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ABSTRACT
Alongside China’s increasing efforts to update its legal regime facilitating the ‘One Belt and One Road Initiative’ and strengthening foreign-related rule of law, China’s Supreme People’s Court (SPC) and some lower courts are playing a vital role in modernizing international commercial litigation. The SPC, leading lower Chinese courts, has been zealous in reforming international commercial litigation, and piece-meal measures were adopted over the years. The most salient step is the establishment of international commercial courts (CICCs), accompanied by the use of such mechanisms as anti-suit injunctions, forum non conveniens, and de jure reciprocity favouring foreign judgments recognition in China. These judicial efforts and the expected moves alike will definitely contribute a lot to internationalization of China’s international civil procedure towards the global mainstream. However, the systemic deep judicial and legislative reforms are both needed for China’s international commercial litigation to go global and moreover, the process shall be conducted with an eye towards keeping it current and enhancing its relevance to the realities of today’s dispute resolution world.
Acknowledgements
This research is funded by the National Social Science Foundation of China (grant number 22BFX145). The views herein are of the authors and not necessarily of the Chinese government or Research Council.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 BRI is taken as a national strategy and has been frequently promoted over the years <https://www.yidaiyilu.gov.cn/> accessed November 6, 2023.
2 For the number of foreign cases accepted and decided by Chinese courts, see Prof. Huang Jin’s Annual Survey of China Judicial Practice on Private International Law starting from 2002 up to now, which can be found in the Chinese Yearbook of Private International Law and Comparative Law. Also see Jerome A. Cohen, ‘Settling International Business Disputes with China: Then and Now’ (2014) 47 Cornell International Law Journal 555; Mo Zhang, ‘International Civil Litigation in China: A Practical Analysis of the Chinese Judicial System’ (2002) 25 Boston College International and Comparative Law Review 59.
3 Jerome A. Cohen, ‘Settling International Business Disputes with China: Then and Now’ (2014) 47 Cornell International Law Journal 565.
4 Unless otherwise stated, the CPL cited in the article refers to the newest 2023 version of the CPL. The revised CPL will come into force from January 1, 2023.
5 The CPL has been amended five times over the past three decades in 2007, 2012, 2017, 2021 and 2023 respectively. Before the 2023 amendments, the changes were only made for domestic cases while the rules of the CPL remain almost the same in respect of international commercial litigation in China. For the different versions of the CPL, See National People’s Congress, ‘Laws’, <https://flk.npc.gov.cn/fl.html> accessed October 10 2023.
6 Julien Chaisse and Qian Xu, ‘China International Commercial Court: Architecture, Pitfalls and Promises’, in Stavros Brekoulakis and Georgios Dimitropoulos (eds), International Commercial Courts the Future of Transnational Adjudication, (Cambridge University Press 2022).
7 For the establishment of international commercial courts across the world, see, Xandra Kramer and John Sorabji, ‘International Business Courts in Europe and Beyond: A Global Competition for Justice?’, (2019) 1 Erasmus Law Review 1.
8 Xandra Kramer and John Sorabji, ‘International Business Courts in Europe and Beyond: A Global Competition for Justice?’, (2019) 12 Erasmus Law Review 1.
9 Supreme People's Court, Provisions of the Supreme People's Court on Several Issues concerning the Trial of Cases by the Circuit Courts, s 3.
10 Supreme People’s Court, Provisions of the Supreme People’s Court on Several Issues concerning the Trial of Cases by the Circuit Courts, s 2.
102 Supreme People's Court, ‘Judges of the First Circuit Court’, https://www.court.gov.cn/xunhui1/fatingfaguan.html accessed 5 November 2023.
103 Supreme People's Court, ‘Judges of the Second Circuit Court’, https://www.court.gov.cn/xunhui2/fatingfaguan.html accessed 5 November 2023.
104 Supreme People’s Court, ‘Judges of the Third Circuit Court’, https://www.court.gov.cn/xunhui3/fatingfaguan.html accessed 5 November 2023.
105 Supreme People's Court, ‘Judges of the Fourth Circuit Court’, https://www.court.gov.cn/xunhui4/fatingfaguan.html accessed 5 November 2023.
106 Supreme People's Court, ‘Judges of the Fifth Circuit Court’, https://www.court.gov.cn/xunhui5/fatingfaguan.html accessed 5 November 2023.
107 Supreme People's Court, ‘Judges of the Sixth Circuit Court’, https://www.court.gov.cn/xunhui6/fatingfaguan.html accessed 5 November 2023.
108 CICC, ‘Judges’, < https://cicc.court.gov.cn/html/1/218/19/151/index.html> accessed 5 November 2023.
11 Supreme People’s Court, Provisions of the SPC on Several Issues concerning the Establishment of International Commercial Courts, s 1.
12 Supreme People’s Court, Provisions of the Supreme People’s Court on Several Issues concerning the Establishment of International Commercial Courts, s 2; Zhengxin Huo and Man Yip, ‘Comparing the International Commercial Courts of China with the Singapore International Commercial Court’, (2019) 68 International and Comparative Law Quarterly 903.
13 See Xandra Kramer and John Sorabji, ‘International Business Courts in Europe and Beyond: A Global Competition for Justice?’, (2019) 12 Erasmus Law Review 4.
14 As of 11th August 2022, the CICCs have accepted 27 cases in total. See Gao Xiaoli, ‘Providing China’s Solution to International Commercial Disputes under “the Belt and Road”’, People’s Daily, (China, 11 August 2022). The few cases that have been decided by the SPC may be found on the official website of the CICCs, CICC, ‘Judicial Rulings’, <https://cicc.court.gov.cn/html/1/218/180/index.html> accessed August 10, 2022.
15 Julien Chaisse and Qian Xu, ‘Conservative Innovation: The Ambiguities of the China International Commercial Court’ (2021) 115 AJIL Unbound 17.
16 Luck Treat Limited v. Shenzhen Zhongyuancheng Commercial Investment Holding Co., Ltd, (2019) zui gao fa min te No.1；Beijing Zhonglv Weijing International Hotel Management Co., Ltd v. Shenzhen Zhongyuancheng Commercial Investment Holding Co., Ltd, (2019) zui gao fa min te No.3；New power Enterprises Inc. v. Shenzhen Zhongyuancheng Commercial Investment Holding Co., Ltd, (2019) zui gao fa min te No.2.
17 Market Global Holding Limited v. Xinxiong Xv, (2018) zui gao fa min xia No.189；Ruoychai International Group Co, Ltd. v. Red Bull Vitamin Drink Co., Ltd, (2018) zui gao fa min xia No.191；Ruoychai International Group Co, Ltd. v. Red Bull Vitamin Drink Co., Ltd, (2019) zui gao fa min xia No.27.
18 Inter-Biopharm Holding Limited v. Red Bull Vitamin Drink Co., Ltd, (2018) zui gao fa min xia No.188；Inter-Biopharm Holding Limited v. Bin Yan, (2018) zui gao fa min xia No.190.
19 Suzhou International commercial Tribunal, ‘Judicial Rulings’, <http://sict.zjrmfy.suzhou.com.cn/en/index.html> accessed 14 May 2023.
20 Qiang Zhou, ‘Report of the Supreme People's Court on the Work of Foreign-related Trials in People's Courts’ (28 October, 2022), <http://www.npc.gov.cn/npc/c30834/202210/a3adfb94fc8b4070bb50e4a5a9d25e7b.shtml> accessed 14 May 2023.
21 Beijing International commercial Tribunal, ‘judicial rulings’, <http://en.bicc.gov.cn/> accessed 19 May 2023.
22 Supreme People’s Court, Provisions of the SPC on Several Issues concerning the Establishment of International Commercial Courts, Interpretation No.11 [2018], hereinafter ‘CICC Provisions’. <http://cicc.court.gov.cn/html/1/219/208/210/817.html> accessed 8 August 2022.
23 Supreme People’s Court, CICC Provisions, s 2.
24 Civil Procedure Law, s 21, which says that, ‘The SPC hears the following first-instance civil cases: (1) the cases with nationally important implications; (2) the cases that the SPC deems should be decided by itself.’
25 Supreme People’s Court, CICC Provisions, s 2.
26 This Convention was concluded on June 30, 2005 at the Twentieth Diplomatic Session of the Hague Conference and China signed this convention on September 17th 2017. For possible ratification of the convention by China, see, Guangjian TU, ‘The Hague Choice of Court Convention – A Chinese Perspective’, (2007) 55 Am. J. Comp. L. 347. Convention of 30 June 2005 on Choice of Court Agreements, <https://www.hcch.net/en/instruments/conventions/specialised-sections/choice-of-court> accessed 5 September 2022.
27 Currently, there are 52 experts on the list of the Experts Committee and 34 thereof are from a wide range of foreign jurisdictions. See CICC, ‘Judges’, <http://cicc.court.gov.cn/html/1/219/index.html> accessed 7 April 2022.
28 Andrew Godwin, ‘Ian Ramsay and Miranda Webster, International Commercial Courts: The Singapore Experience’, (2017) 18 Melbourne J. of Int'l Law 223.
29 See Jin Huang et.al, ‘Research on the Reform of the International Commercial Court of China’, (2020) 4 Wuhan University International Law Review 8.
30 Gao Xiaoli, ‘Providing China’s Solution to International Commercial Disputes under “the Belt and Road”’, People’s Daily, (China, 11 August 2022)
31 Civil Procedure Law, s 10; Supreme People’s Court, CICC Provisions, s 15.
32 Around the globe, international commercial courts are usually subject to an appeal procedure, such as those in Singapore, United Kingdom and Netherlands. However, the once proposed Belgian international business court initiative anticipated no appeal. See Marta Requejo, ‘International Commercial Courts in the Litigation Market’ (2019) 2 MPILux Research Paper, <http://dx.doi.org/10.2139/ssrn.3327166> accessed 5 November 2023; Erlis Themeli, ‘Matchmaking International Commercial Courts and Lawyers’ Preferences in Europe’, (2019) 12 Erasmus Law Review 70.
33 Zhengxin Huo & Man Yip, ‘Comparing the International Commercial Courts of China with the Singapore International Commercial Court’, (2019) 68 International and Comparative Law Quarterly 927.
34 Zhengxin Huo & Man Yip, ‘Comparing the International Commercial Courts of China with the Singapore International Commercial Court’, (2019) 68 International and Comparative Law Quarterly 929.
35 Supreme People’s Court, CICC Provisions, s 11.
36 Supreme People’s Court, CICC Provisions, s 12.
37 Supreme People’s Court, CICC Provisions, s 13.
38 Supreme People’s Court, CICC Provisions, s 14(1).
39 Supreme People’s Court, CICC Provisions, s 14(2).
40 Supreme People’s Court, Provisions of the Supreme People’s Court on Some Issues Concerning the Jurisdiction of Civil and Commercial Cases Involving Foreign Elements, s 3; Supreme People’s Court, Relevant Provisions of the Supreme People’s Court on Issues concerning Applications for Verification of Arbitration Cases under Judicial Review (2021 Amendment), s 2-8. See Weixia Gu, ‘Judicial Review over Arbitration in China: Assessing the Extent of the Latest Pro-Arbitration Move by the Supreme People's Court in the People's Republic of China’, (2009) 27 Wis. Int'l L.J. 221; Weixia Gu, Dispute resolution in China Litigation, arbitration, mediation, and their interactions (Routledge 2021).
41 Wenhua Shan and Yunya Feng, ‘The China International Commercial Court: towards an integrated dispute resolution system’, (2021) 29 Asia Pacific Law Review 115.
42 Civil Procedure Law, s 277.
43 See Qisheng He, ‘The Idea of Justice in a Large Country and the Development of International Civil Procedure in China’, (2017) 5 Social Sciences in China 135.
44 Zhengxin Huo and Man Yip, ‘Comparing the International Commercial Courts of China with the Singapore International Commercial Court’, (2019) 68 International and Comparative Law Quarterly 903. (arguing that the CICC is in many respects insular and conservative).
45 Chinese scholars propose the connection requirement be abolished. See Shi Jingxia and Dong Nuannuan, ‘The Core Issues of China International Commercial Court’, (2019) 5 Journal of Xi’an Jiaotong University 116.
46 Xu Qian, ‘The legal legitimacy of the China International Commercial Court: history, geopolitics, and law’, (2020) 28 Asia Pacific Law Review 374.
47 Julien Chaisse and Qian Xu, ‘China International Commercial Court: Architecture, Pitfalls and Promises’, in Stavros Brekoulakis and Georgios Dimitropoulos (eds), International Commercial Courts The Future of Transnational Adjudication (Cambridge University Press 2022).
48 Julien Chaisse and Qian Xu, ‘Conservative Innovation: The Ambiguities of the China International Commercial Court’ (2021) 115 AJIL Unbound 21.
49 See Anselmo Reyes, ‘Recognition and Enforcement of Interlocutory and Final Judgments of the Singapore International Commercial Court’, (2015) 2 J. Int'l & Comp. L. 339; Gu Weixia, ‘Global Rise and Ecology of International Commercial Courts’, (2022) 6 Nanjing University Law Journal, 116.
50 See George A. Bermann, ‘The Use of Anti-Suit Injunctions in International Litigation’, (1990) 28 Colum. J. Transnat'l L. 593.
51 These remedies are set forth in Articles 103 and 104 of the CPL (after the 2021 amendments to the CPL). In the same vein, other laws including those concerning IP, Special Maritime Procedural Law and the judicial interpretations of the SPC on action preservation also provide the legal basis for Chinese courts to issue the so-called antisuit injunctions. For more about preservation of actions, see Wenliang Zhang, ‘Interim Remedies in Chinese Private International Law’, (2019) 20 Yearbook of Private International Law 328.
52 In at least three international cases, Chinese maritime courts had issued orders to restrain foreign proceedings. In the 2017 Huatai Property & Casualty Insurance Co Ltd Shenzhen Branch v. Clipper Chartering SA, [(2017) E 72 Xing Bao No.3], the Wuhan Maritime Court granted the maritime injunction to oblige the respondent to immediately withdraw the antisuit injunction granted by the High Court of the Hong Kong SAR to restrain the Mainland proceedings. Such maritime antisuit injunctions may be traced back to 2012 when Qingdao Maritime Court issued a maritime injunction [(2011) Qing Haifa Xianzi No.2] requiring the defendant to withdraw its application for the arrest of ship before an Australian court and to 2008 when Wuhan Maritime Court made a ruling [(2008) Wu Haifa Qiangzi No.5] to restrain the party concerned to apply for assets freezing in the US courts. See SPC’s Intellectual Property Court, ‘The First Anti Litigation Order Issued by China's Intellectual Property Trial – Detailed Explanation by the Case Panel on the Dispute over the Standard Essential Patent License between Conversant Company and Huawei Company’, <https://ipc.court.gov.cn/zh-cn/news/view-1056.html> accessed 11 July 2022.
53 Conversant Wireless Licensing S.àr.l. v. Huawei Technologies Co., Ltd., (2019) Zui Gao Fa Zhi Min Zhong No.732.
54 For more information, see SPC’s Intellectual Property Court, ‘The First Anti Litigation Order Issued by China's Intellectual Property Trial – Detailed Explanation by the Case Panel on the Dispute over the Standard Essential Patent License between Conversant Company and Huawei Company’, <https://ipc.court.gov.cn/zh-cn/news/view-1056.html> accessed 11 July 2022.
55 Ibid.
56 In contesting China’s use of such interim measures, the European Union (EU) also named such measures as ‘antisuit injunctions’ when the EU submitted its request of consultation before the World Trade Organization. See Request for Consultations by the European Union, WT/DS611/1 IP/D/43 G/L/1427.
57 Civil Procedure Law, s103.
58 Civil Procedure Law, s 103-104.
59 See SPC’s Intellectual Property Court, ‘The First Anti Litigation Order Issued by China's Intellectual Property Trial – Detailed Explanation by the Case Panel on the Dispute over the Standard Essential Patent License between Conversant Company and Huawei Company’, <https://ipc.court.gov.cn/zh-cn/news/view-1056.html> accessed 11 July 2022.
60 Supreme People’s Court, CICC Provisions, s 11.
61 The problems were well recognized in practice of the abuse of preservation measures. In 2020, National People’s Congress submitted a request to the SPC regarding Suggestions on Improving the Enterprise-Related Preservation System to Serve the Healthy Development of the Real Economy. To respond to the Request, the SPC made a reply and sought to address such issues as abuse of preservation measures. For more of the reply, see Supreme People’s Court, ‘Reply of the Supreme People's Court to Recommendation No. 7815 of the Third Session of the 13th National People's Congress’, <https://zjrcjd.cn/shehui/148445.html?btwaf=65727460> accessed 5 September 2022.
62 Restatement (Fourth) of the Foreign Relations Law of the United States, § 425.
63 Cheshire, North and Fawcett, et. al, Private International Law (15th edn) (Oxford University Press 2017).
64 Zheng Sophia Tang, Yongping Xiao and Zhengxin Huo, Conflict of Laws in the People’s Republic of China (Edward Elgar Publishing 2016).
65 Chinese version of forum non conveniens was originally a court practice and then was only officially introduced by the SPC in 2015 in spite of no provisions on the forum non conveniens in the CPL. See The SPC Interpretation on the CPL, s 532. For an Empirical Study of this doctrine, see Guangjian Tu, ‘Forum non Conveniens in the People’s Republic of China—an Empirical Study’, (2012) 11 Chinese Journal of International Law 341.
66 See Supreme People’s Court, ‘Report of the SPC on October 21, 2021 in relation to the intellectual property-related trials before Chinese courts’, <http://www.npc.gov.cn/npc/c30834/202110/2adb18d160c945e989bc20df3641cffc.shtml> accessed 22 April 2022.
67 The Intellectual Property Chamber of the SPC is one division of the SPC and all the important intellectual property cases nationwide may be appealed to this court.
68 See SPC’s Intellectual Property Court, ‘The First Anti Litigation Order Issued by China’s Intellectual Property Trial – Detailed Explanation by the Case Panel on the Dispute over the Standard Essential Patent License between Conversant Company and Huawei Company’, <https://ipc.court.gov.cn/zh-cn/news/view-1056.html> accessed 11 July 2022.
69 Ibid.
70 Ibid.
71 Guangjian Tu, ‘Forum non Conveniens in the People’s Republic of China – an Empirical Study’, (2012) 11 Chinese Journal of International Law 341.
72 Zheng Sophia Tang, ‘Declining Jurisdiction by Forum Non Conveniens in Chinese Courts’, (2015) 45 Hong Kong L.J. 352.
73 Guangjian Tu, ‘Forum non Conveniens in the People’s Republic of China – an Empirical Study’, (2012) 11 Chinese Journal of International Law 342.
74 Supreme People’s Court, The 2015 Judicial Interpretation on CPL, s 530. For the translation, see Qisheng He, ‘Chronology of Practice: Chinese Practice in Private International Law in 2015’, (2016) 15 Chinese Journal of International Law 876.
75 See Office of the Leading Group for the Implementation of the Civil Code of the Supreme People’s court, ‘The SPC Understanding and application of the judicial interpretation of the new civil procedure law’, (2022) People’s Court Press 1169.
76 See Daniel S. Sternberg, ‘Res Judicata and Forum Non Conveniens in International Litigation’, (2013) 46 Cornell Int'l L.J. 197; Adrian G. Duplantier, ‘Louisiana: A Forum, Conveniens Vel Non’, (1987) 48 La. L. Rev. 764.
77 China Judgments Online, ‘Judicial Rulings’, <https://wenshu.court.gov.cn/website/wenshu/181029CR4M5A62CH/index.html>accessed 15 August 2022.
78 The data was collected from China Judgments Online and the relevant cases were decided during the period between 4 February 2015 and 1 September 2022.
79 Supreme People’s Court, Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People's Republic of China, Interpretation No. 5 [2015].
80 Civil Procedure Law, s 282.
81 Zheng Sophia Tang, ‘Declining Jurisdiction by Forum Non Conveniens in Chinese Courts’, (2015) 45 Hong Kong L.J. 351.
82 Guangjian Tu, (2012) ‘Forum non Conveniens in the People’s Republic of China – an Empirical Study’, 11 Chinese Journal of International Law 364.
83 Civil Procedure Law, s 301.
84 Wenliang Zhang, ‘Recognition and Enforcement of Foreign Judgments in China: A Call for Special Attention to Both the “Due Service Requirement” and the “Principle of Reciprocity”’, (2013) 12 Journal of Private International Law 146.
85 Gomi Akira v Dalian Fari Seafood Ltd (Application of Gomi Akira (Japanese Citizen) to Chinese Court for Recognition and Enforcement of Japanese Judicial Decision), [1996] 1 Supreme People’s Court Gazette 29.
86 Supreme People’s Court, Reply of the Supreme People’s Court on whether the People’s Courts of the PRC should Recognize and Enforce Japanese Judgments Concerning Claims and Obligations, (1995) Min Tazi No. 17.
87 Wenliang Zhang, ‘Sino-Foreign Recognition and Enforcement of Judgments: A Promising Follow-Suit Model?’, (2017) 16 Chinese JIL 520.
88 Wenliang Zhang and Guangjian Tu, ‘The Hague Judgments Convention and Mainland China-Hong Kong SAR Judgments Arrangement: Comparison and Prospects for Implementation’, (2021) 20 Chinese JIL 128.
89 Supreme People’s Court, Regulation of the SPC on Several Issues Relating to Recognition and Enforcement of Foreign Judgments (Sixth Draft), here after ‘SPC Regulation on Judgments Recognition’.
90 Supreme People’s Court, SPC Regulation on Judgments Recognition, s 17(2),
91 Wenliang Zhang and Guangjian Tu, ‘The Hague Judgments Convention and Mainland China-Hong Kong SAR Judgments Arrangement: Comparison and Prospects for Implementation’, (2021) 20 Chinese JIL 126.
92 Supreme People’s Court, SPC 2021 Minutes on International Trials, s 44(1). The document is on file with the authors. Please note that the SPC 2021 Minutes are not meant to be legally binding rules for lower Chinese courts but the guiding role thereof is clear.
93 Supreme People’s Court, SPC 2021 Minutes on International Trials, s 44(2)-(3).
94 Supreme People’s Court, SPC Regulation on Judgments Recognition, s 17(2).
95 Supreme People’s Court, SPC 2021 Minutes on International Trials, s 49.
96 As regards the internal reporting system for recognition and enforcement of foreign arbitral awards in China, only the rulings of lower Chinese courts that refuse to recognize and enforce foreign arbitral awards shall be reported to the SPC. Supreme People’s Court, Relevant Provisions of the Supreme People’s Court on Issues concerning Applications for Verification of Arbitration Cases under Judicial Review [Fa Shi 2017, No. 21, amended in 2021], s 2.
97 See Xiao Bei, ‘An Empirical Study on the Recognition and Enforcement of Foreign Arbitral Awards in China under the New York Convention’, (2016) 3 Modern Law Science 182.
98 SPAR SHIPPING AS v. Grand China Logistics Holding (Group) Co., Ltd., (2018) hu 72 xie wai ren No.1.
99 Power Solar System Co.,Ltd v. Suntech Power Investment Pte.Ltd., (2019) hu 01xie wai ren No.22 zhi yi.
100 Supreme People’s Court, Memorandum of Guidance between the Supreme People's Court of The People’s Republic of China and the Supreme Court of Singapore on Recognition and Enforcement of Money Judgments in Commercial Cases, <https://www.sicc.gov.sg/docs/default-source/guide-to-the-sicc/spc-mog-english-version---signed.pdf> accessed on 4 November 2023.
101 DAR’s application for recognition and enforcement of judgment rendered by District Court of Aachen, Federal Republic of Germany,（2022）jing 01 po shen No.786。