‘Sharp Ears to Hear a Thunderclap’? The rise of mediation in the international dispute prevention and settlement system of the belt and road initiative

ABSTRACT

The Convention on International Settlement Agreements Resulting from Mediation is one of the newest contributing factors to a virtuous circle upholding the foreseeable rise of mediation in cross-border business and investment disputes. This article analyses how the on-going institutionalization of the international dispute prevention and settlement system of the Belt and Road Initiative (BRI) is both being informed by, and is further contributing to, the global rise of mediation at a time when the international adjudicative system is in turmoil. The BRI is bound to generate a large number of complex international disputes ranging from international trade to investment and commercial disputes. This, in turn, has spurred two notable developments: 1) Chinese and regional arbitral institutions, legal regimes and investment treaty networks are currently adapting to better cater for the growing demand for commercial and investment arbitration in the context of the BRI. 2) The China International Commercial Court, which innovatively integrates ‘litigation, arbitration and mediation’ in its new ‘one-stop’ diversified settlement system, and a series of legal and institutional initiatives, namely the new International Commercial Dispute Prevention and Settlement Organization, are, in turn, paving the way for a greater use of mediation in cross-border business and investment disputes in the context of the BRI. This article examines these developments in the light of China’s broader relationship with international adjudication and elaborates on a number of arguments to help rationalising why mediation is gaining ground in the on-going institutionalization of the International Dispute Prevention and Settlement System of the BRI.

KEYWORDS:

• international mediation
• Belt and Road Initiative Dispute Settlement
• China International Commercial Court
• International Commercial and Dispute Settlement Organization
• Convention on International Settlement
• Agreements Resulting from Mediation

Acknowledgements

The author is grateful to the organisers of the conference ‘Dispute Settlement in the Belt and Road Initiative’ held at the EW Barker Centre for Law & Business, National University of Singapore on 14-15 November 2019 and, in particular, to Prof. Wang Jiangyu as well as to two anonymous reviewers for their constructive comments. The editorial assistance of Shi Weimin, Xiao Yang, David Barnes and the editorial board is also gratefully acknowledged. [email protected].

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 This is broadly understood as the settlement of international disputes by adjudicative means whether through independent third-party arbitrators or judges on the basis of international law, see, e.g., JG Merrills, International Dispute Settlement (5th edn, CUP 2011).

2 See, e.g., Charles Chernor Jalloh and Ilias Bantekas (eds), The International Criminal Court and Africa (OUP 2017); Human Rights Watch, ‘US Sets Sanctions Against International Criminal Court: Trump Executive Order Seeks to Thwart Justice for Victims’ (11 June 2020) <www.hrw.org/news/2020/06/11/us-sets-sanctions-against-international-criminal-court> accessed 25 October 2020.

3 Mikael Rask Madsen, ‘Two Level Politics and the Backlash against International Courts: Evidence from the Politicization of the European Court of Human Rights’ (2020) 22 The British Journal of Politics and International Relations 728. A case in point is the hostile relationship with the ECHR of Russia which has included threats of withdrawal from Russia from the ECHR. Russia has most recently been condemned on breaches of the Convention in relation to activities carried during its armed conflict with Georgia. See Judgment in the case concerning the armed conflict between Georgia and the Russian Federation in August 2008 and its consequences: Georgia v Russia App no. 38263/08 (ECtHR, 21 January 2021) <https://hudoc.echr.coe.int/eng-press?i=003-6913071-9285190> accessed 21 January 2021.

4 See, e.g., MR Madsen, P Cebulak and M Wiebusch, ‘Special Issue – Resistance to International Courts: Introduction and Conclusion’ (2018) 14 International Journal of Law in Context 193, 195. While the reasons behind particular instances of pushback tend to be case-specific, several countries have engaged in pushback against the case-law of the ECHR including the UK where there has long been talk of an ‘UK Bill of Human Rights’ in the wake of Brexit. See, further, classifying selected country members in different categories spanning from ‘sparse criticism’ to ‘hostile criticism’ of the ECHR, Patricia Popelier, Sarah Lambrecht and Koen Lemmens (eds), Criticism of the European Court of Human Rights (Intersentia 2016).

5 AJIL Contemporary Practice of the United States, ‘U.S. Refusal to Appoint Members Renders WTO Appellate Body Unable to Hear New Appeals’ (2020) 114 American Journal of International Law 518.

6 G John Ikenberry, ‘The End of Liberal International Order?’ (2018) 94 International Affairs 7.

7 Council of the European Union, ‘Multi-Party Interim Appeal Arbitration Arrangement Pursuant to Article 25 of the DSU’ (2 April 2020) <www.consilium.europa.eu/media/43334/st07112-en20.pdf> accessed 20 October 2020.

8 Yuvali Shany, ‘No Longer a Weak Department of Power? Reflection on the Emergence of a New International Judiciary’ (2009) 20 European Journal of International Law 73.

9 Thomas Schultz and Federico Ortino (eds), The Oxford Handbook on international Arbitration (OUP 2020).

10 Harlan Grant Cohen, ‘Nations and Markets’ (2020) 23 Journal of International Economic Law 793.

11 Ibid., see further e.g., Anne van Aaken, Chad P Bown and Andrew Lang, ‘Introduction to the Special Issue on “Trade Wars”’ (2019) 22 Journal of International Economic Law 529, and its accompanying ‘special issue’ articles. See also Maria Adele Carrai, ‘The Rise of Screening Mechanisms in the Global North: Weaponizing the Law against China’s Weaponized Investments?’ (2020) 8 The Chinese Journal of Comparative Law 351.

12 Anthea Roberts, Henrique Choer Moraes and Victor Ferguson, ‘Toward a Geoeconomic Order in International Trade and Investment’ (2019) 22 Journal of International Economic Law 655, 655.

13 Ibid.

14 See Giovanni Capoccia, ‘Critical Junctures’ in Orfeo Fioretos, Tulia G Falleti and Adam Sheingate (eds), The Oxford Handbook of Historical Institutionalism (OUP 2018).

15 See Martti Koskenniemi, International Law and the Far Right: Reflections on Law and Cynicism (TCM Asser 2019).

16 SI Strong, ‘Realizing Rationality: An Empirical Assessment of International Commercial Mediation’ (2016) 73 Washington & Lee Law Review 1973, 1986.

17 Ibid 2031.

18 Ibid 1976. According to Strong, ‘up to 90% of all international commercial contracts include an arbitration provision, with similar mechanisms in place in approximately 93% of the 3,000–5,000 interstate investment treaties (including bilateral investment treaties (BITs)) now in effect’.

19 Ibid 1982.

20 Ibid 1983, noting that this ‘on average extends from one to two years in international commercial cases to up to four in investment arbitration ones’.

21 The literature on the cons of international investment arbitration has grown exponentially; for an earlier critical report see, e.g., Cecilia Olivet and Pia Eberhardt, ‘Profiting from Injustice: How Law Firms, Arbitrators and Financiers Are Fuelling an Investment Arbitration Boom’ (2012) Corporate Europe Observatory and the Transnational Institute 2012. See, e.g., Blanche Helbling, ‘El Salvador Says “NO to a Kangaroo Court”!’ <www.ciel.org/el-salvador-says-no-to-a-kangaroo-court/> accessed 25 October 2020.

22 Laura Marceddu and Pietro Ortolani, ‘What Is Wrong with Investment Arbitration? Evidence from a Set of Behavioural Experiments’ (2020) 31 European Journal of International Law 405.

23 M Sornarajah, Resistance and Change in the International Law on Foreign Investment (CUP 2015).

24 Robert Howse, ‘International Investment Law and Arbitration: A Conceptual Framework’ (2017) <www.iilj.org/wp-content/uploads/2017/04/Howse_IILJ_2017_1-MegaReg.pdf> accessed 20 September 2020.

25 UNCITRAL, ‘Report of Working Group III (Investor-State Dispute Settlement Reform) on the Work of Its Thirty–Seventh Session’ A/CN 9/970 (9 April 2019), para 81.

26 Anthea Roberts and Taylor St John, ‘UNCITRAL and ISDS Reform: Visualising a Flexible Framework’ (24 October 2019) <www.ejiltalk.org/uncitral-and-isds-reform-visualising-a-flexible-framework/> accessed 10 October 2020.

27 International Bar Association Mediation Committee State Mediation Subcommittee, ‘IBA Rules for Investor-State Mediation’ <https://icsid.worldbank.org/sites/default/files/IBA%20Rules%20for%20Investor-State%20Mediation%20(Approved%20by%20IBA%20Council%204%20Oct%202012).pdf> accessed 20 October 2020.

28 Energy Charter Secretariat, ‘Decision of the Energy Charter Conference’ <www.energycharter.org/fileadmin/DocumentsMedia/CCDECS/2016/CCDEC201612.pdf> accessed 20 October 2020.

29 International Centre for International Dispute Settlement (ICIDS), ‘Investor-State Mediation’ <https://icsid.worldbank.org/services-arbitration-investor-state-mediation> accessed 20 October 2020. See the latest version of the ICSID’s proposed Mediation rules at ICSID, Proposals for Amendment of the ICIDS Rules, Volume 1, Working Paper 4 (February 2020) <https://icsid.worldbank.org/sites/default/files/WP_4_Vol_1_En.pdf> accessed 15 January 2021.

30 Art 8(20).

31 Art 9(18) (not in vigour).

32 Malik R Dahlan, ‘Envisioning Foundations for the Law of the Belt and Road Initiative: Rule of Law and Dispute Resolution Challenges’ (2020) 62 Harvard International Law Journal 1, 11–12. For a recent study on the ‘usage of cooling-off provisions in international investment treaties’, see Catherine Kessedjian and others, ‘Mediation in Future Investor-State Dispute Settlement’ (2020) 16 Academic Forum on ISDS Concept Paper 4 <www.jus.uio.no/pluricourts/english/projects/leginvest/academic-forum/> accessed 22 January 2021.

33 Singapore Convention on Mediation (United Nations Convention on International Settlement Agreements Resulting from Mediation) (adopted 20 December 2018, opened for signature 7 August 2019, entered into force 12 September 2020) UN A/73/17, <www.uncitral.org/pdf/english/commissionsessions/51st-session/Annex_I.pdf> accessed 20 October 2020.

34 See, e.g., Heng Wang, ‘China’s Approach to the Belt and Road Initiative: Scope, Character and Sustainability’ (2019) 22 Journal of International Economic Law 29.

35 Christoph Nedopil, ‘Countries of the Belt and Road Initiative’ (2021) Beijing, IIGF Green BRI Center <https://green-bri.org/countries-of-the-belt-and-road-initiative-bri/> accessed 14 January 2021.

36 UN, Status of the United Nations Convention on International Settlement Agreements Resulting from Mediation <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXII-4&chapter=22&clang=_en> accessed 21 January 2021.

37 See, e.g., Jiangyu Wang, ‘Dispute Settlement in the Belt and Road Initiative: Progress, Issues, and Future Research Agenda’ (2020) 8 The Chinese Journal of Comparative Law 4. See also Timothy Schnabel, The Singapore Convention on Mediation: A Framework for the Cross-Border Recognition and Enforcement of Mediated Settlements (2019) 9 Pepperdine Dispute Resolution Law Journal 1.

38 See, e.g., Guiguo Wang, Yuk Lun Lee and Feng Li (eds), Dispute Resolution Mechanism for the Belt and Road (International Academy of the Belt and Road Initiative, Springer Singapore 2020) 13.

39 Jian Zhang, ‘International Commercial Dispute Prevention and Settlement Organization: A Quick Review’ (15 October 2020) <www.chinajusticeobserver.com/a/thing-about-international-commercial-dispute-prevention-and-settlement-organization> accessed 20 October 2020.

40 The World Bank, ‘Belt and Road Initiative’ <www.worldbank.org/en/topic/regional-integration/brief/belt-and-road-initiative> accessed 17 January 2021.

41 For more details on the BRI see the editor’s introduction to this special issue.

42 Ibid.

43 Ibid 11.

44 Mark Feldman, ‘A Belt and Road Dispute Settlement Regime’ (13 June 2019) <https://ssrn.com/abstract=3403846> accessed 20 October 2020.

45 The State Council of PRC, ‘Action plan on the Belt and Road Initiative’ (30 March 2015) <http://english.www.gov.cn/archive/publications/2015/03/30/content_281475080249035.htm> accessed 12 January 2021.

46 Weixia Gu, ‘Belt and Road Dispute Resolution: New Development Trends’ (2018) 36 Chinese (Taiwan) Yearbook of International Law and Affairs 150, 158.

47 E.g. Hong Kong International Arbitration Centre.

48 E.g. the Paris-based International Chamber of Commerce.

49 Gu (n 46) 158–59.

50 Ibid 162.

51 Ibid 158.

52 Ibid 159–62.

53 Notable examples include the International Court of Justice and the International Criminal Court; see further, Congyan Cai, ‘China and the International Court of Justice’ in A. Skordas (ed), Research Handbook on the International Court of Justice (Edgar Elgar, 2021); and Dan Zhu, China and the International Criminal Court (Palgrave 2018).

54 Harriet Moynihan, ‘Briefing: China’s Evolving Approach to International Dispute Settlement’ (29 March 2017) <www.chathamhouse.org/publication/chinas-evolving-approach-international-dispute-settlement> accessed 20 October 2020.

55 Written Statement of the People’s Republic of China, ‘Accordance with international law of the unilateral declaration of independence in respect of Kosovo’ (16 April 2009) <www.icj-cij.org/files/case-related/141/15611.pdf> accessed 20 October 2020.

56 Written Statement of the People's Republic of China, ‘Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965’ (1 March 2018) <www.icj-cij.org/files/case-related/169/169-20180301-WRI-03-00-EN.pdf> accessed 20 October 2020.

57 Written Statement of the PRC, ‘Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber)’ ITLOS Case No. 17 (18 August 2010) <www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/Statement_China.pdf> accessed 20 October 2020. Written Statement of the PRC, ‘Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC)’ ITLOS Case No. 21 (26 November 2013) <www.itlos.org/fileadmin/itlos/documents/cases/case_no.21/written_ statements _round1/C21_8_China_orig_Eng.pdf> accessed 20 October 2020.

58 The scope of the Chinese declaration made in August 2006 under Art 298 excluding China from compulsory and binding arbitration on ‘sea boundary delimitations, or those involving historic bays or titles, certain military or law enforcement activities, or actions pursuant to a Security Council function’ was at the heart of the widely debated South China Sea arbitral proceedings brought by the Philippines against the PRC under Annex VII of the Convention in 2013. See Permanent Court of Arbitration, The South China Sea Arbitration (The Republic of Philippines v The People's Republic of China) <http://pca-cpa.org/en/cases/7/> accessed 20 January 2021. See also ‘The South Sea China Arbitration Awards: A Critical Study’ (2018) 17 Chinese Journal of International Law 207, 238.

59 See Julian Ku, ‘China and the Future of International Adjudication’ (2012) 27 Maryland Journal of International Law 154.

60 Moynihan (n 54).

61 However, twenty of them have not entered into force, see UNCTAD, Investment Policy Hub, China: Bilateral Investment Treaties (BITs) <https://investmentpolicy.unctad.org/international-investment-agreements/countries/42/china> accessed 12 January 2021.

62 See Muthucumaraswamy Sornarajah, ‘Chinese Investment Treaties in the Belt and Road Initiative Area’ (2020) 8 The Chinese Journal of Comparative Law 55, 63–68. See also Qiao Liu and Wenhua Shan (eds), China and International Commercial Dispute Resolution (Brill Nijhoff 2015).

63 Ibid, Sornarajah.

64 Moynihan (n 54) 8. UNCTAD Investment Policy Hub, China: Treaties with Investment Provisions (TIPs) <https://investmentpolicy.unctad.org/international-investment-agreements/countries/42/china> accessed 12 January 2021.

65 See, e.g., Free Trade Agreement Between the Swiss Confederation and The People’s Republic of China in force since 01/07/2014 <https://investmentpolicy.unctad.org/international-investment-agreements/countries/42/china> accessed 12 January 2021.

66 See, e.g., Free Trade Agreement Between the Government of Australia and the Government of The People’s Republic Of China in force 20/12/2015 <https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/3454/download> accessed 12 January 2021.

67 Gu (n 46) 152.

68 ‘The reasons are predominantly legal and technical’, see Julien Chaisse, ‘Assessing the Exposure of Asian States to Investment Claims’ (2013) 6 Contemporary Asia Arbitration Journal 187.

69 Ekran Berhad v People’s Republic of China, ICSID Case No. ARB/11/15, Settlement 24 May 2011.

70 See Ansung Housing Co Ltd v People's Republic of China, ICSID Case No. ARB/14/25, Award 9 March 2017; Hela Schwarz GmbH v People's Republic of China, ICSID Case No. ARB/17/19.

71 See Macro Trading Co., Ltd. v. People's Republic of China (ICSID Case No. ARB/20/22); and Goh Chin Soon v. People's Republic of China (ICSID Case No. ARB/20/34). See also Julien Chaisse & Kehinde Olaoye, ‘The Tired Dragon: Casting Doubts on China’s Investment Treaty Practice’ (2020) 17 Berkeley Business Law Journal 134.

72 Kun Fan, ‘Foreign Direct Investment and Investment Arbitration in China and Hong Kong’ in C Esplugues (ed), Foreign Investment and Investment Arbitration in Asia (Intersentia, 2019).

73 Eric de Brabanbere, ‘International Dispute Settlement—from Practice to Legal Discipline’ (2018) 31 Leiden Journal of International Law 459.

74 Ping An Life Insurance Company of China, Limited and Ping An Insurance (Group) Company of China, Limited v Kingdom of Belgium, ICSID Case No. ARB/12/29 <www.iisd.org/itn/2015/11/26/first-icsid-case-brought-by-chinese-mainland-investors-dismissed-on-jurisdictional-grounds-ping-an-life-insurance-company-china-limited-ping-an-insurance-group-company-china-limited-v-kingdom-belgium/> accessed 15 October 2020.

75 G20 Guiding Principles for Global Investment Policymaking (2017) <www.oecd.org/daf/inv/investment-policy/G20-Guiding-Principles-for-Global-Investment-Policymaking.pdf> accessed15 October 2020.

76 See Hongling Ning and Tong Qi, ‘Multilateral Investment Court: The Gap Between the EU and China’ (2018) 4 The Chinese Journal of Global Governance 154; also Roberts and St John (n 26).

77 Submission from the Government of China, ‘Possible Reform of Investor-State Dispute Settlement (ISDS)’ A/CN.9/WG.III/WP.177 (Note by the Secretariat, 19July 2019) < https://undocs.org/en/A/CN.9/WG.III/WP.177> accessed 15 October 2020, 3.

78 Sheng Zhang, ‘China’s International Commercial Court: Background, Obstacles and the Road Ahead’ (2020) 11 Journal of International Dispute Settlement 150, 152.

79 Ibid 163.

80 Gu (n 46) 152.

81 Dahlan (n 32) 6.

82 Zachary Haver and Wendy Leutert, ‘Building China’s Belt and Road Initiative BIT by BIT’ (East Asia Forum, 27 October 2020) <www.eastasiaforum.org/2020/10/27/building-chinas-belt-and-road-initiative-bit-by-bit/> accessed 25 October 2020.

83 Jie Huang, ‘Procedural Models to Upgrade BITs: China's Experience’ (2018) 31 Leiden Journal of International Law 93.

84 Feldman (n 44).

85 Ibid.

86 Key elements of the EU-China Comprehensive Agreement on Investment (European Commission, 30 December 2020) <https://ec.europa.eu/commission/presscorner/detail/en/ip_20_2542> accessed 21 January 2021.

87 Heng Wang, ‘The Belt and Road Initiative Agreements: Characteristics, Rationale and Challenges’ (2021) 20 World Trade Review First View 1, 1.

88 Although CAI will ‘apparently not contain provisions regarding investor-state dispute resolution, China and the EU have committed to try to complete the negotiations on investment protection and investment dispute settlement within the next 2 years. Pending an investor-state dispute resolution mechanism under the aegis of CAI, the investor-state mechanisms of existing BITs continues to apply’, see EU-China Investment Treaty: Possible New Opportunities for Investors? (Lxology, 18 January 2021) <www.lexology.com/library/detail.aspx?g=ab41ea69-1521-4e06-b8bf-a985825efd93> accessed 21 January 2021.

89 Key elements of the EU-China Comprehensive Agreement on Investment (European Commission, 30 December 2020) <https://ec.europa.eu/commission/presscorner/detail/en/ip_20_2542> accessed 15 January 2021.

90 Q&A: EU-China Comprehensive Agreement on Investment (CAI) (European Commission, 30 December 2020) <https://ec.europa.eu/commission/presscorner/detail/en/QANDA_20_2543> accessed 21 January 2021.

91 CICC, Provisions of the Supreme People’s Court on Several Issues Regarding the Establishment of the International Commercial Court (27 June 2018) <http://cicc.court.gov.cn/html/1/219/208/210/817.html> accessed 15 October 2020.

92 The website of the CICC offers different informative resources about the Court’s rules and operations <http://cicc.court.gov.cn/html/1/219/index.html> accessed 17 January 2021.

93 See Xiangzhuang Sun, ‘A Chinese Approach to International Commercial Dispute Resolution: The China International Commercial Court’ (2020) 8 The Chinese Journal of Comparative Law 45.

94 Provisions (n 91) Preamble.

95 According to Julien Chaisse and Xu Qian ‘as of late 2020, the CICC had only heard cases referred from the lower courts rather than on the basis of the consent of the parties. Moreover, none of the cases published on the CICC’s official website have been BRI-related disputes’, see, further, Julien Chaisse and Xu Qian ‘Conservative Innovation: The Ambiguities of the China International Commercial Court’ (2021) 115 American Journal of International Law Unbound 18

96 Ibid Arts. 2 and 3.

97 Andrew Godwin, Ian Ramsay and Miranda Webster, ‘International Commercial Court: The Singapore Experience’ (2017) 18 Melbourne Journal of International Law 219.

98 See Marta Requejo Isidro, ‘International Commercial Courts in the Litigation Market’ (MPILux Research Paper Series 2019) 2 <https://www.mpi.lu> accessed 15 October 2020. For a critical analysis, see: Pamela K. Bookman and Matthew S. Erie, ‘Experimenting with International Commercial Dispute Resolution’ (2021) 115 American Journal of International Law Unbound 5

99 Provisions (n 91) Art 1.

100 Ibid Art 16.

101 CICC, ‘The Appointment of the Third Group of Judges of the China International Commercial Court’ (2 July 2020) <http://cicc.court.gov.cn/html/1/219/208/210/1622.html> accessed 15 October 2020.

102 Zhengxin Huo and Man Yip, ‘Comparing the International Commercial Courts of China with the Singapore International Commercial Court’ (2019) 68 International and Comparative Law Quarterly 903.

103 CICC, ‘Announcement of the Supreme People’s Court Hearing and Its Live Broadcast’ (Ruoychai International Group Co., Ltd. v Red Bull Vitamin Drink Co., Ltd. and Inter-Biopharm Holding, Limited, 26 May 2019) <http://cicc.court.gov.cn/html/1/219/208/210/1231.html> accessed 15 October 2020.

104 People’s Court Daily, ‘The First International Commercial Court of the Supreme People’s Court Effectively Concluded the First Five Cases’ (30 December 2019) <http://cicc.court.gov.cn/html/1/219/208/209/1547.html> accessed 15 October 2020.

105 Guangdong Bencao Medicine Group Co., Ltd. v Bruschettini S.R.L., Supreme People’s Court of PRC Civil Judgment (2019) Zui Gao Fa Shang Chu No. 1 <http://cicc.court.gov.cn/html/1/219/211/223/1558.html> accessed 15 October 2020.

106 SPC, ‘Model Cases Regarding Providing Judicial Services and Safeguards by the People’s Courts for the Construction of the “Belt and Road”’ (15 May 2017) <http://cicc.court.gov.cn/html/1/219/199/204/812.html> accessed 15 October 2020.

107 So far, this has led to the delivery of twenty-two typical BRI cases and six guiding BRI cases, the latter being provided with a longer reasoning to serve as guidance to academics and corporate entities; and also to promote legal convergence among the BRI’s related jurisdictions See website of the SPC <http://english.court.gov.cn> accessed 15 October 2020; also Stanford Law School, China Guiding Cases Project <https://cgc.law.stanford.edu/belt-and-road/> accessed 15 October 2020.

108 Working Rules of the International Commercial Expert Committee of the Supreme People’s Court (For Trial Implementation) <http://cicc.court.gov.cn/html/1/219/208/210/1146.html?utm_source=dlvr.it&utm_medium=facebook> accessed 15 October 2020, Arts 3 and 5. This was originally composed of 31 members, both Chinese and foreigners from 14 countries and regions—for a four-year renewable term (August 2018-2022). In December 2020, the original members were joined by 24 new experts, including ten foreign new members mostly coming from Africa and Asia, appointed for a four-year term, see ‘The Decision on the Appointment of the Second Group of Members for the International Commercial Expert Committee of the Supreme People’s Court’ (8 December 2020) <http://cicc.court.gov.cn/html/1/219/211/223/1558.html> accessed 17 January 2021.

109 Procedural Rules for the China International Commercial Court of the Supreme People’s Court (For Trial Implementation) <http://cicc.court.gov.cn/html/1/219/208/210/1183.html> accessed 15 October 2020, Chapter 4 Pretrial Mediation Arts 17–26.

110 Working Rules (n 108) Art 3(1) and Arts 9–13.

111 Tao Jingzhou, ‘“One-stop” Dispute Resolution Mechanism is the CICC’s Main Characteristic’ <http://cicc.court.gov.cn/html/1/219/208/209/1316.html> accessed 15 October 2020.

112 Provisions (n 91) Art 11.

113 Ibid.

114 Matthew S Erie, ‘The China International Commercial Court: Prospects for Dispute Resolution for the “Belt and Road Initiative”’ (2018) 22 American Society of International Law Insights (31 August 2018) <https://www.asil.org/insights/volume/22/issue/11/china-international-commercial-court-prospects-dispute-resolution-belt> accessed 10 October 2020.

115 Feldman (n 44).

116 Notice by the General Office of the SPC Determining the First Group of International Commercial Arbitration and Mediation Institutions Included in the ‘One-Stop’ Diversified Settlement Mechanism for International Commercial Disputes <http://cicc.court.gov.cn/html/1/219/208/210/1144.html> accessed 15 October 2020. These are CIETAC (China International Economic and Trade Arbitration Commission), the Shanghai International Economic and Trade Arbitration Commission/Shanghai International Arbitration Centre, the Shenzhen Court of International Arbitration, the Beijing Arbitration Commission, the China Maritime Arbitration Commission, the Mediation Centre of the China Council for the Promotion of International Trade and the Shanghai Commercial Mediation Centre.

117 Tao (n 111).

118 Procedural Rules (n 109) Art 17.

119 Provisions (n 91) Art 12.

120 CICC, ‘The First International Commercial Court of the Supreme People's Court Holds its First Public Hearing’ (31 May 19) <http://cicc.court.gov.cn/html/1/219/208/210/1251.html> accessed 10 October 2020.

121 Procedural Rules (n 109) Art 17. Following a pre-trial conference the parties to a product liability dispute consented for the first time to pre-trial mediation conducted by members of the ICEC on the 29th April 2019. See Guangdong Bencao Medicine Group Co., Ltd. v Bruschettini S.R.L., Supreme People’s Court of PRC Civil Judgment (2019) Zui Gao Fa Shang Chu No. 1 <http://cicc.court.gov.cn/html/1/219/211/223/1558.html> accessed 20 January 2021.

122 Ibid, Procedural Rules, Art 13.

123 See Bookman and Erie (n 98) 8, for a reference to Art 13 of the Procedural Rules of the CICC in the context of an analysis of some ‘innovations’ included in the design of the ‘new legal hubs’ which efficacy is ‘still to be tested’.

124 Provisions (n 91) Art 13.

125 Ibid Art 14.

126 Zhang (n 78) 161.

127 Huo and Yip (n 102) 935. See also focusing on these two challenges, Julien Chaisse and Xu Qian ‘Conservative Innovation: The Ambiguities of the China International Commercial Court’ (2021) 115 American Journal of International Law Unbound 17.

128 See, e.g., Wei Cai and Andrew Godwin, ‘Challenges and Opportunities for the China International Commercial Court’ (2019) 68 International and Comparative Law Quarterly 837.

129 Erie (n 114).

130 It may, moreover, be envisaged that the prospects of being included in a future second and enlarged pool of arbitral and mediation institutions working together with the CICC’s ‘one-stop’ may further stimulate the readiness and skilling-up of other Chinese institutions providing ADR resolution services particularly in the mediation sector and also motivate institutions located in China’s Special Administrative Regions and, perhaps, even in foreign jurisdictions like, as we shall see later, Singapore.

131 Zhang (n 39).

132 Peter H Corne and Matthew S Erie, ‘China’s Mediation Revolution? Opportunities and Challenges of the Singapore Mediation Convention’ (Opinio Juris, 28 August 2019) <http://opiniojuris.org/2019/08/28/chinas-media-revolution-opportunities-and-challenges-of-the-singapore-mediation-convention/> accessed 15 October 2020.

133 Harmony is to be prized. See further, Zeng Xianyi, ‘Mediation in China – Past and Present’ (2009) 17 sup1 Asia Pacific Law Review 1.

134 On 28 June 2010, the Supreme People’s Court issued ‘Several Opinions on Further Implementing the Working Principles of Mediation Priority, Combining Mediation with Trial’ (2010年6月28日, 最高人民法院发布《关于进一步贯彻“调节优先、调判结合”工作原则的若干意见》).

135 Huawu Li and Yan Liu, ‘Reflection and Reconstruction: The Standardization of Civil Litigation Mediation’ (2017) 5 Hubei Social Science 150, 151 (李华武) 刘彦: 《反思与重构: 民事诉讼调解规范论》, 载于《湖北社会科学》2017 年第5 期, 第151页).

136 Weidong Chen ‘Litigation Explosion and Reactions from Courts in China’ in Ragna Aarli and Anne Sanders (eds), Courts in Evolving Societies: Sino-European Dialogue between Judges and Academics (Brill-Nijhoff 2020).

137 Opinions of the Supreme People’s Court (SPC) on Further Deepening the Reform of the Diversified Dispute Resolution Mechanism of the People’s Courts and Provisions of the SPC on Invited Mediation by the People’s Courts (promulgated in June 2016), cited in Dahlan (n 32) 10.

138 See further Yedan Li, Joris Kocken and Benjamin van Rooij, ‘Understanding China’s Court Mediation Surge: Insights from a Local Court’ (2018) 43 Law and Social Enquiry 58.

139 Wang (n 37) 26–27.

140 Dorsey and Whitney LLP, ‘China’s New Foreign Investment Law’ (6 August 2019) <https://www.jdsupra.com/legalnews/china-s-new-foreign-investment-law-67132/> accessed 15 October 2020.

141 Art 26 of the fil and Art 30 of the implementing regulations. See Ulrike Glueck, ‘Implementing Regulations of the Foreign Investment Law of the People's Republic of China and Supporting Documents Took Effect’ (1 July 2020) <https://cms.law/en/chn/publication/implementing-regulations-of-the-foreign-investment-law-of-the-people-s-republic-of-china-and-supporting-documents-took-effect> accessed 15 October 2020.

142 Alison Kaufman, ‘The “Century of Humiliation”, Then and Now: Chinese Perceptions of the International Order’ (2010) 25 Pacific Focus 1.

143 Dahlan (n 32).

144 See, e.g., Maximilian Mayer (ed), Rethinking the Silk Road: China’s Belt and Road Initiative and Emerging Eurasian Relations (Palgrave 2018).

145 Bruce Love, ‘China Belt and Road Disputes Set to Fuel Mediation’s Global Rise’ (Financial Times, 14 August 2019) <www.ft.com/content/71288fe2-9e6f-11e9-9c06-a4640c9feebb> accessed 20 October 2020.

146 Xi Jinping, On Building a Human Community with a Shared Future (Central Compilation and Translation Press 2019) 443.

147 Ibid 544; Xi Jinping, The Belt and Road Initiative (Central Compilation and Translation Pres 2019) 222–39.

148 Constitution of the People’s Republic of China (as amended on 11 March 2018) <https://npcobserver.files.wordpress.com/2018/12/PRC-Constitution-2018.pdf> accessed 1 October 2020.

149 Roberts, Moraes and Ferguson (n 12) 659.

150 Sun Tzu, The Art of War (《孙子兵法》) <www.goodreads.com/quotes/608916-the-greatest-victory-is-that-which-requires-no-battle> accessed 15 October 2020.

151 See insightfully Barry Buzan, ‘The Logic and Contradictions of ‘Peaceful Rise/Development’ as China’s Grand Strategy’ (2014) The Chinese Journal of International Politics 381.

152 Chinese Communist Party and the State Council, ‘Opinion Concerning the Establishment of the Belt and Road International Dispute Resolution Mechanism and Institutions’ (27 June 2018) <http://cicc.court.gov.cn/html/1/219/208/210/819.html> accessed 20 March 2020.

153 Wang (n 87) 1.

154 Memorandum of Understanding between the Government of the Italian Republic and the Government of the People’s Republic of China on Cooperation within the Framework of the Silk Road Economic Belt and the 21st Century Maritime Silk Road Initiative (2019) (Italy-China MOU), paragraphs IV and V cited by Wang (n 87) 11.

155 On the International Academy of the Belt and Road Initiative <http://interbeltandroad.org/en/about-us/#our_vision> accessed 15 January 2021.

156 Wang, Lun Lee and Li (n 38) 13.

157 A number of collaborative institutions have been set up in collaboration with the CCPIT in law schools in China to support the orderly development of the BRI. See Beijing Institute of Technology, ‘Overview of The Institute of International Disputes Prevention and Settlement’, (23 May 2019) <http://iidps.bit.edu.cn/xjjl/yw/index.htm> accessed 15 October 2020; Renmin Law School, ‘Law School Establishes International Business Dispute Prevention and Resolution Institute’ (24 April 2019) <https://news.ruc.edu.cn/archives/242764> accessed 15 October 2020.

158 Art 2(3) of the Singapore Convention on Mediation (n 33). On the subtle differences between conciliation and mediation, both structured negotiation processes assisted by a third-neutral party, see Merrills (n 1) 21 noting inter alia that although in practice distinctions between the two ‘tend to be blurred’, a ‘mediator generally offers proposals informally and on the basis of information supplied by the parties, rather than independent investigations’. See also for the different set of ICSID conciliation rules and the new ICSID’s proposed mediation rules in the particular context of investor-state disputes <https://icsid.worldbank.org/services/mediation-conciliation>accessed 15 January 2021.

159 Singapore Convention on Mediation (n 33).

160 Lucy Reed, ‘Ultima Thule: Prospects for International Commercial Mediation’ (2019) NUS Centre for International Law Working Paper 19/03 <https://cil.nus.edu.sg/publication/ultima-thule-prospects-for-international-commercial-mediation/> accessed 20 September 2020, 19–20.

161 Carrie Shu Shang and Ziyi Huang, ‘The Singapore Convention in Light of China’s Changing Mediation Scene’ (2020) 2 Asian Pacific Mediation Journal 63, 74–75.

162 Ibid 66.

163 United Nations Commission on International Trade Law Working Group III (Investor-State Dispute Settlement Reform), ‘Recommendations of China Regarding Investor-State Dispute Settlement Reform’ A/CN.9/WG.III/WP.177 (Thirty-Eighth Session, Vienna, 14–18 October 2019) <https://undocs.org/en/A/CN.9/WG.III/WP.177> accessed 15 October 2020.

164 Bilateral Agreement for the Promotion and Protection of Investments between the Government of the Republic of Colombia and the Government of the People’s Republic of China, UNTS Reg No I-51077 (signed 22 November 2008, entered into force 2 July 2013).

165 Chunlei Zhao, ‘State Mediation in a China–EU Bilateral Investment Treaty: Talking about Being in the Right Place at the Right Time’ (2018) 17 Chinese Journal of International Law 111, 113.

166 Shang and Huang (n 161) 84–85.

167 Wang (n 37) 27. This, and parallel initiatives, may perhaps signal a willingness to include foreign mediation institutions in the second group of mediation and arbitral institutions working in collaboration with the CICC in the future.

168 Love (n 145).

169 Zhang (n 39).

170 Guiguo Wang and Rajesh Sharma, ‘The International Commercial Dispute Prevention and Settlement Organization: A Global Laboratory of Dispute Resolution with An Asian Flavor’ (2021) 115 American Journal of International Law Unbound 22.

171 ICDPASO Announces Its Office Location (China Justice Observer, 27 November 2020) <www.chinajusticeobserver.com/a/icdpaso-announces-its-office-location> accessed 15 January 2021.

172 Zhang (n 39).

173 Ibid.

174 Ibid.

175 Wang and Sharma (n 170) 26.

176 Zhang (n 39).

177 Wang and Sharma (n 170) 22.

178 Zhang (n 39).

179 Wang and Sharma (n 170) 23.

180 Zhang (n 39).

181 Ibid.

182 Wang and Sharma (n 170) 25

183 Feldman (n 44).

184 Wilhem Grewe, The Epochs of International Law (De Gruyter 2000).

185 Sornarajah (n 62).

186 Wang (n 37) 28.

187 Ibid.

188 Roberts, Moraes and Ferguson (n 12) 676.

189 Dahlan (n 32) 9.

190 Wang (n 37) 27.

191 Anthea Roberts ‘Introduction to the Symposium on Global Labs of International Commercial Dispute Resolution’ (2021) 115 American Journal of International Law Unbound 1.

192 Mark Feldman, ‘“One-Stop” Commercial Dispute Resolution Services: Implications for International Investment Law’ in Julien Chaisse, Leïla Choukroune and Sufian Jusoh (eds), Handbook of International Investment Law and Policy (Springer 2020) 2.

193 Ibid.

194 Ibid.

195 Singapore Convention on Mediation (n 33) Preamble (emphasis added).