Huang Jin
Professor of the Academy for the Rule of Law, China University of Political Science and Law, vice-chairman of the China Law Society and chairman of the Chinese Society of International Law
The establishment of the Beijing International Commercial Court (the BICC) drew high attention from domestic law circles, especially the international law circles. Although it is newly built, the BICC has made outstanding achievements in professional talent building, international commercial trials, judicial review of arbitration and exploration of system and mechanism reform.
The BICC should adhere to the following three approaches to effectively fulfill its judicial functions, make Beijing a preferred place for settling international commercial disputes and serve the construction of Beijing’s high-level "Two Zones", which are the national comprehensive demonstration zone for expanding opening-up in the services sector and the China (Beijing) Pilot Free Trade Zone.
First, to build the BICC at a high level, we should correctly understand the connotation of "adhering to the coordinated promotion of the domestic and foreign-related rule of law", which involves understanding of three concepts: domestic rule of law, foreign-related rule of law and international rule of law. Domestic rule of law is the rule of law based on a country’s sovereignty, which refers to a country’s dealing with its domestic and foreign-related affairs through legislation, law enforcement, administration of justice, observance of the law and law application. Strictly speaking, domestic rule of law is a broad concept that includes pure domestic rule of law and foreign-related rule of law. The rule of law for handling pure domestic affairs is purely domestic rule of law; while the rule of law for handling the country’s foreign-related affairs is foreign-related rule of law. Foreign-related rule of law is defined from the perspective and standpoint of our country itself. It refers to the rule of law that China's legislative organs, executive authorities of law and judicial authorities and legal service agencies, relevant natural persons, legal persons, and other organizations handle their own foreign-related affairs in accordance with China's laws and regulations, especially foreign-related ones, as well as the international treaties China has concluded. Foreign-related rule of law is not only a part of domestic rule of law, but also its external extension as well as the bridge or link between domestic rule of law and international rule of law. Meanwhile, international rule of law is the rule of law that international communities deal with their international affairs based on certain principles, rules and institutions. Obviously, it is not the foreign-related rule of law of a country. As for the relationship among domestic rule of law, foreign-related rule of law and international rule of law, we might say that the domestic rule of law is a circle, the international rule of law is another circle, and the two circles overlap in small part, which is the foreign-related rule of law. In other words, the foreign-related rule of law is the overlapping section of the domestic rule of law and the international rule of law.
The profound meaning of "adhering to the coordinated promotion of the domestic and foreign-related rule of law" should be understood at both the domestic and international levels. At the domestic level, we should fulfill three major tasks. The first is to accelerate formulating the strategic layout of work on foreign-related rule of law. We should strengthen the top-level design and general plan and push them forward in an overall and coordinated manner. The second major task is to enhance the construction of a system of rule of law involving foreign-related affairs. We should not only strengthen the foreign-related legislation, but also the related law enforcement, judiciary and legal services to systematically build the foreign-related rule of law. The third task is to improve the level of the rule of law of foreign-related work. In other words, we should enhance the rule of law thinking and methods in foreign-related work, making good use of them to effectively respond to challenges and prevent risks. It is important to comprehensively utilize legislation, law enforcement and judiciary to fight against external dangerous elements in order to resolutely safeguard China's sovereignty, dignity and core interests. At the international level, we should implement "three adheres", "three firmly upholds" and "three push forwards"; that is, China should adhere to genuine multilateralism, the path of peaceful development and the vision of global governance featuring shared growth through discussion and collaboration. We should firmly uphold the international system with the United Nations (UN) as its core, firmly uphold the international order based on international law, and firmly uphold the basic principles of international law and the basic norms of international relations underpinned by the purposes and principles of the UN Charter. China should also push forward plans for reforms of unfair and unreasonable international rules and mechanisms that do not conform to the evolving international situation, push forward the reform and construction of global governance and join in pushing forward new international relations that favor building of a community with a shared future for mankind. To build a high-level BICC, we should gain an accurate and comprehensive insight into the connotation of "adhering to the coordinated promotion of the domestic and foreign-related rule of law" and avoid understanding it from one-sided, mechanical, unilateral and populist perspective.
The second critical approach to building a high-level BICC is to strengthen the study and application of international law. Established after World War II, the current international law has been playing an important role in safeguarding world peace and security, promoting the development of the international community and protecting human rights. My opinion is that the current international law and the international rule of law have generally been progressive. International law, compared with domestic law, has been developed into a large legal system that covers every aspect of life in the international community, which exists mainly in the forms of international treaties and international custom, and is essentially a compromise based on the common will of countries accepting and abiding by the relevant international laws. International law is not only the code of conduct of the international community and a key tool for global governance, but also a common international discourse system. However, modern international law and international rule of law are not perfect. There are deep-rooted problems whether in the rules of international law itself or in its operational system. There are also many unfair and unreasonable international regulations and mechanisms that do not conform to the evolving international situation and need to be improved. China has deeply integrated itself into global governance and international rule of law by following the universally recognized principles of international law and the basic norms of international relations, and strictly abides by the international treaties it has signed. China is a learner, practitioner and beneficiary as well as a protector, builder of and contributor to the current international law. Based on the above understandings, we should carry on the essence of the current international law while pursuing innovations. We should adhere to what we should adhere to and innovate what we should innovate. But to innovate is not to overturn. Judges engaged in foreign-related commercial trials should not only master domestic law, but must also have a profound understanding of the knowledge and theories related to international law and skills to use them most flexibly.
The third necessary approach to building a high-level BICC is to strengthen the integrated development of the governance system of international commercial disputes. We should enhance the building of the international commercial dispute governance system and set up an international commercial trial system that is unified, coordinated, and organically connected in order to break the current fragmented pattern of the international commercial courts. We should then pay high attention to the integrated development of the prevention and settlement of international commercial disputes. For courts or arbitral institutions, priority should be given not only to the settlement of disputes but also to their prevention. More emphasis should be put on the implementation of prevention concepts when settling disputes. The world today is undergoing profound changes unseen in a century complicated by the continuous spread of the global COVID-19 pandemic, which brings special legal risks to international investment and trade. "International commercial legal risks" refers to the legal contradictions, differences and disputes that hinder normal transactions in international commercial exchanges. The prevention of international commercial legal risk means taking effective macroscopic or microscopic measures to eliminate the possible causes of disputes before the disputes occur and carrying out early preventative rectifications of the subjects and matters that may cause disputes. In the past, legal circles concentrated more on the study of dispute resolution and less on dispute prevention. Or to put it more dramatically, we put more emphasis on clinical jurisprudence study and neglected the study of preventative jurisprudence. We should realize that dispute prevention is different from dispute resolution. Dispute prevention is one thing while resolving existing disputes is the core of dispute settlement. But the fundamental purposes of both are actually the same, namely avoiding and eliminating contradictions, divergences and disputes to protect social stability and normal social order. In comparison, speaking from the effectiveness of social governance and good governance, disputes prevention is better than disputes resolution. It can be said that the current international commercial disputes governance system is flawed. For example, it concentrates more on settlement, correctness and consequences but less on prevention, cooperation and causes. Therefore, when we discuss the settlement of international commercial disputes, we cannot overlook their prevention. Of course, when we discuss the prevention of international commercial disputes, we cannot ignore their settlement. To carry out the governance of international commercial disputes, we should learn to do both risk prevention and dispute settlement and attach equal importance to them. Currently, relevant institutions and enterprises for the prevention of international commercial disputes should enhance the construction of three mechanisms, namely enterprise compliance management, investment and trade friction early-warnings, as well as intervention and rectification. And finally, we should establish cooperation mechanisms between international commercial trials, arbitrations and mediations to promote their integrated development.
