1. Consensual jurisdiction

Subject to the fulfilment of other requirements, parties may by written agreement submit an international commercial dispute to the CICC. Insofar as the CICC is a constituent part of the SPC, parties are now permitted to choose the SPC to hear their international commercial disputes. This is a significant development in Chinese law and judicial practice.

Before the creation of the CICC, although the Civil Procedure Law (‘CPL’) allowed litigants to choose a Chinese court by agreement, their choice was subject to various limitations. One such limitation is that party choice of a Chinese court must be consistent with the CPL provisions on tier jurisdiction.Footnote ⁴⁴ Under these tier jurisdictional rules, first instance commercial cases, including international cases, are usually heard by the Basic People's Courts. ‘Important’ first instance international cases fall within the jurisdiction of the Intermediate People's Courts. In exceptional cases, Higher People's Courts may hear first instance international cases, provided that these cases would have significant impact in the jurisdiction where they arose.Footnote ⁴⁵ As a matter of law, the SPC may exercise its trial jurisdiction in two situations: (1) if the dispute has significant nationwide impact in China; and (2) if the SPC deems that the dispute falls within its jurisdiction.Footnote ⁴⁶

In practice, however, since its establishment in 1949, the SPC has never heard a first instance commercial case, let alone an international one. In fact, the SPC has on numerous occasions affirmed the principle that first instance international commercial cases should be heard by the lower People's Courts.Footnote ⁴⁷ According to an official document issued by the SPC in 2017, the rules of tier jurisdiction over international commercial cases allocate first instance cases, based on the amount in dispute, to the Basic People's Courts, Intermediate People's Courts or Higher People's Courts.Footnote ⁴⁸ These rules do not provide for the allocation of a first instance international commercial case to the SPC. Hence, before the creation of the CICC, parties were not allowed to choose the SPC to hear their international commercial disputes.

The Judicial Interpretation on CICC has therefore changed the practice by permitting parties to choose the SPC (specifically, the CICC) to hear their international commercial disputes pursuant to Article 34 of the CPL without being bound by the rules of tier jurisdiction, provided that the amount in dispute exceeds RMB300 million. Given that SPC judges are perceived to be more qualified than those in lower People's Courts, and 15 SPC judges have been appointed to the CICC to date, resolving international commercial cases before the CICC is not without its attractions, especially if the parties are inclined to have their claims heard in a Chinese court.Footnote ⁴⁹

However, a written jurisdiction agreement in favour of the CICC is not by itself sufficient to confer jurisdiction on the CICC. The CICC does not have jurisdiction over cases with no actual connection to China. Under the Judicial Interpretation on CICC, the CICC can hear first instance international commercial cases in which the parties have submitted to the jurisdiction of the SPC pursuant to Article 34 of the CPL. Article 34 requires, inter alia, that the court chosen by the parties has an actual connection with the dispute, that is: (a) it is the court at the place of the defendant's domicile; (b) it is the court at the place where the contract was performed; (c) it is the court at the place where the contract was signed; (d) it is the court at the place of the plaintiff's domicile; or (e) it is the court at the place where the subject matter of the claim is located.Footnote ⁵⁰

A little more needs to be said about the requirement that the quantum in dispute must exceed RMB300 million. Clearly, this serves as a filter mechanism: only major disputes will be resolved by the CICC. From a purely pragmatic view, it may be said that CICC's resources should not be spent on resolving minor disputes that can be effectively resolved in lower Chinese courts, by national courts in other jurisdictions, by arbitration or even by mediation. After all, the CICC is a constituent part of the SPC that does not in practice hear first instance claims. In line with the practice of the SPC, CICC is designed to hear cases of some (economic) significance.

2. Non-consensual jurisdiction

In addition to consensual jurisdiction, the CICC may hear a first instance international commercial case in three other situations in which the consent of the parties is irrelevant.Footnote ⁵¹ The first is when it is a dispute that would have been heard by a Higher People's Court at the provincial level, but which has been referred to the CICC by that Higher People's Court with the approval of the SPC. This involves the exercise of the power to internally allocate jurisdiction between two Chinese courts.

The second is when the case is an international commercial matter that has a significant nationwide impact in China. Such cases may be filed with the CICC directly without the need for a written jurisdiction agreement or satisfying the requirement that the quantum in dispute exceeds RMB300 million. If such cases are first filed with other Chinese courts, they would presumably have to be transferred to the CICC upon the SPC's determination that they have significant nationwide impact in China. However, it is unclear at this stage what kind and degree of impact would constitute such ‘significant nationwide impact’.Footnote ⁵²

The third situation involves any other international commercial cases that the SPC deems fit for the CICC to hear. Currently, no rules or criteria have been prescribed to guide the SPC's exercise of this discretion. In the CICC's initial years, a crucial source of its caseload is likely to come from the exercise of its non-consensual jurisdiction, and therefore the rules should be clear and certain. At the very least, without forfeiting flexibility entirely, the SPC should issue official guidelines setting out the relevant criteria for or illustrations of what are considered cases with ‘significant nationwide impact’ in China and what cases the SPC might consider appropriate for the CICC to hear.

Nevertheless, from the perspective of forum control, the wide ambit of discretion that is entailed in the jurisdictional rules enables the SPC to fully control the caseload of the CICC. This is likely to be welcomed by the Higher People's Courts, which may prefer to let the CICC handle complex, difficult or sensitive international commercial cases, to avoid having to come to a mistaken or controversial decision in a case with wide-ranging ramifications.

3. Subject-matter jurisdiction: international commercial disputes

The CICC's subject-matter jurisdiction is limited to international commercial disputes—it does not have the general civil jurisdiction the SPC does. Pursuant to Article 3 of the Judicial Interpretation on CICC, a claim is ‘international’ in nature if (1) either or both parties are foreign nationals, enterprises, organisations, stateless persons, or have habitual residence outside China; (2) the subject matter of the dispute is outside China; or (3) the events that created, changed or terminated the commercial relationship at issue occurred outside China.Footnote ⁵³

The definition of ‘international’ under Article 3 embodies the ‘three-element test’, which is the traditional approach used by the SPC to define ‘foreign’ for the purpose of its general jurisdiction. Under the ‘three-element test’, if one of the elements—that is, the parties, subject matter or factual position—has a connection with a foreign jurisdiction, the case will be classified as one involving foreign elements.Footnote ⁵⁴ It should be noted that although the ‘three-element test’ has been endorsed by the SPC for ordinary domestic courts’ application since the 1980s, its inherent rigidity has produced unjust results in practice, prompting reform by the SPC through its issuance of judicial interpretation documents in 2012 and 2015. These two documents inserted a catch-all clause in addition to the original definition, to introduce a measure of flexibility to the test.Footnote ⁵⁵ The meaning of ‘foreign’ has since been expanded to qualify as ‘foreign’ those civil or commercial relationships which, although they do not technically satisfy the ‘three-element test’, have substantive connections with a foreign jurisdiction.Footnote ⁵⁶ It is thus puzzling that the Judicial Interpretation on CICC adopted the outdated ‘three-element test’, as opposed to the liberalised ‘three-element test’ currently applied by other Chinese courts. This is a step backwards for Chinese judicial practice.

To illustrate the rigidity of the outdated test, consider two companies, each wholly owned by a Singapore corporation, that are incorporated and registered in China, and have established their principal places of business there. If these two Chinese incorporated companies conclude a contract with each other in China to conduct business within the territory of China that is directly related to the BRI, according to the rules they cannot submit their contractual disputes to the CICC for a number of reasons. First, even though wholly owned by Singapore corporations, the parties to the contractual dispute are considered Chinese entities. Chinese law determines the nationality of a company based on the place of incorporation (registration).Footnote ⁵⁷ Second, the parties’ habitual residences are in China. The Chinese Private International Law Act provides that the habitual residence of a company is its principal place of business.Footnote ⁵⁸ Third, notwithstanding that the contract relates to the BRI, it was concluded and performed in the territory of China. As such, the parties, the subject matter and the facts do not involve an ‘international’ element as defined under Article 3 of the Judicial Interpretation on CICC. Hence, we believe that the word ‘international’, as defined in the Judicial Interpretation on CICC, is too rigid for effective application.

As to the meaning of ‘commercial’, it is not defined in the Judicial Interpretation on CICC. At the CICC press conference held on 28 June 2018, Justice Liu Guixiang, a senior judge of the SPC, commented that the CICC's docket will comprise civil and commercial disputes between equal subjects. He went on to stress that two categories of case are excluded: (1) disputes between countries concerning investment or trade issues; and (2) disputes between the host country and investors concerning investment issues, which are to be resolved via the existing international dispute settlement mechanisms.Footnote ⁵⁹ Hence, the meaning of ‘commercial’ is intended to be very broad, seemingly restricted only by the exclusion of these matters.Footnote ⁶⁰ But such informal guidance is insufficient. Potential users of the CICC need certainty. For example, will the CICC consider any dispute arising between private parties not falling within the excluded categories and not concerning criminal/constitutional law issues as conclusively ‘commercial’, without the need for further investigation? In this connection, would a dispute over company property where the shareholders are husband and wife embroiled in foreign divorce proceedings be considered a ‘commercial’ dispute? The answers are unclear.

1. Consensual jurisdiction: written jurisdiction agreement

Unlike the CICC, a written jurisdiction agreement in favour of the SICC is a sufficient basis for the SICC to be seised of jurisdiction. The dispute need not have any other connection with Singapore. Further, where there is a jurisdiction agreement, the Rules of Court prescribe very restrictive grounds upon which the SICC may decline to assume jurisdiction.Footnote ⁷⁰ The SICC can only do so where ‘it is not appropriate’ for the case to be heard by it, although the concept of ‘appropriateness’ to guide the exercise of judicial discretion is not precisely defined.Footnote ⁷¹ What is made clear, however, is that the SICC cannot refuse jurisdiction on the sole basis that the case is ‘connected to a jurisdiction other than Singapore’.Footnote ⁷² Connections with Singapore are thus downplayed in the determination of the SICC's international jurisdiction. This is a remarkable departure from the traditional forum non conveniens principles under Singapore law concerning the exercise of jurisdiction of the High Court.Footnote ⁷³ The traditional principles are intensely focused on comparing the case's connections with Singapore to its connections with a foreign forum—the underlying assumption being that it is more efficient and effective for a forum that is more closely connected with the dispute to resolve it. The philosophy undergirding the SICC regime, in contrast, is that party autonomy is paramount.

As is clear from the jurisdictional regime, the SICC's primary objective is to compete with other fora for dispute resolution business, especially cases that would not otherwise be heard by the Singapore High Court applying its traditional jurisdictional regime. For this reason, the SICC jurisdictional rules are designed to promote active forum shopping by potential users and are not generally concerned with connections to Singapore. Indeed, the SICC regime recognises a concept called the ‘offshore case’, which is essentially a dispute with ‘no substantial connection with Singapore’,Footnote ⁷⁴ and this status allows the SICC to apply a more generous approach in procedural flexibility. The point is to promote Singapore as a neutral dispute resolution forum to litigants. This objective also results in the promulgation of rules that are pro-submission to the SICC. Other than setting out restrictive grounds on which the SICC may decline to assume jurisdiction, a choice of court agreement in favour of the SICC is presumed to be exclusive in nature, unless there is wording to the contrary.Footnote ⁷⁵ Further, where parties’ choice of court agreement to submit disputes to ‘the jurisdiction of the High Court is concluded on or after 1 October 2016’, then unless otherwise specified, it shall be construed as including a submission to the SICC.Footnote ⁷⁶

2. Transfer jurisdiction: transfer of proceedings from the High Court to the SICC

According to Order 110, rule 12(4) of the Rules of Court, generally, a case may be transferred from the High Court to the SICC if:

1. i. it concerns international and commercial claims;

2. ii. the parties are not seeking any form of prerogative relief;

3. iii. it is more appropriate for the case to be heard in the SICC; and

4. iv. either all parties consent to the transfer or the High court orders the transfer of proceedings on its own motion after hearing the parties.

If the case falls within the Hague Convention on Choice of Court Agreements (‘HCCCA’) regime (to which Singapore is a party, and which it has implemented by local legislation), Order 110 rule 12(3B) of the Rules of Court prescribes the same requirements for transfer, save that no transfer of proceedings can be made unless all parties consent to the transfer, whether the transfer is initiated pursuant to a party's application or on the Singapore High Court's own motion. This difference caters to the requirement under Article 5(3) of the HCCCA that in exercising internal allocation of jurisdiction between the courts of a Contracting State, ‘due consideration should be given to the choice of the parties’.Footnote ⁷⁷ Interestingly, Order 110 rule 12(3B)—by requiring all parties’ consent—imposes a higher threshold than required under Article 5(3). This higher threshold may be justified by the policy objective of ensuring that SICC judgments will be straightforwardly recognised or enforced in other Contracting States. Its stringency is also mitigated through the operation of deeming provisions in the Rules of Court.Footnote ⁷⁸

3. SICC's subject-matter jurisdiction

The SICC hears cases of an ‘international’ and ‘commercial’ nature. The definition of ‘international’ under the SICC regime is multilateral, and not forum-centred as it is under the CICC regime. Order 110, rule 1(2)(a) of the Rules of Court provides that a claim is ‘international’ if

1. (i) the parties to the claim have their places of business in different States;

2. (ii) none of the parties to the claim have their places of business in Singapore;

3. (iii) at least one of the parties to the claim has its place of business in a different State from –

   1. (A) the State in which a substantial part of the obligations of the commercial relationship between the parties is to be performed; or

   2. (B) the State with which the subject matter of the dispute is most closely connected; or

4. (iv) the parties to the claim have expressly agreed that the subject-matter of the claim relates to more than one State.

Rules 1(2)(a)(i)–(iv) are, in essence, concerned with identifying the international character of a claim by reference to the connections with different States. Save for (ii), the definition is not framed as examining connections to Singapore.

As for the meaning of ‘commercial’, Order 110 rule 1(2)(b) of the Rules of Court provides that a claim is ‘commercial’ if it arises from a commercial relationship;Footnote ⁷⁹ relates to an in personam intellectual property dispute; or the parties have expressly agreed that the subject matter is so.

The provision for parties’ right of self-determination as to the nature of the claim in the first instance for the commencement of a suit in the SICC affirms the prioritisation of party autonomy in the SICC framework. Such an approach is also underlined by pragmatism, as it reduces the inefficiency arising from prescribing cumbersome definitions and proof.

1. Judges

The quality of judges is crucial to the success of an international commercial court.Footnote ⁸³ Article 4 of the Judicial Interpretation on CICC provides for the appointment of CICC judges:Footnote ⁸⁴

As the CICC judges are to be drawn only from the senior judges of the Chinese People's Courts, foreign jurists are not permitted to be appointed to the CICC. To date, 15 CICC judges have been appointed by the SPC.Footnote ⁸⁵ All of them are SPC-level judges, even though Article 4, on its literal wording, permits the appointment of qualified judges from the lower People's Courts. The appointed CICC judges have, on average, 7.5 years of work experience as SPC judges and among them, 12 have obtained a PhD in law. These are therefore experienced and highly qualified judges. Further, eight out of the 15 judges have studied abroad. This international experience may be evidence also of their ability to use English as a working language and their more international outlook.

Nonetheless, there are several problems with Article 4. First, it merely provides for the basic qualifications of the CICC judges. It does not set out the selection process for evaluating the calibre, experience and actual English language ability of the judges. Appointment appears to lie substantially at the SPC's discretion. Given that foreign jurists cannot be appointed to the CICC, a proper and transparent procedure for appointment of Chinese judges as CICC judges is critical to establishing the credibility of the CICC.

Secondly, despite the requirement of English language ability, it is important to note that English cannot be used as the language of proceedings in the CICC. This is unsatisfactory. English is the language of international business: commercial contracts are frequently drafted in English; and parties from countries with different languages usually communicate with each other in English. As the BRI countries speak a variety of languages, English is therefore their ‘lingua franca’. Requiring CICC judges to be able to use English as a working language would seem to open the way for proceedings before the CICC to be conducted in English. Moreover, if Article 4 is read together with Article 9 of the Judicial Interpretation on CICC—the latter of which provides that, if it is agreed to by the other party, a party may submit evidence in English without the need for Chinese translation—it would not be unreasonable to assume that the CICC would be an English-speaking court. However, the Judicial Interpretation on CICC is circumscribed by Article 262 of the CPL, which states that proceedings of cases involving foreign elements shall be conducted in ‘languages commonly used in China’, that is, Chinese and the languages native to the 55 officially-recognised ethnic minorities in China.Footnote ⁸⁶ Article 6 of the Law on the Organisation of the People's Courts (‘LOPC’) imposes a similar requirement.Footnote ⁸⁷ The Judicial Interpretation on CICC cannot override this legislation.Footnote ⁸⁸ An underappreciated consequence of the language of CICC proceedings being Chinese (or any of the other native Chinese languages) is that it renders the possibility of submitting evidence in English without the need for Chinese translation far less feasible in practice. After all, both judges and counsel in CICC proceedings would need to refer to the evidentiary materials in the course of the proceedings—for example, in the cross-examination of witnesses. It is simply impracticable for there to be no Chinese translations of evidence in foreign languages.

Third, Article 4 only permits the appointment of Chinese nationals as CICC judges. The absence of international judges significantly diminishes the appeal of the CICC to foreign parties and severely weakens its competitiveness as a credible international dispute-resolution forum. International judges boost user confidence as to the independence of the judicial process, reducing concerns of forum bias or Chinese-party bias.Footnote ⁸⁹ Moreover, with a panel of international judges, an international judge familiar with a foreign law applicable to the dispute in question can be appointed to hear the case, thereby mitigating the shortcomings associated with the process of proving foreign law.Footnote ⁹⁰ However, Chinese legislation—both the Judges’ Law and the LOPC—mandate that the judges of Chinese courts must be Chinese nationals.Footnote ⁹¹

2. Expert Committee

To remedy the non-international composition of the CICC judicial panel, the SPC established an ‘International Commercial Law Expert Committee’ (the ‘Expert Committee’). According to the Judicial Interpretation on CICC and the information provided by the SPC,Footnote ⁹² the SPC would be appointing a number of world-renowned experts in international law, commercial law, and the law of their home country to form the Expert Committee. On 24 August 2018, 32 experts were appointed to the Expert Committee.Footnote ⁹³ These experts include retired judges, arbitrators, scholars and practitioners. Among the 32 experts, only eight are from the Chinese Mainland. The other 24 experts come from 15 different jurisdictions.Footnote ⁹⁴ It bears mentioning that the foreign experts generally have extensive international experience. Many have worked in more than one jurisdiction.

Under the CICC framework, Expert Committee members may act as mediators or assist the conduct of the CICC proceedings through offering expert opinions on issues of foreign law or international law. In addition, they may provide advice and suggestions on the development of the CICC and on the formulation of judicial interpretations and judicial policies of the SPC.Footnote ⁹⁵ The Expert Committee is, in its conception, a concession by China to allow limited international influence on CICC processes. If it works well, this innovation could provide a formal avenue for bringing international input into the work of the CICC. It may also, to some extent, make up for the absence of foreign judges on the CICC panel. At present, it is difficult to speculate on the practical utility of the Expert Committee, and much depends on the actual role these foreign experts are able to assume in practice.

3. Lack of foreign lawyer representation

Under current Chinese law, foreign lawyers do not have a right of audience before the Chinese People's courts. Accordingly, parties to CICC proceedings cannot be represented by foreign lawyers, even though foreign lawyer representation is likely to be desired by litigants of foreign nationalities or where the legal issues in dispute are governed by foreign law. The prohibition of foreign representation also means that foreign law will need to be ascertained before the CICC, as opposed to being determined directly by way of submissions, as is common in arbitration. The role of foreign lawyers in CICC litigation is thus limited to indirect participation, such as supporting Chinese counsel in the proceedings. In any event, given that CICC judges are Chinese judges and the language of proceedings is restricted to Chinese or other recognised native languages used in China, then setting aside the legal prohibition on foreign lawyer representation, engaging experienced Chinese counsel is in practice the only sensible course of action for litigants in CICC proceedings.

4. Ascertainment of foreign law

Determining the content of foreign laws is an important yet difficult task in international commercial litigation. As a result of the political, economic, cultural and historical differences among the BRI countries, their legal systems vary greatly. Therefore, the efficiency and reliability of the CICC will depend to a considerable degree upon the proper identification, interpretation and application of foreign law.

According to Article 8 of the Judicial Interpretation on CICC, the content of foreign law may be ascertained in the following ways: (1) by the parties; (2) by Chinese and foreign legal experts; (3) by institutions offering foreign law ascertainment services; (4) by the experts of the Expert Committee; (5) by the central authority of the foreign country, which has entered into a judicial assistance treaty with China; (6) by the Chinese embassy or consulate in the foreign country; (7) by the embassy of the foreign country in China; or (8) by any other reasonable means. The materials and expert opinions on foreign law provided in one or more of these ways should be presented during the CICC hearing, and the parties are to be given an opportunity to be heard.Footnote ⁹⁶

In this respect, Article 8 has expanded beyond the pre-CICC methods of ascertaining the content of foreign law in Chinese litigation:Footnote ⁹⁷ methods (3), (4) and (8) are new inclusions. The ‘other reasonable means’ addition (method (8)) presumably includes ascertainment of foreign law through a BRI online law database that the SPC plans to establish in the future.Footnote ⁹⁸ While the augmentation of methods to ascertain foreign law is a helpful development, three issues concerning Article 8 require clarification. First, it is unclear what kind of institutions providing foreign law ascertainment services may fall within the ambit of Article 8. Currently, the official CICC website lists four such institutions.Footnote ⁹⁹ There is, however, no further guidance on how an institution may obtain authorisation to submit expert opinions on foreign law in CICC litigation; or what the authorisation criteria are. Secondly, it is unclear if there is a hierarchical order between the opinions by the different experts/institutions. In other words, does the opinion of some experts (for example, the experts of the Expert Committee) carry more weight as compared with the opinions of others? Parties may take the issue of weight into consideration in sourcing an opinion on the content of foreign law. As parties before the CICC are not entitled to a right of appeal,Footnote ¹⁰⁰ ‘getting it right’ is important, because there is no second chance. Further, if a member of the Expert Committee—an institution formally organised by the CICC—has misstated the content of foreign law, do the parties have any recourse—for example, the chance of a hearing de novo?

Finally, it is important to note that Article 8 of the Judicial Interpretation on CICC operates within the existing Chinese legislative framework, which is underlined by a strong ‘homeward trend’ in application.Footnote ¹⁰¹ Under Article 10 of the Private International Law Act, Chinese law applies by default where foreign law cannot be ascertained or where there is no relevant rule of law after conducting the ascertainment process. In practice, Article 10 has been manipulated by Chinese judges to expand the application of the lex fori.Footnote ¹⁰² This dangerous ‘homeward trend’, if it is allowed to continue, is likely to undermine the CICC's credibility as a neutral and trustworthy forum. In addition, this problem cannot be remedied by Article 8 of the Judicial Interpretation on CICC, which merely augments the means of ascertaining foreign law. To reduce the risk of judicial manipulation, more concrete rules need to be enacted to guide the CICC judges’ application of Article 10 of the Private International Law Act.

5. Coram and judgments

Article 5 of the Judicial Interpretation on CICC provides that the CICC shall appoint a ‘collegial panel’ for every CICC dispute. For each dispute, a panel of three judges will be constituted. The judgment of the CICC is to be reached by majority decision. Any dissenting opinion may be incorporated into the judgment.Footnote ¹⁰³ The wording of Article 5 expressly indicates that people's assessors—a common feature of Chinese proceedings—may not be appointed to the collegiate panels within the CICC. As international commercial disputes heard by the CICC are usually far more complex than ordinary civil disputes before other Chinese courts, the provision for a professional and legally trained bench is sensible.

Remarkably, Article 5 changes the tradition of civil law countries (including China), which treats each court judgment as the collective decision of the tribunal, by allowing the publication of a dissenting opinion.Footnote ¹⁰⁴ This is an innovation inspired by the experience of common law jurisdictions and is to be welcomed. It promotes the independence of judges and enhances judicial transparency, thereby improving the credibility of the CICC. However, it remains to be seen whether Chinese judges can adapt to the new practice of issuing dissenting opinions. Further, as there is no right of appeal in the CICC litigation framework, the practical value of a dissenting opinion to the litigants of the relevant dispute is limited; but it is useful for parties in similar disputes that are going through the CICC system.

6. No appeal mechanism

CICC judgments are final and conclusive, and not subject to appeal. The reason is self-evident: because the CICC is a constituent part of the SPC, its judgment is a judgment issued by the SPC, the apex court of China.Footnote ¹⁰⁵

The absence of an appeal mechanism, as is the case for international commercial arbitration, may be attractive to commercial parties who desire finality and speed in dispute resolution. Moreover, the proposed Brussels International Business Court similarly does not provide for a right of appeal.Footnote ¹⁰⁶ The absence of an appeal mechanism is thus not by itself a fatal flaw. But this limitation within the conservatively designed CICC may exacerbate foreign litigants’ concern over the quality of justice that can be obtained in the CICC.

Moreover, the deprivation of the parties’ right to appeal may spark a constitutional challenge. Under Chinese law, the right to appeal is guaranteed by Chinese legislation, including the CPL and the LOPC.Footnote ¹⁰⁷ When the CICC takes its jurisdiction based on party agreement to submit their disputes to the CICC, it may be said that the parties, being cognisant of this aspect, have by implication agreed to exclude a right of appeal. When the CICC takes its jurisdiction on a non-consensual basis, however, this argument has no weight. In CICC's initial years of operation, its docket is likely to mainly comprise transfer cases.

7. Evidence

Article 9 of the Judicial Interpretation on CICC sets out the rules of evidence. First, CICC proceedings do not require Chinese translation of evidence into the English language, if the parties so agree. However, as discussed above,Footnote ¹⁰⁸ this procedural innovation is unlikely to be significant in practice. Secondly, CICC proceedings do not require the notarisation and legalisation of evidence.Footnote ¹⁰⁹ China is presently not a party to the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents. In conventional Chinese litigation, evidence that is obtained in a foreign jurisdiction is generally required to be notarised and legalised. As translation, notarisation and legalisation are all costly, cumbersome and time-consuming processes, such a procedural reform within the CICC framework will greatly improve CICC's efficiency and enhance its attractiveness to users.

8. Establishing a one-stop shop for dispute resolution

Article 11 of the Judicial Interpretation on CICC provides that by setting up the Expert Committee and selecting certain international mediation and arbitration institutions to work alongside the CICC, the SPC shall provide parties with a choice between mediation, arbitration and litigation. Article 12 states that within seven days of accepting the dispute, and upon agreement by the parties, the CICC may appoint members of the Expert Committee or authorise an international mediation institution to mediate the dispute. If the parties have reached a mediation agreement, the CICC can issue a conciliation decision or, at the parties’ request, convert the mediation agreement into a court order, to facilitate its recognition/enforcement abroad.Footnote ¹¹⁰

Alternatively, if the parties choose to resolve the dispute by arbitration within the CICC one-stop shop, the dispute will be referred to an international arbitration body. In such cases, the parties may apply to the CICC, either prior to the commencement of or during the arbitration proceedings, for judicial assistance, such as the grant of a freezing order or other injunctions. Following the issuance of an arbitral award, parties may apply to the CICC for the setting aside or enforcement of the award.Footnote ¹¹¹

However, the involvement of international mediation and arbitration institutions in the CICC one-stop shop is limited. At first sight, the label of ‘international’ in Article 11 suggests that both Chinese institutions that accept international commercial disputes (most notably, CIETAC) and foreign international arbitration institutions (such as ICC or SIAC) may be involved. However, the actual meaning of ‘international’ is far more restricted—it refers only to Chinese ‘international’ institutions. Foreign institutions are barred from joining the CICC one-stop shop. This is because the General Agreement on Trade in Services takes a positive list approach to trade in services, which should include arbitration. A treaty party is required to explicitly (positively) list the sectors and subsectors in which it undertakes market access and national treatment commitments; to date, the Chinese government has not explicitly listed arbitration in its positive list. The Chinese arbitral market is thus presently closed to foreign arbitral institutions. Against this background, it is unsurprising that the first group of CICC international mediation and arbitration institutions appointed by the SPC are all ‘Chinese’ institutions handling foreign-related matters.Footnote ¹¹² This prohibition, arising from constraints in the wide Chinese legal framework, however, severely diminishes the ‘international’ character of the CICC one-stop shop.

Relevantly, amid the recent, escalating trade war with the United States, Xi has renewed a pledge to further liberalise China's markets for trade and investment.Footnote ¹¹³ Against this legal-political backdrop, liberalisation of the Chinese arbitration market appears a possibility. Whether foreign arbitration institutions will be allowed to participate in the CICC dispute resolution ecosystem is likely to depend, at the very least, on that possibility materialising.

1. Foreign judges

A distinctive advantage of the SICC over the CICC is that the former's judicial panel comprises both local and foreign judges.Footnote ¹¹⁴ The foreign judges do not enjoy tenure and are appointed as ‘International Judges’ for a term to hear cases as the Chief Justice specifies.Footnote ¹¹⁵ To date, 16 International Judges, drawn from both civil and common law jurisdictions, have been appointed: one from Austria;Footnote ¹¹⁶ four from Australia; one from Canada; one from France; one from Hong Kong; one from Japan; six from the United Kingdom and one from the USA. There are no explicit requirements for the nationality composition of the panel of International Judges, nor are there guidelines for the qualifications of International Judges. Although the formal power of appointment lies with the President of Singapore, he/she is to act on the advice of the Prime Minister, who in turn consults the Chief Justice of Singapore.Footnote ¹¹⁷ As such, appointments are made on the Chief Justice's recommendations. Of the 16 International Judges, 15 are former/current judges; and one (the Japanese International Judge) is a renowned academic and former Chairperson of the appellate body of the World Trade Organisation.

In Rappo, Tania v Accent Delight International Ltd, Chief Justice Sundaresh Menon commented that when a dispute is governed by foreign law, this should carry less weight when determining the Singapore court's international jurisdiction by reference to the forum non conveniens analysis, ‘if the Singapore courts, through their International Judges in the SICC, are familiar with and adept at applying that foreign law’.Footnote ¹¹⁸ The point is this: the availability of foreign judges trained in the foreign law that applies to a relevant dispute neutralises the advantage of having the case heard in a foreign domestic court or even arbitration. The force of this point is enhanced when the matter is considered against the broader picture that in SICC proceedings, it is possible for foreign law to be determined directly by submissions and for parties to be represented by foreign lawyers.

2. Representation by foreign lawyers

The traditional requirements for granting foreign lawyers rights of audience before the Singapore High Court on an ad hoc basis are extremely stringent.Footnote ¹¹⁹ In contrast, to complement the advantage of having International Judges decide SICC cases, there is greater latitude for foreign representation in SICC proceedings.Footnote ¹²⁰ In this connection, that a dispute is an ‘offshore’ case is significant: this is the main category of cases where parties may be represented by foreign lawyers.Footnote ¹²¹ The intention underlying this aspect of liberalisation of the Singapore legal profession is crystal clear: to attract litigants who would not otherwise choose litigation in a national court. There is one exception: only Singapore qualified lawyers are allowed to represent parties in IAA applications brought before the SICC. The exclusion of foreign representation in IAA applications has been justified on the basis that IAA is Singapore legislation and the local lawyers are well versed in the IAA jurisprudence.Footnote ¹²² There is therefore little or no need for foreign legal expertise.

For a foreign lawyer to represent parties for any purpose in SICC disputes, he or she must be registered under the Legal Profession Act (‘LPA’). The SICC regime differentiates between foreign lawyers who are granted full registration and foreign lawyers who are granted restricted registration. The type of registration determines the requisite qualifications of the foreign lawyer and the scope of work that the foreign lawyer may undertake.Footnote ¹²³ Only a foreign lawyer who is granted full registration may represent parties in SICC and appeal proceedings. A foreign lawyer who is granted restricted registration, by contrast, may only represent parties for the purposes of making submissions on matters of foreign law as permitted by the SICC or the Singapore Court of Appeal.

At the time of writing, the register of foreign lawyers shows that 85 foreign lawyers from different jurisdictions have been granted full registration and two English lawyers have been granted restricted registration.Footnote ¹²⁴

3. Ascertainment of foreign law

As Singapore is a common law country, the traditional mode of determining the content of foreign law is to plead foreign law as facts, which can then be proved by expert evidence.Footnote ¹²⁵ Although this traditional mode of proof is retained under the SICC regime, the SICC may order that any question of foreign law be determined on the basis of submissions instead of proof.Footnote ¹²⁶ Before making this order for submissions, the SICC must be satisfied that all parties are or will be represented by a foreign lawyer with full/restricted registration, or a registered legal expertFootnote ¹²⁷ ‘who is suitable and competent to submit on the relevant questions of foreign law’.Footnote ¹²⁸

The appointment of International Judges and the greater latitude of foreign representation in SICC proceedings are not only designed to boost the international image of the SICC. These salient features also facilitate the more efficient mode of determining foreign law by direct submissions.Footnote ¹²⁹

4. Quorum and judgments

SICC proceedings are generally to be heard by a single judge or a quorum of three judges.Footnote ¹³⁰ Exceptionally, a dispute may be heard by two judges.Footnote ¹³¹ To date, International Judges have been assigned to hear disputes, either as a single judge or as a member of a three-judge panel.Footnote ¹³² As Singapore is a common law jurisdiction, dissenting opinions are included in the published judgments. All SICC judgments, as with Singapore judgments in general, are in English.

Interestingly, International Judges have been assigned to hear SICC cases,Footnote ¹³³ including as a single judge, when the claims are governed by Singapore law.Footnote ¹³⁴ It may thus be said that the Singapore judiciary invites the International Judges to not only participate but also take the lead in the development of Singapore commercial law. The CICC's judicial composition, on the other hand, preempts direct foreign influence.

5. Evidence

In SICC proceedings, parties may apply for the disapplication of (all or some of) the Singapore rules of evidence and for the application of other rules of evidence,Footnote ¹³⁵ including rules of evidence that may not constitute part of foreign law.Footnote ¹³⁶ Of course, the SICC has discretion, for the ‘just, expeditious and economical disposal’ of the case, to modify (with the parties’ consent) the parties’ agreement or stipulate further supplementary conditions.Footnote ¹³⁷ Hence, parties may agree to apply the IBA Rules on the Taking of Evidence in International Arbitration, with appropriate adaptation, to their action.Footnote ¹³⁸ The Singapore procedural liberalisation in this regard is far bolder than the procedural reform relating to evidence under the CICC, which merely dispenses with the need for Chinese translations of evidence in English. It also demonstrates the Singapore judiciary's level of comfort with foregoing a greater degree of forum control.

6. Right to appeal

Any appeal from an SICC judgment is heard by the Singapore Court of Appeal.Footnote ¹³⁹ However, unlike the High Court, parties to an SICC dispute may by written agreement waive, limit or vary their rights of appeal.Footnote ¹⁴⁰ The right to self-determination in this regard helps parties to control costs exposure and delay in obtaining finality of outcome.

7. Confidentiality orders

In SICC proceedings, the default position is open court hearings and the publication of its judgments. This is to give effect to the public interest rationale for setting up the SICC: to enable open and coherent development of commercial law. However, unlike in traditional litigation, a party to SICC proceedings may apply for a confidentiality order: to conduct the hearing in camera; to prohibit the publication of information or documents relating to the case; or for the sealing of the court order. In exercising its discretion, the SICC takes a more generous approach in ‘offshore’ cases and cases where parties have agreed to making such an order.Footnote ¹⁴¹

1. Enforceability of CICC judgments in China and abroad

The enforceability of judgments across borders is a paramount consideration for litigants in international commercial disputes, as parties are likely to come from different jurisdictions and their assets may be located in several jurisdictions. For this reason, since the launch of the SICC, Singapore has worked relentlessly, through a combination of formal and informal avenues, to increase the international enforceability of its judgments. It signed and ratified the HCCCA in 2016. The Supreme Court of Singapore entered on 19 January 2015 into a non-binding ‘Memorandum of Guidance’ with the DIFC Courts concerning the reciprocal enforcement of money judgments.Footnote ¹⁴³ On 31 August 2018, the Supreme Court of Singapore entered into a Memorandum of Guidance with the SPC on the recognition and enforcement of money judgments in commercial cases.Footnote ¹⁴⁴ To foster trust and collaboration between the courts of different Asian countries, the Asian Business Law Institute is now undertaking a project to harmonise the rules for the recognition and enforcement of foreign judgments in Asia.

Similarly, the international enforceability of CICC judgments is imperative for its success and its biggest challenge. To be clear, the enforceability of CICC within China is assured by the provisions of the Judicial Interpretation on CICC, which states that all judgments and rulings issued by the CICC are legally effective. It also provides that a conciliation decision issued by the CICC and signed by the parties shall have the same legal effect as a court judgment. The parties may apply to the CICC for the enforcement of these judgments, rulings, and conciliation statements.Footnote ¹⁴⁵

The international portability of CICC judgments is, however, limited. By August 2018, China had signed bilateral judicial assistance treaties in civil and commercial matters with only 39 countries. Of these bilateral treaties, 37 have taken effect to dateFootnote ¹⁴⁶ provide for the reciprocal recognition and enforcement of judgments. As for multilateral arrangements, China has not ratified any multilateral convention on the recognition and enforcement of civil and commercial judgments. At the time of writing, China has signed but not ratified the Hague Convention on Choice of Court Agreements (‘HCCCA’).Footnote ¹⁴⁷ As expediting the ratification of the HCCCA would undoubtedly improve the international enforceability of Chinese judgments (including CICC judgments), it can be expected that China will ratify the HCCCA in the near future.

Currently, a practical way of overcoming limitations in the recognition and enforcement of CICC judgments abroad, without affecting the business of the CICC one-stop shop, is to promote the use of CICC arbitration services. An arbitral award may be enforced in more than 150 countries under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (commonly referred to as the New York Convention), to which China is a Contracting State.

2. Building a case stream for the CICC

To date, almost all SICC cases have been transfer cases. The first case to be filed directly in the SICC occurred in February 2018, four years after its launch. This reveals the challenge of persuading the business community to choose the SICC, a new mechanism, as the forum for dispute resolution. A newly launched and untested court is after all a source of uncertainty for commercial parties and their legal advisors. The SICC's initial track record is thus built on transfer cases. However, given its objective, the SICC's success will remain limited and superficial if its docket largely comprises transfer cases. Generating a steady stream of cases based on consensual jurisdiction is therefore another challenge for the SICC, especially given the availability of international commercial arbitration.

The CICC is confronted with the same challenge, if not a greater one, given its more conservative design and stringent jurisdictional requirements. Foreign commercial parties and their legal advisors are likely to be even more hesitant in choosing the CICC as the forum for dispute resolution. The general difficulty of enforcing foreign judgments in ChinaFootnote ¹⁴⁸ may to some degree increase the appeal of choosing the CICC, if the defendant to the potential litigation has substantial assets in China. However, as in the case of the SICC, parties are likely to choose international commercial arbitration instead.

Adopting the SICC's initial strategy, the CICC similarly accepted some transfer cases by the end of 2018Footnote ¹⁴⁹ to launch the operation of its judicial machinery. Its track record in deciding these transfer cases will be critical to convincing commercial parties of the CICC's credibility. However, given the CICC's objective, it may be that boasting of a large case load is not its primary goal. Even so, proving to the international community that the CICC works is important for the CPC and its goal of safeguarding the BRI and Chinese interests. In this connection, some improvements to the CICC may be made to increase user confidence. It is to this forward-looking aspect of our analysis we now turn.

1. Legislative legitimisation

As we have pointed out, many of the constraints in the CICC framework arise from the fact that the CICC was created and legitimised through a judicial interpretation document, as opposed to a proper legislative process. We thus consider remedying this defect a priority, to pave the way for other necessary changes. In view of the fact that China's ratification of the HCCCA would require a legislative exercise, not only to implement the HCCCA provisions but also to work out the consequent changes to existing regimes of jurisdiction and recognition/enforcement of foreign judgments, initiating a legislative exercise to legitimise the creation of the CICC is timely and could take place in tandem with the HCCCA exercise. Ideally, a stand-alone piece of legislation for the CICC should be enacted to provide for its jurisdiction, procedures, and an explicit recognition that the provisions in this new legislation will take precedence to the extent that they are contrary to other Chinese legislations.

Of course, we recognise that remedying the legitimisation defect alone does not mean that the CICC will or can then adopt every desirable feature of a credible international commercial court. The permissible degree of internationalisation is undergirded by a more deep-seated policy concern to retain forum control. However, removing the technical constraints would help to directly and more constructively tackle this policy concern.

2. Party autonomy

Although the CICC is intended to operate as a judicial safeguard of the BRI, this does not mean that the CICC's jurisdictional scope need be as narrowly circumscribed or forum-centric in design as it currently is. The CICC's jurisdictional scope may encompass other aims that complement or advance that objective. We suggest that building a positive image of the CICC within the international community and fostering Chinese thought leadership in dispute resolution would encourage greater usership of the CICC (including its arbitration and mediation services). Greater usership of the CICC would strengthen the legal safeguarding function of the CICC. It would also indirectly encourage increased legal cooperation between China and BRI countries. We thus propose that there be greater latitude allowed for party autonomy in determining the CICC's jurisdiction.

In particular, in relation to the CICC's consensual jurisdiction, parties should be allowed to submit disputes to the CICC by way of a written jurisdiction agreement, without the further requirement of actual connection to the chosen Chinese court. If the CICC is concerned about exhausting Chinese resources on dealing with too many disputes, the threshold criterion for the amount in dispute (RMB300 million) should more than ensure that only cases of substantial economic significance are brought before the CICC. Another way of addressing the concern is to prescribe a higher scale of fees for using the CICC, such that the dispute resolution service is funded by the users.

3. Internationalisation

As Professor Anselmo Reyes, International Judge of SICC and a member of the CICC Expert Committee, has observed, litigants go to an international commercial court because it offers a simplified legal procedure ‘for the whole world: common law and civil law jurisdictions’.Footnote ¹⁵⁰ As such, we suggest that the CICC framework be further internationalised in the near future and in ways that would not provoke acute concerns about the compromise of Chinese sovereignty. First, the CICC should recognise English as one of the permitted languages of proceedings. Specifically, if all the parties to the proceedings so consent, the CICC proceedings may be conducted in English. This complements the procedural possibility of submitting evidence in English without the need for Chinese translation. Moreover, it would showcase the CICC judges’ ability to conduct court proceedings in English. This will enhance the CICC's reputation.

Secondly, the meaning of ‘international’ for the purpose of the CICC's subject-matter jurisdiction should be amended. A more conservative amendment is to adopt the liberalised ‘three-element-test’ currently applied by other Chinese courts. However, we would respectfully advise the formulation of a multilateral and broadly defined meaning of ‘international’ for the CICC.

Thirdly, the CICC should make full use of its Expert Committee. There is scope to consider appointing these experts as Expert People's Assessors and to sit with the CICC judges in a collegial panel on an ad hoc basis. These foreign experts can provide valuable input in cases requiring very niche expertise. Although they would advise the CICC judges, it would remain the CICC judges’ responsibility to decide the outcome and write the judgment.

4. Clarification

In Parts III and IV we identified numerous areas in the CICC rules that require clarification to provide greater certainty to potential users. These areas include the meaning of ‘commercial’ (subject-matter jurisdiction), the principles governing the transfer of cases from other Chinese courts to the CICC, the selection of CICC judges, uncertainty relating to the ascertainment of foreign law, and ambiguous language in the Judicial Interpretation on CICC.