Judge Shen Hongyu (沈红雨) of China's Supreme People's Court (SPC) talked about the SPC's response to the COVID-19 pandemic at a conference on 7 Nov. 2020, and introduced cross-border online dispute resolution (ODR) in the post-pandemic era.
Judge Shen is the deputy director of the Fourth Civil Division of the SPC and the judge of China International Commercial Court (CICC) of the SPC. This post is an introduction to her speech at the 5th Qianhai Fazhi Forum (前海法智论坛) held in Shenzhen, the theme of which is “China’s judicial experience in dealing with the COVID-19 pandemic and the prospect of the international commercial dispute resolution mechanism in the post-pandemic era”.
This post will highlight the opinions of Judge Shen on cross-border ODR in the post-pandemic era, and the solutions the SPC may carry out to promote such ODR mechanism.
I. What will the dispute resolution mechanism be like in the post-pandemic era?
At present, the global economy is contracting sharply, international trade and investment are declining, and the pandemic continues to spread around the world, all of which bring great challenges to the international commercial dispute resolution mechanism.
1. A convenient, low-cost, and diversified dispute resolution mechanism for cross-border disputes is highly expected.
As the international commercial disputes normally lag behind, the number of cross-border disputes will certainly increase in the post-epidemic era.
To deal with the situation, we shall respect the party autonomy. In other words, we shall provide them with a diversified dispute resolution mechanism that integrates litigation, mediation and arbitration, and insist on giving priority to mediation. Such alternative dispute resolutions are conducive to reducing the cost of dispute resolution, alleviating the conflicts between the parties concerned, promoting mutual understanding and amicable cooperation between the parties concerned, and safeguarding the long-term interests and good relations between the parties concerned as well.
2. A clear trend towards ODR emerges.
During the coronavirus pandemic, the judicial organs, arbitration, and mediation institutions of all countries have promoted the application of various technologies to different extents. Combining dispute resolution with science and technology has therefore become increasingly popular.
For example, from 3 Feb. 2020 to 4 Sept. 2020, Chinese courts had registered 4.543 million cases, held 0.606 million court trials, conducted meditation sessions for 2.032 million times, and served instruments for 12.903 million times, all online.
3. ODR has been accepted by the parties concerned.
During the coronavirus pandemic, the ODR mechanism clears the obstacles of the epidemic to justice, so that the parties concerned feel the ODR’s advantages of high efficiency and low cost.
In addition, while the issues such as identity verification of the parties concerned, smoothness of remote connection, clarity of evidence demonstration, and online signature being realized promptly, which narrows the difference between online and offline dispute resolution, the parties concerned are getting more willing to accept online dispute resolution.
Therefore, ODR is very much likely to lead the future of international commercial dispute resolution mechanism.
II. Challenges of ODR for cross-border civil and commercial disputes
1. Common difficulties in judicial assistance
Common difficulties in cross-border service, investigation, evidence collection, identification of foreign parties, and ascertainment of foreign laws still exist to different extents, which hinders the development of the ODR for cross-border disputes.
2. Incompetency to provide cross-border legal services
Dispute resolution procedural rules, commercial laws and norms vary greatly from different countries, while only a small number of legal practitioners are proficient in international rules and specialized in cross-border dispute resolution and they are in different levels of competencies.
3. Obstruction of data protection
The ODR for cross-border commercial disputes involves the transfer of data and materials under the laws of different countries during hearings, investigation and evidence collection. At present, all countries tend to adopt strict supervision in data transfer, especially cross-border data transfer. Therefore, it will become crucial to deal with the data protection standards of different countries.
III. How will the SPC conduct the ODR for cross-border disputes?
In Sept. 2020, the SPC promulgated the Guiding Opinions on Further Opening up the Service Guarantee of People's Courts (the Opinions, 关于人民法院服务保障进一步扩大对外开放的指导意见), which aims to improve the diversified mechanism for the international commercial dispute resolution, and to establish an online litigation service platform for the foreign parties to address the needs of the parties in cross-border disputes.
In accordance with the Opinions, the CICC is promoting the development of a one-stop online platform for diversified international commercial dispute resolution, which is expected to be completed by the end of 2020.
After the launch of the one-stop platform, the CICC will provide web page links to the following institutions or directories: the First International Commercial Court and the Second International Commercial Court of the SPC; five arbitration institutions and two mediation institutions; the Foreign Law Ascertainment Platform; and the Expert Directory of the SPC.
This platform will realize the online modes of the whole judicial process from case registration to dispute resolution, and is expected to effectively integrate litigation, arbitration and mediation.
Judge Shen believes that the CICC one-stop platform will provide a more fair, efficient, convenient and low-cost way for international commercial dispute resolution.
Contributors: Meng Yu 余萌
