The Prospects of China International Courts: Belt and Road Initiative (BRI

The Prospects of China International Courts: Belt and Road Initiative (BRI)
by (Name)
The Name of the Class (Course)
Professor (Tutor)
University Name
The City and State Where University is Located
Date
Introduction
China is one of the countries whose future prospects appear promising. Strategically positioned in the East, China has risen to become one of the global economic giants. To further expand economic and political interests, China has made key decisions regarding investing in other countries (Gu 2018). One of the key projects that the government is undertaking is the Belt and Road Initiative. This project has led to interactions between China and a host of other countries. These interactions have led to key successes but have also opened a portal of disputes that China has to deal with.
In historical China, mediation and arbitration are considered some of the best ways to deal with conflicts. Considering the unique cultural and socio-political ideologies employed in different countries, China has found itself engaged in disputes as a result of the BRI project (Cai and Godwin 2019). In most cases, China has employed the use of mediation and arbitration to solve any of the disputes that arose. However, with time, it became apparent that these measures alone were not enough. There was a need to establish international courts to deal with serious disputes. Consequently, two International Commercial Courts were established in 2018 to help deal with international disputes (Cai and Godwin, 2019).
This paper will focus on these courts and their role in solving disputes emanating from BRI projects. The paper will start by providing a brief overview of the BRI projects. The paper will then progressively tackle the traditional methods that have been used to solve BRI disputes, the role of China International Commercial Courts in mediating BRI disputes, the precedence that the International Commercial Courts have set, the likely future improvements, and a focus on the international commercial expert committee which is an integral part of the International Commercial Courts.
The Belt and Road Initiative (BRI)
The belt and road initiative are a massive infrastructural project aimed at fostering trade and increasing international cooperation. The project is the brainchild of Chinese president Xi Jinping. It aims to establish infrastructural projects (most notably road networks) that will span from East Asia through the Middle East to Europe (Hughes et al. 2020). The massive project was rolled out in 2013 and is seen by international relations experts as a way for China to continue exerting its economic influence and propagating its political ideologies (Hughes et al. 2020). The project is currently ongoing, with the expected completion time being 2049 (Hughes et al. 2020). The planners of the project aim for its completion to coincide with the 100th anniversary of the People’s Republic of China, which will also take place in 2049 (Hughes et al. 2020).
The project also encompasses other forms of infrastructure, such as ports, railways, and the laying of optical fiber cables. The project has already involved more than 140 countries, with more set to join the list. At the time of launch, only ten countries agreed to be part of the BRI initiative by signing a memorandum of understanding with the People’s Republic of China (Hughes et al. 2020). However, with time, the project has expanded to include more countries from Europe, Africa, and other parts of the world. The agreements between the People’s Republic of China and other nations concerning BRI are often informal, with little information given to the public (Mollengarden 2019). Due to the massive nature of the project, it is inevitable for some disputes to occur. Additionally, since many countries are involved, the modes of dispute resolution employed must be multi-dimensional.
Traditional Dispute Resolution for BRI Disputes
There are several fundamental issues that arise during the propagation of the BRI projects. It is important to note that these projects often involve high capital value and involve state interests. Since these projects are carried out across different nations, the legal frameworks significantly shift (Gu 2018). Most countries have a legal framework that is way different from that of China (Cai and Godwin, 2019). Further, most countries also have diverse cultural, political, and investment views and beliefs that are different from those of the People’s republic of China. Consequently, these factors heighten the probability of disputes. These factors also make the dispute resolution process complicated. Disputes involving the BRI are often threefold. These are disputes between commercial parties involved, conflicts between the investor and the state, and disputes between state and state.
The most common disputes are commercial ones. When such disputes arise, they are legal hurdles that become apparent. Take, for instance, a situation where the dispute is taken to court within a foreign country, and the decision is supposed to be implemented by China. According to China’s legal framework, such decisions can only be implemented if there is a treaty or common understanding with the foreign country (Cai and Godwin, 2019). Another way for the decision to be implemented lies in the reciprocity principle. Here, China may implement the decision if the foreign country involved has previously implemented decisions from Chinese courts. The lack of an elaborate framework to settle disputes concerning the BRI projects poses the main hurdle to the effective propagation of the projects.
The lack of an elaborate legal framework to deal with disputes emanating from BRI prompted China to find other ways to settle these disputes. By far, the most widely used method is arbitration. Most of the countries that China works with are parties to the New York Arbitration Convention. Therefore, China resulted to using arbitration and mediation to ensure that disputes are speedily dealt with so that projects are not derailed. A dispute often leads to stalled projects and may lead to a massive loss of revenue (Cai and Godwin, 2019). Despite the measures adopted by China, some disputes, especially those of enormous nature, cannot be effectively dealt with using arbitration and mediation methods.
China International Commercial Courts role in Solving BRI Disputes
As noted in the previous section, mediation and arbitration practices are not enough to address high-profile disputes. Consequently, as the BRI projects continue to gain great traction worldwide, China needs to establish international courts that can provide legal recourse on complex international commercial cases. Experts in international law have argued that for China to handle these disputes effectively, international judicial support is appropriate (Cai and Godwin, 2019). Such judicial support will ensure fair and equal protection for both Chinese and foreign interests.
Appreciating the unique role played by China in international investments, a group commissioned by the central committee of the Communist party of China developed a document on various ways to handle international disputes. The document was developed in 2018 and was the first of its kind. Particularly, the document focused on effective ways to solve international disputes emanating from BRI projects. The above document was established in January 2018. In June of the same year, the concept of international courts to solve high-profile disputes involving countries other than China was developed (Mollengarden 2019). The committee that came up with the recommendations was chaired by the chief justice of the supreme people’s court. Consequently, two international courts were launched in June 2018.
Experts argue that by establishing the two courts, China aims to lay a foundation upon which high-profile cases can be efficiently dealt with (Cai and Godwin, 2019). one of the international courts is based in Shenzhen. This court was established to handle disputes that come from the maritime silk road. This silk road is one of the key components of the BRI. The other international court, which is based in Xian, was formed with the intention of handling disputes that are related to the land-based silk belt. These two international courts claim that their key guiding philosophy is to be one place where all major international disputes will be dealt with. Since China is planning on more aggressive political and economic expansion, the courts may further expand to deal with other complex matters relating to international disputes.
With these two courts in place, disputes that cannot be addressed through mediation can be brought here for determination. The courts use the principles of litigation, arbitration, and mediation to help solve these conflicts. Since international law must be well understood by the courts, a committee was established to deal with matters relating to such law. This committee, referred to as the international Expert committee, plays a key role in advising the court concerning key issues (Chaisse and Xu 2022). According to the provisions of the statutes forming the courts, these experts cannot act as judges. However, in some cases, they might be called upon to act as mediators. With their advanced knowledge of foreign/ international law, these experts are best placed to break down issues emanating from a dispute and effectively act as the middle party (Mollengarden 2019).
To further stamp the importance of this committee, the court can consider its decisions in two main ways. First, if the mediation process achieves a truce where the disputing parties are satisfied, then the court can stamp the mediation outcomes as a settlement that is recognized by the court (Zadi, Hameed, and Chaudhary 2021). Secondly, international commercial court judges may rely on the mediation report to determine the case before them (Zadi, Hameed, and Chaudhary 2021). Consequently, the international expert committee can be seen as the oil that lubricates the engine of the International Commercial Courts in China.
While looking at the future prospects of Chinese International Commercial Courts and their role in resolving BRI disputes, several issues arise. First, although the courts claim to be a one-stop avenue for all international disputes relating to BRI, it has no jurisdiction over disputes between investors and state or those involving state and state. Therefore, the courts can only deal with civil matters. Experts argue that this situation may make the courts less attractive and unable to attract a steady flow of cases (Chaisse and Xu 2022). There is also another caveat that makes the court less attractive to investors. One of the clauses forming the court indicates that the International Commercial Courts can only provide legal recourse in disputes involving at least 300 million Chinese Yuan (Chaisse and Xu 2022). Investors may lack the confidence to invest with the Chinese since they are not assured whether there will be legal recourse in case of a dispute. The issue is particularly disadvantaging for investors since there is no way to tell whether a future dispute will meet the threshold set by the Chinese International Commercial Courts. In light of these observations, it might be important for these courts to lower the threshold. Lowering the threshold would make the court more inclusive and ensure that any complex BRI disputes are effectively addressed.
The other caveat in the Chinese international courts regards the provisions on language to be used in the courts. Court proceedings can only be carried out in a language that is common within the People’s Republic of China (Zadi, Hameed, and Chaudhary 2021). This provision is somewhat discriminatory to foreign nationals who may want to present a case to the courts. The courts provide that evidence (written) used in the courts may be presented in English or another language. However, this provision does not appear to be helpful if the court proceedings can only be carried out in the Chinese language. Therefore, while the courts promise to solve high-profile disputes, they have employed some self-defeating mechanisms (Zadi, Hameed, and Chaudhary 2021). Hopefully, the court will allow for the use of more international languages in the future.
Setting the Precedence for Contemporary and Future Dispute Resolution
It is only about four years since the Chinese International Commercial Courts were formed. As discussed in the previous sections, these courts promise to streamline the process of providing legal recourse for international commercial disputes. Further, the section highlighted that the courts have some key limitations. Despite these limitations, the courts are doing a great job of setting precedence for future dispute resolution. First, the supreme nature of the court ensures that it acts as the final resort to dispute resolution. The Chinese International Commercial Courts are part of the supreme court of China.
Consequently, the decisions made by this court are final. Unlike other levels of dispute resolution, for example, mediation, where a dispute can be taken to another court, the decisions made by this court are binding. The finality of the decisions not only helps the parties to have a legal recourse but also saves time that would have been sent if the disputes had no element of finality (Chaisse and Xu 2022). Consequently, unlike the other methods of dispute resolution for conflicts involving BRI projects, these courts are setting great precedence for final resolutions.
Secondly, like with other supreme jurisdictions around the world, the determination of the current cases sets a precedence for future issues. Take an example of where two commercial parties have a dispute that is way similar to another dispute that has already been determined by the international courts for justice. In such a case, the case is likely to take less time since the previous bench of judges has already set precedence. While it is almost impossible to have cases that are identical, there are some elements of cases that will be identical. Evidence has shown that judicial precedence is particularly helpful in determining complex cases (Chaisse...