专业文章内容
A cross-border dispute resolution mechanism for Belt and Road

Author: Leslie Shen

Since President Xi Jinping’s advocating the establishment of a “silk road economic belt” and the creation of a “21st Century maritime silk road”, numerous countries and international organizations around the globe have been actively participating in the development of the Belt and Road.

The description of “traveling merchants as far as the eye could see” along the silk road in historical texts still causes a welling of emotions when looking back on history, but the silk road has long ceased to be the sight of old.  With the passage of time, major differences have arisen in various fields in the countries along the Belt and Road.  In terms of legal system, the countries along the Belt and Road mainly divide into the common law system and civil law system, with some countries in the Middle East still following Sharia.  In other words, the promotion of the Belt and Road Initiative faces a very complex legal environment.  “Close cooperation and achieving win-win” is undoubtedly the common vision of the great majority of Chinese and foreign enterprises and local governments when they first plunge into the development of the Belt and Road, but the huge discrepancies in economic development, social systems, cultural background as well as religious beliefs determine that disputes among parties over commerce, trade, investment and taxation are unavoidable.

For lawyers who engage in foreign-related business, particularly foreign-related lawyers that have the backing of a “global legal network”, providing, on the strength of their knowledge, skills and practice strengths, legal services to Chinese enterprises involved in disputes is an ideal opportunity to demonstrate their skill, and also an unshirkable social responsibility.  However, it is undeniable that the shadow of a heavy feeling of helplessness often hovers over the handling of many cases.  We of course do not wish that enterprises that are going global with enthusiasm and hope find that the outcome is not as anticipated, and return home with their heads bowed down.  However, if it is because we fail to create a sound and effective cross-border dispute resolution method early on to safely escort the development of the Belt and Road, we should not criticize enterprises that freeze at the earliest hint of trouble.

Fortunately, in a few short years, we have witnessed impressive progress in relevant fields.  It seems to us that the three great drivers of this progress have been the “favorable timing”, the “favorable geography” and the “favorable human conditions”.

The favorable timing refers not only to the historical timing of the Belt and Road, but more directly to the judicial reforms that have been intensively promoted and the constantly changing information technology.  The Supreme People’s Court has issued several opinions on providing judicial services and protection for the development of the Belt and Road and carried out comprehensive complementary design for the provision of judicial protection for the Belt and Road by People’s Courts.  And the wide proliferation and application of new information technology has offered new thinking and solutions for old difficult problems, such as “difficulty of service”, “difficulty of adducing evidence”, “difficulty of ascertaining laws”, etc.

The favorable geography is manifested in the strengthening of soft power resulting fromChina’s continuously increasing economic power.  An increasing number of international commercial disputes are being resolved through arbitration inChina.  The exploration of specific models of arbitration inChina’s pilot free trade zones fully demonstrates the importance that is being attached to the diverse arbitration demands of parties.  Particularly worthy of note are the continuous exchanges and cooperation between Chinese arbitration institutions, that are harboring an open attitude to learning, and international arbitration organizations.  They are endeavoring to directly face, analyze and strive to resolve numerous issues that have arisen in arbitration practice in China, such as the uneven quality of arbitrators, the pressing need to improve the quality of awards, and the need to achieve greater uniformity with court procedures on such as issues as evidence and property preservation, etc.

The favorable human conditions refers to the common objective of, and cooperation among, all of the Chinese and foreign participants in the development of the Belt and Road as well as the countries along the Belt and Road in creating a cross-border dispute resolution mechanism  If the focus is the resolution of only a single case or a certain type of case, the protection of one’s side at the local or even the national level can at certain times and in certain places ascend to the heights of the so-called “national interest”.  Fortunately, however, an increasing number of countries have become aware that, over the long-term, the establishment of “certainty” is the road that must be traveled to achieve win-win and multi-win. China’s efforts and reputation in recognizing and enforcing foreign arbitration awards has achieved increasing international recognition.  More gratifyingly, Chinese courts are increasingly actively applying the principle of reciprocity to facilitate the recognition and enforcement inChinaof the civil and commercial judgments of foreign courts.  The Supreme People’s Court is currently formulating the Provisions on Several Issues Concerning the Recognition and Enforcement of the Civil and Commercial Judgments of Foreign Courts to expressly set forth the specific criteria for the application of the principle of reciprocity.  We anticipate that the issuance of these judicial interpretations will have a milestone type of effect.


Lawyers’ responsibilities 

Without a doubt, guidance at the state level and reform of the judicial authorities are key factors in the creation of a cross-border dispute resolution mechanism, and practicing lawyers also have to be fully aware of their social responsibility in this major historical opportunity and challenge.  The bearing of this responsibility is of course manifested, in the first instance, in the continuous strengthening of their professional skills and the continuing enhancement of their professional quality, and, as a complement thereto, they should actively participate in the innovation and improvement of China’s arbitration mediation mechanism, actively participate in international arbitration cases in the capacity of counsel or legal expert and, in future, leverage their increasingly important role in assisting in cross-border service and cross-border investigation and evidence gathering.

The sound of camel bells on the old silk road is still distinguishable in historical memory, and the efforts of each of us legal practitioners will most definitely leave precious traces in the course of the development of the Belt and Road.