Chen Fengchao's speech at the Fourth China-Singapore Legal and Judicial Roundtable
Development and Innovation of International Commercial Litigation Rules under the Belt and Road Initiative
Speech at the Fourth China-Singapore Legal and Judicial Roundtable
By CHEN Fengchao, Justice, President of the High People's Court of Hainan Province
(November 30, 2020)
Honorable Chief Justice Sundaresh Menon, Honorable Chief Justice Zhou Qiang,
Dear colleagues, ladies and gentlemen,
I feel honored to be invited to join the Fourth China-Singapore Legal and Judicial Roundtable. The topic of my speech today is the development and innovation of litigation rules under the Belt and Road Initiative (hereinafter referred to as the BRI).
I. The basic principles and great significance of international commercial litigation rules under the BRI
As an important tool for international commercial dispute resolution, the flexible, convenient and efficient litigation rules ensure that both parties in litigation have equal rights and obligations, just like rules for sports competition. Regardless of different legal systems and cultures, China and Singapore both adhere to the same basic principles of fairness and efficiency in international commercial litigation. Since the BRI was put forward, the international commercial transactions have been more frequent and disputes increased accordingly. As a result, countries have established their international commercial dispute resolution institutions and made reforms and innovations to the litigation rules for more fairness and efficiency.
There are many countries along the Belt and Road, covering various jurisdictions like the civil law system, the common law system and the Islamic law system. They also differ greatly in language, culture and legal tradition, which add to the complexity and specificity of the commercial disputes among the Belt and Road countries, presenting new demands on judicial procedures and rules of the countries. Finding a balance between justice and efficiency, autonomy of will and judicial credibility with international and convenient litigation rules is a common concern of the commercial courts of all countries. Extensive research and exploration are of great practical significance to promoting trade freedom and international cooperation.
II. The practice and experience of the innovation and development of people’s courts in China practicing the international commercial litigation rules
The rule of law provides the best business environment. Since the BRI was put forward, people’s courts in China have been committed to providing strong judicial support for the Belt and Road construction. We learn from the advantages of civil law and common law litigation rules, and leverage the first-mover advantage of the Internet court and informatization construction, in order to become a prioritized option for international commercial dispute resolution.
1. Adhere to the principle of equity and justice, equally protect the legitimate interests of Chinese and foreign parties, and create a business environment that is ruled by law, international and convenient. First, as the organizational guarantee, the SPC set up the First and the Second International Commercial Courts in Shenzhen and Xi’an respectively. The Hainan High People’s Court set up Hainan First and Second Foreign-related Civil and Commercial Courts in Haikou and Sanya respectively, as well as the Haikou Intellectual Property Court. This has enabled the people’s courts to centralize the trial of foreign-related civil and commercial cases and intellectual property cases, in order to serve the construction of Hainan Free Trade Port. Second, as institutional construction, the “Provisions of the SPC on Several Issues Regarding the Establishment of the International Commercial Court” and the “Procedural Rules for the China International Commercial Court of the SPC (For Trial Implementation)” and other relevant supporting regulations were promulgated to guarantee equal rights to participate in litigation for both Chinese and foreign parties. The Hainan Foreign-related Civil and Commercial Court issued 22 litigation rules in both Chinese and English versions and 6 innovative systems. The system of “pre-litigation mediation + exemption from court hearing charges for pre-litigation mediation cases” proposed by the Hainan Foreign-related Civil and Commercial Court was adopted by the “Diversified Dispute Resolution Regulations of Hainan Province” and implemented into legal provisions. Third, as practical innovation, systems like the “General Power of Attorney by Foreign Subject of Litigation” promoted by the Shanghai Maritime Court and the “similar case debate” by the Guangdong Nansha Free Trade Zone Court based on the common law, have played an active role in the trial of specific cases and helped the parties gain a stronger sense of benefit, identity and trust.
2. Actively practice multilateralism and establish a “one-stop” dispute resolution platform in order to improve the diversified dispute resolution mechanism. At the SPC level, the China International Commercial Court (CICC) initiated the International Commercial Expert Committee system and hired experts from 14 countries and China’s Hong Kong, Macao and Taiwan regions to provide international and professional mediation, foreign law ascertainment and consulting services. The CICC also built a “one-stop” platform as a diversified resolution for international commercial disputes, and established a connection mechanism between CICC and international commercial arbitration & mediation institutions. At the local people’s court level, Hainan High People’s Court signed agreements with over ten international commercial mediation and arbitration institutions. The Hainan Foreign-Related Civil and Commercial Court also developed an online dispute resolution platform (ODR) with independent intellectual property rights, which greatly reduced the litigation costs of the parties with scientific tools. The Huntington arbitration act preservation case supported the act preservation application in the arbitration procedure for the first time. The case was used by the United States District Court for the Northern District of California as the basis for invoking Article 1782 of the United States Code to conduct investigation and evidence collection in the United States, which fully reflects the trend that the Chinese commercial courts are in line with the international common rules and the Chinese court's judgment is increasingly recognized by the international community.
3. Innovate on the procedure rules of international commercial dispute resolution, and create an efficient, low-cost, all-round litigation rules system. First, for procedure distribution, the Supreme People’s Court issued the “Several Opinions on Further Promoting the Efficient Distribution of Complex and Simple Cases and Optimizing the Allocation of Judicial Resources” to further improve the procedure rules such as the distribution of disputes before court session, speedy trial of simple cases, connection of litigation and mediation, and model judgment, and to improve the quality and efficiency of dispute resolution. The CICC implements the first instance as the final instance system in the court at the highest level, which meets the demand for both efficiency and equity. Second, for foreign law ascertainment, the SPC established a unified platform for foreign law ascertainment, and cooperated with universities to establish foreign law ascertainment and research centers. In addition to the five means provided by the law, the International Commercial Expert Committee, the relevant service agency and other reasonable means by the court is also allowed to provide ascertainment to increase the means of ascertainment. Third, for evidentiary materials, evidentiary materials in English are allowed to be submitted by the party without Chinese translation with consent from the other party. This can simplify the procedures for notarization and certification of foreign evidence. In response to the adverse effects of COVID-19 on foreign-related litigations, in June this year, the SPC specially issued the “Guiding Opinions (III) on Several Issues of Properly Hearing Civil Cases involving the COVID-19 Pandemic”, allowing parties to foreign-related commercial maritime disputes to postpone the submission of notarization and certification or other relevant certification materials, and extending the term of producing evidence on the grounds of being affected by COVID-19. Fourth, for providing litigation convenience, people from Hong Kong, Macau, and Taiwan can serve as people's jurors to perform the mediation function in some regions, and may explore ways for foreign parties to participate in litigation activities in English.
The innovative development of litigation rules is a gradual process. Here are the most impressive experiences we have summarized. First, emphasize learning and integrating, and draw on the strengths of litigation rules in civil law and common law systems. When designing the procedure rules, we should fully utilize the advantages of the civil law system such as the judge can exercise the power of interpretation to effectively advance the proceedings. At the same time, we should also learn from the advanced practices of the common law system, like giving the parties more leading power in the litigation procedure, allowing the minority opinions in the adjudication document to be disclosed, and enhancing the credibility of the litigation procedure and the adjudication document; Second, leverage the first-mover advantage of the information technology and artificial intelligence and to provide a prioritized option for international commercial dispute resolution. The development of intelligent courts determines the depth, breadth and intensity of judicial services for economic development in the future. In the past five years, people’s courts in China have resolved more than 250,000 various foreign-related civil and commercial disputes and maritime and commercial disputes. The preliminary construction of China's intelligent court has provided a solution to solve the problem of fewer cases, especially the litigation convenience of the masses during the epidemic period .By using technologies like big data and blockchain to improve evidence preservation, cross-examination and certification procedures, the parties can resolve disputes without leaving home.
III. Advocacy of litigation rules innovation in bilateral practices under the Belt and Road Initiative
This year marks the 30th anniversary of the establishment of diplomatic relations between China and Singapore. With joint efforts, our cooperation and exchanges have entered a new stage. To enhance mutual trust between our two countries, I would like to make the following proposals:
1. Adhere to the basic principle of innovating on litigation rules.
The innovation and development should follow the golden rules below: firstly, equity and justice, which are the core values of judicature; secondly, convenience and efficiency, which are the basic requirement of commercial dispute resolution; thirdly, reduce costs to meet the nature of transaction between commercial subjects; fourthly, the autonomy of will, which is to respect the rights of the parties in litigation.
2. Follow the fundamental path to litigation rules innovation.
Economic globalization has continued to promote the integration of international commercial litigation rules. Particularly, the liquidity of commercial transactions has advanced the dispute resolution procedures to be more international and more convenient. We should adhere to the principle of co-consultation, co-construction and co-sharing, and expand multilateral judicial exchanges and cooperation in aspects of improving the global business environment and rule of law in global governance. We should build consensus, enhance dialogues, and continuously enrich the innovation and development of litigation rules during international judicial assistance and exchanges.
Distinguished guests, with the extensive and in-depth implementation of the BRI, economic and trade exchanges between countries along the Belt and Road have become more and more frequent, and our partnership has become more comprehensive and diverse. On June 1 this year, the Central Committee of the Communist Party of China and the State Council released the “Overall Plan for the Construction of Hainan Free Trade Port”, supporting Hainan to build a high-level free trade port with Chinese characteristics. Singapore is a world-renowned free trade port. The previous introduction by the honorable justice of Singapore on the rules of the Singapore International Commercial Court is very inspiring for Hainan’s judicial construction for the development of Hainan Free Trade Port. I look forward to more exchanges between the courts of the two free trade ports. The Hainan people’s courts will take full advantage of the free trade port and help our litigation rules to be more equitable, efficient and convenient under the socialist rule of law system with Chinese characteristics. Let’s uphold the principles of openness and inclusiveness, innovate on the litigation rules and make them more equal, impartial and efficient, and work together to safeguard and advance the rule of law civilization!