On August 24 and 25, 2022,  the  Supreme People’s Court (SPC) held a China International Commercial Court International Commercial Expert Committee (Expert Committee) reappointment ceremony and seminar on cross-border dispute resolution.   The SPC reappointed my former colleague, Emeritus Professor Peter Malanczuk and me to the International Commercial Expert Committee (Expert Committee) of the China International Commercial Court (CICC).   For those who read Chinese, the CICC website has posted the speeches or articles of those who presented. I’ll summarize the proceedings in slightly more detail than the official English reports. Then I’ll follow separately with a few comments on the ceremony and seminar and my experience as a CICC expert thus far.

Professor Malanczuk and I joined 21 other CICC experts in the hybrid reappointment ceremony, with many residing in Beijing attending in person.  All others, including Professor Malanczuk and I, attended online.

President Zhou Qiang and Vice President Tao Kaiyuan of the Supreme People’s Court spoke at the reappointment ceremony, over which Executive Vice President He Rong presided. Senior officials of the Ministry of Foreign Affairs, Ministry of Commerce, National Reform and Development Commission, and China Council for the Advancement of Foreign Trade spoke thereafter.  Excerpts from their official speeches are available here.

Representatives of the National People’s Congress and Chinese People’s Political Consultative Conference then spoke, followed by Expert Committee members Professor Zhang Yuejiao, Rimsky Yuen SC (former Secretary for Justice of the Hong Kong Special Administrative Region and Co-Chair of the Hong Kong International Arbitration Centre (HKIAC)), and Sir William Blair, retired head of the London Commercial Court.

Professor Zhang provided an overview of the first four years of CICC, including some of her thoughts and suggestions,  She pointed out that due to inadequacies in the mechanism (organizational establishment)  [inadequate] budget, and the impact of pandemic controls, the role of the members of the Expert Committee is limited, few opportunities have been created to enable members to interact and the members to interact with CICC judges,  and finally, foreign experts have rarely participated. She had a number of suggestions, including that the expertise of members should be better used and that training sessions be organized at which members would speak.

Rimsky Yuen spoke about the CICC facilitating greater interactions between the Chinese judiciary and judiciaries of other jurisdictions, such as participating in the activities of the Standing Forum of International Commercial Courts. As the Co-Chair of HKIAC, he thanked the SPC for including HKIAC in the One-Stop Diversified Dispute Resolution Mechanism.

Following the reappointment ceremony, the first panel addressed “the Latest Developments and Frontier Issues of  International Commercial Courts,” with a mix of Chinese and foreign speakers, including Justice Tao Kaiyuan.

The last group of speakers on the first day, for the most part, Chinese expert committee members, discussed resolving complex commercial disputes. Judge Wang Shumei provided a very useful summary of Chinese judicial practice in complex cases.

On the second day, the first session, “Functioning within the “One-stop” Diversified International Commercial Dispute Resolution Mechanism” had presentations from all the members of the CICC’s One-Stop Mechanism.

I spoke as part of the last panel, on civil legal assistance, which was chaired by Professor Lu Song. Judge Shen Hongyu, deputy head of the #4 Civil Division and CICC judge,  gave closing observations.  I gave an update on trends in civil international judicial assistance and their challenges. Among the many speakers on my panel was Judge Gao Xiaoli, who gave an update on what the SPC is doing in judicial assistance in civil and commercial matters. She included statistics and an explanation of the platform that enables the SPC and Ministry of Justice (the designated Central Authority in most judicial assistance treaties and conventions) to communicate more quickly.

Judge Wang Shumei (head of the #4 Civil Division and CICC judge) and Justice Tao Kaiyuan gave concluding remarks.

Comments

Reappointment ceremony and seminar

I was disappointed that Beijing and central institution Covid-19 restrictions did not permit those of us living outside of mainland China to participate in person.  In my view, the in-person event in 2018 was important for all, as well as for me personally.  I surmise that for the SPC organizers, it was important that at least some portion of the people from outside China appointed as experts appear in person because it demonstrated to other institutions and the SPC leadership that the foreign/offshore experts valued the appointment.   It was also an opportunity for people to connect, albeit briefly. So the experts could meet other experts, the CICC judges, and others attending the ceremony on that hot August morning in Beijing.  For me personally, it was an opportunity to experience a high-level official event on-site, observe the dynamics, and connect with others. A Zoom event cannot substitute for an in-person meeting but in the current circumstances, it was the only alternative.

The reappointment ceremony and seminar had takeaways for the careful observer.  The speeches of the officials of the “relevant central institutions” (有关中央部门) as actually delivered appeared to reflect the official discourse of the institution involved.  I surmise some of the discourse may have been less sharp if the person anticipated he would see the foreign experts in person.  Justice Tao Kaiyuan’s presentation sent needed signals about the ongoing importance of openness, the role of the CICC in integrating China with international practice, and the role of CICC expert committee members as bridges to the international commercial world.

Of course, I found the presentations and comments by SPC judges particularly significant. As for the other seminar presentations, the ones I found most interesting were the ones in which I learned something new and did not require me to use my homemade  “useful content detector” to find the nuggets of insights inside layers of slogans.  There were quite a few, but not all, that fit that bill.

The Chinese versions of my and other speakers’ papers were published on the Chinese version of the CICC website under “最新资讯 and are accessible from the landing page.  It is unclear to me why the English versions are hidden under “Research Articles.”

On the topic of my own presentation, my suggestion that China (mainland) accede to the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents (Apostille Convention) was reported in the official press.

Some thoughts on my own experience on the CICC Expert Committee thus far

I will not repeat the comments I made over a year ago on my blog about the CICC.  I would echo the sentiments that several Expert Committee members expressed at the seminar, that four years is not long in the development of a judicial institution, particularly when it coincides with a global pandemic. I would add that it has also coincided with important reforms to the institution of which it is a part.

When I spoke at the SPC in 2019, I made a number of modest suggestions concerning the Expert Committee (some previously mentioned on this blog), such as using the Expert Committee as a bridge between the SPC and the international legal world,  to assist persons engaged in judicial interpretation drafting or judicial reform to understand better a foreign legal provision or mechanism that they were considering,  or for the experts to be invited to speak at a  judicial training session. These suggestions require those doing the actual work of administering the Expert Committee to make this resource known within the large bureaucratic institution of the SPC.  It is possible that this proposal was lost or forgotten.  Another possibility is that those responsible are more accustomed to dealing with routine bureaucratic matters rather than anything out of the ordinary.

Following up on my proposal (some of which were echoed by Professor Zhang in her remarks) means dealing with the concept and reality of “内外有别” (there are differences between the insiders and outsiders, often used to distinguish the foreign from the domestic) and the bureaucratic foreign affairs system if the Expert Committee member is foreign. I had also suggested inviting Expert Committee members visiting Beijing to present at the SPC, as this would have helped demonstrate the varied types of expertise among Expert Committee members, but the pandemic has mooted this suggestion, at least for the foreseeable future.  This seminar should have compensated, in part.

As for my personal involvement with Expert Committee matters, I have been involved in some translation reviews for the SPC, as my social media followers would know, and have commented on some draft judicial interpretations and other draft rules.

My view is that with any institutional change in China, taking the long view and continuing communications with thoughtful people in the System are crucial.   I echo my friend Jeremy Daum’s comments of a year ago, published on his blog:

regardless of how actively we [the United States] pursue opportunities to engage with China on legal reform, China will continue to learn from the US. Active collaboration and exchanges merely gives us an opportunity to better ensure that our own system is correctly understood, and an opportunity to learn from what is happening in China. As mentioned above, it also helps us better understand China itself, both the problems it is addressing and the goals it is working towards.

Legal exchanges of course also inform China and help them understand us. Mutual understanding is a valuable goal in its own right, but we further learn about ourselves (and about others) from hearing their perceptions of our own legal system fed back to us.

I hope I can be considered to have done something positive for better understanding and engagement through this blog and my involvement with the CICC.

Finally, I want to take some time to focus on my longer writing projects, particularly consolidating almost ten years of blogposts and almost that many years of interviews into something more accessible.  For that reason, I will post to my blog going forward about once a month going forward.  If any readers have written articles (in either Chinese or English) related to the SPC, especially its operations, please feel free to email them to: supremepeoplescourtmonitor@gmail.com or send them via social media.