CICC Case Tracking Series - 01: China’s First International Commercial Court (As of 20190821)

This post kicks off a new series covering the introduction of every case accepted by China International Commercial Court (CICC). As the first post of the series, it will elaborate on the cases that had been accepted by the First International Commercial Court as of 21st August 2019.

As mentioned in the previous posts, according to the report on CICC official website, [1] as of June 2019, the First and Second International Commercial Court had accepted 11 cases. The Second and First International Commercial Court held a public hearing of their first case on 29 and 31 May 2019 successively. In addition to the aforementioned two public-heard cases, there are some other cases where the tribunals have already conducted pre-trial conference, inquiry and other procedures. As of 21 August 2019, I have collected information on 10 of these cases. [2]

This post will introduce the cases already accepted by the First International Commercial Court, and those accepted by the Second International Commercial Court will be covered in the second post.

We’ve found that the First International Commercial Court has accepted five cases, which could be divided into two groups: The first group has two unrelated cases, which will be introduced separately. Correspondingly, the other three cases in the second group are related, so I will discuss them together.

Related Posts on CICC Case Tracking:

I. The first group of cases:

Case 1：An unjust enrichment dispute between Asia Optical Co., Ltd., Dongguan Xintai Optical Co., Ltd., and Fuji Film Co., Ltd. (domiciled in Japan), Fujifilm (China) Investment Co., Ltd., Fujifilm (China) Investment Co., Ltd. Shenzhen Branch, Fujifilm Optoelectronics (Shenzhen) Co., Ltd.( 亚洲光学股份有限公司、东莞信泰光学有限公司与日本富士胶片株式会社、富士胶片（中国）投资有限公司、富士胶片（中国）投资有限公司深圳分公司、富士胶片光电（深圳）有限公司不当得利纠纷案)

1. Case number: unknown

2. Jurisdiction basis: The case might be accepted based on Article 2 (2) or Article2 (5) of the “Provisions of the Supreme People’s Court on Several Issues Regarding the Establishment of the International Commercial Court” (最高人民法院关于设立国际商事法庭若干问题的规定) (Provisions on CICC), [3]i.e. being transferred from a high people’s court to China’s Supreme People’s Court (SPC) or brought up from a high people’s court by the SPC.

According to my investigation, the case might initially be accepted by Nanshan Primary People’s Court of Shenzhen City, Guangdong Province (the case number is “(2016) Yue 0305 Min Chu No. 7345” ([2016]粤0305民初7345号[4]). The defendant contested the jurisdiction and argued that it should be accepted by the higher court, i.e. Shenzhen Intermediate People’s Court. With the acceptance of the defendant’s jurisdictional challenge, the Nanshan Primary People’s Court transferred the case to the Shenzhen Intermediate People’s Court. After hearing the case (the case number is “(2017) Yue 03 Min Chu No. 375” [2017]粤03民初375号案件[5]), the Shenzhen Intermediate People’s Court dismissed the suit. Subsequently, the plaintiff appealed to the Guangdong High People’s Court. The Court held that according to the relevant provisions of jurisdiction, the case does not fall within the jurisdiction of the Shenzhen Intermediate People’s Court. Therefore, the Guangdong High People’s Court quashed the ruling of the Shenzhen Intermediate People’s Court and conducted the first instance trial of the case (the case number is “(2017) Yue Min Zhong No. 2256” ([2017]粤民终2256号[6]).

Now that the case has been brought before the CICC from the Guangdong High Court, it means the acceptance of the first instance of the case has been brought up to the SPC. In other words, the case has been transferred from the primary people’s court to the intermediate people’s court, and to the high people’s court, and all the way up to the SPC.

3. Members of the collegial panel: unknown

4. Pre-trial conference: unknown

5. Mediation: unknown

6. Court trial: unknown

7. Issue: unknown

8. Applicable law: unknown

9. Judgment: unknown

Case 2: A product liability dispute between the plaintiff Guangdong Bencao Medicine Group Co., Ltd. and the defendant Bruschettini S.R.L., Italy(原告广东本草药业集团有限公司与被告意大利贝思迪大药厂（Bruschettini S.R.L.）产品责任纠纷案)

1. Case number: (2019) Zui Gao Fa Shang Chu No. 1 ((2019)最高法商初1号)

2. Jurisdiction basis: unknown

3. Members of the collegial panel: Judge Zhang Yongjian (张勇健) (presiding judge), Judge Gao Xiaoli (高晓力), Judge Xi Xiangyang (奚向阳), Judge Sun Xiangzhuang (孙祥壮), Judge Ding Guangyu (丁广宇)

4. Pre-trial conference: The pre-trial conference of the case was held on 29 April 2019, which was the first time that the CICC held a pre-trial conference in accordance with the provisions of “Procedural Rules for China International Commercial Court of the Supreme People’s Court (For Trial Implementation)” (最高人民法院国际商事法庭程序规则(试行)). Judge Zhang Yongjian and Judge Xi Xiangyang presided over the conference.

5. Mediation: Both parties consented on the pretrial mediation to be conducted by members of the International Commercial Expert Committee of the SPC. The two parties expressed their opinions on the selection of the mediators, the time limit of the mediation, the date from which the mediation starts, the scope of the expert members to act as a mediator and the date of determination on the mediators. At the same time, for effectively handling the case, the two judges and the parties also broadly determined the date of hearing of the case if the mediation fails. [7] I have not yet found any reports on how the mediation had actually taken place.
6. Court trial: The hearing was held on 31 May 2019.

It was the second time the CICC had held a hearing. Two days before this hearing, on 29 May, the Second International Commercial Court held the first hearing after the CICC was established (see the other post).

7. Issues: This case involved product recall obligations and liability for damages. [8]

8.Applicable law: unknown

9.Judgment: unknown

II. The second group of cases:

Case 3: Application for confirmation of the validity of an arbitration agreement between the applicant Luck Treat Limited (domiciled in the British Virgin Islands) and the respondent Zhong Yuan Cheng Commercial Investment Holdings Co., Ltd. (domiciled in Shenzhen) (Case number: “(2019) Zui Gao Fa Min Te No. 1” ([2019]最高法民特1号))( 申请人英属维尔京群岛运裕有限公司与被申请人深圳市中苑城商业投资控股有限公司申请确认仲裁协议效力案)

Case 4: Application for confirmation of the validity of an arbitration agreement between the applicant Beijing HK CTS Grand Metropark Hotels Management Co., Ltd., Shenzhen Metropark Hotel Co., Ltd. and the respondent Zhong Yuan Cheng Commercial Investment Holdings Co., Ltd. (domiciled in Shenzhen) (Case number: “(2019) Zui Gao Fa Min Te No. 2” ([2019]最高法民特2号)(申请人北京港中旅维景国际酒店管理有限公司、深圳维景京华酒店有限公司与被申请人深圳市中苑城商业投资控股有限公司申请确认仲裁协议效力案)

Case 5: Application for confirmation of the validity of an arbitration agreement between the applicant Newpower Enterprises Inc. (domiciled in the British Virgin Islands) and the respondent Zhongyuan Cheng Commercial Investment Holdings Co., Ltd. (domiciled in Shenzhen) (Case number: “(2019) Zui Gao Fa Min Te No. 3” ([2019]最高法民特3号)( 申请人英属维尔京群岛新劲企业公司与被申请人深圳市中苑城商业投资控股有限公司申请确认仲裁协议效力案)

Case 3, 4 and 5 mentioned above are related, so I will introduce them all together:

1. Case number: (2019) Zui Gao Fa Min Te No.1, 2 and 3, respectively

2. Jurisdiction basis: The cases might be accepted based on Article 2(5) of the Provisions on CICC, namely, being cases that the SPC considers appropriate to be tried by the International Commercial Court.

These three cases were to confirm the validity of foreign-related arbitration clauses. According to “Provisions of the Supreme People’s Court on Issues Concerning the Reporting and Approval in the Judicial Review of Arbitration Cases” (最高人民法院关于仲裁司法审查案件报核问题的有关规定), such foreign-related arbitration cases are generally accepted by the intermediate people’s court. In the handling of the judicial review of foreign-related arbitration cases, where, upon review, any intermediate people’s court is to determine the invalidity of an arbitration agreement, the intermediate people’s court shall report and request approval by the high people’s court within the jurisdiction; Where, upon review, the high people’s court is to approve the request, it shall report and request approval by the SPC. However, this time, the SPC directly heard the case without waiting for the report by local courts. In fact, there are no clear stipulations in the Provisions on CICC saying that such cases fall within the jurisdiction of CICC. The purpose is to reduce any possible delay due to the tiered reporting mechanism, said the SPC. I believe that it is the discretion of the SPC to exercise its relevant jurisdiction under Provisions on CICC. This indicates that major cases concerning the validity of foreign-related arbitration clauses are likely to be accepted by the CICC in the future.

3. Members of the collegial panel: Judge Zhang Yongjian (presiding judge), Judge Gao Xiaoli, Judge Xi Xiangyang, Judge Ding Guangyu, and Judge Shen Hongyu (沈红雨)

4. Inquiry: On 26 March 2019, Judge Zhang Yongjian and Judge Xi Xiangyang inquired of the parties. It was the first time that the CICC had formally conducted an inquiry, [9] which is a special procedure in judicial review of arbitration cases established under Article 11 of the “Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Judicial Review of Arbitration Cases” (最高人民法院关于审理仲裁司法审查案件若干问题的规定).

5. Issues: After the respondent Zhong Yuan Cheng Commercial Investment Holdings Co., Ltd. (domiciled in Shenzhen) applied for arbitration at Shenzhen Court of International Arbitration, and prior to the first hearing of the arbitral tribunal, the other parties applied to the courts to confirm that there was no arbitration clause between the parties respectively in Case 3, 4 and 5 described in this post.

6. Applicable law: Chinese law (all parties chose Chinese law to be the governing law by agreement). It is worth noting that the lawyers of the parties argued through citing international law, foreign laws, and case precedents, and they also submitted the reference materials in English.

7. Judgment: At the end of the inquiry, the parties expressed their willingness to negotiate which dispute settlement method to adopt. However, the final judgment has not yet been found.

References:

[1] 国际商事纠纷解决的新方案与新发展 ——第一国际商事法庭成立一周年座谈会，2019-07-17

http://cicc.court.gov.cn/html/1//218/149/156/1275.html

[2] 最高法院国际商事法庭已受理一批国际商事纠纷案件，2018-12-29 http://cicc.court.gov.cn/html/1/218/149/192/1150.html

[3] Provisions of the Supreme People’s Court on Several Issues Regarding the Establishment of the International Commercial Court, Article 2. The International Commercial Court accepts the following cases:(2)first instance international commercial cases which are subject to the jurisdiction of the higher people's courts who nonetheless consider that the cases should be tried by the Supreme People's Court for which permission has been obtained;(5)other international commercial cases that the Supreme People’s Court considers appropriate to be tried by the International Commercial Court. http://cicc.court.gov.cn/html/1/219/208/210/817.html

[4] [2016]粤0305民初7345号, http://wenshu.court.gov.cn/content/content?DocID=e31430b1-1313-45d3-ba62-a885011bd041

[5] [2017]粤03民初375号案件, http://wenshu.court.gov.cn/content/content?DocID=4524742c-d57a-4e6e-9ca0-a85100f09f90

[6] [2017]粤民终2256号, http://wenshu.court.gov.cn/content/content?DocID=aaa2e321-138f-4c35-9d10-a8d400a9082b

[7] http://cicc.court.gov.cn/html/1/219/208/210/1217.html

[8] 最高人民法院第一国际商事法庭首次公开开庭审理案件，2019-05-31

http://cicc.court.gov.cn/html/1//218/149/192/1247.html

[9] 最高人民法院第一国际商事法庭就三起申请确认仲裁协议效力案件进行正式询问，2019-04-09

http://cicc.court.gov.cn/html/1/218/149/192/1205.html

Contributors: Yu Chen 陈雨