11 December, 2018
On 1 July 2018, the Supreme People’s Court of China (SPC) promulgated Provisions on Several Issues Regarding the Establishment of International Commercial Courts (Fa Shi 2018 – No.11). We reported this major development here. The SPC has now, on 5 December 2018, released further rules canvasing out the operation of the China International Commercial Courts (CICC).
On 5 December 2018, the CICC Rules of Procedure (trial implementation) (Fa Fa Ban 2018 – No.13) (CICC Rules of Procedure) came into force. The SPC promulgated concurrently the Working Rules of the CICC Expert Committee (CICC Expert Committee Rules) (Fa Fa Ban 2018 – No.14). Also issued on the same day was the SPC’s Notification on the International Commercial Arbitration and Mediation Institutions Included in the “One-stop-shop” International Commercial ADR Mechanism (Fa Ban 2018 – No.12) (One-stop-shop Institutions Notification).
These rules provide further details on the CICC and its procedure. However, the CICC Rules of Procedure, consisting of only 40 articles, are still relatively brief. It appears that the CICC Rules of Procedure have its blueprint from the Chinese civil procedure law, and not international arbitration rules. It is likely that, when applying these rules in practice, reference to PRC civil procedure rules will need to be made frequently. We will now turn to the features of these new rules.
Jurisdiction of CICC and Interaction with One-stop-shop Institutions
The most common way the CICC assumes jurisdiction in “international commercial cases” (which are loosely defined) with monetary value over RMB300 million will be through parties’ consent. Article 8(1) of the CICC Rules of Procedure clarifies that parties’ consent must be in the form of written agreement. There are other less common ways for the CICC to establish its first instance jurisdiction, such as by referral from high courts, or in the SPC’s own initiative due to the “significant national impact” of the case.
The One-stop-shop Institutions Notification sets out the first batch of One-stop-shop Institutions (One-Stop-Shop Institutions) for arbitration or mediation. Those institutions are CIETAC, Beijing Arbitration Commission, Shanghai International Economic and Trade Commission, Shenzhen Court of International Arbitration, China Maritime Arbitration Commission, Mediation Centre of China Council for the Promotion of International Trade, and Shanghai Commercial Mediation Centre. There are three ways a One-Stop-Shop Institution may interact with the CICC in legal proceedings:
Parties to a CICC proceeding may agree to use a One-Stop-Shop Institution for mediation.
For arbitration cases administered by the One-Stop-Shop Institutions, parties may apply to the CICC for interim measures including pre-action interim reliefs. The threshold is that the value in dispute be over RMB300 million or the case has a “significant impact“. Such applications will be referred to the CICC by a One-Stop-Shop Institution, rather than directly by parties. The parties, however, will have the advantage of having the interim application heard by experienced judges in the SPC.
If a party wishes to set aside an arbitral award issued by a One-Stop-Shop Institution, it can make such an application directly to the CICC, as long as the value in dispute is over RMB300 million or the case has a “significant impact“. Again, parties can enjoy the benefit of “leap-frogging” here.
Facilitating Mediation
10 out of the 40 articles of the CICC Rules of Procedure are devoted to mediation. The case management office is required to summon a case management conference within 7 days after the last defendant has been served. Mediation shall be included in the timetable of the case, unless the parties refuse to mediate. The timetable should also set a time limit for mediation, which shall not exceed 20 working days. The CICC Rules of Procedure evidently put a real emphasis on the efficiency of proceedings.
Parties can choose mediators from the One-stop-shopInstitutions, or members of the CICC Expert Committee. In the former case, relevant institutional rules on meditation will apply.
To facilitate the enforcement of mediated results, the CICC Rules of Procedure expressly provide that the CICC shall issue judgement or mediation documents based on parties’ mediation agreement.
Flexible, Convenient and Efficient Ways to Conduct Proceedings
One key feature the CICC Rules of Procedure promote is the convenience and flexibility that CICC brings to the parties . The CICC supports the case registration, payment, service, submission, mediation, file review, exchange of evidence, conferencing, and hearing, etc., all conducted online (arts. 4 & 5). These measures will potentially save time and costs for parties locating at different parts of the world if the IT infrastructure delivers the objectives.
On one practical issue affecting the usability of the CICC, the Rules of Procedure require the notarisation of documents evidencing the identity of the plaintiff, the plaintiff’s legal representatives and the letter of authorisation, if these documents are created outside the PRC.
There are certain] provisions on the issue of service that seems to be a bit aggressive in promoting efficiency.
The CICC Rules of Procedure place the burden to provide accurate and updated address on the serviced party. If the serviced party refuses to provide address, provides inaccurate address or fails to update its address, causing the failure of actual service, the relevant court documents are deemed to have been served (art. 16). It remains to be seen how these rules play out in practice.
In line with PRC civil procedure law, the CICC Rules of Procedure provide for a pre-hearing conference following the submission of defence. A lot of procedural issues of the case, ranging from joinder, evidence exchange, evidence investigation, to arranging for witness cross examination, etc. will be discussed and decided at this conference.
Role of CICC Expert Committee
The CICC employed a deep panel of practitioners, scholars and judges as members of its expert committee.
Term of their engagement is 4 years, and may be renewed.
The duties of experts can be summarised into three key aspects:
- Acting as mediator in CICC’s international commercial cases;
- Providing advisory opinion at the instruction of CICC or various levels of people’s courts; and
- Providing more strategic advice for the SPC and CICC.
Conclusions
The publication of the CICC Rules of Procedure is an exciting development following the establishment of CICC in July this year. While these rules are seemingly modelled from the PRC civil procedure rules, they are indeed aimed at assisting with the resolution of international commercial disputes. These rules place great emphasis on efficiency and facilitating alternative dispute resolution such as mediation and arbitration. CICC Rules of Procedure, CICC Expert Committee Rules, and the nomination of One-Stop-Shop Institutions demonstrate the ambition of CICC to serve China’s Belt-and-Road Initiative. However, it remains to be seen how the CICC Rules of Procedure will be used in practice and how popular the CICC would be as a judicial forum for resolving international commercial disputes.
For further information, please contact:
Jessica Fei, Partner, Herbert Smith Freehills
jessica.fei@hsf.com
