UCLA Pacific Basin Law Journal

On July 1, 2018, China’s Supreme People’s Court published the “Provisions on Several Issues regarding the Establishment of International Commercial Courts.” The Provisions followed on the heels of a January announcement from the Central Leading Group for Comprehensively Deepening Reforms alluding to plans to establish a dispute settlement mechanism dedicated to China’s Belt and Road Initiative. The Provisions confirmed that what the press had swiftly branded the “Belt and Road Court” (BRC) will comprise three international commercial courts. Regardless of analysts’ discipline or affiliation, the response to the initial proposal, and now to the framework laid out in the Provisions, has been predictably binary, reflecting a longstanding division in interpretations of China’s commercial dispute resolution policies.

One branch, call it the sociological school, explains China’s policies with reference to the country’s history and culture. It contends that a direct line may be drawn from the Chinese people’s traditional aversion to litigation to their government’s preference for informal and private mechanisms for dispute resolution. With reference to the BRC, the causal narrative this school presents is one of continuity, contending that to understand the BRC, the basic explanatory trajectory must proceed from China outward to the international arena. An alternative branch, call it the political-economy school, argues that China’s policies toward international commercial dispute resolution respond to the same goals and imperatives as any other state. China’s policies are viewed as a self-interested response to factors such as commercial flows, security considerations, and development goals. Insofar as such matters are subject to constant flux, China’s dispute resolution policies are understood to be commensurately fluid. Here, the basic explanatory trajectory proceeds from the international arena inward into China.

As with all binaries, there is a middle way—an approach that interprets China’s commercial dispute resolution policies generally, and the newly established BRC in particular, as a product of continuity as well as change, influenced as much by internal dynamics as external imperatives. This Article adopts this middle way in order to identify and assess the principal tensions that have confronted, and will continue to challenge, the designers of what will amount to an international commercial court with Chinese characteristics.