Strengthening the rule of law in commercial mediation and constructing the commercial mediation system with China characteristics
-On the Regulations of People's Republic of China (PRC) Municipality on Commercial Mediation (Draft for Public Comment)
The Regulations on Commercial Mediation in People's Republic of China (PRC) (Draft for Public Comment) highlights institutional innovation and builds a normative system covering the whole process of commercial mediation, which is of great significance for optimizing the business environment and promoting the modernization of the national governance system and governance capacity.
In order to promote the healthy development of the commercial mediation industry, protect the legitimate rights and interests of the parties, and optimize the business environment, on May 27th, the Ministry of Justice, together with relevant units, drafted the Regulations on Commercial Mediation in People's Republic of China (PRC) (Draft for Public Comment) (hereinafter referred to as the Draft for Public Comment), which was publicly solicited for comments. The deadline for feedback is June 25, 2025.
As the first administrative regulation specifically regulating commercial mediation activities in China, the Draft for Comment highlights institutional innovation and builds a normative system covering the whole process of commercial mediation, which is of great significance for optimizing the business environment and promoting the modernization of national governance system and governance capacity. This indicates that the construction of diversified dispute resolution mechanism in China has entered a new stage of systematization and rule of law.
Legislative background and system orientation
In recent years, with the rapid development of China's economy and society, the number of commercial disputes between enterprises and other subjects is increasing. As one of the important ways to solve commercial disputes widely recognized by the international community, commercial mediation has the characteristics of flexibility, high efficiency, professional confidentiality and friendly economy compared with traditional dispute settlement methods such as litigation and arbitration, and has played an active role in resolving commercial disputes and optimizing business environment. However, because there is no special legislation on the commercial mediation system in China, enterprises and other subjects can only invoke the Civil Procedure Law, Arbitration Law and People's Mediation Law, or industry rules such as the Mediation Measures of the Chamber of Commerce of the All-China Federation of Industry and Commerce to carry out related work when they encounter problems related to commercial mediation, which leads to the fragmentation and unclear effectiveness of the rules.
The Draft for Comment adheres to China's national conditions and the current development reality of commercial mediation industry, pays equal attention to standardization and promotion, benchmarks international high-standard economic and trade rules and advanced mediation rules, and establishes a commercial mediation legal system with China characteristics and international standards. The legislative purpose of the Draft is to "standardize commercial mediation activities, promote the healthy development of commercial mediation industry, timely and effectively resolve commercial disputes, protect the legitimate rights and interests of parties, and optimize the business environment", and construct a logically rigorous and hierarchical one. Generally speaking, the Draft for Comment directly responds to the triple needs of commercial mediation legislation.
First of all, it solves the problem of "no law to follow" in the field of commercial mediation. Although China's People's Mediation Law promulgated in 2010 filled the gap in mediation legislation, the difference between people's mediation and commercial mediation made commercial mediation in a long-term situation of unclear legal status, lack of corresponding rules and guidance, and lack of institutional supervision and management, which restricted its industry development and international competitiveness. The Draft for Comment establishes the legal status of commercial mediation in the form of special legislation, and clarifies the procedural rules, institutional qualifications and mediator standards of commercial mediation, which is conducive to building a complete legal system of commercial mediation.
Secondly, to respond to the urgent need for efficient dispute resolution mechanism in the surge of commercial disputes. In recent years, with the rapid development of China's market economy and the prosperity of commercial activities, commercial disputes have increased, and market participants have higher demand for low-cost and efficient commercial mediation; Under the background of the "Belt and Road Initiative" and high-level opening-up construction, the number of international commercial disputes is increasing day by day, which makes the demand for "going out" commercial subjects to solve cross-border disputes through mediation increase. By establishing a market-oriented and professional mediation mechanism, the "Draft for Comment" promotes the construction of the "One Belt, One Road" international commercial dispute settlement mechanism linking mediation, arbitration and litigation.
Finally, meet the needs of integration with international rules. As the first signatory of Singapore Mediation Convention, China should implement the provisions of the Convention, fulfill its domestic law obligations and realize the effectiveness of cross-border enforcement of international settlement agreements. The Convention has promoted many countries in the world to formulate commercial mediation laws, and the lag of legislation in China will seriously affect the settlement of international trade disputes. Through separate legislation, the Exposure Draft ensures effective connection with the Singapore Mediation Convention and the UNCITRAL Model Law on International Commercial Mediation.
Institutional framework and core content
There are 33 articles in the Draft for Comment, which stipulate the adjustment scope of the regulations, the responsibilities of relevant parties, the requirements of commercial mediation organizations and commercial mediators, and emphasize the standardization of commercial mediation activities and support the development of foreign-related commercial mediation. It constructs a normative system covering the whole process of commercial mediation, and its core contents are as follows:
Clarify the concept boundary and scope of application. Article 2 of the Exposure Draft clearly defines the connotations of "commercial mediation" and "commercial mediation organization" at the legal level for the first time, and limits the scope of activities to typical commercial fields such as trade, investment and finance, and clearly excludes non-commercial disputes such as marriage and family disputes and consumer disputes, laying the foundation for professional mediation. Its organizational orientation as a "non-profit legal person" has established the public interest orientation of commercial mediation. This is helpful for the parties to accurately judge whether commercial mediation is applicable to solve disputes, and also provides clear guidance for mediation organizations and relevant departments to carry out their work.
Establish basic principles and regulatory framework. Article 3 of the Draft for Comment establishes that commercial mediation activities should follow the four principles of "voluntariness, legality, honesty and confidentiality". The confidentiality and non-confrontation of mediation process is helpful to maintain the business cooperation relationship between commercial subjects and reduce the negative impact of dispute resolution on normal business activities. Articles 4 and 5 of "Draft for Comment" construct a two-tier supervision mode combining judicial administrative departments with commercial mediation industry organizations, which not only guarantees the authority of supervision, but also stimulates the vitality of industry autonomy.
Standardize the organization establishment and operation mechanism. Articles 7 to 13 of the Draft for Comment comprehensively stipulate the establishment conditions, registration management, change and cancellation, mediator selection, charging principle, internal management system and information disclosure obligation of commercial mediation organizations, so as to ensure the standardization and credibility of the organization's operation. Commercial mediation organization is the carrier to solve disputes, and the authority of the organization is an important prerequisite to achieve fairness and justice. Only standardized mediation organizations and professional mediators can provide high-quality mediation services for commercial subjects, thus improving the efficiency of dispute resolution and the fairness of settlement results.
Refine mediation procedure rules and behavior norms. Articles 14 to 21 of the Draft for Comment specify in detail the determination process of mediation procedure rules (subject to mutual agreement), the method for mediators to choose and determine (jointly selected or recommended by organizations), the basis for mediation (industry rules, business practices, etc.), the mediator's duty of neutrality and diligence as a third party, the principle of confidentiality in the mediation process (principle of non-disclosure), the disclosure and avoidance of conflicts of interest, the termination situation and the form and substantive elements of the mediation agreement (legal content, commercial practices, etc.)
Innovate the effectiveness guarantee and implementation path of mediation agreement. Article 22 of "Draft for Comment" has constructed a diversified mechanism for strengthening the effectiveness and ensuring the implementation, which is a major institutional breakthrough. First, the court produces compulsory execution after judicial confirmation; Second, mediation agreements can be converted into arbitration mediation documents, arbitration awards and enforceable creditor's rights notarization documents according to legal procedures; The third is to clarify the basis of implementation outside the territory and ensure the recognition and implementation of international commercial mediation.
Strengthen the coordinated development of foreign affairs and regions. Articles 24 to 27 of the Exposure Draft support domestic commercial mediation organizations to "go global" and set up business institutions overseas; Allow overseas organizations to carry out foreign-related commercial mediation activities in specific areas (Free Trade Zone and Hainan Free Trade Port); Support Guangdong-Hong Kong-Macao Greater Bay Area to carry out rule convergence and mechanism docking; Encourage foreign-related exchanges and cooperation and personnel training, promote international mutual recognition of mediators' abilities, and build a global commercial mediation network.
Improve the system of supervision and legal responsibility. Articles 28 to 31 of the Draft for Comment establish regulatory measures such as annual report, on-site inspection, consulting and copying, interview and inquiry, and prohibit, fine, confiscate illegal income, suspend business for rectification, suspend practice, revoke registration certificate and other serious violations of laws and regulations, such as engaging in mediation activities without authorization, organizing activities or organizers without changing registration, disclosing information and unfair competition, or leaking secrets and false mediation due to mediators.
In a word, the Draft for Comment, as an important measure to meet the needs of market economy development, improve the dispute settlement mechanism and enhance the ability of national governance, has laid a solid legal foundation for the healthy development of China's commercial mediation industry. The implementation of the regulations will play an important role in optimizing the business environment, enhancing the international competitiveness of China's commercial mediation and promoting the construction of a society ruled by law. (The author is the vice president of northwest university of politics and law Mediation Research Institute)
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