I: Background of Dispute Resolution in China

Introduction to Dispute Resolution in China

1 Scope and subject

To date, most legal studies on contemporary China, particularly in the English-language literature, have focused on substantive Chinese laws (both public and private laws) and their reforms, particularly in the context of China’s booming economy and its development of rule of law. Less attention has been given to the burgeoning disputes brought about in China by the economic boom and societal changes. This includes how the regulatory and institutional landscape of dispute resolution has developed in China, how it responds to the country’s socio-economic, socio-political, and socio-legal transformation, as well as how reforms on procedural law would impact on the rule of law development.

There are multiple means of dispute resolution in China, ranging from formal court adjudication, alternative dispute resolution (“ADR”) methods of arbitration[1] and mediation, to the means with more Chinese characteristics such as petitions (or “letters and visits”), and in some extreme cases, protests in the streets. In the rapidly expanding dispute resolution community in China, three major means have developed rapidly in the resolution of civil and commercial disputes. They are: (1) civil litigation (including commercial litigation), (2) commercial arbitration, and (3) civil mediation (both judicial and extra-judicial).

With respect to the division between civil and commercial disputes, in the past, China has never made a clear distinction between its various branches

of civil laws. Albert Chen, a leading Chinese law expert from a comparative law perspective, commented that civil and commercial matters did not come into the forefront of discussion until only several decades ago? The relevant Chinese legislation, such as China’s Civil Code most recently passed in 2020,[2] is equally applied to both civil or commercial matters in China. Commercial matters are not defined or discussed in the Civil Procedure Law either. China’s development of the market economy has contributed to the development of the concept of commercial law which closely relates to civil law practices in China, and there is a consensus among academics and practitioners that there is a fusion between civil and commercial law. It is for this reason that there is only one Civil Procedure Law in China, governing both civil litigation and commercial litigation in the Chinese courts, rather than a separate code of litigation for commercial lawsuits. Article 3 of the Civil Procedure Law discusses the scope of civil actions. It states that the Civil Procedure Law “[applies] to civil actions accepted by a people’s court regarding property or personal relationships between citizens, legal persons, and other organisations,” while actions with respect to governmental bodies are precluded. While mediation could be applied to both civil and commercial disputes, arbitration, as under the current version of the China Arbitration Law, applies only to commercial disputes and is largely considered a means of commercial dispute resolution.

The Chinese dispute resolution landscape could be described as analogous to a dynamic ecology. It consists of three primary (and established) civil and commercial dispute resolution systems in China (the systems of civil litigation, arbitration, and mediation), each having its own set of institutions and procedural rules, and in the meantime interacting with one another. As such, there are many “interactions” arising out of this

Introduction to dispute resolution in China 5 ecology—the interactions among different institutions, procedures, and individual systems—thus creating “hybrid” (and emerging) civil dispute resolution systems, such as the judicial mediation system,[3] the system of judicial enforcement of arbitration, and med-arb where mediation is combined with arbitration. This book also examines these hybrid mechanisms and their growing importance, which has either been ignored or not sufficiently addressed in the existing literature.

In sum, this book studies the three primary civil and commercial dispute resolution systems and their associated hybrid dispute resolution systems, which are collectively referred to as “civil dispute resolution” in this book. For ease of reference, throughout the book, the term “dispute resolution in China” is intended to refer to “civil dispute resolution in China,” and the two terms are used interchangeably.

2 Engagement of literature and empirical evidence

The civil dispute resolution landscape in China is concerned with the civil procedures and associated legal institutions that design and implement the civil procedures and hybrid civil procedures. Procedurally, it refers to the procedural laws that deal with specific areas of civil, commercial, or private rights (i.e., procedures of civil litigation, arbitration, and mediation). These laws include the Civil Procedure Law, the Arbitration Law, the People’s Mediation Law, and regulatory documents that govern judicial mediation, judicial enforcement of arbitration, and mediation combined with arbitration. Institutionally, civil dispute resolution landscape refers to the specific legal institutions where parties turn to for filing legal actions to enforce their civil, commercial, or private rights, including the institutional design of the people’s courts (in particular, their civil and commercial tribunals), arbitration commissions, and mediation committees.

In the past decade, many changes have taken place in the regimes for civil dispute resolution in China, such as their respective legal institutions, procedural laws and regulations. These include, for example, publication of the five Reform Outlines of the People’s Courts (1998-2023); amendments to the Civil Procedure Law in 2007, 2012, and 2017, respectively; internal split of China’s flagship arbitration institution, the China International Economic and Trade Arbitration Commission (“CIETAC”), in 2013; formation of the Chinese arbitration market and flourishing

of several leading locally based Chinese arbitration commissions in the 2010s;[4] promulgation of the People’s Mediation Law and Labor Dispute Arbitration and Mediation Law in the first decade of this century; as well as the establishment of the China International Commercial Court and promotion of the “One-Stop” Multi-tiered (Hybrid) Dispute Resolution Platform in 2018.

A significant body of literature on the laws of civil dispute resolution regime in China is technical and promotional. Many authors also practice as litigators, arbitrators, or mediators. Scholarship on civil dispute resolution frequently grows out of the legal practice. Updated analytical works in the field are still scarce. Even on the practical side, there is a lack of empirical work such as studies on to what extent the civil dispute resolution systems are actually utilized and how they are utilized. This book robustly seeks to improve upon this tradition of scholarship.

First, it will bring the literature on civil dispute resolution in China up to date. This book offers a most recent and comprehensive status quo analysis of the legal systems and developments in the field, particularly those of the late 2000s and throughout the 2010s, such as their respective regulatory design, legal and institutional framework, and reform. Existing analytical literature has either focused on one particular area of the civil dispute resolution regimes or has failed to cover the most recent developments in the late 2000s and the 2010s. Among the analytical works on civil dispute resolution in China, the most recent is Hualing Fu and Michael Palmer’s со-edited book in 2017, Mediation in Contemporary China: Continuity and Change. But the book is focused on mediation, with limited coverage on civil litigation and arbitration. Another recent and influential work is Margaret Woo and Mary Gallagher’s co-edited book in 2011, Chinese Justice: Civil Dispute Resolution in Contemporary China. The book focused on Chinese courts and civil litigation, with little coverage on mediation, and none on arbitration. Randall Peerenboom and Xin He’s co-authored article, Dispute Resolution in China: Patterns, Causes, and Prognosis, though with a more comprehensive coverage in

Introduction to dispute resolution in China 7 scope, was published more than a decade ago and did not address the law and development in the 2010s.[5]

Second, this book engages in intellectually stimulating dialogue with leading scholars in the Chinese civil dispute resolution field both at home and abroad. For example, on Chinese civil litigation, Yulin Fu, a leading Chinese domestic scholar on the topic, argued that the landscape of civil litigation requires not only the revamp of the civil procedural laws, but also effective reforms of the Chinese courts institutionally. Kwai Hang Ng and Xin He, authors of the leading empirical work on Chinese courts, argued that the Chinese court system is still more a political regime than a separate professional institution. Margaret Woo, one of the leading scholars on Chinese civil procedure in the West, observed the inevitable rise of collective actions amid the socio-economic transformation in China. She argued that the introduction of public interest litigation only resolved the issue of standing to sue, and the Chinese courts are still very cautious about the development of capacity building in the civil society that may potentially threaten the courts’ politically instrumental roles. Xianchu Zhang shared a similar view that China’s civil procedural law reform is essentially a reform with political agendas. In Hualing Fu and Michael Palmer’s treatise on Chinese mediation, they pointed out that disputes in China are regarded as undermining social stability; informal and extra-legal measures including both judicial and extra-judicial mediation are extensively used and politicized. Hualing Fu, one of the most influential minds on the Chinese legal system, further pointed out that judicial mediation carried out by Chinese courts is a distinctive feature of the Chinese civil justice system and is largely driven by political considerations. Carl Minzner worried about the massive mediation campaign in China as a “turn against law.” As Yulin Fu and Randall Peerenboom further argued, in the case of China, given the courts’ inability

to provide an effective remedy in some socio-economic cases, access to civil justice is necessarily limited.[6] This book will engage with all the above analytical works and other arguments to examine whether civil dispute resolution in China is politicized and how access to civil justice is limited. At the same time, since none of the existing literature by leading civil dispute resolution scholars has covered Chinese arbitration in much length, this book will fill in this gap.

Third, there are comparative studies such as frequent references to the global civil dispute resolution systems and to points of difference and distinctiveness in China’s approach to civil dispute resolution in the chapters of this book on each individual dispute resolution system. The concluding chapter will further refer to contemporary civil justice movements elsewhere in the world so as to provide a comparative framework for thinking about the likely trajectories of civil justice reform in China in the years to come. For example, the United Kingdom is one of the first contemporary movers for civil justice reform in the common law world which encouraged the use of ADR and settlement in civil trials. The ADR movement and the rise of civil mediation have been features of other established jurisdictions in both the East (such as Japan, Hong Kong, and Singapore) and the West (such as the United States). The civil dispute resolution systems and civil justice reforms of these jurisdictions are discussed in this book, so as to suggest comparative insights that China might gain from their experience.

Fourth, this book reflects analytically upon China’s civil dispute resolution from a law and development perspective in terms of its ability to adapt, and respond to, new contexts of the Chinese economic and political transitions as well as the new composition of the Chinese society; it also offers a rigorous analysis of the reform patterns and process. Details of the law and development perspective as a special feature of the analytical framework in this book will be further explained in the subsequent section.

Moreover, this book engages with the empirical evidence in great detail and contributes to the literature by examining empirical aspects of the entire civil dispute resolution landscape in contemporary China. It studies the extent to which various means of civil dispute resolution have been developed and adopted in practice in China in the most recent decade and provides detailed statistical insights.

First, on primary (and established) civil dispute resolution systems (such as civil litigation, arbitration, and mediation), it intends to empirically explore whether legalization and formalization (such as legislative enactment or amendment) have brought about significant increases in the caseload and handling institutions of the relevant dispute resolution system to enhance access to justice. Second, on hybrid (and emerging) civil dispute resolution systems (such as judicial mediation, judicial enforcement of arbitration, and mediation combined with arbitration), it seeks to empirically test whether a particular hybrid dispute resolution means has been widely adopted in resolving civil and commercial disputes in China and whether reform is necessary. To achieve these research outcomes, this book examines all relevant Chinese legal research databases in the civil dispute resolution field[7] to compile empirical statistical tables, charts, figures, and trends. At the time when the book manuscript was completed, the 2019 data had not been published yet. This book thus focuses on empirical evidence in the most recent decade covering the period from 2009 to 2018.

3 Law and development studies

Seidman argues that dispute resolution mechanisms, particularly civil procedures, form the basis of social structures. Civil dispute resolution is often linked with the study of the civil procedural system and civil justice reform and presents an interesting case study of law and development.

The development of the civil dispute resolution system is a microcosm of the overall legal developments in China. Scholars have described legal reforms in China in both the horizontal dimension of transplanting and subsequently adapting legal principles and practices from foreign jurisdictions, and in the vertical dimension of domestic top-down and bottom-up reforms. Previous works have traditionally framed the debate in terms of whether Chinese economic growth has occurred because of, or in spite

of, the development of formal legal structures in China or their deficiencies.[8] However, few of these studies have focused on civil procedures, and the underlying broader contextual developments (e.g., from socio-economic and socio-political angles) that have influenced the civil procedural reform. For example, China’s civil procedures and their respective legal institutions have undergone many changes in the most recent decade, due to both the need for inbound and outbound economic development, an increasing demand by China’s internal rule-of-law progress, as well as the external pressure by the international civil justice movement for enhancement of due process and access to civil justice in China.

3.1 Reform context analyses

A first feature of the law and development study that this book contributes to the literature is the contextual analyses.

Ng and He have argued that the social science context is an essential feature for an understanding of the Chinese dispute resolution regime. The dispute resolution systems do not develop in isolation, but they adapt, and respond to, changes to the broader Chinese socio-economic, socio-political, and socio-legal contexts. In the rapidly changing society of China, it is inadequate to understand the developments of the civil litigation, arbitration, mediation systems and their hybrid systems as mere amendments to laws and regulations, and updates in legal practices. There are multiple social science penetrating factors such as China’s economic, political, societal, administrative, and cultural conditions and changes. The contextual analyses help to provide more comprehensive insights into and objective knowledge of the contemporary Chinese civil dispute resolution regime. On the one hand, these penetrating factors bring about, or restrict, the direction of dispute resolution policy reform, the application of dispute resolution laws and regulations, and the way by which social agents utilize the dispute resolution systems. On the other hand, as Woo and Gallagher pointed out, the dispute resolution system itself is a driver for social change. It can reinforce existing structures

or adapt or reinterpret existing rules.[9] As such, reciprocally, the Chinese dispute resolution system is also capable of shaping China’s socio-economic and socio-political contextual environment. This book will speak to the literature by engaging a social-science-wise contextual analysis of the law and development of civil dispute resolution institutions and procedures, and reflecting analytically upon them as forms of societal transformers. It thus contributes to the rapidly growing literature that concerns the social science analyses of Chinese law from the civil dispute resolution perspective.

The contextual analyses also draw insights from the disparities among different Chinese regions. Although China employs a unitary regulatory style at the central state level, it is important to appreciate that different regions of China face unique socio-economic issues that shape how their civil dispute resolution mechanisms are reformed and utilized to resolve civil and commercial disputes. As we will see, cities in the economically developed regions of China have developed better legal infrastructures with more sophisticated and mature legal systems, while dispute resolution developments in the hinterland and the western part of China are relatively limited. Thus, economically better-developed areas in China, such as coastal cities and special economic zones, are more likely to welcome foreign trade and investment and consider themselves as “legal hubs.” The development of the courts and arbitration infrastructures in these jurisdictions and their willingness to embrace more innovations when making juridical and arbitral decisions are vivid examples.

3.2 Reform pattern analyses

A second feature which this book contributes is our understanding of the uniqueness of the reform patterns in civil justice in China.

China’s civil dispute resolution system is highly dynamic, yet restrained by the state. This controlled dynamism has led to the hybrid reform patterns of “both top-down and bottom-up” approaches to civil procedural reform. Reforms are often initiated by grievances of the civil society (through civil litigation and mediation) and of the market (through arbitration), when conflicts could not be properly dealt with by existing procedural mechanisms. This prompts a demand for reform from the bottom. In return, the

state implements a top-down regulatory response to address bottom-up demands by way of reform means which are exclusive to the state power.

Top-down responses can take various forms, mostly legislative (first type) or judicial (second type). The most direct way for the state to respond to civil and commercial conflicts in the society is to introduce new, or to amend existing, legislation through the National People’s Congress (“NPC”) or its Standing Committee (“NPCSC”). As the legislative organ at the central level, the NPC and NPCSC enjoy national legislative power for “basic systems of civil procedure such as litigation and arbitration,” among other areas.[10] The amendment of China’s Civil Procedure Law and the promulgation of the People’s Mediation Law both belong to this first type of top-down response.

Top-down response in the form of extensive legislative power is not always invoked. As we will see in the development path of China’s arbitration system and its related hybrid systems such as judicial review over arbitration and mediation combined with arbitration, formal legislation is easily outdated and often insufficient. Instead, judicial interpretations by the Supreme People’s Court (“SPC”) are made to either fill in the gap (where there is a legal vacuum), or to align with international standards (where the legislative pace has been too slow and there are outdated legislative provisions which harm China’s economic interests). These judicial interpretations have a qua-si-legislative effect and are binding on all Chinese courts. In the area of arbitration and its related hybrid dispute resolution which are more closely related to development arising from inbound and outbound economic transactions, judicial interpretations have become the primary and more flexible means for the state to proactively respond to new arbitration developments in the interests of China’s investment environment and the market in general. As such, top-down responses in the landscape of arbitration are provided mostly by this second type of response, that is, in the judicial form.

Sometimes, top-down reforms do not adequately address the issues in the society at the bottom, or may inadvertently create new conflicts that require new top-down reforms to redress. When the state fails to remedy, or decides against remedying these issues, the ball is then passed back to the society and the market to push for alternatives or other initiatives. The unique development path of China’s arbitration system where hundreds of Chinese arbitration commissions form the institutional arbitration market and compete for cases and quality development both among themselves

Introduction to dispute resolution in China 13 and with international arbitration market players is an example where bot-tom-up actors have pushed for other alternatives.[11] This book will examine all these reform patterns and recent development dynamics in China’s civil dispute resolution landscape, which have not been fully covered by the existing scholarship.

3.3 Reform process analyses

A third feature is the lack of central planning by the Chinese state— planning that might otherwise dictate the direction of the overall development of the dispute resolution landscape.

Although the state offers regulation and control, Chinese dispute resolution is also shaped by other factors: the market in general, the social issues (sometimes unforeseen by the state), and the general political milieu. Even in areas of civil justice reform where the state wishes to push forward (as seen in the five rounds of court reform), the state has so far failed to set out and ultimately carry out a holistic, coherent, and methodical scheme that accounts for all existing forms of civil dispute resolution procedures and their pertinent institutions, though recent judicial policies have tried to engage civil litigation, arbitration, and mediation in building a multi-tiered dispute resolution platform.

The rapid industrialization and urbanization developments in the 2000s, for instance, have created unforeseen social costs, which required the state to constantly create ad hoc solutions to resolve civil mass disputes such as those related to the community, environment, and labor. The Chinese state is less prepared to review the shortcomings of the civil justice system from the macroscopic level. The piecemeal, fragmented, and politicized development of the civil mediation regime in China (judicial versus extra-judicial; general versus special) is one of the consequences.

4 Aims of this book

This book examines the laws of and developments in the Chinese civil dispute resolution system over the past two decades, particularly the most recent decade.

As discussed previously, few of the existing studies have offered empirical insights into the civil dispute resolution regime in China, examined their broader socio-economic and socio-political contexts, looked into their interactions, analyzed their “law and development” uniqueness, and thought about comparative prospects of China’s civil justice reform in the future. This book will fill in all these gaps.

A first and direct aim is to bring the literature up to date, and this book offers a most recent legal status quo account of the Chinese civil dispute resolution landscape. Moreover, this book engages with the empirical evidence comprehensively. It examines the empirical side of the entire Chinese civil dispute resolution landscape in the last decade, such as how a particular dispute resolution system has developed and been practiced.

The second, third, and fourth aims are all related to law and development studies of the reform.

The second aim of this book is to present social science contextual analyses, and to probe into the wider socio-economic, socio-political, and other penetrating factors that have driven or restricted the reform of the civil dispute resolution systems and examine how they have done so.

Related to the second aim, the third and fourth aims are to study the reform patterns (whether top-down, bottom-up, or a hybrid) and reform processes (whether holistic or fragmented). Despite the familiar labels of civil procedures and civil justice reforms that other jurisdictions in the world might adopt, the patterns and process of the reform in civil litigation, arbitration, and mediation systems in China have evolved distinctively to adapt and respond to the unique Chinese socio-economic and sociopolitical contexts from which these systems have developed.

As the title of the book further indicates, the topics studied in this book also extend to “interactions” of different civil dispute resolution systems. Hence, the above aims are equally applied to study the hybrid civil dispute resolution systems in China, namely the issues that arise when institutions and procedures of civil litigation, arbitration, and mediation are blended and juxtaposed. As with the above aims, this book also examines the empirical status quo, the “law and development” uniqueness such as the reform contexts, patterns, and processes of the hybrid systems.

Lastly, this book aims to provide a comparative framework for thinking about likely trajectories of civil justice reform in China in the future. This book places the law and development of Chinese civil dispute resolution in the context of the wider international shifts of global civil justice movements. The book will refer to contemporary civil dispute resolution systems and reforms elsewhere to suggest comparative insights that China may gain from their experience.

5 An overview of this book

Structurally, this book is organized into four parts.

Part I is composed of two chapters and provides a macroscopic introduction to the book.

Chapter 1 provides the background to the study of civil dispute resolution in China. It introduces and explains the scope, subject, methodology, features, aims, overview, and structure of the book.

Chapter 2 studies the Chinese judiciary, the people’s courts (“courts”), and how they are involved in the various civil dispute resolution systems in China. At the institutional level, the courts are highly intertwined with the civil procedures. The courts are the sole platform in China to conduct civil litigation and enforce civil judgments.[12] The courts also exercise supportive and supervisory powers over arbitration and mediation proceedings. The courts cross paths with the laws of and developments in those various civil dispute resolution mechanisms in China. Over the past two decades, to improve the judicial infrastructure and enhance access to justice, the SPC has published five court reform plans (1998-2023). Chapter 2 discusses the structure, size, function, perception, and reform of the Chinese courts and lays an institutional foundation for the subsequent discussion on specific civil procedures and their reforms.

Part II consists of three chapters, with each exploring the laws of and developments in one of the primary civil dispute resolution systems in China—civil litigation (Chapter 3), arbitration (Chapter 4), and mediation (Chapter 5)—using a law and development approach.

Each of the chapters in Part II follows more or less similar themes and research questions. Each chapter first empirically assesses how a particular civil dispute resolution system is actually utilized in China in the most recent decade by studying the empirical statistical evidence. It then explains the regulatory background (legislative and institutional) that shapes the current system. Afterwards, it explains the reform, both legislative and institutional (other than those institutional reforms of the courts which have been examined in Chapter 2), that have taken place in the past decade, through a law and development study. In conducting the development analyses, two main research questions are examined. On the one hand, what are the penetrating factors (political, economic, social, cultural, etc.) that have influenced (driven or constrained) the reform? On the other hand, what are the patterns of reform (top-down, bottom-up, or a hybrid)? Finally, each chapter proposes a direction for future reform and analyzes the likely challenges. This standardized format is intended to enhance the readers’ comparative, contextual, and developmental understanding of the achievements and setbacks of the three major civil dispute resolution systems in the most recent decade in China. A synopsis of the three-component chapters under investigation by Part II of the book is set out as follows.

Chapter 3 concerns the civil litigation system in China. Recent years have seen rising numbers of consumer and environmental class actions in the civil litigation arena, and these bottom-up disputes prompted the revision of China’s Civil Procedure Law in 2012 to include a new cause of action, namely

“public interest litigation.” The reforms were shaped by the socio-economic and socio-political contexts of China. The institutional recognition of public interest litigation, particularly those involving devastating product liability and environment pollution cases, is, on the one hand, informed by the socio-political climate of promoting social harmony and social pluralism, and on the other hand, serves as an answer to the societal dissatisfaction. The development has presented a clear case of top-down responses to bottom-up demands by way of legislative amendment and presents a case study of evolution toward a more litigious Chinese society.

Chapter 4 looks into the arbitration system in China. The Chinese path to arbitration design and reform relies very much on control from the top (such as the “institutional arbitration monopoly”). But, at the same time, the system depends on competition for cases among hundreds of Chinese arbitration commissions to make arbitration an attractive option for dispute resolution from the bottom (such as the “institutional arbitration market”). As a stark contrast with civil litigation and mediation, there have not been recent revisions of China’s Arbitration Law. The progressive stance taken by the state toward arbitration has synthesized a unique socio-economic dynamic, with a top-down controlling element, while at the same time being reliant on and even accommodative of a Chinese arbitration market and vigorous bottom-up competition, with the dramatic CIETAC split in 2013 being the climax.

Chapter 5 analyzes the mediation regime in China. Contemporary mediation development in China, though rooted in Chinese cultural legacy, is a scattered regime (expressed in many different types, forms, and initiatives). Among the many extra-judicial types of Chinese mediation, people’s mediation and labor mediation stand out as two mainstream and legalized Chinese mediation systems for resolving domestic civil disputes. Despite the increasing institutionalization and formalization in the past decade, people’s mediation and labor mediation have been instrumentalist in nature, used more to prevent the expression of disagreements than to deal with the socio-economic conflicts. The Chinese path to mediation development, though led from the top, is a checkered one, restricted by socio-political policy orientations.

Part III of the book again consists of three chapters and turns to the interactions between litigation, arbitration, mediation, and the hybrid civil dispute resolution systems—judicial mediation as interaction between civil litigation and mediation (Chapter 6), judicial enforcement of arbitration as interaction between civil litigation and arbitration (Chapter 7), and med-arb as interaction between arbitration and mediation (Chapter 8).

Although the topics covered are unique to each of the hybrid dispute resolution systems, Part III, as with Part II, also follows more or less similar

1

Although the Civil Procedure Law as amended in 2012 added several provisions on arbitration, it was not significant.

Introduction to dispute resolution in China 17 themes and research questions in the component chapters. The research questions which Part III puts forward across all the three chapters are as follows. It first empirically tests whether a particular hybrid dispute resolution mechanism is widely used in China and how it is used. It then explains to what extent they are regulated. Afterwards, it analyzes the reform to penetrate the contextual factors that have driven or constrained the reform and probes into the development trajectory (patterns of reform), before each chapter concludes with the prospective challenges for future development. A synopsis of the three-component chapters under investigation by Part III of the book is set out as follows.

Chapter 6 investigates judicial mediation in China. The development of judicial mediation has shown itself to be much politicized—particularly so during the Third Five-Year Court Reform Outline (2009-2013). However, in spite of the fluctuations injudicial policy, legislatively, China has always displayed inclination, and perhaps favoritism, toward mediation, as China values social stability over the rule of law. The role of mediation within the civil procedure system in China has remained prominent throughout, but its scale has been decreased since the period of the highly politicized and prioritized approach in the late 2000s and early 2010s, moving toward a more nuanced approach after 2013. The precaution in mediatory justice is a typical case study on the importance of rebalancing the rule of law in the context of China’s economic and societal transitions.

Chapter 7 examines judicial review over arbitration in China. In its dual role as China’s Supreme Court and a de facto rule-maker, the SPC has published an impressive body of judicial interpretations to recognize the importance of being arbitration-friendly. The pace has been especially quickened in the past couple of years as China is required to deal with dispute resolution needs arising from the development of the Free Trade Zone and the Belt and Road Initiative. Chinese lower level courts, especially those in the economically developed regions, have also been proactive in supporting arbitration in some of the most controversial cases. Those liberal rulings provide helpful clarification on issues of public policy, foreign institutional arbitrations seated in China, as well as granting limited recognition to ad hoc arbitration in China’s Free Trade Zones.

Chapter 8 explores the med-arb system in China. Due to the legislative vacuum, med-arb practices in China are highly disparate and have been challenged by international due process standards when arbitral awards following Chinese med-arb procedures seek enforcement outside China. Recent reforms on med-arb are, on the one hand, propelled by regulatory competition among China’s leading arbitration commissions, and on the other hand, driven by the SPC’s promotion efforts as med-arb is increasingly applied in cross-border contexts in the Belt and Road arbitration market. The reform of med-arb is increasingly important to China’s rule of law and internationalization, as it is a much relied-on commercial dispute resolution mechanism in a jurisdiction without an established due process tradition, yet, with a booming economy and burgeoning commercial disputes, both domestically and in cross-border contexts.

The similar themes and research queries in Parts II and III are designed to help readers to engage in a comparative understanding of the law and development of the three civil dispute resolution systems and the three hybrid civil dispute resolution systems that form the subject of this book. In the meantime, the format is not intended to be too detailed to amount to a microscopic description of each dispute resolution system or hybrid dispute resolution system. In short, the emphasis is on the development context, trajectory, and reform path of each individual dispute resolution or hybrid dispute resolution system.

Part IV (Chapter 9) finally concludes the entire book. It reflects on the uniqueness, promises, and pitfalls of the Chinese civil dispute resolution landscape, and predicts the prospects of China’s civil justice reform in the future.

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Zhongcai Fa ({ФЖй) [Arbitration Law] (promulgated by the Standing Committee of the National People’s Congress, August 31, 1994, effective September 1, 1995). http://www.npc.gov.cn/wxzl/wxzl/2000-12/05/content_4624.htm.

Zhonghua Renmin Gongheguo Min Fadian (Ф^ЛКйїПИКЙД) [Civil Code of the People’s Republic of China] promulgated by the National People’s Congress, May 28, 2020, effective January 1, 2021). http://www.npc.gov.cn/npc/ c30834/202006/75ba6483b8344591 abd07917e 1 d25cc8 .shtml.

  • [1] Views as to whether arbitration is a form of ADR are divided among Chinese academics. Fan Yu, leading expert on ADR in China, argues that ADR includes any alternatives to litigation that resolve disputes, and hence, arbitration is a form of ADR. On the other hand, the China Chamber of International Commerce (“CCIC”) holds that arbitration is not a form of ADR. To the CCIC, ADR only includes means of dispute resolution other than arbitration and litigation. See Gu Weixia, “Looking at Arbitration through A Comparative Lens: General Principles and Specific Issues,” The Journal of Comparative Law 13, no. 2(2018): 168. 2 Randall Peerenboom and He Xin, “Dispute Resolution in China: Patterns, Causes, and Prognosis,” University of Pennsylvania East Asia Law Review 1, no. 4 (2009): 1-61.
  • [2] Chen Albert H.Y., An Introduction to the Legal System of the People’s Republic of China, 5th ed. (Hong Kong: LexisNexis, 2019), 314. 2 Zhonghua Renmin Gongheguo Minfa Dian [Civil Code of the People’s Republic of China] promulgated by the National People’s Congress, May 28, 2020, effective January 1, 2021), http://www.npc.gov.cn/npc/c30834/202006/ 75ba6483b8344591abd07917eld25cc8.shtml. 3 Ibid., art. 2. 4 Chen, An Introduction to the Legal System of the People’s Republic of China, 317. 5 Minshi Susong Fa (|3i|Wf iifHj) [Civil Procedure Law] (promulgated by the National People’s Congress Standing Committee, June 27,2017, effective July 1,2017), arts. 3, http:// en.pkulaw.cn/display.aspx?id=6d9ce94e57cee7afbdfb&lib=law. 6 Zhongcai Fa (f‘l'LA/A) [Arbitration Law] (promulgated by the Standing Committee of the National People’s Congress, August 31, 1994, effective September 1, 1995), arts. 2-3, http:// www.npc.gov.cn/wxzl/wxzl/2000-12/05/content_4624.htm. 7 The term “landscape” is inspired by Marc Galanter. See Marc Galanter, “Reading the Landscape of Disputes: What We Know and Don’t Know (and Think We Know) about Our Allegedly Contentious and Litigious Society,” UCLA Law Review 31, no. 1 (1983): 12. 8 See discussions in Chapter 3. 9 See discussions in Chapter 4. 10 See discussions in Chapter 5.
  • [3] See discussions in Chapter 6. 2 See discussions in Chapter 7. 3 See discussions in Chapter 8. 4 See discussions in Chapter 2. 5 See discussions in Chapter 3. 6 See discussions in Chapter 4. 7 Ibid.
  • [4] Such as the Beijing Arbitration Commission (ВАС) in Beijing, and the post-CIETAC-split Shenzhen Court of International Arbitration (SCIA) in Shenzhen. See discussions in Chapters 4 and 8. 2 See discussions in Chapter 5. 3 See discussions in Chapter 8. 4 See, for example, Michael Moser, ed., Dispute Resolution in China, 2nd ed. (New York: Juris Publishing, 2020); Michael Moser, ed., Business Disputes in China, 3rd ed. (New York: Juris Publishing, 2011); Tao Jingzhou, Arbitration Law and Practice in China, 3rd ed. (The Hague: Kluwer Law International, 2012). 5 Fu Hualing and Michael Palmer, eds., Mediation in Contemporary China: Continuity and Change (London: Wildy, Simmonds & Hill Publishing, 2017). 6 Margaret Y. K. Woo and Mary E. Gallagher, Chinese Justice: Civil Dispute Resolution in Contemporary China (Cambridge: Cambridge University Press, 2011).
  • [5] Peerenboom and He, “Dispute Resolution in China.” 2 Fu Yulin, “Zou xiang xiandaihua de minshi susong chengshi” /Ё|и]ЗШ’Ь(ЬЙ!)К,- xC (presentation, Hong Kong, October 26,2015). 3 Ng Kwai Hang and He Xin, Embedded Courts: Judicial Decision-Making in China (Cambridge: Cambridge University Press, 2017), Chapters 1 and 4. 4 Margaret Woo, “The Dynamism of China’s Civil Litigation System,” in The Dynamism of Civil Procedure—Global Trends and Developments, eds. Colin B. Picker and Guy I. Seidman (New York: Springer, 2016), 151. 5 Zhang Xianchu, “Civil Justice Reform with Political Agendas,” in The Development of the Chinese Legal System: Change and Challenges, ed. Yu Guanghua (Oxford: Routledge, 2011), 253-271. 6 Fu and Palmer, Mediation in Contemporary China, 4. 7 Ibid. See also Fu Hualing and Richard Cullen, “From Mediatory to Adjudicatory Justice: The Limits of Civil Justice Reform in China,” in Chinese Justice: Civil Dispute Revolution in China, eds. Margaret Woo and Mary Gallagher (Cambridge: Cambridge University Press, 2011), 25-57. 8 Carl Minzner, “China’s Turn Against Law,” American Journal of Comparative Law 59, no. 4 (2011): 963.
  • [6] Fu Yulin and Randall Peerenboom, “A New Analytical Framework for Understanding and Promoting Judicial Independence in China,” in Judicial Independence in China: Lessons for Global Rule of Law Promotion, ed. Randall Peerenboom (Cambridge: Cambridge University Press, 2010), 115. 2 See discussions in Section 3.1 of Chapter 9. 3 See discussions in Section 5.1 of Chapter 5 and Section 3.1 of Chapter 9. 4 See discussions in Section 5.2 of Chapter 5, Section 6 of Chapter 6, and Section 3.1 of Chapter 9.
  • [7] These databases include Chinese Supreme People’s Court Annual Report ('i'BIx i'.'.'iii'r)> China Law Yearbook (fi’IShiftTSt), China Statistical Yearbook (‘PM^ifif’TSs), China Labor Statistics Yearbook ^), China’s Environmental Adjudication White Book Annual Report on International Commercial Arbitration in China ('PBBKWÎ ftWii^ÆJRcr), Chinalawinfo and arbitration statistics compiled by Chinese leading arbitration institutions. 2 Guy I. Seidman, “Comparative Civil Procedure,” in The Dynamism of Civil Procedure— Global Trends and Developments, eds. Colin B. Picker and Guy I. Seidman (New York: Springer, 2016), 3-5. 3 Randall Peerenboom, “What Have We Learned about Law and Development? Describing, Predicting, and Assessing Legal Reforms in China,” Michigan Journal of International Law 27, no. 3 (2006): 824.
  • [8] Donald Clarke, “Economic Development and the Rights Hypothesis: The China Problem,” American Journal of Comparative Law 51, no. 1 (2003): 89; Tom Ginsberg, “Does Law Matter for Economic Development? Evidence from East Asia,” Law and Society Review 34, no. 3 (2000): 826-856. 2 Inbound economic development refers to the further marketization waves within China. 3 Outbound economic development refers to China’s outgoing investment moves such as the Belt and Road Initiative. See discussions in Chapters 4, 7, and 8. 4 See, for example, since Chinese President Xi Jinping took up the office judicial reform has been reconsidered in light of Xi’s rule of law. Judicial mediation is no longer prioritized but has been treated more cautiously. See discussions in Chapters 2 and 6. 5 For example, med-arb reform has been much pushed by the international due process pressure. See discussions in Chapter 8. 6 Ng and He, Embedded Courts, 17-28.
  • [9] Margaret Y. K. Woo and Mary E. Gallagher, “Introduction,” in Chinese Justice: Civil Dispute Resolution in Contemporary China, eds. Margaret Y. K. Woo and Mary E. Gallagher (New York: Cambridge University Press, 2011), 3. 2 See discussions in Chapters 3-8 on the sections entitled “Development Analyses.” 3 Matthew Erie, “The New Legal Hubs: The Emergent Landscape of International Commercial Dispute Resolution,” Virginia Journal of International Law 59, no. 3 (2020), 225-298. 4 See discussions in Chapters 2, 4, 6, and 7. 5 See discussions in Chapters 3 and 5. 6 See discussions in Chapter 4.
  • [10] Lifa Fa (jZ’Sft) [Legislation Law] (promulgated by the National People’s Congress, March 15, 2015, effective March 15, 2015), art. 8, http://en.pkulaw.cn/display. aspx?cgid=9073d435178b9633bdfb&lib=law. 2 See discussions in Chapter 3. 3 See discussions in Chapter 5. 4 See discussions in Section 2.1 of Chapter 2. 5 See discussions in Chapters 4, 7, and 8.
  • [11] See discussions in Chapters 4 and 8. 2 See discussions in Chapter 6, in particular, Section 3.2. 3 See discussions in Chapters 5 and 6.
  • [12] See discussions in Chapter 3. 2 See discussions in Chapters 4 and 7. 3 See discussions in Chapters 3, 5, and 6.
 
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