Connectivity and Decoupling: Belt and Road Dispute Resolution in a Fractured Trade Environment

Abstract

A core theme of China’s Belt and Road Initiative (“BRI”) is connectivity, which extends to BRI-related dispute resolution. But BRI-related advances in dispute resolution connectivity will be occurring in an international trade environment that is becoming increasingly fractured; the extent to which a fractured trade environment might impede BRI-related opportunities for dispute resolution connectivity merits close consideration. A range of initiatives in Asia lower the risk of states “detaching” themselves from China. Particularly with respect to dispute resolution, China has participated in the conclusion of a Regional Comprehensive Economic Partnership agreement, the launch of the China International Commercial Court (“CICC”) and the International Commercial Dispute Prevention and Settlement Organization, as well as the development of a number of instruments that improve the enforceability of dispute resolution outcomes in a range of settings, including a few dozen bilateral treaties on judicial assistance as well as a set of multilateral instruments covering mediated settlement agreements (the Singapore Convention on Mediation), choice of court agreements (the Hague Choice of Court Convention), and court judgments (the Hague Judgments Convention). But a low risk of separation from China does not entail a low risk of criticism of China. Malaysia’s recent suspension, and subsequent resumption, of a few major BRI projects provides one clear example. In the particular context of dispute resolution, many responses to the launch of the CICC by China’s Supreme People’s Court have been critical or, at a minimum, skeptical. Rather than leading to separation, criticism instead can be a form of engagement. International engagement with the BRI and the Asian Infrastructure Investment Bank has been strong notwithstanding significant criticism of both initiatives. An increasingly fractured trade environment likely will not impede China’s advancement of dispute resolution connectivity, particularly given the active rulemaking and institution building occurring on China’s side of the divide.