Zhang Yongjian's speech on the 2nd Haisen Central Legal Affairs Forum (1)

The reference and connection between lawsuits and arbitration in international commercial disputes

Zhang Yongjian's Supreme People's Court's former President of the Four Courts of the People's Court 1. The advantages of litigation and arbitration are the advantages of victory. Judicial litigation is one of the important ways for the resolution of international commercial disputes. The advantage is that one is that the judicialness has strong authority and justice. Litigation is a fairness that rely on the dispute resolution of national public power, and has the fairness of other national authority support. Second, the judiciary has strong stability, continuity and predictability, and helps to promote the formation of commercial rules through judicial rules. The courts and commercial courts are permanent institutions to implement the principles of legal judges and the principles of public trials. The trial subjects are relatively stable. The formation of rules, thereby achieving the rule of rules and good treatment in the international business field. Third, the lawsuit has a ultimate guarantee in the international dispute resolution system. The identification of the arbitration agreement, the promotion of preservation procedures, the arbitration decision, and the review and implementation of the mediation agreement must be implemented through judicial lawsuits. As a lack of judicial lawsuits as guarantee and support, international commercial arbitration and mediation are difficult to effectively play a role. Advantages of arbitration methods: First, highlight the autonomy of the parties. International commercial arbitration is a system of arbitral tribunal voluntarily submitted disputes to the arbitration resolution through agreements, and the arbitral tribunal made a ruling in accordance with the principle of law or in accordance with the principles of peace, and agreed to consciously fulfill the obligations determined by the ruling. Second, international commercial arbitration has both fairness and efficiency, and the finals are the most common, common and popular solutions for international commercial disputes. Third, the execution of most countries in the world. The "Convention on Acknowledging and Execution of Foreign Arbitration Awards" (New York Convention) was implemented in 1958, and the implementation of arbitration ruling has been guaranteed globally, and it has further promoted the development of the international commercial arbitration system. In short, the system value of international commercial arbitration in terms of meaning autonomy, flexibility and convenience, endless tailoring, and professional efficiency has been widely recognized. 2. Litigation and arbitration have their own shortcomings and traditional lawsuits. In the resolution of international commercial disputes, there are also obvious deficiency: high cost of litigation procedures, long cycles, difficulty in cross -border investigation, difficulty in external evidence certification procedures, and relative flexibility. Insufficient is not conducive to promoting follow -up cooperation and friendly relations between the disputes. The implementation of foreign business judgments involves international judicial sovereignty issues. Although the effectiveness of the Hague "Selection of the Court Agreement" has alleviated the domestic recognition and implementation of other countries, the implementation of the judgment of foreign business affairs is still restricting the resolution of the dispute between foreign business affairs and affairs disputes. One of the major obstacles. The country along the “Belt and Road” in my country and the “Belt and Road” in about 2/3 lacks the Treaty of Civilian Business Assistance, and it is not conducive to the recognition and implementation of foreign business judgments. The defects of the arbitration method have also been criticized. First of all, the incompleteness of the referee and the lack of continuity are a major problem facing arbitration procedures. Compared with the unity of the law of law, focusing on building case guidance, appeal trial, and disclosure of trial publicity, the arbitration procedure is relatively weak in the referee. Relatively ignore the conflict of ruling with other arbitral tribunals. The arbitral tribunal was temporarily established and immediately disbanded after making a ruling, and the continuity was insufficient. This is the root cause of the arbitration decision to be uncoordinated or even conflict. In the settlement of international commercial disputes in the form of arbitration, if the rules of ruling are not unified for a long time, it will affect the construction of the unified international market order and the construction of commercial order, and even if the dispute over the case is resolved, it will be difficult to achieve the rule of rules. Secondly, the international commercial arbitration system is also lacking in program technology. The arbitration agreement usually restricts the parties of both parties, but international commercial exchanges inevitably involve third parties, and the arbitration system does not have mature third -party participation systems such as lawsuits. It is difficult to absorb third -party participation in arbitration, which may lead to the emergence of parallel lawsuits, complicate the dispute resolution, increase the cost of disputes, and do not meet the disputes of disputes to resolve the economic concept at one time. Third, the arbitration procedure delays, high costs, and finals, while improving the efficiency of disputes, while affecting the follow -up relief of the parties, are also the shortcomings that are difficult to avoid. 3. The International Commercial Court provided an opportunity for the connection between the lawsuit and the arbitration. In June 2018, the Supreme People's Court promulgated the judicial interpretation of the "Provisions on Several Issues of the International Commercial Court" in order to implement the opinions of the central government's deep reform leadership group. The trial procedure of the commercial court made principle stipulate that the prominent feature is to put the three international commercial dispute solutions of mediation, arbitration, and litigation on the same platform. According to the "Regulations", the Supreme People's Court established the International Commercial Court (CICC). Article 14 of the judicial interpretation stipulates that the parties' agreement chooses the arbitration of international commercial arbitration agencies stipulated in Article 11 (1) (participating in the CICC "one -stop" international commercial dispute resolution mechanism). Or after the arbitration procedure starts, apply to the International Commercial Court for evidence, property or behavior preservation; if the parties apply for an arbitration award made by the International Commercial Court or perform the arbitration award made by the above -mentioned international commercial arbitration institutions, the International Commercial Court shall conduct Examine.

The approach of the International Commercial Court opened the exploration of litigation and arbitration on the same platform; although it was just a preliminary attempt, after all, it provided a good opportunity for the reference, connection and interaction of litigation and arbitration. Fourth, the reference and connection of litigation and arbitration are necessary to improve and strengthen the system construction of an international commercial court. In the process, it is worth exploring to learn from the arbitration. For example, the selection of collegiate panel members. Judging from the practices of some overseas judicial organs and the practice of arbitration, allowing the parties to choose a collegial panel member is an option that can be considered. It can strongly adjust the principle of autonomy of the parties in the resolution of commercial disputes, shorten the distance between the parties and the collegial panel, reduce the opposition, and improve the parties' expectations for the results of the referee. For another example, in order to improve the implementation rate of judgment abroad, some foreign international commercial courts (courts) collaborated with the arbitration agency to transform the court's judgment into arbitration. This method can also be considered. I wish the Central Legal District of Haili continuously progress; I look forward to new results in the innovation of Xiamen International Commercial Court and Xiamen Foreign Affairs Court. Editor -in -chief: Huang Huier

Review: Fang Yan Gaoqi

■ Liu Chao's keynote speech on the 2nd Haisen Central Legal District Forum ■ Huang Jin's keynote speech on the 2nd Haisen Central Legal District Forum ■ Li Wei's theme at the 2nd Hais Central Legal District Forum speech

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