The envisaged role and primary objective of CICC has some differences from these international commercial courts. As commentators noted, the CICC is strategically positioned to safeguard the interests of PRC companies, particularly the State-owned entities that have and will continue to engage in high-profile transnational investment and trade projects in the BRI and other regions.15 The CICC is also part of an effort to relocate the locus of BRI and other China-related dispute resolution to China, promoting the use of Chinese institutions for BRI disputes.16 Nonetheless, recent developments show that CICC also wishes to enhance its profile and capacity to handle international commercial cases that do not necessarily involve Chinese parties. As it works to gain confidence from potential parties who may be subject to its jurisdiction, the CICC represents a welcome effort in providing a wider range of dispute resolution mechanisms for consideration by participants in BRI projects.
1 The literal translation of the names of these two permanent institutions is "International Commercial Tribunal of the Supreme Court of the People's Republic of China".
2 Provisions of the Supreme People's Court on Several Issues Regarding the Establishment of the International Commercial Court (hereunder, "Provisions"), Court Explanation No 11 of 2018, promulgated by the Supreme People's Court, 27 June 2018, effective as on 1 July 2018). See also, A Brief Introduction of China International Commercial Court, CICC, 28 June 2018.
3 Provisions of the Supreme People's Court on Several Issues Regarding the Establishment of the International Commercial Court, Fa Shi [2018] 11, effective as of 1 July 2018.
4 Procedural Rules for the China International Commercial Court of the Supreme People's Court, promulgated by the Supreme People's Court, Fabanfa [2018] No. 13, effective as of 5 December 2018.
5 Working Rules of the International Commercial Expert Committee of the Supreme People's Court, Fabanfa [2018] No.14, published on 21 November 2018.
6 Provisions, Articles 4 and 5.
7 Provisions, Article 5.
8 Provisions, Article 9.
9 Provisions, Articles 10 and 18.
10 Working Rules of the International Commercial Expert Committee of the Supreme People's Court, the Supreme People's Court, Fabanfa [2018] No. 14, Article 3, effective as of 5 December 2018.
11 Foreign Law Ascertainment Platform
12 Provisions, Articles 2 and 3.
13 Opinions of the Supreme People's Court Regarding Further Providing Judicial Services and Guarantees by the People's Courts for the Belt and Road Initiative, No. 29 [2019] of the Supreme People's Court, effective as of 9 December 2019, paragraph 26. See also, Press Release of the Supreme Court, dated 27 December 2019
14 Such as the Abu Dhabi Global Market Court, the Netherlands Commercial Court in Amsterdam, the International Camber of the Frankfurt Regional Court, the International Chamber of the Paris Commercial Court.
15 L. Ang, International Commercial Courts and the Interplay between Realism and Institutionalism: A Look at China and Singapore, Harvard International Law Journal (Online Journal), 8 March 2020.
16 L. Ang, International Commercial Courts and the Interplay Between Realism and Institutionalism: A Look at China and Singapore, Harvard International Law Journal (Online Journal), 8 March 2020; Susan Finder, Some comments on the China International Commercial Court rules, Supreme People's Court Monitor, 11 February 2019.
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