回顾2022香港仲裁周 | 国际商事法庭专家范思深教授演讲

2022年10月26日，第十一届香港仲裁周“中国仲裁专场”活动——中国国际商事法庭与仲裁：如何运作？的研讨会于线上举行。来自27个司法管辖区的668名人士报名了本次活动。

国际商事法庭专家委员会委员、北京大学国际法学院常驻知名学者范思深教授发表了演讲。

经授权发表的演讲稿全文如下。

文字内容

I am enormously honored to participate in this event and thank Yang Ling very much for the invitation. I am very honored to be on the same panel with Judge Ren, Rimsky Yuen, and Arthur Dong (董箫).  I should be speaking 普通话但是认为我的洋式普通话太难听，而且用英文表达更正确， 所以还是用英文。

At the outset, I would like to preface what I am going to say with a disclaimer. Although I am a member of the CICC’s Expert Committee (one reappointed in August of this year), what I say should not be attributed either to the Supreme People’s Court or the CICC.  People who know me or my work may know me for writing the Supreme People’s Court Monitor (最高人民法院观察) blog for the last almost 10 years , so I can say it should be attributed to the Monitor.

The focus of my remarks is on the unique contribution HKIAC can make as part of the One-Stop Mechanism and with several experts linked to the HKIAC and to Hong Kong more generally.

First, I’ll make some comments on the last four years, or I should say the first four years of operation of the CICC, as it concerns the One-Stop Mechanism and the Expert Committee.

The One-Stop Mechanism, an organic part of the CICC — is mentioned briefly in the judicial interpretation setting out its framework (issued in July 2018) and in more detail in its Procedural Rules, issued in December 2018 and in the notice authorizing the first group of arbitration and mediation institutions, also issued at the same time. In my view, taken together, the rules related to the One-Stop Mechanism are not very detailed and appear not to anticipate non-mainland Chinese institutions. On the other hand, from the fact that they were issued in the name of the SPC’s General Office rather than the SPC itself, it can be surmised that the intention was to amend them in the not-so-distant future after a pilot period.

The SPC issued the judicial interpretation and procedural rules in 2018. From approval of the CICC by the political leadership in January, 2018 to the issuance of the judicial interpretation, it was a period of only five months, so it can be understood that many issues were not anticipated.

The electronic platform was established in 2021. It is part of larger SPC initiatives to promote alternatives to litigation (mediation and arbitration), known as the diversified dispute resolution mechanism 多元化纠纷解决机制) (which are part of a larger policy promoted by the Party) —and establishing those linkages through an electronic platform — as I say on the slides, the exact operation and linkages depend on the partners involved — another more recent one is between the SPC and the CSRC, to promote securities disputes mediation—all part of the smart courts program of the SPC.

Thus far, the SPC has accepted 27 cases and has issued judgments or rulings in 11. We (that is those persons other than judges and staff of the CICC) don’t have access to information about the cases that have been filed, so that we do not know much about them, except for the ones for which there have already been hearings. I recall that two cases involve demand guarantee (standby letter of credit) issues and the question of the standard for fraud and the issuance of an injunction. 

If the SPC takes a case as a CICC case, it means that the legal issue is considered important enough to require a panel of five Supreme People’s Court (SPC) judges to hear the case.

People’s Court Daily (人民法院报) quoted me in 2019 as writing the following:

“The CICC has been in operation a short time…What is clear from its operations so far is that it is carefully choosing its cases, only selecting cases that will have an impact on the development of relevant Chinese law. What seems evident from the initial rulings, at least, is that the judgments and rulings of the CICC are likely to be significant for lower court judges and members of the legal community as “soft precedents,” authoritative decisions….

I will have more to say about this in something that I am writing.

On the One-Stop Mechanism —— so far, no mediated or negotiated settlements have been issued as arbitral awards or confirmed by the CICC. My guess is that it has to do with the dynamics of how a case proceeds in China. If a case is considered important enough to be referred to the CICC, it means that the litigants are determined to seek a judgment and are not willing to settle. But perhaps Judge Ren could comment on this point.

Second, on why the CICC has not taken cases related to interim measures (assets/evidence/conduct preservation) and enforcement of arbitral awards, I surmise as follows—the courts best able to enforce interim measures in a particular location are the local courts, because they have enforcement personnel, including judiciary police, right there. So it is possible that one of the platform members referred such a case, but the CICC office involved has given my answer.  It is possible, also, that the CICC considered that the case would not be significant and therefore did not merit CICC involvement.  A third possibility is that the CICC considered that its rules are not clear enough concerning the procedural questions for them to take the case.  For example, the rules refer to “enforcement of arbitral awards,” not to the “recognition and enforcement”  (认可) and enforce a Hong Kong SAR or Macau SAR arbitration award, recognize (认可) and enforce a Taiwan area arbitration award, application is made to recognize (承认). So for HKIAC enforcement cases, it is possible that the CICC considered that they need a clearer basis.  And in a press conference in September, I believe it was Judge Wang Shumei who said that we will improve the One-Stop Mechanism, which I take to be a possible amendment of the 2018 judicial interpretation and/or the procedural rules.  But we will need to wait and see. Will local courts give super priority to CICC-related interim measures cases?

Going on to the focus of my remarks — what HKIAC has done and can do in the future — I was pleased to see Justice Tao Kaiyuan use the bridge metaphor (in relation to the expert committee)

Looking at the special relationship between HKIAC arbitration and the development of mainland arbitration law--that is illustrated by what is on my slide — Hong Kong and HKIAC have contributed to the development of mainland arbitration law, as illustrated by what is on my slide. The concept “仲裁地”(seat of arbitration) was introduced to the Mainland through the case [Wei Mao International (Hong Kong) Co Ltd v Shanxi Tianli Industrial CO ltd (2004)].

Because Hong Kong is a model law jurisdiction, it gives the SPC useful experience and expertise to consider when considering issues such as the seat of arbitration, Kompetenz/Kompetenz etc. I surmise that Hong Kong’s model law experience has been useful as the SPC (and others) provide input to the Ministry of Justice as the Ministry drafts amendments to the Arbitration Law.

Additionally, on the one hand, the experience of the mainland courts under the Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region will also be useful when the SPC considers expanding mutual assistance in court-ordered Interim Measures in Aid of Arbitral Proceedings to other jurisdictions outside of China, and also the experience of mainland Chinese parties in benefiting from the Arrangement in Hong Kong will also be useful to that same end.

The experience with the recognition and enforcement proceedings involving HKIAC and other Hong Kong awards will also be useful to the SPC as it provides input to the Ministry of Justice and eventually drafts a judicial interpretation for the amended Arbitration Law.

Looking into the future, there are many contributions that HKIAC and Hong Kong can make as part of the One-Stop Mechanism.

First, as a Bridge to “international-style” third-party specialized commercial mediation. Although China was active in negotiating and has signed the Singapore Mediation Convention, it does not have a timeline for ratifying it.

Similarly, no counterpart arrangement for mediated settlement enforcement between the mainland & Hong Kong is in place.

What is the issue—it requires the development of a third-party professional mediation profession and system on the mainland.

Hong Kong & HKIAC have the expertise & Chinese language materials.

It is also something that the Hong Kong governmenthas been promoting for over ten years.

Rimsky Yuen heads up the Hong Kong Mediation Accreditation Association Ltd. as well as being a co-chair of HKIAC. Why is Hong Kong experience in Accreditation important?  That system and experience can be a useful reference to the SPC and the mainland Ministry of Justice as they organize professional accreditation for mediators—the SPC, for example, has an electronic platform for court-affiliated mediators. (There are Greater Bay Mediator Accreditation Standards & Code of Conduct already in place.)

My second suggestion relates to “feedback from the market.” Chinese courts lack the type of user committees that Hong Kong, English, and US courts have. They generally have advisory or expert committees, providing a different type of input. So how can Chinese courts track feedback from overseas or foreign users?  The documents issued by the SPC express a concern about foreign users of the Chinese courts and attracting foreign users. As part of One-Stop Mechanism, HKIAC can consolidate feedback to SPC from HKIAC users who have experience with interim measures & enforcement proceedings.

These are just two of the many things that HKIAC can do in the future!

Thank you for listening!

关于嘉宾

范思深 Susan Finder

国际商事法庭专家委员会委员

范思深教授是北京大学国际法学院常驻知名学者，她本科毕业于耶鲁大学，并获得哈佛大学法律博士学位（JD）和哥伦比亚大学法学硕士学位。

范教授是从事中国司法制度比较研究的专家。她拥有从事涉华法律实务的多年工作经验，研究聚焦于最高人民法院角色和运作的演变。范教授还被多家中国仲裁机构列入仲裁员名册。许多研究成果发表于其个人博客“最高人民法院观察”（Supreme People's Court Monitor）。

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