3rd Meeting of the Joint Judicial Expert Working Group on Commercial Dispute Resolution

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London, 4 June 2019

The third meeting of the UK-China Joint Judicial Expert Working Group on Commercial Dispute Resolution took place in London on Tuesday 4 June 2019. The Expert Working Group is an annual meeting of senior members of the British and Chinese judiciaries that has established strong people-to-people links by ensuring consistent participation of judges at each meeting of the group, with Judge Zhang Yongjian. With this year’s meeting being the first to take place in the UK, the Chinese delegation also spent a day learning about the workings of the Commercial Court and the various responsibilities of a commercial judge, as well as participating in a legal practitioners’ workshop hosted by Herbert Smith Freehills.

The Chinese delegation was led by Mr Zhang Yongjian, head of the No. 1 China International Commercial Court (CICC), senior judge of China’s Supreme People’s Court (SPC) and vice president of the No.1 Circuit Court. He was joined by Mr Lu Xiaolong, senior judge and deputy director general of the SPC’s International Cooperation Department; Mr Li Wei, senior judge of the SPC’s No.2 Civil Division; Mr Ding Guangyu, senior judge of the SPC’s No. 6 Circuit Court and the CICC; Mr Guo Zaiyu, senior judge of the SPC’s No. 4 Civil Division and the CICC; Ms Ren Ling, judge’s assistant of the SPC’s No. 4 Civil Division; and Ms Gao Yuan, Official of the SPC’s International Cooperation Department.

The Great Britain-China Centre (GBCC) was able to hold this year’s Expert Working Group thanks to the support of the UK Government’s Prosperity Fund China Business Environment (Rule of Law) programme, and was one of several ongoing activities to share UK legal expertise and best practice to support China’s ambitious commercial dispute resolution (CDR) reforms. The Expert Working Group is an outcome of the 3rd UK-China Judicial Roundtable in 2016, a core judicial dialogue activity organised annually by GBCC in partnership with the UK Judiciary and China’s Supreme People’s Court.

Joint Judicial Expert Working Group on Commercial Dispute Resolution

This year, the Expert Working Group was held at the Rolls Building, a judicial complex on Fetter Lane in the City of London that is the largest specialist centre for resolution of high-value financial, business and property litigation in the world. The Rolls Building houses the combined High Court business, property and commercial capability of the Chancery Division (including Bankruptcy and Insolvency), the Admiralty and Commercial Court and the Technology and Construction Court.

Lord Patrick Hodge, Justice of the UK Supreme Court, acted as host on the UK side, and was joined by Lady Justice Dame Vivien Rose, Judge of the Court of Appeal; Sir William Blair, former Judge in Charge of the Commercial Court; Sir Robin Knowles, Judge of the Commercial Court; Dame Sara Cockerill, Judge of the Commercial Court; Grace Karrass, International Strategy Advisor at the Judicial Office ; and Andrea Dowsett, Private Secretary to the Chancellor of the High Court.

The UK and Chinese delegations were also joined by Ms. Susan Finder, scholar in residence at Peking University’s School of Transnational Law; Merethe Borge MacLeod, GBCC executive director; and Shen Enhui, programme manager at the British Embassy Beijing.

The third meeting of the Expert Working Group focused on two broad themes: judging cases in a commercial court and multi-party cases, collective redress and class actions in the commercial and financial field.

The first topic during the morning session produced useful and practical exchange on the differences in the UK and China on the appointment of judges, the contribution of the legal profession, and minority opinions and appeals. The focus of the discussions, however, always came back to the importance of the needs of the users of the commercial courts. Sir Robin Knowles highlighted this as crucial due to the fact that commercial courts are chosen by the parties, and therefore must always strive to meet the needs of its users, including meeting expectations on efficiency, expertise and transparency.

The afternoon session saw robust discussion on issues such as procedures and case management, damages and compensation, opt-in and opt-out models, as well as commercial litigation funding. Justice Rose highlighted the many issues that still face the collective action regime in the UK, but that perseverance is needed due to its importance in the fight against illegal cartel activity. Judge Zhang raised the issue of triple damages, as well as collective action claims related to the baby milk powder scandal that took place in China in 2008, with discussion also touching on the issue of compensation from forced land sales as well as the thalidomide scandal in the UK.

Summing up, Lord Hodge highlighted the importance of continued cooperation and development of mutual understanding between both judges and the broader legal professions of the UK and China. He noted the difference in perception of minority or dissenting opinions in the two countries, suggesting that a stronger cultural emphasis on consensus in many East Asian countries may contribute to this, but that the UK Supreme Court is in the process to trying to make judgements as one court, as opposed to each justice coming to the same conclusion for different reasons.

The roundtable was closed by Lord Hodge and Sir William Blair for the UK and Judge Zhang Yongjian for the SPC. As well as sharing UK best practice, the day’s discussion also provided an opportunity to learn more about the new CICC from Judge ZHANG and colleagues.

Visit to the Commercial Court

On Wednesday 5 June, the Chancellor of the High Court Sir Geoffrey Vos, former High Court Judge Sir William Blair, and High Court Judge Sir Robin Knowles hosted the Chinese judges at the Rolls Building for a workshop on ‘a day in the life of a London Commercial Court judge’. This included observation of court cases, discussion of court procedures, and ‘behind-the-scenes’ sessions on case management and electronic filing systems.

In the morning, Sir Geoffrey, Sir William and Sir Robin covered the Civil Procedure Rules and the Commercial Court Guide, as well as providing insights into the development of a cast from commencement to trial, including case management. The judges were then joined by Audley Sheppard QC, the Chairman of the London Court of International Arbitration, who discussed the links between the commercial courts and the arbitral institutions, highlighting the supportive relationship between the two systems of dispute resolution, as well as singling out the UK’s Arbitration Act 1996 and the New York Convention on the Recognition and Enforcement of Arbitral Awards as key parts of an effective and modern alternative dispute resolution system.

After a working lunch hosted by the Chancellor of the High Court, the focus of discussions turned to the continuing development of the Business and Property Courts, particularly in the implementation of technology to make commercial court judgements quicker, cheaper and more efficient. 

The day concluded by looking at the work of the Judge in Charge of the Commercial Court, and examining permission to appeal and appeals processes, followed by a discussion of the day’s observations.

Legal Practitioner Workshop

On the final day of the Chinese delegation’s visit, GBCC held a legal practitioner workshop in cooperation with Herbert Smith Freehills, which provided an opportunity for the Chinese delegation to exchange views with UK-based lawyers, arbitrators and legal academics on the role of the courts in supporting arbitration in China and the UK.

The workshop was chaired by Lord Phillips of Worth Matravers, former UK Supreme Court President and former Lord Chief Justice, and was attended by select participants drawn from law firms, chambers and UK arbitration institutions, including: Julian Copeman and Naomi Lisney, partner and senior associate at HSF respectively; Ian Gaunt, president of the London Maritime Arbitrators Association (LMAA); William Godwin QC, barrister at 3 Hare Court and GBCC board member; Steven Thompson QC, barrister at XXIV Old Buildings and Chair of International Committee of Bar Council of England and Wales; Susan Finder, scholar in residence from Peking University; Dr Wu Qianlan, assistant professor from the University of Nottingham; Robin Hayden, policy and public affairs assistant, Chartered Institute of Arbitrators; and Merethe Borge MacLeod, GBCC’s executive director.

This workshop provided an opportunity for UK and Chinese legal and judicial practitioners to discuss issues and cases illustrating their experience on the role of the courts in supporting arbitration in China and the UK and other relevant jurisdictions. The workshop focused on the users’ perspective, in terms of how to develop a pro-arbitration environment and some of the challenges to achieving this in practice. Particular cases were chosen which enabled arbitrators, lawyers and judges to provide insight and share experience of their approach to dealing with complex and often conflicting issues.  

The first issue discussed was in relation to cargo claims, looking at clash of jurisdiction between Chinese Maritime Courts and London arbitration. Ian Gaunt, LMAA president, remarked that situations arising from delivery of cargo in China, which is alleged to be defective or short, is a source of considerable controversy between the Chinese courts and London arbitration institutions. In these cases the ship owner frequently tries to have the case decided by English arbitration pursuant to an agreement which it claims is incorporated into the bill of lading from an underlying charterparty. The English and Chinese law principles governing the incorporation of charterparty terms in bills of lading are markedly different and result in a clash of jurisdiction. In such cases the ship owner often seeks from the English court an anti-suit injunction in support of the English arbitration of the dispute. Participants discussed the case of LMAA awards being issued in London, based on the arbitration agreement said to have been incorporated in the bill of lading, and whether these will be enforced in China under the New York Convention.

During the following session, Judge Guo Zaiyu, senior judge of No. 4 Civil Division and judge on the CICC, discussed the anti-suit injunctions, looking at experience from China. His comments were particularly in relation to the anti-injunction case of Huatai Property Insurance Co Ltd Shenzhen Branch and Clipper Charter Company. Judge Ding Guangyu, senior judge of No. 6 Circuit Court and CICC, then covered the validity of arbitration agreements.

During the final session, William Godwin QC, barrister at 3 Hare Court and GBCC board member, discussed the enforcement of arbitral awards, commenting on the experience of China and England. He stated how the ability to enforce an arbitral award obtained in one jurisdiction against the assets of the other party in another is essential to the effectiveness of international arbitration. The New York Convention has for decades provided the basis for the enforcement of International arbitral awards but how the Convention works in practice differs substantially from place to place. He further elaborated on the recent English Court of Appeal decision in RBRG Trading v Sinocore International (2018) EWCA Civ 838, which highlighted the approach of the English courts to enforcement, in particular to the use of public policy. The workshop closed with a roundup of the day’s discussions, and participants considering what was next for arbitration reform and the role of the courts in both the UK and China.

 

 

 

 

Date posted: 28 June 2019

Categories: Judicial Dialogues, Rule of Law and Business Environment


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