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Chinese Law Blog

Chinese Law Blog promotes legal scholarship with the aim to develop a deeper understanding of China and to facilitate open dialogue between the East and the West. Mainly sourcing from the Chinese Law eJournal edited by the Philip K. H. Wong Centre for Chinese Law, the Blog selects and posts the most cutting-edge research on Chinese law on a near daily basis. It will also track pertinent news, reports, activities, and events that contribute insights into the Chinese legal system.
Contact us (ccl921@hku.hk) if you want to share sources you find relevant, valuable, and interesting! More research on Chinese law is available on the Chinese Law eJournal. Subscribe to the Chinese Law Blog if you want to receive timely updates by email.

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Book Talk: Negotiating Legality: Chinese Companies in the US Legal System (Feb 29 2024)

Posted on Fri, Feb. 23, 2024

Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong

 

While the global expansion of Chinese companies has ignited intense debates, their interactions with host-state legal systems have largely escaped systematic examination. Negotiating Legality sheds light on how Chinese companies develop in-house legal capacities, engage with US legal professionals, and navigate litigation in US courts. This talk is indispensable for anyone interested in China’s rise, its global impacts especially on legal systems of developed nations like the US, and the intricate dynamics of US-China relations.

Date & Time: February 29, 2024 (Thursday) 12:00 - 13:00

Venue: Academic Conference Room, 11/F, Cheng Yu Tung Tower, HKU (In-person only)

 

Half a Loaf Is Better Than None: The New Data Protection Regime for China’s Platform Economy

Posted on Fri, Feb. 23, 2024

Chuanman You, National University of Singapore (NUS)

 

This paper contributes an analytical overview of why and how the Personal Information Protection Law is shaped by focusing on its legislative background, substantive rules and enforcement mechanisms. The influence of the GDPR in shaping this regulatory paradigm is scrutinized, with reference to pertinent concerns that could compromise the effectiveness of this paradigm in the Chinese context. As in its current form, the law fails to address several critical matters. Alas, half a loaf is better than none.

 

Right to Data Access in the Digital Era: The Case of China

Posted on Thu, Feb. 22, 2024

Yik Chan Chin, Beijing Normal University

 

This chapter examines the academic debate on access to digital data in China and the Chinese state’s policy on data. First, the concept of epistemic rights has not drawn academic attention, while the closely related concept of the right to information stresses the consumer’s right to obtain public information and digital platforms’ data rights. Second, the right to data access has not been treated as an independent right but as part of the debate on data property rights and the right to information. Third, data is officially defined as a new factor of production that is key for national economic development. Finally, the lack of attention to epistemic rights and an overly narrow definition of data has undermined alternative explorations of the implications of the public good nature of data.

 

China's Individual Income Tax Law for Expatriates

Posted on Thu, Feb. 22, 2024

Jingyi Wang, Chinese University of Hong Kong

 

In recent times, many mainland Chinese are taking up employment or immigration opportunities outside China. At the same time, the Chinese tax authorities are increasing their attempts to enforce Chinese law on Chinese working outside mainland China. This article examines the tax consequences of both outbound and inbound cross-border employment from China’s perspective. By comparing the income tax rules applicable to different groups of cross-border employees, the article will highlight the discriminatory treatment of Chinese cross-border employees and propose measures to better facilitate the cross-border movement of human resources.

 

China’s New Model of Authoritarian Legality

Posted on Wed, Feb. 21, 2024

Zeming Liu, Columbia Law School

 

The author argues that through the project of integrating the “Socialist Core Values” (SCVs) into legal judgments, the Party-state is effectively imposing a new conception of what Chinese law is. The Chinese judiciary is now required to decide cases under the assumption that they must go beyond statutory language to “find” law that conforms to the SCVs. This new jurisprudence departs from legalism, which used to be China’s predominant model of legality for many years, and gives rise to a new model of authoritarian legality featuring the incorporation of the extralegal, moralistic social norms mandated by the authoritarian state into the contents of law itself. This new model features a destabilized legal system that allows the authoritarian ruler to flexibly exercise its power in the name of law.

 

The Temporality of Law in Traditional China and Its Contemporary Implications

Posted on Wed, Feb. 21, 2024

Tao Wang, East China University of Political Science and Law 

 

Temporality of law is of great significance in traditional Chinese juridicopolitical thought, and its influence plays a crucial role in China’s state building and governance. The existing temporal phrases from the West are not sufficient for explaining the symbol-oriented legal system in traditional China. Formalist law overlooks the temporal elements intrinsic to the legal system and results in the failure of governance. This Article applies a historical culture paradigm to analyze the temporality of law in traditional China. It further shows that the intertemporal dynamism in law facilitated the formation of a unified and stable system of order over China’s long imperial period. The intertemporality in traditional Chinese law still exerts huge influence on legal governance in contemporary China.

 

Regulating Platform Economy in China: Shocks and Revisions

Posted on Tue, Feb. 20, 2024

Xin Dai, Peking University

 

In the years of 2020 and 2021 the Chinese government attempted at structurally tightening its regulatory controls over the country’s major digital platform firms. It was widely observed that the government’s once tolerant regulatory regime had then shifted into a more heavy-handed mode. This article explains that the policy turn was attributable to not only legitimate concerns over the industry’s flaws but also the popular societal sentiments associated with the firms’ perceived betrayal of their progressive promises. By end of 2022, however, endeavors for structural reforms were mostly shelved by the authorities due to changed economic circumstances. The Chinese authorities now likely will return to a more marginal regulatory approach in addressing issues from platform practices and operations.

 

Legal and Rituological Dynamics of Personalized “Pillars of Shame” in Chinese Social Credit System Construction

Posted on Tue, Feb. 20, 2024

Keren Wang, Pennsylvania State University

 

The construction of the Chinese Social Credit System (SCS) is arguably the most significant governance-by-data experiment so far into the 21st century. This paper explores the ways in which the SCS project was prompted by a ritual impulse to inculcate Chinese societal moral character in the big data age. It first highlights relevant perspectives from Chinese intellectual history, ritual studies, and comparative legal scholarship as analytical heuristics for unpacking the deeper discursive structures entangled within the Chinese SCS project. The author then applies the transdisciplinary lens on recent cases of data-driven, personalized “public shaming” urban implementations by Chinese local authorities. 

Authoritarianism and Legality

Posted on Mon, Feb. 19, 2024

Taisu Zhang, Yale University

 

This symposium essay proposes that in very large, very diverse societies, authoritarian regimes may have even stronger incentives to pursue law-centric modes of sociopolitical ordering than do democratic ones. This does not necessarily mean that they will always act upon such incentives, but it does offer a deeper explanation for why the Chinese regime in particular is very unlikely to decisively abandon its current legalistic trajectory at any point in the foreseeable future. This is very much a thought experiment, but hopefully one that offers useful ideas for future research.

 

Varieties of Authoritarian Legality

Posted on Mon, Feb. 19, 2024

Shucheng Wang, City University of Hong Kong

 

This article critically examines the varieties of authoritarian legality in three differentiated paradigms, namely, ‘law and politics’, ‘law with politics’, and ‘law in politics’. It points out that the engagement of authoritarian legality is favourably facilitated through politically controllable legal institutions and state-shaped public sphere. It argues that the standalone statist reason cannot stand out alone as a legitimate ground for legality unless some other alternative reasons can be dialogically engaged in the public discourse. Otherwise, the force and violence may be clothed in the form of a law that serves as a political instrument for the ruling of the authoritarian government.

 

Bibliography of Academic Writings in the Field of Chinese Law in Western Languages in 2022

Posted on Wed, Feb. 7, 2024

Knut Benjamin Pissler, Max Planck Institute

Fenja Eckardt, Max Planck Institute

 

The bibliography aims to give readers an overview on articles published in English or German in the field of Chinese law in 2022. Regarding relevant German-language literature, the issues 1 to 12 of the journal Karlsruher Juristische Bibliographie (KJB) of the year 2022 were screened. Simultaneously the classification scheme of the KJB was used as a model in this bibliography. Abbreviations are not utilized in order to facilitate the use of this bibliography by international readers. Concerning English-language literature the authors mainly focused on periodicals and books available at the library of the Max-Planck-Institute for Comparative and International Private Law (MPI) in Hamburg. Besides the authors scrutinized fee-charging databases like Westlaw, LexisNexis, Juris and Beck-Online for relevant articles.

 

Generative AI and Copyright: A Dynamic Perspective

Posted on Tue, Feb. 6, 2024

S. Alex Yang, London Business School

Angela Huyue Zhang, The University of Hong Kong

 

The future development of generative AI and its applications in the creative industry hinge upon two copyright issues: 1) the compensation to creators whose content has been used to train generative AI models (the fair use standard); and 2) the eligibility of AI-generated content for copyright protection (AI-copyrightability). This paper aims to better understand the economic implications of these two regulatory issues and their interactions. By constructing a dynamic model with endogenous content creation and AI model development, the authors unravel the impacts of the fair use standard and AI-copyrightability on AI development, AI company profit, creators income, and consumer welfare, and how these impacts are influenced by various economic and operational factors. For example, while generous fair use benefits all parties when abundant training data exists, it could hurt creators and consumers when such data is scarce. Similarly, stronger AI-copyrightability could hinder AI development, and reduce social welfare. The authors also highlight the complex interplay between these two copyright issues. For instance, when existing training data is scarce, generous fair use may be preferred only when AI-copyrightability is weak. These findings underscore the need for policymakers to embrace a dynamic, context-specific approach and provide insights for business leaders navigating the global regulatory complexities.

Authoritarian Legal (Ir)rationality: The Saga of 'Picking Quarrels' in China

Posted on Mon, Feb. 5, 2024

Jiajun Luo, The University of Hong Kong

 

This paper explores ongoing discussions about the authoritarian legality of the People’s Republic of China. It introduces the concept of "legal rationality," signifying a state where the discretion of dominant officials is constrained by legal rules that are publicly accessible, clear, and consistent. The author argues that legal rationality is a fundamental element for any functional legal system, even within an authoritarian framework. In doing so, the author challenges the conventional assumption of “dual state”, which posits that the existence and expansion of prerogative power in an authoritarian system are confined solely to its politicized sphere, marked by political prosecutions. Instead, the author argues that the decline of legal rationality in an authoritarian legal system leads to the arbitrary discretion of dominant officials infiltrating both political and non-political domains. It illustrates this point through the example of “picking quarrels and provoking trouble,” a notorious catch-all crime exploited by Chinese authorities in both political prosecutions and routine criminal cases. 

 

The Promise and Perils of China's Regulation of Artificial Intelligence

Posted on Fri, Feb. 2, 2024

Angela Huyue Zhang, The University of Hong Kong 

 

China has been perceived as a global leader in regulating AI due to its early and comprehensive rules on algorithms, deepfakes, and generative AI services. However, this overlooks the intricate institutional dynamics within the country. The Chinese government plays multiple roles in the AI sector, including policymaker, investor, supplier, customer, and regulator. This extensive involvement, combined with factors like the US-China tech rivalry, chip embargoes, and a downturn in the Chinese economy, weaken the government’s commitment to strict regulation. Consequently, China’s overall approach to AI regulation has been business-friendly, focusing on enabling technological progress rather than providing protection for the public. As evidenced by its permissive stance on facial recognition technology, Chinese regulators have favoured a light-touch approach to AI regulation in practice.  Similarly, Chinese courts are trying to prop up the AI industry, as demonstrated by the Beijing Internet Court’s decision to grant copyright to an AI-generated image. This lenient approach may give Chinese AI firms a short-term advantage over European and US counterparts, but it also risks creating regulatory lags that could escalate into AI-induced accidents or disasters. The dynamic complexity of China’s regulatory tactics therefore underscores the urgent need for increased international dialogue and collaboration with the country to tackle the safety challenges in AI governance.

Does Black-Letter Law Matter in Labor Rights Protection in China? - A Tale of Two Cities

Posted on Thu, Feb. 1, 2024

Peter Chan, City University of Hong Kong

 

This article discusses the role of black-letter law in labour protection in China in cases where employers dismiss employees on the grounds of serious breaches of internal regulations. It presents an empirical analysis of the judicial practice of two of China’s economically developed cities, Suzhou and Wuxi. Suzhou employers are required to give employees the opportunity to be heard prior to dismissal, while Wuxi does not. The author first introduces the Chinese labor legislation system, the dismissal system, and the two cities’ local labor regulations. After analyzing and discussing 140 cases from Suzhou and 234 cases from Wuxi, the authors concludes that giving employees the opportunity to be heard is essential for protecting their rights, as evidenced by differential success rates in the two cities. The analysis highlights the significance of black-letter law in ensuring labor protection in China. 

Confucian Legal Hypotheticals

Posted on Thu, Feb. 1, 2024

Norman Ho, Peking University

 

This Article examines a legal hypothetical in the Mencius text, where Mencius is asked by his disciple Tao Ying what would Emperor Shun do if his father had killed someone. By situating this legal hypothetical in premodern Chinese legal history, particularly with respect to dynastic legal developments regarding the issue of kinship and family concealment of crimes (i.e., where family members cover up crimes of other family members), this Article argues that later dynasties went further (to the extreme) in “Confucianizing the law” than what foundational thinkers like Mencius and Confucius originally advocated. The Article concludes with a brief discussion of the possible continued influence of traditional Chinese law on current PRC law in the realm of kinship/family concealment.

 

Unleashing the Green Principle in the Chinese Civil Code

Posted on Wed, Jan. 31, 2024

Jie Ouyang, University of Groningen

 

This comment discusses the Green Principle under the new Chinese Civil Code and its potential to embed private law into the green transition. Based on selected case law, this paper discusses the various mechanisms employed by Chinese courts to channel ecological values into civil adjudication. Through this analysis, the author hopes to position the green principle not only as part of the consitutionalisation of private law in China but also as a gateway for ecologisation of private law. China’s approach serves as an inspiring model for the greening of private law.

 

Chinese Auditor Inspection Access Challenges: The Market’s Response to Integrated US Regulatory and Legislative Action

Posted on Wed, Jan. 31, 2024

Lacey Donley, Fort Lewis College

Joseph Legoria, Louisiana State University

Kenneth J. Reichelt, Louisiana State University

Stephanie Walton, Louisiana State University

 

The authors examine the impact of mounting regulator interest in US-listed Chinese firms facing PCAOB inspection access challenges. This study provides evidence of the market’s response to five events taking place from 2018 to 2020. Collectively, these events mark the first-ever integrated regulatory and legislative response from the PCAOB, SEC, and US legislature since initiation of the PCAOB’s international inspection program. First, the authors consider whether the PCAOB’s eighth annual update of inaccessible jurisdictions is newsworthy to investors. Next, they consider investors’ perceptions of audit quality risks and delisting risks among Chinese firms. The authors find that the market does respond negatively towards cross-listed Chinese firms following PCAOB, SEC, and US legislative action. Results further suggest that market reactions are motivated by investors’ perception of a delisting risk among Chinese firms. This observation is most salient among small Chinese firms having fewer listing alternatives outside of the US.

Cloud Empires’ Physical Footprint: How Trade and Security Politics Shape the Global Expansion of US and Chinese Data Centre Infrastructures

Posted on Fri, Jan. 26, 2024

Vili Lehdonvirta, University of Oxford

Boxi Wu, University of Oxford

Zoe Hawkins, University of Oxford

 

US-China technological rivalry presents dilemmas for third countries. Cloud computing infrastructure has become an acute front in this rivalry because of the infrastructural power that it affords over increasingly cloud-based economies, and because it is a control point in AI governance. The authors ask what factors explain a third country’s “cloud infrastructure alignment”—the degree to which the country’s local cloud computing infrastructure belongs to US versus Chinese providers. Three different answers are sketched: international trade, digital imperialism, third-country strategic choice. The authors find cloud infrastructure alignment is positively associated with other imports from the US or China, negatively associated with interstate disputes, and only weakly associated with security cooperation ties. The findings suggest that commercial interests and third-country strategic choice may be more influential in shaping cloud infrastructure than any imperialist expansion or containment by the superpowers. 

 

The Legal Landscape of Surrogacy in China

Posted on Thu, Jan. 25, 2024

Yingying Wu, China University of Political Science and Law

 

Surrogacy has increased globally due to the development of medical technology. In light of the abolition of the one-child policy in China, demand for surrogacy among Chinese citizens has increased, especially in single-child families that would like a second child but worry about childbearing at an advanced age. Meanwhile, highly educated women tend to have children at an advanced age. Hence, the need for surrogacy has risen. However, current policies and laws in China prohibit surrogacy, resulting in a domestic black market and people seeking international surrogacy. This article surveys legal and judicial practices in China and attempts to forecast whether China is likely to explicitly prohibit or legitimize surrogacy in the short term.

 

Decoding the Rise of Central Bank Digital Currency in China: Designs, Problems, and Prospects

Posted on Thu, Jan. 25, 2024

Pangyue Cheng, National University of Singapore

This article spotlights the unexamined issue of digital currency regulation by examining the practice and related regulatory rules of the pilot CBDC in China. Beginning with the global design choices of digital currencies, the article comparatively examines the technical design of China’s CBDC, known as e-CNY. It further triggers a rethinking of conventional regulations for the protection of digital currency information by investigating the gap between the actual operation and design of e-CNY, as well as the gap between pilot policies and legal provisions. This article argues that, on the one hand, the legislative balance between the protection of personal information and the regulation of illicit financial activities involved in the “loosely coupled account link” system of e-CNY should be reconsidered. On the other hand, the delineation of rights and responsibilities between dissemination institutions, payment service providers, and end-users needs to be further redefined and clarified.

 

Judging Under Authoritarianism

Posted on Wed, Jan. 24, 2024

Julius Yam, The University of Hong Kong

 

Authoritarianism has significant implications for how judges should discharge their duties. How should judges committed to constitutionalism conduct themselves when under authoritarian pressure? To answer this question, the article proposes a two-step adjudicative framework, documents a variety of judicial strategies, and proposes how principles and strategies can and should be incorporated into the framework in different scenarios. The first step of the adjudicative framework involves judges identifying the ‘formal legal position’ while blindfolding themselves to extra-legal factors (such as potential authoritarian backlash). In the second step, depending on the level of risk incurred by maintaining the formal legal position, judges should lift the blindfold to check whether, and if so how, the formal legal position should be supplemented with or adjusted by judicial strategies. Through this analysis, the article offers a guide to judicial reasoning under authoritarianism.

 

A Systematic Review of Climate Policies in China: Evolution, Effectiveness, and Challenges

Posted on Tue, Jan. 23, 2024

Shu Wu, Zhejiang University of Finance and Economics

 

Due to its strong economic growth, coal-dominated energy structure, and enormous emission base, China's climate policies are of global relevance and likely to determine the success of global climate efforts. Based on 229 climate policies and extensive literature since the 1980s, this study outlines China's climate governance by tracking policy evolution, reviewing principal policy instruments, evaluating policy effectiveness, and identifying challenges. 

 

Chinese Influence through Technical Standardization Power

Posted on Tue, Jan. 23, 2024

Tim Rühlig, German Council on Foreign Relations

 

Geo-economic rivalry is back on the international agenda, particularly in the field of high technology. Very often, technical standards are regarded as being a central arena of this competition. Surprisingly ignored is the question, how precisely technical standard-setting (such as Wi-Fi or 5G) empowers China. Based on the analysis of quantitative data, primary sources, and in-depth interviews, this article substantiates the widespread hypothesis that China’s growing footprint in technical standardization empowers the Chinese party-state. It introduces seven proxies to measure influence on standard-setting. Next, it explains how technical standards can be utilized by states to gain economic, legal, political, and discursive influence. Finally, it shows that China’s growing footprint in technical standardization is the result of party-state engagement, which provides leverage to China’s political leadership.

 

How China Lends: A Rare Look into 100 Debt Contracts with Foreign Governments

Posted on Mon, Jan. 22, 2024

Anna Gelpern, Georgetown University

Sebastian Horn, Kiel Institute for the World Economy

Scott Morris, Center for Global Development

Brad Parks, Center for Global Development

Christoph Trebesch, Kiel Institute for the World Economy

 

China is the world’s largest official creditor, but people lack basic facts about the terms and conditions of its lending. Very few contracts between Chinese lenders and their government borrowers have ever been published or studied. This paper is the first systematic analysis of the legal terms of China’s foreign lending. The authors collect and analyse 100 contracts between Chinese state-owned entities and government borrowers in 24 developing countries in Africa, Asia, Eastern Europe, Latin America and Oceania, and compare them with those of other bilateral, multilateral and commercial creditors. Three main insights emerge. Overall, even if these terms were unenforceable in court, the mix of confidentiality, seniority and policy influence could limit the sovereign debtor’s crisis management options and complicate debt renegotiation. Overall, the contracts use creative design to manage credit risks and overcome enforcement hurdles, presenting China as a muscular and commercially savvy lender to the developing world.

 

Sovereignty at Sea: The South China Sea Dispute and UNCLOS Implications

Posted on Mon, Jan. 22, 2024

Sofia Kausar, RNB Global university

 

The South China Sea dispute involves overlapping of territorial claims and maritime conflicts among nations like China, Vietnam, the Philippines, Malaysia, Brunei, and Taiwan. Central to this intricate issue is the interpretation and application of the United Nations Convention on the Law of the Sea (UNCLOS). Beyond regional stability, the South China Sea dispute carries global implications due to its impact on trade routes, valuable resources, and strategic alliances. The interplay between the South China Sea dispute and UNCLOS underscores the tension between territorial claims and international legal principles. A nuanced understanding of these complexities is essential for maintaining stability, upholding legal norms, and facilitating peaceful resolutions within the intricate landscape of maritime geopolitics. 

 

Chinese Energy Financing in the Western Balkans

Posted on Fri, Jan. 19, 2024

Stephen Minas, Peking University

 

This article analyses Western Balkan coal projects financed by Chinese institutions from the perspective of Energy Community law and identifies multiple breaches of the transposed acquis. It also demonstrates that both the legality and the economic viability of such coal projects will be further imperiled by current and ongoing developments in EU and Energy Community law that respond to the climate crisis, but also by changing Chinese policy on outbound financing for coal and efforts to ‘green’ the Belt and Road. The article concludes that Contracting Parties in the Western Balkans should recognize these growing risks to financing coal projects and should focus on developing renewable energy resources, consistent with their Energy Community commitments.

 

Transnational Legal Ordering of Modern Trust Law

Posted on Thu, Jan. 18, 2024

Rebecca Lee, The University of Hong Kong

 

This chapter studies transnational legal orders (TLOs) in the context of trusts and demonstrates that such ordering is evident in the processes through which modern trust norms develop and flow across borders to become a substantive body of transnational and comparative trust law. By reference to innovations and transformations in trust embraced by offshore trust jurisdictions and the rise of the civil law trust in East Asia, this chapter argues that modern trust norms produce multiplicities of legal orders that transcend both offshore and onshore jurisdictions, as well as both common law and civil law jurisdictions.

 

Sources of Tax Revenue in China

Posted on Thu, Jan. 18, 2024

Wei Cui, University of British Columbia 

 

Few would deny taxation’s critical role in the Chinese economy and Chinese politics, yet social scientific investigations of Chinese taxation remain preliminary and fragmented. This is traceable to the under-development of scholarship with a normative orientation—research that aims to assess Chinese taxation from the perspective of economic efficiency, redistribution, and other social objectives. The chapter starts with an analysis of China’s major tax policy instruments, clarifying misconceptions and assessing efficiency and distributional properties. It then critiques recent scholarship on taxation's impact on China's economy, highlighting shortcomings in policy analysis and overlooked normative tax design questions. The chapter explores political institutions and public finance, including revenue-raising incentives, tax competition, and business-government relations. It urges scholars to better articulate the implications of their studies for theory or policy. Lastly, it evaluates how research on tax administration and compliance enhances our understanding of China's political economy and fiscal capacity investments.

 

Negotiating Legality: Chinese Companies in the US Legal System

Posted on Wed, Jan. 17, 2024

Ji Li, University of California, Irvine

 

Despite escalating geopolitical rivalry, the US and China continue to be economically intertwined. Numerous Chinese companies have made substantial investments in the US and are reluctant exit this strategically important market. While the global expansion of Chinese companies has ignited intense policy and academic debates, their interactions with complex host-state legal systems have largely escaped systematic examination. To fill this knowledge gap, this book introduces a dual institutional framework and applies it to analyzing extensive interviews and multi-year survey data, thereby shedding light on how Chinese companies develop in-house legal capacities, engage with US legal professionals, and navigate litigation in US courts

 

Talk: Women’s Property Rights under CEDAW

Posted on Tue, Jan. 16, 2024

Philip K. H. Wong Centre for Chinese Law, The University of Hong Kong

 

For over 40 years, the leading international treaty body on women's rights, the Committee on the Elimination of All Forms of Discrimination Against Women (the CEDAW Committee), has been generating jurisprudence interpreting CEDAW's obligations that states protect the equal rights of women in relationships; family rights, including inheritance; rights to land, adequate housing, financial credit, social benefits, intellectual property, and other economic rights dependent on equal access to justice. This book concludes that CEDAW’s re-engendering of property—although a flawed and evolving work in progress—has the potential to be transformative for the half of the planet who is more likely to be treated as property than to have any.

Date & Time: January 25, 2024, Thursday, 13:00–14:00 (Zoom)

 

International Speaker Series Spring 2024

Posted on Tue, Jan. 16, 2024

Philip K. H. Wong Centre for Chinese Law, The University of Hong Kong

 

In Spring 2024, our Centre is excited to host a new round of International Speaker Series, featuring distinguished scholars from the United States, Europe and China. These interactive talks will showcase the latest ideas and publications related to domestic and international laws, offering fresh perspectives on topics such as women's rights, EU competition law, legal compliance for Chinese companies in the United States, and Chinese tech regulation. Anyone with a keen interest in China is most welcome to join us!

 

A Roadmap for a US-China AI Dialogue

Posted on Mon, Jan. 15, 2024

Graham Webster, Stanford University

Ryan Hass, Brookings

 

When President Joe Biden and General Secretary Xi Jinping met in California in November 2023, their governments announced a new bilateral channel for consultation on artificial intelligence (AI). If both governments scope this effort wisely and focus on several concrete, tractable issues, they may have an opportunity to make lasting progress in reducing risks and building consensus around the governance of emerging technologies. If they fail to coalesce around common objectives, though, they risk creating another forum for ritual airing of grievances. This window of opportunity may be fleeting, so they must use it purposively.

 

Hong Kong’s Common Law System under “One Country, Two Systems”: History and Development

Posted on Fri, Jan. 12, 2024

Philip K. H. Wong Centre for Chinese Law, The University of Hong Kong

 

This lecture presents the preservation of the original common law system by the Hong Kong Basic Law under “One Country, Two Systems,” primarily by exploring the historical context of the Sino-British Joint Declaration negotiations and the formulation of the Hong Kong Basic Law. From the perspective of safeguarding residents’ basic rights under the Hong Kong Basic Law, this lecture will elucidate the evolution of the common law system as upheld by the courts of the Hong Kong Special Administrative Region (SAR) following the handover. Moreover, within the context of China’s “14th Five-Year Plan” and the burgeoning construction of the Guangdong-Hong Kong-Macao Greater Bay Area, this lecture will investigate ways to maintain the benefits of Hong Kong’s common law system while integrating it into China’s broader progress.

Date & Time: 24 January 2024 (Wednesday) 17:30 – 19:35

Venue: Academic Conference Room, 11/F, Cheng Yu Tung Tower, HKU (Live via Zoom)

 

Unveiling China's Path to Innovation

Posted on Fri, Jan. 12, 2024

Qingfeng Luo, Southwestern University of Finance and Economics

Xi Zhao, Southwestern University of Finance and Economics

 

The spatial Durbin model is employed to examine the factors influencing spatial relevance and diverse differentiation of intellectual property protection, utilizing panel data from 283 prefecture-level Chinese cities spanning from 2010 to 2019. The findings reveal substantial regional disparities in intellectual property protection, attributed to innovation capacity, knowledge spillovers, industrial structure, judicial protection, administrative protection, and social supervision. 

 

Choice of Law and Recognition in Asian Family Law

Posted on Thu, Jan. 11, 2024

Anselmo Reyes, Singapore International Commercial Court

Wilson Lui, The University of Hong Kong

Kazuaki Nishioka, Chuo University

 

This thematic volume outlines the general choice of law and recognition rules relating to family matters of 15 Asian jurisdictions: Mainland China, Hong Kong, Taiwan, Japan, South Korea, Singapore, Malaysia, Vietnam, Cambodia, Myanmar, the Philippines, Indonesia, Thailand, Sri Lanka and India. The book provides a comprehensive analysis of cross-border family law challenges, including child surrogacy, child abduction, the recognition of same-sex unions, the recovery of maintenance, and the regulation of intercountry adoption. These are among the matters now testing Asian institutions of private international law and acting as forces for their modernisation. With contributions by leading Asian private international law experts, the book proposes necessary reforms for each of the jurisdictions analysed as well as for Asia as a whole.

 

The Futility of Hostile Takeovers in China

Posted on Wed, Jan. 10, 2024

Chun Zhou, Zhejiang University

Samantha Tang, National University of Singapore

 

China’s emerging hostile takeover market has become the darling of the international business world. Following wave after wave of unsolicited takeover bids over the past five years, pundits have been eagerly predicting a tsunami of successful hostile takeovers to arrive any day now. But China’s hostile takeover market remains a mirage. Few hostile bids have ever succeeded, and China’s market for corporate control is littered with high-profile failures. The authors argue that it is the futility – and not success – of hostile takeovers that is inevitable in China. The confluence of idiosyncratic local factors, such as China’s state-dominated controlling shareholder environment, institutional reluctance to enforce takeover regulations to facilitate takeovers, and government intervention at both central and local levels, render a successful hostile takeover improbable.

 

Abuse of Dominance in the Hong Kong Television Sector

Posted on Wed, Jan. 10, 2024

Kelvin Kwok, The University of Hong Kong

 

This article critically evaluates legal developments in relation to the regulation of abuse of dominance in the Hong Kong television sector, focusing on the milestone case of Television Broadcasts Ltd (TVB). The decisions of the Communications Authority (CA) and the Court of First Instance (CFI) in 2013 and 2016 respectively provided important insights on the application of the small but significant and non-transitory decrease in quality (SSNDQ) test in two-sided markets and the ‘purpose/object’ and ‘effect’ tests to exclusivity practices, and more generally, the analysis of abuse of buyer power in a labour market setting. Hong Kong competition authorities are likely to be confronted with similar issues as they gradually expand their enforcement activities into digital markets and abuse of market power scenarios beyond the broadcasting sector. 

 

China’s National Security Review of Foreign Investment: A Comparison with the United States

Posted on Tue, Jan. 7, 2024

(Robin) Hui Huang, Chinese University of Hong Kong

 

This paper critically examines China’s national security review regime of foreign investment and compares it with that of the United States. This paper finds that the national security review regimes of the two jurisdictions have functional convergences despite some formal divergences caused by diverse political-economy landscapes. Their functional convergences are highlighted by China’s local practices, such as the de-facto national security screening in the name of anti-monopoly review. There are many factors affecting China’s national security review regime for foreign investment, including the ongoing (and escalating) US-China competition (or conflict) at the international level and the evolution of state or party capitalism at the domestic level. These research findings will not only contribute to the existing comparative law scholarship, but also benefit multi-national enterprises that seek to enter Chinese and the US markets.

 

China’s Short-Sighted AI Regulation

Posted on Tue, Jan. 7, 2024

Angela Huyue Zhang, The University of Hong Kong

 

The Beijing Internet Court’s ruling that content generated by artificial intelligence can be covered by copyright has caused a stir in the AI community, not least because it clashes with the stances adopted in other major jurisdictions, including the United States. In fact, that is partly the point: the ruling advances a wider effort in China to surpass the US to become a global leader in AI. From the government to the courts, Chinese authorities have become fixated on ensuring that the country can surpass the US to become the global leader in artificial intelligence, no matter the cost. They seem not to realize just how high that cost may turn out to be.

 

The Cambridge Handbook of Foreign Judges on Domestic Courts

Posted on Mon, Jan. 6, 2024

Anna Dziedzic, University of Melbourne

Simon N. M. Young, The University of Hong Kong

 

Foreign judges sit on domestic courts in over fifty jurisdictions worldwide. They serve on ordinary courts, including apex and constitutional courts, as well as specialist courts, such as international commercial courts and hybrid criminal tribunals. This Handbook presents the first global comparative study of this long-standing, diverse and evolving practice, from colonial precedents to new forms of foreign judging in contemporary conditions of globalisation. Chapters by scholars of law, politics and history, and reflections by judges themselves, provide detailed information and critical analysis of foreign judging across Africa, Asia, the Caribbean, Europe, the Middle East and the Pacific. The chapters examine the notion and relevance of foreignness, rationales for foreign judges, and the implications for judicial identity, adjudication, independence and accountability. Focusing on an underexplored issue that features mainly in small states and jurisdictions of the Global South, this Handbook challenges assumptions and expands knowledge about courts and judges.

 

Property Law: Comparative, Empirical, and Economic Analyses

Posted on Mon, Jan. 6, 2024

Yun-chien Chang, Cornell University

 

This book uses a unique hand-coded data set on nearly 300 dimensions on the substance of property law in 156 jurisdictions to describe the convergence and divergence of key property doctrines around the world. The author quantitatively analyzes property institutions and uses machine learning methods to categorize jurisdictions into ten legal families, challenging the existing paradigms in economics and law. Using other cross-country data, the author empirically tests theories about property law and comparative law. Using economic efficiency as both a positive and a normative criterion, each chapter evaluates which jurisdictions have the most efficient property doctrines, concluding that the common law is not more efficient than the civil law. Unlike prior studies on empirical comparative law, this book provides detailed citations to laws in each jurisdiction. Data and documentation are publicly available on the author’s website.

 

Workshop: The Constitution and the Civil Code

Posted on Fri, Jan. 5, 2024

The University of Hong Kong

The Workshop will explore the relationship between constitution and civil codes, focusing attention on Asia, albeit from a broad, comparative perspective. Two themes are particularly important: (i) the structure of the relationship between constitutional (or human) rights and the private law; and (ii) the interactions between domestic institutions – the courts, the legislature, the executive – in efforts to “constitutionalize” civil codes, if any. The Workshop will depart from a traditional “conference format,” in that participants will not present papers. Instead, they have produced short texts that will help to organize our “roundtable” discussions.

Date: January 12-13, 2024 (Friday & Saturday) 

Venue: Room 901, Cheng Yu Tung Tower, HKU (In-person)

How the Chinese Diaspora Paved the Way for BRI

Posted on Thu, Jan. 4, 2024

Richard Cullen, The University of Hong Kong

 

The biggest international trading venture in world history is 10 years old. But there’s an extraordinary tale behind the Belt and Road Initiative, or BRI. And that’s the story of the exceptional Chinese Diaspora experience, which laid the foundations for the infrastructure project’s success. This Chinese macro-migration endeavour, individual by individual, long predates the remarkable BRI, which is, today, measurably retracing the diaspora’s pioneering footsteps.

Regulating Emissions Data Quality, Cost, and Intergovernmental Relations in China's National Emissions Trading Scheme

Posted on Thu, Jan. 4, 2024

Ling Chen, McGill University

Ruoying Li, Peking University

 

Emissions data collection and management are crucial to operationalizing an emissions trading scheme (ETS). Regulators need high-quality data to allocate emissions allowances and monitor compliance. However, collecting such data can be costly, challenging various actors. Emitters may misreport data, weighing the cost against their interest, while governments may struggle with limited resources in managing compliance. Third-party verification is a solution but tends to be ineffectual and causes new problems unless with sufficient oversight and support. This quality-cost dilemma becomes even more complex in multi-level ETSs, as in China’s national ETS (NETS). This Article establishes a three-element analytical framework—data quality, cost concerns, and intergovernmental relations in data management—to shed light on the nuances of data regulation. The actor-centered analytical model and practical recommendations for the NETS can serve as a valuable guide for jurisdictions facing similar data challenges.

 

[Call for Paper] Law &: An Exploration of the Past, Present, and Future of Interdisciplinary Legal Studies

Posted on Wed, Jan. 3, 2024

The University of Hong Kong

The HKU Centre for Interdisciplinary Legal Studies will host its inaugural “Law &…” conference on interdisciplinary legal research. This event will bring together researchers from around the world to examine, share, celebrate, and critique interdisciplinary approaches to legal studies. The conference will be held on May 22–23, 2024. It will feature a wide range of speakers, including a keynote presentation by Mark Suchman, Executive Director of the American Bar Foundation. We invite submissions from those interested to attend.

 

Legal Strategy for Commercial Hostage-Taking and Business Exit Bans

Posted on Wed, Jan. 3, 2024

Jack Wroldsen, California Polytechnic State University

 

When an everyday civil business dispute arises in China between a U.S. company and a Chinese company, such as an alleged contract breach, employees of the U.S. company may find themselves subject to an exit ban and unable to leave the country or locked in a guarded hotel and unable to leave their room. When U.S. business leaders or their employees are subject to exit bans or become commercial hostages in China, they confront a problem unlike almost any other they face in the ordinary course of business in the U.S. Relying in part on previously confidential exit ban data on U.S. citizens, obtained from the U.S. Embassy in Beijing under a FOIA request, this article explains how U.S. and other nations’ business leaders can use legal strategy to prepare for and handle commercial hostage and business exit ban situations. The article also explains the Chinese legal and cultural influences that give rise to both practices.

Sino-American Parallels in Administrative Law

Posted on Fri, Dec. 29, 2023

Andrew Willinger, Duke University

 

This Article explores the parallels between challenges to agency deference in the United States and recent popular concerns about arbitrary local government action in China. By analyzing both legal scholarship and media reports, the Article shows that these phenomena are two sides of the same coin. While China is not likely to embrace judicial independent, this Article suggests two ways to address perceived local government overreach in China—informed by the American experience with Chevron. Rather than rely on normal judicial review, which is likely to be highly deferential in the Chevron mold, the Chinese judiciary might embrace broader policy suggestions and conduct more probing textual analysis of whether local governments are acting in accordance with positive, statutory law.

 

Monopoly and Fragmentation: Data Collection in Chinese Empirical Legal Studies

Posted on Thu, Dec. 28, 2023

Qin (Sky) Ma, New York University

 

The quality of empirical research is dependent on the reliability and validity of the data collected. This paper aims to analyze the problems in data collection methods in Chinese empirical legal studies. Based on the analysis of 692 empirical legal research articles published in Chinese core journals, this study has identified the prominent problems including serious monopoly, fragmentation, over-reliance on secondary data, incompleteness of data, and unclear descriptions of data collection methods, etc. These problems have severely limited the validity, depth, and development of Chinese empirical legal research. The findings highlight the necessity of addressing the deficiencies in data collection to promote the quality of empirical legal research.

 

Learning from Your Rival? A Surprising Convergence of Chinese and American Corporate and Securities Laws

Posted on Thu, Dec. 28, 2023

Wei Zhang, Singapore Management University

 

Despite the increasing tension between China and US, a student of Chinese law will be surprised at the increasing similarity between corporate and securities laws in China and US. Many Chinese twists as there are, the overall trajectory of China’s corporate and securities laws appears evidently moving closer toward their American counterparts. The author will trace the recent changes in Chinese laws, regulations and judicial interpretations and decisions to substantiate this point. At the same time, the author will also present an analytical framework to explain this legal convergence in an era of decoupling between China and the US. The explanation is based on two key factors, legal professionalism and political populism. Understanding the convergence of Chinese corporate and securities laws to their American counterparts will enable us to make a better-informed assessment of the uniqueness of China’s corporate governance and securities regulation paradigms.

 

How Do Patent Subsidies Drive SMEs to Patent? Evidence from China

Posted on Mon, Dec. 11, 2023

Runhua Wang, The University of Science and Technology Beijing

 

This study explores how patent subsidies have promoted the patenting propensities of small and medium-sized enterprises (SMEs) in China. Patent subsidy policies provided limited financial support but sent signals to create prospects of obtaining policy surpluses by filing patent applications. This study provides empirical evidence of the signaling effect by showing that innovation-inactive SMEs and SMEs in patent-free industries filed inframarginal patent applications. Ex-ante subsidy policies offered stronger signals than ex-post subsidy policies. However, after a pro-patent culture was cultivated, SMEs were impervious to a decrease in patent subsidies and did not effectively perceive messages of strengthening patent quality from further policy changes. The signaling effect suggests effective policies for promoting patent applications in a weak patent regime that does not reward patents through the market. By contrast, it also accompanied distortion effects, indicating the policy’s failure to reduce the transaction costs associated with SME adapting to the patent regime.

 

‘Duty-Related Violations’: An Umbrella Notion for Politicising the Supervisory System in China

Posted on Mon, Dec. 11, 2023

Su Bian, Jiangsu Ocean University

 

The promulgation of the Supervision Law in China reflects the central government’s determination to combat ‘corruption’ at a new level. The National Supervisory Commission was established as an independent commission with broad-ranging supervisory powers, along with other supervisory commissions at local level. While these commissions’ jurisdiction over ‘duty-related crimes’ is prescribed in detail by law, what ‘duty-related violations’ are and how the commissions supervise them remain blind spots in the Supervision Law. This paper analyses supervision-related administrative judgments from 2018 to 2021 to summarise the three channels through which supervisory commissions can become involved in administrative litigation, yet none of them support the undertaking of judicial review. In this respect, the vague definition of duty-related violations, combined with the lack of an effective judicial review mechanism, can have adverse effects on the rule of law project that China has been striving to build over the past four decades.

 

Property as National Security

Posted on Fri, Dec. 8, 2023

Matthew S. Erie, University of Oxford

 

Two historically disparate fields of law—property and national security—are colliding and they are doing so through the hyper-activity of state governments. Against the backdrop of the U.S.-China trade/tech war, state governors and legislatures try to out-compete each other in introducing China-related bills to sever all ties with China, stunt the growth of Sinocentric supply chains, and neutralize China’s soft power in the world. While the state bills operate in parallel to federal legislation and regulation, in many instances, states’ activities go much farther than federal efforts. States are laboratories of China-delinking. National security is often the justification for these laws. While the state statutes are strong symbolic aspects, they are already affecting property relationships, and raise a host of constitutional and foreign affairs questions. These issues have galvanized litigation that is working its way through the federal court system. The infusion of national security into property law has potentially far-reaching consequences not only for Chinese citizens resident in the U.S. and also for U.S.-China relations, but also for the future development of property law.

 

China’s Dilemma in Renewing Its Belt and Road Initiative

Posted on Thu, Dec. 7, 2023

Leon Trakman, University of New South Wales

 

China faces difficult choices in renewing its Belt and Road Initiative (BRI) in the post-Pandemic era. With its primary BRI now extending from Asia to Africa, Latin America and beyond, China is depicted as a saviour rescuing developing states from their colonial roots and sublimation to the economic outreach of Western liberal states. Alternatively, China is envisaged as a new colonial landlord acquiring property through investment and exploiting local economies for its own economic and political good, at their expense. For those mediating between these two extremes, China is both well intended in seeking to promote global investment and to assist developing states, while sometimes aggressively seeking economic benefits for its outbound investors. Whether it is doing so primarily for its own good or for the wellbeing of its developing state partners, conciliators infer, would depend on the specific case. This article explores these dynamics in China’s treaties providing for settling investment disputes along its BRI. It examines how China might reframe these dispute resolution options in the future.

 

Can China Squelch Free Speech Beyond Its Borders?

Posted on Thu, Dec. 7, 2023

Ge Chen, Durham University

 

This research presents a pioneering analytical framework that delves into the structural implications of China’s transnational censorship on global freedom of expression over the past decade. The study meticulously unpacks the party-state’s evolving transnational censorship laws, highlighting their novel structural nuances. It further investigates the multi-faceted strategies employed by the party-state to amplify its authoritarian influence across political, economic, and technological domains. At its core, these laws, while appearing to adhere to a legitimate legal framework, are characterized by their unique normative features. Collectively, they not only reshape the content of global discourse but also challenge the prevailing international order that upholds free speech.

 

The Chinese Approach to Artificial Intelligence: an Analysis of Policy, Ethics, and Regulation

Posted on Wed, Dec. 6, 2023

University of Oxford

 

In July 2017, China’s State Council released the country’s strategy for developing artificial intelligence (AI), entitled ‘New Generation Artificial Intelligence Development Plan’. This strategy outlined China’s aims to become the world leader in AI by 2030, to monetize AI into a trillion-yuan (ca. 150 billion dollars) industry, and to emerge as the driving force in defining ethical norms and standards for AI. Several reports have analyzed specific aspects of China’s AI policies or have assessed the country’s technical capabilities. Instead, this article focuses on the socio-political background and policy debates that are shaping China’s AI strategy. In particular, it analyzes the main strategic areas in which China is investing in AI and the concurrent ethical debates that are delimiting its use. By focusing on the policy backdrop, this article seeks to provide a more comprehensive and critical understanding of China’s AI policy by bringing together debates and analyses of a wide array of policy documents.

 

The Transparent Self Under Big Data Profiling: Privacy and Chinese Legislation on the Social Credit System

Posted on Wed, Dec. 6, 2023

Yongxi Chen, Australian National University

Anne S. Y. Cheung, The University of Hong Kong

 

This article first maps out the background to the construction of China’s big data social laboratory and the Social Credit System (SCS), and then summarises the legislative history and evolving concept of social credit. It stresses that apart from the conspicuous SCS policy document introduced by the Chinese central government, pilot legislation has already been implemented at the local levels to regulate the collection and processing of social credit data. The third part critically reviews such local legislation with reference to personal data protection principles. It also highlights the restrictions on the data subjects’ rights that are placed by the uncoordinated legal framework of personal data and the extra-legal regime of personal archive. It argues that existing legislation and proposed regulations require substantial revisions to mitigate the impacts of the SCS on data privacy. This article hopes to lay the groundwork for further legal study related to social credit and big data in China.

 

Talk: The Law of the Sea and Uncertain Futures (Dec 21 2023)

Posted on Tue, Dec. 5, 2023

Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong

 

The future can no longer be proofed under existing rules-based international order. Rather, the international community is facing very uncertain global futures. While international community celebrated the 40th Anniversary of the United Nations Convention on the Law of the Sea in 2022, we are at a critical period of developing global regimes for the world’s oceans: the United Nations Conference on Marine Biodiversity in Areas beyond National Jurisdiction (2023 BBNJ Agreement), the Convention on Biological Diversity’s Kunming-Montreal Global Biodiversity Framework (2022), International Seabed Authority’s Mining Code and the Plastics Treaty are all being developed simultaneously. It is therefore essential and timely to examine to what extent current development of the law of the sea can address triple-planetary crisis – climate change, biodiversity loss and pollution, in order to navigate uncertainties towards a peaceful and sustainable future.

Date & Time: December 21, 2023 (Thursday) 12:30-13:30

Venue: Room 723, 7/F, Cheng Yu Tung Tower, HKU (In-person)

 

Urban Commons on Uncommon Ground: Contesting Co-Governance in China's Global Cities

Posted on Mon, Dec. 4, 2023

Guanchi Zhang, Vermont University

 

Urban centers worldwide, including those in the United States and China, grapple with a paradox – they are powerhouses of wealth and opportunity, yet they simultaneously suffer from increasing unaffordability and exclusiveness. Can land use regulations be the key to making our urban environments prosperous and common? This paper draws on the growing discourse surrounding urban commons – the idea that views urban land as a shared resource, with individual usage influencing comprehensive economic and social outcomes for the community. The discourse moves beyond the traditional, growth-centric approach favoring the “optimal use” of land, contrasting it with an emerging co-governance paradigm. This alternative model encourages an equitable distribution of power and interests among communities, governments, and developers, fostered through systematic collective action.

 

“Confucius” and America’s Dangerous Myths about Chinese Law

Posted on Mon, Dec. 4, 2023

Daniel Friedman, Villanova University

 

American legal scholars can’t stop talking about Confucius: there were over 100 law review articles in 2022 alone that reference Confucian ideas, and nearly 1,500 during the last five years. Almost all of them are wrong about what Confucius has meant for Chinese legal culture. In the face of five decades of contrary historical scholarship, these law review articles argue or imply that Chinese law started to become “Confucian” about 2,000 years ago and has never really changed since. That continuity (or stagnation), these scholars claim, is one of the keys to understanding contemporary Chinese law. As this article will show, the reality is very different.

 

The Private Law Influence of the Great Qing Code

Posted on Fri, Dec. 1, 2023

Taisu Zhang, Yale University

 

This chapter considers the socioeconomic functionality of legal codes and codification through the lens of late imperial Chinese legal history. Specifically, it asks whether formal legal codes can wield significant influence over private socioeconomic behavior despite being poorly enforced—or even unenforced—and whether such influence derives, in part, from the symbolic value of codification itself. It argues that the answer to both questions is likely “yes,” at least in the context of Qing Dynasty private law. This contains potentially generalizable insights into the nature of legal authority and prestige, some of which may potentially be applied to the recent passage of the Chinese Civil Code in 2020.

 

Rape-by-Deception in China: A Messy but Pragmatically Desirable Criminal Law

Posted on Fri, Dec. 1, 2023

Jianlin Chen, University of Melbourne

Bijuan Lu, Avantro

 

China’s Criminal Law defines rape to include circumstances where a perpetrator “by violence, coercion, or any other means rapes a woman.” This article critically investigates whether and how this provision is applicable to the use of deception to obtain sexual intercourse, and makes three contributions. First, it demonstrates that religious fraudulent sex, medical fraudulent sex, and impersonation of intimate partners are punished as rape in China. Second, it argues that current Chinese law is normatively desirable vis-à-vis the general consensus among scholarly commentary and legal practices elsewhere. Third, it highlights the unique starting point of Chinese sexual offenses provisions as compared to both common law and civil law jurisdictions. This case study of China challenges the prevailing assumption in English-language literature that civil law jurisdictions are less receptive towards fraudulent sex criminalization. 

 

Public or Privacy? Dual Process Theory and Fair Use of Disclosed Personal Information in Chinese Judgement

Posted on Thu, Nov. 30, 2023

Alexander Chan Hou Lou, Tsinghua University

 

Current academic discourse in China predominantly centers on the fair use of personal information within the frameworks of either the Civil Code or the Personal Information Protection Law (PIPL), often overlooking the coordination challenges that arise between these two legislative instruments. Such an oversight complicates the statutory interpretation of contentious matters such as “fair use” versus “post-hoc refusal” concerning disclosed personal information. This gap in understanding is evident in judicial divergences observed in cases involving the secondary publication of judgments, such as the Yi Case and the Liang Case. To address this lacuna, this paper proposes the integration of cognitive science’s “Dual Process Theory” into legal studies. 

 

Comparison of Women’s Abortion Rights between China and the United States

Posted on Thu, Nov. 30, 2023

Xiaojing Gao, George Washington University

 

This paper compares the current abortion laws in the United States and China and discusses China’s strict restriction on forcing women to abort during China’s one-child policy between 1980 and 2015. It proposes that first, the U.S. Supreme Court’s decision in Dobbs v. Jackson of eliminating the federal constitutional right to abortion went too far to an extreme just like China’s one-child policy. This shift has made a democratic country act like a collectivist country by leaving women no individual freedom. Second, depriving women’s federal constitutional right to abortion violated international human rights. Further, the holding in Dobbs violates the United States’ treaty obligations under the ICCPR. Eliminating women’s abortion rights violates women’s right to autonomy, the right to be free from torture and cruel, inhuman, or degrading treatment.

 

Who Owns Huawei?

Posted on Wed, Nov. 29, 2023

Christopher Balding, Fulbright University Vietnam

Donald C. Clarke, George Washington University

 

As Huawei has come under increasing scrutiny, the question of who really owns and controls it has come to the fore. Huawei calls itself “employee-owned,” but this claim is questionable, and the corporate structure described on its website is misleading. A number of pertinent facts about Huawei’s structure and ownership are in fact well known and have been outlined many times in the Chinese media, but the myth of Huawei’s employee ownership seems to persist outside of China. This article, drawing on publicly available sources such as media reports, corporate databases, and court cases, aims to refute this myth once and for all.

 

'Me Too': Public Opinion Movement as Collective Action

Posted on Wed, Nov. 29, 2023

Yao Lin, New York University

 

This article is the first in a two-paper series, which offers a comprehensive and systematic review of, and response to, various anti-MeToo arguments made by MeToo skeptics. Taking the U.S. and China as examples, the first section overviews the local contexts of anti-sexual-assault/harassment movements, and the respective issues and challenges they each confront. It then summarizes the three primary objectives of the MeToo movement (accountability, empowerment and reform) and the three ideal-typical critiques advanced by MeToo skeptics (the Mobs Critique, the Damsels-in-Distress Critique, and the Puritans Critique). The second through fourth sections will address various versions of the Mobs Critique and the fifth section the Damsels-in-Distress Critique, whereas the Puritans Critique will be left for the forthcoming second article in the series.

 

Chinese Cross-border Insolvency Laws: Recent Developments and International Implications

Posted on Tue, Nov. 28, 2023

Shuai Guo, China University of Political Science and Law

Jieche Su, China University of Political Science and Law

 

The present Chinese insolvency law is under the process of legislative reform, and one focus point among legislators and academics is cross-border issues. China is slowly opening up its market to foreign insolvency proceedings, as demonstrated by the 2021 Chinese Mainland-Hong Kong cross-border insolvency cooperation mechanism. This first attempt, however, is only available in three trial cities in the Mainland and does not apply to jurisdictions other than Hong Kong. Nevertheless, it does not undermine the intention of the Mainland to advance its cross-border insolvency framework. Based on a thorough examination of Chinese legislation and judicial practices, this article submits that China would be willing to accept international standards and be a more active player in international insolvencies.

 

Evolution of Co-Patent Network and Patent Citation Network Centering on Chinese Firms

Posted on Tue, Nov. 28, 2023

Taro Akiyamma, University of Niigata Prefecture

Baojun Fang, University of Niigata Prefecture

 

This study investigates Chinese firms’ co-patenting and citation networks and examines their evolution since 1985. The co-patenting network exhibits declining betweenness centrality, indicating a more decentralized innovation ecosystem. By contrast, the citation network’s transitivity remains stable owing to the narrowing of the technological gap. Chinese universities hold central positions in the co-patenting network, whereas firms from the US, Japan, Germany, Taiwan, and South Korea maintain active interactions with China in the citation network. The increasingly interconnected structure of citation networks fosters a collaborative innovation environment, emphasizing the value of impactful innovations and strategic network positioning for enhanced innovation performance. These findings underscore the importance of these networks in fostering innovation and knowledge diffusion in China.

 

The Belt and Road Initiative and Sustainability: A Driving Force for Change or a Missed Opportunity?

Posted on Mon, Nov. 27, 2023

Roza Nurgozhayeva, Nazarbayev University

 

The traditional approach to regulating sustainability issues has empowered international institutions, states, and multinational corporate actors to lead and coordinate the worldwide agenda of a more sustainable future. However, the existing constraints create significant barriers to achieving the global sustainable development agenda. The fundamental questions, then: (1) to what extent does the Belt and Road Initiative (BRI) proposed by China help translate international sustainability commitments into global actions and create sufficient incentives to address suitability challenges worldwide? and (2) what are the constraints that erode the BRI’s effect on global sustainability?

 

Conference: Regulating Generative AI (Dec 14-15 2023)

Posted on Fri, Nov. 24, 2023

Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong

 

Since 2022, large-scale generative artificial intelligence has taken the global market by storm, revolutionizing industries and transforming people’s lives. However, the proliferation of AI has also spawned intricate legal, ethical, and regulatory challenges. Many countries have heightened their vigilance against AI-related risks, but the varying regulatory priorities and approaches among governments have further complicated the pursuit of responsible and sustainable AI development. In light of these fluid developments, the Philip K.H. Wong Centre for Chinese Law will host the “Regulating Generative Artificial Intelligence” conference to explore important topics such as content moderation, data security, intellectual property protection, ethics compliance, international cooperation, and standard-setting. Our hope is to facilitate international cooperation and contribute to the global dialogue on AI governance and regulation. All welcome to join!

Date & Time: 14 - 15 December 2023, Thursday & Friday, 09:00-17:30

Venue: Academic Conference Room, 11/F, Cheng Yu Tung Tower, HKU (in-person only)

 

Talk: On the Right to a Human Decision (Dec 12 2023)

Posted on Fri, Nov. 24, 2023

Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong

 

The spectacular development of AI-based technologies raises the question whether the encroachment of these technologies upon our lives should be constrained in various ways. Among the more normatively powerful and rhetorically resonant forms of constraint is the kind established by individual rights, especially human rights. And there has been an important discussion underway for some time now as to whether new developments in AI and digital technologies generally require that we re-conceive our understanding of human rights in various ways. In this talk, Professor Tasioulas focuses on one potential reconception: that the rise of AI justifies the recognition of a right to a human decision which requires, among other things, that certain types of decisions are made by humans and not AI systems. 

Date & Time: 12 December 2023, Tuesday, 12:00-13:00

Venue: Academic Conference Room, 11/F, Cheng Yu Tung Tower, HKU (in-person only)

 

Competing with Leviathan: Law and Government Ownership in China’s Public-Private Partnership Market

Posted on Thu, Nov. 23, 2023

James Si Zeng, Chinese University of Hong Kong

 

Despite years of economic reform, government-owned enterprises (GOEs) continue to be prevalent in certain sectors of China’s economy. Drawing on empirical evidence from China’s public-private partnership (PPP) market, this article empirically tests whether the theory of the ownership of enterprise can explain the distribution of GOEs in China. First, the enforcement of PPP contracts remains relatively weak in China, which gives rise to the concern of government opportunism. Second, the level of government ownership in each project correlates with the chances of government opportunism. These findings show that the level of government ownership is affected by two competing forces—ownership costs and transaction costs. While GOEs incur relatively high ownership costs, they generally incur lower transaction costs because they can curb government opportunism and thus can outcompete private firms in some projects.

 

Platform Regulation through Sanctions

Posted on Thu, Nov. 23, 2023

Michelle Miao, Chinese University of Hong Kong

 

This article, theoretically and empirically, articulates the rising role of criminal law as a regulatory tool of China’s digital platform economy. This unique Chinese model of digital platform governance is described as platform regulation through sanctions. Based on a comprehensive survey of a wide range of digital platforms, e.g., financial fundraising platforms, e-commerce, taxi-hailing and video-sharing platforms, and criminal cases involving such platforms, the author reveals the logic of regulation through sanctions: it shifts state regulatory burden and accountability, redistributes risks and responsibility, and enhances political legitimacy. This legal and regulatory of ecology exerts pressure on digital platforms but also allows its power to extend upward to serve public management functions as well as downward to modify individual behavior.

 

Chinese Law and Development: Implications for US Rule of Law Programs

Posted on Wed, Nov. 22, 2023

Matthew S. Erie, University of Oxford

 

China is emerging as an alternative source for law and development for low-income and middle-income states. A number of supply and demand factors account for this. On the supply side, China is becoming increasingly assertive in offering “Chinese-style modernization” to host states in the Global South. Specifically, the Party-State has endorsed what is called “foreign-related ‘rule of law’” which is a bi-directional policy initiative that seeks to both integrate more foreign law into the Chinese legal system and also incorporate more Chinese law into foreign and international law. Beyond the political bluster and political signalling, there is evidence of such initiatives affecting legal practice and institutions. On the demand side, host states value Chinese industrial policy, governance strategies, and digital ecosystem as facilitative of China’s economic growth model, of which law and regulation is part. In the long run, these innovations may promote South-South solidarity but they may just as likely support the commercial and geo-strategic interests of Chinese enterprises which may have aggregate effects on access to justice, procedural transparency, and human rights in vulnerable states. 

 

The Geoeconomics of Trade Infrastructure and the Innovation Competition between China and the US

Posted on Tue, Nov. 21, 2023

Kai A. Konrad, Max Planck Institute for Tax Law and Public Finance

 

China’s high investment in foreign trade structures and the extraordinary innovation efforts of their firms are closely related. They can be explained as a subgame perfect equilibrium outcome of an asymmetric strategic-trade model, in which infrastructure investment renders successful innovation by exporting companies in China more profitable, and in which China and the US have to choose different roles in this innovation competition. That China ends up in the role of the more active investor and the more innovative competitor in this process can be explained by China’s larger export sector and by their competition policy, which is more focused on national champions.

 

Responsibility for Special Equipment Safety Accidents in China

Posted on Tue, Nov. 21, 2023

Lin Xu, Central South University

 

Special equipment is widely used across China’s economic and social spheres, forming the basis for stable social and economic growth. However, the particularity of special equipment presents potential safety hazards during operation, which may result in severe accidents or damages. Currently, there are considerable theoretical disparities and legislative shortcomings in defining special equipment safety accidents and allocating legal liability. It is essential to clarify the role of product quality laws and consumer protection laws for special equipment. The function and significance of consumer protection laws in modern society must be determined concerning special equipment safety legislation. Finally, a professionalized national special equipment law should be enacted to eliminate safety hazards and minimize accident damages specific to the production and operation of special equipment.

 

Characterization (and Registration) of a “BRI Dispute”

Posted on Mon, Nov. 20, 2023

Jamieson Kirkwood, The University of Hong Kong

 

This article explores the terms “BRI dispute” and “BRI jurisprudence”. It undertakes a practical and theoretical analysis that considers whether “BRI disputes” have distinct and visible characteristics and are capable of being identified in a legal sense. This is important since practitioners – arbitration centres and law firms – use the term broadly and without specific criteria. By exploring the customary usage and the approach of legal scholars to the term, presenting examples of “BRI disputes” and examining their unique features, and constructing a theoretical approach, this article moves from a broad to a narrow analysis to develop both a definition and a system of registration of “BRI disputes” for use by academics, practitioners, and policymakers.

 

Equality, Dignity and Same-sex Marriage: Reflections on Developments in Hong Kong

Posted on Mon, Nov. 20, 2023

Kelley Loper, The University of Hong Kong

 

In 2023, the Hong Kong Court of Final Appeal (CFA) heard an appeal of the Court of Appeal’s decision in Sham Tsz Kit v Secretary for Justice, a case challenging the exclusion of same-sex couples from marriage and the lack of other forms of relationship recognition with equivalent rights and responsibilities. This article considers the lower courts’ earlier rejection of these constitutional claims and argues that their conception of the relevant constitutional, legal, and historical contexts is overly narrow. In particular, the failure to invoke the constitutional values of equality and dignity departs from CFA precedent and the well-established “purposive and contextual” approach to the interpretation of constitutional rights.

 

Addressing a Human Rights Paradox in the Green Transition

Posted on Fri, Nov. 17, 2023

Karin Buhmann, University of Southern Denmark

 

Current understandings of ‘cleaner production’ include views that companies should act on problems involving human rights, resources, and community involvement. While theory-based knowledge on how investors may do this remains limited, some transnational business governance instruments provide guidance. This article discusses how the human rights paradox of the green transition to fight climate change can be turned into opportunities for investors to contribute to local communities hosting transition minerals mining. The analysis is based on guidance from the OECD, a major market for transition minerals or energy-related products containing such minerals, and China, the world’s largest buyer and manufacturer of transition minerals. The author identifies actions for investors to cascade human rights due diligence and relevant capacity through the investment chain in ways that both limit harmful impacts and contribute beneficially to communities' human rights.

 

Coded Social Control: China’s Normalization of Biometric Surveillance in the Post-COVID-19 Era

Posted on Fri, Nov. 17, 2023

Michelle Miao, Chinese University of Hong Kong

 

China widely used health QR codes to combat the COVID-19 pandemic. A commonly held assumption is that health QR codes have become obsolete in post-pandemic China. This study challenges such an assumption. It reveals their persistence and integration—through mobile apps and online platforms—beyond the COVID-19 public health emergency. Their functional transformation from epidemiological risk assessment tools to instruments of behavior modification and social governance heralds the emergence of a Data Leviathan. This transformation is underpinned by a duality of underlying political and commercial forces. These include 1) a structural enabler: a powerful alliance between political authorities and tech giants and 2) an ideological legitimizer: a commitment to collective security over individual autonomy.

 

Effectiveness of Keepwell Deeds under Chinese Law and Consideration of the Public Interest

Posted on Thu, Nov. 16, 2023

Fang Wang, City University of Hong Kong

 

Keepwell deed structures are widely used by Chinese companies to enhance credit when they issue bonds overseas due to the limitations posed by foreign exchange regulations. However, when Chinese companies encounter distress and are unable to pay off the debt, questions as to their validity arise. Normally Chinese courts have no jurisdiction over these disputes where the parties have chosen foreign law and have an exclusive choice of the foreign court in the keepwell deed. However, when the enterprise commences an insolvency proceeding, the overseas creditors will have to enforce the keepwell deeds in China. Given the importance of foreign exchange regulation, the enforcement of the keepwell deed in China raises public interest issues. 

 

Data Sovereignty: From the Digital Silk Road to the Return of the State

Posted on Wed, Nov. 15, 2023

Anupam Chander, Georgetown University

Haochen Sun, The University of Hong Kong

 

Data Sovereignty focuses on the question of territorial control over data flows and attempts by national and regional governments to place limits on the free movement of data across a global internet. Drawing on theories in political economy, international law, human rights, and data protection, this volume offers new theoretical perspectives and thought-provoking ideas about the nature and scope of data sovereignty. It examines the extent to which new technologies, such as artificial intelligence, robotics, and automation, pose challenges to data sovereignty and how those challenges might be addressed. In chapters that are both descriptively comprehensive and analytically rich, the book explains the national, regional, and international legal frameworks for regulating the digital economy. 

 

Environmental Advocacy in a Globalising China: Non-Governmental Organisation Engagement with the Green Belt and Road Initiative

Posted on Tue, Nov. 14, 2023

Ying Xia, The University of Hong Kong

 

Although the Belt and Road Initiative (BRI) presents growth opportunities for less developed regions, it also raises concerns about negative environmental impacts and sustainability. Despite proliferating academic interest in China’s efforts to green the BRI, the engagement of non-governmental organisations in policymaking has been understudied. This research marks the first empirical effort to examine the interactions between environmental non-governmental organisations and the Chinese government under the banner of a green BRI. It finds that non-governmental organisations have employed four strategies to engage with the state-led initiative – civil diplomacy, development partnership, service provision, and outside reform – and that development partners and service providers have been more active than the others in shaping China’s BRI-related environmental policies. This article elucidates civil society actors’ opportunities and constraints in greening the BRI and non-governmental organisations–government dynamics in a non-democratic context.

 

License of Right System in UK and Germany — Implication for China

Posted on Tue, Nov. 14, 2023

Xia Liu, Tongji University

 

As a form of patent licensing, open licensing is a crucial mechanism for facilitating the transformation of patented technological achievements and knowledge diffusion. However, since China introduced this system in 2021, the detailed mechanism remains a topic of debate. This paper examines the similarities and differences in the specific mechanism designs of patent open licensing systems in the UK and Germany. By analyzing registered data from 2004 to 2020, and matching it with patent applicant and patent citation information, the study empirically tests the implementation effects of open licensing on knowledge diffusion. The assessment reveals that the incentive for knowledge spillover is relatively limited. Consequently, China needs to implement further institutional innovations during the introduction of the open licensing system.

 

Bend, Don’t Break: China’s Approach to the International Human Rights Order

Posted on Mon, Nov. 13, 2023

Jackson Neagli, Harvard University

 

This paper compares novel Chinese human rights proposals with Euro-American responses. Despite the allegedly irreconcilable differences between Chinese and western human rights frameworks, the paper identifies some areas of mutual intelligibility, if not agreement. The paper concludes that Beijing seeks to alter, but not undermine or replace, the international human rights order. Ultimately, however, China's human rights framework is unlikely to achieve dominance in the global marketplace of ideas.

 

Fishing Ban

Posted on Mon, Nov. 13, 2023

Haishan Yuan, University of Queensland

 

China has implemented the world’s first large-scale seasonal fishing bans for sustainable fishery, but their effectiveness is unclear given the challenges of patrolling a vast ocean. The author finds that the bans reduce boat detections in China’s Exclusive Economic Zone (EEZ) by about 72%, and the subsequent lifting of the fishing ban increased the number of boat detections by about 78%. However, there is no spatial discontinuity around the EEZ border, and more boats are detected inside the Chinese EEZ near its border with the Vietnamese EEZ when the Chinese fishing bans are effective. Since the Vietnamese EEZ was more intensively fished than the nearby Chinese EEZ, this spatial pattern near the EEZ border suggests that Vietnamese fishermen fished in the Chinese EEZ during the ban periods.

 

Foundational Principles of the Hong Kong National Security Law and the Institutions Established (Nov 17 2023)

Posted on Fri, Nov. 10, 2023

Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong

The Hong Kong National Security Law is an exceptionally distinctive legislation. Although not enacted within the Hong Kong SAR, it has been specifically tailored to address Hong Kong's “unique circumstances” and aims to achieve objectives with “Hong Kong characteristics”. This law incorporates numerous “Mainland China” legal concepts, but it is essential not to merely transplant or misapply the theories, methods, and standards of mainland criminal law or criminal procedure. This lecture by Professor Mingtao Huang will focus on the unique aspects of the Hong Kong National Security Law and discuss pertinent issues to consider in its implementation and judicial adjudication.

Date & Time: November 17, 2023 (Friday) 17:30 – 19:30

Venue: Academic Conference Room, 11/F, Cheng Yu Tung Tower, The University of Hong Kong (Live via Zoom in Mandarin)

 

China Data Privacy Laws, WeChat Muddy Cross-Border Inquiries

Posted on Fri, Nov. 10, 2023

T. Markus Funk, Perkins Coie

Mason Ji, Perkins Coie

Huijie Shao, Perkins Coie

 

Perkins Coie attorneys explain how China’s new data security laws and use of third-party apps, such as WeChat, by Chinese employees create significant obstacles for companies conducting internal investigations in the country. 

 

Sexual Harassment in Irregular Chinese Workplaces: Business Dinners, Team-Building Activities, and Social Media

Posted on Thu, Nov. 9, 2023

Jiahui Duan, The University of Hong Kong

 

Much of the social and economic inequality that sexual harassment perpetuates is created in the workplace. But research has not always acknowledged the fluid and changing nature of workspaces. This article argues that irregular workspaces and activities—bars and other social drinking sites at which yingchou (business drinking activities) take place, team building, and the WeChat social media platform—are significant sites of sexual harassment in China. These irregular workplaces play a significant role in working life in China, and their informality has made them prone to sexual harassment in the context of deeply entrenched gender norms and vertical power hierarchy.

 

China’s Influence on the Western Balkans’ EU Accession Process: Synergies and Obstacles

Posted on Thu, Nov. 9, 2023

Wilfried Martens Centre for European Studies

 

This study examines the influence of China’s presence and activities on the European Union (EU) integration process of the Western Balkans. Since the Thessaloniki Summit of 2003, only Croatia managed to join the EU, while the other countries in the region remain candidates for membership, with little prospects to join by 2030. The research investigates how China’s approach impacts specific outcomes, both supporting and undermining the EU accession process, chapter by chapter. It also explores the reasons behind these outcomes, including China’s approach, domestic agency, and geopolitical factors. The goal is to provide a comprehensive and cross-country analysis of China’s impact in the region and identify areas where the Western Balkan countries can eliminate or minimise negative consequences, or leverage potential synergies, ultimately aiming to understand the interplay between China’s involvement and the EU integration process in the Western Balkans. 

 

Why Public Opinion on the Death Penalty Doesn’t Matter in China

Posted on Wed, Nov. 8, 2023

Michelle Miao, Chinese University of Hong Kong

 

Capital punishment is a topic that has long attracted international legal, media and public policy discourses. As a global champion in administering the ultimate penalty in the past decades, China has yet to conduct any national public opinion surveys on the death penalty. Existing academic studies on the status of public opinion in China have not gained much traction in shaping public policy in China. Why doesn’t public opinion matter in China? This article explains that the scientific measurement of public opinion does not matter for at least three reasons: the two-tier opacity of the death penalty policies in China; the populist political need for constructing (rather than empirically measuring) public opinion; and the fluid and ill-informed nature of public sentiments that sometimes (but not always) affect judicial decisions. 

 

Son Preference in Testate Succession

Posted on Wed, Nov. 8, 2023

 

Yun-chien Chang, Cornell University

Sieh-Chuen Huang, National Taiwan University

Su-Li Her, Su-Li Her Notary Public Office

 

Despite a plethora of normative discussions on gender equality as well as empirical studies on gender discrimination and gender effects in various settings, there is a paucity of large-scale empirical studies on son preference by ordinary people in asset distribution. Using an idiosyncratic data set on more than 1800 notarized or authenticated wills in Taiwan, this article investigates whether testators show son preference in distributing estates in wills, and if so, what the driving factors are. 

 

Interlinking between Income Tax, Citizenship and Democracy? A Case Study of Canada and China

Posted on Tue, Nov. 7, 2023

Jinyan Li, York University

 

The interlink between taxation, citizenship and democracy appears to be obvious in Western democracies: citizens are voters, taxpayers and beneficiaries of public spending funded by tax revenues. The literature on the politics of taxation suggests that democratic institutions affect taxation at every stage of the policy-making process, the type of elections and governance model influence the level of redistribution and complexity of the tax system, democracies generally choose policies that are more favorable to the poor than non-democracies, the tax mix varies with the nature of the political regime, and more repressive governments rely less on personal income taxation. Political citizenship is not identical to tax citizenship. However, citizenship can be viewed as a proxy for domicile and, in effect, correspond to residence in most cases. The principle of “no taxation without representation” captures the quintessential link between taxation and democracy. This paper examines the interlink in Canada and China.

Constructing a Theoretical Framework for a Rules-Based Approach in BRI Dispute Resolution

Posted on Mon, Nov. 6, 2023

Jamieson Kirkwood, The University of Hong Kong

 

This article constructs a theoretical framework that sets out the basis for instituting a rules-based approach in BRI dispute resolution. This article is a response to the fact that there have been numerous calls for instituting a rules-based approach in BRI dispute resolution, but there has been little written in terms of laying a theoretical foundation for doing this. In such way, this article fills this gap by analysing what a rules-based approach to dispute resolution means, exploring what the BRI actually is and considering why rules are understood to be necessary in BRI dispute resolution. Although the article principally adds to the ongoing academic discussion regarding the reform of BRI dispute resolution it is also of use to practitioners and policy makers active in this field.

 

The Regulation of Dismissal in China

Posted on Mon, Nov. 6, 2023

Peter Chan, City University of Hong Kong

 

This article describes the origin and development of China’s dismissal legislation and local regulations. It identifies the quasi-federal nature of the Chinese dismissal system. The article then examines the legal framework of dismissal in China, focusing on dismissal types, grounds for lawful dismissal, employer obligations in terminating employment, and the remedies. The article focusses on the most important and controversial dismissal type: dismissal for breach of the employer’s internal regulations under Article 39(2) of the LCL. It analyses the diverging court practices and the local regulation of this type of dismissal. Finally, the article calls for a unified system to govern unlawful dismissal and considers how ILO Convention 158 can aid in refining China’s dismissal system.

China-U.S. Tech Rivalry Is Making It Harder to Contain AI Risks

Posted on Fri, Nov. 3, 2023

Angela Huyue Zhang, The University of Hong Kong

 

This week, the U.K. will convene a much-anticipated summit on artificial intelligence safety. The inclusion of China as a participant in the event has drawn a storm of criticism, though, with former British Prime Minister Liz Truss among those calling the move a mistake. Yet allowing ideology to interfere with global efforts to improve AI safety would be a grave error. Global AI safety requires international collaboration, and policymakers should recognize the urgency of this before it is too late. As the Sino-U.S. tech rivalry risks precipitating a regulatory “race to the bottom” in AI governance between the world’s two most prominent AI powerhouses, the international community must be alive to the potential catastrophic risks associated with AI and urge global AI businesses to establish robust safety protocols.

Place-Based Innovation Policies and China’s Patent Boom: Promotion vs. Distortion?

Posted on Fri, Nov. 3, 2023

Wenyin Cheng, Japan External Trade Organization

Bo Meng, Japan External Trade Organization

Yuning Gao, Tsinghua University

David Dollar, Brookings Institution

 

The past three decades have witnessed the boom of patents and mounting place-based innovation policies (PIPs) in China. However, the PIP-innovation nexus, particularly the distortion effect and underlying mechanisms, remains poorly understood. Matching micro-level patent data and industrial firm data, the authors document a promotion effect of PIPs on local firm innovation measured by both patent quantity and quality. Moreover, they observe a distortion effect on patent quality following the 2008 crisis, primarily originating from privately owned enterprises. Drawing from theories of technological learning and the unique institutional characteristics of PIPs in China, the authors unpack the underlying mechanisms driving these effects. Additionally, they reveal that preferential policies, such as patent subsidies and reductions in land prices, are instrumental in enabling PIPs to exert their impact.

 

Never Meet Your Heroes: Community Policing in Contemporary China

Posted on Thu, Nov. 2, 2023

Viola Rothschild, Duke University

Hongshen Zhu, University of Pennsylvania

 

For ordinary citizens, the local police represent the most common and recognizable face of coercive state power, yet, we have little systematic knowledge about how everyday, street-level policing impacts citizen’s political attitudes and behaviors. The authors study these relationships in the context of contemporary China. They propose that citizens living geographically closer to police stations will be both more exposed to, and reminded of, police violence, incompetence, or malfeasance. As a result, these citizens will be less likely to trust and participate in community political institutions. Using data from a recent nationally-representative, probability sample survey and highly precise, geo-referenced information on the location of police stations, the authors find evidence to support our theory. The findings indicate that the growing investment in the physical police state may further exacerbate local information capture and the alienation of citizens from the system.

Counter Currents to the Globalization of Proportionality

Posted on Thu, Nov. 2, 2023

Shiling Xiao, City University of Hong Kong

 

There has been extensive literature on proportionality that praises its global spread and delves into its embedment in domestic contexts. Through a series of case studies from around the world, however, this Article shows judicial practices countering, explicitly or implicitly, the popular notion of globalization of proportionality. The Chinese courts are but one of the examples. This Article describes these judicial practices as counter currents of proportionality and argues that they are not merely variations of proportionality used in local contexts, as they have either deserted this doctrine or contradicted its core features. In response to these counter currents, this Article proposes that once a court adopts proportionality in its adjudication, it must adhere to the structured analytical framework and insist on a minimum rigor of this doctrine.

 

American Law in the New Global Conflict (Nov 16 2023)

Posted on Wed, Nov. 1, 2023

Mark Jia, Georgetown University

 

International conflict has profoundly influenced American law. It has shaped the scope of civil rights and civil liberties, transformed the balance of constitutional institutions, and fostered shifts in legal culture. This talk will examine how today’s principal conflict, a growing rivalry between the United States and China, is shaping the American legal system. It contends that the new global conflict is reproducing, in attenuated form, the same politics of threat that has driven wartime legal development for much of American history. The result is that American law is reprising familiar patterns and pathologies. The talk provides a framework for understanding legal developments in this new era, contributes to our understanding of rights and structure in periods of conflict, and offers some tentative reflections on what comes next in the new global conflict, and how best to shape it.

Date & Time: Nov 16, 2023 (Thursday) 12:30-13:30

Venue: Academic Conference Room, 11/F, Cheng Yu Tung Tower, HKU  (In-person only)

 

Regime Type and Beyond: The Transformation of Police in Asia

Posted on Tue, Oct. 31, 2023

Weitseng Chen, National University of Singapore

Hualing Fu, The University of Hong Kong

 

Policing is legitimized in different ways in authoritarian and democratic states. In East and Southeast Asia, different regime types to a greater or lesser extent determine the power of the police and their complex relationship with the rule of law. This volume examines the evolution of the police as a key political institution from a historical perspective and offers comparative insights into the potential of democratic policing and conversely the resilience of authoritarian policing in Asia. The case studies focus on eight jurisdictions: Singapore, Thailand, Hong Kong, Vietnam, China, Taiwan, Japan and South Korea. The theoretical chapters analyse and explain the links between policing and society, the politics of policing and recent police reforms. This volume fills a gap in the literature by exploring the nature of authoritarian policing and how it has transformed and developed the rule of law throughout East and Southeast Asia.

 

Interpretation of the Basic Law of the Hong Kong SAR (Nov 10 2023)

Posted on Tue, Oct. 31, 2023

Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong

 

In this lecture, Professor Pingxue Zou will explore the system and practices associated with interpreting the Hong Kong Basic Law, examine the debates arising from its interpretative practices, and provide a summary of the common ground and persisting disparities in the interpretation of the Basic Law.

Date & Time: November 10, 2023 (Friday) 17:30 – 19:30

Venue: Academic Conference Room, 11/F, Cheng Yu Tung Tower, The University of Hong Kong (Live via Zoom in Mandarin)

 

Local Bank Supervision

Posted on Mon, Oct. 30, 2023

Di Gong, University of International Business and Economics

Thomas Lambert, Erasmus University Rotterdam

Wolf Wagner, Erasmus University Rotterdam

 

This paper provides novel evidence for informational advantages of local bank supervision, outweighing biases due to the pursuit of local interests. For identification, the authors exploit a policy reform in China that moved supervision for a subset of bank branches from the national to the city level. Following the reform, these branches were 50 to 74% more likely to face an enforcement action. The tighter local supervision results in more conservative lending by banks, reducing in turn aggregate loan supply in cities with more local supervision. These findings inform the debate on the design of an optimal supervisory architecture.

 

Counterfeit Buyers Counter Counterfeiters: Should Chinese Law Enable Private Enforcement against the Sales of Counterfeits?

Posted on Mon, Oct. 30, 2023

Jun He, Southern Utah University

 

To discourage counterfeits and compensate affected consumers, the Chinese government implements a compensation policy that stipulates buyers to receive compensation several times greater than the price of the transacted goods. This rule is exploited by “counterfeit hunters,” opportunistic buyers who specialize in detecting counterfeits and only purchase them to claim compensation. Using a simultaneous game, the author determines that the law should maintain the overcompensation while disallowing counterfeit hunters from an efficiency consideration. Although allowing counterfeit hunters to benefit from overcompensation leads to improvement in social welfare than the scenario without overcompensation (and hunters), social welfare further improves if overcompensation excludes hunters but, instead, extends its protection only to sophisticated consumers.

 

Angela Zhang on Why the West Should Pay More Attention to Chinese Antitrust Law

Posted on Fri, Oct. 27, 2023

Christopher Marquis, The China Project

 

While antitrust law may sound like an obscure and dry topic, Angela Zhang, author of Chinese Antitrust Exceptionalism: How the Rise of China Challenges Global Regulation published by Oxford University Press in 2021, persuasively advances the idea that it is essential to understand in today’s climate of geopolitical tension between China and the West. In this interview, Angela provides background on antitrust enforcement in China and also discusses how China’s antitrust regulations can be strategically leveraged as a potent economic tool to offset sanctions from the United States and other countries.

 

Sovereign Investors as ICSID Claimants: Lessons from the Drafting Documents and the Case Law

Posted on Thu, Oct. 26, 2023

Dini Sejko, Tufts University

 

The prominence of state-controlled entities (SCEs) in foreign direct investment (FDI) flows has created multilayer regulatory challenges. The nature of SCEs and geo-economic considerations related to their investments have exacerbated investment-related concerns and, since the global financial crisis and during the global pandemic, triggered legal reforms. Concurrently, SCEs have increasingly relied on international investment arbitration to solve their disputes. This Article examines the role of the International Centre for Settlement of Investment Disputes (ICSID) in resolving cases brought by an increasing number of sovereign investors. A comprehensive evaluation of the case law reveals that European SCEs have massively relied on the ICSID system, in contrast with Chinese SCEs that have made marginal use of it. 

 

The Weaponization of Private Corporate Infrastructure: Internet Fragmentation and Coercive Diplomacy in the 21st Century

Posted on Thu, Oct. 26, 2023

Juan Ortiz Freuler, Harvard University

 

In the early 1990s, US leaders promoted the internet as post-nation “global information infrastructure.” However, throughout the 2000s, critical internet infrastructure became centralized under the tight control of a handful of US-based multinational companies. This paper examines the US government’s willingness to leverage its regulatory control over privately run critical infrastructure to exercise massive internet surveillance, massive influence campaigns, and, increasingly, to levy unilateral cyber-sanctions on other sovereign states. The author argues that the weaponization of corporate internet infrastructure by the US government marks a new era of internet governance and is one of the key drivers of what is often discussed as internet fragmentation in internet governance forums.

 

Expropriation Risk and Investment: A Natural Experiment

Posted on Wed, Oct. 25, 2023

Siddharth M. Bhambhwani, Washington College

Hui Dong, Shanghai University of Finance and Economics

Allen Huang, Hong Kong University of Science and Technology

 

This paper uses the enactment of China’s 2007 Property Law (the Law), which reduces the risk of expropriation by local governments, as the setting to investigate the importance of property rights protection for private firm investment. Using propensity score matching and a difference-in-differences design, the authors find that firms facing weaker property rights protection prior to the Law significantly increase their investment and investment efficiency after the Law. Cross-sectional analyses document evidence consistent with a decrease in firms’ perceived expropriation risk as the main mechanism underlying the Law’s effect. Finally, the authors show that the Law improves local economic outcomes and employment.

Patent Pledgeability, Trade Secrecy, and Corporate Patenting

Posted on Wed, Oct. 25, 2023

Yanke Dai, Shanghai University of International Business and Economics

Ting Du, Central University of Finance and Economics

Huasheng Gao, Fudan University

Yan Gu, Fudan University

 

The authors identify a positive effect of patent pledgeability on corporate patenting. Their tests exploit the staggered city-level policy change, which allows firms to use patents as collateral for financing. Their study finds a significant increase in patents and patent citations for firms headquartered in cities that have adopted such policies relative to firms headquartered in cities that have not. The authors further show that patent pledgeability increases corporate patenting through the channel of inducing firms to shift from secrecy-based innovation to patent-based innovation, rather than the channel of mitigating financial constraints.

 

Self-regulatory Measures as Securities Regulation: The Saga of Antitakeover Regulation in China

Posted on Tue, Oct. 24, 2023

Sirui Han, Hong Kong Polytechnic University

 

Who writes antitakeover regulation in China? The rise of stock exchanges as self-regulatory agencies has transformed the landscape of antitakeover regulation in China. With non-coercive regulatory letters, stock exchanges’ disclosure-based approach has settled long-lasting debate on the validity of antitakeover provisions in China. Depending on justifications listed companies provide for antitakeover provisions, self-regulatory measures allow stock exchanges in China to run case-by-case review on the validity of antitakeover provisions in China. With self-regulatory measures, antitakeover regulation in China has been incrementally deviating from orthodoxically ex ante legislative prohibitions, and at the same time converging towards an agenda of disclosure-based ex post regulatory review. 

 

Happy Citizens Trust Their Rulers

Posted on Tue, Oct. 24, 2023

Youxing Zhang, University of Leeds

Peter Howley, University of Leeds

Clemens Hetschko, University of Leeds

 

This study asks whether an authoritarian regime has an incentive to foster the happiness of its citizens. Using Chinese panel data, the authors examine whether citizen well-being impacts the formation of political trust, which is key to regime stability, even in an authoritarian system. Through a quasi-experimental method, the authors demonstrate how an improvement in subjective well-being leads to increased political trust. In supplementary analysis, they also demonstrate how political trust is predictive of actions that undermine regime stability. The key implication of this study is that any government, even an authoritarian one, has an incentive to foster the happiness of its citizens.

 

Regulating Generative AI Talk Series: Intellectual Property (Nov 1 2023)

Posted on Fri, Oct. 20, 2023

Philip K. H. Wong Centre for Chinese Law, The University of Hong Kong

 

Artificial Intelligence Generated Content (AIGC) technologies have made the leap from “imitation” to “innovation,” leading to significant changes in traditional creative processes. Responding to the growth and application of AIGC within the intellectual property framework has become a pressing concern for regulators and industry professionals. Building on the Chinese legal system and comparative law insights, this talk will examine "fair use" regarding the utilization of existing works for algorithm model training, while addressing the practical challenges of using user input for model optimization. Furthermore, the talk will provide an in-depth analysis of AIGC-related issues, such as copyrightability, ownership design and allocation, as well as intellectual property infringement risks and liability. Finally, strategies for striking a balance among creative incentives will be explored. Live via Zoom!

Date & Time: Nov 1, 2023, Wednesday, 20:00-21:00 (in Mandarin)

A Review of China’s Sustainable Development Goals through International Investment Agreements

Posted on Fri, Oct. 20, 2023

Kun Fan, University of New South Wales

 

Based on a comprehensive treaty survey, the article presents the general approaches to sustainable development goals (SDGs) in Chinese International Investment Agreements (IIAs). While there is still an overall lack of sustainable development provisions in existing Chinese IIAs, an increasing number of China’s recent treatises move towards sustainability. Most sustainable development provisions in Chinese IIAs are carve-out provisions to preserve the States’ regulatory space in public health, environment, and other SDGs. In recent IIAs, provisions include social and environmental obligations on investors, ranging from a mere signal of the Contracting Parties’ commitment to sustainable development in the preamble, to corporate social responsibility (CSR) type provision in the form of no lowering of standards clauses or best endeavours provisions. Finally, procedural provisions on sustainable development safeguard substantive protections.

 

Government Deleveraging and Corporate Distress

Posted on Thu, Oct. 19, 2023

Jiayin Hu, Peking University

Songrui Liu, Peking University

Yang Yao, Peking University

Zhu Zong, Peking University

 

The authors demonstrate how government deleveraging causes corporate distress in a distorted financial market. The difference-in-differences (DID) analysis exploits China's top-down deleveraging policy in 2017, which targets shadow bank financing and reduces local governments' borrowing capacity. The authors find that after the government deleveraging, private firms with local government procurement contracts experienced larger accounts receivable increases, larger cash holdings reductions, and higher external financing costs. These firms also experienced more share-pledging activities by controlling shareholders, greater likelihoods of ownership changes, and deteriorated performance. The authors do not find similar effects among state-owned enterprises (SOEs), which enjoy funding privileges in China's financial system.

Rule by law: Is there justice in China?

Posted on Wed, Oct. 18, 2023

Matej Šimalčík, Central European Institute of Asian Studies

 

To consider China a lawless state is too simplistic. Despite the apparent shortcomings in protecting human rights, mainly because of state restrictions, China has a relatively well-developed legal system with a tradition dating back to antiquity. This chapter aims to introduce the issue of the development of law in China and its role today. What are the philosophical foundations of traditional Chinese law? Do they manifest themselves in the modern legal system? How do Chinese courts under the control of the Communist Party function, and how is the Chinese judicial system adapting to new digital trends?

The Case for the U.S.-China Science and Technology Agreement

Posted on Wed, Oct. 18, 2023

Kaiser Kuo, ​The China Project

Deborah Seligsohn, Villanova University

Karen Hao, The Wall Street Journal

 

For four decades, a pact established in 1979 between U.S. President Jimmy Carter and then Chinese leader Deng Xiaoping facilitated scientific and technological collaboration between the U.S. and China, with renewals occurring every five years. However, in August 2023, the Biden administration opted to provisionally extend the agreement for only six months. Seligsohn and Hao delve into the Science and Technology Agreement's (STA) inception, its purpose, and the criticisms it has faced. They emphasize the ramifications of terminating the scientific partnership with China, exemplified by the cessation of space exploration collaboration, and identify specific projects that could be stalled without a renewed commitment to scientific cooperation with China. Lastly, they examine the prospects of renewing the agreement following the six-month extension and consider alternative avenues for collaboration in AI should the STA be discontinued.

 

China’s Pursuit of Central Bank Digital Currency: Reasons, Prospects and Implications

Posted on Tue, Oct. 17, 2023

Robin Hui Huang, Chinese University of Hong Kong

Xiyuan LI, Chinese University of Hong Kong

 

China’s CBDC, commonly known as e-CNY, is designed with several distinctive features, enabling it to compare favorably to other payment methods. A variety of social, economic, political, and regulatory reasons can be identified to help explain China’s active pursuit of CBDC. However, the prospect of success will be affected by many factors and may vary between the domestic and international markets. The development of e-CNY seems to have created a catfish effect on other major economies in the race for CBDC. It is not fully clear, however, that the CBDC race will be better explained by the first-mover or the late-mover advantage theory. The CBDC project will have both public and private law implications, and several legal issues warrant particular attention in relation to the legal status of CBCD, the role and responsibility of the central bank, legal remedies for losses suffered by CBDC users from cybersecurity issues and operational problems, and the issue of data privacy and protection.

 

Chinese State-Owned Companies and Investment in Latin America and Europe

Posted on Tue, Oct. 17, 2023

Larry Catá Backer, The Pennsylvania State University

 

The Chinese state owned enterprise (CSOE) presents an anomaly in the operation of the well-ordered construction of a self-referencing and closed system of liberal democratic internationalism, especially as that system touches on business responsibilities under national and international human rights and environmental law and markets driven norms. The anomaly is sourced in the increasingly distinct and autonomous framework principles within which it is possible to develop conduct-based systems respectful of both human and environmental rights which are emerging as between liberal democratic and Marxist-Leninist systems. This essay considers the forms and manifestations of these disjunctions where CSOEs are used as vehicles for the projection of Chinese economic activity beyond its borders. 

Authentic Instruments in Chinese Private International Law

Posted on Mon, Oct. 16, 2023

Zheng (Sophia) Tang, Wuhan University

Xu Huang, Wuhan University

 

Professor Fitchen defines an authentic instrument as ‘a public document that allows the public official who registers or draws it up to record evidence concerning matters of fact concerning a judicial act that persons may (or must) have formally recorded in such a fashion as to raise a very strong evidential presumption that the factual matters so registered or recorded are, to the extent allowed by the legal system in which the authentic instrument is created, henceforward to be presumed accurate and ‘proven’.’ In the country where authentic instruments are issued by the authorized entities, they automatically receive legal effects to prove the recorded fact. The overseas effects of authentic instruments, however, are unclear. Since international judicial cooperation on authentic instruments does not exist, the procedural requirements and effects given to foreign authentic instruments largely depend on the domestic law of each country. The cross-border probative and executory effect of authentic instruments is a significant part of private international law, but is overlooked by Chinese private international law scholars and lawyers and will be discussed in this work.

 

Haze and Crime: Evidence from Court Judgments in China

Posted on Mon, Oct. 16, 2023

Yajie Han, National University of Singapore

Ming Li, Chinese University of Hong Kong

Yu Qin, National University of Singapore

 

The authors explore how short-term air pollution exposure affects crime rates, utilizing 1.5 million court judgment files in China from 2015–2018. Using thermal inversion as the instrument for PM2.5, the authors find that a 10 µg/m3 increase in daily PM2.5 increases the daily crime rate of intentional injury by 1.583%, whereas other types of crime are unaffected. Pollution-influenced perpetrators are typically repeat offenders, unarmed, and act alone. They are also more likely to surrender voluntarily. Moreover, pollution salience may induce moods that can lead to criminal behavior. The findings have implications for measuring pollution’s social costs and designing crime reduction policies.

 

How to Do Empirical Legal Studies without Numbers? 

Posted on Thu, Oct. 12, 2023

Sida Liu, The University of Hong Kong

Sitao Li, University of Toronto

 

How to do empirical legal studies without numbers? This article addresses this methodological question at a crossroads of empirical legal studies in China. It does not aim to provide a normative defence for the value of qualitative methods. Instead, we demonstrate how a ‘scientific turn’ in the 2010s has made empirical legal research in China almost exclusively about quantitative research and then illustrate how qualitative methods can also benefit from the rise of digital technology. We draw on three recent studies as examples to compare and contrast the methodological challenges and opportunities for doing empirical legal studies without numbers: (1) Ke Li’s book Marriage Unbound as an example of ethnography in combination with archival research; (2) Sitao Li’s article ‘Face-Work in Chinese Routine Criminal Trials’ as an example of trial video observation; and, (3) Di Wang and Sida Liu’s article ‘Performing “Artivism”’ as an example of online ethnography. The discussion shows that, despite the rising popularity of ‘big data’ computational analysis in recent years, quantitative methods are not necessarily more technologically advanced than qualitative ones. Technology-assisted interviews and ethnography can open up many new possibilities in data collection and data analysis, sometimes resulting in more exciting and innovative research.

 

EU, China and Technical Standards in the Belt and Road Initiative (BRI): Extraterritoriality or Transnational Governance?

Posted on Thu, Oct. 12, 2023

Francis Snyder, Peking University

 

The chapter argues in favour of building bridges, figuratively as well as literally, and for regulatory cooperation and the use of international standards. It is divided into three main parts. The first main part explores the interconnections between social and legal fields, standards, and soft law in the BRI. A second part focuses on institutions, processes, and actors in standard setting in the EU and China. A third part presents the example of railway transport, a key element of the BRI. A brief conclusion summarizes the discussion and identifies subjects for further research.

 

War Extractions and Governance Paradigm Shifts

Posted on Wed, Oct. 11, 2023

Shuo Chen, Fudan University

Xinyu Fan, Cheung Kong Graduate School of Business

Yongtao Li, Liaoning University

Yin Yanfei, Nanjing University

 

How does the state choose between direct and indirect governance during wartime? Using the 70-year Dzungar-Qing War (1688-1758) as an exogenous shock and a difference-in-differences strategy on prefecture-level panel data, the authors reveal that for the Qing Empire, southern resource-rich regions were more likely to shift from local autonomy to direct governance after the war started on northwestern borders. The shifts were more likely to occur where resource transportation was more convenient, while resource-rich areas opened more factories during rather than after the war – all of which highlights the demand for strategic resources as an important determinant of governance paradigm shifts.

 

Autonomy In Extremis

Posted on Wed, Oct. 11, 2023

Terence C. Halliday, American Bar Foundation

 

Prompted by a conference examining the autonomy of law in China, this paper focuses on leading criminal defense, weiquan or rights’ lawyers. Drawing on extensive empirical data, the paper depicts practicing lawyers’ understandings of the presence and prospects of autonomy for law in the most difficult and sensitive cases they take on. The paper asks four questions. First, when does autonomy of law truly matter? Second, who can most acutely discern vulnerability of China’s citizens to unbridled executive power? Third, why should we care about this tiny segment of lawyers among the hundreds of thousands of private lawyers in the entire country? Fourth, what do rights’ lawyers judge to be the conditions—their “political sociology”—that might advance and sustain the autonomy of law in a new New China?

Self-governing Organizations and Culture

Posted on Tue, Oct. 10, 2023

Lei Chen, Durham University

 

While much has been written on the importance of property rights to economic development, relatively little seems to be understood about processes of change in complex property systems, particularly in China, a socialist-transforming country. Specifically, there is a lack of reliable knowledge about the intricate relations between the structure of organizations for collective action and cultural orientations that practically guide interpersonal interactions in Chinese society. The question at the heart of this research relates to the condominium rules most suitable for an emerging Chinese private property market.

 

The Latest Round of China’s State-owned Enterprise Reforms

Posted on Mon, Oct. 9, 2023

Tianqi Gu, Western Sydney University

 

Despite the remarkable economic growth, China maintains a large-scale State economy comprised of extensive State-owned enterprises (SOEs) that continue to play a dominant role in the national economy. In spite of this, China has been substantially restructuring its State economy in its long-lasting SOE reforms since 1978, and the fourth round of the reforms commenced in 2013. China's expanding geopolitical influence and escalating Sino-Western tensions warrant an in-depth examination of its genuine State economy reform objective and process. Based on comprehensive analyses of relevant laws and policies of China’s major State economy restructuring programs promoted in the second and the latest round of the reforms, this article firstly demonstrates SOE's well-established primacy in China’s political-economic system. 

 

Unequal Treaties: Revisiting China’s Approaches Toward Colonial Injustice

Posted on Mon, Oct. 9, 2023

Sze Hong Lam, Leiden University

 

This paper revisits the various approaches of successive Chinese governments in revising the ‘unequal treaties’ signed between the Qing Empire and foreign powers in the 19th century. The central claim of this paper is that the Chinese discourse of ‘unequal treaties’ served more as a legitimacy rather than a legality discourse, which is selectively applied to (historic) treaties in which China perceives itself as the weaker party. With the Chinese ‘unequal treaties’ doctrine intrinsically linked to the project of Chinese nation-building, this paper challenges whether a contemporary recognition of the ‘unequal treaties’ doctrine as an exception to intertemporal rule would be a ‘fair’ way to address colonial injustice.

 

Regulating Generative AI Talk Series: Data Compliance (Oct 19 2023)

Posted on Fri, Oct. 6, 2023

Philip K. H. Wong Centre for Chinese Law, The University of Hong Kong

 

Generative artificial intelligence (AI) models rely heavily on the extensive collection and processing of massive data sets. As numerous countries enact regulatory policies and laws governing generative AI, data rights holders are increasingly filing infringement lawsuits. Consequently, legal matters surrounding generative AI data processing have garnered increased attention from both theoretical and practical perspectives. This talk by Professor Linghan Zhang, drawing from research on data ownership, intellectual property rights, data security, and generative AI regulatory frameworks, will examine the various stages of generative AI processing, such as data acquisition, cleaning, and labeling. Additionally, it will provide an analysis of relevant policies, regulations, and notable cases while discussing the institutional considerations and trends in multiple countries, with a particular emphasis on China.

 

Rebalancing the Burden of Proof for Trade Secrets Cases in China

Posted on Fri, Oct. 6, 2023

Yang Chen, City University of Hong Kong

 

One of the most significant legal changes to the trade secrets system in China during the past three years has been the addition of Article 32 of the 2019 Anti-Unfair Competition Law (AUCL). Article 32, which seeks to reduce plaintiffs’ burden of proof, was promulgated against the backdrop of the U.S.–China trade war, and its language largely follows that of the U.S.–China Phase One Agreement. Article 32 alleviates plaintiffs’ burden by allowing the burden of proof for the trade secrets status elements (secrecy and commercial value) and for the existence of misappropriation conduct to be shifted to defendants. It is, however, full of problems. In light of these doubts, this article reexamines Article 32 of the current Chinese trade secrets law by attempting to clarify its ambiguity and introduce a suitable interpretation. 

 

Superpower Legal Rivalry and the Global Compliance Dilemma

Posted on Thu, Oct. 5, 2023

Ji Li, University of California, Irvine

 

The intensifying rivalry between the United States and China has spawned a proliferation of contradictory laws and regulations, plunging transnational actors into a vexing compliance dilemma—conformity with U.S. law often necessitates contravention of Chinese law, and vice versa. This Article illuminates this superpower legal rivalry and how multinational corporations (MNCs), as prime beneficiaries of post-Cold War economic globalization, navigate this fractured, intricate legal terrain when compelled to take sides amid the great power competition.

 

The State of China’s Semiconductor Industry

Posted on Thu, Oct. 5, 2023

Mercy A. Kuo, Pamir Consulting

Douglas Fuller, Copenhagen Business School

 

In the conversation between Mercy Kuo and Douglas Fuller, they discuss pivotal issues concerning the state of China's semiconductor industry. They first explore the implications of the 7-nanometer chip in Huawei’s latest 5G smartphone, and then analyze whether U.S. efforts to restrict investment in and export of advanced chips to China have accelerated the country’s indigenous developments of semiconductor self-sufficiency. Furthermore, they identify the key strengths and weaknesses in the China-U.S. contest for silicon supremacy. Finally, the conversation assesses the impact of China-U.S. chip competition on global supply chains and market share.  

 

Chinese Regulators Give AI Firms a Helping Hand

Posted on Wed, Oct. 4, 2023

Angela Huyue Zhang, The University of Hong Kong

 

While China was an early mover in regulating generative AI, it is also highly supportive of the technology and the companies developing it. Chinese AI firms might even have a competitive advantage over their American and European counterparts, which are facing strong regulatory headwinds and proliferating legal challenges.

 

Chinese State-owned Enterprises’ Foreign Investments in Developed Countries

Posted on Wed, Oct. 4, 2023

Tianqi Gu, Western Sydney University, School of Law

 

As a response to the less favourable international environment, in 2014, China expanded its concept of national security in both socialist ideology and legislation to cover almost all threats that may jeopardise its future prosperity. Chinese State-owned enterprises (SOEs) are entrusted with the grand mission to ensure national security, not only domestically but also on a global scale. This paper argues that ensuring national security has become a significant driver for Chinese SOEs’ foreign direct investment (FDI) in developed countries. Based on a comprehensive analysis of Chinese SOEs’ national security-driven FDI from the perspectives of policy rationales, implementation modes, this paper provides an analysis of the risks that Chinese SOEs’ national security-driven FDI can pose to the host States.

 

The Chinese Path to Generative AI Governance

Posted on Tue, Oct. 3, 2023

Surong Zhu, Beijing Foreign Studies University

Guoyang Ma, Beijing Jiaotong University

 

The emergence of generative AI has brought significant development opportunities for the AI industry, but it has also triggered legal issues such as data leakage and technology abuse. Therefore, how to ensure the upward and positive development of generative AI technology has become a focus of attention for countries worldwide. China has taken the lead in legislative measures by introducing July 2023 the world’s first departmental regulation dedicated to generative AI, a product of the vertical iterative legislative model. At the same time, the EU and the US have effectively addressed the risks posed by generative AI by taking existing legal norms as the cornerstone and adopting law enforcement and legislative measures. This article provides a detailed description of China's regulatory ideas and specific methods. It compares the different views of China with those of the EU and the US, further commenting on the innovations and shortcomings of China’s program.

 

Production and Global Dissemination of Chinese Legal Ideology

Posted on Tue, Oct. 3, 2023

Samuli Seppänen, Chinese University of Hong Kong 

 

The leaders and ideologues of the Chinese Communist Party profess an interest in increasing the impact of its social sciences and governance ideology in foreign countries. But these attempts highlight various challenges that illiberal regimes face in ideological production and advocacy. Despite such challenges, Chinese ideological speech has been effective in foreign contexts. Among other things, Chinese ideological advocacy has made it easier for foreign politicians and legal scholars to criticize Western promotion of the rule of law and human rights. To illustrate the possibilities and challenges of Chinese ideological advocacy efforts, this Article situates various arguments about the advantages of Chinese legal thought within the East African context.

 

The Governance of Chinese Charitable Trusts

Posted on Fri, Sep. 29, 2023

Hui Jing, The University of Hong Kong

 

Legislators in China introduced the charitable trust model in 2016 with the passage of the Chinese Charity Law. They constructed a new legal framework for this model, in order to unlock the potential of trust institutions to further and develop charitable causes. This is the first English-language monograph exploring the governance of Chinese charitable trusts from the perspective of law and sociology. Through the application of doctrinal analysis and semi-structured qualitative interviews, this book reveals that China's particular political, social, and economic conditions are essential to understanding the legislated governance framework for charitable trusts and its implementation in practice. Embedded in China's unique institutional context, the governance of Chinese charitable trusts can only be fully understood in light of relevant law, administrative practice, and private actions taken by charitable trust parties.

This Is the State of Generative AI in China

Posted on Thu, Sep. 28, 2023

Paul Triolo, Albright Stonebridge Group

Anarkalee Perera, Albright Stonebridge Group

 

In the first part of this series, the authors examined how to think about generative AI and China, including regulatory issues. In this installment, the authors will examine how leading generative AI companies in China view the sector and its challenges. The commentary is primarily based on extensive discussions with the major players in China over the past several months. 

 

The “Constitutional” Rise of Chinese Speech Imperialism

Posted on Thu, Sep. 28, 2023

Ge Chen, Durham University

 

This article conceptualizes China’s new constitutional doctrine of “party supremacy” and explains the implications it carries for speech regulation in both domestic and international public spheres. In particular, the article captures the Chinese Communist Party’s scheme of legitimizing its comprehensive speech regulation through party supremacy. This new constitutional doctrine, in contrast to China’s earlier dualistic constitutional framework, attempts to overcome the textual and contextual barriers for speech regulation and reshape the constitutive mechanism of the CCP’s domestic and international speech rules. Thus, there is a multilayer “constitutional” spillover effect of intra-party speech regulation.

The Cost of Political Connections and Labor Protection

Posted on Wed, Sep. 27, 2023

Maobin Xu, Chinese University of Hong Kong

 

After re-considering the costs of political connections, the author uncovers the bright side of such connections on labor protection in China. As more directors on the board have political connections, corporate risk in labor disputes will be lower, especially for non-state-owned enterprises, and spill over to their suppliers. The decline in labor disputes is not exogenously blocked and suppressed by rent-seeking connections but endogenously reduced due to better employee benefits, such as fewer salary and job cuts. Consequently, politically connected firms have higher labor productivity. Politically connected firms do not invest in employee benefits for free, and they win more bids from government procurement. However, the restrictions of government procurement on supplier reputation serve as an incentive for investment in labor protection and a discipline tool in reducing labor disputes.

 

China's New Legal Framework for Vertical Price Restraints: Aspirations and Limitations

Posted on Wed, Sep. 27, 2023

Sandra Marco Colino, Chinese University of Hong Kong

 

This article explores, and critically discusses, the revised legal framework for vertical price fixing and minimum resale price maintenance under Chinese competition law from a comparative perspective. In recent years, the Supreme People’s Court (SPC) and China’s legislature have attempted to close the gap in the administrative and judicial readings of the Anti-Monopoly Law (AML). The clarifications made in the 2022 AML reform largely resolve long-standing interpretative tensions. Nonetheless, they raise new doubts with regard to the standard of proof required to show the absence of effects. Moreover, the modus operandi of the exemptions remains unclear, since they have rarely ever been successfully invoked in practice. The article questions the true extent of the flexibility afforded by the modified policy, and proposes ways to enhance effective competition law enforcement.

Crouching Tiger, Hidden Agenda?: The Emergence of China in the Global Internet Standard-Setting Arena

Posted on Tue, Sep. 26, 2023

Alex Mueller, University of Pennsylvania 

Christopher S. Yoo, University of Pennsylvania

 

China is making an active push to enlarge its role in the development of Internet-related technical standards. The prevailing narrative surrounding this trend suggests that Beijing is aiming to uproot the liberal, democratic values embedded in the Internet’s technical foundation and governance arrangements in favor of authoritarian-friendly alternatives. Yet, the conventional narrative seems to be missing something. Using New IP as the primary case study, this article examines China's standard-setting push, its potential motivations, and its implications for the future of the global Internet. The authors find it equally plausible that New IP was motivated by economic considerations, something that has largely been absent from the debate over China’s standards ambitions. They thus caution against the presumption that Chinese-developed standards are intended to advance the cause of digital repression as well as against politically driven opposition to growing Chinese participation at Internet standard-setting bodies. 

 

The Dark Side of Automation: Robot and Crime

Posted on Tue, Sep. 26, 2023

Shiying Zhang, Harbin Institute of Technology

Peng Zhang, Chinese University of Hong Kong

 

This study presents the first empirical evidence on the impact of industrial robot adoption on criminal activities, utilizing a comprehensive dataset from more than 2 million court documents in China. The authors find that a one-standard-deviation increase in robot exposure leads to a 12.8%, a 15.5%, and a 9.1% increase in violent, property, and fraud crimes respectively. These results are likely driven by a decrease in the employment-to-population ratio, an increase in drinking frequency, and the deteriorating mental health of individuals. Finally, the authors find that unemployment insurance is effective in mitigating the adverse impact of robots on crimes.

 

Cooperating to Resist: State and Society During China's Covid Lockdowns

Posted on Mon, Sep. 25, 2023

Shitong Qiao, Duke University

 

China’s lockdown during the COVID-19 pandemic was widely considered a stark demonstration of the unconstrained power of an authoritarian state. Yet this power may not be as limitless as it appears. This article, the result of extensive fieldwork encompassing over ninety interviews and on-site visits to Chinese cities, primarily focusing on Shanghai and Wuhan, where the most significant lockdowns occurred, delves into the intricacies of the Chinese party-state’s response to the pandemic. It offers a unique perspective on the constraints that societal forces impose on the party-state’s exercise of power and, in doing so, challenges conventional wisdom. This study uncovers the hitherto unexamined role of society in monitoring and resisting the party-state’s encroachments on individual rights during the pandemic, a phenomenon the author terms “cooperating to resist.” It also offers fresh insights into the dynamics of power and legality in authoritarian regimes and casts new light on the relationship between property rights and sovereignty. 

 

Navigating Decoupling in a Bifurcated World

Posted on Mon, Sep. 25, 2023

Peter Li, Copenhagen Business School

Sunny Li Sun, University of Massachusetts Lowell

 

This article explores the potential scenarios for decoupling between China and the US, and how multinational enterprises can navigate and manage the inherent paradox of coupling and decoupling in those scenarios. The authors apply the concept of bifurcation, which refers to the division between the rule of law and the rule of the ruler, to analyze three decoupling scenarios. They propose multiplex governance as a new strategy for MNEs to manage decoupled operations. This study contributes to the emerging research on decoupling and the need to consider geopolitical factors in international business studies, particularly in the context of a bifurcated world.

 

Demystifying China’s Critical Minerals Strategies: Rethinking “De-risking” Supply Chains

Posted on Fri, Sep. 22, 2023

Weihuan Zhou, University of New South Wales

Victor Crochet, Van Bael & Bellis

Haoxue Wang, University of New South Wales

 

“De-risking” is the latest buzzword in the China strategy of the United States and its allies. It means limiting dependence on and engagement with China in select strategic sectors. One of such sectors concerns critical minerals (CMs) which are essential for the ongoing green economic transition. To secure access to CMs and reduce reliance on China, the US and its allies have been developing networks for ally-shoring supply chains. The authors offer a detailed analysis of the Chinese strategies and policies regarding CMs, which shows that they have been primarily aimed at addressing internal challenges and policy priorities in China rather than dominating, weaponizing or causing disruptions in global supply chains. To address supply chains risks most effectively, international collaborative frameworks should engage with, rather than exclude, China. Confrontational strategies with “China being the risk” at the core might themselves be a risk by undermining rational policymaking and leading to disruptive policies.

 

From Credit Information to Credit Data Regulation: Building an Inclusive Sustainable Financial System in China

Posted on Thu, Sep. 21, 2023

Menglu Wang, The University of Hong Kong

Robin Hui Huang, Chinese University of Hong Kong

Douglas W. Arner, The University of Hong Kong

 

A lack of sufficient information about potential borrowers is a major obstacle to access to financing from the traditional financial sector. Reflecting international experience, China has over the past three decades developed a regulatory regime for credit information reporting and business. However, even in the context of traditional banking and credit, it has not come without problems. With the rapid growth and development of FinTech, TechFin and BigTech lenders, have come both real opportunities to leverage credit information and data but also real challenges around its regulation. Drawing upon the experiences of other jurisdictions, this paper argues that China should establish a licensing regime and set out differentiated requirements for credit reporting agencies in line with the scope and nature of their business, and put in place an effective information and data sharing scheme. The lessons from China’s experience in turn hold key lessons for other jurisdictions.

 

The Constitutional System of the Hong Kong SAR

Posted on Wed, Sep. 20, 2023

Albert H Y Chen, The University of Hong Kong

Po Jen Yap, The University of Hong Kong

 

The British colony of Hong Kong reverted to Chinese rule in 1997. Since then, Hong Kong has continued to be an international financial centre, a free market, and a cosmopolitan city. At the same time, the tensions and contradictions inherent in “One Country, Two Systems” have given rise to constitutional controversies and social movements, culminating in the Umbrella movement of 2014, the anti-extradition law movement of 2019, the enactment of a National Security Law in 2020, and the electoral overhaul of 2021. This book discusses the structure and operations of Hong Kong's legal, judicial and political systems and their interactions with the national authorities of the PRC. The book provides a useful case study in comparative constitutional law, especially on autonomy and devolution issues within sovereign States. This comparative study is particularly interesting because Hong Kong is a common law jurisdiction within the PRC's socialist legal system. 

 

Deference from Foreign Enforcement Courts to Decisions of the Courts of the Seat Confirming an Arbitral Award

Posted on Wed, Sep. 20, 2023

Weixia Gu, The University of Hong Kong

 

Deference usually refers to some kind of hierarchy with a ‘superior’ entity that is to be acknowledged or submitted to. However, the concept of deference under international law can be defined to describe a response by one actor to the recognition of another actor’s decision-making authority. This means the first actor (the deferring actor) places some weight or relevance on the decision of the second actor (the actor being deferred to) in order to reach a decision in a given matter. Accordingly, studying the relationships between these actors is greatly beneficial in understanding the various approaches and reasoning devices taken, especially where overlapping decisions over the same matter may potentially occur. This chapter explores the deference between two categories of courts at the national level. More specifically, the relationship explored herein concerns the relationship between the courts at the seat and the courts at a foreign place of enforcement.

 

The Foundations of Constitutional Review in China (Sept 26 2023)

Posted on Tue, Sep. 19, 2023

Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong

 

The Chinese constitutional system features itself with the “People’s Congress” form of government, which results in the rejection of both the American model of judicial review of constitutionality and the European model of constitutional court-based review of constitutionality. While on the other hand, constitutionalism is not alien to China and the leading theory is that the Chinese Constitution(1982) is a “written constitution” with entrenched status. So, how to enforce the constitutional law? In this lecture, Professor Mingtao Huang from Wuhan University will explain the contemporary constitutional structure and the foundations of constitutional review in China.

Date & Time: September 26, 2023 (Tuesday) 16:30 – 17:30

Venue: Room 723, 7/F, Cheng Yu Tung Tower, The University of Hong Kong (Live via Zoom)

 

Navigating the Identity Thicket in China from a Comparative Lens

Posted on Tue, Sep. 19, 2023

Yang Chen, City University of Hong Kong

 

The proliferation of “idol culture” and “social media influencers” in China has compelled an increasing number of persons to seek to become celebrities who are “famous for being famous.” Yet, becoming active in the entertainment industry gives rise to both old and new identity thicket issues centred around the overlapping and contradictory control rights over celebrities’ names. This article focuses on unravelling these identity thicket issues from comparative experiences, with a focus on the US experience. It first introduces the potential coexistent rights to a person’s name and explores the how those rights might be vested in different parties in today’s entertainment industry in China. The article then proceeds to divide the identity thicket arising from conflicting rights into three scenarios. A key finding is that current Chinese law fails to provide clear legal solutions to solve the identity thicket issues in scenarios 2 and 3. The article offers reform suggestions tailored to each scenario, with effort made to balance the interests of name holders and trademark holders while avoiding too much consumer confusion.

 

From Effect to Behaviour – Regulating State-Owned Enterprises as Competitors in Trade Agreements

Posted on Mon, Sep. 18, 2023

Xueji Su, Chinese University of Hong Kong

 

In recent years, the attempt to curb state-owned enterprises (SOEs) has resulted in dedicated rules in trade agreements. This paper reveals significant paradigm shifts in cross-border SOE regulation by exploring the emerging SOE rules and contrasting them with SOE disciplines in WTO agreements. First, the emerging SOE rules shift the emphasis from regulating trade measures to the competitive behaviour of SOEs. More importantly, the emerging SOE rules are characterized by excessive focus on behaviour analysis and a per se approach. Under a per se approach, a violation of the emerging SOE rules could be established regardless of whether the behaviour of an SOE caused a harmful trade or competition effect. Finally, in light of SOE reform in China, the article contends that the emerging SOE rules’ behaviour analysis deviate cross-border SOE regulation from its primary goal of levelling the playing field.

 

The Unimpactful Counsel

Posted on Mon, Sep. 18, 2023

Michelle Miao, Chinese University of Hong Kong

 

Does legal representation affect critical judicial decisions? This article highlights a paradox at the heart of court sentencing of death-eligible drug offenders in China. On the one hand, lawyers are regarded as a staple of due process. On the other, court decisions are insensitive to the availability and the quality of legal representation. The author argues that this perplexing contradiction derives from the institutional alienation of criminal lawyers in China, a theory containing three main dimensions: power deficit, identity confliction, and procedural-based legitimacy. This paradox - the insignificance of differences - takes place in China’s non-adversarial judicial settings and its authoritarian political environment. It is differentiated but connected with a paradox between eradicating inequality and providing adequate assistance to the most marginalized defendants in adversarial criminal justice systems. This article adopts mixed research methods, including qualitative interviews of legal professionals across China and quantitative analysis based on a regression analysis of national-level (N=10,132) and provincial-specific (N=3,955) samples of court judgments.

 

Regulating Generative AI Talk Series

Posted on Fri, Sep. 15, 2023

Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong

 

Since 2022, large-scale generative artificial intelligence has taken the global market by storm, revolutionizing industries and transforming people’s lives. However, the proliferation of AI has also spawned intricate legal, ethical, and regulatory challenges. Against this backdrop, the Philip K.H. Wong Centre for Chinese Law is set to host the “Regulating Generative Artificial Intelligence” talk series in fall 2023. This talk series will feature renowned experts and scholars from China and abroad to explore vital topics such as content moderation, data security, intellectual property protection, and AI ethics. With the majority of the talks being held online, the series aims to foster a constructive dialogue on the essential challenges and solutions surrounding AI, inspiring collaborative innovation in global AI regulation. Stay tuned for our upcoming schedule—we warmly welcome your participation!

Data Still Needs Theory: Collider Bias in Empirical Legal Research

Posted on Fri, Sep. 15, 2023

Benjamin Minhao Chen, The University of Hong Kong

Xiaohan Yin, The University of Hong Kong

 

Big data is characterised not only by the amount but also the kinds of information that can be created, stored, and processed. This explosion of data, accompanied by the capacity to analyse them, has catalyzed large n, quantitative approaches to the study of law and legal institutions. But neither size nor quality guarantees the validity of causal inferences drawn from observational data. For example, although the inclusion of control variables can help isolate causal effects, not all variables are good controls. Bad controls are not harmless and can create the impression of a causal relationship where none exists. This spurious association is called collider bias. The authors introduce the concept of collider bias and give motivated examples of how it can arise in empirical legal research. The selection of good controls requires knowledge and assumptions about causal structures. Theory and domain knowledge are essential for quantitative analysis, even in the era of big data.

 

Copyright Law and Non-fungible Tokens: Experience From China

Posted on Thu, Sep. 14, 2023

Baiyang Xiao, University of Szeged

 

While the popularity of non-fungible tokens (NFTs) has brought significant profits, legal practitioners have been exposed to unanswered legal concerns behind the frenzy of NFT transactions. Generally, such concerns include those related to the applicability of copyright to NFTs, the legal relationship between an NFT and the tokenized work, and the copyrights associated with the NFT in transactions. The Hangzhou Internet Court released the first NFT-related copyright case, setting a course for the subsequent judicial and business practice of IP-related NFTs nationally and internationally. With these general considerations in mind, the paper briefly introduces what non-fungible tokens are and how they relate to copyright law. Specifically, by interpreting the first NFT-related copyright decision in detail, the paper addresses the legal status of NFT and NFT transactions from the perspective of Chinese Copyright Law, with particular focus on the liability of online platforms and the applicability of the exhaustion doctrine.

Augmenting Serialized Bureaucratic Data: The Case of Chinese Courts

Posted on Thu, Sep. 14, 2023

Xiaohan Wu, University of California, San Diego

Margaret E. Roberts, University of California, San Diego

Rachel E. Stern, University of California, Berkeley

Benjamin L. Liebman, Columbia University

Amarnath Gupta, San Diego Supercomputer Center

Luke Sanford, Yale University

 

Courts around the world are putting their data online, making information about case load, parties, and decisions available to the public. Yet, this data is far from complete, and often only reflects a portion of courts’ dockets. The authors offer and validate a set of tools for leveraging the serialized bureaucratic data from courts to evaluate missingness and court delay. Using data from more than 3,000 courts in China, the authors assess patterns of missingness in court data across geography and by type of case and to conduct the largest quantitative analysis to date on court delay in China. Their validation provides recommendations for researchers looking to augment incomplete bureaucratic data around the world.

 

State-Backed Shareholder Activism

Posted on Wed, Sep. 13, 2023

Chao Xi, Chinese University of Hong Kong

 

In the global quest for the improvement of institutional shareholder activism, an alternative approach has emerged and proliferated in East Asian jurisdictions: nonprofit organizations (NPOs) as activist investors. This Article examines the hitherto understudied case of China’s activist NPOs, in particular, the China Securities Investor Services Center (ISC). It examines the ISC’s wide array of activism and engagement activities and tactics, including China’s first opt-out securities class action, derivative action, public campaigns, naming and shaming, and behind-the-scene engagements. The research further shows that the ISC represents a new form of NPO activism: state-backed shareholder activism.

Artificial Intelligence with American Values and Chinese Characteristics

Posted on Tue, Sep. 12, 2023

Emmie Hine, University of Bologna

Luciano Floridi, Yale University

 

As China and the United States strive to be the primary global leader in AI, their visions are coming into conflict. This is frequently painted as a fundamental clash of civilisations, with evidence based primarily around each country’s current political system and present geopolitical tensions. However, such a narrow view claims to extrapolate into the future from an analysis of a momentary situation, ignoring a wealth of historical factors that influence each country’s prevailing philosophy of technology and thus their overarching AI strategies. This article builds a philosophy-of-technology-grounded framework to analyse what differences in Chinese and American AI policies exist and, on a fundamental level, why they exist. It fills a gap in US-China AI policy comparison and constructs a framework for understanding the origin and trajectory of policy differences. By investigating what factors are informing each country’s philosophy of technology and thus their overall approach to AI policy, the authors argue that while significant obstacles to cooperation remain, there is room for dialogue and mutual growth.

 

Disclosure and Registration Requirements in Franchising: Common Law or Civil Perspective?

Posted on Tue, Sep. 12, 2023

Radwa S. Elsaman, American University Washington

 

Disclosure and registration are critical steps in the process of franchising for countries where franchise laws are essentially disclosure laws. Disclosure laws require franchisors to disclose to potential franchisees specific, material information that would materially affect the franchisee’s decision of whether to invest. In addition, registration rules require registering disclosure documents with the competent governmental agency. In short, disclosure and registration reduce the chances the franchise will fail, as both parties come to know all the necessary information about the other.

 

Privacy in Chinese iOS Apps and Impact of the Personal Information Protection Law

Posted on Mon, Sep. 11, 2023

Konrad Kollnig, Maastricht University

Lu Zhang, China University of Political Science and Law

Jun Zhao, University of Oxford

Nigel Shadbolt, University of Oxford

 

Privacy in apps is a topic of widespread interest because many apps collect and share large amounts of highly sensitive information. In response, the Chinese legislator introduced a range of new data protection laws over recent years, notably the Personal Information Protection Law (PIPL) in 2021. So far, there exists limited research on the impacts of these new laws on apps’ privacy practices. To address this gap, this paper analyses data collection in pairs of 634 Chinese iOS apps, one version from early 2020 and one from late 2021. 

 

Chinese State-owned Enterprises and International Investment Law

Posted on Fri, Sep. 8, 2023

Ming Du, Durham University

 

The objective of this Article is to critically examine the alleged challenges that the expansion of Chinese SOEs’ outbound foreign investment has posed to the liberal international investment order and to analyze whether the current international investment regime is resilient enough to accommodate the systemic friction between heterogeneous economic systems. It argues that international investment law is poorly designed to deal with Chinese SOEs because it is premised on some untenable assumptions, and these assumptions are not applicable to Chinese SOEs. The lack of effective international rules pushes nation states to become norm entrepreneurs in international investment law. However, the new SOE norms not only risk either overshooting or undershooting the Chinese SOE problem but also result in greater fragmentation of the international investment regime.

Resisting Domestic Courts’ Universal Jurisdiction over International Crimes

Posted on Thu, Sep. 7, 2023

Riccardo Vecellio Segate, University of Macau

 

The prosecution of international crimes by specialised non-domestic courts and tribunals raises several concerns, not least in evidentiary assessments; thus, the future of international criminal justice shall be relocated to domestic trials by reliance on universal jurisdiction (UJ). While a few “Western” jurisdictions have recently started to employ this legal device, “Eastern” jurisdictions have consistently voiced suspicion at this trend, while other Western jurisdictions seem not yet ready to embrace it, either. Among those jurisdictions which declare themselves unwilling or unready to face this relatively new challenge, the PRC and Italy stand out, owing to their regional appeal, their involvement in (alternative) discourses on global justice, and their millenary intertwined roots as legal civilisations. Hence, the present study investigates these two jurisdictions comparatively, as far as their stances regarding UJ’s applicability over international crimes (and practice thereto) are concerned. 

Copyright and International Negotiations

Posted on Thu, Sep. 7, 2023

Ge Chen, Durham Law School

 

Copyright and International Negotiations provides a historical study of the development of Chinese copyright law in terms of China’s contemporary political economy and the impact that international copyright law has had. The analysis shows how China’s copyright system is intertwined with censorship and international copyright law and how this has affected freedom of expression. The book explores the development and architecture of Chinese copyright law in parallel with international copyright law, clarifies China's nuanced patterns of the control of free expression through copyright law, and identifies a breakthrough for neutralising the impact of China’s censorship policies through copyright law.

From Hierarchical to Panoptic Control: The Chinese Solution in Monitoring Judges

Posted on Wed, Sep. 6, 2023

Xin He, The University of Hong Kong

 

In the wake of the 2014 judicial reforms, are Chinese judges in most circumstances free in their decision-making? Based primarily on interviews with judges, this article argues that although a truncated hierarchy has led to increased judicial autonomy, the state maintains its tight grip over judges. In its new form, the state’s control is more indirect, external, ex post, diffused, and ideological. It allows the state to closely monitor judges’ entire handling of cases (hence the designation “panoptic”). It has some similarities with, yet fundamentally differs from, existing patterns in authoritarian states. While judges’ accountability continues to be largely a bureaucratic matter, this Chinese form of control has nonetheless been effective at a time of soaring caseloads, a slimmed-down judiciary, and increasing insistence on legitimacy. This article seeks to deepen understanding of developments in Chinese courts and, more widely, judicial politics in authoritarian states.

 

Judicial Review in Hong Kong

Posted on Wed, Sep. 6, 2023

Rehan Abeyratne, Western Sydney University

 

This Chapter examines constitutional judicial review in the Hong Kong Special Administrative Region (HKSAR) from the 1990s to the present day. Hong Kong occupies a unique position in Greater China as the only former British colony. It maintains a common law legal system, which forms the bedrock of a sui generis model of judicial review that incorporates liberal constitutional rights and aspects of socialist constitutionalism. The Chapter consists of two main parts. Part I examines judicial review in the shadow of the National People's Congress Standing Committee (NPCSC). Part II analyzes judicial review with respect to fundamental rights adjudicated that have thus far remained outside the NPCSC’s purview. 

 

Smart Courts, Smart Contracts, and the Future of Online Dispute Resolution

Posted on Tue, Sep. 5, 2023

Jamieson M. Kirkwood, The University of Hong Kong

Julien Chaisse, City University of Hong Kong

 

This article presents a critical assessment of online dispute resolution involving smart courts and smart contracts (ODR+), which is a mechanism that China may consider for settling its Belt & Road Initiative (BRI) disputes. As the first article to address the emerging dispute settlement technologies in the BRI context, it suggests guidance for policy makers and practitioners. Furthermore, the article asks the key question of whether ODR+ can result in a more convenient and efficient processing of BRI disputes and hence be assimilated into the current BRI dispute settlement framework. While attention is also given to recent proposals for such ODR+ and its implementation in China and certain other States who participate in the BRI, it is more significant to address whether the BRI as a whole should and can embrace ODR+; or whether embracing ODR+ might merely be an artificial capitulation to the apparent conditions of modern society (a vanity project) more than a superior system for administering dispute settlement.

 

The Evolving Rule of Law with Chinese Characteristics and Its Impacts on the International Legal Order

Posted on Tue, Sep. 5, 2023

Ji Li, University of California, Irvine

 

This Article proceeds in two sections. Section One traces the development of the Chinese legal system and the evolving rule of law debates in China. Unlike prior research on this topic, which has generally treated the sovereign state as the unit of analysis, this section highlights the power dynamics within the Chinese ruling elites and the influence of the international legal community as well as the global rule of law discourse. Section Two reverses the inquiry and explores how China might impact the international legal order. It contends that varying coalitions of Chinese actors populate the interfaces between China and international law across different issue areas and that China’s impacts on the international legal order vary as well. Both sections will also discuss how the ideological remnants have produced three common, entrenched perceptions of law and legal institutions: legal instrumentalism, economic determinism, and linearity of institutional changes, and how these perceptions have modified China’s interactions with international law.

 

Legalist Confucianism: What's Living and What's Dead

Posted on Mon, Sep. 4, 2023

Daniel Bell, The University of Hong Kong

 

Confucianism and Legalism are the two most influential political traditions in Chinese history. They are diverse and complex traditions with different interpretations in different times, but there are continuities and commonalities and ongoing themes in each tradition. Although the two traditions contrast with each other at the level of philosophy, they were combined in different ways in Chinese imperial history and some form of Legalist Confucianism continues to be influential in the 21st century. The author will identify the main traits of the Confucian and Legalist traditions and show how they were combined in Chinese history. The normative question raised here is: Which aspects of Legalist Confucianism should be promoted in the future and which parts should be consigned to the dustbin of history? The author will respond with examples from contemporary China to suggest it is both possible and desirable to promote a form of Legalist Confucianism today and in the foreseeable future.

 

Navigating The Career Mobility Landscape Of Law Firm Partners In Hong Kong

Posted on Mon, Sep. 4, 2023

Sida Liu, The University of Hong Kong

 

Achieving partnership in a law firm is a coveted milestone for lawyers looking to advance their careers. In the past, lateral mobility between firms was uncommon for most partners in large law firms, due to the widely-adopted ‘Cravath System’ of law firm management. This system operated under the assumption that the most talented associates would be promoted to partners, and that most partners would remain with the firm until retirement. However, this assumption is no longer valid in the 21st century. Today, lateral moves of partners between law firms are increasingly common, and some partners also pursue in-house positions or leave the legal profession altogether for other job opportunities.

 

Call for Papers: China Law & Society Review

Posted on Fri, Sep. 1, 2023

The University of Hong Kong

 

China Law & Society Review (CLSR) is now welcoming submissions for its upcoming issues. CLSR is a highly-acclaimed, peer-reviewed academic journal, published by Brill in partnership with the University of Hong Kong Faculty of Law. The journal is seeking original research and review articles that provide cutting-edge insights into interdisciplinary socio-legal topics. These may include, but are not limited to, legal consciousness, access to justice, rule of law, law and development, courts, legal professions, human rights, law enforcement and compliance, regulation and governance, ethics and corruption, central-local relations, and formal and informal institutions.

 

China’s Digital Transformation: Data-empowered State Capitalism and Social Governmentality

Posted on Thu, Aug. 31, 2023

Wayne Wei Wang, The University of Hong Kong

 

The article scrutinises the trajectory of China’s establishment of a digital state, rooted in a “whole-of-nation” system—or aptly termed (party–)state capitalism. The author illustrates the path of formulating and enforcing strategies to digitalise public services—including, importantly, the digital identity infrastructure—via institutional concentration that exemplifies both the positive and the exclusionary nature of social big data in streamlining administrative procedures. Two catalysts are spotlighted in China’s digital transformation: quasi-neoliberal market processes, and technology’s social change spillover effects. The author points to the fact that, since its inception, the contemporary Chinese state has created a cybernetic justification for “social governmentality”, as a means to redress potential informational imbalances in the process of ruling the state polity. For the Chinese administrative hierarchy, data provides the means to execute a top-down correctivist paradigm for steering societal conduct, a paradigm integrated into (but also to some extent in tension with) data-empowered state capitalism.

 

Cities and Local Governments: International Development from Below?

Posted on Thu, Aug. 31, 2023

Helmut Aust, Free University of Berlin

Alejandro Rodiles, Instituto Tecnológico Autónomo de México

 

Cities and local governments have become both important sites for international development as well as actors which aspire to shape the practice in this field. This paper retraces the emergence of cities and local governments as having this dual character, in order to provide the ground for a more forward-looking deliberation on some of the emerging themes on the role of cities in and for international law and development today. The authors see in particular a friction between two seemingly competing and broader understandings of global development, in both of which cities play a prominent role: the SDGs as adopted in 2015, and China’s Belt and Road Initiative (BRI). What unites these two blueprints for global development is that international law, as traditionally understood, does not seem to take center stage. Or rather, the authors wish to expound, it may be a new type of international law which emerges from these global constellations of international development which comes not only, but also from below.

 

Governing Silicon Valley and Shenzhen: Assessing a New Era of Artificial Intelligence Governance in the US and China

Posted on Wed, Aug. 30, 2023

Emmie Hine, University of Bologna

 

This article examines recent developments in AI governance in the US and China, exploring their implications for each country’s development trajectory. Drawing on a framework informed by the philosophy of technology, the article delves into not only the differences between the two countries’ approaches but also the reasons behind these differences. The US, after years of industry self-regulation, is slowly moving towards concrete legislation, while China is centralizing its development and regulatory initiatives. Despite China’s expressed desire for values-pluralistic international governance, existing tensions between the two, coupled with the US’s burgeoning coalition centered around AI with “democratic values,” might pose challenges to collaboration and international governance. Nonetheless, the article contends that both systems can be accommodated within a values-pluralistic human rights framework, potentially paving the way for meaningful international governance efforts.

 

Digital Empires: The Global Battle to Regulate Technology (Book Talk)

Posted on Tue, Aug. 29, 2023

Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong

 

The United States, China, and the European Union are racing to regulate tech companies. Each market is advancing a competing vision for the digital economy while attempting to expand its sphere of influence in the digital world. The latest book by Professor Anu Bradford, Digital Empires: The Global Battle to Regulate Technology (Oxford University Press, 2023) explores how governments and tech companies navigate the inevitable conflicts that arise when these different regulatory approaches collide in the international domain. Please join us for an engaging in-person discussion of Digital Empires and the choices we face as societies and individuals, the forces that shape those choices, and the huge stakes involved for everyone who uses digital technologies.

Date & Time: Sep 18, 2023 (Monday) 17:00 - 18:30

Venue: Academic Conference Room, 11/F, Cheng Yu Tung Tower, The University of Hong Kong (In-person only)

 

The Brussels Effect: How the European Union Rules the World (Book Talk)

Posted on Tue, Aug. 29, 2023

Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong

 

For many observers, the European Union is mired in a deep crisis, seen as a declining power on the world stage. In her iconic book The Brussels Effect: How the European Union Rules the World  (Oxford University Press, 2020), Professor Anu Bradford argues the opposite: the EU remains an influential superpower that shapes the world in its image. By promulgating regulations that shape the international business environment, elevating standards worldwide, and leading to a notable Europeanization of many important aspects of global commerce, the EU has managed to shape policy in areas such as data privacy, consumer health and safety, environmental protection, antitrust, and online hate speech. The Brussels Effect shows how the EU has acquired such power, why multinational companies use EU standards as global standards, and why the EU's role as the world's regulator is likely to outlive its gradual economic decline, extending the EU's influence long into the future.

Date & Time: Sep 21, 2023 (Thursday) 12:00 - 13:00

Venue: Academic Conference Room, 11/F, Cheng Yu Tung Tower, The University of Hong Kong (In-person only)

 

International Human Rights Law in Asian Constitutions

Posted on Mon, Aug. 28, 2023

Son Ngoc Bui, University of Oxford

 

The convergence of national constitutions with international human rights (IHR) law has been a global trend. Asia has been underexplored in the global scholarship on constitutional convergence. This Article explores three models of convergence with IHR law in seven Asian constitutions: convergence impelled by international inducement in post-war and post-conflict states (Japan and Cambodia), convergence propelled by the domestic precommitment of new democracies (South Korea and Indonesia), and convergence compelled by the international socialization of the socialist states (China, Laos, and Vietnam). Formal convergence creates the condition for several Asian constitutional courts to engage with IHR law. Convergence is not merely a town-down project. This Article additionally introduces a bottom-up theory of discursive convergence, which holds that citizens’ public discourse can influence the incorporation of IHR law into constitutions. 

 

Ruling the Country without Law: The Insoluble Dilemma of Transforming China into a Law-Governed Country

Posted on Mon, Aug. 28, 2023

Zhong Zhang, University of Sheffield

 

Despite more than 40 years’ legislation to build a ‘law-governed country’ and the China’s Communist Party (CCP)’s repeated proclaiming to ‘govern the country according to law’, China still lacks legislation concerning a constitutional matter that is central to its governance, i.e. the powers of the CCP to rule. No law specifies its powers, and the CCP’s rule is not based on law. Why has such a crucial and apparent loophole not been filled? It is essentially because of the CCP’s insistence on supremacy with unchallengeable authority in the governance of China. Hence, an insoluble dilemma can be observed: while the CCP leadership wants China to become a law-governed country to attain lasting order and stability, they have to rule the country extralegally to avoid legal challenges to the supremacy of their rule. This article not only sheds light on this inherent contradiction, but also offers insight into the nature of the CCP’s practice to ‘govern the country according to law’.

International Economic Administrative Law: Experience, Logic and Future

Posted on Fri, Aug. 25, 2023

Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong

 

With economic globalization, we have witnessed the merging of public and private law, along with the integration of international and domestic law. In this context, a legal department focused on regulating cross-border economic administrative relations is taking shaping. This has led to the emergence of a new branch of jurisprudence with distinct research subjects, known as International Economic Administrative Law (IEAL). Given that the new legal department can be described as the international coordination of government economic regulation law, IEAL may be viewed as the study of its fundamental attributes, primary principles, institutional frameworks, and developmental laws. In this lecture, Prof. Zhu Shudi from Fudan University will delve into China’s experiences in IEAL, examine its logical construction, and discuss potential future research focal points.

Date & Time: August 31, 2023 (Thursday) 12:00 – 13:00

Venue: Room 723, 7/F, Cheng Yu Tung Tower, The University of Hong Kong

 

China’s AI Regulations and How They Get Made

Posted on Fri, Aug. 25, 2023

Matt Sheehan, Carnegie Endowment for International Peace

 

China is in the midst of rolling out some of the world’s earliest and most detailed regulations governing artificial intelligence (AI). But in the West, China’s regulations are often dismissed as irrelevant or seen purely through the lens of a geopolitical competition to write the rules for AI. In this series of three papers, the author will attempt to reverse engineer Chinese AI governance. He breaks down the regulations into their component parts—the terminology, key concepts, and specific requirements—and then trace those components to their roots, revealing how Chinese academics, bureaucrats, and journalists shaped the regulations. In doing so, the author has built a conceptual model of how China makes AI governance policy, one that can be used to project the future trajectory of Chinese AI governance.

 

American Law in the New Global Conflict

Posted on Thu, Aug. 24, 2023

Mark Jia, Georgetown University

 

This Article is the first to comprehensively assess how today’s principal conflict, a growing rivalry between the United States and China, is shaping the American legal system. It contends that the new global conflict is reproducing the same politics of threat that has driven wartime legal development for much of the US history. The result is that American law is reprising familiar patterns and pathologies. There has been a diminishment in rights among groups with imputed connections to a geopolitical adversary. But there has also been a modest expansion in rights where affected constituencies have linked desired reforms with geopolitical goals. Institutionally, the new global conflict has at times fostered executive overreach and increased interbranch and interparty consensus. Legal-culturally, it has evinced a decline in legal rationality resulting from the return of familiar ideological and nationalistic frames. The Article provides a framework for understanding legal developments in this new era, contributes to our understanding of rights and structure in periods of conflict, and offers some tentative reflections on what comes next in the new global conflict, and how best to shape it.

Lecture Series: Exploring the PRC Constitution, the Hong Kong Basic Law, and the Hong Kong National Security Law (Fall 2023)

Posted on Thu, Aug. 24, 2023

Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong

 

This lecture series will provide an introduction to the Constitution of the People’s Republic of China (PRC), the Basic Law of the HKSAR, and the Law of the PRC on Safeguarding National Security in the HKSAR for students and teachers at the University of Hong Kong, as well as for legal professionals and individuals from various backgrounds in Hong Kong. Featuring distinguished Chinese scholars with extensive research and publications on related topics, this lecture series will be conducted in Mandarin. Each event lasts for two hours, including a 1.5-hour lecture followed by a 30-minute Q&A and discussion period. CPD certification will be applied for each lecture from the Law Society of Hong Kong.

The Legal System of the People's Republic of China in a Nutshell (4th ed. 2023)

Posted on Wed, Aug. 23, 2023

Daniel C. K. Chow, Ohio State University

 

The fourth edition has been completely updated and revised to reflect major legal and political developments in the People’s Republic of China. This new edition offers extensive coverage and analysis of two landmarks in the development of China’s legal system, the Civil Code (2021) and the Foreign Investment Law (2020). It also contains extensive coverage of the recent downturn in the political and economic relations of the United States and China, initiated by the Trump administration and continuing under the Biden administration. Other major issues discussed are new developments in China’s human rights regime, improvements in China’s criminal procedure law, the “forced” technology transfer issue, and counterfeiting and piracy on the internet.

Charting Limitations on Trademark Rights

Posted on Tue, Aug. 22, 2023

Haochen Sun, The University of Hong Kong

Barton Beebe, New York University

 

Trademark scholarship has to date focused largely on the protection of trademark rights against consumer confusion and trademark dilution. Studies of limitations on trademark rights, meanwhile, have remained relatively peripheral, especially in jurisdictions outside of the United States. However, this treatment is incongruous with the importance of the limitations, such as descriptive and nominative uses, in promoting freedom of commerce, market competition, free speech, and cultural dynamics. Against this backdrop, Charting Limitations on Trademark Rights is the first comprehensive academic volume exploring limitations on trademark rights from both the theoretical and comparative perspectives. The volume presents new theoretical ideas justifying trademark rights limitations, re-examines their nature, delineates their scope, and offers comparative studies.

 

Algorithmic Dissuasion: De-ranking Possible Copyright Infringing Content into Relative Oblivion

Posted on Tue, Aug. 22, 2023

Danny Friedmann, Peking University

 

This article focuses on platforms operating in the algorithmic twilight zone between presenting search results and blocking them. To avoid risks or to optimize at the copyright holders’ request, platforms directly or in a time-phased way de-rank unauthorized but possibly legal content into relative oblivion. This midway manipulation of traffic to suspected content is opaque to the uploader of content, and the general user, lacks any redress mechanism, and possibly chills the freedom to share transformed content that includes copyrighted works. One can argue that the fundamental rights preempt license conditions which are incompatible with it.

Navigating Cross-Border Data Transfer Policies: The Case of China

Posted on Mon, Aug. 21, 2023

Taojun Xie, National University of Singapore

Jingting Liu, National University of Singapore 

Ulrike Sengstschmid, National University of Singapore

Yixuan Ge, National University of Singapore

 

This paper examines the new Chinese regulatory framework on personal data protection, with a specific focus on cross-border data transfers. It aims to keep businesses and policymakers informed of the latest updates to China’s cross-border data transfer regulatory framework, and serve as a reference to gauge the impact of China’s regulations. The authors compare the new regulations with the EU GDPR to find that although key definitions and the legal basis for data processing is quite similar, the cross-border data transfer requirements are more stringent in the Chinese case. Firms, and especially non-Chinese firms, will face increased operating costs. Subsequently, foreign firms are likely to lose market share vis-à-vis domestic competitors. As larger domestic firms are likely to gain market share from smaller counterparts, these policies are likely to foster national IT champions. On a global scale, China seems to exemplify the emerging trend of multiple data protection models hampering cross-border data flows. 

 

A Comparative Study on Obtaining Third Party Evidence in Civil and Commercial Arbitration

Posted on Mon, Aug. 21, 2023

Ke Mu, University of Edinburgh

 

Arbitration is a private and consensual process with a strong character of relativity, which means it can only bind the signatories of arbitration agreements in general terms. However, the increasing complexity of civil and commercial disputes in modern society leads to a rising need for third-party evidence in order to discover the facts before the adjudication. It draws forth the key question of this research: How could the parties, arbitral tribunals, and state courts cope with the situation where third parties are unwilling to submit evidence that is under their control? International conventions, model rules, and domestic laws as the UK and China keep silent on this issue. This Article proposes that the decisive factor to the taking of evidence should be the interactive dynamics of arbitration stakeholders and observes the special status of state courts in taking third party evidence for arbitration. It analyzes English law and practice in terms of providing judicial assistance in taking third-party evidence in arbitration-related contexts. It further proposes original suggestions for improving the Chinese regulatory framework.

 

Technological Platforms and National Security in Hong Kong: The Domain of Standards Setting (Aug 25 2023)

Posted on Fri, Aug. 18, 2023

Law & Technology Centre, The University of Hong Kong

 

Emerging regulatory frameworks recognize the duties of technological platforms toward a growing range of values that their activities mobilize. Values of such a kind intertwine with larger questions of national interest or concern and have been mobilized in contemporary affairs. This Workshop will place platforms' growing roles and responsibilities in the context of such larger questions — and, within these, in the context of relations between Hong Kong, the Mainland, and the international community. It will reflect on how the powers of the Hong Kong SAR to decide on technological standards should be understood in the context of these same relations, as well as on the challenges and opportunities introduced by technological platforms to matters of national interest or concern.

Date & Time: August 25, 2023 (Friday), 2:15pm - 6:00pm

Venue: Academic Conference Room, 11/F Cheng Yu Tung Tower, Faculty of Law, The University of Hong Kong

 

Book Talk: The Dean of Shandong (Sept 8 2023)

Posted on Fri, Aug. 18, 2023

Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong

 

The panellists will discuss Daniel A. Bell’s recent book, The Dean of Shandong: Confessions of a Minor Bureaucrat at a Chinese University (Princeton University Press, 2023). The book was selected as a Summer Book of the Year by the Financial Times. On January 1, 2017, Daniel Bell was appointed dean of the School of Political Science and Public Administration at Shandong University―the first foreign dean of a political science faculty in mainland China’s history. In The Dean of Shandong, Bell chronicles his experiences as what he calls “a minor bureaucrat,” offering an inside account of the workings of Chinese academia and what they reveal about China’s political system.

Date & Time: 8 September 2023 (Friday)  12:00 – 13:30

Venue: Academic Conference Room, 11/F, Cheng Yu Tung Tower, The University of Hong Kong (Live via Zoom)

Superpower Rivalry and the 'Modernization' of Foreign Investment Risk Review

Posted on Thu, Aug. 17, 2023

Ji Li, University of California, Irvine

 

Managing US-China relations is the biggest geopolitical test of the 21st century. This Article explores a crucial, delicate part of that test: national security review of Chinese foreign investment. To address emerging threats from China, Congress passed the Foreign Investment Risk Review Modernization Act of 2018 (“FIRRMA”), greatly strengthening the federal multi-agency body responsible for foreign investment screening—the Committee on Foreign Investment in the United States (“CFIUS”)—and vastly expanding its jurisdiction. This Article presents the first ever survey-based empirical study of FIRRMA’s impacts on Chinese investments in the United States. Apart from FIRRMA’s investment effects, the author also presents a detailed account of the diffusion of the US foreign investment screening system and its institutional implications in China.

 

From ‘Non-Market Economy’ to ‘Significant Market Distortions’: Rethinking the EU Anti-Dumping Regulation and China’s State Interventionism

Posted on Thu, Aug. 17, 2023

Ming Du, Durham University

 

This article questions the consistency of the EU anti-dumping regulation with the WTO Anti-dumping Agreement. It argues that China’s WTO Accession Protocol may no longer provide the legal basis for the EU to set aside Chinese domestic prices in determining normal value of Chinese products. Moreover, given that the European Commission has consistently used costs that are not actual costs of Chinese producers in constructing normal value of Chinese products, the EU anti-dumping practice runs the risk of being inconsistent with WTO law. Drawing on Jackson’s interface theory, this article further argues that the EU’s introduction of the new concept ‘significant market distortions’ to anti-dumping practices should be conceptualized as an effort to reconstitute alternative interface mechanisms when old ones are no longer applicable. The dubious legality of the EU’s new anti-dumping regulation is simply a symptom of a long-brewing tension in the multilateral trade system: how can the WTO accommodate systemic friction between heterogeneous economic models?

A SAD New Category of Abusive Intellectual Property Litigation

Posted on Wed, Aug. 16, 2023

Eric Goldman, Santa Clara University

 

This paper describes a sophisticated but underreported system of mass-defendant intellectual property litigation called the “Schedule A Defendants Scheme” (the “SAD Scheme”), which occurs most frequently in the Northern District of Illinois as a way to target Chinese online marketplace vendors. The SAD Scheme capitalizes on weak spots in the Federal Rules of Civil Procedure, judicial deference to IP rightsowners, and online marketplaces’ desire to reduce their liability exposure. With substantial assistance from judges, rightsowners use these dynamics to extract settlements from online vendors without satisfying basic procedural safeguards like serving the complaint and establishing personal jurisdiction over defendants. This paper explains the scheme, how it bypasses standard legal safeguards, how it’s affected hundreds of thousands of defendants, and how it may have cost the federal courts a quarter-billion dollars. The paper concludes with some ideas about ways to curb the system.

 

Regularized Campaigns as a New Institution for Effective Governance

Posted on Wed, Aug. 16, 2023

Shiran Victoria Shen, Stanford University

Qi Wang, Nanjing University

Bing Zhang, Nanjing University

 

The legislator primarily uses institutions and implements campaigns to achieve effective governance. Institutions foster regularized implementation, while campaigns happen ad hoc and achieve quick but transient results. This paper fills theoretical gaps by systematically exploring how campaigns can enhance institutions and how regularized campaigns as new institution exercise persistent effects beyond the periods when campaigns are actively ongoing. The authors theorize that institutions can become ineffective when special interests capture the bureaucracy, in which case campaigns are needed to weaken the regulated entities’ bargaining power. Using an original firm-level dataset, the authors test this theory on industrial firm responses to changes in air pollution regulation in China. The result suggests that when bureaucratic capture undermines the promise of institutions, campaigns can improve compliance, and their effects can persist when regularized.

 

Third-Party and Bankruptcy Effects under Chinese Trust Law: Comparisons with English Trust Law

Posted on Tue, Aug. 15, 2023

Hui Jing, The University of Hong Kong

 

In English law, the trust’s third-party and bankruptcy effects contribute significantly to its wide use in commercial transactions. In view of the trust’s attractiveness in conducting commercial dealings, China also introduced the trust model into its domestic legal system to enhance its financial infrastructure. However, given the extent to which Chinese law has been influenced by the Roman-Germanic tradition, China has encountered doctrinal obstacles in the course of replicating the trust’s third-party and bankruptcy effects. Drawing upon the experience of its Northeast Asian forerunners, China established two mechanisms to achieve both effects: the regime of trust fund independence and the granting of the right of rescission to beneficiaries. These two mechanisms represent the adjustments made by Chinese legislators in the course of transplanting the trust model into the Chinese legal context.

 

Law and Social Policy in the Global South

Posted on Tue, Aug. 15, 2023

Ulrike Davy, Universität Bielefeld

Albert H.Y. Chen, The University of Hong Kong

 

The book is an in-depth study of the origins and the trajectories of the law governing social policies in Brazil, China, India, and South Africa, four middle-income countries in the global South with a history in social policy making that starts in the 1920s. The book takes the legal framework of the policies as a starting point, but the main interest lies behind the letter of the law: What were the objectives and goals of social policy over the course of the last 100 years? What were the ideas, ideologies, and values pursued by relevant actors? The book comprises four country studies and a comparative study. The country studies concentrate on the political and social context of social policy making in Brazil, China, India, and South Africa as well as on the ideas, ideologies, and values underpinning the constitution, statutory laws, and case law that frame and shape social policy at the national level. The country studies are complemented by a comparative study exploring and describing the commonalities and differences in the ideational approaches to social policies across the four countries, nationally and – in the formative decades – internationally. 

China’s Lawyers and China’s Publics: 'When the People Awake'

Posted on Mon, Aug. 14, 2023

Terence C. Halliday, American Bar Foundation

 

This paper explores in 21st century China the salience of lawyers as spokespersons for publics, a concept originally generated from Lucien Karpik’s research on 19th century France. The paper unfolds in four parts. (1) It presents a brief overview of Karpik’s research and theory. (2) It offers an account of ways that lawyers as spokespersons for publics amplify the wider scholarship on legal complexes and struggles for political liberalism in North East Asia and beyond. (3) It provides a close reading of extensive interviews with notable activist lawyers on significant cases which involved publics in China from 2009-2015. (4) The paper concludes by reflecting on lawyers as spokespersons in China’s “contentious public square” (Lei 2018), building on Lei’s argument that the intersection of “marketized media, the Internet, and law . . . unequivocally empowered Chinese people.”

 

Regulating Algorithmic Disinformation

Posted on Mon, Aug. 14, 2023

Haochen Sun, The University of Hong Kong

 

The regulation of algorithmic disinformation is one of today’s thorniest legal problems. This Article proposes a novel approach to regulating algorithmic disinformation effectively. It first explores why transparency, intelligibility, and accountability should be adopted as the three major principles of the legal regulation of algorithmic disinformation. The US has yet to adopt any laws regulating algorithmic disinformation, let alone these three principles. The Article then examines legislative reforms in France and China, where the three principles have been translated into legal rules. Based on a critical discussion of the major problems with these legal rules, the Article puts forward a multi-stakeholder approach to better implement the three principles.

Comparative and Transnational Dispute Resolution

Posted on Fri, Aug. 11, 2023

Shahla Ali, The University of Hong Kong

 

This edited volume presents research and policy insights into the theory and practice of dispute systems reform in diverse jurisdictions. It highlights how important extra-judicial mechanisms are for resolving cross-border disputes, as evidenced both by the breadth of scholarship dedicated to the issue and the proliferation of parties resorting to non-litigious dispute resolution mechanisms in recent years. Drawing on selected case studies, the book examines the impact of comparative research and policy analysis in advancing reform of dispute resolution institutions at both the regional and global levels. It explores the challenges and opportunities of understanding and assessing developments in systems of dispute resolution in diverse social and political contexts through comparative research. With a growing number of disputes which have come to involve cross-border issues, anyone interested in transnational and comparative dispute resolution will find this book a useful reference.

 

FinTech: Finance, Technology and Regulation - Introduction

Posted on Thu, Aug. 10, 2023

Ross P. Buckley, University of New South Wales

Douglas W. Arner, The University of Hong Kong

Dirk A. Zetzsche, Universite du Luxembourg

 

This is the introductory chapter of the latest book by the authors titled FinTech: Finance, Technology and Regulation. The authors offer an ideal reference for anyone seeking to understand the technological transformation of finance and the role of regulation. They consider FinTech technologies including algorithms, AI, blockchain, BigData, cloud computing, cryptocurrencies, central bank digital currencies, crypto-exchanges and distributed ledger technologies, and provide a unique perspective on FinTech as an interactive system involving finance, technology, and law and regulation. Starting with an evolutionary perspective, the authors then consider the major technologies transforming finance, arguing for approaches to balance the risks and challenges of innovation. They then move address through the central role of infrastructure in digital financial transformation, highlighting the lessons of China, India, the EU as well as the impact of pandemics and other sustainability crises, while and analyze considering the risks generated by FinTech. They conclude by offering forward-looking strategies that will best assist societies seeking to employ FinTech to address the challenges facing our world today.

 

Chinese Cybersecurity Law: An Overview

Posted on Thu, Aug. 10, 2023

Hunter Dorwart, Bird & Bird

 

This chapter provides an overview of cybersecurity law in China, from introductory developments in the early 1990s regarding security of physical IT systems to contemporary debates around data protection, data security, and software vulnerabilities. It attempts to provide the reader with an introduction to cybersecurity law in China including key policy rationales, laws, and administrative regulations.

 

Artificial Intelligence Inventions

Posted on Wed, Aug. 9, 2023

Haochen Sun, The University of Hong Kong

 

This Article argues that the current divergent approaches to determining the legal status of AI inventorship fail to address proper policy considerations central to shaping AI and patent law in service of the public interest. Applying broad-based, forward-looking policy considerations, this Article puts forward three legal principles for protecting AI-generated inventions. The first principle draws on the doctrine of “piercing the corporate veil” to ascertain the sole patent proprietor of AI-generated inventions. It attempts to remove the unnecessary cost of protecting AI systems that are incapable of securing ownership of their inventions. The second principle considers the capacity to take legal responsibility as a means of evaluating whether AI systems should be recognized as inventors. It channels an ethos mandating that any grant of patent rights be conditioned on certain legal responsibilities. The third principle dictates that patent protection of AI-generated inventions must promote robustness of the public domain through the free flow of information and knowledge not subject to proprietary control. 

 

The Evolution of Modern Chinese Nationality Law: A Historical Perspective

Posted on Wed, Aug. 9, 2023

Albert H. Y. Chen, The University of Hong Kong

 

The legal concept of nationality was a Western import into China in the 19th century. The modern notion of nationality was a product of modern public international law and the domestic constitutional laws of Western states. In 1909, China under the Qing Dynasty enacted its first nationality law. After the Republic of China was founded, it enacted in 1912 a nationality law which was largely the same as the 1909 law. This law was slightly amended in 1914. After the Chinese Nationalist Party (Kuomintang) came into power, a new nationality law was enacted in 1929. This law is still largely in force in Taiwan today. The People’s Republic of China only adopted its first nationality law in 1980. This law is still in force today. This article will trace the evolution of modern Chinese nationality law by examining the laws mentioned above. It will seek to understand the evolving Chinese nationality law in the light of its changing political and social contexts and the international environment in which China found itself.

 

Moving to Opportunity for Polluting: Intra-City Evidence from China’s Land Market

Posted on Tue, Aug. 8, 2023

Shiyu Bo, Jinan University

Fan Zhang, University of International Business and Economics

Hongjia Zhu, Jinan University

 

As a response to local environmental regulations, it is prevalent to observe the relocations of polluting firms across cities. The authors provide the first piece of evidence of the within-city relocations of polluting plants through the spatial distribution of industrial land. The authors use the unique setting of the 12th Five-Year Plan on Air Pollution Prevention and Control covering 117 cities in China, among which the 47 treatment cities received more stringent regulation than the remaining 70. Using a triple-difference model, the authors find that after the implementation of the regulation, the locations of land newly leased by firms in polluting industries in the treatment cities are further away from the monitoring stations than those in the control cities. The event study results and the placebo tests using other categories of land farther validate the causal relationship. The channel analysis suggests that the mechanism is through both the supply side and the demand side: the local governments move their industrial land supply away from the monitoring stations after the regulation; land buyers also show less of a tendency to bid for land near the monitoring stations.

 

Godfather Politicians and Organized Violence: The Good, the Bad, and the Bloody

Posted on Tue, Aug. 8, 2023

Shuo Chen, Fudan University

Xinyu Fan, Cheung Kong Graduate School of Business

Xuanyi Wang, University of Zurich

Yuzheng Wang, Central University of Finance and Economics

 

Virtuous politicians are considered as ideal public servants. Ironically, social order does not necessarily improve when good politicians replace flawed ones. A corrupt politician (“Godfather”) may arbitrate otherwise violent conflicts for extralegal personal benefits, while maintaining local peace. Eradicating such politicians, therefore, leads to social unrest. Utilizing a unique natural experiment – China’s anti-corruption campaign since 2013, we use a difference-in-differences test to show that organized violence surged by an additional 14% in cases where officials were found colluding with organized criminals. We further show that the organized violence surge was not due to reporting bias, government failures, or gangster infightings.

 

Review: The Rise of China and International Law: Taking Chinese Exceptionalism Seriously, by Congyan Cai

Posted on Mon, Aug. 7, 2023

Jerome A. Cohen, New York University

 

This essay reviews Professor Cai Congyan's book, “The Rise of China and International Law: Taking Chinese Exceptionalism Seriously.” Despite the confines of the Xi era, the book delivers an in-depth analysis of the laws, politics, philosophy, and economics underpinning China’s global practice. His insightful arguments particularly shine in addressing the PRC’s increasing role in the WTO and other economic forums. However, the book falls short in addressing critical international issues, including the PRC’s claim over Taiwan, the implications of the Belt and Road Initiative, the country’s rejection of the 2016 UN Convention on the Law of the Sea arbitration award, and the detention of two Canadian citizens in retaliation to Canada’s cooperation with the U.S. extradition of a Huawei executive. The book also overlooks the significant influence exerted by the CCP over judicial institutions. Despite these limitations, the book is a valuable resource for those seeking to understand China’s complex and evolving approach to international law, calling for further evaluation of Beijing’s advocacy for “a community of shared future for mankind.”

 

China's New Legal Framework for Vertical Price Restraints: Aspirations and Limitations

Posted on Mon, Aug. 7, 2023

Sandra Marco Colino, Chinese University of Hong Kong

 

This article explores, and critically discusses, the revised legal framework for vertical price fixing and minimum resale price maintenance under Chinese competition law from a comparative perspective. In recent years, the Supreme People’s Court (SPC) and China’s legislature have attempted to close the gap in the administrative and judicial readings of the Anti-Monopoly Law (AML). The clarifications made in the 2022 AML reform largely resolve long-standing interpretative tensions. Nonetheless, they raise new doubts with regard to the standard of proof required to show the absence of effects. Moreover, the modus operandi of the exemptions remains unclear, since they have rarely ever been successfully invoked in practice. The article questions the true extent of the flexibility afforded by the modified policy, and proposes ways to enhance effective competition law enforcement.

Law In Books Versus Law In Action In the Landmark Shenzhen, China, Personal Bankruptcy Regime

Posted on Fri, Aug. 4, 2023

Jason J. Kilborn, University of Illinois

 

The first personal bankruptcy regime in Mainland China celebrated its second anniversary on March 1, 2023, and empirical assessment of the law in action during these first two years reveals some troubling deviations from the early promise of the new law on the books. The new system seems to be operating in quite a skewed fashion, admitting only a very small fraction of applicants and offering relief on narrow and demanding grounds. This is a disappointing abandonment of the textual promise of broad, standardized relief consistent with international best practices. As national authorities in China (and elsewhere) consider adopting a country-wide personal bankruptcy law, Shenzhen's experience illustrates the challenges of striking the right balance between relief and responsibility in personal insolvency regulation.

 

Property Rights and Firm Scope

Posted on Fri, Aug. 4, 2023

Zhimin Li, Peking University 

Tony Tong, University of Colorado

Mingtao Xu, Tsinghua University

 

The voluminous strategy research on the determinants of corporate scope is often premised on a well-established property rights regime, which contrasts with the weak property rights protection that still characterizes most countries today. The authors address this gap by applying property rights theory to theorize and empirically examine how the strengthening of the property rights regime affects corporate scope. Their analysis exploits the enactment of a property law that enhanced the formal protection of private properties in China as a quasi-experiment. They show that with a strengthened property rights regime, the horizontal relatedness among private firms’ businesses increases, but their vertical relatedness decreases, compared with state-owned firms. Further, these effects are less prominent for politically connected firms that are afforded informal protection of property rights. The findings shed new light on the property rights regime as a critical determinant of firms’ horizontal and vertical scope.

 

China and Global Data Transfers: Implications for Future Rulemaking

Posted on Thu, Aug. 3, 2023

Hunter Dorwart, Bird & Bird

 

In recent years, the rise of China as a cyberpower has raised concerns over the future of the Internet, the international norms of cyberspace, and the role of governments in regulating information and digital technologies. A central pillar of China’s cyberpower capabilities is the country’s new data governance framework, which attempts to regulate the flow of data across borders and exert sovereignty and control over entities and individuals that use information. At the same time, international rules around cross-border transfers have diverged, with numerous governments asserting their own jurisdiction to restrict the global flow of data. This chapter outlines the Chinese government's strategic ambitions with respect to data transfers and how and to what extent its goal may influence future rulemaking. It argues that while China’s overarching objective for data transfers is clear, its strategy to translate these goals into international rules and principles remains inchoate. Nonetheless, this chapter identifies three spillover effects of China’s regulatory rulemaking that could form a multi-dimensional foundation through which China may influence international data flows in the future.

 

The Emerging Chinese SOE Model of Infrastructure Financing and Development: Is there Institutional Convergence in Asia?

Posted on Thu, Aug. 3, 2023

Luther Lie, Harvard University

 

A nation’s economic development requires a significant investment in infrastructure. Infrastructure investment, however, is costly and risky: it is capital intensive, is potentially unprofitable, and requires high levels of technical expertise in many disciplines. To solve this challenge, most countries, apparently including China, seem to have adopted the public-private partnership (PPP) model for infrastructure financing and development — a legal-financial model developed in the United Kingdom in the 1990s. Being private sector driven, the Western PPP model was seen as a solution to the problem. This paper, however, argues that the Western model is far from globalized. China, in particular, has created and advanced its own model of infrastructure financing and development. Under the Chinese model, state-owned enterprise corporations (SOEs) lead infrastructure financing, construction, and operation. The Chinese model has been developed and indeed become a contender in emerging markets and developing economies in Asia such as Indonesia and Vietnam. 

 

Regulation of the Legal Profession in China: An Historical Overview

Posted on Wed, Aug. 2, 2023

John K.M. Ohnesorge, University of Wisconsin

 

This essay begins with an exploration of the role of law and “proto lawyers” in imperial China, followed by a survey of the legal profession and its regulation in Republican China before 1949 (Section II). Section III addresses lawyer regulation during the high tide of Soviet and the Maoist influence (III.A.), and in the post-1978 reform period (III.B. and III.C.), including the regulation of foreign lawyers and law firms in the China market. Section III.D. turns to developments since Xi Jinping took power in 2012, and Section IV offers concluding observations.

 

Regulation of Standards in Technology Markets between Competition Policy and International Trade - The Chinese and European Experience (Foreword)

Posted on Wed, Aug. 2, 2023

Paolo Davide Farah, West Virginia University

 

The regulation of standard setting varies significantly across regions and covering and comparing in detail the EU and Chinese regimes is an interesting decision and illustrates how two highly bureaucratic systems address the regulation of technological advancements. The analysis demonstrates how not only legal and economic considerations play a role in the regulation of standards, but also and most importantly political ones. The “openness” of China’s standardization is a telling example in this regard. The adoption of particular standards has the power to shape the industry, fostering innovation and interoperability, and at the same time, competition. This competition is not limited within State boundaries. It is taking place on a transnational scale where not only economic, but also geopolitical considerations play a role in shaping standards. The focus on information and communication technology (ICT) introduces the connections and interlinkage between standards and Intellectual Property Rights (IPRs). 

 

Credibility Standards: A New Social Credit Mode of Regulation?

Posted on Tue, Aug. 1, 2023

Marianne von Blomberg, University of Cologne

 

Under the social credit system project, China’s government promotes credibility-based regulation, a mode of discretionary decision-making informed by quantified assessments of regulatory subjects’ credibility. Credibility-based regulation is intended to combat China’s law enforcement problem by activating non-state actors to participate in regulatory work through conducting and sharing credibility assessments. However, little is known about its implementation. This article argues that a yet unexplored series of voluntary national standards provides the technical link between central-level rhetoric on credibility-based regulation and its implementation. Specifically, these standards lay down assessment methods and quantitative indicators for assessing credibility, and are drafted for the use of regulatory agencies, platform companies, industry associations and other state and non-state stakeholders. National standards provide a suitable link for implementing credibility-based regulation because, unlike top–down laws and policies, their creation involves a range of non-state affiliated actors, producing negotiated solutions that co-regulators may be more likely to adopt.

 

Exploring China’s Dual-Class Equity Structure: Investor Protection Measures and Policy Implications

Posted on Tue, Aug. 1, 2023

Sang Yop Kang, Peking University

Tong Ling, Fangda Partners

 

Mainland China traditionally maintained the one-share-one-vote (OSOV) principle. Since 2019, however, Chinese authorities have introduced rules supporting the dual-class equity structure (DCES) for “innovative enterprises.” Due to concerns about investor-protection issues, China’s DCES operates as a “stringent permit system,” and as of the end of December 2022, only eight corporations have used it so far. This article provides a broad and profound policy analysis of the Chinese DCES system, including empirical analyses on the eight existing DCES cases. It also explores the legal and economic aspects of investor-protection issues with respect to the China’s DCES. To foment founders’ entrepreneurship and allow more corporations with the DCES, this article recommends that the Chinese authorities gradually relax the implementation of the current DCES system of de facto stringent permit system. The future relaxation of the stringent permit system will also be beneficial for China.

 

The Holding Foreign Companies Accountable Act: A Critique

Posted on Thu, Jul. 13, 2023

Jesse M. Fried, Harvard University

Tamar Groswald Ozery, Hebrew University of Jerusalem

 

The 2020 Holding Foreign Companies Accountable (HFCA) Act will force China-based firms to delist from U.S. exchanges if China fails to permit audit inspections during a two-year period. The Act also requires such firms, as soon as China blocks such inspections, to disclose ties to the Chinese party-state. The authors first explain why the delisting provisions, while well-intentioned, may well harm U.S. investors. The authors then turn to the disclosure provisions, explaining that they appear to be motivated by a desire to name-shame Chinese firms rather than to protect investors. While China-based firms do pose unique risks to U.S. investors, the Act fails to mitigate—and may well exacerbate—these risks.

 

The Good Chinese Lawyer: A Student Guide to Law and Ethics

Posted on Thu, Jul. 13, 2023

Adrian Evans, Monash University

Richard Wu, The University of Hong Kong

Xu Shenjian, China University of Political Science and Law

 

This new book explores the ethical and professional challenges that will confront a law student, and will help them to prepare for life as a lawyer. The book offers principled and pragmatic advice about how to overcome such challenges. It urges readers to examine motives for seeking a career in law, to foster a deep understanding of what it means to be 'good' lawyer, and how to draw on virtue and judgment when difficult choices arise, rather than simply relying on rushed compliance with rules or codes. The Good Chinese Lawyer analyses four important areas of legal ethics – truth and deception, professional secrets, conflicts of interest, and professional competence – and explains the choices that are available when determining a course of moral action. It links theory to practice, and includes many diagrams and scenarios to illustrate ethical concepts and good decision-making.

 

The Cooperation Mechanism and Legal Harmonisation

Posted on Wed, Jul. 12, 2023

Emily Lee, The University of Hong Kong

 

This article examines the potential and challenges of the ‘Cooperation Mechanism’, a scheme introduced jointly by the Supreme People’s Court in China and the Hong Kong Government on 14 May 2021, for enhancing mutual recognition and assistance in insolvency proceedings. This article contends that the Cooperation Mechanism does not in itself constitute a formal mechanism for mutual recognition. To assess its impact, this article traces and analyses court decisions on recognition and assistance made before the implementation of the Cooperation Mechanism, and places them in contrast to those pursuant to or influenced by the Cooperation Mechanism. Additionally, it highlights a similar practice between Europe’s Brussels Convention of 1968 and two arrangements between Hong Kong and mainland China, namely the 2006 Arrangement and the 2019 Arrangement, in carving out bankruptcy and insolvency proceedings, notwithstanding some technical differences.

 

Recent and Noteworthy Legal Works Published in China

Posted on Wed, Jul. 12, 2023

Mark Sidel, University of Wisconsin Law School

 

1985 and 1986 were banner years in Chinese legal publishing. More than ever, Chinese legal scholars and commentators were freed from producing numbingly repetitive law textbooks and guides for citizens on such topics as family law and criminal law and began to write books and articles, some imbued with an unprecedented innovative spirit, on subjects as varied as administrative law, inheritance law, bankruptcy, intellectual property and the relationship between law and democracy. Works examining the traditional subjects of the Chinese legal scholar and commentator, economic law, criminal law and procedure, civil law, family law and legal history, were more lively and imaginative and often employ specific case examples. Books of civil and criminal cases, a new genre in Chinese legal publishing, have burst upon the stage. Academic and popular law journals have emerged relatively free of restraint, and legal periodicals have thrived.

 

Between Rules and Power: Finding a Place for Lawyers in the Sociology of Professions

Posted on Tue, Jul. 11, 2023

Sida Liu, The University of Hong Kong

 

The legal profession’s maintenance of ‘rule-boundedness’ is not a simple choice between order and liberty or between ‘authoritarian or the anti-authoritarian powers’ as Max Weber put it. It is rather a complex and everyday balancing act between the toolkit of rules and the river of power. Rules are lawyers’ most potent technical weapon as well as their heaviest moral burden. They enable lawyers to serve or resist state power, but they also constrain lawyers’ political mobilisation by limiting the scope of individual or collective action. Power, by contrast, is both lawyers’ best friend and bitterest foe. It gives lawyers the capacity to use their legal expertise to mobilise the state on behalf of their clients, but it also poses the constant threat of abuse of rules and proceduralism by the state and its officials. This juxtaposition of rules and power makes the practice of law distinctive among the professions, most of which are not as close as lawyers to rules and power. 

 

Chinese Legal Response to the Shared Motherhood Model in Lesbians’ Family-making

Posted on Tue, Jul. 11, 2023

Chunyan Ding, City University of Hong Kong

 

Despite the non-recognition of same-sex relationships or marriage by the law, lesbian motherhood has become an emerging socio-legal issue in China. Some Chinese lesbian couples adopt a ‘shared motherhood model’ where one lesbian contributes an egg while her partner becomes pregnant through embryo transfer following artificial insemination with a donor’s sperm. Because this model divides the roles of biological mother and gestational mother between lesbian couples, it has allowed legal controversies to emerge associated with the parenthood of the conceived child as well as custody, support of, and visitation of the child. There are two pending judicial cases involving a shared motherhood arrangement reported in the country. Given little literature discussing Chinese legal responses to the shared motherhood model, this article aims to fill the gap by investigating the basis of parenthood under Chinese law and analyzing the parentage issue concerning the different types of relationships between lesbians and children born of a shared motherhood arrangement.

 

Is Trial Fairness Affected in Live Broadcast? Preliminary Evidence from a Court in China

Posted on Mon, Jul. 10, 2023

Yingmao Tang, Fudan University

Zhuang Liu, The University of Hong Kong

Kangyun Bao, Peking University

 

This article examines the impact of live broadcast of trials on the behavior of trial participants and court decisions, which is a fundamental question raised by the US Supreme Court in Estes v. Texas in 1965, but has largely been ignored by the advocates of China’s recent initiative to promote and support live broadcast of trials. Using data collected from a court in China, the authors compare trials with and without live broadcasting. They find that trial participants’ rate of speech (average speaking speed measured in words per minute) is slower in the presence of live broadcast, suggesting that they are more cautious. The authors do not find evidence that live broadcasting influences court decisions or judgments in civil or criminal cases.

 

Open Access in the Economic Sphere: Understanding China’s Development

Posted on Mon, Jul. 10, 2023

Guanghua Yu, The University of Hong Kong

 

This article is the last piece in a series of articles written from the perspective of contemporary non-Western countries, arguing that it is open access in the economic sphere and the interconnected institutions in the areas of property right protection and contract enforcement, financial market, rule of law, and the accumulation of human resources that determine economic and human development. The case of China shows again that the theory of North and his colleagues overemphasizes the role of open access to political organizations or competitive democracy in economic development. While Singapore restricts the role of opposition parties, China strictly prohibits opposition parties. Both countries have developed relatively well. If the author’s argument is correct, there are new ways of defining the roles of government in economic development. 

 

An Unlikely Duet: Public-Private Interaction in China's Environmental Public Interest Litigation

Posted on Fri, Jul. 7, 2023

Ying Xia, The University of Hong Kong

Yueduan Wang, Peking University

 

Increasing research has been devoted to examining collaborations between public and private actors in environmental regulation under neoliberal democracies. However, this public-private interaction in authoritarian regimes remains understudied. This article seeks to address this gap through an empirical examination of the interaction between environmental non-governmental organizations (NGOs) and procuratorates in China’s environmental public interest litigation. The authors find emerging complementarity: NGOs focus on new issues and target high-profile defendants to increase the socio-legal impact of their civil litigation, whereas procuratorates increasingly engage in administrative litigation against government agencies. This complementarity is shaped by the different legal opportunities for Chinese NGOs and procuratorates, as well as their respective institutional objectives and capacities. Their divergent regulatory preferences have also fostered synergy between these two actors, allowing them to collaborate on legal experimentation and innovation.

 

Differentiated Voting Rights Arrangement under Dual-Class Share Structures in China: Expectation, Reality and Future

Posted on Fri, Jul. 7, 2023

Min Yan, Queen Mary University of London

 

Following other leading financial centres in Asia, China also recently relaxes restrictions on one share-one vote and starts to allow companies with differentiated voting rights (DVR) arrangement under dual-class share (DCS) structures to list on its newly established Sci-Tech innovation board. The move primarily aims to provide more flexible capital structures to support a sustainable development of high-tech and innovative companies and to increase stock exchanges’ competitiveness in attracting companies that prefer going public with DCS structures. However, the reality deviates from scholars and policymakers’ expectation as only one company applies for and gets listed with a DCS structure since the official permission of such share structures in March 2019. This article examines underlying reasons for the discrepancy between the expectation and the reality of China’s implementation of DCS structures. It also critically discusses the role and future of DCS structures in the Chinese context.

 

How Did Qing Magistrates Decide Cases? Philip Huang vs. Shiga Shūzō

Posted on Thu, Jul. 6, 2023

Donald C. Clarke, George Washington University

 

Shiga Shūzō argued in 1981 that in cases where serious criminal punishment was not contemplated, Qing magistrates adjudicated not according to the Qing code or other legal sources, but instead according to their own sense of what was right and appropriate. Against this, Philip Huang argued in 1996 that the vast majority of cases were adjudicated unequivocally according to the Qing code. But Huang fails to disprove Shiga’s claim. First, by his own admission, he is constructing through his own inferences the rules of the Qing code that he says the magistrates were applying; they do not in fact appear in the code. Second, the rules he constructs are so broad and virtually tautological—for example, “enforce legitimate debts”—that they do not meaningfully distinguish the Qing code from general principles of law and morality that have applied in many societies across time and space.

 

Liability for Imposing Sanctions Against the PRC or Hong Kong under Hong Kong’s National Security Law

Posted on Thu, Jul. 6, 2023

Albert H. Y. Chen, The University of Hong Kong

Simon N. M. Young, The University of Hong Kong

 

Under art 29(4) of Hong Kong’s National Security Law, a person or company who “receives instructions” from a foreign country to commit the act of “imposing sanctions” against the Hong Kong Special Administrative Region (HKSAR) or the People’s Republic of China (PRC) commits a criminal offence. If, as required by the law of a foreign country X, a financial institution in Hong Kong performs an act in the course of its business for the purpose of implementing a sanction imposed by country X against the HKSAR or PRC, does that financial institution violate art 29(4)? The authors argue the financial institution does not, and that the scope of art 29(4) must be interpreted contextually. 

 

The Other Roles of Law: Signaling, Self-Commitment and Coordination

Posted on Wed, Jul. 5, 2023

Guanghua Yu, The University of Hong Kong

 

The existing literature on the role of formal law in economic development mainly focuses on the protective function of law. The dominant position of law and development scholars with expertise in Chinese law or economy downplays the role of formal law in China’s economic development. This article, however, demonstrates that there is still inadequate evidence to support this position. In addition to pointing out that there might be a role for formal law in China’s economic development with respect to the enforcement of contracts and the protection of property rights, this article analyses the other roles of law. They include signaling, self-commitment, and coordination. These roles of formal law have varying degrees of impact in different countries depending upon their political economy. More importantly, it is the law that defines the role of the state or government in economic development. This article rejects the position that there is a role of the government in owning or managing SOEs or TVEs in China except for a period under distorted economic conditions. The role of the state, instead, should be in the provision of public goods including law. 

 

Introduction to Special Issue on 'Legal Dimensions of Chinese Globalization': China and Global Health Governance

Posted on Wed, Jul. 5, 2023

Matthew S. Erie, University of Oxford

 

China has emerged as a champion of economic globalization, particularly through building global supply chains, financing overseas infrastructure and energy projects, and exporting labour to developing countries throughout the world. The Belt and Road Initiative (BRI), announced in 2013, is a keystone in China’s economic globalization. The BRI emphasizes connectivity: policy, infrastructure, trade, financial, and ‘people-to-people’. Despite the broad significance of Chinese economic globalization, its legal dimensions are still poorly understood. China, Law and Development (CLD) is an international and multi-disciplinary research project that aims to study the legal and regulatory aspects of this stage of globalization. This symposium is comprised of articles by CLD research associates who investigate various questions, including labour rights, skilled migration facilitation, investment review, multilateralism, and patronage and clientelism. This article introduces the symposium, and it does so through the example of China’s role in global health governance. 

The Identifiability Problem in Transnational Privacy Regulation

Posted on Tue, Jul. 4, 2023

Xiaowei Yu, The University of Hong Kong

 

Commercial surveillance pervasively compromises data privacy by tracking consumers without meaningful consent or knowledge, yet there is no consensus on when data privacy laws should intervene. The crux lies in the standard of identifiability, which functions as the threshold trigger for when regulation is permissible. The world’s key privacy jurisdictions—the EU, U.S., and China—continue to struggle in similar ways with inadequately defining and inconsistently applying the concept of identifiability. This article generalizes from the transnational convergence and refers it as “the identifiability problem.” Recognizing the identifiability problem reveals an overlooked phenomenon across jurisdictions. Besides, it lays a factual foundation to synthesizing international efforts into solving the threshold issue of data privacy law. Moreover, it calls forth a normative inquiry. Whether we can justify the use of identifiability as the threshold for regulation is the first and foremost task prior to revising identifiability or abandoning it.

 

Will China's New Anti-Suit Injunctions Shift the Balance of Global FRAND Litigation?

Posted on Tue, Jul. 4, 2023

Jorge L. Contreras, University of Utah

Yang Yu, Shanghai University of International Business and Economics

 

By issuing anti-suit injunctions (ASIs) in Conversant v. Huawei and InterDigital v. Xiaomi in late 2020, Chinese courts have signaled a new willingness to vie for jurisdictional authority in global battles over standard-essential patents and FRAND licensing. While the Supreme People’s Court in Conversant largely followed the pattern of US and UK courts that have issued ASIs in similar cases, the ruling of the Wuhan court in InterDigital is far broader in two major respects. First, its geographic scope is not limited to the country in which InterDigital sought injunctive relief (India), but extends to all jurisdictions in the world. Second, it prohibits InterDigital from seeking a determination of a global FRAND rate for its 3G/4G patents anywhere in the world. In view of these two recent cases, China has clearly joined the international race to be the jurisdiction of choice for determining FRAND royalty rates in global disputes involving standard-essential patents.

 

The Digital Yuan and Cross-Border Payments

Posted on Mon, Jul. 3, 2023

Oriol Caudevilla, The University of Hong Kong

Henry M. Kim, York University

 

China’s launch of its digital yuan begins a new era in payments. After six years of research and development, the Chinese government announced its testing of the digital yuan (e-CNY) within its digital currency electronic payment (DCEP) system. China has also laid the groundwork to launch the digital yuan internationally. The domestic and cross-border tests proved so successful that the People’s Bank of China released digital yuan wallet applications for Android and iOS in early January 2022. Western policymakers have expressed concerns over China’s aspirations to internationalize the renminbi by expanding its DCEP, potentially allowing China’s security agencies to monitor the financial activity of foreign visitors, companies, or governments doing business in China or in its Belt and Road Initiative, or to bypass sanctions against some of the initiative’s members. This case study looks at how China might leverage the e-CNY to increase its influence in the global economy.

 

Development Is Not a Dinner Party

Posted on Mon, Jul. 3, 2023

John K.M. Ohnesorge, University of Wisconsin Law School

 

Much has been written, and remains to be written, about the many roles law has played in China’s economic development since 1978. Without minimizing the value of what has been written so far, this essay seeks to broaden the discussion by applying to China’s recent history certain ideas of the great historian of 19th Century American law and economic development, James Willard Hurst. The essay proceeds by providing a brief introduction to Hurst and his work on law and economic growth in the United States, then explores how those ideas might be applied to assist our understanding of what has happened in China.

How Will Technology Change the Face of Chinese Justice?

Posted on Fri, Jun. 30, 2023

Benjamin Minhao Chen, The University of Hong Kong

Zhiyu Li, Durham Law School

 

Chinese courts are