International Commercial Court Research Articles

以中国国际商事法庭为例探究“一带一路”背景下的争端解决机制

以中国国际商事法庭为例探究“一带一路”背景下的争端解决机制

Challenges and Opportunities for the China International Commercial Court

China has confirmed its ambition to join in the global competition for international business dispute resolution services by establishing the China International Commercial Court (CICC). The CICC has now started its operation following a judicial interpretation issued by the Supreme People’s Court. By examining the trial process of the CICC as set out by the Supreme People’s Court and comparing the rules with other international commercial courts, this article provides a detailed overview and critical analysis of the issues concerning cases brought to the CICC. Overall, compared with the approaches adopted by other international commercial courts, the approach adopted by the CICC is conservative. Without bold innovations to China’s existing judicial system, the competitiveness of the CICC is likely to be limited. This article argues that it is desirable for the Court to be more actively reformed. Such reforms might also promote judicial reform in China generally and increase China’s institutional competitiveness in the global business world. This article also aims to outline the challenges that parties (in particular those from overseas) may face in litigation before the CICC and provide the international community with a critical analysis of the operation and framework of the CICC.

Paradigm shift; the emergence of arbitral forum shopping in CPEC investment disputes

Purpose The phenomena of arbitral forum shopping to resolve a commercial investment dispute is still under development and more complicated in many states. However, for Pakistan, it seems in an evolutionary phase, where the country is struggling hard to adopt the best practice of dispute resolution through forum shopping clauses. This struggle is even more inflated with huge Chinese investment through China Pakistan economic corridor (CPEC) projects in Pakistan, which come alongside with commercial investment disputes. For this purpose, the current treaty or contract-based system between China and Pakistan and litigation based domestic civil court structure look obsolete, hence, appear to require reinstatement of forum shopping clauses under concerned treaties or contracts for CPEC investment-related issues. Design/methodology/approach The authors choose a legal research method. The research design is a comparative analysis between CPEC contracts and dispute resolution mechanism between China and Pakistan and also the domestic civil court’s litigation system. This analysis selected by the authors due to inefficient bilateral investment arrangements and efficient resolution of future commercial disputes in CPEC. While the international arbitration system is included in the assessment were particular in the time and space context. The comparison comprises on dispute resolution clauses in free trade agreement (FTA) and bilateral investment treaties (BIT) between China and Pakistan and the system of resolving disputes by CPEC clauses. Findings The authors finds that in the absence of CPEC forum shopping clause under dispute resolution system, Pakistan is highly at risk to lose foreign investors, and therefore, set back the goal of long term economic sustainability in the region. However, China has already made its investment policies safer with establishing three international commercial courts (also referred to as Belt and Road courts), one in Xi’an for the land-based Silk Road Economic Belt, one in Shenzhen for the Maritime Silk Road and one in Beijing that will serve as the headquarters. These courts will be offering litigation, arbitration and mediation services. According to one view, China aims to have all belt and road initiative (BRI) disputes resolved by these courts. This makes Pakistan position more awkward and needs proactive measures, as CPEC investment is based on Pakistan foreign direct investment policies and legal structure. Therefore, it will be complicated and less favourable for Pakistan to deal with such cases under Chinese Courts. Originality/value The paper’s primary contribution is finding that comprehensive analysis of alternative dispute resolution mechanism between China and Pakistan over CPEC investment is inevitable. A socio-legal research combine with an examination of Singapore International Commercial Court functions and mechanism and CPEC plans further contributes to ascertain the best model of the settlement of commercial disputes under investments in Pakistan. This research paper anticipates future economic and legal problems, which Pakistan may encounter.

The Changing Perspectives of Chinese Law: Socialist Rule of Law, Emerging Case Law and the Belt and Road Initiative

Abstract This article identifies and clarifies some of the miscommunication between Chinese and English in the discussion of rule of law or rule by law. “Rule by law” is not a concept readily understandable by a Chinese audience because there is no acceptable translation or equivalent in Chinese. At the same time, the historical and contextual significance of the different denotations of “rule of law” in Chinese is often overlooked in an English-speaking environment. Meanwhile, the abstraction in critical examination of Chinese law often masks significant changes taking place in China’s construction of a “socialist rule of law with Chinese characteristics”, such as the emergence of a system of case law. The different components and aspects of such a system, ranging from the guidance cases system published by the Supreme People’s Court, to the largest database of judicial decisions in the world, and the newly established China International Commercial Court under the Belt and Road Initiative could fundamentally alter and structure, nature and principles of Chinese law as we know it.

Joinder of Non-Consenting Parties: The Singapore International Commercial Court Approach Meets Transnational Recognition and Enforcement

In this article we explore the approach of the Singapore International Commercial Court (the SICC) to jurisdiction and joinder of non-consenting parties and the way that any resulting judgments are likely to be treated by foreign enforcing courts. This novel juncture arises as international commercial courts, such as the SICC, rely predominantly upon party autonomy to enliven their jurisdiction over disputants. This does not require any territorial link of the parties or the dispute to the host jurisdiction (Singapore). At the same time, however, the SICC is granted a mandate under Singaporean law to join non-consenting parties, again with no necessary territorial link. Where such joinder occurs, any resulting judgment is likely to face significant difficulties if recognition and enforcement is sought outside of Singapore. To support this argument, we first set out the ways in which non-consenting disputants may be joined to proceedings before the SICC and offer some initial thoughts on how these powers are likely to be exercised. Second, we argue that any such exercise of jurisdiction – that lacks either territorial or consent-based jurisdiction grounds – is unlikely to gain support internationally, by reference to transnational recognition-and-enforcement approaches, and the SICC’s most likely recognition-and-enforcement destinations. Finally, we offer some concluding remarks about the utility of international commercial court proceedings against non-consenting parties, including the possibility they may impact on domestic recognition-and-enforcement approaches in foreign States.

CHALLENGES AND OPPORTUNITIES FOR THE CHINA INTERNATIONAL COMMERCIAL COURT

AbstractChina has confirmed its ambition to join the global competition for international business dispute resolution services by establishing the China International Commercial Court (CICC). The CICC has now begun operation following a judicial interpretation issued by the Supreme People's Court. By examining the trial process of the CICC as set out by the Supreme People's Court and comparing the rules with other international commercial courts, this article provides a detailed overview and critical analysis of the issues surrounding cases brought to the CICC. Overall, compared with the approaches adopted by other international commercial courts, the approach adopted by the CICC is conservative. Without bold innovations to China's existing judicial system, the competitiveness of the CICC is likely to be limited. This article argues that it is desirable for the Court to be more actively reformed. Such reforms might also promote judicial reform in China generally and increase China's institutional competitiveness in the global business world. This article also aims to outline the challenges that parties (in particular those from overseas) may face in litigation before the CICC and provide the international community with a critical analysis of the operation and framework of the CICC.

Requirements upon Agreements in Favour of the NCC and the German Chambers – Clashing with the Brussels Ibis Regulation?

In recent years, the Netherlands and Germany have added themselves to the ever-growing number of countries opting for the creation of an international commercial court. The Netherlands Commercial Court (NCC) and the German Chambers for International Commercial Disputes (Kammern für internationale Handelssachen, KfiH) will conduct proceedings entirely in English and follow their own, diverging rules of civil procedure. Aspiring to become the future venues of choice in international commercial disputes, the NCC law and the legislative proposal for the establishment of the KfiH allow parties to agree on their jurisdiction and entail detailed provisions regulating such agreements. In particular, the NCC requires the parties’ express and in writing agreement to litigate before it. In a similar vein, the KfiH legislative proposal requires in some instances an express and in writing agreement. Although such strict formal requirements are justified by the need to safeguard the procedural rights of weaker parties such as small enterprises and protect them from the peculiarities of the NCC and the KfiH, this article questions their compliance with the requirements upon choice of court agreements under Article 25 (1) Brussels Ibis Regulation. By qualifying agreements in favour of the NCC and the KfiH first as functional jurisdiction agreements and then as procedural or court language agreements this article concludes that the formal requirements set by the NCC law and the KfiH proposal undermine the effectiveness of the Brussels Ibis Regulation, complicate the establishment of these courts’ jurisdiction and may thus threaten their attractiveness as future litigation destinations.

The Singapore International Commercial Court: The Future of Litigation?

The Singapore International Commercial Court (‘SICC’) was launched on 5 January 2015, at the Opening of Legal Year held at the Singapore Supreme Court. What prompted the creation of SICC? How is the SICC model of litigation different from litigation in the Singapore High Court? What is the SICC’s track record and what does it tell us about its future? This article seeks to answer these questions at greater depth than existing literature. Importantly, it examines these questions from the angle of reimagining access of justice for litigants embroiled in international commercial disputes. It argues that the SICC’s enduring contribution to improving access to justice is that it helps to change our frame of reference for international commercial litigation. Hybridisation, internationalisation, and party autonomy, the underpinning values of the SICC, are likely to be the values of the future of dispute resolution. International commercial dispute resolution frameworks – typically litigation frameworks – that unduly emphasise national boundaries and formalities need not and should not be the norm. Crucially, the SICC co-opts a refreshing public-private perspective to the resolution of international commercial disputes. It illuminates on the public interest element of the resolution of such disputes which have for some time fallen into the domain of international commercial arbitration; at the same time, it introduces greater scope for self-determination in international commercial litigation.

Cryptocurrencies and Code Before the Courts (Blog Post)

In the rapidly developing cyber sphere of e-commerce and Fintech, dominated by cryptocurrencies and code, it is perhaps not uncommon for firms to focus on cutting-edge technological developments, leaving the law behind as an afterthought. However, the case of B2C2 Ltd v Quoine Pte Ltd (“B2C2”) may serve as a timely reminder of the importance of the legal principles supporting e-commerce and Fintech. In the first case of its kind, B2C2 raised several key questions before the Singapore International Commercial Court, seeking clarification on how the established legal concepts of breach of trust, mistake and unjust enrichment might apply in the context where an automated contract-forming software had produced unusual results. This decision represents the most comprehensive treatment by a Commonwealth court of the legal nature of cryptocurrencies and automated contract-forming software to date; a harbinger of further and more complex litigation to come, as disputes involving e-commerce and Fintech gradually start to reach the courts. In our recent case note, Cryptocurrencies and Code before the Courts (forthcoming in Kings Law Journal), we examine the decision in B2C2 and argue that while the case appeared novel, proper characterisation of the facts allowed existing legal doctrines to be applied.

COMPARING THE INTERNATIONAL COMMERCIAL COURTS OF CHINA WITH THE SINGAPORE INTERNATIONAL COMMERCIAL COURT

AbstractThe article critically reviews the litigation framework of the Chinese International Commercial Court (‘CICC’) using a comparative approach, taking as a benchmark the Singapore International Commercial Court (‘SICC’)—another Asian international commercial court situated within the Belt and Road Initiative (‘BRI’) geography. It argues that the CICC, despite being lauded as a visionary step toward an innovative, efficient and trustworthy dispute resolution system, does not live up to those grand claims on closer scrutiny. The discussion shows that the CICC is in many respects insular and conservative when compared with the SICC. The distinctions between the two litigation frameworks may be explained by the differences in objectives. Whereas the SICC was created to compete for international judicial business and bolster Singapore as a leading dispute resolution hub, the CICC is presently designed to provide a legal safeguard in BRI disputes with Chinese elements. This article also identifies major challenges confronting the CICC and sets out proposals for change.

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

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.

Situating the China International Commercial Court

Remarks from Hong Kong University School of Professional and Continuing Education, Belt, One Road, Many Laws Experts Talk Series.

The Adjudication Business

The recent proliferation of international commercial courts around the world is changing the global business of adjudication. The rise of these courts also challenges the traditional accounts of the competitive relationship between and among courts and arbitral tribunals for this business. London and New York have long been considered the forum of choice in international commercial contracts—whether parties opt for litigation or arbitration. More recently, however, English-language-friendly international commercial courts have been established in China (2018), Singapore (2015), Qatar (2009), Dubai (2004), the Netherlands (2019), Germany (2018), France (2010), and beyond. The emerging scholarship addressing these new courts tends to view them as engaged in a global competition with each other and with arbitration to create the most efficient dispute resolution mechanism. That account oversimplifies. The creation of each of these courts is driven by multiple, different factors on the ground. This Article makes four contributions. First, it offers a categorization of international commercial courts based on the forces apparently driving their creation. Second, it critiques the “race to the top” narrative both within the law-and-economics framework and outside it, drawing attention to the range of domestic and international forces driving the courts’ rise. The courts’ success therefore will not necessarily be based on the excellence of adjudication they provide, but rather on other metrics, like the number of cases or amount of investment they attract, that reflect what drove states to create the international commercial court in the first place. Third, these courts counter a traditional U.S. narrative that arbitration and litigation are opposites. International commercial courts borrow many features from arbitration, like expert adjudicators, confidentiality, and customizable procedures. These courts thus raise questions about what characteristics of arbitration and litigation are fundamental and what parties prefer. Fourth, the Article celebrates procedural innovation but warns international commercial courts against becoming beholden to either sovereign or private interests.

싱가포르의 분쟁해결문화와 ADR제도

Singapore has witnessed rapid economic growths for a couple of decades due to the inward foreign direct investment. To accomplish this purpose, Singapore tries to transform a small island into the international business hub in East Asia. Concomitantly, Singapore government implements strategy to construct this country as the international dispute resolution hub during last couple of decades. In line with this strategy, Singapore has established Singaporian dispute resolution system, such as Singapore court annexed mediation system, Community Resolution Center, Singapore Mediation Center(SMC), Singapore International Mediation Center(SMIC), Singapore International Mediation Institute(SIMI), Singapore International Arbitration Centre(SIAC), and Singapore International Commercial Court(SICC). Furthermore, Singapore provides an unique Arb-Med-Arb service to disputants. The spectrum of dispute resolution institutions indicates that Singapore is expected to implement a vision of multi-door court house in Singapore.

International Commercial Courts in the Litigation Market

The expression ‘international commercial courts’ refers to national judicial bodies set up in the last fifteen years in several jurisdictions throughout the world to suit the specific demands of international commercial litigation. The courts and the proceedings before them share unique features often imported from the common law tradition and the arbitration world, with a view to providing for a dispute resolution mechanism tailored to the subject-matter. This notwithstanding, there is no single model of international commercial court: rather, each of them presents its own distinctive characteristics. This paper summarizes the main traits of several international commercial courts in Asia, Middle East and Europe. At a second stages, it explores their relationship with international arbitration, on the one hand, and among them, on the other, at a time when dispute resolution mechanisms in competition is seen as an incentive for the improvement within justice systems at a global level, and the term ‘litigation market’ has become common place. In this context, elements such as the language of the process, the possibility of being represented by foreign lawyers, or the existence of a network of instruments for the enforcement of decisions abroad, may prove decisive in the choice of the users to file claim with a court (and which one), or going to arbitration.

Singapore as a centre for international commercial litigation: party autonomy to the fore

This article considers two recent developments in Singapore private international law: the establishment of the Singapore International Commercial Court and the enactment of the Hague Convention on Choice of Court Agreements 2005 into Singapore law. These two developments are part of Singapore’s strategy to promote itself as an international dispute resolution hub and are underscored by giving an enhanced role to party autonomy. This article examines the impact of these two developments on the traditional rules of private international law and whether they achieve the stated aim of positioning Singapore as a major player in the international litigation arena.

"One-Stop" Dispute Resolution on the Belt and Road: Toward an International Commercial Court With Chinese Characteristics

On July 1, 2018, China’s Supreme People’s Court published the “Provisions on Several Issues regarding the Establishment of International Commercial Courts.” The Provisions followed on the heels of a January announcement from the Central Leading Group for Comprehensively Deepening Reforms alluding to plans to establish a dispute settlement mechanism dedicated to China’s Belt and Road Initiative. The Provisions confirmed that what the press had swiftly branded the “Belt and Road Court” (BRC) will comprise three international commercial courts. Regardless of analysts’ discipline or affiliation, the response to the initial proposal, and now to the framework laid out in the Provisions, has been predictably binary, reflecting a longstanding division in interpretations of China’s commercial dispute resolution policies.One branch, call it the sociological school, explains China’s policies with reference to the country’s history and culture. It contends that a direct line may be drawn from the Chinese people’s traditional aversion to litigation to their government’s preference for informal and private mechanisms for dispute resolution. With reference to the BRC, the causal narrative this school presents is one of continuity, contending that to understand the BRC, the basic explanatory trajectory must proceed from China outward to the international arena. An alternative branch, call it the political-economy school, argues that China’s policies toward international commercial dispute resolution respond to the same goals and imperatives as any other state. China’s policies are viewed as a self-interested response to factors such as commercial flows, security considerations, and development goals. Insofar as such matters are subject to constant flux, China’s dispute resolution policies are understood to be commensurately fluid. Here, the basic explanatory trajectory proceeds from the international arena inward into China.As with all binaries, there is a middle way—an approach that interprets China’s commercial dispute resolution policies generally, and the newly established BRC in particular, as a product of continuity as well as change, influenced as much by internal dynamics as external imperatives. This Article adopts this middle way in order to identify and assess the principal tensions that have confronted, and will continue to challenge, the designers of what will amount to an international commercial court with Chinese characteristics.

Вибір іноземного права Міжнародним комерційним арбітражним судом при торгово-промисловій палаті України

Вибір іноземного права Міжнародним комерційним арбітражним судом при торгово-промисловій палаті України

Cryptocurrencies and Code Before the Courts

In the rapidly developing cyber sphere dominated by cryptocurrencies and code, it is perhaps not uncommon for firms to focus on cutting-edge technological developments leaving the law behind as an afterthought. B2C2 Ltd v Quoine Pte Ltd (“B2C2”) may serve as a timely reminder of the importance of the legal principles supporting e-commerce and Fintech. In the first case of its kind, B2C2 raised several key questions before the Singapore International Commercial Court (“SICC”), seeking clarification on how the established legal concepts of breach of trust, mistake and unjust enrichment might apply in the context where an automated contract-forming software had produced unusual results. This decision represents the most comprehensive treatment by a Commonwealth court of the legal nature of cryptocurrencies and automated contract-forming software to date; a harbinger of further and more complex litigation to come, as disputes involving e-commerce and Fintech gradually start to reach the courts.

The Singapore International Commercial Court

The Singapore International Commercial Court