Arbitration – European Chinese Law Research Hub

The Arbitrability of Public-Private Partnership Contract Disputes in China

15. April 2025

A new paper by Xianqi Peng

A public-private partnership (PPP) is a long-term collaboration between a public authority and a private sector entity, in which the private party delivers products or provides services for the government, receiving a fee from the government or end users. The model enables the state authority to provide at less financial costs the necessary infrastructure to citizens and make projects more efficient by relying on the private sector’s expertise. Since 2014, PPP projects have boomed in China. Until 2024, more than 10,000 PPP projects have been launched, with accumulated investment of 16.2 trillion RMB, according to statistics of the Ministry of Finance. With the high number of PPP projects launched in China, many respective contract disputes have been brought to court. Between 2014 and the end of 2023, over 10,186 PPP cases, including civil, criminal and administrative cases, were handled in total. However, there is a heated debate over whether arbitration can be used for PPP contract disputes because PPP contracts are partly classified as administrative and partly as private law contracts, and the disputes may include administrative actions or contractual matters.

Against this backdrop, this article first examines whether the current legal framework of the PRC excludes arbitration as a procedure for resolving PPP contract disputes. In many jurisdictions, such as the UK, the USA, Germany and Italy, the arbitrability of PPP contract disputes is generally accepted. In China, there is still no specific PPP law to comprehensively regulate the initiation and implementation of such projects. This regulatory gap has resulted in a fragmented framework, with various national ministries and the Supreme People’s Court issuing their own regulations or guidelines to govern PPPs and their dispute resolution mechanisms within their respective administrative and/or juridical authority. Prior to May 2015, several regulations issued by the Ministry of Finance and the National Development and Reform Commission allow parties to settle PPP disputes through arbitration. However, following the enactment of the amended Administrative Procedure Law (行政诉讼法) on 1 May 2015, along with its corresponding judicial interpretation issued by the Supreme People’s Court (最高人民法院关于审理行政协议案件若干问题的规定), PPP contracts were explicitly classified as administrative contracts. These provisions established that PPP disputes fall within the exclusive jurisdiction of administrative litigation, thereby excluding arbitration as a permissible dispute resolution mechanism. However, in November 2023, the Ministry of Finance and the National Development and Reform Commission have introduced a new PPP regulation (关于规范实施政府和社会资本合作新机制的指导意见) and concession regulation allowing parties to PPP contracts to select an appropriate dispute resolution method based on the nature of the dispute. Arbitration is permitted if the dispute arises under private law. This setup contradicts the previous guideline of the Supreme People’s Court under which respective disputes fall exclusively under the jurisdiction of administrative courts. The divergence between the rules of the Ministries and those of the Supreme People’s Court creates uncertainty regarding which rules should apply in cases of conflict.

Apart from conducting doctrinal and descriptive analysis, this article develops a comprehensive case study to examine Chinese courts’ attitudes on whether arbitration is used for PPP disputes. Through a key search on the Chinese Case database, a sample of nearly 1,500 relevant cases from January 2014 to December 2023 was collected. A thorough case-by-case review identified 68 qualified cases from different courts, including 4 decisions of Basic-level People’s Courts, 34 decisions of Intermediate People’s Courts, 18 decisions of High People’s Courts, and 12 decisions of the Supreme People’s Court. The data demonstrates that debates surrounding the arbitrability of PPP contract disputes exist across different hierarchies of Chinese courts. Three patterns emerge: Courts of lower hierarchy more often permit the arbitration of PPP contract disputes than courts higher up in the hierarchy. Second, discrepancies in perspectives on the arbitrability of PPP contract disputes arise between first instance and appellate courts. Third, divergent opinions on dispute resolution for PPP contracts also arise among different tribunals within the same court.

The decisions further demonstrate that the courts adopt three distinct approaches when determining the dispute resolution mechanism for PPP contract disputes:

The legal nature of the contract determines the dispute resolution mechanism. If the court classified the contract as a private law contract, civil procedures were permitted. Conversely, if classified as an administrative contract, the administrative courts were granted exclusive jurisdiction.
The nature of the dispute determines the dispute resolution mechanism. Focus is laid on the nature of the dispute itself, specifically, whether they involved the exercise of public authority (administrative disputes) or whether they are rooted in private law issues.
Party autonomy is priority. If there is a valid court selection provision or arbitration clause, the procedure choice is made accordingly.

Building on doctrinal analysis and the examination of relevant cases, this article concludes that arbitration should not be prohibited for resolving PPP disputes. First, PPP contracts should not be uniformly classified as administrative contracts, and current Chinese law does not expressly prohibit the use of arbitration in such cases. Second, the application of the proximate cause doctrine (in China: 近因理论) is recommended to distinguish between disputes arising from administrative actions and those rooted in contractual obligations. The proximate cause doctrine establishes that when a claimant seeks redress for losses resulting from a breach of contract or tortious conduct, they must demonstrate that the ‘consequences’ of the loss were caused directly by the ‘proximate cause’ of the infringer’s breach or tortious act. This approach would enable a more nuanced and appropriate determination of the applicable dispute resolution mechanism. Third, a pro-arbitration stance should be adopted, one that favors the use of arbitration in PPP disputes while narrowly defining what constitutes an administrative dispute within the context of such contracts. This approach not only leverages the inherent advantages of arbitration, such as neutrality, flexibility, and enforceability, to effectively balance the protection of public and private interests, but also alleviates the concerns of private investors. Winning rates for private parties in administrative litigation are very low. By reinforcing confidence in fair and efficient dispute resolution, this position may encourage broader private sector participation in PPP projects and contribute to the sustainable development of the PPP model.

The full paper, titled “Arbitrability of PPP Contract Disputes in China: Based on An Analysis of 68 Chinese Cases”, is published in the Commercial Arbitration and Mediation (商事仲裁与调解), vol. 1/2025 (in Chinese). Xianqi Peng is a PhD candidate at the Faculty of Law & Criminology at Ghent University, Belgium. His research focuses on international investment law, private international law, arbitration, African law and public private partnerships. He published in journals such as African Studies and Nankai Law Review. He can be contacted at xianqi.peng[at]ugent.be.

Consensual Settlement of Competition Disputes in China: a Call for Conditional Arbitrability

8. July 2024

Alexandr Svetlicinii

Commercial arbitration has become the major dispute resolution venue for Chinese companies doing business abroad as well as for foreign enterprises in China. According to a 2022 survey carried out by CIETAC, 70% of the surveyed Chinese companies include arbitration clauses in their contracts with foreign counterparts, while 86% indicated their preference for out-of-court settlement of commercial disputes arising out of their overseas business activities. The nation’s highest court, the Supreme People’s Court (SPC), also supports and promotes commercial arbitration. In its 2015 Opinions on providing judicial services and safeguards for the construction of the Belt and Road Initiative (BRI), the SPC called upon people’s courts to “support the resolution of disputes by the Chinese and foreign parties through mediation, arbitration, and other non-litigation forms” as well as to “accurately comprehend and apply the New York Convention” when faced with requests for recognition and enforcement of foreign arbitral awards in China.

What if, however, a contract containing an arbitration clause also contains provisions that may be contrary to the Anti-Monopoly Law (AML), as they may implement anti-competitive agreements or abuse of market dominance? Can a determination regarding compliance or non-compliance with AML be determined by the arbitrator(s) in the context of arbitration proceedings prompted by a contract-related dispute? The Chinese lawyers frequently caution that there is no consensus as to the arbitrability of AML-related issues, and the parties should be prepared for a stand-off in court even if their contract contains an arbitration clause. Furthermore, there are observable traces of a litigation strategy to intentionally stall or delay arbitration proceedings by launching AML-based claims before a court and calling it to declare the respective contract invalid.

This discussion is quite timely, as China is in the process of revising its Arbitration Law in a bid to improve the credibility of the country’s arbitration system. Currently, competition law issues do not feature among either arbitrable or non-arbitrable matters listed in Arbitration Law. The 2021 draft amendments released by the Ministry of Justice in 2021 provided for the possibility to expand the range of arbitrable matters through other laws by adding the following provision: “Where the law provides that a party may institute civil proceedings in a people’s court, without clearly stating that the matter involved is not arbitrable, the arbitration agreement concluded by the parties which complies with the provisions of this [Arbitration] Law shall be valid”.

As the legislators discussed the possibility of expanding the list of arbitrable matters by adding investment, intellectual property, and anti-monopoly disputes, the Supreme People’s Court (SPC) moved in the opposite direction by stipulating that “if the plaintiff files a civil lawsuit in a people’s court in accordance with the Anti-Monopoly Law, and the defendant raises an objection on the grounds that there is a contractual relationship between the two parties and that an arbitration agreement has been established, it will not affect the acceptance of the civil monopoly dispute case by the people’s court” (2022 draft amendments to the 2012 Provisions on civil anti-monopoly disputes). Under these circumstances, the courts have developed an inconsistent judicial practice featuring divergent approaches towards the arbitrability of AML-related matters. The cases analyzed for the purposes of the present study revealed various factors affecting courts’ assessments of the scope of arbitration agreements and parties’ invocation of AML infringements in contractual disputes.

To address the aforementioned inconsistencies in judicial interpretations, enhance compliance with and private enforcement of AML, and encourage the alignment of China’s arbitration system with those of its major trading partners where arbitrability of competition matters is well recognized, the paper advances a call for conditional arbitrability of antitrust-related contractual disputes. First, it proposes to reflect the increased significance of AML in the amendments to the Arbitration Law by affirming the arbitrability of contractual disputes involving AML matters. Second, the paper calls upon the SPC to provide detailed guidance on substantive and procedural aspects to guide the courts in cases where AML-related questions arise in the context of contractual disputes covered by arbitration agreements. Third, the Arbitration Law should preserve the centralized system of judicial review concerning requests for setting aside or refusing recognition/enforcement of arbitral awards on public policy grounds. The proposal echoes the statement of the SPC Vice President, judge Tao Kaiyuan, who acknowledged in 2022 that “anti-monopoly disputes can be included in the scope of arbitration, but they should be treated in a classified manner, and only civil and commercial disputes should be submitted to arbitration”.

The paper Consensual settlement of competition disputes in China: a call for conditional arbitrability was published in the Asia Pacific Law Review. Alexandr Svetlicinii is Associate Professor at the University of Macau, Faculty of Law where he also serves as the Programme Coordinator of Master of Law in International Business Law. He is the author of the monograph Chinese State Owned Enterprises and EU Merger Control.

Cultural Issues in International Arbitration

8. August 2022

Shahla Ali and Chinwe Alli

As the world economy continues to globalize, business transactions increasingly involve multiple countries and cultures. This development fostered an exchange of cultural thought, perceptions and beliefs, thus making individuals more aware of the areas where their culture converges with others and also areas where it differs. This phenomenon is present in all kinds of relationships and international arbitration is not an exception. In our article “Cultural Issues in International Arbitration”, we compare the cases of the Hong Kong Special Administrative Region and mainland China to address cultural differences in the conduct of international arbitration proceedings as well as some areas in international arbitration where there exists some form of convergence.

In the field of international arbitration, constant networking among major parties and players (this includes regulators, legal practitioners, disputants and arbitrators) from countries with diverse cultures and legal systems who are involved in the entire arbitration process has promoted the unification of legal procedures, thus leading to legal convergence. With the adoption of the 1985 UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”), a suggested pattern for the conduct of arbitration proceedings is created. It was adopted (in full or in part) by lawmakers in 85 states out of 118, and incorporated into their domestic legislation on arbitration proceedings.

However, despite this level of legal convergence in international arbitration, there remain notable differences, largely relating to the cultures of the parties involved. The differences highlighted in this article between international arbitration conducted in Mainland China and Hong Kong Special Administrative Region (SAR) relate most strongly to the difference in legal traditions. Based on the principle of “one country two systems”, Hong Kong SAR operates a common law system modelled after the English common law, while Mainland China on the other hand mainly operates a civil law system. Differences include the presentation of witness testimony, as well as the involvement of arbitrators in the arbitral proceeding, among others.

With respect to the arbitrator’s involvement in the arbitral proceedings, we find that arbitrators in Mainland China tend to actively participate in the settlement of dispute, thus playing a dual role of mediator and arbitrator. This may be attributed to the Confucian culture of mediation that stresses social relations as well as the Chinese legal structure which recognizes and gives legal protection to such med-arb arbitral awards. On the contrary, arbitration conducted in Hong Kong SAR takes a more technical legal approach, stressing due process and neutrality, thus preserving the legal boundaries of arbitrators in arbitral proceedings.

We further find that arbitrators in Hong Kong SAR attach more importance to witness testimonies and cross-examination than their counterparts in mainland China who give priority to documentary evidence. This strong reliance on documentary evidence in arbitration has its roots in the legal culture of Mainland China, as Chinese courts attach significant importance to documentary evidence. In addition to the notion that relying on documentary evidence makes litigation faster, courts believe that testimonial evidence can be manipulated and has a likelihood of change when put to test. This litigation practice therefore influenced how evidence is obtained and evaluated in arbitration conducted in Mainland China.

We conclude by pointing out the significant role that culture plays in arbitral proceedings, especially in transnational arbitration which involves disputants, litigants, law makers and arbitration from two or more diverse jurisdictions. Hence, in order to have a smooth and effective arbitral process, it is necessary to further identify and study the areas of convergence and difference in various legal cultures across the globe.

Find a free version of the chapter here.

Shahla Ali is Professor of Law and Associate Dean at the University of Hong Kong Faculty of Law and Director of the LLM Program in Arbitration and Dispute Resolution. Her work centers on questions of governance, sustainable development and cross-border dispute resolution in the Asia Pacific region. She also serves as a bilingual arbitrator (English/Chinese) with CIETAC, HKIAC, KCAB and SIAC.

Chinwe Alli is the Project Manager for the global team of Jumia Group and also a mentee of the WIA program of the HKIAC. She is a Lawyer licensed to practice law as a Barrister and Solicitor in Nigeria and she holds a master’s degree in international law from Peking University. She is currently based in China and engages in global compliance, legal advisory, contract management, business development and international arbitration.

China’s Treaty Policy and Practice in International Investment Law and Arbitration

20. April 2022

A review by Xu Qian of G. Matteo Vaccaro-Incisa’s new book

^{Photo by lyng883 is marked with CC BY 2.0.}

China’s success in attracting foreign direct investment (FDI) in the past decades is unprecedented. It is currently the second largest FDI recipient in the world, which is a success partially due to China’s efforts to enter into international investment instruments, such as BITs and free trade agreements (FTAs). Since its first bilateral investment treaty (BIT) with Sweden in 1982, China has signed BITs with more than 130 countries. In addition, Chinese investment treaties have typically provided international forums for settling investment disputes such as the International Centre for the Settlement of Investment Disputes (ICSID). Being both a capital importing and a capital exporting nation, China is in a need to maintain a balance of such dual role through its international investment instruments, attracting inward FDI and, at the same time, protecting outward FDI.

In the early stage, China’s BITs mainly follow the template as established by western countries, yet with the rapid economic growth, China is more willing to set up its own discourse. The Belt and Road Initiative, and the separate negotiations with the EU and US regardless their ultimate fate reveal China’s proactive approach to participate in the global economic governance. China’s dual role regarding FDI and its investment strategies is efficiently transforming its role as a reliable rule-maker in the global economy. China has also reviewed its BIT policy and practices owning to the experience in dealing with the cases filed by foreign investors against China. Against this background, Dr. Vaccaro-Incisa’s book offers the most comprehensive and detailed account of China’s treaty policy and practice in international investment law and arbitration published to date.

Through his comparative and analytical study, this book reviews the changing role of China in international investment. It provides a detailed analysis of the contents of all of China’s agreements from 1982 to 2015 by considering the role of investment treaties in China’s economic policy. This book also provides a summary of key literature in discussing China’ BITs and their characteristics, application and pitfalls. By interpreting the key provisions of the BITs and discussing the evolution and features of these investment treaties, this book successfully identifies trends in major areas of Chinese investment treaty making. It produces objective assessment of investment arbitration of China’s treaty practice. This book without doubt represents a significant accomplishment in clearly laying out the content and systemically examining China’s treaty making practices in a broader context. Overall, this book represents not only a valuable and necessary addition to the literature but also a point of departure that invites further research in China’s practice in this area.

G. Matteo Vaccaro-Incisa’s monograph China’s Treaty Policy and Practice in International Investment Law and Arbitration – A Comparative and Analytical Study is published with Brill.

Dr. Xu QIAN is Associate Professor & “Hundred Talents Program Fellow” at Zhejiang University (ZJU), School of Law and Affiliated Expert, Asia Pacific FDI Network (APFN). She is also an active member of Asia Society of International Law, and Academic Forum on Investor-state Dispute Settlement. She specialises in transnational law and researches in a diverse range of cutting-edge cross-border issues, including water and sanitation law, Alternative Dispute Resolution (ADR), International Economic Law and Public International Law. She may be contacted via email at: qianxuxu [at] zju.edu.cn.

A Pluralist Dispute Resolution Mechanism – A New Integrated DR System in China

13. October 2021

Opinion by Zhiqiong June Wang

The world has witnessed significant developments in the institutions, mechanisms and processes of dispute resolution in China since the introduction of Open Up and Reform policies in 1978. Legal reforms since then have restored the court system and the legal profession. In commercial law, China’s WTO accession has further significantly facilitated the modernisation of legal institutions and the commercial law legal framework. With economic development and the strengthening of the legal system, there has also been significant growth in litigation, a development that does not sit comfortably with the traditional view in China that direct conflict should be averted and mediation or other non-confrontational means should be applied to resolve disputes. Additionally, under Xi’s leadership, China has begun to assert its own model of governance which has been presented to the world as a potential alternative global governance model.

At a practical level, ever increasing court caseloads in civil, commercial and administrative disputes have put major pressure on the court system and its resources. Indeed, according to a recent Supreme People’s Court Report, Chinese courts adjudicated some 28 million cases (of which more than half were civil and economic cases) in 2018. Not surprisingly, major reforms of dispute resolution mechanisms have been carried out in the last decade and continue until this day. In the last ten years or so, the dispute resolution system in China under Xi has been elevated to a mechanism treated as part of the new governance model, and its capacity as indicative of governance capacity.

The new system promoted by the Chinese government is described by Chinese authorities as a ‘Mechanism for Pluralist Dispute Resolution’ (PDR)(Duoyuanhua Jiufeng Jiejue Jizhi 多元化争端解决机制). The Chinese term ‘duoyuanhua’ has been variously translated as ‘multiple’ and ‘diversified’; however, in the book I co-authored with Prof Jianfu Chen, Dispute Resolution in the People’s Republic of China: The Evolving Institutions and Mechanisms, we decided after careful consideration that ‘pluralist’ is a better translation, since it indicates that the ‘duoyuanhua’ system is new and different, and the ‘multiple’ or ‘diversified’ dispute resolution methods it refers to are not just independent alternatives but interrelated components in an integrated and coordinated system.

The term ‘Mechanism for PDR’ first appeared in 2004 in the 2^nd Five Year Reform Plan of the People’s Courts, and again in 2008 in the judicial reform scheme coordinated by the Communist Party of China (CPC) Central Committee on Judicial Reform. The most important policy measures, however, emerged in 2013 and 2014. The CPC Central Committee in 2014 stipulates that:

Mechanisms for prevention and resolution of social conflicts and disputes shall be strengthened, and a pluralist dispute resolution mechanism, in which mediation, arbitration, administrative ruling, administrative reconsideration, and litigation shall be organically linked and their operations be coordinated, shall be improved.

– Item 5 (4), Decision Concerning Certain Major Issues in Comprehensively Moving Forward Ruling the Country According to Law, CPC Central Committee, 2014

This 2014 CPC Decision makes the reform task clear: to develop a comprehensive dispute resolution system in which the various dispute resolution methods are not treated as separate alternatives, but as mutually supportive components in an integrated system of PDR.

In Chinese literature and policy documents the term ‘Mechanism for PDR’ has been used in both a broad and narrow context.

The 2014 CPC Decision refers to strengthening mechanisms for the prevention and resolution of social conflicts and disputes and emphasises building and improving the interconnection and coordination of all kinds of dispute resolution methods. These measures include alternative dispute resolution (ADR), litigation and administrative measures and a great variety of organisations, including the judiciary (courts and procuratorates) and many government authorities such as administrative law enforcement agencies (public security authorities) and offices of Comprehensive Control and Social Management (Zongzhi Ban 综治办), as well as mass/social organisations (Trade Unions, Women’s Federations, Youth Leagues, Neighbourhood Committees). In this broad context, the term refers to a system of mechanisms for comprehensive social control and the prevention of social conflict and instability (Weiwen 维稳) under the general umbrella of social governance, which is clearly more political than legal. These reforms aim at establishing an integrated dispute resolution system that forms part of China’s new governance model, addressing not only dispute resolution but also the prevention of social conflict and maintenance of social stability.

Conversely, the term is also used in a narrow sense, referring to an integrated system of legal mechanisms, the reform of which is led by the Supreme People’s Court, which focuses on building links between ADR, administrative review, adjudication and litigation. These include judicial confirmation of mediation agreements, support for arbitration and the enforcement of arbitral awards, appointing mediators and arbitration institutions as court-sanctioned mediators and arbitrators, establishment of ‘one-stop’ (Yizhanshi一站式) dispute resolution mechanisms within the court system, and shared platforms for litigation and ADR.

The comprehensive approach, under the umbrella of strengthening PDR as a dispute resolution mechanism, is innovative yet full of uncertainties. It is probably well-intended that all social forces are mobilised to prevent and resolve social conflicts and disputes, and the one-stop approach may provide convenience and efficient and effective dispute resolution solutions.

It is uncertain and potentially risky, not just because the Mechanism for PDR may be used as an instrument for social control, but because this may politicise an otherwise innovative reform. On the other hand, however, efforts towards building and strengthening the PDR, in the narrow sense of the term, led by the Supreme People’s Court, are to be welcomed. These efforts have seen the strengthening and further development of mediation and arbitration, as well as the establishment of various mechanisms for ADR and litigation to work together as a ‘united force’ for dispute resolution.

Zhiqiong June Wang (PhD) is Associate Professor of Law, Western Sydney University, Australia. June’s research interests are in Chinese law, international economic law, dispute resolution and comparative law. Her China-related research focuses on original observation and analysis of the various institutional reforms in the area of commercial law in China. June is also an arbitrator of the Shenzhen International Court of Arbitration.

On this topic, June has co-authored with Professor Jianfu Chen the article ‘From Alternative Dispute Resolution to Pluralist Dispute Resolution: Towards an Integrated Dispute-Resolution Mechanism in China’ published by the International Journal of Law in Context (SSRN), and the book ‘Dispute Resolution in the People’s Republic of China: The Evolving Institutions and Mechanisms’, and ‘Will the establishment of circuit tribunals break up the circular reforms in the Chinese judiciary?‘ published by the Asian Journal of Comparative Law (SSRN).

Twitter @ZhiqiongJuneWang

China’s Law and Development: The Case of the China International Commercial Court

6. June 2021

A new paper by Weixia Gu

*Appointment of the First Batch of CICC International Commercial Experts* *Committee*

In June 2018, the China International Commercial Court (CICC) was established within China’s Supreme People’s Court. It is a top-down capacity-building effort in establishing dispute resolution infrastructure and represents the ambition to create a lex mercatoria in the context of the Belt and Road Initiative (BRI). This blogpost highlights some salient features of the CICC and sheds light on its significance in China’s Law and Development.

First, CICC installed an International Commercial Experts Committee (ICEC) to make up for the lack of non-Mainland Chinese judges among its personnel. It draws on experts from both civil law and common law jurisdictions with diverse backgrounds (Eastern, Western and African legal culture). Members of the ICEC will provide foreign legal expertise to engage in the CICC mediation work, the outcome of which could be turned into a CICC judgement equivalent to “semi adjudication.” The ICEC has two main functions: first, presiding over mediation proceedings of international commercial cases which can be converted into a CICC judgement; second, providing advisory opinions on proof of foreign law and on international treaties, international commercial rules. The ICEC is argued as emblematic of the “paradigm shift” of the Beijing Consensus which traditionally emphasises soft law in international legal ordering such as what has happened in the Belt and Road context. Scholars have argued about a rising new Chinese economic legal order that is characterized by China’s decentralized mode of trade governance through a pragmatic, incremental development policy grounded in soft law and norm-based networks (Shaffer & Gao 2020). This is shown in China’s approach toward the BRI (yidaiyilu 一带一路) as China largely relies on memoranda of understanding and soft law agreements. There is no stringent cross-border legal framework or rigid regulatory structure in China’s approach toward the BRI. The advent of the ICEC however points to a new focus on institution-building which is somewhat a departure of the previous soft-law approach. Apart from that, the ICEC also showcases a breakthrough in the Chinese legal system in light of the existing statutory impediments found in, for example, China’s Judges Law, which allows only Mainland Chinese nationals to sit on the Chinese judicial benches. It reflects a more proactive, experimental, and innovative mentality adopted by the Chinese government and judiciary in seeking to incorporate overseas judicial expertise so as to compete in the global dispute resolution market.

The CICC signifies China’s major step towards a dual-track model which places equal emphasis on both soft-law instruments and hard-law capacity-building of legal infrastructure. Second, the CICC brands itself as a “one-stop shop” for diversified dispute resolution, incorporating alternative dispute resolutions (ADRs) into conventional litigation. Under this vision, international commercial litigation, arbitration and mediation are blended and integrated to facilitate the resolution of international commercial disputes brought before the CICC. The CICC also links with China’s five most market-driven arbitration institutions – China International Economic and Trade Arbitration (CIETAC), Beijing Arbitration Commission (BAC), Shenzhen Court of International Arbitration (SCIA), Shanghai International Arbitration Centre (SHIAC), China Maritime Arbitration Commission (CMAC), and two leading commercial mediation institutions – China Council for the Promotion of International Trade (CCPIT) Mediation Center and Shanghai Commercial Mediation Centre (SCMC). If disputing parties have reached a mediation settlement agreement before the CCPIT Mediation Center or SCMC, the CICC may also make a CICC judgment based on the mediation agreement if it is requested by the parties. This conversion of the institutional mediation settlement agreement into a CICC judgment is an unprecedented arrangement, evidencing the experimental and law-positive nature of China’s approach to the BRI and the new Beijing Consensus.

From the Law and Development perspective, the establishment of the CICC exemplifies a turning point in the Beijing Consensus to move away from the heavy reliance on norm-based instruments in international legal ordering.

Third, the CICC has a guaranteed caseload. Structurally, the CICC is within the hierarchy of the Chinese domestic judiciary. It forms part of China’s Supreme People’s Court of which both the first CICC in Shenzhen and the second CICC in Xi’an are permanent branches. Flowing from this structure, it is ensured that the CICC continuously has a high caseload as the Supreme People’s Court in Beijing directly refers cases to them. In fact, the case flow under the CICC Provisions includes “other international commercial cases that the Supreme People’s Court considers appropriate to be tried by the CICC.” (Provisions of the Supreme People’s Court on Several Issues Regarding the Establishment of the International Commercial Court, Article 2(5), English here). Comparative studies show that the feature of “rooting” the international commercial courts within the domestic judicial system is similarly found in other jurisdictions, such as the Singapore International Commercial Court and the Chamber for International Commercial Disputes of the Frankfurt Regional Court in Germany.

The establishment of the CICC arguably represents a paradigm shift of the “Beijing Consensus”, which traditionally placed emphasis on informal alternatives to law (i.e. a soft-law and norm-based approach). The CICC signifies China’s major step towards a dual-track model which places equal emphasis on both soft-law instruments and hard-law capacity-building of legal infrastructure. From the Law and Development perspective, the establishment of the CICC exemplifies a turning point in the Beijing Consensus to move away from the heavy reliance on norm-based instruments in international legal ordering (such as Memorandum of Understandings, Memorandum of Agreements, Joint Statements etc. involved in the BRI) to hard-law institutional infrastructure capacity-building.

Finally, the CICC benefits from China’s accession to the Hague Convention of 30 June 2005 on Choice of Court Agreements (Choice of Court Convention) (the Hague Convention) which was signed in September 2017. Recognition and enforcement of the judgments rendered by the CICC can be facilitated via the Hague Convention.

For details, please find Weixia Gu’s forthcoming article regarding the CICC and Law and Development Study at Harvard International Law Journal here. Please also find her recent monograph, Dispute Resolution in China: Litigation, Arbitration, Mediation and Their Interactions published by Routledge in 2021 here.

Weixia Gu is Associate Professor at the Faculty of Law, University of Hong Kong and immediate past Co-Chair of the American Society of International Law (ASIL) Asia-Pacific Interest Group. Her research focuses on arbitration, dispute resolution, private international law and cross-border legal issues. Her scholarship is published by leading comparative and international law journals and cited by leading judiciaries in the world. She is the recipient of University of Hong Kong’s Outstanding Young Researcher Award and three times the awardee of China Society of Private International Law Best Research Output Prize. Her recent books include The Developing World of Arbitration (Hart, 2018); Dispute Resolution in China (Routledge, 2021); Multi-tiered Approaches to the Resolution of International Disputes (CUP, 2021). Contact her at guweixia@hku.hk.

Chinese influence – New perspectives on international arbitration regimes

3. January 2021

A new paper by Ulla Liukkunen

Cross-border dispute resolution is changing as a part of the Belt and Road Initiative (BRI) development. With the BRI, Chinese interest in international commercial arbitration has gained a new dimension as BRI promotes the expansion of Chinese dispute resolution institutions and their international competitiveness. Ulla Liukkunen finds that these developments challenge the current narrative of international arbitration, underlining the connection between the legal regime of arbitration and endeavours by the state. In her recent paper (PDF), she explores private international law as a framework for discussion of noteworthy characteristics of the Chinese legal system and legal culture that are present in international commercial arbitration.

The People’s Republic of China has made initiatives to develop a joint dispute resolution circle for BRI countries so that there would be an area in the BRI sphere which offers effective and foreseeable dispute resolution based on jurisdictions close to the disputing parties. In 2016, upon an order by the State Council, Shanghai pressed forward with the creation of an international commercial arbitration system which has since then developed rapidly: The Shanghai International Arbitration Centre has witnessed an increase in the number of cases, and has launched a series of initiatives to promote the development of arbitration. In 2018, the CCP’s Central Committee and the State Council issued an Opinion calling the Supreme People’s Court to set up international commercial courts, to take the lead in setting up a committee of international commercial experts, and to support a BRI-related international commercial dispute resolution mechanism. The aim is that the BRI dispute resolution mechanism would form a convenient, speedy and low-cost “one-stop” dispute resolution centre to provide high-quality and efficient legal services for parties involved in BRI construction.

In the theory of international commercial arbitration, elaboration of a doctrine based on the claimed autonomous nature of international arbitration exists, resting on views of self-standing transnational legal standards that distance arbitration from state-bound laws as well as a state-bound setting. The growing role of China in international arbitration ‒ and the state interest embedded therein ‒ challenges this picture which has been built within international arbitration doctrine and which has resulted in loosening the scene of the role of state law in arbitration.

A rethink of comparative methodology is proposed in order to promote an understanding of Chinese law in the arbitration process. This article argues for adopting micro-macro comparison as a methodological approach in arbitration. Micro-macro comparison as a process penetrates the decision-making of arbitrators, also governing the conflict-of-law dimension.

Moreover, considerations of the Chinese private international law and arbitration regime speak for a broader comparative research perspective towards international commercial arbitration. In the international commercial arbitration frame under scrutiny, we can see the conception of party autonomy placed in a Chinese context where the state is shaping the still relatively young private international law frame for exercise of that freedom and certain institutional structures are advocated where party autonomy is placed. Chinese development underlines the connection between the legal regime of arbitration and endeavours by the state, thereby requiring assessment of party autonomy from the perspective of the regulatory framework of private international law that expresses the complex dichotomy between private and public interests.

The article “Chinese context and complexities — comparative law and private international law facing new normativities in international commercial arbitration” is among the first in the new open access publication Ius Comparatum launched by the International Academy of Comparative Law.

Professor Liukkunen examines international commercial arbitration from the perspective of Chinese developments, noting that, in global terms, the organization of cross-border dispute resolution is changing as a part of the Belt and Road Initiative (BRI) development. With the BRI, Chinese interest in international commercial arbitration has gained a new dimension as BRI promotes the expansion of Chinese dispute resolution institutions and their international competitiveness.

Tag: Arbitration