THIS ARTICLE discusses the emergence of international commercial courts around the world. In China, this topic has attracted some attention as a result of a recent announcement that the Supreme People’s Court is considering the establishment of a ‘One Belt, One Road’ (OBOR) international commercial court, to provide the parties of Belt and Road countries with ‘one-stop legal services that are fair, efficient, convenient and low-cost’. The column first outlines the rise and rationale of international commercial courts and then explores possible developments in mainland China.
RISE AND RATIONALE
The past decade or so has seen the emergence of international commercial courts in four jurisdictions: the Dubai International Financial Centre Courts, the Qatar International Court, the Abu Dhabi Global Market Courts and the Singapore International Commercial Court (SICC). These courts are inspired in part by the London Commercial Court and have some unique features when compared with domestic courts. For example, their judicial bench includes judges from various foreign jurisdictions. In addition, their rules and procedures cater to commercial disputes involving foreign litigants and transnational and cross-border disputes that often have little or no connection to the state within which the court is situated. Further, foreign lawyers have greater rights of audience than in traditional domestic courts with the result that, in some cases, the parties, counsel and judges all come from different jurisdictions.
Although there are some features that are shared by the international commercial courts that have been established to date, there are significant differences between these courts and their design does not follow a standard model. The SICC is particularly innovative. Established in January 2015 as a new division of the Singapore High Court, the SICC has jurisdiction to hear claims that are ‘of an international and commercial nature’. The Chief Justice of Singapore, Sundaresh Menon, has stated that the SICC has features that make it ‘particularly attuned to the needs and realities of international commerce’. In particular, the SICC has a panel of judges that includes highly regarded international jurists who are experienced in commercial matters, as well as Singapore Supreme Court judges from both the Court of Appeal and the High Court. Further, where an action being heard in the SICC has ‘no substantial connection with Singapore’, the parties may be represented by foreign lawyers who have registered for this purpose.
The SICC also has its own procedural rules and practice directions that reflect the focus of its jurisdiction. For example, court proceedings may be confidential (particularly if the case is an “offshore case”); parties may apply for an order to replace Singapore evidential rules with other rules of evidence; parties may contract out of or limit their rights to appeal; and a simplified discovery regime is adopted. In addition, the SICC may determine foreign law based on submissions from the parties without requiring the parties to prove foreign law on the basis of expert evidence. As mentioned in a previous column [See China Business Law Journal volume 7 issue 4: Determining foreign law], this is a departure from the approach in other common law jurisdictions where the courts are deemed to have no knowledge of foreign law and, consequently, foreign law is required to be proved by experts.
As noted by the Singapore International Commercial Court Committee, which was set up to study the feasibility of establishing the SICC and to make recommendations, the rationale behind the establishment of the SICC was to enable Singapore ‘to enhance its status as a leading forum for legal services and commercial dispute resolution’ and to become ‘an Asian dispute resolution hub catering to international disputes with an Asian connection’. The committee highlighted that there was a ‘need for a freestanding body of international commercial law’ and commented that an ‘international court’ would be better placed to address some of the perceived weaknesses of arbitration as a means of international commercial dispute resolution. Indeed, calls for the creation of international commercial courts are, in part, a response to the perceived weaknesses of international commercial arbitration. These weaknesses include the ad hoc, private nature of arbitration and its inability to contribute to the development of substantive legal principles. At the same time, the emergence of international commercial courts is also an acknowledgement that courts must more readily accommodate the needs of parties to international commercial disputes by providing a reliable, efficient and low-cost means of resolving cross-border disputes.
In the cases that it has heard to date, the SICC has utilised several of its unique features to enhance its attractiveness, such as a bench that includes distinguished jurists from foreign jurisdictions and the ability for registered foreign lawyers to make submissions on questions of foreign law and to represent parties in SICC cases that are “offshore cases”. The SICC has also produced some judgments that contribute to the development of Singapore’s substantive commercial law jurisprudence. The early experience of the SICC provides useful insights into how other jurisdictions may adapt their own specialist commercial courts or establish new ‘international commercial courts’ to accommodate the needs of parties to international commercial disputes, particularly foreign litigants.
CHINA AND ITS NEW COURT
Launched in 2013, the Belt and Road Initiative is a Chinese economic and strategic initiative that aims to strengthen trade and investment links within Asia, Europe and Africa along land and maritime routes. In 2016, the official English name was changed to ‘The Belt and Road Initiative’. This was because the former name implied there would only be one maritime route and one land route, whereas the initiative aims to connect Asia, Europe and Africa along five routes. To date, the focus of the initiative has been on cooperation in infrastructure projects such as railways, roads, ports, energy and telecommunications. However, the initiative covers other areas of cooperation, including trade and investment relations, financial cooperation and social and cultural exchanges.
The announcement that the Supreme People’s Court is considering the establishment of an OBOR international commercial court was reported to have been made by a senior judge from the Supreme People’s Court, Liu Guixiang, at an international forum on judicial cooperation in Dunhuang on 26 September this year. According to the report, the establishment of such a court would provide a much-needed mechanism for resolving international disputes that would be difficult to resolve by using the judicial system of each country alone. In addition, China would continue to promote judicial cooperation arrangements between Chinese courts and courts in other jurisdictions (in recent times, Chinese courts have entered into memoranda of understanding on legal and judicial cooperation with the courts in the Dubai International Financial Centre and Singapore) and would also issue provisions governing the recognition and enforcement of foreign civil judgments.
If China were to establish an international commercial court, it is likely that certain changes to the existing framework governing courts in China would be required. For example, if China were to invite foreign judges to sit on such a court, it would be necessary to amend or issue exemptions from the following provisions of the Judges Law (see Citation 1).
引文一 Citation 1
Chapter 4 Qualifications for a Judge
To serve as a judge, a person must meet the following conditions:
1. the person must be a national of the People’s Republic of China;
2. the person must have reached the age of 23;
3. the person must support the Constitution of the People’s Republic of China;
4. the person must have good political and professional qualities and be good in conduct;
5. the person must be in good health; and
6. the person must have engaged in legal work for at least two years in the case of graduates in law of colleges or universities or in the case of non-law graduates of colleges or universities who possess professional knowledge of law, or at least three years in the case of such persons who work as a judge of a high people’s court or the Supreme People’s Court, or must have engaged in legal work for at least one year in the case of a graduate in a Master of Law, Doctorate of Law or non-law graduates in a Master or Doctorate degree who possess professional knowledge of law, or at least two years in the case of such persons who work as a judge of a high people’s court or the Supreme People’s Court.
In this regard, it is interesting to note that foreign common law judges already sit as overseas non-permanent judges on the Court of Final Appeal in the Hong Kong Special Administrative Region.
A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at www.vantageasia.com.