Research On Litigation Issues Of China International Commercial Court

With the in-depth promotion of the “the Belt and Road” initiative,the number of various international commercial disputes,such as cross-border finance and trade,infrastructure engineering,international logistics and other fields,is increasing.For this reason,based on the judicial guarantee provided for the "the Belt and Road" initiative and the construction trend of international commercial courts abroad,China,as the initiator of the "the Belt and Road" initiative,has also moved in line with the trend to plan the layout of international commercial courts in China.It is undeniable that in order to distinguish from other domestic courts,China International Commercial Court has indeed made many improvements in jurisdiction,trial procedures,recognition and enforcement of judgments.However,it has been five years since the establishment of the two Chinese international commercial courts,but they have achieved little results.The number of cases is still rare,the recognition of the parties to international commercial disputes is not high,and the international influence is still limited,which is contrary to the original intention of their establishment.Why the promotion process of China International Commercial Court is like a snail’s pace,and the support for the "the Belt and Road" initiative is slow,has become a difficult problem that domestic scholars have been looking forward to overcoming.After in-depth investigation of the intertwined links between the "the Belt and Road" initiative and China International Commercial Court,this thesis believes that the essence of China International Commercial Court is actually an international public product urgently needed by the "the Belt and Road" initiative in the field of international commercial dispute resolution.Therefore,this thesis will study the litigation issues of China International Commercial Court based on the theory of international public goods and its related technologies.Specifically,it will study its jurisdiction,trial procedures,recognition and enforcement of judgments and so on.At the same time,on the basis of providing theoretical support for the construction of China International Commercial Court,this thesis intends to select famous international commercial courts abroad and summarize the common construction practice of such courts,in order to explore the commonalities of the construction of international commercial courts and jointly provide an innovative way for the construction of new international commercial courts in China in the future.The purpose of this thesis is to explore the theoretical principles of the International Commercial Court born in the dimension of international law and the future reform path of China International Commercial Court.Through the comparison of international commercial courts within and outside the region,this thesis explores the theoretical basis for the international commercial court.The full text is divided into five chapters.The first chapter is the theoretical basis of China International Commercial Court.In this chapter,this thesis mainly studies the theoretical issues of China International Commercial Court,which is also the most basic and important but still outstanding issues in the construction of China International Commercial Court,including the operation theory of China International Commercial Court,its internal relationship with the "the Belt and Road" initiative and its positioning in the judicial system.This chapter is divided into two parts.Firstly,it expounds the theory of international public goods.Although the international commercial court is an integral part of the domestic judicial system of various countries,its establishment is deeply affected by the international commercial flow.Therefore,the establishment of an international commercial court must abandon domestic protectionism and try international commercial cases from a neutral perspective.From this perspective,the international commercial court is actually a "quasi International Court" and an international public product in the judicial field.For this reason,the theory of international public goods is the most suitable theory for the construction of international commercial court.In view of this,from the beginning to the end,this thesis will take the relevant theories of international public goods as the analysis tool to examine various problems of China International Commercial Court litigation.Therefore,combing the theory of international public goods,including its theoretical system and framework,is the first thing to be explained in this thesis.Secondly,it analyzes the theoretical applicability of international public goods to the international commercial court.As mentioned above,since the China International Commercial Court is an international public product in the judicial field of the "the Belt and Road" initiative,how to improve the litigation of the China International Commercial Court,solve various problems in the litigation,and how to maintain the flesh and blood connection with the "the Belt and Road" initiative should be demonstrated with the relevant theories of international public products.The second to fourth chapters of this thesis are the research on the specific litigation problems of China International Commercial Court.In this three chapters,the production chain of "supply production output" in the production process of international public goods is matched with the litigation chain of "jurisdiction trial judgment recognition and enforcement" in the litigation of China International Commercial Court,in order to study various litigation problems of China International Commercial Court in stages and throughout.The second chapter focuses on the jurisdiction of China International Commercial Court.To analyze the distribution of jurisdiction of the international commercial court,the primary issue is to clarify the current situation of the allocation of jurisdiction of China International Commercial Court,including the basis for the establishment of jurisdiction and the types of jurisdiction of the international commercial court.At the same time,we should also analyze the characteristics of international commercial disputes accepted by China International Commercial Court and its impact on the determination of jurisdiction.On this basis,this thesis believes that there is a mismatch between the existing jurisdiction and judicial needs of China International Commercial Court,which is mainly reflected in the fuzziness of "international commercial nature",the binding of agreement jurisdiction by the principle of practical connection,and the lack of sufficient response to the new Internet International Commercial disputes.Third,discuss the issue of jurisdiction under the perspective of international public goods.From the perspective of the supply of international public goods,this part puts forward that the jurisdiction of China International Commercial Court,as a manifestation of the supply of international public goods in the judicial field,is unbalanced with the demand boundary for judicial products of the parties to international commercial disputes in the "the Belt and Road" initiative,which is the fundamental reason for the various problems of the jurisdiction of China International Commercial Court.The research content of the third chapter focuses on the trial research of China International Commercial Court.The specific research content is the problems and disputes existing in the trial procedure.According to the general procedure of trial,this chapter is divided into the pre-trial procedure;The mode of trial,that is,diversified dispute resolution;And Discussion on whether an appeal procedure should be established.First,pre litigation procedure.The pre trial procedure mainly focuses on the composition of the judge team during the trial of cases,whether foreign lawyers can appear in court as lawyers,evidence adducing and the identification and application of foreign laws.These issues are the guarantee of fair trial of disputes and the most important embodiment of the internationalization and specialization of China International Commercial Court.Second,diversified dispute resolution mechanisms.This thesis focuses on how to really integrate the three dispute resolution methods of litigation,arbitration and mediation in the dispute trial of China International Commercial Court,that is,litigation arbitration cooperation and litigation mediation cooperation.China International Commercial Court has been trying to become a diversified dispute resolution platform,but after many years,this concept has not really been realized.The apparent reason for this problem lies in the exclusion of foreign arbitration and mediation institutions by diversified dispute resolution mechanisms.The third is the discussion on whether an appeal mechanism should be established.Generally speaking,foreign international commercial courts try international commercial cases of first instance,and after the end of the first instance,the parties can choose to appeal as a secondary remedy.Based on foreign experience,many domestic scholars also advocate that China International Commercial Court should establish an appeal mechanism.This thesis does not agree with this view and demonstrates it.Finally,using the public participation technology in the production of international public goods,this thesis analyzes the crux of the trial procedure of China International Commercial Court.The fourth chapter focuses on the recognition and enforcement of the judgment of China International Commercial Court.This chapter also studies the recognition and enforcement of the judgment of China International Commercial Court from the perspectives of commonness and individuality.One is commonness,that is,the general basis for the recognition and enforcement of Chinese court decisions.At present,whether the judgments of China International Commercial Court and foreign courts can be recognized and enforced is still judged by whether there is an international treaty concluded by China or whether there is a mutually beneficial relationship between the two countries.However,for China International Commercial Court,this commonality standard is still insufficient.The second is personalized analysis.This thesis uses the last stage of international public goods,that is,the value output of products,to analyze the problems in the recognition and enforcement of judgments by China International Commercial Court.This thesis holds that as the judicial product of China International Commercial Court,the judgment should use the cooperative incentive technology of international public goods theory to realize the effective output of the concept of socialist rule of law with Chinese characteristics.The fifth chapter focuses on the future optimization path of China International Commercial Court litigation.This chapter is divided into three parts,mainly focusing on the problems raised in the above-mentioned jurisdiction,trial procedures and recognition and enforcement of judgments,and based on the corresponding theory and analysis technology of international public goods,to explore how China International Commercial Court should optimize all links of the litigation chain,and how to reasonably learn from foreign experience on the basis of adhering to the concept of socialist rule of law with Chinese characteristics.