The legal legitimacy of the China International Commercial Court: history, geopolitics, and law

Abstract

The academic contribution to the question of reforms to the China International Commercial Court (CICC) has essentially been based on classic comparative legal approaches. More precisely, two main schools of thought have emerged which compare the CICC with the international commercial courts established by Singapore (the Singapore International Commercial Court [SICC]) and Dubai (the Dubai International Financial Centre [DIFC]) because Chinese officials have presented these institutions as models for the CICC. This article breaks new ground by adopting a legal and geopolitical analysis. The article makes an interdisciplinary enquiry, which combines political-economy and sociological analysis. The political-economy approach emphasizes an institutional reform in line with China’s self-interested response to the commercial needs of Chinese investors along the Belt and Road Initiative. The sociological approach refers to China’s history and culture, appreciates China’s contemporary policies, and suggests that reform on mediation and arbitration under the CICC are likely to play the most prominent role at the new court. This article highlights the fundamental contradiction between geopolitics and judicial independence within the realm of the CICC, and argues that if the designers of the CICC treat SICC and DIFC courts’ procedural rules as templates for replication, any reform attempts are likely to fail, given that the CICC forms part of China’s geopolitical tactics rather than being a product of market orientation. Instead, this article argues that the CICC should be understood as a mechanism for domestic reform purpose and function.