Abstract
Consisting of two international commercial courts in Shenzhen and Xi'an respectively, the China International Commercial Court (CICC) is a permanent adjudicative organ established by the Supreme People's Court. With its streamlined procedure, exceptional legal expertise (including in particular its judicial strength and the depth in its International Commercial Expert Committee), and provision of the "One-stop" Diversified International Commercial Dispute Resolution Mechanism which integrates litigation, mediation and arbitration and connects various institutions and platforms, the CICCaims to provide fair, professional and efficient dispute resolution service for international commercial disputes.
Over the past two decades, international commercial courts have developed in various jurisdictions. These have included, to name a few, the Dubai International Financial Centre Courts ("DIFC Courts") (2004), the Singapore International Commercial Court ("SICC") (2015), the International Commercial Chamber at the Paris Court of Appeal ("ICCP-CA") (2018), and the China International Commercial Court ("CICC") (2018). The rise of international commercial courts reflects the growing transnational nature of commerce and trade, and the importance of a good international dispute settlement mechanism to ensure and promote the development of business. The CICC, established by the Supreme People's Court ("SPC"), with two international commercial courts in Shenzhen and Xian respectively, aims to provide fair, professional, and efficient dispute resolution services for international commercial disputes through its unique advantages.
I. Overview
To safeguard international collaboration and to ensure a stable, fair, and transparent business environment under the Belt and Road Initiative ("B&R"), 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 ("Opinion") in January 2018. Pursuant to both the letter and spirit of the Opinion, the SPC established the CICC, the International Commercial Expert Committee and a diversified dispute resolution mechanism which integrated litigation, mediation and arbitration. This was and remains aimed at the fair, professional, and efficient dispute resolution of international commercial disputes, safeguarded by the Provisions of the SPC on Several Issues Regarding the Establishment of the International Commercial Court ("SPC Provisions"). The SPC Provisions were promulgated in June 2018 (revised in 2023), and are accorded the same level of authority as judicial interpretations.
As a permanent adjudicative organ established by the SPC to deal with international commercial disputes, the CICC's work is guided and coordinated by the Fourth Civil Division of the SPC. The CICC consists of two international commercial courts, both set up in June 2018. The First International Commercial Court of the CICC is in Shenzhen City of Guangdong Province and the Second International Commercial Court is in Xi'an City of Shaanxi Province. The SPC explained the rationales for the locations where these courts are set up in the following terms:
- Shenzhen, an important economic supporting point of the B&R Maritime Silk Road, has a geographical advantage given its position near the Hong Kong and Macao SARs. It is at the forefront of opening up, particularly given the heightened number of foreign-related cases in the city itself, and in the Greater Bay Area ("GBA");
- Xi'an, located at the starting point of the ancient Silk Road, is a new highway for inland reform and opening up. The economic activities radiating from Xi'an to Central and Eastern Europe are thriving, which has engendered an exponential increase in related disputes and cases. 1
II. Jurisdiction
In accordance with Article 2 of the SPC Provisions, the following cases are within the scope of the CICC's jurisdiction:
- First instance international commercial cases in which the parties have chosen the jurisdiction of the SPC according to Article 277 of the Civil Procedure Law 2 , with an amount in dispute of at least RMB 300 million;
- lFirst instance international commercial cases which are subject to the jurisdiction of the higher people's courts, which courts nonetheless consider that the cases should be tried by the SPC, and for which permission has been obtained;
- First instance international commercial cases that have a significant influence nationwide;
- Cases involving applications for preservation measures in arbitration, for setting aside or enforcement of international commercial arbitration awards where such an arbitration is under the auspices of the international commercial arbitration institutions which are participating in the "one-stop" Diversified International Commercial Dispute Resolution Mechanism; and
- Other international commercial cases that the SPC considers appropriate to be tried by the CICC. 3
Article 3 further explains what constitutes an "international commercial case" under the SPC Provisions — either one or both of the parties' identities, one or both of the parties' habitual residences, the object in dispute, or the legal facts of the commercial relationship must be foreign in nature. 4
In conclusion, the CICC mainly deals with disputes with foreign-related elements between commercial parties in the fields of trade and investment, and so forth. It should be noted that the CICC does not deal with investment or trade disputes between countries, or investment disputes between investors and states. These disputes fall to be resolved in accordance with existing international rules. 5
III. Trial and Post-trial Procedures
The CICC is renowned for having a specialised team of judges. These judges are selected and appointed by the SPC from senior judges who are experienced in trial work, familiar with international treaties, international customs, and international trade and investment practices, and are capable of using Chinese and English proficiently as working languages. 6 Cases tried by the CICC are heard by a panel consisting of three or more judges, following the rule of majority when deliberating and handing down judgments. Minority opinions can be set out in the judgment, 7 which is unique in judgements of Chinese courts. The CICC's adjudication is open and transparent; hearings are held in public, and its judicial team information and judgements are similarly made public on its website. 8
The CICC provides for an efficient system. The CICC may designate a people's court at a lower level to implement a ruling it has made on preservation. 9 For cases tried by the CICC, judgments by a court of first instance are final and non-appealable, and the judgements and rulings issued by the CICC are of binding legal effect. 10 Upon obtaining a legally effective judgment, ruling or mediation statement made by the CICC, a party may apply to the CICC for enforcement. 11 Notwithstanding the foregoing, a party may, in accordance with the provisions of the Civil Procedural Law, apply to the SPC for retrial of a legally effective judgment, ruling or mediation statement made by the CICC. 12
The CICC also facilitates the convenience of litigants with its litigation service platforms, including the Electronic Litigation Service Platform and the Litigation Process Open Information Platform. It supports case registration, fee payment, review of files, exchange of evidence, service of process, court hearings, etc. via online means. 13
IV. Applicable Law and Evidence
In the trial of a case, the CICC shall determine the substantial law applicable to the dispute in accordance with the Law of the PRC on Choice of Law for Foreign-related Civil Relationships. 14 Under Chinese law, parties can choose the applicable law for the civil and commercial relationship provided that such choice is in accordance with the provisions of law 15 , and the CICC will respect the parties' choice of law under such circumstances. 16 For choice of law of a dispute that could be tried in a Chinese court, one should bear in mind that certain types of disputes are mandatorily subject to particular provisions of Chinese law, 17 and that the choice of law will not be permitted to violate certain mandatory provisions of law 18 .
Where a Chinese court tries a case by applying a foreign law, it shall "ascertain" the foreign law, which entails identifying such law and ascertaining how it should apply to the relationship in dispute. In the case of the CICC, it may ascertain the foreign law in the following ways: a. as provided by the parties; b. as provided by the central authority or responsible authority of the foreign jurisdiction through judicial assistance; c. as provided by China's embassy or consulate stationed in the foreign country or the embassy or consulate of the foreign country in China upon request of the SPC; d. as provided by participants in the law ascertainment cooperation mechanism established by or participated in by the SPC; e. as provided by an expert of the SPC International Commercial Expert Committee; f. as provided by a law ascertainment service institution or Chinese or foreign legal experts; and g. other appropriate means. Foreign legal materials and expert opinions provided through the above-mentioned means will be presented in court, and the opinions of all parties concerned are fully considered. 19
Comparing with cases tried in Chinese courts other than the CICC, the CICC is more efficient and convenient in its evidential requirements with simplified procedures of notarisation, certification and translation. The CICC does not demand compulsory notarisation and certification of evidence which originates outside the territory of PRC. 20 Such evidence, regardless of whether it has been notarised, certified or otherwise authenticated, is subject to cross-examination before the court. In cases where the evidence is in English, Chinese translation may be omitted upon the parties' consent. 21 The CICC may also collect evidence and organise cross-examination by using audio-visual transmission technologies or through other digital means. 22
V. International Commercial Expert Committee and the "One-stop" Diversified International Commercial Dispute Resolution Mechanism
To facilitate the trial work of the CICC and to support diversified dispute resolution, the SPC established the International Commercial Expert Committee on 26 August 2018. 23 This is a creative move to develop a pool of international legal talent 24 . The Committee comprises Chinese and foreign legal experts invited by the SPC, who hail from different jurisdictions and legal systems. The Committee includes leaders of important international organisations, legal experts, eminent scholars, experienced judges, and outstanding lawyers, whose biographies may be found on the CICC website. The roles of Committee members include mediating cases for litigant parties as entrusted by the CICC, assisting in foreign law ascertainment as appointed by the CICC, providing advisory opinions on specific legal issues in international commercial dispute cases for the people's courts, and giving advice and suggestions on relevant judicial interpretations and judicial policies formulated by the SPC. 25
As part of its effort to provide convenient, efficient, low-cost, and high-quality legal services, the SPC, together with certain qualified international commercial arbitration and mediation institutions, and the International Commercial Expert Committee, developed the "One-stop" Diversified International Commercial Dispute Resolution Mechanism ("One-stop Mechanism"). The CICC supports parties' resolving international commercial disputes through such an integrated dispute resolution platform and in the way that parties deem appropriate. 26 At present, the One-stop Mechanism enjoys the participation of ten international commercial arbitration institutions, including the Shenzhen Court of International Arbitration (SCIA), the China International Economic and Trade Arbitration Commission (CIETAC), and the Hong Kong International Arbitration Centre (HKIAC), as well as of two international commercial mediation institutions, namely the China Council for the Promotion of International Trade Mediation Center (CCPIT Mediation Center), and the Shanghai Commercial Mediation Center (SCMC). 27
The "One-Stop" Diversified International Commercial Dispute Resolution Platform ("One-stop Platform") is a full-process dispute resolution online service platform set up by the CICC in July 2021 to support and facilitate the One-stop Mechanism. The One-stop Platform has four primary service modules, namely mediation, arbitration, litigation, and supporting services such as neutral evaluation. These seek to resolve international commercial disputes, connect service systems of the CICC, people's courts, and theselected arbitration institutionsand mediation institutions of the One-stop Mechanism, as well as to integrate information as to the relevant legal services and institutions. 28
As for mediation under the One-stop Mechanism, the CICC may entrust members of the International Commercial Expert Committee or a selected international commercial mediation institution (which participates in the One-stop Mechanism) with mediation work within seven days after the CICC accepts a case. 29 Upon mediation hosted by members of the Committee or a selected mediation institution, the CICC may issue a mediation statement within seven days if the parties reach anagreement. Moreover, if the parties require a judgment to be issued, the court may issue a judgement to the parties on the basis of the mediation agreement. 30 A mediation statement made by the CICC shall have the same legal effect as a judgement after both parties have signed for receipt thereof. 31 The applicable enforcement and retrial application procedures, which have been discussed above, are the same whether in relation to a mediation statement or a judgement.
Where the parties choose a selected international commercial arbitration institution under the One-stop Mechanism for arbitration by agreement, they may apply to the CICC for interim measures, i.e. for preservation of evidence, property or injunctive relief. Such applications are permissible both before applying for arbitration and after the commencement of arbitration proceedings. If the parties apply to the CICC for setting aside or enforcement of the arbitral award made by a selected arbitration institution, the CICC will review the application in accordance with the provisions of the Civil Procedural Law or other applicable laws. 32
Footnotes
1 Opinion Concerning the Establishment of the Belt and Road International Commercial Dispute Resolution Mechanism and Institutions; SPC Representative's Answers to Reporters' Questions on Opinion Concerning the Establishment of the Belt and Road International Commercial Dispute Resolution Mechanism and Institutions.
2 Civil Procedure Law of the People's Republic of China (2023 Amendment), Article 277: "Where the parties to a foreign-related civil dispute, by a written agreement, choose a people's court to exercise jurisdiction, the chosen people's court may have jurisdiction".
3 Provisions of the Supreme People's Court on Several Issues concerning the Establishment of International Commercial Courts (2023 Amendment), Article 2.
4 Ibid Article 3: "A commercial case with one of the following situations can be regarded as an international commercial case under these Provisions:(a) one or both parties are foreigners, stateless persons, foreign enterprises or other organizations; (b)one or both parties have their habitual residence outside the territory of the People's Republic of China; (c)the object in dispute is outside the territory of the People's Republic of China; (d) legal facts that create, change, or terminate the commercial relationship have taken place outside the territory of the People's Republic of China".
5 SPC Representative's Answers to Reporters' Questions on Opinion Concerning the Establishment of the Belt and Road International Commercial Dispute Resolution Mechanism and Institutions.
6 SPC Provisions (2023 Amendment), Article 4.
7 Ibid Article 5.
8 https://cicc.court.gov.cn/html/1/219/index.html.
9 SPC Provisions (2023 Amendment), Article 6.
10 SPC Provisions (2023 Amendment), Article 15.
11 Ibid Article 17.
12 Ibid Article 16.
13 Ibid Article 18.
14 Ibid Article 7.
15 Law of the PRC on Choice of Law for Foreign-related Civil Relationships, Article 3.
16 SPC Provisions (2023 Amendment), Article 7.
17 See, for example, Law of the PRC of China on Choice of Law for Foreign-related Civil Relationships.
18 See, for example, Law of the PRC on Choice of Law for Foreign-related Civil Relationships, Articles 2, 4 and 5.
19 SPC Provisions (2023 Amendment), Article 8.
20 A Brief Introduction of the China International Commercial Court, 28 June 2018.
21 SPC Provisions (2023 Amendment), Article 9.
22 Ibid Article 10.
23 The Supreme People's Court Established the International Commercial Expert Committee, 24 August 2018, https://cicc.court.gov.cn/html/1/219/208/209/981.html.
24 A Brief Introduction of the China International Commercial Court, 28 June 2018.
25 The Decision on the Establishment of International Commercial Expert Committee of the Supreme People's Court, 24 August 2018.
26 Ibid Article 11.
27 The Supreme People's Court "One-Stop" Diversified International Commercial Dispute Resolution Platform Overview, https://cicc.court.gov.cn/pc/user/aboutus?type=platformIntroduction.
28 The Supreme People's Court "One-Stop" Diversified International Commercial Dispute Resolution Platform Launched Online Today, https://cicc.court.gov.cn/html/1/218/149/192/2084.html; The Supreme People's Court "One-Stop" Diversified International Commercial Dispute Resolution Platform Launched Upgraded Version Online Today, https://cicc.court.gov.cn/html/1/218/149/192/2461.html.
29 SPC Provisions (2023 Amendment), Article 12.
30 Ibid Article 13.
31 Ibid Article 15.
32 Ibid Article 14.
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