SOME COMPARISONS CAN BE MADE BETWEEN THE OLD SILK ROAD and China’s contemporary Belt and Road Initiative (BRI), which has been dubbed “the New Silk Road”. Some interesting comparisons – revealing both similarities and variations – can also be made among the conventional and modern-day structures of dispute decision in China. This column examines the effect of China’s new worldwide industrial courts on disputes arising out of the BRI.
China has undertaken some of the huge reforms in current years to enhance the professionalism of its courtroom machine and, in particular, to boom the independence of the courts from local governments and nearby pursuits.
Despite these reforms and the growing professionalization of courts commonly, the courts in China nevertheless face many demanding situations. For example, there is still a massive hole among the professionalism of courts in major cities inclusive of Beijing and Shanghai and people in different parts of China, particularly in the rural areas. Another operational mission, mainly in a country as large as China, is the varying pleasant of judges in phrases in their revel in and expertise.
Partly as a result of these challenges, the courts in China have traditionally no longer been the primary choice for industrial dispute decision, in particular for the motive of resolving commercial transactions regarding foreigners and foreign investors. To date, the overwhelming majority of overseas funding contracts among Chinese parties and foreign parties have selected arbitration as the mechanism for resolving disputes.
The popularity of what we in common regulation jurisdictions describe as opportunity dispute decision mechanisms, which include arbitration and mediation, has to come as no surprise for those who are acquainted with China and its legal machine. The origins of the aversion to courts and their proceedings go again a long term before the modern-day technology and reveal a few exciting ancient parallels.
Commercial courts throughout China’s imperial past, the consensus in society become that litigation ought to be prevented in any respect fee. “Win your lawsuit however lose your cash” because the ancient pronouncing is supposed to have stated. The loss of self-assurance in reaching justice inside the formal court device became additionally associated with a deep-seated aversion towards ventilating personal disputes in public. “Do no longer wash your dirty linen in public” is an English saying that has an equal in Chinese: 家丑不可外扬 (for a discussion about some of these subject matters, see China Business Law Journal volume 2 difficulty nine: Alternative dispute resolution: mediation or conciliation?).
Of course, by means of assessment with the location in imperial China, the modern Chinese prison gadget has come an extended way. However, there’s still an aversion toward resolving disputes through public criminal complaints and a choice for personal manner along with arbitration or mediation.
Indeed, the usage of mediation as a very informal mechanism for resolving private disputes is an exercise in respect of which China has been a world leader. The success of mediation – both because the preliminary step in formal criminal court cases and also as a mechanism that happens independently of formal criminal complaints – is something that advanced an awful lot later in Western jurisdictions and is now a popular mechanism in commercial disputes within the West. Even so, mediation, as practiced in a Chinese context, is regularly very one of a kind from mediation as practiced in a Western context. By way of example, Western mediation historically adopts the idea of mediator neutrality – in other phrases, the mediator ought to be any individual who is impartial of and now not known to the disputing events.
By comparison, the Chinese have historically preferred to pick a mediator who is recognized to the parties and is therefore trusted through the events. A corollary of choosing a mediator who’s known to, and respected through, the events is that the mediator could be able to exert an effect as vital with a view to inspire the parties to reach a settlement. This very lively form of mediation – wherein the mediator plays an active function in suggesting settlement phrases and inspiring the parties to settle – is different from the Western technique where the mediator normally plays a passive function in assisting the parties to solve their dispute.