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By Translator Zhou yanhong

 

In order to deepen the study of international law related issues, explore the link between international law and current affairs, and further promote the theoretical research and practice development in relevant fields. On December 4th， the Shanghai Law Society International Law Seminar 2016 Annual Conference and International Law Hotspot Seminar (Roundtable) was held in Shanghai University of Finance and Economics . The conference was sponsored by Shanghai Law Society International Law Research Association and hosted by Shanghai University of Finance and Economics. From Shanghai Fudan University, Shanghai Jiaotong University, Shanghai University of Finance and Economics, East China University of Politics and Law, Shanghai Foreign Studies University, Shanghai University of International Business and Economics, East China University of Science and Technology, Shanghai University and Shanghai Higher People's Court, Shanghai WTO Affairs Consultation Shanghai Baxian Law Firm, Shanghai Weixian Law Firm, Huaxia Bank, China Travel Service Group (China Travel Service), China Travel Service (Shanghai) Co., Ltd. Shanghai Co., Ltd. and a number of practical units and corporate legal representative attended the meeting.

 

The opening ceremony was chaired by Prof. Zhou Jiepu, Vice President of Shanghai Law Society International Law Research Association and Party Branch Secretary of Shanghai University of Finance and Economics. She expressed a warm welcome to the scholars and guests. Professor Song Xiaoyan , Vice Dean who leads work of the Law School, Shanghai University of Finance and Economics, delivered a speech on behalf of the School. She introduced the major achievements of the law school, and gave thanks to the Shanghai Institute of International Law and the Shanghai Society of Law for their support to the Law School of SHUFE. And she expressed the hope that the guests will continue to pay attention to and support the development of the Law School.

 

Prof. Zheng Shaohua, Assistant President of Shanghai University of Finance and Economics, spoke on behalf of the college. He thanked the Shanghai Law Society for its support to Shanghai University of Finance and Economics. He also pointed out the importance of the seminar to schools and colleges. He also introduced the development course and prospect of law education in recent years. He gave gratitude to the guests who support and concern the Law School of SHUFE over the years, and wished the General meeting achieve a complete success.

 

Prof. Gong Baihua, President of Shanghai Law Society International Law Research Association, thanked Shanghai University of Finance and Economics for hosting the conference. Mr. Gong reported the work of the International Law Seminar of Shanghai Law Society since it changed the term of office on December 26, 2015, and showed his thanks for the leaders and guests’ coming .

 

Speaking at the opening ceremony of the Constitutional Publicity Week, the Shanghai Law Society's full-time vice president, Shi Jixiong said that it is of great significance to hold this Annual Conference and Seminar. He expressed his gratitude to all those who have contributed to the success of this annual conference. President Shi analyzed the current international situation and the impact on China, pointed out that the international situation has brought new opportunities and challenges to the study of international law, and wished the conference achieve a complete success.

 

The meeting was divided into four parts: the relevant issues of international law of the 15th anniversary of the China's entry into WTO ("the termination of the substitute clause"), the "Application of China BIT Agreement to Hong Kong and Macao", "Arbitration Disputes of Chinese Arbitration Institution accept and hear between Investor and Host Country Investment " "international legal Practice hot spots ". The four thematic discussion unit were presided respectively by Gao Yongfu,  Hu Jiaxiang,  Xu Guojian and other professors and experts.

 

Prof. Gao Yongfu from Shanghai University of International Business and Economics presided over the discussions on agenda item 1 and 2. He recalled that since July 10th, 1986 formally submitted to the resumption of GATT contracting parties , after 15 years of arduous negotiations, China finally on December 11st , 2001 formally joined the World Trade Organization (WTO), marking the China's industrial opening to the outside has entered a new stage. Professor Gao analyzed China's accession to the WTO after 15 years, a potential major dispute settlement case, that is, the United States and Europe are scheduled to cancel for China's anti-dumping "alternative" approach.

 

 In the first unit that " the relevant issues of international law of the 15th anniversary of the China's entry into WTO ("the termination of the substitute clause")", Prof. Feng Jun firstly made a discussion on The China's WTO accession protocol article 15 and the issue of the status of non-market economy. And expressed his views on the two issues: The first question is: " the expiration of article 15, does it mean that China automatically obtain market economy status?" Professor Feng Jun said that there were no "Market economy status" concept in China's WTO accession documents and even in WTO agreements were not. What we strive for is the WTO members of the parties to the domestic legal standards defined by the market economy status. Moreover, the 15-year expiry of the "surrogate" price does not equal to obtain a market economy status. The second question is: "Does the expiration of the 15A2 will result in 15A1 models be invalid?" Professor Feng Jun held that the expiration of 15A2 paragraph can not lead to the paragraph 15A1 to be invalid. Finally, Professor Feng Jun made prospects about the application of law after the expiration of article15. In his view, Europe and the United States may not quote article 15, but may refer to ADA: 2.2 (DS 473 Argentina v. EU biodiesel imports) bill and other anti-dumping investigations against China. The WTO anti-dumping cases against China will make some significant application change.

 

For the first issue, the discussants Zhang Zhenan held that the market economy can be divided into two aspects, one the one hand is the industry's market economy status, on the other hand is the state of the national market economy status. After the expiration of article 15, enterprises should pay more attention to the market economy status of the industry. And discussants Zhu Zhaomin considered that the academia should pay more attention to WTO trends, more studies of WTO-related cases to explore the article 15 issues. He believes that section 15A2 expires at the same time also lead to invalid section 15A1. He argues that in the future, the developed economies may conduct anti-dumping investigations against China on the grounds that there is no sales of the same products, special market conditions or too little sales, but they differ in their legal rules.

 

In the second issue of "China's BIT Agreement on the Application of Hong Kong and Macao", the lawyer Chen Luming made a discussion on the BIT vacuum problem in Hong Kong and Macao under the background of "One Belt and One Road ". It could be seen from the current situation of the signing of the BIT after the return of Hong Kong and Macao, in fact, countries in the world would no longer signed BIT with the Hong Kong and Macao SAR government alone, and more willing to sign directly with the central government. Chen Luming came up with some suggestions on BIT vacuum problem. First, the governments of Hong Kong and Macao had never officially agreed to the application of Chinese BIT, and the Chinese government had never according to the basic law to regulate after the promulgation and implementation of "Hong Kong Basic Law" and "Basic Law" ,and Chinese government had consulted opinions of the governments of Hong Kong and Macao for any international treaties that China established including Chinese BIT. Therefore, there was a trouble in the application of Chinese BIT to Hong Kong and Macao investors. It was suggested that the central government should seek the right time to seek the advice of the Hong Kong and Macao governments on the application of Chinese BIT as early as possible and obtain the consent of the third country. It took fairly same time to formulate a new treaty. Second, the central government did not have a positive attitude towards applying BIT to Hong Kong and Macao investors. In addition, the central government has not yet expressed a position in any formal occasions on the application of other Chinese BIT to Hong Kong and Macao. It is suggested that the central government should clarify the affirmative attitude of BIT applied by Hong Kong and Macao as soon as possible. Through the introduction or explanation of relevant laws and policies, it will establish the confidence of investors in Hong Kong and Macao to apply BIT in China and enhance the predictability of the application of the treaty.

 

On the second issue, the negotiator Zhang Junqi said Hong Kong and Macao BIT agreement may be less because of the good investment environment in Hong Kong and Macao, on the other hand was the related departments in Hong Kong and Macao were not actively lead to; discussant Li Weifang said Hong Kong and Macao BIT agreement was not our sovereignty which was not part of national defense and foreign affairs. In order to solve the vacuum problem in the BIT agreement between Hong Kong and Macao the BIT agreement signed by China can be applied through the legal procedures of Hong Kong and Macao.

 

Hu Jiaxiang, vice president of the International Law Research Society of Shanghai Law Society and Professor of the Kay Yuan Law School of Shanghai Jiaotong University, chaired the discussion on item 3. Professor Hu pointed out that how to seek a reasonable balance between investors and the protection of the rights of host countries in international investment treaties and their arbitration is one of the hot issues in the field of international investment. In order to achieve a reasonably balance the relationship between the two rights, we should set up the necessary exception clause in the existing investment treaty to reserve a necessary space for the host country to maintain national security and public interest; we should improve and perfect the regulation of the fair and equitable treatment, MFN, protective umbrella and so on which were the core provisions in investment treaties to prevent or restrict the tribunal to expand its interpretation; we should improve and perfect the arbitration procedure rules of the investment treaty so that it can meet the needs to settle the investment dispute between investors and host country.

 

In the third issue, "the Arbitration that Chinese Arbitration Institutions accept and hear to Arbitrate Investment Disputes between Investors and Host Countries", Prof. Chen Li, from the perspective of the new arbitration rules of Shenzhen International Court of Arbitration, analyzed the feasibility of accepting international investment disputes by Chinese commercial arbitration institutions. Professor Chen Li discussed this question from the feasibility at the international law level and the arbitrability at the domestic law level. At last, she came up with four proposals: one is to sign BIT / FTA in the future, and When the dispute settlement clause is concluded, it is allowed that the parties submitted the disputes to the general commercial arbitration institutions; the second is from the legislative source for commercial arbitration institutions to accept investment disputes to provide legality and legitimacy, and change the long-standing restrictions and restraint on arbitration; the third is the use of judicial review as a pressure relief valve to balance the interests of investors and the national public interest; Fourth, in concrete practice, the host country and investors to reach a consensus can only be submitted to arbitration and there should be a more inclusive attitude to accept the jurisdiction of the arbitral tribunal.

 

For the third issue, the discussant Liu Ning Yuan raised three questions: the first is the mechanism of the Shenzhen Court of Arbitration. How should we regard the Shenzhen Arbitration Court ?as a domestic tribunal or as an international tribunal. What law does it apply? Domestic arbitration law or international arbitration law. Furthermore, whether the Shenzhen International Arbitration Tribunal require exhaust the local remedies before arbitration, whether the result of arbitration is the final ruling. The second question is whether the Shenzhen Arbitration Tribunal has jurisdiction over the investment disputes with the government, whether it is necessary to exhaust relevant remedies, such as administrative reconsideration and so on. The third question is the intervention in arbitration, how the government intervened in the arbitration agreement, how to intervene. The discussant He Xiaoyong raised two questions: First, whether the conditions for acceptance of arbitration in Shenzhen can be supported by the existing arbitration law, because the Shenzhen Arbitration Court accepted the scope of the Arbitration Law more than the provisions of Article II. The second point is the question that how to enforce the arbitration if the relevant department of Chinese government lose a lawsuit ,it is a question that Chinese courts how to execute the arbitration.

 

Mr. Xu Guojian, Vice President of Shanghai Law Society International Law Research Association, and the Partner of Bangxin Yangzhong Jianzhong Law Firm, chaired the discussion on Item IV. He emphasized the importance of practical hot research in promoting development of international public law, international private law and international economic law. And shared a lot of hot issues in international legal practice.

 

For the topic IV " international legal Practice hot spots ", President Jiang Shan introduced a number of detailed measures which the Shanghai High Court based on the Shanghai FTA development opportunities to put forward, including internationalization, legalization, facilitation, market-oriented initiatives. Such as the Shanghai Maritime Court, for foreign parties repeatedly designated agent of the problem, allowing foreign parties and law firms to conclude a general litigation authorization, to enhance the efficiency of foreign-related civil litigation, making the work of the Court to be convenient. In order to be international, Shanghai High Court took the initiative to control international cases, particularly the main property involved in the country and operating in the domestic. However, in the process of handling cases, because of China's civil procedure rules such as the standard of service is too strict, often needs through diplomatic channels for delivery , delaying the time and reducing the efficiency .

 

Lawyer Wang Zhengchao hoped to establish a platform with school to solve some problems that could not be solved by law firms, such as that we exchanged above ,the vacuum of the Hong Kong and Macao BIT agreements, as well as foreign investment review and foreign-related arbitration.

 

In this meeting, a number of experts and scholars conducted a depth discussion around the theme, and the participants took part in the free discussion. The theme of the meeting was focused and the discussion was heated. The annual meeting of the Shanghai International Law Research Association was a thoughtful feast that fully displayed the spirit of international law.

 

The meeting also invited representatives from the Shanghai law newspaper, law agency and other media participants. A number of international law graduate students from Shanghai University of Finance and Economics and Fudan University were also involved in this seminar.

 

(Original: http://law.shufe.edu.cn/show.aspx?info_lb=12&flag=12&info_id=3097)