Chinese Law Blog

New Data Architectures in Brazil, China, and India: From Copycats to Innovators, towards a post-Western Model of Data Governance

Posted on Mon, Apr. 24, 2023

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Luca Belli, Getulio Vargas Foundation

 

This paper explores the recent data protection evolutions in three leading emerging economies, Brazil, China, and India, to identify the contours of what may become a new post-Western Model of Data Governance. The paper stresses that recent innovations introduced by these countries are particularly relevant for two reasons. First, the considerable geopolitical and economic weight they have at both regional and international level. Second, for the pragmatic approach they adopt, to tackle the limits of dominant data protection models, using some of their strongest assets: namely, the Brazilian multistakeholder governance, the Chinese cybersecurity regulation, and the Indian technological expertise. The paper identifies the main characteristics of the three national data architectures and the elements of novelty that are likely to inspire other frameworks

 

Will China's Impending Overhaul of its Financial Regulatory System Make a Difference?

Posted on Mon, Apr. 24, 2023

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Martin Chorzempa, Peterson Institute for International Economics

Nicolas Veron, Peterson Institute for International Economics

 

China’s reshuffle of its financial supervisory architecture announced in March, like previous changes, appears incremental rather than radical. It will not, however, resolve the main challenge hobbling China's financial system, which is not linked to specific choices of supervisory architecture but rather to the unfinished transition from a state-directed to a market-based financial system and the way the Chinese Communist Party's pervasive role creates obstacles to good corporate governance of individual financial firms and to the independence of supervisory authorities. The authors argue that Chinese reformers should aim at a clearer and more rigorous division of responsibilities, in which financial firms manage financial opportunities and risks, and supervisors are exclusively focused on their respective public policy mandates.

 

Order of Power in China's Courts

Posted on Fri, Apr. 21, 2023

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Ling Li, University of Vienna

 

This article presents a theory of the order of power to explain the dynamics and interaction between the political and legal orders in China’s courts. The theory posits that the political order is embodied in the extensive administrative ranking system (ARS) of the PRC and has a systematic impact on the legal order regardless of the subject matter. The ARS is a system that regulates power relations between various institutional and personal actors in all key power fields, including courts. The order-of-power theory argues that the political order relativizes law during the processes of legal implementation, application, and enforcement. It provides a coherent explanation of judicial behavioral patterns in different subject matters, such as the centralization of criminal investigations in some crimes but not others, the distribution of corruption in China’s courts and the outcome patterns of administrative litigation. This challenges the conventional wisdom that the political order and the legal order in China’s courts are partitioned based on the subject matter and asserts the opposite: the impact of the political order is systemic, comprehensive and applicable to the entire legal field across subject matters.

 

Alibaba and the Forced Restructuring

Posted on Fri, Apr. 21, 2023

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Jin Li, The University of Hong Kong

Angela Huyue Zhang, The University of Hong Kong

 

Markets are welcoming Chinese tech giant Alibaba’s plan to split into six independent entities. The reason might seem obvious. Because smaller autonomous units appear likely to be nimbler and more adaptable, one might expect the restructuring to help to revitalize the massive company and boost productivity. One might also assume that dividing the company will alleviate the monopoly concerns that have made Alibaba a primary target of regulators in recent years. But the move does not seem likely to alleviate antitrust concerns in any meaningful way, and there is no strong business justification for the company's chosen approach.

 

Breaking the Cycle? China’s Attempt to Institutionalize Center-Local Relations

Posted on Thu, Apr. 20, 2023

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Yueduan Wang, Peking University

Sijie Hou, Chinese Academy of Social Sciences

 

This study argues that the current Chinese administration has attempted to institutionalize center-local relations by reforming key party-state entities, with the aim of mitigating the centralization-decentralization cycle driven by ad hoc political mobilization. On the fiscal front, these reforms aim to consolidate budget management, merging national and local tax agencies, limiting local government borrowing, and centralizing expenditure planning. On the rule-enforcement front, the reforms try to empower the judiciary and the disciplinary inspection systems by isolating them from local influences. These changes have systematically strengthened the center’s fiscal control and enhanced local compliance with national policies and rules. However, it remains to be seen whether the new structure will eventually be weighed down by local resistance, incentive issues, or changes in the center’s factional dynamics.

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The Judicial Document as Informal State Law: Judicial Lawmaking in China’s Courts

Posted on Thu, Apr. 20, 2023

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Shucheng Wang, City University of Hong Kong

 

Judicial documents, which interpret statutory laws and make new rules for adjudication have become a robust basis for judicial decision making. This article examines why and how, with no explicit statutory delegation, the practice of producing judicial documents has become embedded in the adjudication of China’s courts, how the judicial document can be effectively referred to by judges during adjudication, and the extent to which the judicial document has enabled the court, under the dual leadership of the superior court and the local Party committee, to efficiently and effectively respond to subnational diversity and the differences in local politics. It proposes a twilight theory of China’s judicial documents, explaining why this judicial lawmaking practice exists in a twilight zone between legal and illegal and why it is suitable for China’s authoritarian legal regime with political resilience.

 

Book Review: “Useful Bullshit: Constitutions in Chinese Politics and Society” by Neil J. Diamant  

Posted on Wed, Apr. 19, 2023

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Han Zhu, The University of Hong Kong

 

According to political constitutional theorists, the making of the 1954 Constitution of the PRC is the most critical, if not the only, “constitutional moment” in the PRC history. But few have looked into the specifics of the constitutional-making process of the 1954 Constitution, i.e., how so-called “people’s will” really played out. Among the four PRC constitutions, the 1954 Constitution is the only one that has gone through massive public discussion. Diamant’s book fills this void by offering the first panoramic analysis of constitutional conversations between officials and ordinary citizens during the drafting of the 1954 Constitution. Nevertheless,  the construct of Chinese constitutions as useful bullshit also faces risks because it may ignore other dynamic factors, such as historical and ideological ones, that have shaped China’s constitutionalism.

 

A Cohesive Framework to Regulate Generative AI Technologies (Apr 28)

Posted on Wed, Apr. 19, 2023

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

 

This talk by Mr Yue Zhu will explore the current initiatives aimed at regulating generative AI technologies such as ChatGPT across various jurisdictions. The Cyberspace Administration of China is soliciting public feedback on regulations tailored to generative AI, while similar conversations are taking place in the United States. The European Union is making progress on the AI Act and has established a specialized GPT task force under the European Data Protection Board. Mr Zhu will assess the effectiveness and shortcomings of these legislative and administrative developments within a cohesive and harmonized framework.

 

The Rule of Law Through Thick and Thin: International Law from the Internal Point of View (Apr 28)

Posted on Tue, Apr. 18, 2023

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

 

The rule of law is in trouble internationally as states increasingly flout the norms of international law even as they purport to abide by them. It can thus be claimed that the interaction of state legal orders with the international order presents a ‘dual order’. On the one hand, international space is ruled by the executives of the most powerful states doing as they will. On the other hand, within the space of the state the executive is subject to the rule of law as instantiated in its legal order. However, entailed in this assumption is that even within the space of the state, the executive is no more constrained by law than it is in international space, since every state is internally a Dual State. This lecture by Prof David Dyzenhaus will explore the resources of legal theory that enable us to contest this assumption. He will argue, first, that there is a moral imperative to adopt what HLA Hart called the ‘internal point of view’ towards international law, to accept its authority in order to constitute its authority as a legal order. Second, he will argue that a normatively ‘thin’ theory of legality is needed to make sense of the legality of international law, the theory presented by Lon Fuller. 

 

Industrial Land Discount in China: A Public Finance Perspective

Posted on Tue, Apr. 18, 2023

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Zhiguo He, University of Chicago

Scott Nelson, University of Chicago

Yang Su, University of Chicago

Anthony Lee Zhang, University of Chicago

Fudong Zhang, Tsinghua University

 

China’s land market features a substantial industrial discount: industrial-zoned land is an order of magnitude cheaper than residential land. In contrast to explanations centered on subsidies to industry or promoting industry growth, the authors emphasize the importance of future tax revenues from the land and find that local public finance incentives can largely rationalize this price gap. Under the “land finance” system, land sales are an important source of revenues for Chinese local governments. The authors show that local governments, who serve as monopolistic land sellers in China, face a trade-off between supplying residential or industrial land that is determined by the different time profiles of revenues from industrial and residential land sales, local governments’ financial constraints, and the extent of local governments’ tax revenue sharing with other levels of government.

 

Informational Privacy with Chinese Characteristics

Posted on Mon, Apr. 17, 2023

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Huw Roberts, University of Oxford

 

In recent years there is said to have been a ‘privacy awakening’ in China, with a demand from citizens for improved data protections being met by comprehensive regulatory measures, including legislation passed by the Standing Committee of the National People’s Congress. The measures introduced provide individuals with strong consumer privacy protections but do little to meaningfully curb state mass surveillance and censorship. The author explores the dual nature of China’s emerging data protection regime and argues that the absence of citizen protections is more than just an example of authoritarian policymaking that is unwilling to curtail its own power. Strong consumer and weak citizen protections are reflective of a socio-political conception of informational privacy rights in China. To make this argument, the author develops a conception of informational privacy as mutual obligations between the state and citizens.

 

China’s Belt and Road: Where to Now?

Posted on Mon, Apr. 17, 2023

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Leon Trakman, University of New South Wales

 

This article scrutinizes China’s responses to obstacles in extending its Belt and Road Initiative (BRI), arising from unstable investment markets, politicized trade sanctions, and domestic demands on its financial reserves. One response is for China to selectively extend the ideology and practices that underly its domestic economy to global investment markets. However, in doing so, China risks being typecast as an investment overlord that turns developing states into dependencies rather than as fully participating investment partners. A reconciliatory approach is for China to champion profitable dealings with shared benefits for its bilateral treaty partners and their investors. How effectively China redresses these obstacles is a key challenge for China and the central focus of this article.

 

The Role of Competition Law in Regulating Data in China's Digital Economy

Posted on Fri, Apr. 14, 2023

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Wendy Ng, University of Melbourne

 

The relevance and appropriateness of antitrust and competition laws to deal with data are being examined and considered by antitrust and competition regulators and governments around the world. Similar discussions and issues are also becoming prominent in China. This article examines whether and how China’s competition laws might apply to regulate the data and data practices of Internet and technology companies. It does so by undertaking a political economy and contextual exploration of China’s data regulatory environment and its relationship and interaction with China’s competition laws. The nature of China’s political economy, as well as of its competition laws, means that a variety of interests, goals, and priorities are considered and balanced in the enforcement of competition law, under the macroeconomic supervision and guidance of the state.

 

The Spatial Expansion of China's Digital Sovereignty: Extraterritoriality and Geopolitics

Posted on Fri, Apr. 14, 2023

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Wanshu Cong, European University Institute 

 

While China’s approach of re-territorializing the cyberspace is well-known, this paper argues that there is an emerging tendency of China expanding its regulatory power beyond territorial borders, which indicates a more spatially expansive notion of China’s digital sovereignty. This paper examines this shift from territoriality to extraterritoriality in the conception and practice of China’s digital sovereignty by focusing on three recent regulatory initiatives. From these initiatives, the paper identifies two main approaches of broadening the spatial dimension of China’s digital sovereignty and argues that they reflect how the notion of digital sovereignty is developed to incorporate China’s changing geostrategic interests. This adaptation of China’s digital sovereignty can be compared to practices of the EU and the US to observe both contrasting trends and important regulatory emulations. 

 

Governance and Law in a Digital Society (Apr 24)

Posted on Thu, Apr. 13, 2023

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

 

This talk by Professor Weidong Ji will explore how our lives are becoming increasingly digitized through our interactions with artificial intelligence, the internet of things, Big Data and the Metaverse. The blurred boundaries between virtuality and reality have shone light on the need to rebuild the relationship between the digital and the analogue. Join us to learn about new phenomena such as “individual sovereignty”, “distributed autonomous organizations” and the “reconstruction of the basis of order by community rules” and their implications for law, politics and sociology. Don’t miss out on this opportunity to delve into this exciting and relevant topic!

 

Automating Fairness? Artificial Intelligence in the Chinese Courts

Posted on Thu, Apr. 13, 2023

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Rachel E. Stern, University of California, Berkeley

Benjamin L. Liebman, Columbia University

Margaret E. Roberts, University of California, San Diego

Alice Wang, Columbia University

 

In the last five years, Chinese courts have come to lead the world in their efforts to deploy automated pattern analysis to monitor judges, standardize decision-making, and observe trends in society. This article chronicles how and why Chinese courts came to embrace artificial intelligence, making public tens of millions of court judgments in the process. Although technology is certainly being used to strengthen social control and boost the legitimacy of the Chinese Communist Party, examining recent developments in the Chinese courts complicates common portrayals of China as a rising exemplar of digital authoritarianism. Data are incomplete, and algorithms are often untested. The rise of algorithmic analytics also risks negative consequences for the Chinese legal system itself, including increased inequality among court users, new blind spots in the state’s ability to see and track its own officials and citizens, and diminished judicial authority. 

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The Legal Constitution (Apr 17)

Posted on Wed, Apr. 12, 2023

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

 

With particular reference to the UK system, this lecture by Professor Peter Cane will explore the historical process by which law has become central to our understanding of what a constitution is and what it is for. A significant chapter in that story is AV Dicey’s invention of the concept of “the rule of law”. All are welcome to sign up to join the lecture!

 

Transforming the Culture of Chinese Prosecutors through Guiding Cases

Posted on Wed, Apr. 12, 2023

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Colin Hawes, University of Technology Sydney

 

Public prosecutors are a key element within the legal complex, and crucial to the effective implementation of legal reforms. China’s procurators have previously colluded with local governments, police and courts to “strike hard” against crime while overlooking systemic beating and torture of detained suspects to obtain confessions, shoddy investigative practices, and frequent miscarriages of justice. However, fifteen sets of Guiding Cases issued by the Supreme People’s Procuracy since 2010 promote an unprecedented change in Chinese procurator culture away from “striking hard” to substantive protection of criminal suspects’ rights and exclusion of tainted evidence. This effort to transform procurator culture is an essential, though still incomplete, step on China’s tortuous path towards a fair and just legal system.

 

Making Local Courts Work: The Judicial Recentralization Reform and Local Protectionism in China

Posted on Tue, Apr. 11, 2023

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Zhenhuan Lei, University of Wisconsin

Yishuang Li, New York University

 

Is a decentralized court system, where local governments appoint judges and finance the court budget, more conducive to the autonomy of courts than a more centralized court system that allows higher-level governments to control local judiciaries? The authors answer this question by investigating a reform in China that gradually recentralizes the control of local courts. Applying a difference-in-differences design over a unique dataset of listed firms’ lawsuits in 2012-2018, they find that re-centralization reduces a prominent form of judicial bias in China, namely, the advantage of local litigants, after local courts become fiscally and politically independent from prefectural and county governments. These results demonstrate that re-centralization helps local judiciaries resist the influence of parochial interests and improve the court's independence.

 

De Facto Dual Nationality in Chinese Law and Practice

Posted on Tue, Apr. 11, 2023

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Jasper Habicht, University of Cologne

Eva Lena Richter, University of Cologne

 

While recent policies issued by the government advocate the return of overseas Chinese and the attraction of skilled foreign nationals, the People’s Republic of China still rejects the recognition of dual nationality. This article aims to present scenarios of de facto dual nationality. These scenarios are examples of how the non-recognition of dual nationality under Chinese law conflicts with the interest of individuals. Legal and procedural inconsistencies of the Chinese state, too, have created inconsistent implementation of nationality law. Public administration of nationality law and the Chinese household registration (hukou) system are often conflicting, and China’s diplomatic efforts in holding up single nationality as the sole legal rule have contrasted with its focus on maintaining control over former citizens who naturalise elsewhere. Enhanced cooperation between authorities will make problems more obvious, while underlying major problems persist. 

 

Commitment Failure within Bureaucracy: Why a Centralization Reform Backfired in Late Imperial China

Posted on Thu, Apr. 6, 2023

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Yu Hao, Peking University

Kevin Zhengcheng Liu, The University of Hong Kong

 

Centralized tax administration is the hallmark of the modern fiscal state. This paper evaluates a commitment problem inherent in establishing fiscal centralization: could states credibly promise to use centralized tax revenues to finance prespecified local government expenditures? The authors examine how a fiscal reform, intended to centralize the administration of local taxations, can backfire and result in negative fiscal and social consequences in eighteenth-century China. Using a difference-in-differences identification, the authors find that centralization led to a substantial increase in extralegal levies extracted by the local governments from peasants, which ultimately provoked tax revolts. They also show that upper governments redirected the spending of centralized revenues from prespecified local expenditures to upper expenses. 

 

The Incursion of Antitrust into China's Platform Economy

Posted on Thu, Apr. 6, 2023

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Sandra Marco Colino, Chinese University of Hong Kong, University of Glasgow

 

As enforcers everywhere come to terms with the unique challenges posed by the market power amassed by digital gatekeepers, China’s sudden, fierce attack on its own tech giants has been as effective as it has been baffling to observers. Although antitrust enforcement and policymaking have progressed by leaps and bounds, antitrust is only one of several battlefields of the war on platforms. This article first dissects the competition law developments that have taken place in the first year of China’s “Big Tech crackdown”, focusing on enforcement, policymaking, and law and institutional reform. Thereafter, this article joins the dots and assesses the results of the (partly) Big Tech-motivated refurbishment of the Chinese antitrust law and policy landscape. It identifies certain risks stemming from the new reinforced system, and proposes ways circumvent these and reap the benefits of the improved legal framework.

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The Rule of Law and Its Virtue (Apr 14 2023)

Posted on Tue, Apr. 4, 2023

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

 

The rule of law is a sane idea gone big. Ever since Albert Venn Dicey, in 1885, popularized the phrase to describe the English way of law, it has informed local and global ways of life like few other figments of our imagination. Yet the history of the rule of law is far less glittering than it appears at first glance; it is shot through with violence. Attuned to the dark sides of virtue, this lecture by Prof Jens Meierhenrich revisits the meaning of the rule of law. Several questions are addressed: What is the rule of law? What should it be? Is the rule of law worth having if it cannot sustain the liberty of all? Is it worth promoting if it helps to buttress not just democracy but autocracy as well? What can be done about the rule of law? What can be done with it? What is the virtue of the rule of law? And how much of it is left? 

 

Transparency for Authoritarian Stability: Open Government Information and Contention with Institutions in China

Posted on Tue, Apr. 4, 2023

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Handi Li, Peking University

 

It is widely agreed that authoritarian governments conceal or censor information in order to maintain social stability. However, does transparency necessarily increase mass threats? Based on the Chinese case, the author theorizes that policy transparency can redirect popular discontent from the streets to institutional dispute resolution venues such as the courts. Using online and in-the-field survey experiments about open government information (OGI) on land-taking compensation, the author shows that OGI improves citizens’ preference for legal and political institutions and causes them to prioritize institutions over protest when they have grievances against government. Multiple findings suggest that this is because the evidence of local misbehavior increases their perceived fairness of institutions for dispute resolution. 

 

China’s Covid-19 Response: The Role of Bankruptcy Law and ‘Typical’ Cases

Posted on Mon, Apr. 3, 2023

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Yang Zhang, Wuhan University

Andrew Godwin, University of Melbourne

Stacey Steele, University of Melbourne

 

This article examines responses to the Covid-19 crisis in China in the context of emerging corporate bankruptcy law and practice as demonstrated by the Supreme People’s Court selection and publication of eight ‘typical cases’ involving enterprises in financial difficulty during the pandemic. It analyses the potential for typical cases to affect the approach of lower courts to bankruptcy cases both during and after the pandemic. The authors find that the courts claim an important coordinating role in the typical cases and openly apply the law as set out in the Enterprise Bankruptcy Law flexibly – with a focus on reorganisation-type proceedings – and that social stability remains a paramount objective. The strategic use of bankruptcy law as part of the response to the crisis and the publication of these cases by the Supreme People’s Court underscore the increasing sophistication of China’s corporate bankruptcy law and practice.

 

China and Peacekeeping: Unfolding the Political and Legal Complexities of an Ambivalent Relationship

Posted on Mon, Apr. 3, 2023

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Mauro Barelli, City University London

 

In the past decade China’s engagement with UN peacekeeping has intensified. In particular, Beijing has supported and participated in peace operations that were not fully compatible with the consensual, impartial, and non-coercive models of peacekeeping traditionally employed by the UN. China’s endorsement of offensive and intrusive missions is not inconsequential, given that it clashes with its professed adherence to rigid interpretations of the principles of sovereignty, non-intervention, and the non-use of force in international relations. To make sense of this, one must examine the broader process of foreign policy recalibration that is redefining the interests and priorities of the country as a new great power. Furthermore, by examining China’s ambivalent approach to the principles that have traditionally defined the legal framework of UN peacekeeping, this article highlights the opportunities and challenges that China will face as a provider of international security.

 

Detecting the Influence of Chinese Guiding Cases: A Text Reuse Approach

Posted on Fri, Mar. 31, 2023

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Benjamin Minhao Chen, The University of Hong Kong

Zhiyu Li, Durham Law School

David Cai, ETH Zürich

Elliott Ash, ETH Zürich

 

Socialist courts are supposed to apply the law, not make it, and socialist legality denies judicial decisions any precedential status. In 2011, however, the Chinese Supreme People’s Court designated selected decisions as Guiding Cases to be referred to by all judges when adjudicating similar disputes. One decade on, the paucity of citations to Guiding Cases has been taken as demonstrating the incongruity of case-based adjudication and socialist legality. Citations are, however, an imperfect measure of influence. Reproduction of language uniquely traceable to Guiding Cases can also be evidence of their impact on judicial decision-making. The authors employ a local alignment tool to detect unattributed text reuse of Guiding Cases in local court decisions. The findings suggest that the Guiding Cases are more consequential than commonly assumed, thereby challenging prevailing narratives about the antagonism of socialist legality to case law.

 

Accepting but Not Engaging with It: Digital Participation in Local Government-Run Social Credit Systems in China

Posted on Fri, Mar. 31, 2023

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Haili Li, Freie Universität 

Genia Kostka, Freie Universität

 

China’s central and municipal governments have consistently facilitated the development of social credit systems (SCSs) over the past decade. While research has highlighted the Chinese public’s high approval of and support for SCSs, their engagement with these digital projects has not been fully explored. Based on 64 semi-structured interviews, this paper examines Chinese citizens’ digital participation in local government-run SCSs. Its findings suggest that, despite perceiving SCSs as accepting and positive, most interviewees do not actively engage with local government-run SCSs. Multiple factors can explain the gap between high acceptance and low participation. This research adds to the existing literature on digital governance in authoritarian contexts by explaining why Chinese citizens do not necessarily engage with state-promoted digital projects.

 

The Dean of Shandong: Confessions of a Minor Bureaucrat at a Chinese University

Posted on Thu, Mar. 30, 2023

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Daniel A. Bell, The University of Hong Kong

 

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. It wasn’t all smooth sailing—Bell wryly recounts sporadic bungles and misunderstandings—but Bell’s post as dean provides a unique vantage point on China today.

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Why is Huawei’s Ownership So Strange? A Case Study of the Chinese Corporate and Socio-political Ecosystem

Posted on Thu, Mar. 30, 2023

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Colin Hawes, University of Technology Sydney

 

One of China’s best-known and most successful corporations is Huawei Technologies. Many view Huawei with suspicion, alleging that its opaque structure conceals ties with the Chinese government and Communist Party. However, Huawei claims to be a private corporation controlled by its employees and operating in a purely commercial way. This paper demonstrates how Huawei’s strange ownership structure evolved via a series of adaptive survival mechanisms within a state-dominated political and corporate ecosystem. Placing Huawei within this Chinese ecosystem challenges simplistic accounts of top-down government or Party control over the firm. Yet the compromises that ensured Huawei’s growth and protection from predation have become maladaptive within the global political ecosystem, where China is increasingly viewed as a threat.

 

The Path Towards Sovereign Territory: Reading China’s (Anti)Federal Idea Against Its Modern Territorial Constitutional Imaginary

Posted on Wed, Mar. 29, 2023

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Ming-Sung Kuo, University of Warwick

 

This paper aims to shed light on how China has (re)imagined the geographical distribution of authority on its path towards modern statehood. Challenging the conventional wisdom that China is constitutionally impervious to the federal idea, it makes a threefold argument. First, elements of federalism do exist in China as intimated in its territorial constitution regarding Hong Kong but have become nearly invisible as the relationship between mainland China and Hong Kong is traveling in the opposite direction. Second, the opposite development is attributable to the antifederal idea embedded in China’s modern constitutional imaginary that has been shaped by its multifaceted experience with federalism in history. Third, the antifederal idea reflects China’s modern territorial constitutional imaginary under which variegated imperial frontiers are reimagined as homogenized state territory. 

 

Women in the Courtroom

Posted on Wed, Mar. 29, 2023

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Heng Chen, The University of Hong Kong

Yuyu Chen, Peking University

Qingxu Yang, Peking University

 

Examining roughly 6 million civil judgments in China during the period 2014--2018, the authors document that gender disparities in litigation outcomes are present and prevalent and that male judges discriminate against female plaintiffs more than female judges do. Exploiting an open justice reform where an increasing fraction of trials were broadcast online, the authors find that the disadvantage of female plaintiffs (relative to male plaintiffs) becomes smaller when the broadcast intensity increases and that male judges reduce the gender gap to a larger extent than female judges do. This study shows that the reform is effective because judges’ decision-making processes become more visible.

 

The Rise of Cybernetic Citizenship

Posted on Tue, Mar. 28, 2023

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Wessel Reijers, European University Institute

Liav Orgad, European University Institute

Primavera De Filippi, Université Paris II

 

The global COVID-19 pandemic demonstrates how states and companies mobilise new sociotechnical systems to track, trace, evaluate, and modulate the behaviour of citizens. This development illustrates an already-existing transformation of citizenship governance, which this article captures as the move to “cybernetic citizenship.” Part I explores the concept of cybernetic citizenship, providing an overview of the concepts of “cybernetic” and “citizenship” and synthesising these in a discussion of the cybernetic modulation of citizenship. Part II presents the rise of cybernetic citizenship in the urban realm, zooming in on the case of the Chinese Social Credit System and the way it affects civic life in the urban realm. Part III turns into the normative implications of cybernetic citizenship, arguing that it confronts the idea of citizens as equal, free, and vigilant. It challenges equality by turning rights into ends, freedom by turning status into process, and civic virtue by turning excellence into effectiveness.

 

China’s Approach to Central Bank Digital Currency

Posted on Tue, Mar. 28, 2023

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Heng Wang, Singapore Management University

 

China is likely to be the first major economy to issue central bank digital currency (CBDC or e-CNY), the digital version of sovereign currency. E-CNY has the potential to profoundly affect the international financial system and order. This article explores the following crucial issues from an international perspective: what are the core features of e-CNY? What is China’s approach to CBDC? What is the long-term sustainability of China’s CBDC approach? This article argues that the role of the state, the potential cross-border use of e-CNY, and China’s proactiveness in international governance are the core features of China’s CBDC. These features contribute to China’s CBDC approach, a possible selective reshaping of international financial order. This article adopts a multifactor analytical framework which explores major economic, political economy, legal and regulatory factors affecting the sustainability of China’s CBDC approach.

 

Local Content Requirements, Regional Production Networks, and Spatial Distribution of Firms in China

Posted on Mon, Mar. 27, 2023

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Xiangyu Shi, Yale University

 

Local content requirement is a specific form of local protectionism and disrupts buyer-supplier chains, since it requests local firms to buy the outputs of other local firms as inputs. Hence, it is an important factor for firms' location choices, as buyer-supplier chains affect profitability. The author studies how local content requirement shapes the spatial distribution of firms through disrupting buyer-supplier chains. Using a spatial regression discontinuity design, he finds that local content requirement causally affects firm entry and exit. Favoritism susceptible to corruption by local career-driven leaders is the driver of the effects. A novel spatial quantitative model indicates that eradicating local content requirement enhances welfare, by facilitating interregional transactions.

 

Breaking Down Digital Walls: The Interface of International Trade Law and Online Content Regulation through the Lens of the Chinese VPN Measure

Posted on Mon, Mar. 27, 2023

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Neha Mishra, Graduate Institute of International and Development Studies

 

The interface of international trade law and online content regulation is problematic and complex. This article examines the consistency of the regulation of unauthorized Virtual Private Network services (“VPNs”) in China with WTO law to demonstrate that while extant international trade rules may be effective in disciplining protectionist aspects of online content regulations, they can neither scrutinize domestic values underlying such regulations nor guarantee a free and open internet. Thus, existing rules contained in international trade agreements play a limited role in balancing domestic socio-cultural and political values vis-à-vis online censorship with an open, globally interconnected internet enabling seamless digital flows. 

 

The Performative State: Public Scrutiny and Environmental Governance in China (Apr 12)

Posted on Fri, Mar. 24, 2023

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

 

This book talk by Dr Iza Ding shows how the state can shape public perceptions and defuse crises through the theatrical deployment of language, symbols, and gestures of good governance―performative governance. It unpacks the black box of street-level bureaucracy in China and demonstrates how China’s environmental bureaucrats deal with intense public scrutiny over pollution when they lack the authority to actually improve the physical environment. Live via Zoom!

 

China Data Flows and Power in the Era of Chinese Big Tech

Posted on Fri, Mar. 24, 2023

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W. Gregory Voss, University of Toulouse

Emmanuel Pernot-Leplay, Shanghai Jiao Tong University

 

Personal data have great economic interest today and their possession and control are the object of geopolitics, leading to their regulation by means that vary dependent on the strategic objectives of the jurisdiction considered. This study fills a gap in the literature in this area by analyzing holistically the regulation of personal data flows both into and from China, the world’s second largest economy. In doing so, it focuses on laws and regulations of three major power blocs: the United States, the European Union, and China, seen within the framework of geopolitics, and considering the rise of Chinese big tech.

 

Fiduciary Duty in a Guanxi Society

Posted on Thu, Mar. 23, 2023

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Ezra Wasserman Mitchell, Shanghai University of Political Science and Law

 

China has imported the Anglo-American law of fiduciary duty into its corporate statute. Mitchell argues that fiduciary duty confronts a problem. Its transplantation is into the rich cultural soil of guanxi, a soil that is incompatible with the equally richly developed culture of fiduciary duty. This is the first paper to examine the relationship between fiduciary duty and guanxi. Mitchell concludes that, while fiduciary duty may take root in the limited (but important) context of self-dealing transactions, it is likely to fail in its essential function of guiding fiduciary behavior in the presence of a guanxi relationship.

 

The Competitive Effects of China’s Legal Data Regime

Posted on Thu, Mar. 23, 2023

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Tamar Giladi Shtub, University of Haifa

Michal Gal, University of Haifa

 

The global race for data-based technological superiority is on. Data-based comparative advantages may affect not only competition between firms but also the balance of power among jurisdictions. In the past two decades China has made important strides in gaining such advantages. Some of China’s comparative advantages are natural. For example, its population size creates unparalleled potential for harvesting data. Some are cultural, such as the traditionally low significance of Western-style privacy concerns. This research focuses on a third, often overlooked, source: comparative advantages created by China’s data regime -- the system of policies, laws, regulations, and practices that govern or influence the data value chain. This analysis also provides a wider context for understanding recent competition law actions against Chinese technology giants. In order to fully understand China’s actions, it is necessary to consider not only its competition law enforcement but also other ways in which the government is involved in the data value chain. 

 

TikTok: Escalating Tension Between U.S. Privacy Rights and National Security Vulnerabilities

Posted on Wed, Mar. 22, 2023

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Lawrence J. Trautman, Texas A&M University

 

Vastly popular short-form video provider TikTok employs personalized content algorithms for each consumer. A legitimate question exists whether TikTok constitutes a national security risk to the west like a number of influential and successful high growth social media platforms that have been used by nation states during recent years for propaganda and disinformation purposes. All interested stakeholders: corporate boards of directors; Congress; defense and intelligence agencies; government regulatory agencies such as the Federal Trade Commission and Securities and Exchange Commission; shareholders; and social media users, must now figure out this new threat environment and what to do about it. This Article contributes to the literature by providing background, enhancing awareness, an account of what is known to date about this important topic.

 

An Alternate Vision: China’s Cybersecurity Law and Its Implementation in the Chinese Courts

Posted on Wed, Mar. 22, 2023

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Grace Pyo, Columbia University

 

China’s 2017 Cybersecurity Law (CSL) drew attention for its ambitious, all-encompassing approach to managing cybersecurity from the top down. The CSL also reflected China’s efforts to respond to its citizens’ demands for consumer protections, data privacy, and data security. However, when the CSL was implemented, ambiguity surrounded its interpretation and enforcement. This is the first detailed study of the Chinese judicial system’s treatment of the CSL to date—by examining a sample of administrative, criminal, and civil cases, this paper showcases the on-the-ground realities of the CSL’s implementation. These cases reveal that strengthened legal protections for consumers may come at the cost of eliminating anonymity. The CSL has increased the State’s ability to monitor the citizenry and enforce the State’s restrictive vision of “cybersecurity,” with impacts on both individuals and businesses. 

 

The Changing Landscape of Women’s Rights Activism in China: The Continued Legacy of the Beijing Conference

Posted on Tue, Mar. 21, 2023

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Rangita de Silva de Alwis, University of Pennsylvania

Katherine Schroeder, University of Pennsylvania

 

The Beijing Conference was a watershed moment in the history of the global women’s movement and had an unprecedented impact in the Global North and South on lawmaking, institution building, and movement building. This Article details the development of women’s activism in China since the Beijing Conference and how a changing legal landscape impacts this activism. China’s efforts have been significant and varied and represent a model for other countries seeking to reform women’s rights legislation. This Article identifies important lines of inquiry that merit further investigation in China and offers insights for conducting similar investigations elsewhere. It also outlines a framework for the shifting nature of women’s legal activism from 1995 to 2020 and the ways that the international community can capitalize on these changes and continue to galvanize efforts toward legislative and cultural reform. 

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Environmental Policy and Compensation in China: An Empirical Analysis of Article Eight of the Chinese Administrative License Law

Posted on Tue, Mar. 21, 2023

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James Si Zeng, Chinese University of Hong Kong

 

This article offers the first systematic analysis of how China compensates enterprises for losses caused by the implementation of environmental laws and policies. It generates descriptive statistics on the characteristics of the compensation cases and finds that in a majority of the cases, the court allowed the government to set compensation below the value of the enterprise’s investment. Statistics also show that China offers weaker protection for private enterprises against newly adopted environmental policies compared to other types of rules or policies, allowing the government to close highly polluting enterprises with relatively low compensation. This article then offers an explanation of the courts’ approach and considers whether Chinese courts achieve an appropriate balance between property protection and policy flexibility.

 

Automating Intervention in Chinese Justice: Smart Courts and Supervision Reform

Posted on Mon, Mar. 20, 2023

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Straton Papagianneas, Leiden University

 

This article examines how smart courts enhance the reform of judicial responsibility and the “trial supervision and management” mechanism. It holds that smart courts, while meant to provide better judicial services and improve access to justice, have the additional goal of enhancing the restructuring of accountability and power structures. It argues that automation and digitisation help institutionalise and codify political supervision. Smart courts help resolve tension between the two opposing requirements of Chinese courts to maintain legal rationality and independent adjudication on the one hand, and the need for flexibility to allow intervention on the other. This article provides an account of the automation of “trial supervision and management” and explores the role of technology in enhancing political intervention in China’s legal system. This investigation draws on internal court reports and central and local judicial documents, supplemented with a review of Chinese empirical scholarship.

 

A Dialogic Understanding of Law beyond Ideologies

 Posted on Mon, Mar. 20, 2023

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Shucheng Wang, City University of Hong Kong

 

The global shift towards authoritarianism and illiberal populism has led to something of a crisis of liberalism and a certain degree of democratic deconsolidation within the West. Confidence in the link between economic development and democratic consolidation has been challenged to a certain extent, while liberal internationalism has been weakened in certain ways. This has prompted some pragmatic actors to resort to authoritarian alternatives. A more pluralistic landscape has also emerged within the West, sometimes involving a pragmatic mixture between varying degrees of illiberal elements. Meanwhile, the rise of Asia has been accompanied by new social and economic developments. The rise of authoritarianism outside of the West has pragmatically incorporated some liberal forms and instrumentally employed the law to strengthen its authoritarian governance and facilitate its development. This article considers the example of China. 

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