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Abstract
The wave of setting up international commercial courts has emerged internationally. Following the trend, China established the China International Commercial Court (CICC) in 2018. The CICC exercises consensual jurisdiction and non-consensual jurisdiction over international commercial disputes, and has jurisdiction to support international commercial arbitration. This article analyses the CICC’s criteria for determining international commercial disputes and the specific requirements for each type of jurisdiction based on the relevant provisions and judicial practice of the CICC. In addition, this article identifies the drawbacks of the CICC’s current jurisdiction system, and provides several suggestions for refinement, including the modification and clarification of the criteria for determining the internationality and commerciality of disputes, the removal of restrictions on jurisdiction agreements, the clarification of substantive standards for case transfer, and the expansion of its jurisdiction to support international commercial arbitration.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 See HE Qisheng Research Team, “The Development of Contemporary International Commercial Courts - A Comparison with China International Commercial Court” (2019) 2 Business and Economic Law Review 60, 60.
2 See W Gu and J Tam, “The Global Rise of International Commercial Courts: Typology and Power Dynamics” (2022) 22 Chicago Journal of International Law 443, 445; See L Fei, “Innovation and Development of the China International Commercial Court” (2020) 8 The Chinese Journal of Comparative Law 40, 41; See L Alcolea, “The Rise of the International Commercial Court: A Threat to the Rule of Law?” (2019) 13 Journal of International Dispute Settlement 413, 413; See M Isidro, “International Commercial Courts in the Litigation Market” (2019) 9 International Journal of Procedural Law 4, 9; See S Cinari, “The Emergence of International Commercial Courts: The Rationale and Key Features” (2022) 9 South East European Law Journal 82, 84; See S Wilske, “International Commercial Courts and Arbitration – Alternatives, Substitutes or Trojan Horse” (2018) 11 Contemporary Asia Arbitration Journal, 153, 156; See W Blair, “The New Litigation Landscape: International Commercial Courts and Procedural Innovations” (2019) 9 International Journal of Procedural Law 212, 213.
3 It is worthy to note that the LCC is a specialist court established in 1895 and that it has jurisdiction over international and domestic cases.
4 The term “China” used in this article does not include the Hong Kong Special Administrative Region, the Macao Special Administrative Region and the Taiwan Region.
5 See CICC, “Opinion Concerning the Establishment of the Belt And Road International Commercial Dispute Resolution Mechanism and Institutions”, 27 June 2018, https://cicc.court.gov.cn/html/1/219/208/210/819.html accessed on 14 August 2023.
6 See CICC, “Provisions of the Supreme People’s Court on Several Issues Regarding the Establishment of the International Commercial Court”, 27 June 2018, https://cicc.court.gov.cn/html/1/219/208/210/817.html accessed on 14 August 2023.
7 See CICC, “The First International Commercial Court and the Second International Commercial Court of the Supreme People’s Court Started to Operate Officially”, 29 June 2018, https://cicc.court.gov.cn/html/1/219/208/209/814.html accessed on 14 August 2023.
8 See CICC, “The Person in Charge of the Fourth Civil Division of the Supreme People’s Court Answered Reporters’ Questions on Issues Related to the Release of the Fourth Batch of Typical Cases Related to the Construction of the ‘Belt and Road’”, 27 September 2023, https://cicc.court.gov.cn/html/1/218/149/156/2402.html accessed on 6 November 2023.
9 See Y Wu, “On the Jurisdiction of International Commercial Courts - Also on the Jurisdiction Arrangement of China International Commercial Court” (2019) 35 Studies in Law and Business 142, 143.
10 Art 2 of the Provisions stipulates that, “The International Commercial Court accepts the following cases: (1) First instance international commercial cases in which the parties have chosen the jurisdiction of the SPC according to Article 34 of the CPL, with an amount in dispute of at least 300,000,000 Chinese yuan; (2) First instance international commercial cases which are subject to the jurisdiction of the higher people’s courts who nonetheless consider that the cases should be tried by the SPC for which permission has been obtained; (3) First instance international commercial cases that have a nationwide significant impact; (4) Cases involving applications for preservation measures in arbitration, for setting aside or enforcement of international commercial arbitration awards according to Article 14 of these Provisions; (5) Other international commercial cases that the SPC considers appropriate to be tried by the International Commercial Court”.
11 The Preamble of the Provisions stipulates that, “To try international commercial cases fairly and timely in accordance with the law, protect the lawful rights and interests of the Chinese and foreign parties equally, create a stable, fair, transparent, and convenient rule of law international business environment, provide services and protection for the B&R construction, according to the Law on Organization of the People’s Courts of the PRC, the CPL and other laws, in light of judicial practice, provisions concerning issues related to the establishment of the International Commercial Court of the SPC are set out below”.
12 See J Willems, “International Business Courts: A New Era for Dispute Resolution?”, in B Arp and R Polanco (eds), International Arbitration in Times of Economic Nationalism (Kluwer Law International, 2022), 206.
13 The Provisions, Preamble; See Z Huo and M Yip, “Comparing the International Commercial Courts of China with the Singapore International Commercial Court” (2019) 68 International and Comparative Law Quarterly 903, 916.
14 Article 3 of the Provisions stipulates that, “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 PRC; (c) the object in dispute is outside the territory of the PRC; (d) legal facts that create, change, or terminate the commercial relationship have taken place outside the territory of the PRC”.
15 Huo and Yip, supra n 13, 916; J Chaisse and X Qian, “Conservative Innovation: The Ambiguities of the China International Commercial Court” (2021) 115 AJIL Unbound 17, 18; Y Zhu, “Research on the Jurisdiction of China International Commercial Court” (2021) 32 Journal of Law Application 136, 141.
16 J Liu and Z Tong, “Institutional Innovation and Improvement of China International Commercial Court under the Background of ‘the Belt and Road’” (2019) 37 Hebei Law Science 48, 52.
17 Art 1 of the Interpretation of the SPC on Several Issues Concerning the Application of the Law of the PRC on the Application of Laws to Foreign-related Civil Relations (I) stipulates that, “Under any of the following circumstances, the people’s court may determine a civil relation as a foreign-related civil relation: (1) Where either party or both parties are foreign citizens, foreign legal persons or other organizations or stateless persons; (2) Where the habitual residence of either party or both parties locate outside the territory of the PRC; (3) Where the subject matter is outside the territory of the PRC; (4) Where the legal fact that leads to establishment, change or termination of the civil relation happens outside the territory of the PRC; and (5) Other circumstances that may be determined as a foreign-related civil relation”.
18 Art 520 of the Judicial Interpretation of the CPL stipulates that, “A case which falls under any of the following circumstances shall be deemed a foreign-related civil case by a people’s court: (1) a party or both parties involved in the case are foreigners, stateless persons, foreign enterprises or organizations; (2) a party or both parties involved in the case have their habitual residence outside the territory of the PRC; (3) the subject matter involved is outside the territory of the PRC; (4) the legal fact that establishes, changes or terminates the civil relation occurs outside the territory of the PRC; or (5) other circumstances under which a case may be deemed a foreign-related civil case”.
19 See Y Wang and J Wang, “Deficiencies and Improvements on the Jurisdictional System of International Commercial Courts - Analysis Based on the Concluded Cases of China International Commercial Courts in China” (2020) 31 Journal of Law Application 97, 100.
20 See Wu, supra n 9, 143; See L Bu, “The Construction of International Commercial Court in China from the View of Belt and Road Initiative” (2018) 45 Seeking Truth 91, 95; See Zhu, supra n 15, 141.
21 See Zhu, supra n 15, 140; See Wang and Wang, supra n 19, 100.
22 See Zhu, supra n 15, 141.
23 Art 2 of the Company Law of the PRC (2018 Amendment) stipulates that, “The term ‘company’ as mentioned in this Law refers to a limited liability company or a joint stock company limited set up within the territory of the PRC according to the provisions of this Law”. Art 191 also stipulates that, “The term ‘foreign company’ as mentioned in this Law refers to a company established beyond the territory of China according to any foreign law”.
24 Art 14(2) of the Law of the PRC on the Application of Laws to Foreign-related Civil Relations stipulates that, “If the principal place of business of the legal persons and the places of registration are different, the laws of the former shall apply. Legal persons’ habitual residences are their principal places of business”.
25 See Huo and Yip, supra n 13, 917; See Chaisse and Qian, supra n 15, 19.
26 For example, Art 549 of the Judicial Interpretation of the CPL stipulates that, “The people’s courts may apply, mutatis mutandis, the special provisions on foreign-related civil procedures to civil actions that involve the Hong Kong Special Administrative Region, the Macao Special Administrative Region, or the Taiwan region”. Art 7 of the Provisions of the SPC on Several Issues concerning Jurisdiction over Foreign-Related Civil and Commercial Cases (Interpretation No. 18 [2022] of the SPC) stipulates that, “These Provisions shall apply mutatis mutandis to civil and commercial cases related to Hong Kong Special Administrative Region, Macao Special Administrative Region, and Taiwan Region”. Art 111 of the Minutes of the National Symposium on the Foreign-related Commercial and Maritime Trial Work of Courts stipulates that, “Where the relevant judicial interpretations are silent on cases involving commercial and maritime disputes related to the Hong Kong Special Administrative Region, the Macao Special Administrative Region, and the Taiwan region, the provisions of these Minutes on cases involving foreign-related commercial and maritime disputes shall apply mutatis mutandis”.
27 Art 3(1)(10) of the Provisions of the SPC on Several Issues Concerning the Trial of Cases by the Circuit Courts (2016 Amendment) stipulates that, “The circuit courts shall try or handle the following cases that should be accepted and tried by the SPC within the circuits … (10) civil and commercial cases and judicial assistance cases related to Hong Kong, Macao, and Taiwan”.
28 See J Shi and N Dong, “The Core Issues of China International Commercial Court” (2019) 39 Journal of Xi’an Jiaotong University (Social Science) 116, 117.
29 Ibid, 117.
30 See Willems, supra n 12, 207.
31 Art 1(3) of UNCITRAL Model Law on International Commercial Arbitration stipulates that, “An arbitration is international if: (a) the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different States; or (b) one of the following places is situated outside the State in which the parties have their places of business; (i) the place of arbitration if determined in, or pursuant to, the arbitration agreement; (ii) any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject-matter of the dispute is most closely connected; or (c) the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country”.
32 See Willems, supra n 12, 207; See Q He, Research on International Commercial Courts (Law Press, 2019), 99.
33 Order 2, Rule 1(3)(a) of the SICC Rules 2021 stipulates that, “an action is international in nature if: (i) any of the following places is situated in a State other than Singapore: (A) the places of business of at least one party to the action; (B) the place where a substantial part of the obligations of the commercial relationship between the parties is to be performed; (C) the place with which the subject matter of the action is most closely connected; or (ii) all parties named in the case when it was first filed have expressly agreed that the subject matter of the action relates to more than one State”.
34 Art 1.3.1(b) of the Explanatory Notes to Rules of Procedure of the NCC stipulates that, “NCC proceedings are available for international disputes, so that it will not be appropriate for NCC to deal with a matter that is solely national in scope. A matter would typically concern an international dispute when: (a) at least one of the parties to the proceedings is resident outside the Netherlands or is a company established abroad or incorporated under foreign law, or is a subsidiary of such company; (b) a treaty or foreign law is applicable to the dispute or the dispute arises from an agreement prepared in a language other than Dutch; (c) at least one of the parties to the proceedings is a company, or belongs to a group of companies, of which the majority of its worldwide employees work outside the Netherlands; (d) at least one of the parties to the proceedings is a company, or belongs to a group of companies, of which more than one-half of the consolidated turnover is realised outside of the Netherlands; (e) at least one of the parties to the proceedings is a company, or belongs to a group of companies, the securities of which are traded on a regulated market, as defined in the Dutch Financial Supervision Act, outside the Netherlands; (f) the dispute involves legal facts or legal acts outside the Netherlands; or (g) the dispute otherwise involves a relevant cross-border interest”.
35 See TM Yeo, “Staying Relevant: Exercise of Jurisdiction in the Age of the SICC”, https://ccla.smu.edu.sg/sites/cebcla.smu.edu.sg/files/YPH-Paper-2015.pdf accessed on 14 August 2023.
36 See M Yip, “The Resolution of Disputes Before the Singapore International Commercial Court” (2016) 65 International and Comparative Law Quarterly 439, 447; See Isidro, supra n 2, 44.
37 See J Huang, J Liu and T Liu, “Research on the Reform of the International Commercial Court of China” (2020) 18 Wuhan University International Law Review 1, 3.
38 See Shi and Dong, supra n 28, 117.
39 Art 3 of the Provisions stipulates that, “A commercial case with one of the following situations can be regarded as an international commercial case under these Provisions … … ”
40 See CICC, “The State Council Information Office Held a Press Conference on the ‘Opinion on the Establishment of the Belt and Road International Commercial Dispute Settlement Mechanism and Institutions’”, 28 June 2018, https://cicc.court.gov.cn/html/1/218/149/192/550.html accessed on 14 August 2023.
41 See CICC, “Zhang Yongjian: Towards a Fair, Efficient and Convenient Dispute Resolution Mechanism for B&R-related International Commercial Disputes: China’s Practice and Innovation”, 2 July 2018, https://cicc.court.gov.cn/html/1/219/199/203/831.html accessed on 14 August 2023.
42 See G Wang and R Sharma, “The International Commercial Dispute Prevention and Settlement Organization: A Global Laboratory of Dispute Resolution with an Asian Flavor” (2021) 115 AJIL Unbound 22, 23; See Chaisse and Qian, supra n 15, 18.
43 Supra n 41.
44 See Q Li, “Important Achievements in Strengthening Legislation in Foreign-related Areas - Review of the Draft Law on State Immunity of Foreign States”, People’s Daily, 9 January 2023, 15; See Q Li, “A Review of Sovereign Immunities Cases Against China in the United States Courts” (2022) 9 Chinese Review of International Law 3, 10; See X Qiao and X Lang, “Current Status and Outlook of China’s legislation on State immunity” (2021) 33 Yangtze Tribune 76, 77.
45 The Notice of the SPC on the Implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Acceded to by China stipulates that, “In accordance with the commercial reservation declaration made by China upon its accession to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), China will apply the New York Convention only to disputes arising out of legal relationships, whether contractual or not, which are considered commercial under the national law of the PRC. Specifically, such legal relationships refer to economic rights and obligations arising from contracts, torts or relevant legal provisions, such as purchase and sale of goods, lease of property, project contracting, processing, technology transfer, equity or contractual joint adventure, exploration and development of natural resources, insurance, credit, labor service, agency, consultation service, marine, civil aviation, railway or road passenger and cargo transportation, product liability, environment pollution, marine accident, and ownership disputes, except disputes between foreign investors and the host government”.
46 See Bu, supra n 20, 96.
47 For instance, Order 2, Rule 1(3)(b) of the 2021 SICC Rules stipulates that, “an action is commercial in nature if: (i) the subject matter of the action arises from a relationship of a commercial nature, whether contractual or not; (ii) the action relates to an in personam intellectual property dispute; or (iii) all parties named in the case when it was first filed have expressly agreed that the subject matter of the action is commercial in nature”.
48 For example, Art 5(1) of ADGM Courts, Civil Evidence, Judgments, Enforcement and Judicial Appointments Regulations stipulates that, “The Courts shall not have any jurisdiction to hear, examine, try or determine any issue, cause or matter relating to any criminal offence, or any alleged criminal offence”.
49 For example, Art 26(2) of the AIFC Court Regulations 2017 stipulates that, “The reference to ‘disputes’ between the parties mentioned in this Article applies to civil or commercial disputes arising from transactions, contracts, arrangements or incidences,” while Art 26(4) stipulates that, “The Court does not have jurisdiction in relation to any disputes that are of a criminal or administrative nature”.
50 Art 34 of the CPL (adjusted to Art 35 after the 2021 amendment) provides that, “Parties to a dispute over a contract or any other right or interest in property may, by a written agreement, choose the people’s court at the place of domicile of the defendant, at the place where the contract is performed or signed, at the place of domicile of the plaintiff, at the place where the subject matter is located or at any other place actually connected to the dispute to have jurisdiction over the dispute, but the provisions of this Law regarding hierarchical jurisdiction and exclusive jurisdiction shall not be violated”.
51 H Du, “Examination on the Clause of Choice of Court in Foreign-Related Civil Procedure in China - A Perspective of Shandong Jufeng Network Case” (2014) 29 Legal Forum 93, 94.
52 See F Yuan and J Qu, “Review over the Place with Real Connection in the Agreed Jurisdiction - Imbalance of Legislative Purpose and Practical Effect” (2016) 3 Chinese Review of International Law 96, 101.
53 See He, supra n 32, 185; See HE Qisheng Research Team, “The Establishment of Chinese International Commercial Court” (2018) 16 Wuhan University International Law Review 1, 9.
54 See G Liu, H Shen and X Huang, “Study on Several Difficult Issues in Foreign-Related Commercial and Maritime Trials” (2013) 24 Journal of Law Application 53, 54.
55 Ibid.
56 See Yuan and Qu, supra n 52, 101; See X Lin, “Rational Discussion and Practical Exploration of the Principle of Practical Connection in Foreign-Related Consensual Jurisdiction” (2018) 29 Journal of Law Application 58, 58.
57 See Yuan and Qu, supra n 52, 100.
58 See L Liu, “Discussion on the Principle of Practical Connection in the Foreign-Related Consensual Jurisdiction” (2011) 7 International Law Review 275, 279.
59 See MN Shaw, International Law (Cambridge University Press, 2008), 645.
60 This refers only to “exclusive jurisdiction agreements”.
61 See J Wang, “Theoretical Errors and Institutional Dilemmas - Comment on the Full Incorporation of the ‘Principle of Practical Connection’ in China’s Consensual Jurisdiction” (2014) 27 Journal of Yunnan University (Law Edition) 47, 50.
62 See Yuan and Qu, supra n 52, 105; See Lin, supra n 56, 62.
63 See Yuan and Qu, supra n 52, 104; See Lin, supra n 56, 61; See Y Liu, “Rethinking the Principle of ‘Practical Connection’ in China’s Foreign-Related Consensual Jurisdiction - From the Perspective of the Construction of the China International Commercial Court” (2020) 26 Chinese Yearbook of Private International Law and Comparative Law 215, 217.
64 See T Du, “The Legal Issues and Countermeasure of China’s Ratification of the Hague Convention on Choice of Court Agreements” (2016) 69 Wuhan University Journal (Philosophy & Social Sciences) 88, 94; See Lin, supra n 56, 59; See Liu, supra n 63, 217.
65 Art 244 of the 1991 CPL stipulates that, “Parties to a dispute over a contract concluded with foreign element or over property rights and interests involving foreign element may, through written agreement, choose the court of the place which has practical connections with the dispute to exercise jurisdiction. If a people’s court of the PRC is chosen to exercise jurisdiction, the provisions of this Law on jurisdiction by forum level and on exclusive jurisdiction shall not be violated”.
66 See Justice John Middleton, “The Rise of the International Commercial Court”, 21 September 2018, http://www5.austlii.edu.au/au/journals/FedJSchol/2018/18.html accessed on 14 August 2023; See S Zhang, “China’s International Commercial Court: Background, Obstacles and the Road Ahead” (2020) 11 Journal of International Dispute Settlement 150, 162.
67 See H Li, Introduction to International Civil Procedure Law (Law Press, 1996), 64.
68 See L Huanzhi, “China’s International Commercial Court: A Strong Competitor to Arbitration?”, 30 September 2018, http://arbitrationblog.kluwerarbitration.com/2018/09/30/chinas-international-commercial-court-a-strong-competitor-to-arbitration/ accessed on 14 August 2023.
69 See Liu, Shen and Huang, supra n 54, 53.
70 Ibid.
71 See Yuan and Qu, supra n 52, 106.
72 See X Xi, “On the Determination of Consensual Jurisdiction Clauses in Foreign Related Civil and Commercial Litigation in China (Part 1)” (2002) 13 Journal of Law Application 11, 16.
73 Shandong Jufeng Network Co., Ltd. v. South Korean MGAME Co. and Tianjin Fengyun Network Technology Co., Ltd., (2009) Min San Zhong Zi No. 4, the SPC (22 December 2009).
74 Shanghai Yanliu International Freight Transport Agency Co., Ltd. v. Evergreen Marine Corp., (2011) Min Ti Zi No. 301, the SPC (28 October 2011).
75 Delixy Energy Pte. Ltd. v. Dongming Zhongyou Fuel Petrochemical Co. Ltd., (2011) Min Ti Zi No. 312, the SPC (16 December 2011).
76 See Liu, Shen and Huang, supra n 54, 53; See Du, supra n 51, 97.
77 See Yuan and Qu, supra n 52, 108.
78 See Lin, supra n 56, 64.
79 See L He and H Wu (eds), Maritime Law (Xiamen University Press, 2004), 114–15.
80 Shenzhen Huapu Digital Co., Ltd. v. CMA CGM S. A., (2010) Yue Gao Fa Li Min Zhong Zi No. 77, the Higher People’s Court of Guangdong Province (12 June 2010).
81 See J Wang, Study on the Application of the Unified Consensual Jurisdiction System in China (China University of Political Science and Law Press, 2016), 174.
82 See He and Wu, supra n 79, 121.
83 See Wu, supra n 9, 145.
84 Li, supra n 67, 64.
85 See Zhang, supra n 66, 162; See Cinari, supra n 2, 103.
86 See Portland, “Commercial Courts Report 2023”, https://portland-communications.com/publications/commercial-courts-report-2023/ accessed on 14 August 2023.
87 Art 5(A)(2) of Law No. 12 of 2004 in respect of The Judicial Authority at DIFC as amended stipulates that, “The Court of First Instance may hear and determine any civil or commercial claims or actions where the parties agree in writing to file such claim or action with it whether before or after the dispute arises, provided that such agreement is made pursuant to specific, clear and express provisions”.
88 See Z Sharar and M Khulaifi, “The Courts in Qatar Financial Centre and Dubai International Financial Centre: A Comparative Analysis” (2016) 46 Hong Kong Law Journal 529, 540; See J Krishnan and P Purohit, “A Common Law Court in an Uncommon Environment: The DIFC Judiciary and Global Commercial Dispute Resolution” (2014) 25 The American Review of International Arbitration 497, 498; See M Yip, “Singapore International Commercial Court: A New Model for Transnational Commercial Litigation” (2014) 32 Chinese (Taiwan) Yearbook of International Law and Affairs 155, 156; See A Saito, “International Commercial Arbitration and International Commercial Courts: Towards A Competitive and Cooperative Relationship”, https://www.victoria.ac.nz/__data/assets/pdf_file/0004/1186978/Saito.pdf accessed on 12 April 2023; See H Koster and M Obe, “The Dubai International Financial Centre Courts: A Specialized Commercial Court in the Middle East”, https://www.researchgate.net/publication/327856924_The_Dubai_International_Financial_Centre_DIFC_Courts_A_Specialised_Commercial_Court_in_the_Middle_East accessed on 12 April 2023; See J Tao, “A Comparative Study of International Commercial Courts: An Emerging Alternative for Resolving Disputes”, in N Kaplan, M Pryles and C Bao (eds), International Arbitration: When East Meets West – Liber Amicorum Michael Moser (Kluwer Law International, 2020), 270; See Wilske, supra n 2, 162.
89 See DIFC Courts, “DIFC Courts manages increased caseload alongside newly engineered services for future digital economy”, https://www.difccourts.ae/media-centre/newsroom/difc-courts-manages-increased-caseload-alongside-newly-engineered-services-future-digital-economy accessed on 14 August 2023.
90 See Yuan and Qu, supra n 52, 105.
91 Art 8 of the Special Maritime Procedure Law of the PRC stipulates that, “Where the parties to a maritime dispute are foreign nationals, stateless persons, foreign enterprises or organizations and the parties, through written agreement, choose the maritime court of the PRC to exercise jurisdiction, even if the place which has practical connections with the dispute is not within the territory of the PRC, the maritime court of the PRC shall also have jurisdiction over the dispute”.
92 See Liu, Shen and Huang, supra n 54, 53–54.
93 See Liu, supra n 63, 216.
94 See W Cai, “International Commercial Courts: Comparison of Systems, Conflict of Rules and Paths to Construction” (2018) 40 Global Law Review 175, 186.
95 The Decision of the SPC on Amending the Provisions of the SPC on Several Issues Regarding the Establishment of the International Commercial Courts, passed by the 1908th Meeting of the Judicial Committee of the SPC on 5 December 2023, effective from 1 January 2024.
96 See supra n 68; See Chaisse and Qian, supra n 15, 19; See W Sun, “International Commercial Court in China: Innovations, Misunderstandings and Clarifications”, 4 July 2018, https://arbitrationblog.kluwerarbitration.com/2018/07/04/international-commercial-court-china-innovations-misunderstandings-clarifications/ accessed on 14 August 2023.
97 See Zhu, supra n 15, 146.
98 Ibid.
99 See Bu, supra n 20, 97.
100 See Huo and Yip, supra n 13, 908–909.
101 See ibid, 910; See HE Qisheng Research Team, supra n 1, 79.
102 See He, supra n 32, 95; See HE Qisheng Research Team, supra n 53, 18.
103 See Mary Keyes and Brooke Adele Marshall, “Jurisdiction Agreements: Exclusive, Optional and Asymmetrical” (2015) 11 Journal of Private International Law 345, 349.
104 See Wu, supra n 9, 147.
105 Art 3(2) of the 2016 Choice of Court Agreements Act stipulates that, “A choice of court agreement between 2 or more parties which satisfies the following requirements is deemed to be an exclusive choice of court agreement, unless the parties to the agreement expressly provide otherwise … ”
106 The model clause recommended by the SICC provides that, “Each party submits to the exclusive jurisdiction of the Singapore International Commercial Court all disputes arising out of or in connection with the present contract, including any question relating to its existence, validity or termination”.
107 See R Liu, “Problems and Solutions to China’s Ratification of the Convention on Choice of Court Agreements” (2018) 40 Chinese Journal of Law 188, 192.
108 Fa Fa [2005] No. 26.
109 See Zhang, supra n 66, 168; See Wu, supra n 9, 154.
110 See Wu, supra n 9, 151.
111 See W Gu and Y Tang, “The New Wave of International Commercial Courts in Asia” (2022) 24 Asian Dispute Review 181, 187.
112 See Willems, supra n 12, 214.
113 Asia Optics Co., Inc., Dongguan Xintai Optics Co., Ltd., et al v. Fuji Film Co., Ltd., et al., (2019) Zui Gao Fa Shang Chu No. 2, the SPC (25 October 2019).
114 See Wu, supra n 9, 151.
115 The 2021 SICC Rules, Order 2, Art 4(3).
116 The 2021 SICC Rules, Order 2, Art 4(4).
117 Pursuant to Art 3(2) of the 2021 SICC Rules, the SICC may decline to exercise jurisdiction in a case, or over a claim in a case, if exercising jurisdiction would be contrary to its international and commercial character or would be an abuse of the process of the Court.
118 The 2021 SICC Rules, Order 2, Art 3(5).
119 The 2021 SICC Rules, Order 2, Art 4(5).
120 See Wu, supra n 9, 154.
121 See Wu, supra n 9, 155; See Zhang, supra n 66, 168.
122 Art 37 of the CPL (2023 Amendment) stipulates that, “Where a people’s court discovers that a case accepted is not under its jurisdiction, it shall transfer the case to the people’s court having jurisdiction, and the people’s court to which the case is transferred shall accept the case. If the people’s court to which the case is transferred deems that the transferred case is not under its jurisdiction according to the relevant provisions, it shall report the case to its superior for specified jurisdiction and shall not transfer the case without direction”.
123 Art 211 of the Judicial Interpretation of the CPL stipulates that, “Where a people’s court has no jurisdiction over a case, it shall notify the plaintiff to institute an action in the competent people’s court; if the plaintiff insists on instituting an action in the people’s court, it shall rule to dismiss the action; or if the people’s court finds that it has no jurisdiction over the case after having docketed it, it shall transfer the case to the competent people’s court”.
124 Art 38(1) of the CPL (2023 Amendment) stipulates that, “Where a people’s court having jurisdiction is unable to exercise its jurisdiction for any special reasons, its superior shall specify jurisdiction”.
125 Art 42(1) of the Judicial Interpretation of the CPL stipulates that, “A people’s court may, before trial, transfer a first instance civil case under any of the following circumstances to a people’s court at a lower level for trial in accordance with the provision of paragraph 1, Article 38 of the CPL: (1) A case concerning a debtor in the bankruptcy procedure; (2) A case involving numerous parties who are inconvenient to institute actions; (3) A case of any other type as determined by the SPC”.
126 HNA Financial I Co. Ltd. v. Frontier Investment Partner Holding Limited and Chin, (2019) Zui Gao Fa Shang Chu No. 4, the SPC (23 June 2022).
127 Art 21 of the CPL (2023 Amendment) stipulates that, “The SPC shall have jurisdiction over the following civil cases as a court of first instance: (1) cases which have a major impact nationwide; (2) cases which the SPC deems shall be tried by itself”.
128 Zhang Yufang v. Xie Yumin, et al., (2020) Zui Gao Fa Min Xia No. 54, the SPC (29 September 2022).
129 Guangzhou Aircraft Maintenance Engineering Co., Ltd. v. Orient Thai Airlines Co., Ltd., (2020) Zui Gao Fa Min Xia No. 55, the SPC (12 August 2021).
130 Lite-On Mobile Pte. Ltd. v. Star Touch Technology (Shenzhen) Co., Ltd. and Zhejiang Star Technology Co., Ltd., Zui Gao Fa Min Xia No. 44, the SPC (8 April 2022).
131 Luck Treat Ltd. v. Zhong Yuan Cheng Commercial Investment Holdings Co., Ltd., (2019) Zui Gao Fa Min Te No. 1, the SPC (18 September 2019).
132 Newpower Enterprises Inc. v. Zhong Yuan Cheng Commercial Investment Holdings Co., Ltd., (2019) Zui Gao Fa Min Te No. 2, the SPC (18 September 2019).
133 Beijing HK CTS Grand Metropark Hotels Management Co., Ltd. and Shenzhen Metropark Hotel Co., Ltd. v. Zhong Yuan Cheng Commercial Investment Holdings Co., Ltd., (2019) Zui Gao Fa Min Te No. 3, the SPC (18 September 2019).
134 Inter-Biopharm Holding Ltd. v. Red Bull Vitamin Beverage Co., Ltd., (2018) Zui Gao Fa Min Xia No. 188, the SPC (28 December 2018).
135 Market Global Holdings Ltd. v. Saravoot Yoocidhya, (2018) Zui Gao Fa Min Xia No. 189, the SPC (28 December 2018).
136 Inter-Biopharm Holding Ltd. v. Chanchai Ruayrungruang, (2018) Zui Gao Fa Min Xia No. 190, the SPC (28 December 2018).
137 Ruochai International Group Co., Ltd. v. Red Bull Vitamin Beverage Co., Ltd., (2018) Zui Gao Fa Min Xia No. 191, the SPC (28 December 2018).
138 Ruochai International Group Co., Ltd. v. Red Bull Vitamin Beverage Co., Ltd., (2019) Zui Gao Fa Min Xia No. 27, the SPC (5 May 2019).
139 The Provisions, Art 11.
140 See Fei, supra n 2, 42–43.
141 Art 11(1) of the Provisions stipulates that, “The SPC will set up an International Commercial Expert Committee and select international commercial mediation institutions and international commercial arbitration institutions that meet certain conditions to build up together with the International Commercial Court a dispute resolution platform on which mediation, arbitration, and litigation are efficiently linked, thereby creating a ‘one-stop’ international commercial dispute resolution mechanism”.
142 Art 14 of the Provisions stipulates that, “Where the parties agree to submit their dispute to arbitration by an international commercial arbitration institution under Article 11(1) of these Provisions, they may apply to the International Commercial Court for a ruling on the preservation of property, evidence or conduct before or after the arbitration proceeding commences. Where a party makes an application to the International Commercial Court for setting aside or enforcement of an arbitral award rendered by an international commercial arbitration institution under Art 11(1) of these Provisions, the International Commercial Court shall review the application in accordance with provisions of the CPL and other related legal provisions”.
143 The Notice of the General Office of the SPC on Inclusion of the First Group of International Commercial Arbitration and Mediation Institutions in the “One-Stop” Diversified International Commercial Dispute Resolution Mechanism, Fa Ban [2018] No. 212; The Notice of the General Office of the SPC on Inclusion of the Second Group of International Commercial Arbitration Institutions in the “One-Stop” Diversified International Commercial Dispute Resolution Mechanism, Fa Ban [2022] No. 326.
144 Art 34 of the Procedural Rules stipulates that, “Where a party applies for preservation in accordance with Article 14(1) of the Provisions in an international commercial case in which the amount in dispute exceeds 300,000,000 Chinese Yuan or significant influence otherwise exists, the international commercial arbitration institution shall submit the application to the CICC in accordance with the CPL, the Arbitration Law of the PRC and other laws. The CICC shall accept the case after review, and adjudicate the case in accordance with the laws”.
145 Art 35 of the Procedural Rules stipulates that, “Where a party, in accordance with Article 14(2) of the Provisions, applies to the CICC for setting aside or enforcement of an arbitration award made by an international commercial arbitration institution in an international commercial case in which the amount in dispute exceeds 300,000,000 Chinese Yuan or significant influence otherwise exists, the party shall submit an application letter, accompanied with the original arbitration award or mediation document. The CICC shall accept the case after review, and adjudicate the case in accordance with the laws”.
146 See CICC, “Wang Weijun: ‘Litigation and Arbitration Synergy’ Promotes Improvement of the ‘One-Stop’ Mechanism of International Commercial Court”, 9 August 2023, https://cicc.court.gov.cn/html/1/218/149/164/2390.html accessed on 14 August 2023.
147 See CICC, “The China International Commercial Court of the Supreme People’s Court of China has accepted a Number of Cases concerning International Commercial Disputes”, 29 December 2018, https://cicc.court.gov.cn/html/1/218/149/192/1150.html accessed on 14 August 2023.
148 The Supreme Court of Judicature (Amendment) Bill passed by Singapore on 9 January 2018 authorises the SICC to adjudicate any proceedings related to international commercial arbitration. The Amendment renumbered Art 18D of the Supreme Court of Judicature Act as subsection (1) of that section, and inserted the following subsection, which reads: “(2) Without limiting subsection (1), the SICC (being a division of the High Court) has jurisdiction to hear any proceedings relating to international commercial arbitration that the High Court may hear and that satisfy such conditions as the Rules of Court may prescribe”.
149 Art 26(8) of the AIFC Court Regulations stipulates that, “The Court shall have jurisdiction in relation to any matter in respect of which jurisdiction is conferred on it by the AIFC Constitutional Statute or AIFC Regulations, including with regards to the Court’s authority to perform functions to facilitate effective arbitration”.
150 Art 231(1) of ADGM Court Procedure Rules stipulates that, “In this Rule, ‘arbitration claim’ means: (a) any application to the Court under the Arbitration Regulations; (b) a claim to determine whether there is a valid arbitration agreement, whether an arbitration tribunal is properly constituted or what matters have been submitted to arbitration in accordance with an arbitration agreement; (c) a claim to declare that an award by an arbitral tribunal is not binding on a party; and (d) any other application affecting arbitration proceedings (whether started or not) or an arbitration agreement”.
151 Art 43.2(3) of Rules of the DIFC Courts stipulates that “‘arbitration claim’ means: (a) any application to the Court under the Arbitration Law, including any application: (i) for an order under Article 12 of the Arbitration Law disapplying that Article; (ii) to dismiss or stay an action which is the subject of an arbitration agreement under Article 13 of the Arbitration Law; (iii) for an order under Article 14 of the Arbitration Law for an Order requiring disclosure of information relating to arbitral proceedings; (iv) to appoint or to facilitate the appointment of an Arbitral Tribunal, to challenge the appointment of an Arbitrator or to terminate the mandate of an Arbitrator under Articles 17–20 of the Arbitration Law; (v) for an Order relieving an Arbitrator of any liability incurred by reason of his resignation under Article 21 of the Arbitration Law; (vi) to determine whether an Arbitral Tribunal has jurisdiction in respect of a dispute under Article 23 of the Arbitration Law; (vii) to enforce an interim measure made by an Arbitral Tribunal under Article 24 of the Arbitration Law; (viii) for an order from the Court issuing an interim measure under Article 24 of the Arbitration Law; (ix) to the Court for assistance in taking evidence for the purposes of an arbitration under Article 34 of the Arbitration Law; (x) to the Court of First Instance to determine the amount of fees and expenses properly payable to the Arbitral Tribunal under Article 39 of the Arbitration Law; (xi) to set aside an arbitral award under Article 41 of the Arbitration Law; (xii) for recognition or enforcement of an arbitral award under Article 42 of the Arbitration Law; and (b) any other application affecting: (i) arbitration proceedings (whether started or not) ; or (ii) an arbitration agreement”.
152 See CICC, “Zhang Yusheng: Multi-measures and Concerted Efforts to Actively Build an International Commercial Dispute Resolution Platform Organically Linking Arbitration and Litigation”, 9 August 2023, https://cicc.court.gov.cn/html/1/218/149/164/2396.html accessed on 14 August 2023.