The US-China Trade Negotiation: A Contract Theory Perspective
Philip K.H. Wong Centre for Chinese Law
黃乾亨中國法研究中心
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 (shelbyc@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.
China’s Comparative Constitution
Posted on Tue, Jun. 6, 2023
Son Ngoc Bui, University of Oxford
The academic field of comparative constitutional law has recently had greater engagements with China’s constitution. This Article explains the modes, conditions, and factors of these engagements. The country-studies of China’s constitution echo and complicate recent comparative debates on transnational constitution making and the varieties of constitutionalism. Comparative constitutional scholarship formulates new concepts, such as constitutional entrepreneurship and constitutional dissonance, to understand China’s constitution. Additionally, it explains China’s constitutional divergence from the most similar case, namely Vietnam, and its unexpected constitutional similarities with the most different cases, such as the United States and the United Kingdom. Finally, this scholarship discusses China’s constitution as a difficult case of constitutional authoritarianism, a prototypical case of authoritarian constitutionalism, an outlier case of party-state constitutionalism, and an illustrating case of global constitutional trends, such as the statist constitutional model and presidential term-limit evasion.
Judicial Recentralization as Political Control
Posted on Tue, Jun. 6, 2023
Zeren Li, Yale University
Zeyuan Wang, Duke University
This study analyzes how China uses the judicial system to solve the principal--agent problem in the government hierarchy. The authors argue that court personnel recentralization is to enhance the central government’s monitoring power over local officials. Their empirical analysis takes advantage of a judicial personnel rotation reform in which the Chinese Communist Party recentralized court personnel by rotating provincial-level court leaders in seventeen out of thirty-one provinces. Panel data analysis shows that judicial recentralization increased adjudicated administrative lawsuits by nearly 30 percent. The authors also demonstrate that the enhancement in judicial responsiveness is not driven by alternative channels such as learning or the substitution between different ways of petitions.
Intellectual Property, Antimonopoly Law and Sustainable Development in China
Posted on Mon, Jun. 5, 2023
Joy Y Xiang, Peking University
This paper explores whether and how China’s anti-monopoly law can be leveraged to improve access to sustainable technologies and therefore, foster sustainable development in China. China has announced ambitious goals for tackling climate change and building sustainable development, investing heavily in sustainable technologies. Meanwhile, China has been building up its Intellectual Property (“IP”) regime, in both IP registrations and enforcements, and is on the way to becoming an IP powerhouse. In addition, China promulgated its first antimonopoly law in 2008. The law explicitly recognizes refusal to deal and excessive pricing without justified reasons as actionable causes. In particular, in November 2020, China published the Provisions on Prohibiting IP Abuses that Eliminate and Restrict Competition, which recognizes IP as essential facilities. China’s approach seems much different from those of the two leading competition law jurisdictions: the United States (“US”) and the European Union (“EU”). The Chinese antimonopoly law regime may have a higher tendency to find restricting access to IP-protected technologies as actionable under its antimonopoly law and regulations.
Artificial Intelligence: The Critical Infrastructures
Posted on Mon, Jun. 5, 2023
John W. Bagby, Pennsylvania State University
Kimberly Houser, University of North Texas
Artificial Intelligence (AI) innovation is most strongly impacted by AI critical infrastructures. These are the conditions, capacities, assets and inputs that create an environment conducive to the advancement of the AI technologies. Close inspection of AI’s generalized architecture reveals a supply chain that implies six AI critical infrastructures. Successful machine learning requires ample supply of the six broad AI critical infrastructures. This article provides an initial foundation for a comparative of the three world economies (regions) seemingly best positioned to make substantial AI advancements. Predictably, significant differences among the political and cultural drivers in these three regions are likely to impact needed commitment to AI critical infrastructures: China (Asia) vs. the United States (North America) vs. European Union (EU). The harsh reality of AI innovation is that delays in commitment and deployment of AI critical infrastructures will relegate the losing region(s) to become, at best, a chronic AI customer rather than a major successful AI supplier.
Breaching the Taboo? Constitutional Dimensions of the New Chinese Civil Code (in Chinese)
Posted on Fri, Jun. 2, 2023
Philip K. H. Wong Centre for Chinese Law, The University of Hong Kong
Professor Alec Stone Sweet has posted the Chinese translation of “Breaching the Taboo? Constitutional Dimensions of the New Chinese Civil Code,” recently published in the Asian Journal of Comparative Law (2023). The abstract in Chinese is below. A related article on the Chinese Civil Code, titled “Global Constitutionalism and the People’s Republic of China: Dignity as the ‘Fundamental Basis’ of the Legal System?,” has also been published in the International Journal of Constitutional Law (2023).
2021 年颁布的新《民法典》被中国社会的精英们视为新中国历史上最重要的一部成文法,被誉为是中国转向法治的基石。《民法典》明确规定其对所有的自然人以及公职人员具有强约束力,并在司法上具有可诉性。《民法典》规定了尊严、平等、个人自由、财产和隐私等权利,并在法条中明确规定了不同主体保护环境和发展有效手段打击性骚扰的义务。与《德国民法典》相呼应,该法典还包含“一般条款”,使法院能在必要时以“公序良俗”和保障他人权利为由对权利进行限制。尽管以上条款使得法院获得了大规模的授权,但是法官仍然被禁止在裁判时直接适用中国的宪法。本文主要通过对以下四个方面的比较法学分析,探讨了《民法典》和《宪法》之间的关系:首先,对全球私法的 "宪法化"进程的总结;其次,关于中国基本权利的间接横向效力的学术讨论;再次是对于《民法典》本身的结构的讨论、以及;最后讨论中国共产党和其他国家机关为限制法官如何使用其解释权而制定的机制。
Legal Elites and the Fading History of Global Legal Imperialism
Posted on Fri, Jun. 2, 2023
Sida Liu, The University of Hong Kong
Legal elites are products of domestic politics and global imperialism. In world history, they have reincarnated in many places and times, from canon law scholars in twelfth-century Bologna to corporate lawyers in twentieth-century America to legally trained politicians in twenty-first-century Asia. Yet the logic of elite reproduction in those reincarnations is highly durable, as Yves Dezalay and Bryant G. Garth argue in their book, Law as Reproduction and Revolution: An Interconnected History. Following Pierre Bourdieu, they present the stories of legal elites as a highly consistent process of capital conversions, a global and intergenerational reproduction of family, academic, economic, political, and legal capital. However, the next chapter in the history of the global legal elite is likely to be more decentralized and multicultural than the imperialistic histories documented in the ambitious book. Our scholarly gaze must be expanded to the prophets, hermits, martyrs, and grassroots practitioners whose blood, toil, tears, and sweat make the history anything but the reproduction of a cosmopolitan elite.
Posted on Thu, Jun. 1, 2023
Changhao Wei, Yale University
China’s national legislature uses a process known as ‘recording and review’ (R&R) to ensure that major categories of legislation enacted by other governmental bodies conforms to national law and policy. Long criticized for being ineffective and opaque, recently R&R has grown more robust, transparent, and accessible to the public, and has become the legislature’s main vehicle for cautiously pushing ahead with constitutional review. This article provides an overview of the recent developments surrounding R&R.
China's Corporate Social Credit System: The Dawn of Surveillance State Capitalism?
Posted on Thu, Jun. 1, 2023
Lauren Yu-Hsin Lin, City University of Hong Kong
Curtis J. Milhaupt, Stanford University
Chinese state capitalism may be transitioning toward a technology-assisted variant, “surveillance state capitalism.” The mechanism driving this development is China’s corporate social credit system (CSCS) – a data-driven project to evaluate the “trustworthiness” of all business entities in the country. The authors provide the first empirical analysis of CSCS scores in Zhejiang Province, to date the only local government to publish the scores of locally registered firms. They find that while the CSCS is ostensibly a means of measuring legal compliance, politically connected firms receive higher scores. This result is driven by a “social responsibility” category in the scoring system that valorizes awards from the government and contributions to Chinese Communist Party sanctioned causes. This analysis underscores the potential of the CSCS to nudge corporate fealty to party-state policy and provides an early window into the far-reaching potential implications of the CSCS.
Posted on Wed, May. 31, 2023
Mark Cohen, Berkeley Center for Law and Technology
This article describes efforts by the U.S. Patent and Trademark Office and the China National IP Administration to discipline trademark and patent practitioners through contemporaneous campaign-style approach directed to bad faith filings. At the USPTO, many of these bad-faith filings have originated from China. In both countries, these bad faith activities have imposed significant burdens on IP agencies, the courts, and legitimate rights holders. By comparing the disciplinary and other actions of both the Chinese and U.S. bars, this article contributes to scholarship on IP-related campaigns, attorney discipline, choice of law in attorney ethics, the differing approaches of disciplinary authorities in the U.S. and China, and the continuing importance of cross-border cooperation in addressing common challenges. The article suggests numerous potential areas of reform and demonstrates how the two countries have quietly observed and learned from each other.
Law, Legality, and Legitimacy (Jun 9 2023)
Posted on Tue, May. 30, 2023
Philip K. H. Wong Centre for Chinese Law, The University of Hong Kong
This talk by Professor Taisu Zhang explores possible connections between legality and political legitimacy in the contemporary Chinese context. In particular, it studies whether “pure” legality, stripped of the normative components that are conceptually necessary for “the rule of law,” can convey meaningful amounts of perceived legitimacy to governmental institutions and activity. Through a survey experiment conducted among urban Chinese residents, it argues that such conveyance is possible under current Chinese sociopolitical conditions, in which the Party-state continues to invest heavily in “pure legality,” but without institutional features that are necessary for Western liberal ideals of “the rule of law.” Professor Zhang will discuss two of his papers on this topic. Links to these papers can be found below:
Posted on Tue, May. 30, 2023
Ryan Mitchell, Chinese University of Hong Kong
Accounts of the transmission of Western notions of sovereignty and international law to China often focus heavily on Anglo-American initiatives in the period of the Opium Wars, skimming over the complex transnational interactions of the late 19th century. However, key events of the 1870s-1890s played a crucial role in rapidly changing discourses of international legal order and statehood in China. Only then were important terms for concepts such as “autonomy,” “territory,” and indeed “sovereignty” itself, first used in official contexts with their current implications. Such uses were prompted by encounters between Qing officials and various foreign empires, often revolving around competition to define and control the vast but loosely governed Qing space. This article suggests a new emphasis upon these transnational encounters.
Chinese Administrative Expansion in the Wake of the Covid-19 Pandemic (Jun 6 2023)
Posted on Mon, May. 29, 2023
Philip K. H. Wong Centre for Chinese Law, The University of Hong Kong
This workshop brings together Professor Hualing Fu and Professor Taisu Zhang to discuss the institutional framework and political logic of Chinese administrative expansion in the wake of the Covid-19 Pandemic. Compared to its pre-Covid self, the current Chinese Party-state apparatus can now track and govern individual activity with unprecedented precision and regularity. Many of these developments have become institutionally entrenched through generalized lawmaking and policymaking. Participants are encouraged to familiarize themselves with Professor Fu and Professor Zhang’s papers prior to the workshop. The links to their papers can be found below:
Posted on Mon, May. 29, 2023
Robin Hui Huang, Chinese University of Hong Kong
Weixia Gu, The University of Hong Kong
Over the past decades, a growing number of Chinese companies have been listed overseas, notably in the USA and Hong Kong. They are subject to the securities regulation of listing places and can be sued thereunder against their securities misconduct. As overseas-listed Chinese companies usually have their main assets located in China, it is important that Chinese courts recognize and enforce foreign securities judgments. However, there are many difficulties in this area, which undermine the efficacy of the regulation of cross-border securities transactions. In quest of solutions, this article assesses the possibility of suing Chinese companies in the offshore financial centres where they are incorporated, finding that there would be similar issues with judgment enforcement in China. It also examines the viability of using arbitration as an alternative, arguing that arbitration may only supplement, rather than substituting, court litigation for resolving securities disputes.
Regulating Chinese Online Platforms: Challenges and Trends (Jun 17 2023)
Posted on Thu, May. 25, 2023
Philip K. H. Wong Centre for Chinese Law, The University of Hong Kong
On June 17, 2023, Philip K. H. Wong Centre for Chinese Law will hold an in-person conference on “Regulating Chinese Online Platforms: Challenges and Trends,” conducted mainly in Mandarin. This conference will invite distinguished scholars and leading practitioners to provide insight into five critical topics: Chinese platform overseas, antitrust in the digital economy, workers in new employment forms, cross-border data transfer, as well as data regulation & compliance. Most welcome to join us! More information can be found here.
Posted on Thu, May. 25, 2023
Mark Jia, Georgetown University
This article analyzes China’s turn to specialized courts as a case study on how China’s global ambitions are shaping its domestic law reforms. It argues that the country’s rapid construction of more professional special courts in areas such as cyberspace and global commerce is best understood as a product of certain political benefits associated with judicial specialization. These include several internal-facing benefits oft cited in China law scholarship: reducing agency problems posed by local actors, for example, or minimizing political risk. But they also include newer factors keyed to a number of grand strategic priorities. What the evidence makes clearest, in fact, is that China’s planners see specialized courts as a means of accelerating professional reforms in areas linked to the party-state’s developmental, technological, and geopolitical goals. Far from a precursor to liberalization, professional specialization is now being marshaled in an effort to service China’s global strategies.
Posted on Wed, May. 24, 2023
Frank Fagan, EDHEC Augmented Law Institute
While many believe that non-performing loans, privatization of banks, informal lending and other forms of shadow-banking, as well as technological advances in machine learning for assessing creditworthiness will place China’s financial regulatory system on a trajectory toward openness and privatization, other trajectories are possible and likely. Given that each disturbance can be met with controlled alternatives, privatization and openness is not necessary for China’s continued development for a time just as liberalized payment regimes and foreign direct investment rules do not imply the implementation of broad, liberal capital controls. Financial regulators in China, therefore, will continue to implement policies of limited and piecemeal openness so long as the benefits of control continue to exceed those of faster-paced development.
Cyber Security, Artificial Intelligence, Data Protection & the Law
Posted on Wed, May. 24, 2023
Robert Walters, Victoria University
This book provides a comparison and practical guide of the data protection laws of Canada, China, Laos, Philippines, South Korea, United States and Vietnam. As the world comes to terms with Artificial Intelligence (AI), which now pervades the daily lives of everyone. For instance, our smart or Iphone, and smart home technology (robots, televisions, fridges and toys) access our personal data at an unprecedented level. Therefore, the security of that data is increasingly more vulnerable and can be compromised. This book examines the interface of cyber security, AI and data protection. It highlights and recommends that regulators and governments need to undertake wider research and law reform to ensure the most vulnerable in the community have their personal data protected adequately, while balancing the future benefits of the digital economy.
Property and Prosperity: A Demythifying Story
Posted on Tue, May. 23, 2023
Xiaoqian Hu, The University of Arizona
Commonsense wisdom holds that legal protection of private property rights is essential for economic growth. China presents a “puzzle” for commonsense wisdom. Scholars agree that China achieved tremendous growth in the past 40 years―without formal property law, and more specifically, without a legal system to recognize and protect private property rights. This article presents a different story. It refutes the myth that China’s economic development occurred without formal property law and formal property rights and, instead, argues that both are central to China’s development. The country’s success—and struggle—is accomplished precisely through the Chinese state designing and redesigning property rights and institutions since the beginning of the economic reform.
The PRC Constitution and Social Transformation: A Historical Analysis of Development (Jun 5 2023)
Posted on Tue, May. 23, 2023
Philip K. H. Wong Centre for Chinese Law, The University of Hong Kong
The constitutional history of China, spanning more than a hundred years, illustrates the nation’s path towards the modernization of its legal system and its ongoing social transformation. Historical insights often provide profound lessons, and examining China’s constitutional development—particularly since the founding of New China—offers valuable perspectives on the normalization of China’s socialist system, the evolution of its current constitution, and the distinctively Chinese characteristics embedded in the constitution’s implementation. This lecture by Professor Xirong Ren aims to explore the history of China’s constitutional development leading up to the adoption of its current constitution, with a particular focus on the period between 1949 and 1982 after the founding of New China. A diachronic analysis and summary will be provided to further our understanding of this critical period. Online participation is also available!
China Has Too Much Invested in AI to Smother Its Development
Posted on Mon, May. 22, 2023
Angela Huyue Zhang, The University of Hong Kong
In the high-stakes world of artificial intelligence (AI), China has just made a bold move. The Cyberspace Administration of China (CAC) last month rolled out a draft policy on generative AI, indicating its intention to impose strict regulations that may change the game for major players. The key question now is whether the CAC’s proactive intervention will hinder the country’s AI development. To untangle this, we must consider the three “Cs” that underpin Chinese tech regulation: context, clout and competition. Given all the dynamics, the CAC’s proposed measures may well be softened to accommodate the growth of China’s AI industry. In the end, the regulations will likely remain broad and vague, allowing for considerable agency discretion. This strategic ambiguity could create ample room for Chinese tech companies to not just survive, but to flourish in the AI market.
Unpacking the Black Box of China’s State Capitalism
Posted on Mon, May. 22, 2023
Ming Du, Durham Law School
Much ink has been splashed on the ideological, conceptual, and practical challenges that China’s state capitalism has posed to global trade rules. There is a growing perception that the current international trade rules are neither conceptually coherent nor practically effective in tackling China’s state capitalism. This perception has not only led to the emergence of new trade rules in regional trade agreements, but also culminated in the US-China trade war, only further aggravated by the Covid-19 pandemic. This article contributes to the debate of what trade rules may be needed to counteract China’s state capitalism by unpacking the black box of China’s state capitalism. Based on an analysis of the nature of China’s state capitalism, this article provides a preliminary evaluation of current trade rules taken to counteract China’s state capitalism, in particular the new rules in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, and explain why they are unlikely to be successful.
Chinese SOEs & Corporate Compliance
Posted on Thu, May. 18, 2023
Zhipei Wang, Peking University
For Chinese SOEs, proactively establishing an effective compliance system can help enterprises prevent, mitigate, and even exempt them from punishment by both domestic criminal and administrative penalties and overseas regulatory agencies when they follow the national “go global” strategy. It is also an effective measure to prevent SOEs from being sanctioned by international financial institutions. This article will introduce and comment on China’s corporate governance law. It will use a set of cases that Chinese SOEs being sanctioned by the World Bank and cases investigated by the Central Commission for Discipline Inspection (“CCDI”) to analyze deficiencies in Chinese SOEs’ compliance programs. It will also provide information regarding establishing a workable compliance system for a Chinese SOE based on discussions with in-house lawyers in SOEs, compliance lawyers, and scholars.
In Pursuit of Fairness: How Chinese Multinational Companies React to U.S. Government Bias
Posted on Thu, May. 18, 2023
Ji Li, University of California, Irvine
Rising nationalism and geopolitical tensions between the U.S. and China threaten to disintegrate the international economic order. Against this backdrop, Chinese multinational companies (“MNCs”) with investments in the U.S. confront an increasingly adverse host-country legal and political environment. How do Chinese MNCs cope with unfair government treatment in the U.S. where a wide variety of institutions are available to potentially mitigate and remedy the political risk? Also, do state-owned MNCs, figuring prominently in outbound investment from China, exhibit any distinct institutional preferences? The author takes a firm-oriented comparative institutional approach to empirically examine the multiple coping strategies, formal or informal, international or domestic, that Chinese MNCs may contemplate to address government bias in the United States. By analyzing 152 interviews and a unique set of survey data, this article uncovers significant cross-institutional and inter-company variations.
Posted on Wed, May. 17, 2023
Zhengyu Shi, Renmin University of China
Yeliang Wang, Renmin University of China
This article discusses the Personal Information Protection Law (PIPL) recently enacted in China and argues that it reflects China’s unique cultural and historical background and perception of personal information protection, rather than simply being a replica of the EU’s GDPR. The author analyzes the differences between the PIPL and the GDPR, and reviews the development of personal information protection in China, arguing that China’s view of personal information protection is pragmatic, rather than based on fundamental rights. The author suggests that judges, administrative authorities, and practitioners should interpret the PIPL in light of China's social and cultural backgrounds and perceptions of risk concerning personal information. Finally, the author argues that it is important to clarify what personal information protection is for and that the PIPL could balance different interests, as opposed to a reductionist view of privacy based on an individual consent regime.
Digitalization of Special Economic Zones in China
Posted on Wed, May. 17, 2023
Jie (Jeanne) Huang, The University of Sydney
Special Economic Zones (SEZ) have become the forefront in China to test legal and technological reforms for digital trade. This chapter explores three cutting-edge case studies in China’s SEZs: the Beijing blockchain-based Single Window deposit box; newly established big data exchanges in Beijing, Tianjin, and Shanghai SEZs; and pilot projects in financial, medical care and automobile industries to flow data across the border in the Shanghai SEZ. It scrutinizes China’s experiments in the context of its applications to join the Comprehensive and Progressive Trans-Pacific Partnership and the Digital Economy Partnership Agreement. It argues that the development of Chinese domestic law for digital trade is shifting away from the traditional paradigm that uses international commitments to push domestic reform or make domestic law according to international law. The development of Chinese domestic law for digital trade relies much more on China’s domestic needs than what FTAs negotiations require. FTAs are increasingly becoming a tool for China to shape international law rather than a benchmark for legislating domestic Chinese law.
From Populism to Professionalism: The Media and Criminal Justice in China
Posted on Tue, May. 16, 2023
Daniel Sprick, University of Cologne
China seems to use the media as an external watchdog of the judicial system. Chinese courts are therefore encouraged and even instructed to accept media supervision and promote judicial transparency. In this environment, the courts are susceptible to legal populism, which has sometimes led to flawed decisions. In recent years, however, the courts have established mechanisms to shape the messaging on specific cases by engaging directly with the public through, inter alia, social media, live-streams of court proceedings and an open-access database of judicial decisions. These mechanisms have enhanced the judicial system’s responsiveness and strengthened its potential resilience against populist demands without curtailing its answerability to public criticism and mistrust. At the same time, shielding the courts from public opinion on matters of justice and legal consciousness may also significantly impede legal innovation, as the judiciary may be inclined to overcompensate for its frail independence by stonewalling even the most insightful and prudent media commentaries on the need for legal change.
Book Review: Dispute Resolution in China: Litigation, Arbitration, Mediation and their Interactions
Posted on Tue, May. 16, 2023
Hiro N. Aragaki, UC Law, San Francisco
Weixia Gu, Professor of Law at The University Hong Kong, has written an original and ambitious new monograph about civil justice reform in China that is both breathtaking in scope yet also methodically organized around a core set of important questions. Gu draws masterfully on a deep knowledge of Chinese law and society, expertise in a diverse set of dispute resolution systems, and little-known empirical data to weave together a compelling narrative about the path of reform in one of the most dynamic but also poorly-understood countries in the world. It is a fascinating read for anyone interested in the relationship among dispute resolution institutions and processes, law and development, and the rule of law.
Posted on Mon, May. 15, 2023
Szilárd Gáspár Szilágyi, University of Birmingham
The gradual rise of China as an economic, normative, and lending power has resulted in more protectionist measures in areas of the world that traditionally championed economic liberalization. Currently, 18 out of 27 EU Member States have national laws or measures in place for the screening or review of foreign investments. However, such restrictive national measures can result in investment treaty-based arbitration under the existing bilateral investment treaties concluded by 26 EU Member States with China, as evidenced by the recent arbitration initiated by Huawei against Sweden. Therefore, this article assesses whether EU Member States are likely to see a spike in investor-State arbitral claims initiated by Chinese investors as a result of the former’s investment screening measures.
The New Civil Code of China: Advancements and Improvements for a Better Future
Posted on Mon, May. 15, 2023
Wei Wen, Sun Yat-sen University
This article highlights four features of the new Civil Code of China and its enactment history to explain the significance of this long-expected Code. Overall, the innovative and forward-looking features of the new Code can help China better prepare for the future. In particular, the Code adds the right of habitation, allows mortgaged property transfers, introduces a new defense to clarify tort liability, and serves as a green code. The Code, which is enacted by China’s supreme legislature, took effect recently and is now the most authoritative statute in civil law matters, but currently there is very little literature or caselaw. This article is timely as it seeks to clearly explain the new provisions.
Ideological Foundations of Qing Taxation: Belief Systems, Politics, and Institutions (May 31 2023)
Posted on Thu, May. 11, 2023
Philip K. H. Wong Centre for Chinese Law, The University of Hong Kong
This book talk by Professor Taisu Zhang looks at China’s relative economic decline in the 18th and 19th centuries. The decline was believed to be related to China’s weak fiscal institutions and limited revenue. Zhang argues that this fiscal weakness was fundamentally ideological in nature. Belief systems created through a confluence of traditional political ethics and the trauma of dynastic change imposed unusually deep and powerful constraints on fiscal policymaking and institutions throughout the final 250 years of China’s imperial history. Online participation is also available!
Financing Climate Justice in the European Union and China: Common Mechanisms, Different Perspectives
Posted on Thu, May. 11, 2023
Stephen Minas, Peking University
This article examines the still emerging frameworks to finance climate justice in two of the jurisdictions most important to the global response to climate change: the European Union and the People’s Republic of China. The EU and China have in common that they are both on the front line of financial innovation to respond to climate change. They are utilising similar tools of systemic financial intervention in order to transition financing to climate-friendly investment, with clear implications for global financial markets. However, the EU and China are utilising climate financing mechanisms in the context of very different prevailing perspectives on climate justice. This article interrogates the relationship between these different perspectives on climate justice and the distribution, scale and pace of climate finance.
The Reversal of Privatization in China: A Political Economy Perspective
Posted on Wed, May. 10, 2023
Zhangkai Huang, Tsinghua University
Lixing Li, Peking University
Guangrong Ma, Peking University
Jun Qian, Fudan University
The authors document reversals of privatization in China—local governments re-possessing ownership stakes in a quarter of previously privatized firms during 1998–2007, a period when the privatization process was still ongoing. This type of ownership restructuring helped ease the unemployment burden in the local labor markets, and was more likely to occur in firms located in provinces led by an official without strong political status in the Chinese Communist Party. A reversal in privatization led to higher leverage, lower profitability and lower labor productivity. This paper sheds light on how frictions in the political structure affect the implementation of economic policies in a top-down system.
The National Security Law of the HKSAR: A Contextual and Legal Study
Posted on Wed, May. 10, 2023
Albert H. Y. Chen, The University of Hong Kong
The adoption by the PRC National People Congress in May 2020 of a Decision on Safeguarding National Security in the Hong Kong Special Administrative Region (HKSAR), and the enactment shortly thereafter by the Standing Committee of the National People Congress of the HKSAR National Security Law (NSL), marked a new era in the implementation of the “One Country, Two Systems” (OCTS) policy. This paper attempts to understand the nature, significance and implications of the NSL. Part I situates the Chinese action within the relevant constitutional, legal, political and historical contexts. Part II examines the NSL in the light of Chinese law relating to matters of national security. Part III concludes by considering the impact of the NSL on Hong Kong’s existing law, and commenting on the significance and implications of the NSL in the context of the evolution of the OCTS policy and changing circumstances in Hong Kong.
Equality Rights Literature Database (Feb-Apr 2023)
Posted on Tue, May. 9, 2023
Philip K. H. Wong Centre for Chinese Law, The University of Hong Kong
The Equality Rights Project is a Knowledge Exchange Initiative under the Philip K.H. Wong Centre for Chinese Law. Established in 2015, Equality Rights Project collaborates with lawyers, NGOs and other centres to promote legal education, legal empowerment and legal research with the goal of advancing social inclusion and equality. Equality Rights Literature Database provides timely update and compilation of recent academic research and reports in the area of equality rights.
The Structure and Spirit of Chinese Property Law
Posted on Tue, May. 9, 2023
Shitong Qiao, Duke University
It is puzzling to many that China has maintained its socialist commitment to public land ownership while creating individual land rights. To make the situation even more puzzling, those land rights were initially created without legal authorization, being driven by farmers, entrepreneurs, and local officials on the ground. Chinese law eventually catches up with and sanctions practices that prove effective, but has never been able to regulate or ossify dynamic and ever-changing practices. That is why we see the co-existence of socialist public land ownership, the civil law principle of numerus clausus, and the common law practice of the bottom-up, continual reconfiguration of the bundle of sticks constituting property rights. These elements of China’s hybrid system are by nature in constant conflict, creating friction and bumps on the country’s road to economic and social development. Together, however, they permit the system to get by, striking a balance between development and stability.
Re-orienting Research on Lawmaking in China
Posted on Mon, May. 8, 2023
Ji Li, University of California, Irvine
Four decades of legislative activism in China has spawned a sizable literature on the subject. Most of the existing studies, however, have paid inadequate attention to the post-legislation effects. Drawing on insights from rational choice theory, this article proposes a stylized model integrating legislation and law enforcement. The model, intended mainly as a heuristic device, may approximate “real world” legislation in China by incorporating key insights of collective action theory, agency theory, and the theory of bounded rationality. Analyzing legislation and law implementation through the rational choice lens generates valuable insights and uncovers new research questions for scholars interested in Chinese law and politics.
Does Legality Produce Political Legitimacy? An Experimental Approach
Posted on Mon, May. 8, 2023
Yiqin Fu, Stanford University
Yiqing Xu, Stanford University
Taisu Zhang, Yale University
This article studies whether “pure” legality, stripped of the normative components that are conceptually necessary for “the rule of law,” can convey meaningful amounts of perceived legitimacy to governmental institutions and activity. Through a survey experiment conducted among urban Chinese residents, it examines whether such conveyance is possible under current Chinese sociopolitical conditions, in which the Party-state continues to invest heavily in “pure legality,” but without imposing meaningful legal checks on the leadership’s political power, and without corresponding investment in substantive civil rights or socioeconomic freedoms. Among survey respondents, government investment in legality conveys meaningful amounts of political legitimacy, even when it is applied to actions, such as online speech censorship, that are socially controversial or unattractive, and even when such investment does not clearly enhance the predictability of state behavior. However, the legitimacy-enhancing effects of legality are likely weaker than those of state investment in procedural justice.
Analyzing China: The Role of Empathy in Comparative Law
Posted on Fri, May. 5, 2023
Alex L. Wang, University of California, Los Angeles
People attempt to understand another jurisdiction through the frameworks of their own. Scholars working in comparative law are loath to make the same mistake. For instance, the sense that liberal rule of law is constitutive of law itself undergirds perennial debates about China’s “turn against law” or “turn towards law” that have been central to American studies of Chinese law. As a political scientist once observed at a Chinese law conference in the US, “In political science, we are at least sure that China has politics! Legal scholars are not even sure if China has law!” Such debates over Chinese law are hardly new. American scholars of Chinese law and legal institutions–producing work from a position of privilege and power–would surely agree that avoiding these sorts of analytical blind spots is desirable. But how to achieve that in practice? The author suggests that empathy can play a useful role in the analytical toolkit.
Soft Law of the Supreme People's Court
Posted on Fri, May. 5, 2023
Susan Finder, Peking University, The University of Hong Kong
This article sets out the author’s thoughts on two aspects of China’s Supreme People's Court (SPC) soft law—its judicial policy documents and cases that it has specially selected. It concludes with thoughts about why the SPC relies on soft law to guide the lower courts in applying the law and judicial interpretations in hearing cases.
Judging China: The Chinese Legal System in U.S. Courts
Posted on Thu, May. 4, 2023
Donald Clarke, George Washington University
How should American courts understand China’s legal system? How do they understand it, and are they doing a good job? This Article presents the first attempt to answer these questions empirically through an intensive study of all cases in which parties either sought dismissal to China on forum non conveniens grounds or sought enforcement of a Chinese judgment. Both types of cases require courts to assess China’s legal system. The author presents the most complete picture to date of what U.S. courts and litigants are actually doing in China-related cases. He finds that by and large courts do not get good information and often reach questionable conclusions. The adversarial system is not functioning well, with the strength of party arguments bearing no correlation to outcomes. Moreover, the bad results tend to get baked into the system through their citation in subsequent cases. This has serious implications for the delivery of justice.
Legal Systems Inside Out: American Legal Exceptionalism and China's Dream of Legal Cosmopolitanism
Posted on Thu, May. 4, 2023
Matthew S. Erie, University of Oxford
What is the relationship between a legal systems’ foreign-facing elements and its domestic ones? Contrary to “dualistic” theories which suggest that a single legal system may encompass qualitatively different regimes regarding foreign and domestic legal questions, this article argues that gaps between the foreign-facing and domestic aspects of a legal system may threaten that system’s legitimacy and sustainability. Compatibility between these two aspects could be measured across a range of categories including provision of justice, fairness, and efficiency. This article focuses on the recognition of difference. Difference means both the nature and source of law (e.g. foreign law, non-state law, religious law, customary law) and of legal authorities (i.e., in terms of race, ethnicity, gender, nationality). The question posed is whether a legal system can regard difference disparately between its foreign-facing and domestic aspects. This article addresses this question through a comparison between the People’s Republic of China (PRC) and the United States.
Homogeneity and Conflict: Interrogating the Political in Contemporary China
Posted on Wed, May. 3, 2023
Lucas Brang, University of Cologne
This article provides a concise overview of the reception of Carl Schmitt’s thought in contemporary China, focusing on the concept of the political and its various theoretical ramifications. The author argues that the notions of “homogeneity” and “conflict” as constituent elements of Schmitt’s political theory, and the dialectic tension between them, provides a useful entry point to contemporary Chinese debates about state unity and societal pluralism. Such a reading also suggests that, rather than giving rise to a straightforward and uniform authoritarian agenda, Chinese “Schmitt fever” has produced new political fault lines. One particularly pertinent schism in contemporary Chinese political discourse is that between authoritarian projects of political assimilation and liberal projects of constitutional patriotism – both of which are informed by diverging readings of Schmitt.
Posted on Wed, May. 3, 2023
Luca Belli, Getulio Vargas Foundation
Yasmin Curzi, Getulio Vargas Foundation
Walter Britto Gaspar, Getulio Vargas Foundation
This article aims to evaluate recent events regarding social media governance in the BRICS (Brazil, Russia, India, China, and South Africa) countries, focusing on recent developments and highlighting common trends. With documental and literature review, the authors aim to analyse the most recent policies and institutional arrangements directly affecting what could be deemed a responsible social media platform. Furthermore, by looking at the selected developments in these countries, the authors aim to identify convergence and divergence between the BRICS country approaches, providing clarity on the existing and proposed regimes and contributing to the identification of viable paths forward that strike a balance between all interests involved.
Beyond Anti-Anti-Orientalism, Or How Not to Study Chinese Law
Posted on Tue, May. 2, 2023
Teemu Ruskola, University of Pennsylvania
This article is the lead entry in a special section entitled “Exchange on Legal Orientalism” in a forthcoming issue of the American Journal Comparative Law, charting debates engendered by the author’s monograph Legal Orientalism: China, the United States and Modern Law (Harvard University Press 2013). Specifically, the author examines two recent feature-length articles, both of which engage with the argument of Legal Orientalism, viz. “Anti Anti-Orientalism, or Is Chinese Law Different?” by Professor Donald Clarke at George Washington University and “Critical Legal Orientalism” by Professor Thomas Coendet at Shanghai Jiao Tong University. The author’s main goal is not so much to assess the accuracy of these recent critiques of his analysis—although that will be of some concern—but ultimately to understand what are the ongoing stakes of legal Orientalism. Why and how does Orientalism continue to matter in the field of comparative law?
Posted on Tue, May. 2, 2023
Yishuang Li, New York University
Existing research suggests that an independent and efficient judicial system is crucial for attracting foreign investment. However, a remaining puzzle is whether a centralized or decentralized court system contributes to more investment? It is widely taken that a decentralized political system may encourage politicians to improve the rule of law due to inter-jurisdictional competition for foreign investment; nevertheless, the higher vulnerability to local favoritism and political patronage between domestic firms and local governments under such a system should not be neglected. Applying a difference-in-differences design on original data of recent judicial reforms in China, this paper finds that the centralization of power to control local courts from local governments into the hands of higher-level governments increases foreign investment. Furthermore, after the judicial centralization reform, foreign investors spend less on building connections with domestic firms or bribing local officials.
Suing the Government Under Weak Rule of Law: Evidence from Administrative Litigation Reform in China
Posted on Fri, Apr. 28, 2023
Guangyu Cao, Peking University
Chenran Liu, Peking University
Li-An Zhou, Peking University
There is a long-standing debate in the literature about the effectiveness of strengthening judicial independence in developing countries with weak rule of law. This paper exploits China’s recent judicial reform in administrative litigation, which changed the jurisdiction rule from intra-regional to trans-regional, to estimate the effects of improved judicial independence on protecting private entities against potential abuses of public authority. The authors find a significant increase in the probability of successfully suing local governments after the reform. But this effect is more limited for higher-level governments. The reform also results in increased case filings, prolonged trial time, and enhanced judicial quality. Furthermore, the reform raises the awareness of both governments and citizens about the rule of law. Nevertheless, it produces some side effects. This study highlights the trans-regional jurisdiction as a new source of judicial independence even in a party state and its potential limitations.
From Datafication to Data State: Making Sense of China’s Social Credit System and Its Implications
Posted on Fri, Apr. 28, 2023
Anne S. Y. Cheung, The University of Hong Kong
Yongxi Chen, Australian National University
We live in an age of datafication wherein nearly all aspects of our lives can be transformed into data and evaluated. The authors seek to make sense of the heightened datafication-enabled social control under China’s Social Credit System (SCS) by developing the concept of the data state. A “data state” is defined as a governance model enabling the state to comprehensively monitor, evaluate, and control its subjects through datafication, leaving them little room to defend their autonomy. The authors identify the multiple functions of the SCS in its development up to 2020 and analyze its inherent defects, including the decontextualized evaluation of individuals and the semi-automated imposition of disproportionate punishment. They argue that, if the SCS were to fully integrate its functions and connect to other data-driven governance initiatives, it would eventually allow the data self, carefully groomed by the state, to dominate the bio-self and turn China into a data state.
Courts Without Separation of Powers: The Case of Judicial Suggestions in China
Posted on Thu, Apr. 27, 2023
Benjamin Minhao Chen, The University of Hong Kong
Zhiyu Li, Durham University
Like courts everywhere else, socialist courts are tasked with settling disputes. Their decisions are backed by the force of law. Unlike courts everywhere else, socialist courts are also required to support official ideology and policies. The repudiation of the notion of separation of powers and the instrumental conception of law are conventionally taken to be defining—and defective—aspects of socialist legality. But the political accountability of socialist courts could also be empowering. Because socialist courts answer, in theory, to the party and the people, they have the warrant and duty to contribute to the orderly administration of society. Constitutional scripture does not prohibit socialist courts from venturing beyond the confines of adjudication to address issues not presented for resolution. The authors study how courts in the world’s largest socialist regime intervene in policy domains ranging from public health to education to crime by making judicial suggestions. The approach exemplified here steps outside the rule of law and judicial independence paradigms to examine how constitutional doctrine shapes the boundaries of institutions, thereby contributing to a more complete understanding of socialist courts and the roles that courts might usefully take on in a world without separation of powers.
Comparative Study: How Metaverse Connect with China Laws
Posted on Thu, Apr. 27, 2023
Yujun Huang, University of Washington
This paper is divided into three parts. The first part introduces the background, concept and development of the “metaverse”. The second part describes the possible disputes over rights and obligations in the metaverse scenario, including disputes over civil rights such as identity rights, personality rights, property rights, intellectual property rights and tort liability, and then explains and analyzes the Chinese laws that may apply to govern these disputes. In the third part, some dispute resolution proposals for resolving disputes that may exist in the metaverse world are presented.
Politicization of the 5G Rollout: Litigation Way for Huawei?
Posted on Wed, Apr. 26, 2023
Iryna Bogdanova, World Trade Institute
The great-power rivalry between the US and China, the EU’s policy of technological sovereignty, as well as the nature and economic implications of the fifth-generation wireless (5G) set the context for the politicization of said technology. This politicization is reflected in the growing resistance to the participation of the Chinese technology giant Huawei in the 5G projects. As numerous states shore up legislation and administrative actions geared toward eliminating Huawei’s participation in their 5G networks, China has maintained a proactive posture and redoubled efforts to export Chinese 5G infrastructure. In its turn, Huawei, as the company bearing financial and reputational costs deriving from the prohibitions on its participation in the 5G rollout, seized the opportunity of calling into question the legality of such restrictions. To achieve this, the company initiated administrative proceedings and disputes at the domestic and international levels.
Getting Rich But Not Giving? Exploring the Mechanisms Impeding Charitable Giving in China
Posted on Wed, Apr. 26, 2023
Reza Hasmath, University of Alberta
Qian Wei, Stanford University
China has have witnessed phenomenal economic growth in the 21st century. In sharp contrast to this wealth expansion, the nation is one of the world’s least generous in terms of domestic charitable giving. Seemingly, while individuals are getting wealthier they do not show a higher level of charitable giving. This study draws data from the Chinese General Social Survey to explain this “giving puzzle”. It proposes four mechanisms – perceived socio-economic status, financial security, social trust, and political efficacy – as the main contributing variables to understand the relatively low levels of charitable giving in mainland China.
Posted on Tue, Apr. 25, 2023
Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong
The continuous growth of the proportion of public property in GDP will inevitably lead to an increase in the absolute amount of power and its proportion in the “faquan” structure. This talk by Professor Zhiwei Tong will systematically reveal the specific path of the transformation of public property into power in the contemporary era by examining the budgetary revenue and expenditure of several countries. Only actual public property directly generates power, while others only play an auxiliary role and will eventually be withdrawn from the sequence of public property. If power exceeds its necessary limit, it will damage rights, “faquan”, and even power itself. The balance of the nominal public property minus the actual public property should be classified as personal property, the accompanying “quan” of which all belong to the scope of rights.
The Development of the Due Process Principle in post-2013 China
Posted on Tue, Apr. 25, 2023
Björn Ahl, University of Cologne
Administrative law scholarship and courts have been the main driving forces behind the development of due process requirements of administrative procedure in China. This study addresses the question, whether Chinese courts have further expanded the application of the due process principle, even in the absence of any major legislative initiative. Based on an analysis of administrative cases that courts decided between 2014 and 2019, we argue that courts have continued their activist stance towards developing aspects of procedural justice during the post-2013 era. For example, courts extended the application of the due process requirements to the repeal of beneficial administrative acts, to mere physical acts and to abstract administrative acts such as land-use plans. Courts even granted due process protections with regard to the preparatory measures of administrative acts.
Posted on Mon, Apr. 24, 2023
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
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
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
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
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.
The Judicial Document as Informal State Law: Judicial Lawmaking in China’s Courts
Posted on Thu, Apr. 20, 2023
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
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
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
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
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
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
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
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
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
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
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.
The Legal Constitution (Apr 17)
Posted on Wed, Apr. 12, 2023
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
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
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
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
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
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.
The Rule of Law and Its Virtue (Apr 14 2023)
Posted on Tue, Apr. 4, 2023
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?
Posted on Tue, Apr. 4, 2023
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
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
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
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.
Posted on Fri, Mar. 31, 2023
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
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.
Posted on Thu, Mar. 30, 2023
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.
Posted on Wed, Mar. 29, 2023
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.
Posted on Wed, Mar. 29, 2023
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
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
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
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.
Posted on Mon, Mar. 27, 2023
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
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
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
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
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
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
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.
Posted on Tue, Mar. 21, 2023
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.
Posted on Tue, Mar. 21, 2023
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
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
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.
Zhengyu Shi, Renmin University of China
Yeliang Wang, Renmin University of China
This article discusses the Personal Information Protection Law (PIPL) recently enacted in China and argues that it reflects China’s unique cultural and historical background and perception of personal information protection, rather than simply being a replica of the EU’s GDPR. The author analyzes the differences between the PIPL and the GDPR, and reviews the development of personal information protection in China, arguing that China’s view of personal information protection is pragmatic, rather than based on fundamental rights. The author suggests that judges, administrative authorities, and practitioners should interpret the PIPL in light of China's social and cultural backgrounds and perceptions of risk concerning personal information. Finally, the author argues that it is important to clarify what personal information protection is for and that the PIPL could balance different interests, as opposed to a reductionist view of privacy based on an individual consent regime.
Jie (Jeanne) Huang, The University of Sydney
Special Economic Zones (SEZ) have become the forefront in China to test legal and technological reforms for digital trade. This chapter explores three cutting-edge case studies in China’s SEZs: the Beijing blockchain-based Single Window deposit box; newly established big data exchanges in Beijing, Tianjin, and Shanghai SEZs; and pilot projects in financial, medical care and automobile industries to flow data across the border in the Shanghai SEZ. It scrutinizes China’s experiments in the context of its applications to join the Comprehensive and Progressive Trans-Pacific Partnership and the Digital Economy Partnership Agreement. It argues that the development of Chinese domestic law for digital trade is shifting away from the traditional paradigm that uses international commitments to push domestic reform or make domestic law according to international law. The development of Chinese domestic law for digital trade relies much more on China’s domestic needs than what FTAs negotiations require. FTAs are increasingly becoming a tool for China to shape international law rather than a benchmark for legislating domestic Chinese law.
From Populism to Professionalism: The Media and Criminal Justice in China
Posted on Tue, May. 16, 2023
Daniel Sprick, University of Cologne
China seems to use the media as an external watchdog of the judicial system. Chinese courts are therefore encouraged and even instructed to accept media supervision and promote judicial transparency. In this environment, the courts are susceptible to legal populism, which has sometimes led to flawed decisions. In recent years, however, the courts have established mechanisms to shape the messaging on specific cases by engaging directly with the public through, inter alia, social media, live-streams of court proceedings and an open-access database of judicial decisions. These mechanisms have enhanced the judicial system’s responsiveness and strengthened its potential resilience against populist demands without curtailing its answerability to public criticism and mistrust. At the same time, shielding the courts from public opinion on matters of justice and legal consciousness may also significantly impede legal innovation, as the judiciary may be inclined to overcompensate for its frail independence by stonewalling even the most insightful and prudent media commentaries on the need for legal change.
Book Review: Dispute Resolution in China: Litigation, Arbitration, Mediation and their Interactions
Posted on Tue, May. 16, 2023
Hiro N. Aragaki, UC Law, San Francisco
Weixia Gu, Professor of Law at The University Hong Kong, has written an original and ambitious new monograph about civil justice reform in China that is both breathtaking in scope yet also methodically organized around a core set of important questions. Gu draws masterfully on a deep knowledge of Chinese law and society, expertise in a diverse set of dispute resolution systems, and little-known empirical data to weave together a compelling narrative about the path of reform in one of the most dynamic but also poorly-understood countries in the world. It is a fascinating read for anyone interested in the relationship among dispute resolution institutions and processes, law and development, and the rule of law.
Posted on Mon, May. 15, 2023
Szilárd Gáspár Szilágyi, University of Birmingham
The gradual rise of China as an economic, normative, and lending power has resulted in more protectionist measures in areas of the world that traditionally championed economic liberalization. Currently, 18 out of 27 EU Member States have national laws or measures in place for the screening or review of foreign investments. However, such restrictive national measures can result in investment treaty-based arbitration under the existing bilateral investment treaties concluded by 26 EU Member States with China, as evidenced by the recent arbitration initiated by Huawei against Sweden. Therefore, this article assesses whether EU Member States are likely to see a spike in investor-State arbitral claims initiated by Chinese investors as a result of the former’s investment screening measures.
The New Civil Code of China: Advancements and Improvements for a Better Future
Posted on Mon, May. 15, 2023
Wei Wen, Sun Yat-sen University
This article highlights four features of the new Civil Code of China and its enactment history to explain the significance of this long-expected Code. Overall, the innovative and forward-looking features of the new Code can help China better prepare for the future. In particular, the Code adds the right of habitation, allows mortgaged property transfers, introduces a new defense to clarify tort liability, and serves as a green code. The Code, which is enacted by China’s supreme legislature, took effect recently and is now the most authoritative statute in civil law matters, but currently there is very little literature or caselaw. This article is timely as it seeks to clearly explain the new provisions.
Ideological Foundations of Qing Taxation: Belief Systems, Politics, and Institutions (May 31 2023)
Posted on Thu, May. 11, 2023
Philip K. H. Wong Centre for Chinese Law, The University of Hong Kong
This book talk by Professor Taisu Zhang looks at China’s relative economic decline in the 18th and 19th centuries. The decline was believed to be related to China’s weak fiscal institutions and limited revenue. Zhang argues that this fiscal weakness was fundamentally ideological in nature. Belief systems created through a confluence of traditional political ethics and the trauma of dynastic change imposed unusually deep and powerful constraints on fiscal policymaking and institutions throughout the final 250 years of China’s imperial history. Online participation is also available!
Financing Climate Justice in the European Union and China: Common Mechanisms, Different Perspectives
Posted on Thu, May. 11, 2023
Stephen Minas, Peking University
This article examines the still emerging frameworks to finance climate justice in two of the jurisdictions most important to the global response to climate change: the European Union and the People’s Republic of China. The EU and China have in common that they are both on the front line of financial innovation to respond to climate change. They are utilising similar tools of systemic financial intervention in order to transition financing to climate-friendly investment, with clear implications for global financial markets. However, the EU and China are utilising climate financing mechanisms in the context of very different prevailing perspectives on climate justice. This article interrogates the relationship between these different perspectives on climate justice and the distribution, scale and pace of climate finance.
The Reversal of Privatization in China: A Political Economy Perspective
Posted on Wed, May. 10, 2023
Zhangkai Huang, Tsinghua University
Lixing Li, Peking University
Guangrong Ma, Peking University
Jun Qian, Fudan University
The authors document reversals of privatization in China—local governments re-possessing ownership stakes in a quarter of previously privatized firms during 1998–2007, a period when the privatization process was still ongoing. This type of ownership restructuring helped ease the unemployment burden in the local labor markets, and was more likely to occur in firms located in provinces led by an official without strong political status in the Chinese Communist Party. A reversal in privatization led to higher leverage, lower profitability and lower labor productivity. This paper sheds light on how frictions in the political structure affect the implementation of economic policies in a top-down system.
The National Security Law of the HKSAR: A Contextual and Legal Study
Posted on Wed, May. 10, 2023
Albert H. Y. Chen, The University of Hong Kong
The adoption by the PRC National People Congress in May 2020 of a Decision on Safeguarding National Security in the Hong Kong Special Administrative Region (HKSAR), and the enactment shortly thereafter by the Standing Committee of the National People Congress of the HKSAR National Security Law (NSL), marked a new era in the implementation of the “One Country, Two Systems” (OCTS) policy. This paper attempts to understand the nature, significance and implications of the NSL. Part I situates the Chinese action within the relevant constitutional, legal, political and historical contexts. Part II examines the NSL in the light of Chinese law relating to matters of national security. Part III concludes by considering the impact of the NSL on Hong Kong’s existing law, and commenting on the significance and implications of the NSL in the context of the evolution of the OCTS policy and changing circumstances in Hong Kong.
Equality Rights Literature Database (Feb-Apr 2023)
Posted on Tue, May. 9, 2023
Philip K. H. Wong Centre for Chinese Law, The University of Hong Kong
The Equality Rights Project is a Knowledge Exchange Initiative under the Philip K.H. Wong Centre for Chinese Law. Established in 2015, Equality Rights Project collaborates with lawyers, NGOs and other centres to promote legal education, legal empowerment and legal research with the goal of advancing social inclusion and equality. Equality Rights Literature Database provides timely update and compilation of recent academic research and reports in the area of equality rights.
The Structure and Spirit of Chinese Property Law
Posted on Tue, May. 9, 2023
Shitong Qiao, Duke University
It is puzzling to many that China has maintained its socialist commitment to public land ownership while creating individual land rights. To make the situation even more puzzling, those land rights were initially created without legal authorization, being driven by farmers, entrepreneurs, and local officials on the ground. Chinese law eventually catches up with and sanctions practices that prove effective, but has never been able to regulate or ossify dynamic and ever-changing practices. That is why we see the co-existence of socialist public land ownership, the civil law principle of numerus clausus, and the common law practice of the bottom-up, continual reconfiguration of the bundle of sticks constituting property rights. These elements of China’s hybrid system are by nature in constant conflict, creating friction and bumps on the country’s road to economic and social development. Together, however, they permit the system to get by, striking a balance between development and stability.
Re-orienting Research on Lawmaking in China
Posted on Mon, May. 8, 2023
Ji Li, University of California, Irvine
Four decades of legislative activism in China has spawned a sizable literature on the subject. Most of the existing studies, however, have paid inadequate attention to the post-legislation effects. Drawing on insights from rational choice theory, this article proposes a stylized model integrating legislation and law enforcement. The model, intended mainly as a heuristic device, may approximate “real world” legislation in China by incorporating key insights of collective action theory, agency theory, and the theory of bounded rationality. Analyzing legislation and law implementation through the rational choice lens generates valuable insights and uncovers new research questions for scholars interested in Chinese law and politics.
Does Legality Produce Political Legitimacy? An Experimental Approach
Posted on Mon, May. 8, 2023
Yiqin Fu, Stanford University
Yiqing Xu, Stanford University
Taisu Zhang, Yale University
This article studies whether “pure” legality, stripped of the normative components that are conceptually necessary for “the rule of law,” can convey meaningful amounts of perceived legitimacy to governmental institutions and activity. Through a survey experiment conducted among urban Chinese residents, it examines whether such conveyance is possible under current Chinese sociopolitical conditions, in which the Party-state continues to invest heavily in “pure legality,” but without imposing meaningful legal checks on the leadership’s political power, and without corresponding investment in substantive civil rights or socioeconomic freedoms. Among survey respondents, government investment in legality conveys meaningful amounts of political legitimacy, even when it is applied to actions, such as online speech censorship, that are socially controversial or unattractive, and even when such investment does not clearly enhance the predictability of state behavior. However, the legitimacy-enhancing effects of legality are likely weaker than those of state investment in procedural justice.
Analyzing China: The Role of Empathy in Comparative Law
Posted on Fri, May. 5, 2023
Alex L. Wang, University of California, Los Angeles
People attempt to understand another jurisdiction through the frameworks of their own. Scholars working in comparative law are loath to make the same mistake. For instance, the sense that liberal rule of law is constitutive of law itself undergirds perennial debates about China’s “turn against law” or “turn towards law” that have been central to American studies of Chinese law. As a political scientist once observed at a Chinese law conference in the US, “In political science, we are at least sure that China has politics! Legal scholars are not even sure if China has law!” Such debates over Chinese law are hardly new. American scholars of Chinese law and legal institutions–producing work from a position of privilege and power–would surely agree that avoiding these sorts of analytical blind spots is desirable. But how to achieve that in practice? The author suggests that empathy can play a useful role in the analytical toolkit.
Soft Law of the Supreme People's Court
Posted on Fri, May. 5, 2023
Susan Finder, Peking University, The University of Hong Kong
This article sets out the author’s thoughts on two aspects of China’s Supreme People's Court (SPC) soft law—its judicial policy documents and cases that it has specially selected. It concludes with thoughts about why the SPC relies on soft law to guide the lower courts in applying the law and judicial interpretations in hearing cases.
Judging China: The Chinese Legal System in U.S. Courts
Posted on Thu, May. 4, 2023
Donald Clarke, George Washington University
How should American courts understand China’s legal system? How do they understand it, and are they doing a good job? This Article presents the first attempt to answer these questions empirically through an intensive study of all cases in which parties either sought dismissal to China on forum non conveniens grounds or sought enforcement of a Chinese judgment. Both types of cases require courts to assess China’s legal system. The author presents the most complete picture to date of what U.S. courts and litigants are actually doing in China-related cases. He finds that by and large courts do not get good information and often reach questionable conclusions. The adversarial system is not functioning well, with the strength of party arguments bearing no correlation to outcomes. Moreover, the bad results tend to get baked into the system through their citation in subsequent cases. This has serious implications for the delivery of justice.
Legal Systems Inside Out: American Legal Exceptionalism and China's Dream of Legal Cosmopolitanism
Posted on Thu, May. 4, 2023
Matthew S. Erie, University of Oxford
What is the relationship between a legal systems’ foreign-facing elements and its domestic ones? Contrary to “dualistic” theories which suggest that a single legal system may encompass qualitatively different regimes regarding foreign and domestic legal questions, this article argues that gaps between the foreign-facing and domestic aspects of a legal system may threaten that system’s legitimacy and sustainability. Compatibility between these two aspects could be measured across a range of categories including provision of justice, fairness, and efficiency. This article focuses on the recognition of difference. Difference means both the nature and source of law (e.g. foreign law, non-state law, religious law, customary law) and of legal authorities (i.e., in terms of race, ethnicity, gender, nationality). The question posed is whether a legal system can regard difference disparately between its foreign-facing and domestic aspects. This article addresses this question through a comparison between the People’s Republic of China (PRC) and the United States.
Homogeneity and Conflict: Interrogating the Political in Contemporary China
Posted on Wed, May. 3, 2023
Lucas Brang, University of Cologne
This article provides a concise overview of the reception of Carl Schmitt’s thought in contemporary China, focusing on the concept of the political and its various theoretical ramifications. The author argues that the notions of “homogeneity” and “conflict” as constituent elements of Schmitt’s political theory, and the dialectic tension between them, provides a useful entry point to contemporary Chinese debates about state unity and societal pluralism. Such a reading also suggests that, rather than giving rise to a straightforward and uniform authoritarian agenda, Chinese “Schmitt fever” has produced new political fault lines. One particularly pertinent schism in contemporary Chinese political discourse is that between authoritarian projects of political assimilation and liberal projects of constitutional patriotism – both of which are informed by diverging readings of Schmitt.
Posted on Wed, May. 3, 2023
Luca Belli, Getulio Vargas Foundation
Yasmin Curzi, Getulio Vargas Foundation
Walter Britto Gaspar, Getulio Vargas Foundation
This article aims to evaluate recent events regarding social media governance in the BRICS (Brazil, Russia, India, China, and South Africa) countries, focusing on recent developments and highlighting common trends. With documental and literature review, the authors aim to analyse the most recent policies and institutional arrangements directly affecting what could be deemed a responsible social media platform. Furthermore, by looking at the selected developments in these countries, the authors aim to identify convergence and divergence between the BRICS country approaches, providing clarity on the existing and proposed regimes and contributing to the identification of viable paths forward that strike a balance between all interests involved.
Beyond Anti-Anti-Orientalism, Or How Not to Study Chinese Law
Posted on Tue, May. 2, 2023
Teemu Ruskola, University of Pennsylvania
This article is the lead entry in a special section entitled “Exchange on Legal Orientalism” in a forthcoming issue of the American Journal Comparative Law, charting debates engendered by the author’s monograph Legal Orientalism: China, the United States and Modern Law (Harvard University Press 2013). Specifically, the author examines two recent feature-length articles, both of which engage with the argument of Legal Orientalism, viz. “Anti Anti-Orientalism, or Is Chinese Law Different?” by Professor Donald Clarke at George Washington University and “Critical Legal Orientalism” by Professor Thomas Coendet at Shanghai Jiao Tong University. The author’s main goal is not so much to assess the accuracy of these recent critiques of his analysis—although that will be of some concern—but ultimately to understand what are the ongoing stakes of legal Orientalism. Why and how does Orientalism continue to matter in the field of comparative law?
Posted on Tue, May. 2, 2023
Yishuang Li, New York University
Existing research suggests that an independent and efficient judicial system is crucial for attracting foreign investment. However, a remaining puzzle is whether a centralized or decentralized court system contributes to more investment? It is widely taken that a decentralized political system may encourage politicians to improve the rule of law due to inter-jurisdictional competition for foreign investment; nevertheless, the higher vulnerability to local favoritism and political patronage between domestic firms and local governments under such a system should not be neglected. Applying a difference-in-differences design on original data of recent judicial reforms in China, this paper finds that the centralization of power to control local courts from local governments into the hands of higher-level governments increases foreign investment. Furthermore, after the judicial centralization reform, foreign investors spend less on building connections with domestic firms or bribing local officials.
Suing the Government Under Weak Rule of Law: Evidence from Administrative Litigation Reform in China
Posted on Fri, Apr. 28, 2023
Guangyu Cao, Peking University
Chenran Liu, Peking University
Li-An Zhou, Peking University
There is a long-standing debate in the literature about the effectiveness of strengthening judicial independence in developing countries with weak rule of law. This paper exploits China’s recent judicial reform in administrative litigation, which changed the jurisdiction rule from intra-regional to trans-regional, to estimate the effects of improved judicial independence on protecting private entities against potential abuses of public authority. The authors find a significant increase in the probability of successfully suing local governments after the reform. But this effect is more limited for higher-level governments. The reform also results in increased case filings, prolonged trial time, and enhanced judicial quality. Furthermore, the reform raises the awareness of both governments and citizens about the rule of law. Nevertheless, it produces some side effects. This study highlights the trans-regional jurisdiction as a new source of judicial independence even in a party state and its potential limitations.
From Datafication to Data State: Making Sense of China’s Social Credit System and Its Implications
Posted on Fri, Apr. 28, 2023
Anne S. Y. Cheung, The University of Hong Kong
Yongxi Chen, Australian National University
We live in an age of datafication wherein nearly all aspects of our lives can be transformed into data and evaluated. The authors seek to make sense of the heightened datafication-enabled social control under China’s Social Credit System (SCS) by developing the concept of the data state. A “data state” is defined as a governance model enabling the state to comprehensively monitor, evaluate, and control its subjects through datafication, leaving them little room to defend their autonomy. The authors identify the multiple functions of the SCS in its development up to 2020 and analyze its inherent defects, including the decontextualized evaluation of individuals and the semi-automated imposition of disproportionate punishment. They argue that, if the SCS were to fully integrate its functions and connect to other data-driven governance initiatives, it would eventually allow the data self, carefully groomed by the state, to dominate the bio-self and turn China into a data state.
Courts Without Separation of Powers: The Case of Judicial Suggestions in China
Posted on Thu, Apr. 27, 2023
Benjamin Minhao Chen, The University of Hong Kong
Zhiyu Li, Durham University
Like courts everywhere else, socialist courts are tasked with settling disputes. Their decisions are backed by the force of law. Unlike courts everywhere else, socialist courts are also required to support official ideology and policies. The repudiation of the notion of separation of powers and the instrumental conception of law are conventionally taken to be defining—and defective—aspects of socialist legality. But the political accountability of socialist courts could also be empowering. Because socialist courts answer, in theory, to the party and the people, they have the warrant and duty to contribute to the orderly administration of society. Constitutional scripture does not prohibit socialist courts from venturing beyond the confines of adjudication to address issues not presented for resolution. The authors study how courts in the world’s largest socialist regime intervene in policy domains ranging from public health to education to crime by making judicial suggestions. The approach exemplified here steps outside the rule of law and judicial independence paradigms to examine how constitutional doctrine shapes the boundaries of institutions, thereby contributing to a more complete understanding of socialist courts and the roles that courts might usefully take on in a world without separation of powers.
Comparative Study: How Metaverse Connect with China Laws
Posted on Thu, Apr. 27, 2023
Yujun Huang, University of Washington
This paper is divided into three parts. The first part introduces the background, concept and development of the “metaverse”. The second part describes the possible disputes over rights and obligations in the metaverse scenario, including disputes over civil rights such as identity rights, personality rights, property rights, intellectual property rights and tort liability, and then explains and analyzes the Chinese laws that may apply to govern these disputes. In the third part, some dispute resolution proposals for resolving disputes that may exist in the metaverse world are presented.
Politicization of the 5G Rollout: Litigation Way for Huawei?
Posted on Wed, Apr. 26, 2023