Chinese Law Blog

Sino-American Parallels in Administrative Law

Posted on Fri, Dec. 29, 2023

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Andrew Willinger, Duke University

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

Monopoly and Fragmentation: Data Collection in Chinese Empirical Legal Studies

Posted on Thu, Dec. 28, 2023

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Qin (Sky) Ma, New York University

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

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

Posted on Thu, Dec. 28, 2023

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Wei Zhang, Singapore Management University

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

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

Posted on Mon, Dec. 11, 2023

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Runhua Wang, The University of Science and Technology Beijing

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

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

Posted on Mon, Dec. 11, 2023

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Su Bian, Jiangsu Ocean University

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

Property as National Security

Posted on Fri, Dec. 8, 2023

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Matthew S. Erie, University of Oxford

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

China’s Dilemma in Renewing Its Belt and Road Initiative

Posted on Thu, Dec. 7, 2023

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Leon Trakman, University of New South Wales

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

Can China Squelch Free Speech Beyond Its Borders?

Posted on Thu, Dec. 7, 2023

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Ge Chen, Durham University

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

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

Posted on Wed, Dec. 6, 2023

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University of Oxford

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

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

Posted on Wed, Dec. 6, 2023

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Yongxi Chen, Australian National University

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

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

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

Posted on Tue, Dec. 5, 2023

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

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

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

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

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

Posted on Mon, Dec. 4, 2023

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Guanchi Zhang, Vermont University

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

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

Posted on Mon, Dec. 4, 2023

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Daniel Friedman, Villanova University

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

The Private Law Influence of the Great Qing Code

Posted on Fri, Dec. 1, 2023

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Taisu Zhang, Yale University

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

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

Posted on Fri, Dec. 1, 2023

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Jianlin Chen, University of Melbourne

Bijuan Lu, Avantro

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

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

Posted on Thu, Nov. 30, 2023

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Alexander Chan Hou Lou, Tsinghua University

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

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

Posted on Thu, Nov. 30, 2023

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Xiaojing Gao, George Washington University

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

Who Owns Huawei?

Posted on Wed, Nov. 29, 2023

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Christopher Balding, Fulbright University Vietnam

Donald C. Clarke, George Washington University

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

'Me Too': Public Opinion Movement as Collective Action

Posted on Wed, Nov. 29, 2023

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Yao Lin, New York University

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

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

Posted on Tue, Nov. 28, 2023

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Shuai Guo, China University of Political Science and Law

Jieche Su, China University of Political Science and Law

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

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

Posted on Tue, Nov. 28, 2023

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Taro Akiyamma, University of Niigata Prefecture

Baojun Fang, University of Niigata Prefecture

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

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

Posted on Mon, Nov. 27, 2023

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Roza Nurgozhayeva, Nazarbayev University

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

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

Posted on Fri, Nov. 24, 2023

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

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

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

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

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

Posted on Fri, Nov. 24, 2023

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

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

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

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

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

Posted on Thu, Nov. 23, 2023

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James Si Zeng, Chinese University of Hong Kong

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

Platform Regulation through Sanctions

Posted on Thu, Nov. 23, 2023

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Michelle Miao, Chinese University of Hong Kong

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

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

Posted on Wed, Nov. 22, 2023

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Matthew S. Erie, University of Oxford

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

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

Posted on Tue, Nov. 21, 2023

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

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

Responsibility for Special Equipment Safety Accidents in China

Posted on Tue, Nov. 21, 2023

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Lin Xu, Central South University

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

Characterization (and Registration) of a “BRI Dispute”

Posted on Mon, Nov. 20, 2023

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Jamieson Kirkwood, The University of Hong Kong

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

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

Posted on Mon, Nov. 20, 2023

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Kelley Loper, The University of Hong Kong

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

Addressing a Human Rights Paradox in the Green Transition

Posted on Fri, Nov. 17, 2023

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Karin Buhmann, University of Southern Denmark

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

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

Posted on Fri, Nov. 17, 2023

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Michelle Miao, Chinese University of Hong Kong

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

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

Posted on Thu, Nov. 16, 2023

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Fang Wang, City University of Hong Kong

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

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

Posted on Wed, Nov. 15, 2023

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Anupam Chander, Georgetown University

Haochen Sun, The University of Hong Kong

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

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

Posted on Tue, Nov. 14, 2023

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Ying Xia, The University of Hong Kong

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

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

Posted on Tue, Nov. 14, 2023

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Xia Liu, Tongji University

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

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

Posted on Mon, Nov. 13, 2023

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Jackson Neagli, Harvard University

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

Fishing Ban

Posted on Mon, Nov. 13, 2023

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Haishan Yuan, University of Queensland

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

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

Posted on Fri, Nov. 10, 2023

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

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

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

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

China Data Privacy Laws, WeChat Muddy Cross-Border Inquiries

Posted on Fri, Nov. 10, 2023

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T. Markus Funk, Perkins Coie

Mason Ji, Perkins Coie

Huijie Shao, Perkins Coie

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

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

Posted on Thu, Nov. 9, 2023

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Jiahui Duan, The University of Hong Kong

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

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

Posted on Thu, Nov. 9, 2023

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Wilfried Martens Centre for European Studies

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

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

Posted on Wed, Nov. 8, 2023

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Michelle Miao, Chinese University of Hong Kong

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

Son Preference in Testate Succession

Posted on Wed, Nov. 8, 2023

Yun-chien Chang, Cornell University

Sieh-Chuen Huang, National Taiwan University

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

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

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

Posted on Tue, Nov. 7, 2023

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Jinyan Li, York University

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

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

Posted on Mon, Nov. 6, 2023

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Jamieson Kirkwood, The University of Hong Kong

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

The Regulation of Dismissal in China

Posted on Mon, Nov. 6, 2023

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Peter Chan, City University of Hong Kong

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