Mark Feldman is a Professor of Law at the School of Transnational Law of Peking University and an Arbitrator of SCIA.
Shenzhen and the Future of International Arbitration
Prof. Mark Feldman
I met the President of the Shenzhen Court of International Arbitration (SCIA), Liu Xiaochun, at the School of Transnational Law of Peking University (STL) holiday party in 2011. The Founding Dean of STL, Jeffrey Lehman, introduced us. I had arrived in Shenzhen earlier that year, as I transitioned to STL following five years of service at the U.S. Department of State, where I represented the United States in investment treaty arbitration. At the time, I knew that Shenzhen was looking to establish a global reputation in a number of areas, including international dispute resolution. But I did not know, at the time, how closely I would work with the SCIA over the next decade, or indeed how much international arbitration in Shenzhen would transform during that time.
A few months after the STL holiday party, I visited, with several STL colleagues, the offices of the SCIA’s predecessor, the China International Economic and Trade Arbitration Commission (CIETAC) South China Commission, where Liu Xiaochun then served as Deputy Secretary-General. Dr. Liu led a tour of the offices, including an impressive gallery of photographs illustrating the history of the institution, which was founded in 1983, only a few years after the establishment of the Shenzhen SEZ. As Dr. Liu later observed, this arbitration institution in Shenzhen was the first mainland China arbitral institution to include foreign nationals on its panel of arbitrators and to have an award enforced pursuant to the New York Convention(across the border in Hong Kong).
Later in 2012, I attended the launch of the SCIA, together with a number of STL colleagues. Throughout the 2010s, dozens of STL students would intern at the SCIA, and a number of STL graduates ultimately would accept positions there.
One of those STL graduates, Chi Wenhui, currently serves as legal counsel in the SCIA’s International Cooperation and Development Department and already has demonstrated leadership in that position, including a role as keynote speaker at a 2019 SCIA event on China-Africa Cooperation on Arbitration. Working alongside Chi Wenhui as legal counsel in the SCIA’s International Cooperation and Development Department is Deng Kaixin, who has played a central role in the planning and design of the SCIA events in which I have had an opportunity to participate. My communications with the SCIA very often are communications with Deng Kaixin.
Looking back on almost a decade of collaboration with the SCIA, two developments, for me, stand out. The first is the SCIA’s consistently expanding interest in investment treaty arbitration. The second is the SCIA’s commitment to building relationships, globally, with leading institutions and individuals in the international arbitration community.
Regarding investment treaty arbitration, I have had a number of opportunities to play a supporting role in the SCIA’s development of expertise in the area. In 2016, at the SCIA’s offices, I was able to share some thoughts on my five-year experience representing a government in international investment disputes. Also in 2016, I collaborated with the SCIA on the development of a roster of arbitrators specializing in international investment disputes.
The SCIA’s strong interest in investment arbitration was further demonstrated that year by the issuance of a set of updated arbitration rules, which confirmed that the SCIA was prepared to administer disputes between foreign investors and States.
In 2017, the SCIA reconfirmed its strong interest in investment arbitration by hosting a major conference on Chinese companies and investment arbitration. I chaired the first session on “Latest Developments in Investment Arbitration,” which assembled an extraordinary set of individuals working in various capacities in the investment arbitration community, including senior government officials, leaders of arbitral institutions, practitioners, and scholars.
In particular, the session included the following participants: Meg Kinnear, Ma Yuchi, Yao Jun, Matthew Hodgson, Sun Huawei, Peter Malanczuk, Chiann Bao and Li Yuwen. In a later session at that event, I was able to provide commentary alongside Fei Ning and Julien Chaisse. The program attracted hundreds of registrants.
The participation, at the SCIA’s 2017 event, of the Secretary-General of the International Centre for Settlement of Investment Disputes (ICSID), Meg Kinnear, was followed, in 2018, by the conclusion of a cooperation agreement between ICSID and the SCIA. The agreement provides for reciprocal use of hearing facilities and services in China and the United States; ICSID’s 2018 annual report highlighted the conclusion of the agreement.
The cooperation agreement with ICSID illustrates not only the SCIA’s interest in investment arbitration, but also the SCIA’s larger efforts to build relationships with leading institutions and individuals in the international arbitration community. Building such relationships not only enhances the SCIA’s global reputation but also supports the core Belt and Road Initiative (BRI) policy goal of connectivity. As stated in the Joint Communique of the Leaders Roundtable of the Belt and Road Forum for International Cooperation: “We stand for strengthening physical, institutional, and people-to-people connectivity among all countries.”
With respect to institutional and people-to-people connectivity, the SCIA unquestionably has advanced such policy goals over the past decade.
As one example of the SCIA developing connectivity between institutions, in 2018 I participated in a 3-day training organized by the SCIA and the International Chamber of Commerce (ICC), held in Shenzhen, on international commercial arbitration. The event attracted more than 20 foreign legal experts, more than 30 prominent lawyers working on foreign-related business matters in Guangdong province, and more than 500,000 viewers online. Prior to that event, in 2017, the SCIA had signed a memorandum of understanding with the ICC, which strengthened cooperation between the two institutions. The SCIA also has signed a memorandum of understanding with the Singapore International Arbitration Centre, again to advance international cooperation in the area of dispute resolution services.
The SCIA also strengthened its relationship with the United Nations Commission on International Trade Law (UNCITRAL) when jointly hosting in Shenzhen a commemorative event to mark the 60th anniversary of the New York Convention. UNCITRAL’s decision to support the commemorative event in Shenzhen was significant. Participants again included senior government officials, leaders of arbitral institutions, practitioners and scholars. The Secretary of UNCITRAL, Anna Joubin-Bret, and Dr. Liu each delivered a keynote address.
The SCIA’s efforts to advance connectivity extend to the United States. In 2018, I participated in an SCIA-organized event held in New York, which assembled prominent US-based members of the international arbitration community, including practitioners, scholars, and leaders of arbitral institutions such as the American Arbitration Association and JAMS. Notably, the SCIA’s cooperation with JAMS has expanded to include the development of a Sino-American panel of international arbitrators.
The SCIA’s call for contributions, “Four Decades of Shenzhen SEZ - My Story of International Arbitration at SCIA,” is retrospective in nature, but on the 40th anniversary of the Shenzhen SEZ I also would like to offer a few forward-looking thoughts. With respect to international dispute resolution, the global center of gravity continues to shift toward Asia. BRI infrastructure projects are centered in Asia, which means that BRI infrastructure disputes will be centered in Asia. Leadership in dispute resolution rulemaking - including third party funding, enforceability of judgments, and online dispute resolution - increasingly occurs in Asia. There also will be expanding opportunities for interactions in Asia among a range of providers of dispute resolution services, including arbitral institutions, mediation institutions, international commercial courts, and the multilateral Asian Infrastructure Investment Bank (which devoted its 2019 Yearbook of International Law to international dispute resolution).
The opportunities for interactions between providers of litigation, arbitration and mediation services are particularly good in Shenzhen, given that one of the two tribunals of the China International Commercial Court (CICC) - which has emphasized the importance of integrating dispute resolution services as part of its “one-stop” model - is located in Shenzhen. Indeed, the connections between the CICC and Shenzhen extend well beyond the location of the CICC tribunal. Shen Sibao, who serves as Chairman of the SCIA Council, and Peter Malanczuk, who serves as a Member of the SCIA Council, also serve on the CICC’s International Commercial Expert Committee. Members of the International Commercial Expert Committee are authorized to support CICC decision-making in a number of respects, including by providing mediation services as well as guidance on questions of international or foreign law. My STL colleague Susan Finder also serves on the International Commercial Expert Committee, providing an additional significant connection between the CICC and Shenzhen. I also would note that the relationship between Shenzhen and the SCIA has been further strengthened by the recent merger between the SCIA and the other leading Shenzhen-based arbitral institution, the Shenzhen Arbitration Commission.
The SCIA’s Shenzhen location not only increases opportunities for interactions with a range of providers of dispute resolution services, but also reinforces the SCIA’s entrepreneurial spirit. Shenzhen is a young, technology-oriented city that embraces rapid innovation. That orientation has driven the SCIA’s ambitious rulemaking and relationship building and will ensure that the SCIA continues to thrive, notwithstanding increasingly significant challenges to the global economy generally and international dispute resolution specifically. The accelerating pace of change is intimidating, but ultimately favors Shenzhen and the SCIA.
 Joint Communique of the Leaders Roundtable of the Belt and Road Forum for International Cooperation (15 May 2017), para. 10.
Prof. Mark Feldman
2017年，深国仲举办了主题为“一带一路：中国企业与投资仲裁”的中国华南企业法律论坛大型研讨会，再次彰显了其期望开拓国际投资仲裁的信心。我主持了研讨会的第一节“投资仲裁的最新发展”，这一节汇聚了投资仲裁领域的各界著名人士，包括政府高级官员、仲裁机构负责人、从业人员和学者。会议的特别来宾包括：Meg Kinnear、马宇驰、姚军、Matthew Hodgson、孙华伟、Peter Malanczuk、鲍其安和李玉文等。在研讨会的第二节，我与费宁、Julien Chaisse一起对发言进行点评。该研讨会吸引了数百人参加。
最高人民法院国际商事法庭（CICC）的两个法庭之一选址于深圳，其宗旨是为境内外当事人提供“一站式”国际商事纠纷多元化解决平台。深圳为诉讼、仲裁和调解机构之间的良好互动提供了平台。事实上，最高人民法院国际商事法庭与深国仲之间的渊源不仅限于其所在位置——深国仲理事长沈四宝和深国仲理事Peter Malanczuk同时也是国际商事专家委员会的专家委员。国际商事专家委员会的专家委员有权为最高人民法院国际商事法庭的决策提供支撑，包括提供调解服务以及提供国际法或外国法方面的指导。我在北京大学国际法学院的同事Susan Finder也是国际商事专家委员会的专家委员，她也充当着最高人民法院国际商事法庭与深圳的联系纽带。