Research On Jurisdiction System Of China International Commercial Court

With the globalization and the rapid development of the economy worldwide,international commercial disputes are becoming more and more frequent and complicated.Several countries and regions have established international commercial courts to enhance their competiveness in the international commercial disputes resolution market.It can be said that the wave of establishing an international commercial court has emerged gradually and internationally.In order to provide judicial guarantee for the construction of the Belt and Road,China has followed the trend and approved the Opinion Concerning the Establishment of the Belt and Road International Commercial Dispute Resolution Mechanism and the Provisions of the Supreme People's Court on Several Issues Regarding the Establishment of the International Commercial Court respectively on January 23,2018 and June 25,2018.On June 29,2018,the First International Commercial Court and the Second International Commercial Court were respectively inaugurated in Shenzhen and Xi'an.Jurisdiction is the precondition for an international commercial court to accept and hear cases.Accordingly,jurisdiction system constitutes an essential system of the international commercial court.This paper attempts to analyze the content and deficiencies of the jurisdiction of China International Commercial Court,study the jurisdiction of extraterritorial international commercial courts from the view ofcomparative law,summarize their experience for reference,and make several suggestions for further improvement.In order to achieve this goal,this paper adopts the methods of literature research and comparative research in the hope of summarizing the content and problems of the jurisdiction of China International Commercial Court,the common characteristics of the jurisdiction of extraterritorial international commercial courts and their significance to China as well as the path of improving the jurisdiction of China International Commercial Court.In addition to the introduction and conclusion,this paper mainly consists of the following four chapters.The first chapter elaborates the concept,types and characteristics of the international commercial court,and the establishment of China International Commercial Court.Regarding the concept of the international commercial court,there is currently no expression that is generally adopted by the theoretical and practical circles.This paper defines the international commercial court from the perspective of literal interpretation and jurisdiction as “the court established by a country or region to deal with disputes of international and commercial nature in accordance with domestic law”.The international commercial court can be divided into a pure international commercial court and an impure international commercial court based on whether the scope of jurisdiction is limited to international commercial disputes.The international commercial court can be divided into an independent international commercial court and a dependent international commercial court based on the model of setting up the international commercial court.It can be concluded from international commercial courts established that the international commercial court is characterized by internationalization and quasi-arbitration.Specific to the establishment of China International Commercial Court,this paper holds that there are international and domestic backgrounds behind the establishment of China International Commercial Court.The establishment of China International Commercial Court,at the international level,is a powerful strategy for China to respond to the fierce competition among jurisdictions as well as enhancing its judicial competitiveness.At the domestic level,China International CommercialCourt,which is conducive to improving the judicial system of China and providing judicial guarantee for the construction of the Belt and Road,constitutes an indispensable part of the Belt and Road international commercial dispute resolution mechanism.The second chapter elaborates the provisions of China International Commercial Court on international commercial cases,including the definition of “international”and “commercial”,and put forwards several suggestions to overcome the shortcomings.Specifically,when defining “international”,the relevant provisions of China International Commercial Court refer to the meaning of “foreign-related” mentioned in relevant judicial interpretations,and define the meaning of “international” from the perspective of subject,object,and legal facts.However,there are still some deficiencies in this method of definition.On the one hand,the referral of the definition of “foreign-related” in the relevant judicial interpretations to define“international” is debatable.On the other hand,some connecting points,such as the nationality and habitual residence of the parties,do not match with international commercial practices.Among the existing extraterritorial international commercial courts,only the relevant provisions of the Singapore International Commercial Court and the Netherlands Commercial Court have defined the meaning of “international”of disputes and adopt an enumerated approach.This paper proposes to define the meaning of “international” of disputes as “A case is international if –(1)the parties to the claim have their places of business in different States;or(2)at least one of the parties to the claim has its place of business in a different State from –(i)the State in which a substantial part of the obligations of the commercial relationship between the parties is to be performed;(ii)the State with which the subject matter of the dispute is most closely connected.”The relevant provisions of China International Commercial Court do not clarify the exact meaning of “commercial”.Meanwhile,the definition of “contractual and non-contractual commercial legal relationship” in the commercial reservation statement made by China when entering the Convention on the Recognition andEnforcement of Foreign Arbitral Awards is not entirely consistent with the professional positioning of China International Commercial Court.Other international commercial courts adopt several methods to define the meaning of “commercial”,mainly the forward enumeration method,the reverse exclusion method,and the method of combination between forward enumeration and reverse exclusion.This paper proposes to define “commercial” as “(1)If a dispute arises from a commercial relationship in nature between equal commercial entities,whether it is contractual or non-contractual,including but not limited to sale of goods,lease of property,project contracting,processing,technology assignment,joint adventure,joint business operation,exploration and development of natural resources,insurance,credit,surrogate,consultation service,marine/civil aviation/railway/road passenger and cargo transportation,marine accident,dispute over ownership,then the dispute is commercial;(2)China International Commercial Court does not accept disputes over investment and trade between States,as well as international investment disputes between investors and host countries.”The third chapter expounds the content of the agreement jurisdiction of China International Commercial Court,analyzes the problems contained,and put forward several suggestions for improvement.Same as other countries,the jurisdiction agreement of the parties is a vital source of the jurisdiction of China International Commercial Court.Meanwhile,pursuant to the relevant provisions of China International Commercial Court,the jurisdiction agreement is subject to the following restrictions: Firstly,the jurisdiction agreement must be made in writing;Secondly,the object of the jurisdiction agreement can be either the Supreme People's Court or China International Commercial Court;Thirdly,the dispute must have actual connection with China;Finally,the amount in dispute of the case must be more than RMB 300 million yuan.The practice of China International Commercial Court to strictly limit the form of jurisdiction agreement in writing is not only inconsistent with domestic and international commercial practices,but also contradicts with the original intention of the setting up China International Commercial Court,i.e.,to facilitate the parties.Other international commercial courts usually require parties to have an express choice of court agreement,and some require written consent.This paper proposes to make reform on the current agreement jurisdiction system of China International Commercial Court by expanding the formality of jurisdiction agreement to “the written form,oral form and any other forms that is tangibly reflected and accessible for subsequent reference,including contracts,letters and data messages(including telegrams,telex,fax,electronic date exchange and email).”In practice,the requirement that the dispute of the parties reaching the jurisdiction agreement must have actual connection with China will raise the following issues: First,it may cause many parties “to have no way to litigate” and then aggravate the negative conflict of jurisdiction.Second,it will result in the failure of China International Commercial Court to meet the requirements of neutrality of the parties in the international commercial trade.Third,the connotation of the actual connection principle is not clear enough,which leads to the inconsistency of the practice of courts.Many extraterritorial international commercial courts have jurisdiction over international civil and commercial cases that the parties have agreed to submit to their jurisdiction before and after the dispute arises,regardless of whether the case has actual connection with the location of the international commercial court.Therefore,this paper proposes to cancel the actual connection restrictions imposed on the jurisdiction agreement,allowing the parties to agree to submit the dispute to the jurisdiction of China International Commercial Court before and after the dispute arises,regardless of whether the case has actual connection with China.In addition,the restriction imposed on the amount in dispute by the relevant provisions of China International Commercial Court are not appropriate.The reason is that when signing a contract,the parties are often unable to predict whether the amount in dispute will reach RMB 300 million yuan when the dispute arises,and the amount in dispute may change as the plaintiff changes its claim or the defendant files a counterclaim.Therefore,from the perspective of increasing the amount of cases accepted by China International Commercial Court,this paper proposes to liberalize the restriction on the amount in dispute.The fourth chapter studies the other jurisdiction systems of China International Commercial Court,including the content and characteristics of the transfer jurisdiction system and the level jurisdiction system,as well as the content,shortcomings and improvement of the arbitration jurisdiction system.In accordance with the relevant provisions of China International Commercial Court,the High People's Court may transfer the case to China International Commercial Court if the following four conditions are met: First,the High People's Court has jurisdiction over the case;Second,the case is a first-instance international commercial case;Third,the High People's Court holds that the case needs to be tried by the Supreme People's Court;Fourth,the Supreme People's Court agrees with the High People's Court to transfer the case to China International Commercial Court.Unlike Singapore International Commercial Court,the transfer procedure of China International Commercial Court is initiated by the court ex officio.China International Commercial Court has the power to hear first-instance international commercial cases that have significant influence throughout the country,as well as other international commercial cases that the Supreme People's Court considers should be tried by China International Commercial Court.Among the existing international commercial courts,China International Commercial Court is the only court that adopts the first-instance final review system.The judgments made by China International Commercial Court are final,but the parties may apply for retrial.Pursuant to the relevant provisions of China International Commercial Court,China International Commercial Court may accept cases in which the parties apply for arbitration preservation,apply for revocation or enforcement of an international commercial arbitration award if the following requirements are satisfied: On one side,the international commercial arbitration institution has been included in the “one-stop”international commercial dispute resolution mechanism;On the other side,the disputed amount of the case is more than RMB 300 million yuan or the case has other significant impact.However,the following matters still need to be improved: First,there are contradictions between the relevant provisions of China International Commercial Court regarding the pre-litigation preservation;Secondly,the SupremePeople's Court has not made clear provisions on how to determine the disputed amount of the case and “other significant impact”;Finally,the application for confirmation of the validity of arbitration agreement is not included in the sphere of jurisdiction of China International Commercial Court.Regarding this issue,this paper proposes to take the following corresponding measures for improvement: First,to amend the relevant provisions to allow the parties to submit preservation applications to China International Commercial Court before applying for arbitration;Second,to clarify the standard of determining the amount in dispute of the case and whether the case has a significant impact;Third,to include the case for applying for confirmation of the validity of the arbitration agreement in the sphere of jurisdiction of China International Commercial Court.