Wed 05 May 2021
By Dr Xue BAI
With the increased cross-commercial exchanges and foreign investments, the dispute resolution mechanisms in China have undergone significant changes in recent years. China’s approach to commercial dispute resolution and its possible implications to the global norms of dispute resolution has been the subject of debate and the question of whether China is simply a rule follower or a rule shaper in the international legal order has been the centre of attention.
CIBEL Centre member Associate Professor Kun Fan, in her latest article “Adaptations and Paradigm Shift: Recent Developments of Commercial Dispute Resolution Mechanism in China” argues that the changes of Chinese dispute resolution mechanism demonstrate that China is making efforts to balance the globalization and localization of its commercial arbitration and mediation practice.
This article highlights the recent developments of China’s commercial dispute resolution mechanism and illustrates China’s two-way adaptations towards transnational standards as a result of the constant interplay between global formal regulation and local informal practice, predictable regulation and flexible practice, and the clashes between the increasingly cosmopolitan professional culture in the arbitration community and deeply rooted demands of national culture.
In the article, Associate Professor Kun Fan highlights that to make China a more attractive hub of arbitration, China is making selective adaptations to bring its practice into line with transnational standards. Non-state actors also exert an essential influence on arbitration reforms in China. On the other hand, she also points out that China is increasingly participating in the shaping of transnational norms. China has an alternative vision of numerous aspects of global and domestic governance including legal norms, values and contexts. For instance, the Chinese approach to dispute resolution is featured by informalism, de-proceduralisation and flexibility, focusing more on the parties’ interests than sending them home with a winner and a loser. Such informal norms and institutions often function as a means of dispute resolution alternative to state law and formal organizations in non-Western countries, and challenges the “Americanization of international commercial arbitration”. The one-stop diversified international commercial dispute settlement mechanism established by the China International Commercial Courts (CICCs) is an example that demonstrates how China exerts influence towards transnational standards.
This article will be published in the forthcoming McGill Journal of Dispute Resolution. You can read the full text of the article here.