Abstract
Dispute resolution is one of the most enduring research topics in law and society research. While sociolegal scholars have long recognised the ‘dispute pyramid’ and how disputes emerge from social life and transform into legal cases in court, most studies focus on one or two specific sites or mechanisms of dispute resolution, such as mediation, arbitration, or litigation. Very few researchers have both the ambition and the capacity to paint a ‘world map’ of all the variations of dispute resolution in a single book, especially for a large country like China.
Weixia Gu's book Dispute Resolution in China is a notable exception. Based on her expertise in civil litigation, commercial arbitration, and various forms of mediation in China, Gu presents a panoramic account of the structures, processes and institutions of diverse systems of civil and commercial dispute resolution in Chinese law and how these systems respond to very different missions, incentives and social contextual factors. The book draws on a deep knowledge of Chinese law and society, articulates the precision of little-explored empirical data, as well as has the ambition and rigour of serious theoretical inquiries. Gu is perhaps also the first scholar to present this panoramic narrative and critical examination of China's civil and commercial dispute resolution in an interactive ecology. It is an exemplary piece of scholarship in Chinese law written by one of the leading authorities in the field.
Part I of the book lays out the landscape of Chinese dispute resolution, which ‘could be described as analogous to a dynamic ecology’ (p. 4). The three primary systems of civil and commercial dispute resolution are civil (including commercial) litigation, commercial arbitration, and mediation. Each system has its own architecture, procedural rules, and institutional settings. Furthermore, the three systems interact in complex ways on a regular basis, which produce many ‘hybrid’ forms of dispute resolution such as judicial mediation, judicial enforcement of arbitration, and ‘med-arb’ (see Chapter 8). Some of those hybrid forms are specific to the Chinese context (e.g. judicial mediation), while others are adopted from elsewhere (e.g. med-arb). Nevertheless, they constitute a heterogeneous and rapidly changing ecology for Chinese plaintiffs and defendants to navigate.
In Part II, Gu provides a thorough examination of the historical evolution of each of the three main systems of dispute resolution from the 1980s to the present. With a delicate assembly and analysis of official statistics, combined with archival data and secondary literature, the three chapters on litigation, arbitration, and mediation offer perhaps the most comprehensive account of the historical trajectories of Chinese dispute resolution systems. One important theoretical point that Gu makes in this analysis is that, while the systems are made by the state in a largely top-down manner, their historical evolution is path-dependent and eventful. Many reforms were initiated by the state's response to notable incidents, including some high-profile public interest cases concerning consumer rights and the environment. The Sanlu tainted milk powder scandal in 2008, for instance, led to the collective action of public interest lawyers in the pursuit of class action lawsuits and eventually influenced the 2012 revision of the PRC Civil Procedure Law (71-74). The rise of ‘mass incidents’ concerning social stability in the 2000s also shaped the changes in labour dispute mediation procedures.
The most under-studied yet thought-provoking chapter in Part II is arguably the chapter on arbitration (Chapter 4). Building on her decade-long research experiences on Chinese commercial arbitration institutions, Gu paints a dynamic picture of the proliferation of arbitration commissions in China's reform era. At one place, she even calls these institutions ‘China's arbitration market’ (p. 103) because they constitute a fascinating ecology driven by many internal competitions and conflicts. The launch of the Belt and Road Initiative in the 2010s further promoted investment arbitration both in China and in the host states of Chinese capital (p. 111). In comparison with litigation and mediation, the historical trajectory of Chinese arbitration is more bottom-up and competitive, but the three systems share the same characteristics of path-dependence and eventfulness.
Yet, the most fascinating section of this book is Part III, which discusses the ‘hybrid’ dispute resolution institutions resulting from the interactions between litigation, arbitration, and mediation. Judicial mediation, for example, not only incorporates mediation into the civil procedure but also constitutes a pillar of China's grand mediation scheme together with people's mediation (Chapter 6). The judicial enforcement of arbitration, though not a formal institution, also shows an increasing ‘pro-arbitration’ pattern in recent years, a trend closely related to China's national development strategies, such as free trade zones, the Greater Bay Area, and the Belt and Road Initiative (Chapter 7). Finally, the wide adoption of med-arb, a combination of adjudicative and non-adjudicative approaches of dispute resolution, in Chinese commercial arbitration institutions, further blurs the boundaries between different dispute resolution systems (Chapter 8). As Gu put it, China's use of med-arb will remain ‘a fluid area of localized globalism vis-à-vis globalized localism’ (p. 239).
Both the breadth and the depth of this book are exceptional. However, like all ambitious cartographers who seek to draw a full world map, Gu misses a few small islands in the vast landscape of Chinese dispute resolution. One example is labour arbitration, an important intermediary procedure between mediation and litigation in labour disputes. Another less known example is judicial administrative mediation by the street or township justice agency, which supervises people's mediation committees in urban neighbourhoods and rural villages. As a world-renowned expert in commercial arbitration and international law, Gu's analysis emphasizes the commercial side of dispute resolution rather than the individual complaints or personal disputes involving ordinary citizens. This is, of course, not a weakness but merely a scholarly focus, as she puts it in her scope and subject of the book (Chapter 1).
Overall, Dispute Resolution in China is an exemplary study in both Chinese law and sociolegal studies. It speaks to not only legal academics but also social scientists interested in formal and informal mechanisms of civil and commercial dispute resolution, particularly disputes with a cross-border dimension, and more generally, how the Chinese legal system works in practice in this interactive ecology. As studies of Chinese law get increasingly niched and specialised in specific areas and topics, Gu's ecological approach that connects different components of this complex system and examines their interactions sets this book apart as a milestone in the field.
