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 (ccl921@hku.hk) if you want to share sources you find relevant, valuable, and interesting! More research on Chinese law is available on the Chinese Law eJournal. Subscribe to the Chinese Law Blog if you want to receive timely updates by email.
Posted on Fri, Nov 15, 2024
Xiaohan Sun, Xiamen University, School of Law
Kenneth Glenn Dau-Schmidt, Indiana University, Maurer School of Law
Zhenxing Ke, Nankai University
Legal education plays an important role in upholding the rule of law and protecting the rights of individuals. There is a dearth of research on the impact of differences in institutional and cultural contexts on legal education. This paper examines the impact of educational systems and culture on the law school experience of American and Chinese students and assesses whether the students' experiences meet the educational goals of law school diversity. Using data from LSSSE 2020-2021, we compared and evaluated the law school experiences of 21,706 American and 218 Chinese students using descriptive statistics and linear regression. We found that differences in educational systems and cultures influence Chinese students' satisfaction with law school to some extent. Chinese students focus more on interactions with faculty rather than students, and their enjoyment of law school life relies more singularly on quantifiable achievement motivations. This study contributes to an understanding of how culture and institutions have shaped the development of legal education in different countries, and how a very different sociopolitical environment affects the satisfaction of American and international Chinese students with their law school experience. These findings help to rethink whether legal education effectively contributes to the fulfillment of liberal legalism. In addition, the findings urge policymakers and law schools to adjust their strategies in order to achieve the goal of diverse interactions in legal education.
Posted on Fri, Nov 15, 2024
Fang Zhao, Fudan University
Ning Zhu, Fudan University
Riitta Vornanen, University of Eastern Finland
Timo Toikko, University of Eastern Finland
This study explores the persistent gaps between research, policy, and practice in child protection systems using a case study from China. Despite national reforms and efforts to develop a systems-based approach, the child protection system faces significant fragmentation, particularly at the county level. This research focuses on County L, a pilot site for the “Protecting Children’s Growth” project, which aims to bridge these gaps by establishing a comprehensive, three-level child protection network. Utilizing qualitative methods including field observations, interviews, and document analysis, the study highlights the challenges of cross-sector collaboration, resource shortages, and the imbalance between prevention and intervention. Findings suggest that while policies promote systemic coordination, implementation is hindered by local flexibility, unclear responsibilities, and insufficient professional services. The paper concludes by emphasizing the need for further research on sustainability, capacity building, and the integration of data-driven decision-making in child protection systems.
Beyond the Verdict: The Impact of Juries on Judicial Support
Posted on Fri, Nov 1, 2024
Yutian An
Yingjie Fan
Citizen participation has been considered as a main channel for political legitimacy, but does this logic apply to a more technical legal context like the judiciary? This paper explores the relationship between perceived citizen participation in the form of jury and its subsequent impact on judicial support. We theorize jury as a mechanism to strengthen judicial support in two ways: it elevates the perceived procedural fairness in individual adjudications, and the popular participation aspect of it can legitimize the broader judicial system. Employing a mixed-methods approach that integrates fieldwork with a survey experiment, this study investigates how the jury-like system in China (the lay assessor system) has yielded popular support for the judiciary. Our findings reveal that lay participation in judicial decision-making not only improves perceptions of procedural fairness but also increases demand for lay participation. As a mechanism of due process, lay assessors can enhance fairness perceptions of case outcomes. Furthermore, voting as the defining feature of the jury system substantively augments the perceived judicial legitimacy. These results affirm our theoretical framework concerning the jury's role in garnering judicial support. The dual function of the jury, as both an instrument of due process and a facilitator of popular participation, demonstrates its potential to strengthen judicial support across various regime and legal system types.
The Impact of Divorce Cooling-Off Period on Registered Divorces:Evidence from China
Posted on Fri, Nov 1, 2024
Wenge Zheng
Bowen Niu
Zhenguo Chen
The divorce rate of China has continued to rise since the beginning of the 21st century. In order to reduce impulsive divorces, the divorce cooling-off period (DCOP) system was established in the Civil Code of China. The aim of this research is to examine the impact of DCOP on registered divorces. Data from National Bureau of Statistics and statistical bureaus of 31 provinces were utilized in this work. The event study analysis reveals that the number of registered divorces decreases significantly in China after the DCOP provision’s enforcement. The ordinary least squares model indicates an average annual decrease of about 2.6 million registered divorces when the DCOP provision takes effect and DCOP plays a decisive role in this decrease. This research not only highlights the important role of DCOP in reducing registered divorces but also provides insights on how to improve the DCOP system and promote the stability of marriage.
Posted on Fri, Nov 1, 2024
Riccardo Vecellio Segate
Despite limited progress within international institutions, the need for articulating a regulatory framework for cyber operations in outer space is becoming a pressing concern. One precondition for regulation is to share cybersecurity and outer-space common terminology that can inform the negotiation of standards, policies and laws. While the UN Institute for Disarmament Research has recently issued a baseline policy glossary, binding technical definitions are missing, and the lack of a binding international cybersecurity regime adds to the obsolescence of a binding outer-space regime tracing back to half a century ago. As the IEEE SA embarks on the drafting of the first-ever technical standard for cybersecure-by- design outer-space missions, scoping and conceptual challenges abound. Technical standards are US-centred, non-binding, engineering-intensive exercises, where lawyers and Asian jurisdictions are only marginally involved; nevertheless, as China’s framework for cybersecurity is refined and its involvement in outer-space policing deepens, its disengagement from Western-driven standard-setting bodies appears unsustainable. Drawing on the specific challenge of defining what makes a cyber system ‘mission-critical’, I expose the necessity to examine how domestic cybersecurity laws from a diverse range of States identify ‘critical’ information infrastructure. Generalising therefrom, I advocate a jurisdictionally inclusive process that combines American supremacy in technical standard-setting for outer-space missions with Chinese normative contributions to cybersecurity regulation, including on data localisation and mandatory multilevel cyber-hygiene requirements. I further argue that involving legal experts from a diverse range of jurisdictions and sociolegal cultures may enhance the global reception of standardisation outputs, thus securing higher degrees of voluntary compliance therewith. This could foster cooperation and promote regional and global satellite cybersecurity.
The EU's new Foreign Subsidy Regulation on Collision Course with the WTO
Posted on Fri, Nov 1, 2024
Malte Frank
The European Union (EU) has become increasingly concerned about government-dominated economies that provide financing for companies engaging in commercial activities in the EU. The concern is that companies receiving these so-called foreign subsides gain an unfair advantage over their European competitors. Whilst, until recently, the existence of foreign subsidies was discarded as unrealistic, the EU now maintains that EU companies are facing a growing competitive disadvantage as certain emerging economies, and China in particular, increasingly »globalize« their use of subsidies.
With astonishing unity and speed, the EU has, therefore, created an ambitious piece of legislation, the Regulation 2022/2560, commonly referred to as Foreign Subsidies Regulation (FSR). The FSR allows the European Commission (EC) to take unilateral action against foreign subsidies that are presumed to distort the common market. The EU's plan represents a far-reaching change in the EU's foreign trade policy and creates a field of tension with the World Trade Organization (WTO).
Whilst there is legal uncertainty about the scope of the WTO's Agreement on Subsidies and Countervailing Measures (SCM Agreement), some of the practices now regulated by the FSR most likely fall under the SCM Agreement which was incorporated into EU-law by the Regulation 2016/1037 (Anti-Subsidy Regulation). Such an overlap is conceivable, for example, if a WTO Member grants a payment to a company established in the EU, so that this company imports certain domestic goods from the WTO Member granting the financial contribution into the EU. The FSR provides for a conflict rule establishing the supremacy of WTO law in such situations. However, considering the EU legislator's interpretation of the SCM Agreement, there are considerable doubts as to whether this mechanism will effectively prevent the EC from taking unilateral actions in an area that is actually subject to WTO law. In the area of overlaps, the FSR may, therefore, violate the supremacy of WTO law which would lead to the illegality of the FSR.
This paper addresses this risk and provides an outlook on how the EU could ensure WTO compliance by not applying the FSR if the regulated practice falls also under the SCM Agreement.
Fragmentation as Friction: Advancing GBA Development through Rule Harmonization
Posted on Fri, Nov 1, 2024
Mark Feldman
Keynote address delivered at the Guangdong-Hong Kong-Macao Greater Bay Area Legal Forum (2024) held in Guangzhou, China on August 30, 2024. Rule harmonization efforts in the Greater Bay Area (GBA) can be advanced by prioritizing several key factors, including a focus on dynamic subject matter areas such as digital trade and international dispute resolution, making effective use of pilot zones, and maximizing stakeholder engagement, with a particular focus on small and medium-sized enterprises. Ultimately, GBA rule harmonization can proceed on two tracks: a rulemaking track and an implementation track. For the implementation track, rigorous training and education can play a central role. The combination of successful rulemaking and the successful implementation of rulemaking could contribute significantly to the GBA's profile as a global model for development.
Old Wine in a New Bottle? – An Empirical Evaluation of the Judicial Reforms in China in the 2010s
Posted on Fri, Nov 1, 2024
Peter Chan
This article provides an empirical evaluation of the effectiveness of the judicial reform measures implemented in China in the 2010s. Among other objectives, the reforms aimed to strengthen the independence of judges, the financial autonomy of courts and the professionalism of adjudicators. Critics have questioned the success of the reforms, citing continued government intervention with adjudication and unchanged structural problems with courts. To date, there has been limited empirical literature focusing specifically on the judicial reform measures in the 2010s in China. This article provides a glimpse into what really was happening on the ground since the reforms through the lens of frontline judges. It concludes that the reforms have enhanced the financial autonomy of courts, the independence of individual adjudicators and the quality of judgments. 47% of the judges who responded to the survey agreed that the judicial reform was extremely effective. However, this study also reveals that the reforms failed to tackle deep-seated problems of the Chinese judiciary. Local government intervention with adjudication is still rampant. Courts continued to be severely understaffed. Judges are still ready to abridge procedures to arrive at an outcome that is consistent with the policy of the court leadership. While the reform is not “old wine in a new bottle”, there is still much room for improvement in the administration of justice in China.
Posted on Fri, Nov 1, 2024
Kevin J. O'Brien
Will China democratize? Slater and Wong argue that Party leaders should have the confidence to do so, but do they and is democracy the "right question" for China now or in the intermediate future?
Call for Papers: 10th Asian Constitutional Law Forum (Dec 9-10, 2024)
Posted on Fri, Jul 12, 2024
The University of Hong Kong
The 10th Asian Constitutional Forum (ACLF) will be held in Hong Kong on December 9-10, 2024, under the auspices of the University of Hong Kong’s Faculty of Law and its Centre for Comparative and Public Law, with the support of the Association for Asian Constitutional Studies. The closing date for submission of proposals is 31 July 2024.
Bibliography of Academic Writings in the Field of Chinese Law in Western Languages in 2023
Posted on Thu, Jul 11, 2024
Knut Benjamin Pissler, Max Planck Institute
Fenja Eckardt, Max Planck Institute
Luca Pisanelli, University of Cologne
The bibliography aims to give readers an overview on articles in academic journals, contributions to edited volumes, monographs and textbooks published in English or German in the field of Chinese law published in 2023.
The Comparative Analysis on Arbitration Systems between China and the US
Posted on Thu, Jul 11, 2024
Wenwei Huang, George Mason University
This comparative examination provides a comprehensive analysis of arbitration in China and the United States, two major economic forces. Drawing from historical, legislative, governmental, and cultural viewpoints, the research explores facets such as the progression of arbitration statutes, the role of state involvement, how cultural traditions impact practices, noteworthy case studies, and what this implies for international commerce.
Energy Consumption Ramifications of U.S.-China AI Competition
Posted on Wed, Jul 10, 2024
Joyce Guo et al, Yale University
U.S.-China AI competition has created a ‘race to the bottom’, where each nation’s attempts to cut each other off artificial intelligence (AI) computing resources through protectionist policies comes at a cost – greater energy consumption. This article shows that heightened energy consumption stems from six key areas. By investigating the unintended consequences of the U.S.-China AI competition policies, the article highlights the need to redesign AI competition to reduce unintended consequences on the environment, consumers, and other countries.
Centralized Law Enforcement in Contemporary China
Posted on Wed, Jul 10, 2024
Bo Yin, Beijing Normal University
Yu Mou, University of London
In 2018, China announced a three-year war on “black societies and evil forces” and promised to take down various forms of organized crime and evil forces within society. This article examines the operational features of this particular crackdown and how they diverged from previous “strike hard” campaigns. Using democratic centralism as a liberal lens, this campaign showcases the struggle between the imperative of legality and the politics of a major campaign in China.
The Anti-Suit Injunctions in Patent Litigation in China
Posted on Tue, Jul 9, 2024
Alexandr Svetlicinii, University of Macau
Fali Xie, University of Macau
Starting from 2020, the Chinese courts have actively participated in the jurisdictional battles for the standard essential patent (SEP) disputes, a pivotal development marked by the Supreme People’s Court’s inaugural SEP-related anti-suit injunction (ASI) in Huawei v Conversant. Subsequently, lower courts in China have emulated this approach by issuing ASIs targeting SEPs in the domain of information and communication technology.
Posted on Tue, Jul 9, 2024
Milan Babić, Roskilde University
Adam D Dixon, Maastricht University
Chinese outward investment is increasing in its relevance for the global economy, and its effects on host states are increasingly being scrutinized globally. While European policy-making was ambiguous about the question of hosting Chinese state-led investment (CSLI) in the early 2010s, we can observe a recent surge of protectionist legal measures across Europe. What explains this trend among different European countries?
Promote or Constrain? Shadow of U.S. Sanctions on Radical Innovation in China
Posted on Mon, Jul 8, 2024
Chong Yang, Chinese Academy of Sciences
Zhiying Liu, University of Science and Technology of China
The recent focus on new technonationalism by the U.S. against China centers on entity list sanctions, impacting firms' innovation resources. However, the efficacy of these sanctions remains debated. This study addresses this question by analyzing the impact of entity list sanctions on radical innovation in China from network inertia perspective.
The Digital Silk Road and China's Influence on Standard Setting
Posted on Mon, Jul 8, 2024
Alex He, Centre for International Governance Innovation
China is striving to become a leader in international standard setting, and the Digital Silk Road, part of China’s Belt and Road Initiative to expand its global infrastructure and markets, is key to realizing this goal. Both roads depend on standard connectivity, fuelled by Chinese private companies that are the driving force behind China’s growing role as a leader in technology development and shaping standards in both domestic and global markets.
The Comprehensive Implementation of the Registration-based System of IPO Regulation in China
Posted on Fri, Jul 5, 2024
Fa Chen, King’s College London
Lijun Zhao, City University of London
Implemented for nearly four years under gradualism, the registration-based system was expanded to the whole Chinese stock market in February 2023. This article conducts a close examination of the registration-based system, exploring its functioning in practice, canvassing its progress and problems in accommodating issuers and looking into the landscape and prospects of investor protection.
Building Responsible and Sustainable Supply Chain Frameworks
Posted on Fri, Jul 5, 2024
Stefanie Schacherer, Singapore Management University
The article first explores the integration of Corporate Social Responsibility (CSR) in international investment law. It then evaluates the different CSR initiatives taken by the EU and China that frame their foreign direct investments (FDI). Focusing on EU–China FDI relations, the article delineates implications for global supply chain governance, offering insights into the evolving landscape of CSR frameworks, and the plagued path in adopting mandatory corporate responsibility standards.
Consensual Settlement of Competition Disputes in China: A Call for Conditional Arbitrability
Posted on Thu, Jul 4, 2024
Alexandr Svetlicinii, University of Macau
Due to the lack of certainty as to the arbitrability of antitrust disputes, the competition-related arguments may undermine the goals of the current reform of China’s Arbitration Law. The paper addresses this problem by advancing a call for conditional arbitrability of antitrust disputes in China. This policy proposal is grounded on the analysis of the divergent judicial approaches to arbitrability of competition-related issues developed by the Chinese judiciary.
Is Chinese Law Well-Prepared for AI Songs?
Posted on Thu, Jul 4, 2024
Yang Chen, City University of Hong Kong
Recently, AI songs cloning celebrities’ real voices have become a key topic in the entertainment industry and among fan groups across the globe, particularly in China. The controversy centers on whether the personality rights of celebrities under Chinese law govern any conduct concerning AI songs mimicking their real voices. This article aims to discuss a more theoretical and deeper question: even if it is feasible to interpret the current law broadly to allow such a cause of action to regulate AI songs in China, should such an extensive interpretative approach be adopted?
Demystifying Data Law in China: A Unified Regime of Tomorrow
Posted on Wed, Jul 3, 2024
Peiru Cai, Fudan University
Li Chen, Fudan University
The overall purpose of Chinese data law is to maintain and advance the physical security and juridical security of data. However, the interests underlying each legislation are quite different; the specific legal goals and normative values of each legislation also reveal structural differences. There is controversy over whether, in practice, each legislation should be applied sequentially in each given situation instead of applying the different legislations simultaneously.
Posted on Wed, Jul 3, 2024
Bo Li, Tsinghua University
Jacopo Ponticelli, Northwestern University
Using a new case-level dataset, the authors study how the staggered introduction of specialized courts across Chinese cities affected insolvency resolution and the local economy. They provide evidence consistent with court specialization increasing efficiency via selection of better trained judges and higher judicial independence from local politicians. They also document that cities introducing specialized courts experience a relative reallocation of employment out of zombie firms-intensive sectors, as well as faster firm entry and a larger increase in average capital productivity.
Posted on Tue, Jul 2, 2024
Yutian An, Harvard University
Yingjie Fan, Princeton University
Xuancheng Qian, Princeton University
Leo Yang Yang, Stanford University
Criminal law is typically seen as the domain of judges and prosecutors, yet police officers often act as de facto policymakers through their enforcement discretion. This paper explores the impact of police discretion on prostitution regulation in China, following a 2017 judicial interpretation that lowered the threshold for prosecuting pimps.
The Curious Case of Blockchain in Rural China: Unravelling power, Profit, and Surveillance
Posted on Tue, Jul 2, 2024
Alvin Hoi-Chun Hung, Australian National University
Blockchain originated from the aspiration for decentralization, and in Western countries, its association with freedom from governmental and corporate dominance remains unwavering. However, in China–where blockchain has taken an intriguing foothold–the socio-technical imaginaries of blockchain diverge significantly. As China rises in blockchain development, critical literature examining its ventures is notably lacking. This article analyses state-led initiatives and corporate endeavours related to blockchain deployment in rural China.
Innovation and Development of the China International Commercial Court
Posted on Fri, Jun 28, 2024
Long Fei, PRC Supreme People’s Court
This article introduces several innovative features of the China International Commercial Court, including a composition of only senior judges, the International Commercial Expert Committee, first-instance-as-final jurisdiction, a ‘one-stop’ dispute resolution platform, flexibility in finding foreign laws, and the use of cutting-edge information technology.
Posted on Fri, Jun 28, 2024
Rogier Creemers, Leiden University
Susan Trevaskes, Griffith University
This book argues China’s legal system needs to be studied from an internal perspective, to take into account the characteristic architecture of China’s Party-state. To do so, it addresses two key elements: ideology and organisation.
Law and Norms: Empirical Evidence
Posted on Thu, Jun 27, 2024
Tom Lane, University of Nottingham
Daniele Nosenzo, University of Nottingham
Silvia Sonderegger, University of Nottingham
A large theoretical literature argues laws exert a causal effect on norms, but empirical evidence remains scant. Using a novel identification strategy, the authors provide a compelling empirical test of this proposition. They use incentivized vignette experiments to directly measure social norms relating to actions subject to legal thresholds. Their large-scale experiments run in the UK, US, and China show that laws can causally influence social norms.
Does Environmental Court Lead to Local Green Growth? Evidence from 230 Cities in China
Posted on Thu, Jun 27, 2024
Ge Xin, Shanghai University of Finance and Economics
Feng Wang, Shanghai University of Finance and Economics
Leveraging the panel data of 230 cities from 2007-2016 and taking the establishment of environment courts as a quasi-natural experiment, this paper uses the difference-in-differences (DID) approach to examine the effects of building environmental courts on green economic growth at the prefectural level.
Where Rookies Prevail: Digital Habitus and Age-based Earnings Differentials in Online Legal Services
Posted on Wed, Jun 26, 2024
Yao Yao, University of Ottawa
Sida Liu, The University of Hong Kong
This research investigates how and why the digitalization of work can disrupt age-based earnings stratification in an occupation. Analysing a service archive dataset from a major online legal service platform in China, the study finds that, contrary to the traditional patterns of income inequality, younger lawyers earn more than older lawyers in the digital legal field. By examining habitus and capital in the emerging digital legal field, this research deepens the understanding of the impact of digital technologies on knowledge-intensive occupations.
Data Governance in China’s Digital Market Economy
Posted on Wed, Jun 26, 2024
Sijuade Animashaun, The University of Hong Kong
The article articulates the theories at the background of the fundamental dynamics and platform business models driving the Chinese digital economy. It highlights the challenges and opportunities these data-driven innovators pose to Chinese consumers and financial market efficiency. To these concerns, it provides an overview of the consumer-centric framework in the Personal Information Protection Law and offers critical analysis of the possibilities and drawbacks of the right to data portability in Art 45.
Of Judge Quota and Judicial Autonomy: An Enduring Professionalization Project in China
Posted on Tue, Jun 25, 2024
Ying Sun, Sun Yat-sen University
Hualing Fu, The University of Hong Kong
This article presents the findings of original research on “judge quota” reform. The reform's agenda was essentially aimed at professionalization. A key component of the reform was to reduce the level and the intensity of both political and bureaucratic control over judges in adjudication and to decentralize judicial power to the rank-and-file judges, restoring individualized judging while enhancing judicial accountability. This article critically examines the potential and limits of the judge quota reform in the context of incremental legal reform in a party-state.
Filial Piety across Legal Systems
Posted on Tue, Jun 25, 2024
Alvin Hoi-Chun Hung, Australian National University
This article explores and compares the influence of traditional Chinese legal culture of property on contemporary Chinese societies of Hong Kong, Taiwan, and China, who share the same legal cultural heritage but have developed different legal systems under different socio-political environment. By examining the approaches in which customary property-holding practices have been codified, and the reasoning made by courts in parent-child property disputes, this article unveils the interpretive and adaptive ingenuity in which the three Chinese societies embrace Confucian ethos and traditional Chinese legal culture.
The Good Lawyer: State-Led Professional Socialization in Contemporary China
Posted on Mon, Jun 24, 2024
Rachel Stern, University of California, Berkeley
Lawrence Liu, University of California, Berkeley
How do authoritarian states define and communicate notions of appropriate work conduct and professional excellence? This article examines three channels of communication used by the Chinese state to signal professional expectations to the bar: the bar exam, the administrative rules governing lawyers, and the state-sanctioned National Outstanding Lawyer Award.
Roads and Rules: What Does Infrastructure Reveal about International Law?
Posted on Mon, Jun 24, 2024
Emma Palmer, Griffith University
Infrastructure has been the focus of geopolitically significant regional strategies, including the Belt and Road Initiative and the Asian Highway. Mega-infrastructure projects are thought to offer crucial stimulus to support economic recovery and “infrastructure diplomacy” efforts. This article draws on insights from new materialism to analyse what infrastructure's entanglements might suggest about international law.
China’s Crackdown on Crypto Mining from a Climate Perspective
Posted on Fri, Jun 21, 2024
Kwan Yiu Cheng, City University of London
This article presents an examination of the unified efforts by China’s central authorities and the judiciary in the crackdown on crypto mining within the country. It discusses the environmental ramifications of crypto mining and traces its development in China, highlighting the resource-intensive nature of the process. Crypto mining risks China’s national objectives of promoting high-quality economic and social development, as well as industrial optimisation, energy conservation and emissions reduction.
The Political Limits of China’s Anti-Corruption Reform
Posted on Fri, Jun 21, 2024
Junyang Wang, Shandong University
In 2016, China undertook a new reform to ‘crush’ corruption by creating a sole and unified state-ranked Supervision Commission (SC). This reform incorporated the anti-corruption bureau of procuratorate into the SC, merging it with the upgraded Supervision Department of the government and the Discipline Inspection Commission (DIC) system of the CCP to address the weakness in the anti-corruption apparatus. However, the reform has failed to free the anti-corruption apparatus from the direct influence of the local leaders it is supposed to supervise.
Home Versus Abroad: China’s Differing Sovereignty Concepts in the South China Sea and the Arctic
Posted on Thu, Jun 20, 2024
Liselotte Odgaard, Hudson Institute
The article contrasts China’s interpretations of sovereignty within its so-called motherland in the South China Sea and far from China’s shores in the Arctic. The PRC has maintained a pre-modern definition of Chinese boundaries in the South China Sea as territorial and ocean frontiers with blurred boundaries to other political authorities. By contrast, far from China’s shores in the Arctic, where China is not the political centre, the PRC seeks to globalise the region, depicting it as a frontier with blurred boundaries of political authority.
Coordinate Rule of Law Efforts in Both Domestic and Foreign-Related Matters
Posted on Thu, Jun 20, 2024
Huang Jin, China University of Political Science and Law
Presently, the focus should be on fostering the development of foreign-related rule of law, maintaining the correct equilibrium between the dyad of rule of law in domestic and foreign-related matters. It is imperative to augment strategic design and institutional construction in the realm of rule of law on issues related to foreign parties, step up research on and practical application of international law, and reinforce the cultivation of legal professionals in this area.
Standard-Essential Patent Legal Protection in China’s Telecommunication Industry
Posted on Wed, Jun 19, 2024
Xiaoming Li, Xi’an Jiaotong University
Zi Cheng, Beijing TA Law Firm
Meixin Du, Xi’an Jiaotong University
Standard-essential patents (SEPs) are specific types of patents that protect the technology incorporated in a standard. China has one of the world’s largest telecommunication markets, and its legal policies and practices regarding SEP protection profoundly influence the competitive environment of the Chinese telecommunication market, international economic and trade cooperation, and global telecommunication technology innovation.
Posted on Wed, Jun 19, 2024
Yu Mou, University of London
Fundraising fraud is one of the most serious and complicated financial crimes in China. It has an intertwined relationship with a regulatory offence, known as illegally taking in deposits from the general public (ITIDFGP). In judicial practice, ITIDFGP works as the downgraded form of fundraising fraud. This article explores why fundraising fraud is identified as financial fraud whereas ITIDFGP is a regulatory offence.
Evolution of Intangible Property to Crypto-Assets
Posted on Tue, Jun 18, 2024
Alvin Hoi-Chun Hung, Australian National University
The emergence of crypto-assets posed significant challenges to property law across various legal systems. The integration of these intangible assets into property law frameworks proves complicated for many civil law jurisdictions, which tend to adhere to dogmatic approaches. In contrast, Anglo-American common law and Chinese civil law systems, despite their divergent origins, have exhibited legally pragmatic responses to intangible property, including crypto-assets.
Leveraging E-commerce Platforms to Improve Court Enforcement
Posted on Tue, Jun 18, 2024
Guangyu Cao, Peking University
Hai Ding, Peking University
Li-An Zhou, Peking University
Judicial auctions of assets are critical for enforcing court judgments but typically suffer from low success rates. Leveraging China's recent initiative to utilize E-commerce platforms for judicial auctions, this paper investigates the impact of digital technologies on auction outcomes and the functioning of judicial branches.
Embedded Supervision: China’s Prosecutorial Public Interest Litigation against Government
Posted on Mon, Jun 17, 2024
Yueduan Wang, Peking University
A commonly held view maintains that diminished autonomy substantially weakens the capacity of legal institutions to challenge state entities, particularly in authoritarian contexts. This study offers an alternative perspective through an empirical analysis of China’s recent implementation of prosecutor-led public interest litigation against state agencies. It suggests that integration within an authoritarian framework might, at least temporarily, enhance the leverage of justice institutions over state entities that violate laws. Nonetheless, this political integration concurrently constrains the capacity for such legal initiatives to challenge the discretionary power of upper-tier or more powerful agencies.
China and the Non-weaponization of Outer Space
Posted on Mon, Jun 17, 2024
Matthias Vanhullebusch, Hasselt University
This chapter examines China’s differential approach vis-à-vis developing and developed countries in advancing its normative agenda on non-weaponization in outer space before the Conference on Disarmament and the UN General Assembly. China has gained the majority support of developing countries for its agenda – increasing its international legitimacy in their eyes. Conversely, China has yet to gain the trust of technologically advanced nations in order to give its future regulatory framework governing peaceful relationships in outer space its much-needed normativity.
How Credible are China’s Foreign Policy Signals? IR Theory and the Debate about China's Intentions
Posted on Fri, Jun 14, 2024
Brandon Yoder, University of Virginia
Scholars and policymakers currently lack systematic criteria for determining the credibility of China's foreign policy signals, which has produced widely divergent conclusions about its likely intentions. Drawing on theoretical scholarship on signaling and credibility in IR, this paper introduces general deductive criteria for assigning credibility to a rising state's foreign policy signals. It then applies these criteria to evaluate the specific Chinese signals that optimists and pessimists have cited in support of their respective positions.
Posted on Fri, Jun 14, 2024
Mohamad Zreik, Sun Yat-sen University
This research focuses on China, exploring the relationship between competition law and sustainable development within the context of rapid economic growth. It specifically examines how China's competition law and policies interact with selected SDGs. The study employs a qualitative approach, incorporating a systematic review of literature, legislative actions, and empirical data. The study also examines how competition laws can contribute to societal objectives beyond economic growth.
Historicizing Internet Regulation in China: A Meta-analysis of Chinese Internet Policies (1994-2017)
Posted on Thu, Jun 13, 2024
Min Jiang, University of North Carolina
Weishan Miao, Chinese Academy of Social Sciences
The authors created the first comprehensive database of national-level Chinese Internet laws and policies between 1994 and 2017 and conducted a meta-analysis of 358 policy documents using content analysis and social network analysis. This study contributes to debates on three core issues in Internet governance from a Chinese perspective: Who (should) regulate the Internet? What issues (should) fall under regulatory oversight? And how should the Internet be regulated via what mechanisms?
Regulation of Digital Platforms and the State's Use of Platform Technologies in China
Posted on Thu, Jun 13, 2024
Jens Prufer, Tilburg University
Inge Graef, Tilburg University
Doh-Shin Jeon, Toulouse School of Economics
This report takes stock of China's current state of digital platform markets and regulation of platform technologies (AI and data analytics). It also offers a view on the current use of platform technologies by the Chinese government and the CCP, including Social Credit Systems and the surveillance state. Based on these insights, the authors identify key challenges for EU policymakers and formulate crucial questions for future research.
Selected Chinese Cases on the UN Sales Convention (CISG) Vol. 3
Posted on Wed, Jun 12, 2024
Peng Guo, Swinburne University of Technology
Haicong Zuo, University of International Business and Economics
Shu Zhang, Deakin University
This book series intends to provide a comprehensive and systemic analysis of Chinese cases on the CISG to show international legal scholars and practitioners not only the judicial interpretation and application of the CISG in China but also the scholastic understandings of and approaches to it. Another aim of the series is to identify whether there is a special Chinese approach to the interpretation and application of the CISG.
A Right to an Explanation of Algorithmic Decision-Making in China
Posted on Wed, Jun 12, 2024
Hong Wu, NingboTech University
This article is the first to critically analyze China's unique legislative approach on the right to explanation, which distinguishes between the public and private law scenarios. It argues that the differences in objects and goals between public and private law jurisprudence make it impossible to design a right to explanation that is uniformly applicable.
Posted on Tue, Jun 11, 2024
Matthew S. Erie, University of Oxford
Ching-Fu Lin, National Tsing Hua University
What happens when Western law is no longer the default referent for legal modernity? This is a deceptively simple question, but its implications are potentially significant for such fields as comparative law, law and development, and international law. “Inter-Asian Law” (IAL) points to an emerging field of comparative law that explores the legal interactions—historical and contemporary—between and among Asian jurisdictions.
Is Antitrust Enforcement Effective in China? Evidence from SAMR v. Alibaba
Posted on Tue, Jun 11, 2024
Kenneth Khoo, National University of Singapore
Sinchit Lai, City University of Hong Kong
Tian Chuyue, National University of Singapore
This article explores the effectiveness of antitrust enforcement in China by examining the landmark decision of SAMR v. Alibaba (2021) through an event study methodology. The results suggest that antitrust enforcement in China may rely more on non-pecuniary sanctions than financial penalties, challenging the notion that there is under-enforcement in this area.
Campaign-style Law Enforcement in China: Causes and Consequences
Posted on Mon, Jun 10, 2024
Jingyi Wang, Chinese University of Hong Kong
Peng Wang, The University of Hong Kong
This article aims to address two primary research questions: first, why does the Chinese government consistently favour campaign-style law enforcement, and second, what are the consequences of this law enforcement approach for China’s criminal justice system? This article offers both top-down and bottom-up explanations regarding the government's persistent employment of campaign-style law enforcement to tackle serious and organised crime, and illustrates its implications on the criminal justice system.
Reframing International Law: The China Strategy?
Posted on Mon, Jun 10, 2024
Karen J. Alter, Northwestern University
This essay engages international relations (IR), legal sociology, and transnational legal order theory (TLO) to examine what it would take for China to reframe international law (IL). Alter argues that only constructivist change can accomplish the larger goal of a redefinition of IL as the West knows it. The analysis of China's efforts, and what it would take for them to succeed, implicitly identifies the role of scholars in aiding or resisting such efforts.
Posted on Fri, Jun 7, 2024
Angela Huyue Zhang, The University of Hong Kong
S. Alex Yang, London Business School
OpenAI's newest artificial-intelligence tool, GPT-4o, leverages a large and growing user base – drawn in by the promise that the service is free – to crowdsource massive amounts of multimodal data and use it to train its AI model. But much of the data is not owned by its users, and copyright holders will have little recourse.
The Chinese Conception of Cybersecurity
Posted on Fri, Jun 7, 2024
Rogier Creemers, Leiden University
How does the Chinese government define cybersecurity? The Chinese conception of this term is different from the Western one, and is embedded within the country’s distinctive political, economic and technological context. Drawing on Chinese government documents, this paper will trace the evolution of how successive generations of Chinese leaders have identified digital security concerns, and how they have deployed institutional, regulatory and policy tools to respond to them.
The State of AI Safety in China Spring 2024 Report
Posted on Thu, Jun 6, 2024
Concordia AI
This Report explains developments of AI safety in China over the past 6 months across 6 domains: technical safety research, international governance, domestic governance, lab and industry governance, expert views on AI risks, and public opinion on AI.
Chinese Legality: Ideology, Law, and Institutions
Posted on Thu, Jun 6, 2024
Shiping Hua, University of Louisville
This book discusses how Chinese legality in the Xi era is defined from a theoretical, ideological, historical, and cultural point of view. It examines how legality is reflected and embodied in laws and constitutions, and how legality is realized through institutions, with particular focus on how the CCP interacts with the legislature, the judiciary, the procuratorate, and the police.
Posted on Wed, Jun 5, 2024
Mingyan Nie, Nanjing University of Aeronautics and Astronautics
Yuan Shen, Luther Rechtsanwaltsgesellschaft mbH
The authors first outline the recent development of China’s autonomous vehicles (AVs) industry and policies released by relevant government agencies to promote its growth. The central and local government rules about AVs road testing and demonstration application are analyzed thereafter. The commercialization of AVs is still in its infancy in China, and a comprehensive legal framework has not yet been formulated. Lastly, the authors discuss the attribution of liability induced by AVs of different levels under China’s existing laws and regulations.
China's Response to US Calls for Decoupling: The Foreign Investment Law of 2020
Posted on Wed, Jun 5, 2024
Daniel Chow, Ohio State University
US calls for decoupling from China by repatriating US business operations in China to the US and eschewing new investments in China have been met by China with a powerful response: the 2020 Foreign Investment Law (FIL). While China still has a restrictive investment climate by US standards, the FIL represents a significant improvement of the investment climate and is a signal of China’s willingness to consider additional reforms. The FIL might create incentives for some US companies to ignore calls to decouple and to continue to establish new business operations in China.
Contemporary Export Control Law of China
Posted on Tue, Jun 4, 2024
Deming Zhao, Global Law Office
Export Control Law in China has been born with the notion of protection of national security and interest as well as non-proliferation of weapons of mass destruction and their carrying vehicles, along with the process of China’s confronting the abuses against the nation by relevant countries, the US in particular. Understandably ECL has a defensive or countering posture. At the same time, ECL reflects the persistent position of China to maintain the multilateral non-proliferation mechanism and exhibits the basic attitude of China as a responsible big nuclear State committed to international obligations.
China and the Investment Treaty Regime: Rule Taker or Rule Maker?
Posted on Tue, Jun 4, 2024
Sheng Zhang, Xi’an Jiaotong University
Since its first bilateral investment treaty (BIT) with Sweden in 1982, China has signed BITs with more than 130 countries. Indeed, China’s practice in international investment law is also a microcosm of China's participation in general international law. When signing BITs, China mainly follows the template or style as set by western countries. Yet with the development of China’s economic growth, China is more willing to establish its own approach toward the investment treaties.
Contracts, Inequality and the State: Contract Law Ultra-heterodoxy in China
Posted on Mon, Jun 3, 2024
Weitseng Chen, National University of Singapore
This paper examines the role of contract law in tackling inequality unveiled by the COVID-19 pandemic, with a focus on China, where courts seem to have made the most drastic moves. Whether contract law has any role to play in addressing economic inequality is the focal point of a long-lasting debate among contract law scholars. The author finds that neither orthodox nor heterodox approaches can explain Chinese courts’ drastic approach to dealing with inequality. Chinese courts have gone further to espouse what the author terms “ultra-heterodoxy” to denote the greater latitude they enjoy in deciding cases that impact inequality.
Intellectual Property Rights Protection and Firm Innovation
Posted on Mon, Jun 3, 2024
Bochuan Dai, Central South University
Zichao Ma, Tsinghua University
Tao Shen, Tsinghua University
The authors examine the impact of intellectual property rights (IPR) protection on local private firm innovation. This paper highlights the importance of proximity and accessibility to local patent dispute jurisdiction for promoting private firm innovation in China.
The Court as a Policy Information Discoverer: Evidence from China’s Emerging Industries
Posted on Fri, May 31, 2024
Tianhao Chen, Tsinghua University
Wei Xu, Tsinghua University
Jing Zhao, Tsinghua University
This paper delves into the pivotal role that courts play in shaping public policy, particularly in the context of burgeoning industries. It shifts the focus from Constitutional and Supreme Courts to the significant, yet often unnoticed, role of local courts. It proposes that these local courts are uniquely positioned to act as discoverers of vital information for public policy, especially critical in the fast-paced arena of emerging industries where policymakers often lack comprehensive information.
How Should Modern Corporate Law Respond to Technological Challenges?
Posted on Fri, May 31, 2024
Chen Wang, University of California, Berkeley
Xu Ke, Renmin University of China
This article explores the potential interplay between cutting-edge technologies, such as distributed ledger technology and artificial intelligence, and corporate law. It examines whether these advancements necessitate a fundamental restructuring of core corporate law doctrines. The article then delves into specific aspects of corporate law, with a comparative analysis of Chinese and US corporate and securities laws and regulations. The article proposes innovative approaches to developing the future corporate law.
Talk: Tackling Cyberbullying – China’s Law and Policy Initiatives in Recent Years (Jun 20 2024)
Posted on Thu, May 30, 2024
Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong
Cyberbullying has long been a common phenomenon in China. These online abuses have not been specifically addressed by the government. Most victims of cyberbullying can only resort to bringing civil lawsuits. But legal remedies are meagre and cannot stop further incidents. Things took a sudden turn in the past couple of years after several tragedies. The authorities were under new pressure to act. Policy documents and a draft legislation addressing cyberbullying were announced. This talk will examine several high-profile cyberbullying cases in China, the trend of cyberbullying over the years, and whether the new regulatory and legal measures can be effective.
Date & Time: June 20, 2024 (Thu), 13:00-14:00
Venue: Room 723, 7/F Cheng Yu Tung Tower, HKU
Judicial Reform and Privatization of State-owned Enterprises
Posted on Thu, May 30, 2024
James Si Zeng, Chinese University of Hong Kong
Given the widely held belief that state-owned enterprises (SOEs) are inefficient, scholars have long been interested in the determinants of privatization. However, current studies have largely focused on political, political economy, or economic determinants for privatization. This article examines whether judicial independence affects the extent of privatization by utilizing a reform that has been gradually implemented in China since 2014, which removes local governments’ authority over the financial and personnel decisions of local courts, resulting in a significant enhancement of the independence of these courts.
Posted on Wed, May 29, 2024
Peter Chan, City University of Hong Kong
Wanqiang Wu, Shanghai Jiao Tong University
China’s Supreme People’s Procuratorate has shifted its traditional case quality assessment model of “Line Appraisal” to a new system with the “Case-Process Ratio” as the pivotal metric in 2020. This article analyses the latest case quality assessment system and the changing role of China’s prosecutors based on two appraisal documents from the SPP regarding the “Case-Process Ratio” reform and two provincial performance evaluation documents.
Oriental Despotism Inside Out: On the Global Travels of Montesquieu’s De l’esprit des lois
Posted on Wed, May 29, 2024
Teemu Ruskola, University of Pennsylvania
This speculative essay analyzes Montesquieu’s comparative method in his De l’esprit des lois (1748) and its contemporary legacies. It takes as its focus his theory of Oriental despotism. The author discusses Montesquieu’s use of China as a paradigmatic instance of Oriental despotism. However, Montesquieu himself is forced to admit that in several key respects China does not fit the category it supposedly exemplifies. The author concludes by examining the geopolitical implications of Montesquieu’s analysis with respect to the discourse of Chinese authoritarianism today.
The Chinese Balloon Incident and Partisanism in International Law
Posted on Tue, May 28, 2024
Samuli Seppänen, Chinese University of Hong Kong
This Article discusses the implications of the February 2023 Chinese balloon incident for understanding Chinese foreign policy elites’ approaches to international law. It argues that the Chinese balloon incident fits the perception of a globally ambitious and activist China. At the same time, the ethically ambiguous context of foreign surveillance flights problematizes the stark dichotomies between authoritarian and liberal approaches to international law.
Systemic Convictions: China’s Fundraising Crimes and its Financial System
Posted on Tue, May 28, 2024
Daniel Sprick, University of Cologne
Fundraising crimes are legion in China. The unclear demarcation of these crimes produces legal uncertainty that has its root cause not only in vague provisions of the Criminal Law or broad legal interpretations of the judiciary, but also in the systemic function of these crimes. This paper argues that normative analyses about legal (un)certainty and regulatory necessities in the field of illegal fundraising in China need to be widened and additionally include a perspective of political expediency.
China's Foreign State Immunity Law: A View from the United States
Posted on Mon, May 27, 2024
William S. Dodge, University of California, Davis
On September 1, 2023, the Standing Committee of the National People's Congress promulgated the Foreign State Immunity Law (FSIL) of the People's Republic of China, which adopts the restrictive theory of foreign state immunity. This article has two goals. First, the article introduces China's FSIL to English language readers by explaining its provisions in some detail. Second, the article provides a U.S. perspective on the FSIL by comparing it to the U.S. Foreign Sovereign Immunities Act (FSIA) and discussing the U.S. experience with foreign state immunity.
Transparency and Authoritarian Rule of Law: Mixed Effects of Open Government Information in China
Posted on Mon, May 27, 2024
Handi Li, Princeton Institute for International and Regional Studies
Many authoritarian countries have adopted transparency laws in the 21st century. Do such initiatives actually monitor government behavior and protect citizens’ rights in these countries? Existing literature indicates that authoritarian leaders monitor and regulate their agents through institutional challenges from citizens. This study examines whether central transparency mandates can mobilize these challenges and how successful the challenges can be. The author analyzes two original datasets in China using a difference-in-differences design based on a transparency pilot program.
Application of Forum Non Conveniens in Chinese Court
Posted on Fri, May 24, 2024
Jianli Song, Supreme Court of the PRC
Bing Cheng, King & Wood Mallesons
The doctrine of forum non conveniens generally refers to a system in which a competent domestic court finds that the trial of the case is more convenient and fair by another foreign court with jurisdiction after accepting the case, and thereby refuses to exercise jurisdiction or conditionally suspends its own jurisdiction.
Justice and Law at the (1980) Chinese Movies
Posted on Fri, May 24, 2024
Alison W. Conner, University of Hawaii
This essay analyzes two of the most famous examples of Chinese “scar cinema,” movies that depicted the harsh realities of the political and cultural campaigns of the Cultural Revolution and the terrible suffering they caused. Though very different in story and style, Xie Jin's Legend of Tianyun Mountain and Wu Yonggang’s Evening Rain constitute works which, in addition to their individual stylistic achievements, feature ideas of justice and even of law that remain relevant to China today.
Situating Chinese Engagement in Internet Governance
Posted on Thu, May 23, 2024
Riccardo Nanni, Fondazione Bruno Kessler
This chapter provides a short overview of China’s domestic digital ecosystem, which is necessary to gauge its complexity and discard simplistic views depicting China, its government, and its companies as a monolithic whole controlled by the Communist Party. Through literature and the first-hand analysis of legal and policy documents, three historical phases are identified and addressed in the development of China’s domestic digital policies. This chapter provides the domestic historical background to better interpret Chinese stakeholders’ engagement with global Internet governance.
Sorting Citizens: Governing via China's Social Credit System
Posted on Thu, May 23, 2024
Rui Hou, University of Toronto
Diana Fu, University of Toronto
China's social credit system can be examined as a governance tool which sorts citizenship behaviors into trustworthy and untrustworthy categories as part of the regime's long-standing effort to cultivate a loyal citizenry. Based on a data set comprised of central-level official documents, national model citizen lists, and media reports, this study qualitatively examines how the Chinese state constructs “good” and “bad” citizen ideal types.
Call for Papers: 2024 CIBEL Global Network Conference and Young Scholars Workshop (Nov 20-21, 2024)
Posted on Wed, May 22, 2024
China International Business and Economic Law (CIBEL) Centre, University of New South Wales
This year’s theme will be on Restoring Global Supply Chains: From Regulatory Divergence to Connectivity and Coherence. Bringing together researchers, policymakers, and businesses, our event aims to discuss policies and regulatory frameworks developed by governments domestically and internationally, the interaction between regulatory actions and business strategies, the challenges associated with regulatory divergence, the impact on global supply chains, and steps that have been or can be taken to pursue regulatory connectivity and coherence including through bilateral, regional and international cooperation. [Due date for proposal submission: Jul 22, 2024]
Connotation and Characteristics of Chinese Rule of Law Path
Posted on Wed, May 22, 2024
Xiaobo Dong, Nanjing Normal University
Jie Guo, Nanjing Normal University
Chinese rule of law path embodies profound historical connotations, reflects the distinct socialist nature, mirrors the objective laws of the process of rule of law modernization, and verifies the inherent character of the development of the rule of law. Since the establishment of the People’s Republic of China, especially in the more than 40 years of reform and opening up, the arduous practice of exploring a new path to the modernization of the rule of law with Chinese characteristics has historically formed the overall characteristics of the Chinese rule of law path.
The Unintended Consequence of Environmental Regulation
Posted on Fri, May 17, 2024
Hao Gao et al., Tsinghua University
This paper aims to reveal whether implementing stricter environmental regulation will generate unintended effect on corporate decision. Employing the enforcement of China’s New Environmental Protection Law as an exogenous shock, our results show that firms belonging to polluting industries manipulate discretionary accruals upward to smooth the heightened compliance costs. Furthermore, corporate earnings management induced by environmental regulation compromise firms’ future growth without improving corporate environmental performance.
Cross-Border Data Flow in China: Shifting from Restriction to Relaxation?
Posted on Fri, May 17, 2024
Shuai Guo, China University of Political Science and Law
Xiang Li, 21st Century of China Research Center
In recent years, contrary to the general international perception that China imposes strict restrictions especially due to national security concerns, China is de facto relaxing its regulation on cross-border data flow especially for digital trade. This article suggests three underlying incentives. It further submits that this paradigm shift would has two main implications: first, due to economic reasons, the international trend of freeing cross-border data flow would be joined by China and others. Second, a catalogue-based security review would be interesting for all countries that intend to balance free flow of information vis-à-vis national security.
Book: The Role of Law in China’s Economic Development, 1978–2011
Posted on Thu, May 16, 2024
Jia Hu, Goethe University Frankfurt
This book concerns how China's legal institutions promoted its economic growth and demonstrates that the law has played different roles at various stages of China's economic transformation, a signal of legal paradigm shifts in reaction to the changing political and economic pursuits.
China-made National Security Law Applied in Hong Kong’s Common Law Courts
Posted on Thu, May 16, 2024
Guobin Zhu, City University of Hong Kong
Shiling Xiao, City University of Hong Kong
The Chinese legislature enacted the National Security Law on 30 June 2020 to be applied in Hong Kong. This article compares the texts between the NSL and relevant Chinese Mainland law and identifies four ways in which the Chinese legislative provisions and legal elements have been incorporated into the NSL. This suggests that completely disregarding Chinese laws in Hong Kong judicial proceedings may not be feasible and advisable in some cases for interpreting and applying this specific made-in-China law.
Posted on Wed, May 15, 2024
Morgana Mo Zhou and others, City University of Hong Kong
The PIPL was implemented in November 2021. However, the impact and existing shortcomings of the PIPL remain unclear, carrying significant implications for policymakers. This study examined privacy policies on 13 online platforms before and after the PIPL. Concurrently, it conducted semi-structured interviews with 30 Chinese Internet users to assess their perceptions of the PIPL. Users were also given tasks to identify non-compliance within the platforms, assessing their ability to address related privacy concerns effectively.
Olson in China: Regional Chamber of Commerce, Political Brokers, and Firm Subsidies
Posted on Wed, May 15, 2024
Zeren Li, National University of Singapore
Shenghua Lu, Zhejiang University
Selective incentives are a crucial mechanism for preventing the free-rider problem in Olson’s theory of collective action. This study analyzes the selective incentives offered by business interest groups in China. The authors demonstrate that the selective benefits provided by business associations include access to political leaders. These associations act as brokers, connecting member firms with powerful officials who offer particularistic benefits.
Rights in China: Myths, Abuses, and Politics
Posted on Tue, May 14, 2024
Sida Liu, The University of Hong Kong
Sitao Li, University of Toronto
This article presents a sociological perspective on understanding rights in China, examining the interplay between multiple myths of rights, rights abuses, and the politics of rights within various social and physical spaces. It highlights competing myths of rights held by the state, ordinary citizens, rights activists, and legal professionals. The article examines how rights abuses contribute to rights consciousness and mobilization across different human rights domains in a particular political context. By analyzing the politics of rights in interconnected spaces, it emphasizes the importance of continuous engagement between domestic and overseas actors in shaping China’s human rights future.
Highlights: Will the EU's AI Act Have a 'Brussels Effect' on China?
Posted on Tue, May 14, 2024
Philip K. H. Wong Centre for Chinese Law, The University of Hong Kong
On April 26, 2024, the second session of our “Generative AI Governance Summit Dialogue” series was successfully held, which centered on the EU AI Act and China’s AI legislative initiatives. The event was conducted as a Zoom roundtable and livestreamed on four popular platforms: PKULaw, XiaoeTech, Bilibili, and WeChat, attracting nearly 6000 online viewers. The lively atmosphere and engaging discussion were highly appreciated and praised by the audience. We offer a synopsis of the dialogue to encourage further discussions on AI governance in the future.
Posted on Mon, May 13, 2024
Qisong He, East China University of Political Science and Law
China has attempted to build a law-based order in the emerging strategic space competition that is distinct from the US rules-based order. This article examines China’s law-based order and compares it with the US rules-based order. The article also explores how China has competed with the US in the reconstruction of the order in space and the consequences of this competition.
Talk: China's Path to Establishing Rule of Law (May 28, 2024)
Posted on Mon, May 13, 2024
Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong
This lecture will review and summarize the pivotal moments and distinctive features of China’s legal development history. Professor Jianyong Li will highlight the accomplishments made by mainland China in its pursuit of the rule of law. Additionally, he will discuss the prevalent issues and shortcomings, and offer valuable insights into the future prospects of the rule of law in China.
Date & Time: May 28, 2024 (Tuesday) 12:00 – 14:05
Venue: Room 723, 7/F, Cheng Yu Tung Tower, HKU (Live via Zoom)
Online Trials in China: Legal and Institutional Approaches During Different Stages of the Pandemic
Posted on Fri, May 10, 2024
Chi Zhang, Peking University
Zhewei Liu, Peking University
China has set off a wave of legal and institutional approaches to meet the need of access to justice and rule of law in cyberspace. Online trials and Internet courts as the approaches have not been developed so rapidly until the outbreak of COVID-19. This article will divide the development of online trials in China into three stages and discuss their functions and orientations during different times of the pandemic.
Fairness in Chinese Contract Law: A Borrowed Mistake
Posted on Fri, May 10, 2024
Hao Jiang, Tulane University
James Gordley, Tulane University
Chinese law on contractual fairness has recently been modified to resemble that of the US and Europe. For a contract to be invalid, there must be both substantive and procedural unfairness. Substantive unfairness contradicts the will theories which were concerned only with what the parties willed and not with what is fair. Requiring procedural unfairness is an attempt to salvage an element of these theories by suggesting that the reason for giving relief is some defect in the will such as a failure in the bargaining process. It fails to account for what is really at stake. The result is an incoherence in doctrine which China imported from the West. Chinese law would have been better off on its own.
China's Path to Establishing Rule of Law
Posted on Thu, May 9, 2024
Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong
Professor Jianyong Li will highlight the accomplishments made by mainland China in its pursuit of the rule of law, starting with the reform and opening up and with special focus on the progress made since 1997. Additionally, he will discuss the prevalent issues and shortcomings, and offer valuable insights into the future prospects of the rule of law in China.
Date & Time: May 28, 2024 (Tuesday) 12:00 – 14:05
Venue: Room 723, 7/F, Cheng Yu Tung Tower, HKU (Live via Zoom)
China’s Legal Efforts to Facilitate Cross-border Data Transfers: A Comprehensive Reality Check
Posted on Thu, May 9, 2024
Fengan Jiang, China University of Political Science and Law
In the past, the Chinese government mainly focused on the issue of national security and thus created a security assessment mechanism for cross-border data flows (CBDFs) with broad coverage. It is about time for China to reconsider its data governance regime based on a balanced approach. Various initiatives to facilitate CBDF have thus been started in so-called pilot free trade zones (FTZs) and special administrative regions (SARs). The good practice in FTZs would help formulate nationwide rules.
Posted on Wed, May 8, 2024
Jyh-An Lee, Chinese University of Hong Kong
Peng Zhou, Chinese University of Hong Kong
This chapter introduces China’s legal framework regulating facial recognition technology (FRT) and analyzes the underlying problems. Although current laws and regulations have restricted the deployment of FRT under some circumstances, these restrictions may function poorly when the technology is installed by the government or deployed for the purpose of protecting public security. Based on case studies and evaluation of relevant rules, this chapter explains why China has developed this distinctive asymmetric regulatory model towards FRT specifically and personal data generally.
Posted on Wed, May 8, 2024
Guan Zheng, Zhejiang University
Jinchun Shu, Zhejiang University
This article provides a critical analysis of the China's legal framework of children's personal information protection in the digital era. It demonstrates that Chinese lawmakers adopt a dual-protection paradigm consisting of data privacy law and family law to protect children’s personal information. This results in severe restrictions on children's freedom of expression and access to information, along with their evolving capacities, while depriving parents of the right to the custody of their children. This article argues that different legal frameworks should be adopted for different age groups of children to protect the best interest of the child.
Posted on Tue, May 7, 2024
Sui To Godfrey Ng, University College London
This paper aims to explore the possibilities of future cooperation on mutual recognition and enforcement of money judgments between China and the US by comparing relevant legal systems, case law, and commentaries. Evidence suggests that there will generally be little pushback for Chinese courts to find theoretical reciprocity and subsequently recognize and enforce US judgments. Harmonization between the two legal systems has been the trend and remains the most feasible and appropriate approach to facilitate the recognition and enforcing of money judgments among the two countries in the foreseeable future.
Posted on Tue, May 7, 2024
Xinyu Huang, Yale University
This paper provides a detailed exploration of the sale of offices in China and France in the 17th and 18th centuries. In France, the sale of offices became deeply integrated into the officialdom, effectively serving as a formal institution. However, this practice led to public dissatisfaction due to concerns about the fairness of the judicial system. Conversely, in China, the sale of offices was considered an ad hoc, informal, and pragmatic solution to financial emergencies. The sale of offices, in a different context, was seen as having both positive and negative aspects, with its impact varying, depending on the specific function it served.
Land Reform and Illegal Adoption of Children
Posted on Mon, May 6, 2024
Yu Bai, Tohoku University
Yanjun Li, Tohoku University
Masaki Nakabayashi, University of Tokyo
The paper investigates how China's land reform during 1978–1984 derived demand for children beyond the one-child policy's birth quota, leading to increased illegal adoption of abandoned or abducted children, particularly boys. Following the reform, transitioning land rights from collective to individual households granted them decision-making authority and full residual income from the land. This quasi-property rights shock weakened clan influence, which traditionally valued bloodline, catalyzing a societal shift in family concepts.
Posted on Mon, May 6, 2024
Yile Wang, Sichuan University
Yuhan Wang, Sichuan University
Haiyue Liu, Sichuan University
Based on the Fraud Triangle Theory and Legitimacy Theory, this study demonstrates the effectiveness of political supervision in optimizing corporate governance. Focusing on the enhancement of the status and functions of the Commission for Discipline Inspection in Chinese SOEs through supervision system reforms, the authors posit the fundamental hypothesis that state ownership’s monitoring role enhances internal governance. This study fundamentally contributes to the theoretical exploration of institutional factors influencing internal governance within firms.
Establishing Law in Context: An Insider's Perspective
Posted on Fri, May 3, 2024
Francis Snyder, Peking University
The Law in Context Movement was a revolution in legal studies. This blog traces its origins and development from the 1990s till today and outlines various contributions to law teaching and research, such as the International Workshop of Young Scholars (WISH) , the ELJ from 1995 to 2014 and today's journal published by Cambridge University Press, European Law Open.
Authoritarian Legality with Chinese Characteristics
Posted on Fri, May 3, 2024
Kwai Hang Ng, University of California, San Diego
The concept of authoritarianism has risen to prominence in the community of legal scholars studying non-democratic regimes. China’s legality is also described as authoritarian. However, what does it mean to label China as having a system of authoritarian law? The concept of authoritarianism, and by extension, authoritarian legality, is yet underexamined. This article discusses how China, as a single-party state, differs from other authoritarian regimes in developing its own brand of authoritarian legality that the author describes as “legal gradationalism.”
Angela Huyue Zhang on Why Beijing Took On the Tech Giants
Posted on Thu, May 2, 2024
Eliot Chen, The Wire China
Angela Huyue Zhang is the author of High Wire: How China Regulates Big Tech and Governs Its Economy, a highly acclaimed book that absorbs all that happened during China’s 2020–2022 tech crackdown to explain how the government there regulates its tech sector. In this lightly edited Q&A, Angela Huyue Zhang spoke with Eliot Chen about when and why Beijing’s attitude towards China’s big tech darlings changed, how the relationship between regulators and companies has developed in the aftermath of the crackdown, and what all this means for China’s artificial intelligence industry.
Actions and Motives of Interactions between Regulators and Firms in Fintech Policy Making in China
Posted on Thu, May 2, 2024
Yan Xu, Hong Kong Polytechnic University
Zhongren Zhao, Shantou University
Through purposive sampling and snowball sampling, coupled with semi-structured in-depth interviews with key figures from some local regulators and focal firms in the Fintech sector, this study intends to systematically describe the relations between the regulators and firms as mutual engines in policy making in China’s Fintech sector for the first time. The result shows that Co-production of knowledge, Framing of co-benefits, Provision of capacity, Engagement of experts, and Legitimacy of regulatory authority are the five primary motives of interactions between Fintech regulators and firms.
Empowering through Courts: Court Capture and Municipal Financing in China
Posted on Tue, Apr. 30, 2024
Jiayin Hu, Peking University
Wenwei Peng, Harvard University
Yang Su, Chinese University of Hong Kong
This paper shows that alleviating court capture by local governments can inadvertently undermine local governments’ borrowing capacity. By exploiting the staggered roll-out of a judicial organizational reform that aims to alleviate local court capture in China, this paper finds that alleviating court capture can reduce judicial bias favoring local governments. Since the majority of government lawsuits involve contractors and suppliers rather than creditors, creditors are inadvertently disadvantaged, leading to higher government borrowing costs, lower borrowing capacity, and reduced spending. This effect occurs despite the fact that contractors and suppliers respond by offering slightly lower prices ex ante.
Construction of Model Contract Law for Guangdong-Macao Intensive Cooperation Zone in Hengqin
Posted on Tue, Apr. 30, 2024
Man Teng Iong, University of Macau
The Guangdong-Macao Intensive Cooperation Zone in Hengqin has emerged as a pivotal economic hub. This article delves into a comparative study of contract laws between the People’s Republic of China and Macao. Analyzing key facets such as pacta sunt servanda, freedom of contract, principle of equity, contract form, principles of interpretation, and termination of contract, the study identifies nuanced differences. Recognizing the imperative of aligning contract laws for the Intensive Cooperation Zone’s development, the article advocates for a unified legal environment.
Damages Per Share in Securities Litigation: A Comparison of Chinese and US Systems
Posted on Mon, Apr. 29, 2024
Timothy J McKenna, NERA Economic Consulting
In late 2021, the Intermediate People’s Court of Guangzhou awarded damages totaling RMB 2.46 billion to investors in Kangmei Pharmaceutical Co., Ltd. This article compares the methodology used by the Court to compute damages with the methodology typically used in securities litigation in the US. The Court’s method is not centered on what can be directly observed about the impact of the fraud. As such, if the goal is to compensate investors solely for their losses due to the fraud, the method used by the Court is not as accurate as the method used in the US.
Hong Kong Matrimonial Finance Law – Enamoured by Big Banking?
Posted on Mon, Apr. 29, 2024
Alexander Clevewood Ng, University College London
This article critiques the recent Hong Kong District Court decision of Shanghai Commercial Bank v Lee Yau Tak due to its application of an erroneous approach in operating the common intention constructive trust in situations concerning matrimonial finance. It highlights the increasing role of commerciality in similar cases and evaluates whether, despite being overruled by the Hong Kong Court of Appeal, this would have major societal implications.
The Limits of Liberal Justice: On Authoritarianism and Instrumental Theories of Law
Posted on Fri, Apr. 26, 2024
Teemu Ruskola, University of Pennsylvania
This paper uses Sucheng Wang’s book Law as an Instrument as a point of departure for reconsidering the conventional opposition between liberal and authoritarian forms of legality. This opposition is embedded in an even more elemental distinction between different state forms. The author first investigates the historical and geopolitical processes by which modern political theory reduced the political universe into three (then two) species of states. He then turns to the contemporary genealogy of the concept of rule of law. The paper concludes by focusing on the China to evaluate the utility of assessing its legal order in terms of authoritarian legality as well as in terms of democracy more generally.
Competition Law Response to Platform’s Banning Behavior: Rethinking EU and China’s Solution
Posted on Fri, Apr. 26, 2024
Hechen Wang, China University of Political Science and Law
Banning behavior is the most prevalent and potent method for platforms to build up high walls to prevent competitors. A thorough understanding of the implications of banning behavior and an evaluation of its competitive harm are prerequisites for competition law intervention. The EU DMA and China’s competition law exemplify two different legislative strategies to tackle platform banning behaviors, and neither is flawless. Reflecting on these approaches and their potential impacts can provide valuable insights for future competition laws regulating banning behaviors.
Analysis of Legal Framework for Investment in Africa by Chinese Firms and Government
Posted on Thu, Apr. 25, 2024
Nicholas Olwor, Kyambogo University
This study is based on enormous amount of Chinese investments in Uganda, with the objective of considering the legal aspects involved therein. Under international business law, commercial relations are usually ruled according to the law of the country hosting the investment. This study examined the legal regimes of Chinese investments in Uganda and the challenges presented by the Chinese investment in the country given that the systems of business law in Uganda are generally out of date and enforcement mechanisms under Western rule of law standards are often far from reality.
Pandemic Impact and Women's Resilience in China
Posted on Thu, Apr. 25, 2024
Xiaoqian Hu, University of Arizona
Yanliu Tao, Renmin University of China
Qichen Zhang, Renmin University of China
This chapter seeks to draw a macro image on gender and Covid-19 in China through a bricolage of snapshots including academic literature, national surveys, and two sets of in-depth interviews. Compared with men, women in China experienced more economic insecurity, heavier workload in the workplace and at home, and worse personal well-being during the pandemic. The impact fell disproportionately on women with less education, a lower economic status, a rural background, or childrearing obligations.
Toward a Postmetaphysical Approach to the Study of Chinese Law
Posted on Wed, Apr. 24, 2024
Xiaoqian Hu, University of Arizona
In a world where differences between the United States and China are increasingly amplified and weaponized, how can legal scholars study China fairly, insightfully, and constructively? To explore this question, the author contrasts two approaches to studying Chinese law: the “metaphysical approach” and the “postmetaphysical approach.” Although neither approach is wholly practiced or rejected by any real-world scholar, these ideal types help illustrate the different ways of seeing, knowing, and analyzing China.
Casting Gender Light on Authoritarian Legality in China
Posted on Wed, Apr. 24, 2024
Jue Jiang, University of London
This paper provides a rare yet much-needed gender perspective on authoritarian legality in China, drawing upon sentencing and punishment for the crime of rape. Four categories of cases were selected, based on four sexual relationships embodying various power dynamics between the offender and the victim: public official and citizen/sex worker; husband and wife; adult and child; caregiver and dependent. Based on empirical research, the author argues that the criminal justice system in China embodies and reinforces a particular gendered order and “sex hierarchy,” instrumentalized by the state to maintain its authoritarian power.
China’s Pragmatic Approach to International Human Rights Law
Posted on Tue, Apr. 23, 2024
Sida Liu, The University of Hong Kong
Yun Xian, The University of Hong Kong
Sitao Li, University of Toronto
This article argues that China has adopted a pragmatic approach to international human rights law in the early 21st century, characterized by three main features: (1) pragmatic experimentation in the appropriation and modification of human rights norms; (2) selective decoupling of international and domestic human rights rules; and (3) divergent enforcement in the legislative and practical responses to various human rights issue areas. Contrasting the normative approach of the United States, which closely links human rights to democracy and the rule of law, China’s pragmatic approach is defined not only by the prioritization of social and economic rights over civil and political rights, as frequently shown by its critics, but also by the flexible applications of human rights rules in its lawmaking and enforcement. This approach permits significant gaps between “law on the books” and “law in action,” as well as between domestic rules and international law.
Will the EU AI Act Have a “Brussels Effect” on China? (Apr 26 2024)
Posted on Tue, Apr. 23, 2024
Philip K. H. Wong Centre for Chinese Law, The University of Hong Kong
In March 2024, the European Parliament officially adopted the EU AI Act. Concurrently, leading Chinese legal scholars have proposed model AI laws and are actively seeking feedback from policymakers and industry experts across China. In light of these recent developments, the second session of our Generative AI Governance Summit Dialogue series will focus on the EU AI Act and explore whether it will have a “Brussels Effect” on China. Topics will include the scope of AI legislation, management of open-source models, the risk-based regulatory framework, oversight of highly impactful AI systems, and various practical implementation challenges.
Date & Time: April 26, 2024 (Friday), 21:00–22:15 (HKT), 09:00-10:15 (EDT)
Venue: Zoom Webinar (Chinese & English with simultaneous interpretation)
Asian Law Junior Scholars Workshop, August 22-23, 2024
Posted on Mon, Apr. 22, 2024
Yale Law School
Applications due by May 20, 2024
A group of scholars working on Asian Law have come together to organize a rotating workshop for prospective law teaching job market candidates who write in this field. The workshop seeks to aid junior scholars in their initial job searches by offering them an opportunity to present their research (including potential job market papers) on Asian law to peers, conference co-organizers, and invited senior scholars. It will also provide a roundtable conversation on the logistics of the job market, focusing specifically on the unique challenges that Asian law scholars tend to face.
This workshop invites advanced doctoral students, recent JD graduates, and VAPs/fellows who study some aspect of Asian law to apply to present their research at our inaugural workshop at Yale Law School on August 22-23, 2024. This in-person workshop is open exclusively to junior scholars who plan to go on the law teaching market at some point in the next three calendar years (2024-26). Successful applicants will receive funding for travel.
Applicants must submit a curriculum vitae with a list of references, a completed paper of comparable length and substance to usual job talk papers, and a short (200 words) description of their expected job search timeline. Application materials are due by May 20, 2024 by email attachment to asianlawworkshop@gmail.com.
The co-organizers listed below together constitute the selection committee. Applicants will be notified by early June of decision on selection.
Jacques deLisle (UPenn)
Mark Jia (Georgetown)
Ji Li (UC Irvine)
Shitong Qiao (Duke)
Mark Wu (Harvard)
Angela Huyue Zhang (USC, starting from Fall 2024)
Taisu Zhang (Yale, current host)
“Intelligent Justice”: Human-centered Considerations in China’s Legal AI Transformation
Posted on Fri, Apr. 19, 2024
Nyu Wang, Virginia Tech
Michael Yuan Tian, Virginia Tech
In recent years, the Chinese government and its judiciary have made a policy decision to leverage AI in broader judicial reform efforts. The push to use AI to such a large extent in the judiciary is unique to China, influenced by chronic challenges facing the courts, including an exponential increase in casework and a shortage of qualified professionals in the judiciary. This piece briefly summarizes the current landscape of China’s technology-driven judicial reform and highlights a number of key considerations that the authors believe are pivotal to whether China’s investment in AI will succeed in improving the efficiency and legitimacy of the courts.
Bridging Two Worlds: Comparing Classical Political Thought and Statecraft in India and China
Posted on Fri, Apr. 19, 2024
Amitav Acharya, American University
Daniel A. Bell, The University of Hong Kong
Rajeev Bhargava, Parekh Institute of Indian Thought
Xuetong Yan, Tsinghua University
The rise of China and India could be the most important political development of the 21st century. What will the foreign policies of China and India look like in the future? What should they look like? And what can each country learn from the other? Bridging Two Worlds gathers a coterie of experts in the field, analyzing profound political thinkers from these ancient regions whose theories of interstate relations set the terms for the debates today. This volume is the first work of its kind and is essential reading for anyone interested in the growth of China and India and what it means for the rest of the world.
Smart Governance in China’s Political-Legal System
Posted on Thu, Apr. 18, 2024
Straton Papagianneas, Leiden University
The rapid digitization and automation of social governance in China, called “smart governance,” entail new approaches to social and political control, driven by innovations in algorithmic systems, big data analytics, and artificial intelligence. This article seeks to reveal the ideological foundations of the PRC’s push for “smart governance.” Drawing on international scholarship on Chinese Marxism and Leninism, it argues that the positivist organizational and ideological principles of Marxism-Leninism help explain why technology and automation are embraced so enthusiastically by the Chinese party-state.
The US–China Rivalry and the Emergence of State Platform Capitalism
Posted on Thu, Apr. 18, 2024
Steve Rolf, University of Sussex
The rise of digital platforms as a new form of business organization concentrates power in the United States and China. Platform capitalism further intersects with and reinforces pre-existing trends towards state capitalism, where states more actively direct economies in response to economic turbulence and heightened geopolitical tension. The concentration of global business power within two states, combined with the increasing capacity for these states to leverage and direct platform activities for their own geopolitical–economic ends, has catalyzed the rise of “state platform capitalism.”
Venture Capital Research in China: Data and Institutional Details
Posted on Wed, Apr. 17, 2024
Jun Chen, Renmin University of China
China has already become the second largest venture capital market in the world after the US. Despite the remarkable growth of both China’s tech sector and venture capital market, academic research in this area remains sparse. Two broad issues hinder the efforts of researchers studying this market: choosing the right data sources and understanding evolving institutional details. To address these two issues, the author first describes available data sources, accompanied with filters aimed at improving the quality of the data. He then reviews institutional details unique to the Chinese setting and recent regulatory changes that have direct impacts on the Chinese venture capital market
Regulating Donation-based Crowdfunding Platforms in Hong Kong: A Trust Law Framework
Posted on Wed, Apr. 17, 2024
Hui Jing, The University of Hong Kong
Recent media coverage highlighting scandals of maladministration of donation funds in the context of informal public donation appeals has impelled regulators to establish a systemic framework to govern crowdfunding platforms that host informal public donation appeals in Hong Kong. This article addresses two main aspects of this topic. First, it discusses the operation of crowdfunding platforms that host informal public donation appeals and the risks associated with them. Second, it explores the feasibility of utilising trust law to regulate the administration of donation funds by these crowdfunding platforms.
Law and Industrial Policy: the East Asian Experience
Posted on Tue, Apr. 16, 2024
James Si Zeng, Chinese University of Hong Kong
According to the conventional wisdom of law and development, the role of law in economic development is primarily passive, focusing on property protection and contract enforcement. However, East Asian economies have defied this conventional approach by achieving remarkable growth through the strategic implementation of industrial policies. Building on the experiences of East Asian economies, particularly China, this article argues that law can serve as an instrument for implementing industrial policy objectives. Consequently, industrial policy introduces a hierarchical dimension to the law. By comprehending the interplay between industrial policy and law, we can gain fresh perspectives on how the law impacts economic development.
Book Review: A Certain Justice: Toward an Ecology of the Chinese Legal Imagination
Posted on Tue, Apr. 16, 2024
Teemu Ruskola, University of Pennsylvania
While there is already much excellent work in the genre of Chinese Law and Literature, Haiyan Lee’s A Certain Justice: Toward an Ecology of the Chinese Legal Imagination (University of Chicago Press 2023) sets a new standard for the field. This is a review Lee’s smart and ambitious book, which far exceeds the bounds of both law and literature, expanding into adjacent fields of legal and literary humanities: history, political theory, moral philosophy, and cognitive psychology, to name just some of the many literatures on which Lee draws. The book is filled with exciting local and global insights, some of which are dazzling.
Revolutionizing the Family: Politics, Love, and Divorce in Urban and Rural China, 1949–1968
Posted on Mon, Apr. 15, 2024
Neil J. Diamant, Dickinson College
In 1950, China enacted a Marriage Law to allow free choice in marriage and easier access to divorce. In this comprehensive study of the effects of that law, Neil J. Diamant draws on newly opened urban and rural archival sources to offer a detailed analysis of how the law was interpreted and implemented throughout the country. In sharp contrast to previous studies of the Marriage Law, which have argued that it had little effect in rural areas, Diamant argues that the law reshaped marriage and family relationships in significant--but often unintended--ways throughout the Maoist period.
China's Financial System and Economy: A Review
Posted on Mon, Apr. 15, 2024
Zhiguo He, University of Chicago
Wei Wei, University of Chicago
China's financial system has been integral to its spectacular economic growth over the past 40 years. While early work on China's financial system emphasizes the state-owned enterprise reform, the recent literature explores other more market-based financing channels—including shadow banking—that grew rapidly after 2010. These new financing channels not only are intertwined with each other, but also, and more importantly, are often ultimately tied back to the dominant banking sector in China. Understanding the mechanisms behind these channels and their intrinsic connections is crucial to alleviate capital allocation distortion and mitigate potential systemic financial risk in China.
Talk: A Great Shift—The Birth of Regulatory Party State in China (Apr 24, 2024)
Posted on Fri, Apr. 12, 2024
Philip K. H. Wong Centre for Chinese Law, The University of Hong Kong
Since 2012, China’s approach to economic governance has undergone a significant transformation. Dr. Andrew Huang introduces the “Great Shift” concept, which denotes a recalibration of the state-market boundary within China’s political economy. Acknowledging the Great Shift calls for rethinking traditional “state capitalism” views and adopting a more nuanced engagement with China’s distinct state-driven model. Dr. Huang sheds light on the pivotal elements driving the Great Shift and its extensive impact on China’s political economy and the broader scope of global economic governance.
Date & Time: April 24, 2024 (Wednesday) 12:00 - 13:00 (HKT)
Venue: Academic Conference Room, 11/F, Cheng Yu Tung Tower, HKU (In-person only)
Trafficking Data: How China Is Winning the Battle for Digital Sovereignty
Posted on Fri, Apr. 12, 2024
Aynne Kokas, University of Virginia
Drawing on years of fieldwork in the US and China and a large trove of corporate and policy documents, this book explains how China is fast becoming the global leader in internet governance and policy, and thus of the data that defines our public and private lives. Confronting data trafficking as the defining international competition of the 21st century, this book advocates for an alternative future of data stabilization.
The National People's Congress in China
Posted on Thu, Apr. 11, 2024
Ying Sun, Sun Yat-Sen University
China is a unitary system with two special administrative regions (SARs). The Chinese government does not welcome the idea of checks-and-balance as it believes that the people's will can only be exercised through the people's congress system. According to the Chinese Constitution, the National People's Congress is the highest organ of state power.
Foreign Investment in China: The Administrative Legal System
Posted on Thu, Apr. 11, 2024
Peter Corne, NYU Shanghai
China’s legal system is characterized by the gap between law and reality. Focusing on regulatory law, and with reference to the foreign investment area, this book identifies the functional and structural problems within China’s administrative legal system that perpetuate this gap.
Posted on Wed, Apr. 10, 2024
Yi Mengjie, China Academy of Fiscal Science
Jiasheng Li, Tsinghua University
Guangjun Shen, Sun Yat-sen University
Targeted Poverty Alleviation (TPA) is an important leverage for China to overcome poverty. While its economic effects are well studied, less is known about the social impact of TPA. Based on trial documents data from the China Judgments Online, the authors use DID method and find the growth rate of criminal offenses reduced by over 20% after the implementation of TPA. The income growth effect from TPA is the primary mechanism for suppressing criminal crimes. Improved employment plays a role as well.
Constituency Service and Valence Voting in Semi-Competitive Elections: Theory and Evidence of China
Posted on Wed, Apr. 10, 2024
Yu Zeng, Peking University
Junzhi He, Sun Yat-sen University
Xiaobo Lu, Columbia University
While extensive research has delved into various factors shaping vote choice in democratic elections, few has investigated vote choice in the semi-competitive elections where the ruling party typically secures unequivocal victory. But the noteworthy phenomenon of a few independent candidates winning votes and even seats in these elections suggests that vote choice in closed regimes merits scholarly attention. This study examines China’s local congressional elections using comparative case studies and a conjoint experiment.
Posted on Tue, Apr. 9, 2024
Xiaolin Li, Towson University
Paul Benjamin Lowry, Virginia Tech
Fujun Lai, University of Southern Mississippi
The successful implementation of Enterprise Resource Planning (ERP) systems is significantly predicated on establishing customer trust, a challenge accentuated in mainland China. Whereas contracts and transaction-specific investments are common strategies to build this trust, their effectiveness remains contested in the existing literature. Specifically, the underlying mechanisms through which detailed contracts influence trust are still not clearly understood. To address these gaps, this study employs signaling theory to conceptualize a model that elucidates how contract completeness, vendor contract compliance, transaction-specific investment act, and ownership type as trust-building signals in ERP vendor–vendee relationships within the Chinese context.
Damages Per Share in Securities Litigation: A Comparison of Chinese and US Systems
Posted on Mon, Apr. 8, 2024
Timothy J McKenna, NERA Economic Consulting
In late 2021, the Intermediate People’s Court of Guangzhou awarded damages totaling RMB 2.46 billion to investors in Kangmei Pharmaceutical Co., Ltd. This article compares the methodology used by the Court to compute damages with the methodology typically used in securities litigation in the US. Unlike the methodology used in the US, the Court’s method is not centered on what can be directly observed about the impact of the fraud. As such, if the goal is to compensate investors solely for their losses due to the fraud, the method used by the Court is not as accurate as the method used in the US.
Posted on Mon, Apr. 8, 2024
Stuart Hargreaves, Chinese University of Hong Kong
This Chapter updates prior research regarding translation of Court of Final Appeal judgments from English into Chinese to the end of 2023. It suggests that while translation rates remain low overall, a pattern appears to be emerging in which judgments related to the National Security Law (NSL) are prioritized for translation. The author contends that this shows conscious decisions are being taken regarding which decisions to translate and in turn this is an implicit admission that translation matters. And if it matters, then the responsibility lays with the Government to improve funding to ensure that complete translation of the Court’s output is available.
Book Talk: How to Revive China’s Sagging Economy? (Apr 22 2024)
Posted on Fri, Apr. 5, 2024
Philip K. H. Wong Centre for Chinese Law, The University of Hong Kong
China’s economy is at a crossroads, facing its most significant challenges in recent memory. Amidst this economic turmoil, a fierce debate has emerged among leading experts: Is the current economic downturn a result of ingrained structural issues, excessive state intervention, or escalating geopolitical tensions? In this roundtable discussion, Professor Angela Zhang will offer a fresh perspective by steering the conversation towards the distinct model of China’s regulatory governance, drawing insights from her newly released book, “High Wire: How China Regulates Big Tech and Governs Its Economy.”
Posted on Wed, Apr. 3, 2024
Ngoc Son Bui, University of Oxford
This chapter conceptualises the Confucian legal tradition as a historically extended and legally embodied Confucian argument. The Confucian legal tradition has three features. First, it is jurisprudentially founded on a set of Confucian concepts and principles justifying the importance of good men. Second, the Confucian argument is embodied in structural institutions and legal codes in premodern and modern East Asia (China, Japan, Korea, Vietnam). Third, legally embodied Confucian concepts and principles are historically extended for thousands of years from formation, consolidation, and transnationalisation to modernisation.
Borrowing without Banks: Deposit-Taking by Early Twentieth-Century Chinese Firms (1920s–1930s)
Posted on Tue, Apr. 2, 2024
Michael Ng, The University of Hong Kong
This article examines how and why renowned Republican-era Chinese firms raised debt capital to finance their businesses by accepting savings deposits from ordinary people instead of borrowing from financial institutions. The article argues that in the absence of a powerful unitary state and centralized financial institutions, Chinese firms innovated sophisticated, decentralized financial instruments capable of amassing large quantities of capital from a broad host of depositors without the involvement of financial intermediaries.
Posted on Thu, Mar. 28, 2024
Albert Chen, The University of Hong Kong
This chapter provides an overview of the legal system and history of China, highlighting the evolution of Chinese law from ancient times to the present day. It discusses the development of Legalism and Confucianism as the foundations of traditional Chinese law, the influence of Western legal systems during the modernization period, and the establishment of the PRC with its various constitutions. The chapter also covers the structure and function of China’s political and legal institutions, its civil and commercial laws, the court system, and legal education.
Anti-Corruption in a Party-State
Posted on Wed, Mar. 27, 2024
James Lee, The University of Hong Kong
The 2018 amendments to the PRC Constitution saw the establishment of a system of supervisory commissions, which is a landmark development not only for anti-corruption, but also constitutional law in China. After providing an overview of the background and legal framework of the reform, this article discusses its constitutional implications from three perspectives. The article concludes with some brief reflections on what this development indicates for the future of the rule of law in China, and highlights the potential for further research.
The Case for Regulating Generative AI Through Common Law
Posted on Wed, Mar. 27, 2024
S. Alex Yang, London Business School
Angela Huyue Zhang, The University of Hong Kong
The European Union’s Artificial Intelligence Act could impede the development of AI technologies, which depends on the availability of human-generated content as training data. By contrast, case-by-case adjudication could prove to be a more effective mechanism for tackling the myriad challenges posed by emerging technologies.
Posted on Tue, Mar. 26, 2024
Mark Jia, Georgetown University
The most contested question in the study of Chinese law is also its most enduring one: how should we characterize China’s legal system? In recent years, scholars have advanced numerous theories to explain Chinese law. Some have emphasized legality; others have stressed order; still others have described the system as dual or multi-faceted. This Essay contributes a set of meta-theoretical insights to these discussions. It argues that the preceding debates would benefit from reflecting on the general qualities that make theories good, with special attention to the analytic costs and benefits of different modes of theorizing.
Plea Leniency and Prosecution Centredness in China's Criminal Process
Posted on Tue, Mar. 26, 2024
Xin He, The University of Hong Kong
China's criminal proceedings have been recognized as being “investigation centred.” This paper argues that the rise of the Plea Leniency System has led to “prosecution centredness.” While this paradigm shift signals further leniency in criminal justice, rights protections make way for efficiency and crime control. As such, plea leniency has profound implications for the operation of the criminal justice apparatuses, defendants, defence lawyers, and the mode of crime control in China.
Macau and Hong Kong: Convergence or Divergence?
Posted on Mon, Mar. 25, 2024
Han Zhu, The University of Hong Kong
In May 2023, Macau passed amendments to the Law on Safeguarding National Security (MANSL), drawing heavily on the 2020 Hong Kong National Security Law (HKNSL). This article examines the major modifications made to the MANSL in reference to the HKNSL, and demonstrates that the revised MANSL has deviated from its pro-liberal, narrowly defined precursor. The two distinct paradigms of national security legislation in Hong Kong and Macau reveal the increasingly muddled and complex constitutional relationship between the central authority and the two Special Administrative Regions.
Empirical Study of the Role of the Chinese Guiding Case System in Chinese Law
Posted on Mon, Mar. 25, 2024
Dong Yan, Beijing Foreign Studies University
Jeffrey Thomas, University of Missouri
This article reports on a study of Guiding Case (GC) No. 18 in the field of employment law from its selection in 2013 to 2021. The study also considered the influence of a judicial Meeting Summary on the same topic. Although the precise relationship between the GC and the Meeting Summary is not clear, both were influential, warrant further study and may contribute to legal reform.
The Stewardship of Institutional Investors in China: The Way Forward
Posted on Fri, Mar. 22, 2024
Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong
This talk analyzes various types of institutional investors in China and assesses the evolving stewardship roles of these investors in Chinese listed companies. The speaker advocates for a redesign of the traditional UK-style stewardship framework, suggesting a shift in stewardship responsibility towards investors who inherently possess incentives or resources, specifically strategic investors and the China Securities Investor Services Center. These insights will contribute to targeted and impactful corporate governance reforms, thereby enhancing the effectiveness of institutional stewardship in jurisdictions with concentrated ownership.
Date & Time: March 27, 2024 (Wednesday) 12:30-13:30
Venue: Room 723, 7/F, Cheng Yu Tung Tower, HKU (In-person only)
Meeting the Looming Deadline for Corporate Reorganizations of Sino-Foreign Joint Ventures
Posted on Thu, Mar. 21, 2024
Daniel Chow, Ohio State University
All sino-foreign joint ventures formed under China’s foreign investment legal regime in place for forty years from 1979-2019 must reorganize and register under the landmark Foreign Investment Law of 2020 and the Company Law by December 31, 2024. Failure to register by this date could subject joint ventures to numerous legal obstacles that will severely disrupt the conduct of their business operations and that will be difficult to untangle. Reorganization under the Company Law, however, involves a number of pitfalls that US companies must recognize and avoid in order to successfully file for registration by the deadline.
Religion in China – Historical and Legal Context
Posted on Wed, Mar. 20, 2024
Keren Wang, Pennsylvania State University
The complex and quite rich discourse centered on the three “Abrahamic” religions does not suggest the only way in which one can approach the issue of religious “liberty” or understand the relation among religion and the state. China offers an important and distinctive path that is in its own way more difficult to square with the Western focused discourse that has now become a global standard. Thus is it necessary, before exploring the technical legal details about the interaction of religion and the state in China. This essay offers a brief glimpse at a complex problem, and suggests the basis for the quite substantial difficulties of communicating between systems.
Gender, Sexuality and Constitutionalism in Asia
Posted on Wed, Mar. 20, 2024
Wen-Chen Chang, National Taiwan University
Kelley Loper, The University of Hong Kong
Mara Malagodi, University of Warwick
Ruth Rubio-Marín, University of Sevilla
This book analyses the equal citizenship claims of women and sexual and gender diverse people across several Asian jurisdictions. The volume examines the rich diversity of constitutional responses to sex, gender and sexuality in the region from a comparative perspective. Leading comparative constitutional law scholars identify ‘opportunity structures’ to explain the uneven advancement of gender equality through constitutional litigation and consider a combination of variables which shape the diverging trajectories of the jurisdictions in this study.
Intellectual Property Legislation Holism in China
Posted on Tue, Mar. 19, 2024
Taorui Guan, The University of Hong Kong
As current literature lacks studies on China’s holistic approach to intellectual property (IP) legislation, this Article aims to counter this deficiency. It reviews the history of China’s IP legislation, then systematically surveys China’s IP laws, including those promulgated at both the central and local government levels. The article’s description and analysis of the system should shed light on how policymakers in other jurisdictions, even those that generally export intellectual property institutions, can think about reforming their own intellectual property systems.
Cooperative Federalism and Patent Legislation: A Study Comparing China and the United States
Posted on Tue, Mar. 19, 2024
Taorui Guan, The University of Hong Kong
How should patent legislative power be allocated between central and local governments in order to construct a patent system conducive to promoting innovation? Compared to the current centralized patent legislation model in the U.S., China’s semi-decentralized patent legislation model has the advantage of making statutory law more adaptable to local specificities and promoting local competition and institutional innovation. However, it also faces challenges, such as increased costs due to inconsistency; efficiency decline stemming from rent-seeking behaviors; and the risk that local protectionism will create anti-competitive effects.
Caveat Lector: Large Language Models in Legal Practice
Posted on Mon, Mar. 18, 2024
Eliza Mik, Chinese University of Hong Kong
Drawing from recent findings in both technical and legal scholarship, this Article counterbalances the overly optimistic predictions as to the role of large language models (LLMs) in legal practice. Integrating LLMs into legal workstreams without a better comprehension of their limitations, will create inefficiencies if not outright risks. LLMs operate at the level of word distributions, not at the level of verified facts. The resulting propensity to hallucinate, to produce statements that are incorrect but appear helpful and relevant, is alarming in high-risk areas like legal services.
Posted on Mon, Mar. 18, 2024
Angus Young, The University of Hong Kong
This article traces the historical development of moneylending legislation in the context of Hong Kong’s free market and non-intervention policy and how that has resulted in a lack of an effective safety net for the financially disadvantaged. This article compares the developments in the UK and Singapore and considers what lessons can be learnt from their experience. This article will make some suggestions for further improving the regulatory framework, thereby advancing financial inclusion of lower income and other vulnerable borrowers.
Tracing the Roots of China’s AI Regulations
Posted on Fri, Mar. 15, 2024
Matt Sheehan, Carnegie Endowment for International Peace
China is regulating AI, and the rest of the world would be wise to pay attention. Since 2021, the Chinese state has rolled out a series of targeted and binding regulations that constitute some of the first major moves by an AI power to govern one of the most transformative technologies of our time. These regulations target recommendation algorithms, deep synthesis, generative AI, and most recently facial recognition. China is now debating whether to create an overarching national AI law that could be written and rolled out in the years ahead. This paper is the second in a series of three analyzing China’s AI regulations and the forces shaping them.
Regulation of the Legal Profession in China: A Historical Overview
Posted on Fri, Mar. 15, 2024
John Ohnesorge, University of Wisconsin, Madison
Understanding a legal system requires understanding of its legal service providers. The Chinese legal system has undergone major transformations since the late 19th century, accompanied by a series of approaches to regulating China’s lawyers. This article offers a historical overview of these approaches, discussing the regulation of the Chinese legal profession and the foreign lawyers operating in China. Going forward, Chinese firms might be supported to the extent they further the Xi regime’s economic aspirations, but they will be subject to closer oversight by the CCP. Foreign firms are no longer considered necessary for China’s economic rise, and they will be able to remain in China only if they are willing to abide by significant new restrictions.
Connecting Chinese and American Scam Victims
Posted on Thu, Mar. 14, 2024
Jonathan Reiter, ChainArgos, Data Finnovation
Bitrace Team
The world is experiencing an epidemic of online scams with at least tens of billions of dollars lost across dozens of countries. One particular class of scam known as “pig butchering” has grown dramatically and often involves the use of cryptocurrency both to collect funds from victims and to launder the proceeds. Here we are going to explore the use of cryptocurrency in pig butchering scams beginning with victims in both the People’s Republic of China and United States of America, and demonstrating the remarkable degree of similarity for cases that have no reason a priori to be similar at all.
From Brussels Effect to Gravity Assists
Posted on Wed, Mar. 13, 2024
Wenlong Li, University of Edinburgh
Jiahong Chen, University of Sheffield
This paper argues that the trajectory of China’s Personal Information Protection Law (PIPL) calls into question the applicability of the Brussels Effect. The authors introduce a complementary theory of ‘gravity assist’ which portrays China’s strategic instrumentalization of the GDPR as a template to shape its unique data protection landscape. This conceptual framework highlights how China navigates through a patchwork of internal considerations, international standards, and strategic choices, ultimately sculpting a data protection regime that has a similar appearance to the GDPR but aligns with its distinct political, cultural and legal landscape.
The Long-run Effect of Education on Crime: Evidence and Mechanisms
Posted on Wed, Mar. 13, 2024
Yu Bai, Tohoku University
Yanjun Li, Tohoku University
Xinyan Liu, Chinese University of Hong Kong
Ryuichi Tanaka, University of Tokyo
The authors examine the impact of educational attainment on participation in criminal activities, employing the implementation of compulsory schooling laws (CSL) to address the endogeneity in schooling decisions. Using data from the China Judgment Online and the regression discontinuity method, the authors find that CSL significantly increased the years of schooling, subsequently leading to a decrease in crime rates among the treated birth cohort. The crime-reducing effects can be attributed to various mechanisms, including the composition effect and contextual effects.
How China’s Supreme People’s Court Supports the Development of Foreign-Related Rule of Law
Posted on Tue, Mar. 12, 2024
Susan Finder, Peking University, The University of Hong Kong
This article provides a detailed analysis of the evolution of the role of the Supreme People’s Court (SPC) in the Xi era, examining functions little explored in scholarship. It explains how and why the SPC supports national strategies, focusing on the development of “foreign-related rule of law” through multiple “active” functions. It explores that work in the context of strengthened Communist Party leadership of the courts and other legal institutions. The article illustrates one aspect of the unique role of the SPC as China’s highest court in its dynamic political-legal system and the way in which it supports evolving national strategies and the implementation of fundamental policies.
Posted on Tue, Mar. 12, 2024
Setsen K., Trento University, Oxford University
The criminal law of picking quarrels and provoking trouble in mainland China is ambiguous and open ended, easily blurring the boundaries with other crimes, which has led to concerns in the academic and social communities that it has become a new “pocket crime”. This paper adopts an empirical and comparative approach to analyze the legal evolution of picking quarrels and provoking trouble, starting from its legislative origins and background. At the same time, it focuses on the most controversial issue of picking quarrels and provoking trouble—its survival or abolition—and analyses it.
Law and Politics of Religious Fraud Regulation: China, Taiwan and Hong Kong
Posted on Mon, Mar. 11, 2024
Jianlin Chen, University of Melbourne
This book comparatively examines the law and politics of religious fraud regulation in China, Taiwan and Hong Kong. The author begins with questions of ‘how’: what are the precise legal tools used by the state to tackle perceived religious fraud? Then the author proceeds to evaluate the constitutionality of these tools. The author further connects the various strands of literature into a coherent theoretical framework. Next, the author moves on to the political dimension, utilizing the rational choice perspective to explain the convergences and divergences of religious fraud regulation in these jurisdictions. He then identifies two implications from this political account.
A Comparative Study on Fiduciary Duties in Chinese Company Law
Posted on Mon, Mar. 11, 2024
Ping Xiong, University of South Australia
Corporate laws in China and in Anglo-Australian jurisdictions provide rules purporting to create ‘fiduciary duties’ owed by directors and senior officers of corporations. When such laws were first made in origin countries, they were a product of distinctive local conditions and evolved over decades. Corporate law that transplants into borrowing countries such as China have also sought to facilitate local political and economic objectives and they rarely fit neatly with the needs of a borrowing state. This article observes that, despite the use of often similar legal language, Western notions of fiduciary duty have different meanings and operate very differently in China.
Book Talk by Angela Zhang: How China Governs Big Tech and Regulates AI (Mar 21 2024)
Posted on Fri, Mar. 8, 2024
Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong
In this book talk, Professor Zhang will take us beyond the headlines of China’s tech crackdown to unravel the complexity of China’s regulatory governance. Drawing insights from her newly released book “High Wire,” she will introduce the dynamic pyramid model of regulation, apply it to analyze China’s strategic approach to regulating artificial intelligence, and discuss its implications for the global tech rivalry and the prospects for international cooperation. Join Professor Zhang as she uncovers how China regulates on the high wire by navigating the intricate balance between innovation, regulation and geopolitical contest.
Date & Time: March 21, 2024 (Thursday) 13:00-14:15
Venue: Room 824, 8/F, Cheng Yu Tung Tower, HKU
Do China's Anti-Corruption Efforts Improve Corporate Productivity?
Posted on Thu, Mar. 7, 2024
Miaomiao Tao, University of Auckland
Abd Alwahed Dagestani, Central South University
Lim Thye Goh, University of Malaya
Yuhang Zheng, Guangdong University of Finance and Economics
Le Wen, University of Auckland
Corruption affects corporate investment and diverts resources away from growth-improving factors, thereby lowering productivity. Using a time-varying difference-in-differences approach, the authors identified the causal effect of China’s anti-corruption campaign on corporate productivity during 2011–2021. The findings uncovered that China’s anti-corruption campaign increased corporate productivity by approximately 18.43%. Results from heterogeneity analysis showed that the promoting effect was particularly significant in non-state-owned firms, firms without political ties, and firms in areas with weak legal systems.
China's Corporate Credit System & The Boundaries of Corporate Liability
Posted on Thu, Mar. 7, 2024
Virginia E. Harper Ho, City University of Hong Kong
This chapter examines how China’s corporate credit system reaches complex corporate groups, and places these developments in the context of international efforts that extend corporate accountability across entity boundaries and that reach beyond the protection of shareholders and creditors to encourage corporate responsibility for societal impacts. It concludes that at present, the public-facing corporate credit platforms are not sufficiently transparent to facilitate public oversight of corporate groups and networks, but may already create reputational compliance incentives across firms and enable enterprise-wide oversight by regulators.
Rolling Back Transparency in China's Courts
Posted on Wed, Mar. 6, 2024
Benjamin L. Liebman, Columbia University
Rachel E. Stern, University of California, Berkeley
Xiaohan Wu, University of California, San Diego
Margaret E. Roberts, University of California, San Diego
Despite a burgeoning conversation about the centrality of information management to governments, scholars are only just beginning to address the role of legal information in sustaining authoritarian rule. This Essay presents a case study showing how legal information can be manipulated: through the deletion of previously published cases. Using their own dataset of all 42 million cases made public in China between Jan 1, 2014, and Sep 2, 2018, the authors examine the recent deletion of criminal cases. Taken together, the decision(s) to remove hundreds of thousands of unconnected cases shape a narrative about the Chinese courts, Chinese society, and the Chinese Party-State.
China’s Regulations on New Types of Unfair Competition in the Digital Age
Posted on Wed, Mar. 6, 2024
Xuan Wang, Xiamen University
Xiuqin Lin, Xiamen University
China’s Anti-Unfair Competition Law underwent its first revision in 2017, introducing the “Internet Provision”. However, the rules contained evident flaws, resulting in frequent invocation of the “catch-all clause” by courts. This approach has given rise to convoluted reasoning, unstable outcomes, and excessive judicial intervention. The newly proposed “data clause” aims to address these issues. Yet it has its own ambiguities and fails to properly safeguard freedom of information. The authors argue that due consideration should be given to the principle of competitive neutrality. They also criticize an overly broad recognition of “new unfair competition behavior,” as it may hinder market entry and stifle innovation in the long run.
(Talk) AI Outputs Are Not Protected Speech (Mar 13 2024)
Posted on Tue, Mar. 5, 2024
Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong
When a generative AI system outputs some text, image, or sound, no one thereby communicates. Systems like ChatGPT are designed to be able to “say” essentially anything, producing innumerable ideas and opinions that neither creators nor users have conceived or endorsed. Absent a communication from a protected speaker, there is no protected speech. This talk explains why as a matter of First Amendment law, free speech theory, and computer-scientific fact, AI outputs are best understood as fitting into one or more of these less-protected First Amendment categories.
Date & Time: March 13, 2024 (Wednesday) 12:00-13:00
Venue: Room 723, 7/F, Cheng Yu Tung Tower, HKU
Agile and Iterative Governance: China's Regulatory Response to AI
Posted on Tue, Mar. 5, 2024
Baiyang Xiao, University of Szeged
In response to challenges posed by AI, China has not only implemented proactive administrative intervention in policy support, central coordination, and investment, but also adopted an AI governance framework that characterized by ‘complexity,’ ‘agility,’ ‘stability,’ and ‘flexibility.’ Instead of calling for an omnibus AI law that applies a uniform package of rules, Chinese regulators chose to adapt horizontal elements into vertical regulations through a set of bureaucratic know-how and iterative regulatory tools. Different jurisdictions may differ on the specific content of AI regulations, but they can learn from the content-agnostic structure of the regulations themselves.
Posted on Mon, Mar. 4, 2024
Pierangelo Blandino, University of Lapland
This summary explores the degree of rights’ protection when it comes to States forms of surveillance under a concise legal comparative outline. Given today’s interdependence put into being first by Global Governance patterns and then by exchange on platforms, attention will be drawn to Chinese PIPL, the US CLOUD Act and the EU GDPR, along with the recently adopted Data Privacy Framework. At a second stage, new possible techniques are considered to properly tackle these unprecedented changes that challenge traditional legal patterns.
From Courtrooms to Corporations
Posted on Mon, Mar. 4, 2024
Obaid Ur Rehman, Southeast University
Zihan Zhou, Central University of Finance and Economics
Kai Wu, Central University of Finance and Economics
Wen Li, Lanzhou University of Finance and Economics
The authors examine the impact of bankruptcy court establishment (BCE) on corporate acquisition activities using hand-collected data of city-level BCE in China from 2008 to 2020. The results show that BCE promotes corporate acquisition activities largely due to mitigated information asymmetry and decreased deal inefficiency. These results highlight the important role of judiciary reform in corporate acquisition decisions in emerging markets.
Posted on Fri, Mar. 1, 2024
Md Rezaull Karim, Southwest University of Political Science and Law
This is an in-depth exploration of the nexus between climate justice, human rights principles, and the instrumental role of Environmental Public Interest Litigation (EPIL) in ensuring accountability and equity. With a particular emphasis on the Chinese context, the article explores the theoretical underpinnings, practical applications, and future prospects of attaining climate justice using EPIL. The analysis of how the Chinese model of EPIL may be modified for international climate disputes, as well as the possibilities and obstacles involved in doing so, forms the basis of this conversation.
Posted on Fri, Mar. 1, 2024
Kai Guo, Shanghai Jiao Tong University
Bin Ke, National University of Singapore
The authors assess the impact of China’s pre-trade disclosure regulation. They observe that this regulation effectively curbs the practice of informed insider selling. Despite a decrease in informed insider sales, the authors find no evidence that stock price informativeness changes post-regulation. This latter finding is partially attributed to the private information revealed when insiders announce their sale plans that are subsequently retracted, coupled with a heightened analyst interest in stocks that exhibit signs of future underperformance.
Trends in China-Africa Economic Relations and Dispute Settlement
Posted on Thu, Feb. 29, 2024
Won Kidane, Villanova University
The improvements in supranational legal frameworks have not kept pace with the growing scale and complexity of the China-Africa economic interactions, which are often orchestrated through confidential and fragmented micro-level contractual instruments unsupported by larger institutional frameworks. Therefore, two important questions need to be asked: (1) whether the lack of durable legal and institutional commitment is a function of socio-cultural factors, diminished optimism, politics, or just outright pragmatism; (2) whether the contracts-based economic legal ordering that relies on existing rules and institutions is optimal and durable. This article attempts to answer these and related questions.
The Chinese Tax System: Where It Stands and How We Should Study It
Posted on Thu, Feb. 29, 2024
Wei Cui, University of British Columbia
This chapter offers an overview of where China’s tax system stands, assesses recent scholarship on Chinese taxation, and urges researchers to attend more to normative questions of tax design (e.g., economic efficiency and redistribution). After surveying major tax instruments deployed in China today, the chapter critically reviews recent studies of taxation’s impact on the Chinese economy, then considers some themes at the intersection between Chinese political institutions and public finance: political incentives for raising revenue, tax competition, and business-government relations. It also discusses how tax scholarship contributes to our understanding of Chinese political economy.
(Talk) Superpower Legal Rivalry and the Global Compliance Dilemma (Mar 4 2024)
Posted on Wed, Feb. 28, 2024
Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong
The intensifying rivalry between the United States and China has spawned a proliferation of contradictory laws and regulations, plunging transnational actors into a vexing compliance dilemma—conformity with U.S. law often necessitates contravention of Chinese law, and vice versa. Prof Ji Li illuminates this superpower legal rivalry and how multinational corporations (MNCs), as prime beneficiaries of post-Cold War economic globalization, navigate this fractured, intricate legal terrain when compelled to take sides amid the great power competition.
Date & Time: March 4, 2024 (Monday) 12:00-13:00
Venue: Academic Conference Room, 11/F, Cheng Yu Tung Tower, HKU
Posted on Wed, Feb. 28, 2024
Riccardo Vecellio Segate, University of Groningen
Pursuant to Article 63 of the TRIPS Agreement, a state may require other treaty parties to disclose their intellectual property case law ‘of general application’. Civil law systems theoretically employ judgments as reference only. Nevertheless, to value consistency and predictability, the hybridisation of civil law jurisdictions is increasingly leading them to devise special lists of judgments that acquire formal or factual binding status on lower-ranked courts. This trend is particularly evident in China. When the US and the EU requested, through the WTO, that China disclose the full range of its case law of general application, China responded that civil law jurisdictions do not issue judgments that are binding beyond the parties. This article examines the limitations and merits of the Chinese stance.
The Forever Trade War: Dimensions of Sino-American Confrontation
Posted on Tue, Feb. 27, 2024
Raj Bhala, University of Kansas
America and the People’s Republic of China (PRC) are locked in a trade war, to which there is no obvious end in sight, the causes of which lie in their different values, the conduct of which extends far beyond commerce, and the consequences of which are dangerous. This thesis begs the question of the definition of a “trade war,” which is proposed to be a broad, deep, and intense drawn-out conflict.
Gains from Contractualization: Evidence from Labor Regulations on Chinese Workers
Posted on Tue, Feb. 27, 2024
Qin Gao, Columbia University
Candice Yandam Riviere, Université Paris I Panthéon-Sorbonne
The authors find that gaining a labor contract was strongly associated with an increase in salary, a decrease in working overtime hours, and greater participation in unemployment and pension insurances. In terms of job satisfaction, workers who gained a labor contract reported being less satisfied with their workplace environment and income than they had anticipated. This finding suggests that workers had higher expectations from the benefits gained through contractualization, than what they actually derived.
Contesting and Controlling Abortion in China’s Courts
Posted on Mon, Feb. 26, 2024
Molly Bodurtha, Government of the State of Massachusetts
Benjamin L. Liebman, Columbia University
Li Chenqian, Columbia University
Xiaohan Wu, University of California, San Diego
The scholarly conversation on abortion, democracy, and how courts reflect and entrench gender disparities entirely omits China. This lack of attention reflects the common understanding that courts play no role in regulating reproduction and that abortion remains unproblematic in China. Yet Chinese courts do confront and decide claims involving abortion. Drawing on a dataset of more than 30,000 civil cases discussing abortion, this article examines claims by men that their wives obtained abortions without the man’s “authorization.” The persistence of such claims suggests that women’s access to abortion care is more regulated in China than academic and popular accounts convey.
Legal Complicity in an Age of Resurgent Authoritarianism
Posted on Mon, Feb. 26, 2024
Jedidiah J. Kroncke, The University of Hong Kong
Today, end of history narratives such as modernization theory have succumbed to not only resilient authoritarian regimes but also a global resurgence in authoritarian ideologies in liberal regimes. Many authoritarian regimes have proven capable of sustained economic development, even economic liberalization, while keeping democratic institutions from forming or flourishing. This development thus demands a renewed examination of the ethics of legal engagement with authoritarian regimes, especially as they have become deeply integrated into the world economy. The American legal profession’s modern engagement with China is an acute case of this renewed problematic, but only one example of a shared conundrum among liberal legal professions worldwide.
Book Talk: Negotiating Legality: Chinese Companies in the US Legal System (Feb 29 2024)
Posted on Fri, Feb. 23, 2024
Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong
While the global expansion of Chinese companies has ignited intense debates, their interactions with host-state legal systems have largely escaped systematic examination. Negotiating Legality sheds light on how Chinese companies develop in-house legal capacities, engage with US legal professionals, and navigate litigation in US courts. This talk is indispensable for anyone interested in China’s rise, its global impacts especially on legal systems of developed nations like the US, and the intricate dynamics of US-China relations.
Date & Time: February 29, 2024 (Thursday) 12:00 - 13:00
Venue: Academic Conference Room, 11/F, Cheng Yu Tung Tower, HKU (In-person only)
Half a Loaf Is Better Than None: The New Data Protection Regime for China’s Platform Economy
Posted on Fri, Feb. 23, 2024
Chuanman You, National University of Singapore (NUS)
This paper contributes an analytical overview of why and how the Personal Information Protection Law is shaped by focusing on its legislative background, substantive rules and enforcement mechanisms. The influence of the GDPR in shaping this regulatory paradigm is scrutinized, with reference to pertinent concerns that could compromise the effectiveness of this paradigm in the Chinese context. As in its current form, the law fails to address several critical matters. Alas, half a loaf is better than none.
Right to Data Access in the Digital Era: The Case of China
Posted on Thu, Feb. 22, 2024
Yik Chan Chin, Beijing Normal University
This chapter examines the academic debate on access to digital data in China and the Chinese state’s policy on data. First, the concept of epistemic rights has not drawn academic attention, while the closely related concept of the right to information stresses the consumer’s right to obtain public information and digital platforms’ data rights. Second, the right to data access has not been treated as an independent right but as part of the debate on data property rights and the right to information. Third, data is officially defined as a new factor of production that is key for national economic development. Finally, the lack of attention to epistemic rights and an overly narrow definition of data has undermined alternative explorations of the implications of the public good nature of data.
China's Individual Income Tax Law for Expatriates
Posted on Thu, Feb. 22, 2024
Jingyi Wang, Chinese University of Hong Kong
In recent times, many mainland Chinese are taking up employment or immigration opportunities outside China. At the same time, the Chinese tax authorities are increasing their attempts to enforce Chinese law on Chinese working outside mainland China. This article examines the tax consequences of both outbound and inbound cross-border employment from China’s perspective. By comparing the income tax rules applicable to different groups of cross-border employees, the article will highlight the discriminatory treatment of Chinese cross-border employees and propose measures to better facilitate the cross-border movement of human resources.
China’s New Model of Authoritarian Legality
Posted on Wed, Feb. 21, 2024
Zeming Liu, Columbia Law School
The author argues that through the project of integrating the “Socialist Core Values” (SCVs) into legal judgments, the Party-state is effectively imposing a new conception of what Chinese law is. The Chinese judiciary is now required to decide cases under the assumption that they must go beyond statutory language to “find” law that conforms to the SCVs. This new jurisprudence departs from legalism, which used to be China’s predominant model of legality for many years, and gives rise to a new model of authoritarian legality featuring the incorporation of the extralegal, moralistic social norms mandated by the authoritarian state into the contents of law itself. This new model features a destabilized legal system that allows the authoritarian ruler to flexibly exercise its power in the name of law.
The Temporality of Law in Traditional China and Its Contemporary Implications
Posted on Wed, Feb. 21, 2024
Tao Wang, East China University of Political Science and Law
Temporality of law is of great significance in traditional Chinese juridicopolitical thought, and its influence plays a crucial role in China’s state building and governance. The existing temporal phrases from the West are not sufficient for explaining the symbol-oriented legal system in traditional China. Formalist law overlooks the temporal elements intrinsic to the legal system and results in the failure of governance. This Article applies a historical culture paradigm to analyze the temporality of law in traditional China. It further shows that the intertemporal dynamism in law facilitated the formation of a unified and stable system of order over China’s long imperial period. The intertemporality in traditional Chinese law still exerts huge influence on legal governance in contemporary China.
Regulating Platform Economy in China: Shocks and Revisions
Posted on Tue, Feb. 20, 2024
Xin Dai, Peking University
In the years of 2020 and 2021 the Chinese government attempted at structurally tightening its regulatory controls over the country’s major digital platform firms. It was widely observed that the government’s once tolerant regulatory regime had then shifted into a more heavy-handed mode. This article explains that the policy turn was attributable to not only legitimate concerns over the industry’s flaws but also the popular societal sentiments associated with the firms’ perceived betrayal of their progressive promises. By end of 2022, however, endeavors for structural reforms were mostly shelved by the authorities due to changed economic circumstances. The Chinese authorities now likely will return to a more marginal regulatory approach in addressing issues from platform practices and operations.
Posted on Tue, Feb. 20, 2024
Keren Wang, Pennsylvania State University
The construction of the Chinese Social Credit System (SCS) is arguably the most significant governance-by-data experiment so far into the 21st century. This paper explores the ways in which the SCS project was prompted by a ritual impulse to inculcate Chinese societal moral character in the big data age. It first highlights relevant perspectives from Chinese intellectual history, ritual studies, and comparative legal scholarship as analytical heuristics for unpacking the deeper discursive structures entangled within the Chinese SCS project. The author then applies the transdisciplinary lens on recent cases of data-driven, personalized “public shaming” urban implementations by Chinese local authorities.
Posted on Mon, Feb. 19, 2024
Taisu Zhang, Yale University
This symposium essay proposes that in very large, very diverse societies, authoritarian regimes may have even stronger incentives to pursue law-centric modes of sociopolitical ordering than do democratic ones. This does not necessarily mean that they will always act upon such incentives, but it does offer a deeper explanation for why the Chinese regime in particular is very unlikely to decisively abandon its current legalistic trajectory at any point in the foreseeable future. This is very much a thought experiment, but hopefully one that offers useful ideas for future research.
Varieties of Authoritarian Legality
Posted on Mon, Feb. 19, 2024
Shucheng Wang, City University of Hong Kong
This article critically examines the varieties of authoritarian legality in three differentiated paradigms, namely, ‘law and politics’, ‘law with politics’, and ‘law in politics’. It points out that the engagement of authoritarian legality is favourably facilitated through politically controllable legal institutions and state-shaped public sphere. It argues that the standalone statist reason cannot stand out alone as a legitimate ground for legality unless some other alternative reasons can be dialogically engaged in the public discourse. Otherwise, the force and violence may be clothed in the form of a law that serves as a political instrument for the ruling of the authoritarian government.
Bibliography of Academic Writings in the Field of Chinese Law in Western Languages in 2022
Posted on Wed, Feb. 7, 2024
Knut Benjamin Pissler, Max Planck Institute
Fenja Eckardt, Max Planck Institute
The bibliography aims to give readers an overview on articles published in English or German in the field of Chinese law in 2022. Regarding relevant German-language literature, the issues 1 to 12 of the journal Karlsruher Juristische Bibliographie (KJB) of the year 2022 were screened. Simultaneously the classification scheme of the KJB was used as a model in this bibliography. Abbreviations are not utilized in order to facilitate the use of this bibliography by international readers. Concerning English-language literature the authors mainly focused on periodicals and books available at the library of the Max-Planck-Institute for Comparative and International Private Law (MPI) in Hamburg. Besides the authors scrutinized fee-charging databases like Westlaw, LexisNexis, Juris and Beck-Online for relevant articles.
Generative AI and Copyright: A Dynamic Perspective
Posted on Tue, Feb. 6, 2024
S. Alex Yang, London Business School
Angela Huyue Zhang, The University of Hong Kong
The future development of generative AI and its applications in the creative industry hinge upon two copyright issues: 1) the compensation to creators whose content has been used to train generative AI models (the fair use standard); and 2) the eligibility of AI-generated content for copyright protection (AI-copyrightability). This paper aims to better understand the economic implications of these two regulatory issues and their interactions. By constructing a dynamic model with endogenous content creation and AI model development, the authors unravel the impacts of the fair use standard and AI-copyrightability on AI development, AI company profit, creators income, and consumer welfare, and how these impacts are influenced by various economic and operational factors. For example, while generous fair use benefits all parties when abundant training data exists, it could hurt creators and consumers when such data is scarce. Similarly, stronger AI-copyrightability could hinder AI development, and reduce social welfare. The authors also highlight the complex interplay between these two copyright issues. For instance, when existing training data is scarce, generous fair use may be preferred only when AI-copyrightability is weak. These findings underscore the need for policymakers to embrace a dynamic, context-specific approach and provide insights for business leaders navigating the global regulatory complexities.
Authoritarian Legal (Ir)rationality: The Saga of 'Picking Quarrels' in China
Posted on Mon, Feb. 5, 2024
Jiajun Luo, The University of Hong Kong
This paper explores ongoing discussions about the authoritarian legality of the People’s Republic of China. It introduces the concept of "legal rationality," signifying a state where the discretion of dominant officials is constrained by legal rules that are publicly accessible, clear, and consistent. The author argues that legal rationality is a fundamental element for any functional legal system, even within an authoritarian framework. In doing so, the author challenges the conventional assumption of “dual state”, which posits that the existence and expansion of prerogative power in an authoritarian system are confined solely to its politicized sphere, marked by political prosecutions. Instead, the author argues that the decline of legal rationality in an authoritarian legal system leads to the arbitrary discretion of dominant officials infiltrating both political and non-political domains. It illustrates this point through the example of “picking quarrels and provoking trouble,” a notorious catch-all crime exploited by Chinese authorities in both political prosecutions and routine criminal cases.
The Promise and Perils of China's Regulation of Artificial Intelligence
Posted on Fri, Feb. 2, 2024
Angela Huyue Zhang, The University of Hong Kong
China has been perceived as a global leader in regulating AI due to its early and comprehensive rules on algorithms, deepfakes, and generative AI services. However, this overlooks the intricate institutional dynamics within the country. The Chinese government plays multiple roles in the AI sector, including policymaker, investor, supplier, customer, and regulator. This extensive involvement, combined with factors like the US-China tech rivalry, chip embargoes, and a downturn in the Chinese economy, weaken the government’s commitment to strict regulation. Consequently, China’s overall approach to AI regulation has been business-friendly, focusing on enabling technological progress rather than providing protection for the public. As evidenced by its permissive stance on facial recognition technology, Chinese regulators have favoured a light-touch approach to AI regulation in practice. Similarly, Chinese courts are trying to prop up the AI industry, as demonstrated by the Beijing Internet Court’s decision to grant copyright to an AI-generated image. This lenient approach may give Chinese AI firms a short-term advantage over European and US counterparts, but it also risks creating regulatory lags that could escalate into AI-induced accidents or disasters. The dynamic complexity of China’s regulatory tactics therefore underscores the urgent need for increased international dialogue and collaboration with the country to tackle the safety challenges in AI governance.
Does Black-Letter Law Matter in Labor Rights Protection in China? - A Tale of Two Cities
Posted on Thu, Feb. 1, 2024
Peter Chan, City University of Hong Kong
This article discusses the role of black-letter law in labour protection in China in cases where employers dismiss employees on the grounds of serious breaches of internal regulations. It presents an empirical analysis of the judicial practice of two of China’s economically developed cities, Suzhou and Wuxi. Suzhou employers are required to give employees the opportunity to be heard prior to dismissal, while Wuxi does not. The author first introduces the Chinese labor legislation system, the dismissal system, and the two cities’ local labor regulations. After analyzing and discussing 140 cases from Suzhou and 234 cases from Wuxi, the authors concludes that giving employees the opportunity to be heard is essential for protecting their rights, as evidenced by differential success rates in the two cities. The analysis highlights the significance of black-letter law in ensuring labor protection in China.
Posted on Thu, Feb. 1, 2024
Norman Ho, Peking University
This Article examines a legal hypothetical in the Mencius text, where Mencius is asked by his disciple Tao Ying what would Emperor Shun do if his father had killed someone. By situating this legal hypothetical in premodern Chinese legal history, particularly with respect to dynastic legal developments regarding the issue of kinship and family concealment of crimes (i.e., where family members cover up crimes of other family members), this Article argues that later dynasties went further (to the extreme) in “Confucianizing the law” than what foundational thinkers like Mencius and Confucius originally advocated. The Article concludes with a brief discussion of the possible continued influence of traditional Chinese law on current PRC law in the realm of kinship/family concealment.
Unleashing the Green Principle in the Chinese Civil Code
Posted on Wed, Jan. 31, 2024
Jie Ouyang, University of Groningen
This comment discusses the Green Principle under the new Chinese Civil Code and its potential to embed private law into the green transition. Based on selected case law, this paper discusses the various mechanisms employed by Chinese courts to channel ecological values into civil adjudication. Through this analysis, the author hopes to position the green principle not only as part of the consitutionalisation of private law in China but also as a gateway for ecologisation of private law. China’s approach serves as an inspiring model for the greening of private law.
Posted on Wed, Jan. 31, 2024
Lacey Donley, Fort Lewis College
Joseph Legoria, Louisiana State University
Kenneth J. Reichelt, Louisiana State University
Stephanie Walton, Louisiana State University
The authors examine the impact of mounting regulator interest in US-listed Chinese firms facing PCAOB inspection access challenges. This study provides evidence of the market’s response to five events taking place from 2018 to 2020. Collectively, these events mark the first-ever integrated regulatory and legislative response from the PCAOB, SEC, and US legislature since initiation of the PCAOB’s international inspection program. First, the authors consider whether the PCAOB’s eighth annual update of inaccessible jurisdictions is newsworthy to investors. Next, they consider investors’ perceptions of audit quality risks and delisting risks among Chinese firms. The authors find that the market does respond negatively towards cross-listed Chinese firms following PCAOB, SEC, and US legislative action. Results further suggest that market reactions are motivated by investors’ perception of a delisting risk among Chinese firms. This observation is most salient among small Chinese firms having fewer listing alternatives outside of the US.
Cloud Empires’ Physical Footprint: How Trade and Security Politics Shape the Global Expansion of US and Chinese Data Centre Infrastructures
Posted on Fri, Jan. 26, 2024
Vili Lehdonvirta, University of Oxford
Boxi Wu, University of Oxford
Zoe Hawkins, University of Oxford
US-China technological rivalry presents dilemmas for third countries. Cloud computing infrastructure has become an acute front in this rivalry because of the infrastructural power that it affords over increasingly cloud-based economies, and because it is a control point in AI governance. The authors ask what factors explain a third country’s “cloud infrastructure alignment”—the degree to which the country’s local cloud computing infrastructure belongs to US versus Chinese providers. Three different answers are sketched: international trade, digital imperialism, third-country strategic choice. The authors find cloud infrastructure alignment is positively associated with other imports from the US or China, negatively associated with interstate disputes, and only weakly associated with security cooperation ties. The findings suggest that commercial interests and third-country strategic choice may be more influential in shaping cloud infrastructure than any imperialist expansion or containment by the superpowers.
The Legal Landscape of Surrogacy in China
Posted on Thu, Jan. 25, 2024
Yingying Wu, China University of Political Science and Law
Surrogacy has increased globally due to the development of medical technology. In light of the abolition of the one-child policy in China, demand for surrogacy among Chinese citizens has increased, especially in single-child families that would like a second child but worry about childbearing at an advanced age. Meanwhile, highly educated women tend to have children at an advanced age. Hence, the need for surrogacy has risen. However, current policies and laws in China prohibit surrogacy, resulting in a domestic black market and people seeking international surrogacy. This article surveys legal and judicial practices in China and attempts to forecast whether China is likely to explicitly prohibit or legitimize surrogacy in the short term.
Decoding the Rise of Central Bank Digital Currency in China: Designs, Problems, and Prospects
Posted on Thu, Jan. 25, 2024
Pangyue Cheng, National University of Singapore
This article spotlights the unexamined issue of digital currency regulation by examining the practice and related regulatory rules of the pilot CBDC in China. Beginning with the global design choices of digital currencies, the article comparatively examines the technical design of China’s CBDC, known as e-CNY. It further triggers a rethinking of conventional regulations for the protection of digital currency information by investigating the gap between the actual operation and design of e-CNY, as well as the gap between pilot policies and legal provisions. This article argues that, on the one hand, the legislative balance between the protection of personal information and the regulation of illicit financial activities involved in the “loosely coupled account link” system of e-CNY should be reconsidered. On the other hand, the delineation of rights and responsibilities between dissemination institutions, payment service providers, and end-users needs to be further redefined and clarified.
Judging Under Authoritarianism
Posted on Wed, Jan. 24, 2024
Julius Yam, The University of Hong Kong
Authoritarianism has significant implications for how judges should discharge their duties. How should judges committed to constitutionalism conduct themselves when under authoritarian pressure? To answer this question, the article proposes a two-step adjudicative framework, documents a variety of judicial strategies, and proposes how principles and strategies can and should be incorporated into the framework in different scenarios. The first step of the adjudicative framework involves judges identifying the ‘formal legal position’ while blindfolding themselves to extra-legal factors (such as potential authoritarian backlash). In the second step, depending on the level of risk incurred by maintaining the formal legal position, judges should lift the blindfold to check whether, and if so how, the formal legal position should be supplemented with or adjusted by judicial strategies. Through this analysis, the article offers a guide to judicial reasoning under authoritarianism.
A Systematic Review of Climate Policies in China: Evolution, Effectiveness, and Challenges
Posted on Tue, Jan. 23, 2024
Shu Wu, Zhejiang University of Finance and Economics
Due to its strong economic growth, coal-dominated energy structure, and enormous emission base, China's climate policies are of global relevance and likely to determine the success of global climate efforts. Based on 229 climate policies and extensive literature since the 1980s, this study outlines China's climate governance by tracking policy evolution, reviewing principal policy instruments, evaluating policy effectiveness, and identifying challenges.
Chinese Influence through Technical Standardization Power
Posted on Tue, Jan. 23, 2024
Tim Rühlig, German Council on Foreign Relations
Geo-economic rivalry is back on the international agenda, particularly in the field of high technology. Very often, technical standards are regarded as being a central arena of this competition. Surprisingly ignored is the question, how precisely technical standard-setting (such as Wi-Fi or 5G) empowers China. Based on the analysis of quantitative data, primary sources, and in-depth interviews, this article substantiates the widespread hypothesis that China’s growing footprint in technical standardization empowers the Chinese party-state. It introduces seven proxies to measure influence on standard-setting. Next, it explains how technical standards can be utilized by states to gain economic, legal, political, and discursive influence. Finally, it shows that China’s growing footprint in technical standardization is the result of party-state engagement, which provides leverage to China’s political leadership.
How China Lends: A Rare Look into 100 Debt Contracts with Foreign Governments
Posted on Mon, Jan. 22, 2024
Anna Gelpern, Georgetown University
Sebastian Horn, Kiel Institute for the World Economy
Scott Morris, Center for Global Development
Brad Parks, Center for Global Development
Christoph Trebesch, Kiel Institute for the World Economy
China is the world’s largest official creditor, but people lack basic facts about the terms and conditions of its lending. Very few contracts between Chinese lenders and their government borrowers have ever been published or studied. This paper is the first systematic analysis of the legal terms of China’s foreign lending. The authors collect and analyse 100 contracts between Chinese state-owned entities and government borrowers in 24 developing countries in Africa, Asia, Eastern Europe, Latin America and Oceania, and compare them with those of other bilateral, multilateral and commercial creditors. Three main insights emerge. Overall, even if these terms were unenforceable in court, the mix of confidentiality, seniority and policy influence could limit the sovereign debtor’s crisis management options and complicate debt renegotiation. Overall, the contracts use creative design to manage credit risks and overcome enforcement hurdles, presenting China as a muscular and commercially savvy lender to the developing world.
Sovereignty at Sea: The South China Sea Dispute and UNCLOS Implications
Posted on Mon, Jan. 22, 2024
Sofia Kausar, RNB Global university
The South China Sea dispute involves overlapping of territorial claims and maritime conflicts among nations like China, Vietnam, the Philippines, Malaysia, Brunei, and Taiwan. Central to this intricate issue is the interpretation and application of the United Nations Convention on the Law of the Sea (UNCLOS). Beyond regional stability, the South China Sea dispute carries global implications due to its impact on trade routes, valuable resources, and strategic alliances. The interplay between the South China Sea dispute and UNCLOS underscores the tension between territorial claims and international legal principles. A nuanced understanding of these complexities is essential for maintaining stability, upholding legal norms, and facilitating peaceful resolutions within the intricate landscape of maritime geopolitics.
Chinese Energy Financing in the Western Balkans
Posted on Fri, Jan. 19, 2024
Stephen Minas, Peking University
This article analyses Western Balkan coal projects financed by Chinese institutions from the perspective of Energy Community law and identifies multiple breaches of the transposed acquis. It also demonstrates that both the legality and the economic viability of such coal projects will be further imperiled by current and ongoing developments in EU and Energy Community law that respond to the climate crisis, but also by changing Chinese policy on outbound financing for coal and efforts to ‘green’ the Belt and Road. The article concludes that Contracting Parties in the Western Balkans should recognize these growing risks to financing coal projects and should focus on developing renewable energy resources, consistent with their Energy Community commitments.
Transnational Legal Ordering of Modern Trust Law
Posted on Thu, Jan. 18, 2024
Rebecca Lee, The University of Hong Kong
This chapter studies transnational legal orders (TLOs) in the context of trusts and demonstrates that such ordering is evident in the processes through which modern trust norms develop and flow across borders to become a substantive body of transnational and comparative trust law. By reference to innovations and transformations in trust embraced by offshore trust jurisdictions and the rise of the civil law trust in East Asia, this chapter argues that modern trust norms produce multiplicities of legal orders that transcend both offshore and onshore jurisdictions, as well as both common law and civil law jurisdictions.
Sources of Tax Revenue in China
Posted on Thu, Jan. 18, 2024
Wei Cui, University of British Columbia
Few would deny taxation’s critical role in the Chinese economy and Chinese politics, yet social scientific investigations of Chinese taxation remain preliminary and fragmented. This is traceable to the under-development of scholarship with a normative orientation—research that aims to assess Chinese taxation from the perspective of economic efficiency, redistribution, and other social objectives. The chapter starts with an analysis of China’s major tax policy instruments, clarifying misconceptions and assessing efficiency and distributional properties. It then critiques recent scholarship on taxation's impact on China's economy, highlighting shortcomings in policy analysis and overlooked normative tax design questions. The chapter explores political institutions and public finance, including revenue-raising incentives, tax competition, and business-government relations. It urges scholars to better articulate the implications of their studies for theory or policy. Lastly, it evaluates how research on tax administration and compliance enhances our understanding of China's political economy and fiscal capacity investments.
Negotiating Legality: Chinese Companies in the US Legal System
Posted on Wed, Jan. 17, 2024
Ji Li, University of California, Irvine
Despite escalating geopolitical rivalry, the US and China continue to be economically intertwined. Numerous Chinese companies have made substantial investments in the US and are reluctant exit this strategically important market. While the global expansion of Chinese companies has ignited intense policy and academic debates, their interactions with complex host-state legal systems have largely escaped systematic examination. To fill this knowledge gap, this book introduces a dual institutional framework and applies it to analyzing extensive interviews and multi-year survey data, thereby shedding light on how Chinese companies develop in-house legal capacities, engage with US legal professionals, and navigate litigation in US courts.
Talk: Women’s Property Rights under CEDAW
Posted on Tue, Jan. 16, 2024
Philip K. H. Wong Centre for Chinese Law, The University of Hong Kong
For over 40 years, the leading international treaty body on women's rights, the Committee on the Elimination of All Forms of Discrimination Against Women (the CEDAW Committee), has been generating jurisprudence interpreting CEDAW's obligations that states protect the equal rights of women in relationships; family rights, including inheritance; rights to land, adequate housing, financial credit, social benefits, intellectual property, and other economic rights dependent on equal access to justice. This book concludes that CEDAW’s re-engendering of property—although a flawed and evolving work in progress—has the potential to be transformative for the half of the planet who is more likely to be treated as property than to have any.
Date & Time: January 25, 2024, Thursday, 13:00–14:00 (Zoom)
International Speaker Series Spring 2024
Posted on Tue, Jan. 16, 2024
Philip K. H. Wong Centre for Chinese Law, The University of Hong Kong
In Spring 2024, our Centre is excited to host a new round of International Speaker Series, featuring distinguished scholars from the United States, Europe and China. These interactive talks will showcase the latest ideas and publications related to domestic and international laws, offering fresh perspectives on topics such as women's rights, EU competition law, legal compliance for Chinese companies in the United States, and Chinese tech regulation. Anyone with a keen interest in China is most welcome to join us!
A Roadmap for a US-China AI Dialogue
Posted on Mon, Jan. 15, 2024
Graham Webster, Stanford University
Ryan Hass, Brookings
When President Joe Biden and General Secretary Xi Jinping met in California in November 2023, their governments announced a new bilateral channel for consultation on artificial intelligence (AI). If both governments scope this effort wisely and focus on several concrete, tractable issues, they may have an opportunity to make lasting progress in reducing risks and building consensus around the governance of emerging technologies. If they fail to coalesce around common objectives, though, they risk creating another forum for ritual airing of grievances. This window of opportunity may be fleeting, so they must use it purposively.
Hong Kong’s Common Law System under “One Country, Two Systems”: History and Development
Posted on Fri, Jan. 12, 2024
Philip K. H. Wong Centre for Chinese Law, The University of Hong Kong
This lecture presents the preservation of the original common law system by the Hong Kong Basic Law under “One Country, Two Systems,” primarily by exploring the historical context of the Sino-British Joint Declaration negotiations and the formulation of the Hong Kong Basic Law. From the perspective of safeguarding residents’ basic rights under the Hong Kong Basic Law, this lecture will elucidate the evolution of the common law system as upheld by the courts of the Hong Kong Special Administrative Region (SAR) following the handover. Moreover, within the context of China’s “14th Five-Year Plan” and the burgeoning construction of the Guangdong-Hong Kong-Macao Greater Bay Area, this lecture will investigate ways to maintain the benefits of Hong Kong’s common law system while integrating it into China’s broader progress.
Date & Time: 24 January 2024 (Wednesday) 17:30 – 19:35
Venue: Academic Conference Room, 11/F, Cheng Yu Tung Tower, HKU (Live via Zoom)
Unveiling China's Path to Innovation
Posted on Fri, Jan. 12, 2024
Qingfeng Luo, Southwestern University of Finance and Economics
Xi Zhao, Southwestern University of Finance and Economics
The spatial Durbin model is employed to examine the factors influencing spatial relevance and diverse differentiation of intellectual property protection, utilizing panel data from 283 prefecture-level Chinese cities spanning from 2010 to 2019. The findings reveal substantial regional disparities in intellectual property protection, attributed to innovation capacity, knowledge spillovers, industrial structure, judicial protection, administrative protection, and social supervision.
Choice of Law and Recognition in Asian Family Law
Posted on Thu, Jan. 11, 2024
Anselmo Reyes, Singapore International Commercial Court
Wilson Lui, The University of Hong Kong
Kazuaki Nishioka, Chuo University
This thematic volume outlines the general choice of law and recognition rules relating to family matters of 15 Asian jurisdictions: Mainland China, Hong Kong, Taiwan, Japan, South Korea, Singapore, Malaysia, Vietnam, Cambodia, Myanmar, the Philippines, Indonesia, Thailand, Sri Lanka and India. The book provides a comprehensive analysis of cross-border family law challenges, including child surrogacy, child abduction, the recognition of same-sex unions, the recovery of maintenance, and the regulation of intercountry adoption. These are among the matters now testing Asian institutions of private international law and acting as forces for their modernisation. With contributions by leading Asian private international law experts, the book proposes necessary reforms for each of the jurisdictions analysed as well as for Asia as a whole.
The Futility of Hostile Takeovers in China
Posted on Wed, Jan. 10, 2024
Chun Zhou, Zhejiang University
Samantha Tang, National University of Singapore
China’s emerging hostile takeover market has become the darling of the international business world. Following wave after wave of unsolicited takeover bids over the past five years, pundits have been eagerly predicting a tsunami of successful hostile takeovers to arrive any day now. But China’s hostile takeover market remains a mirage. Few hostile bids have ever succeeded, and China’s market for corporate control is littered with high-profile failures. The authors argue that it is the futility – and not success – of hostile takeovers that is inevitable in China. The confluence of idiosyncratic local factors, such as China’s state-dominated controlling shareholder environment, institutional reluctance to enforce takeover regulations to facilitate takeovers, and government intervention at both central and local levels, render a successful hostile takeover improbable.
Abuse of Dominance in the Hong Kong Television Sector
Posted on Wed, Jan. 10, 2024
Kelvin Kwok, The University of Hong Kong
This article critically evaluates legal developments in relation to the regulation of abuse of dominance in the Hong Kong television sector, focusing on the milestone case of Television Broadcasts Ltd (TVB). The decisions of the Communications Authority (CA) and the Court of First Instance (CFI) in 2013 and 2016 respectively provided important insights on the application of the small but significant and non-transitory decrease in quality (SSNDQ) test in two-sided markets and the ‘purpose/object’ and ‘effect’ tests to exclusivity practices, and more generally, the analysis of abuse of buyer power in a labour market setting. Hong Kong competition authorities are likely to be confronted with similar issues as they gradually expand their enforcement activities into digital markets and abuse of market power scenarios beyond the broadcasting sector.
China’s National Security Review of Foreign Investment: A Comparison with the United States
Posted on Tue, Jan. 7, 2024
(Robin) Hui Huang, Chinese University of Hong Kong
This paper critically examines China’s national security review regime of foreign investment and compares it with that of the United States. This paper finds that the national security review regimes of the two jurisdictions have functional convergences despite some formal divergences caused by diverse political-economy landscapes. Their functional convergences are highlighted by China’s local practices, such as the de-facto national security screening in the name of anti-monopoly review. There are many factors affecting China’s national security review regime for foreign investment, including the ongoing (and escalating) US-China competition (or conflict) at the international level and the evolution of state or party capitalism at the domestic level. These research findings will not only contribute to the existing comparative law scholarship, but also benefit multi-national enterprises that seek to enter Chinese and the US markets.
China’s Short-Sighted AI Regulation
Posted on Tue, Jan. 7, 2024
Angela Huyue Zhang, The University of Hong Kong
The Beijing Internet Court’s ruling that content generated by artificial intelligence can be covered by copyright has caused a stir in the AI community, not least because it clashes with the stances adopted in other major jurisdictions, including the United States. In fact, that is partly the point: the ruling advances a wider effort in China to surpass the US to become a global leader in AI. From the government to the courts, Chinese authorities have become fixated on ensuring that the country can surpass the US to become the global leader in artificial intelligence, no matter the cost. They seem not to realize just how high that cost may turn out to be.
The Cambridge Handbook of Foreign Judges on Domestic Courts
Posted on Mon, Jan. 6, 2024
Anna Dziedzic, University of Melbourne
Simon N. M. Young, The University of Hong Kong
Foreign judges sit on domestic courts in over fifty jurisdictions worldwide. They serve on ordinary courts, including apex and constitutional courts, as well as specialist courts, such as international commercial courts and hybrid criminal tribunals. This Handbook presents the first global comparative study of this long-standing, diverse and evolving practice, from colonial precedents to new forms of foreign judging in contemporary conditions of globalisation. Chapters by scholars of law, politics and history, and reflections by judges themselves, provide detailed information and critical analysis of foreign judging across Africa, Asia, the Caribbean, Europe, the Middle East and the Pacific. The chapters examine the notion and relevance of foreignness, rationales for foreign judges, and the implications for judicial identity, adjudication, independence and accountability. Focusing on an underexplored issue that features mainly in small states and jurisdictions of the Global South, this Handbook challenges assumptions and expands knowledge about courts and judges.
Property Law: Comparative, Empirical, and Economic Analyses
Posted on Mon, Jan. 6, 2024
Yun-chien Chang, Cornell University
This book uses a unique hand-coded data set on nearly 300 dimensions on the substance of property law in 156 jurisdictions to describe the convergence and divergence of key property doctrines around the world. The author quantitatively analyzes property institutions and uses machine learning methods to categorize jurisdictions into ten legal families, challenging the existing paradigms in economics and law. Using other cross-country data, the author empirically tests theories about property law and comparative law. Using economic efficiency as both a positive and a normative criterion, each chapter evaluates which jurisdictions have the most efficient property doctrines, concluding that the common law is not more efficient than the civil law. Unlike prior studies on empirical comparative law, this book provides detailed citations to laws in each jurisdiction. Data and documentation are publicly available on the author’s website.
Workshop: The Constitution and the Civil Code
Posted on Fri, Jan. 5, 2024
The University of Hong Kong
The Workshop will explore the relationship between constitution and civil codes, focusing attention on Asia, albeit from a broad, comparative perspective. Two themes are particularly important: (i) the structure of the relationship between constitutional (or human) rights and the private law; and (ii) the interactions between domestic institutions – the courts, the legislature, the executive – in efforts to “constitutionalize” civil codes, if any. The Workshop will depart from a traditional “conference format,” in that participants will not present papers. Instead, they have produced short texts that will help to organize our “roundtable” discussions.
Date: January 12-13, 2024 (Friday & Saturday)
Venue: Room 901, Cheng Yu Tung Tower, HKU (In-person)
How the Chinese Diaspora Paved the Way for BRI
Posted on Thu, Jan. 4, 2024
Richard Cullen, The University of Hong Kong
The biggest international trading venture in world history is 10 years old. But there’s an extraordinary tale behind the Belt and Road Initiative, or BRI. And that’s the story of the exceptional Chinese Diaspora experience, which laid the foundations for the infrastructure project’s success. This Chinese macro-migration endeavour, individual by individual, long predates the remarkable BRI, which is, today, measurably retracing the diaspora’s pioneering footsteps.
Posted on Thu, Jan. 4, 2024
Ling Chen, McGill University
Ruoying Li, Peking University
Emissions data collection and management are crucial to operationalizing an emissions trading scheme (ETS). Regulators need high-quality data to allocate emissions allowances and monitor compliance. However, collecting such data can be costly, challenging various actors. Emitters may misreport data, weighing the cost against their interest, while governments may struggle with limited resources in managing compliance. Third-party verification is a solution but tends to be ineffectual and causes new problems unless with sufficient oversight and support. This quality-cost dilemma becomes even more complex in multi-level ETSs, as in China’s national ETS (NETS). This Article establishes a three-element analytical framework—data quality, cost concerns, and intergovernmental relations in data management—to shed light on the nuances of data regulation. The actor-centered analytical model and practical recommendations for the NETS can serve as a valuable guide for jurisdictions facing similar data challenges.
Posted on Wed, Jan. 3, 2024
The University of Hong Kong
The HKU Centre for Interdisciplinary Legal Studies will host its inaugural “Law &…” conference on interdisciplinary legal research. This event will bring together researchers from around the world to examine, share, celebrate, and critique interdisciplinary approaches to legal studies. The conference will be held on May 22–23, 2024. It will feature a wide range of speakers, including a keynote presentation by Mark Suchman, Executive Director of the American Bar Foundation. We invite submissions from those interested to attend.
Legal Strategy for Commercial Hostage-Taking and Business Exit Bans
Posted on Wed, Jan. 3, 2024
Jack Wroldsen, California Polytechnic State University
When an everyday civil business dispute arises in China between a U.S. company and a Chinese company, such as an alleged contract breach, employees of the U.S. company may find themselves subject to an exit ban and unable to leave the country or locked in a guarded hotel and unable to leave their room. When U.S. business leaders or their employees are subject to exit bans or become commercial hostages in China, they confront a problem unlike almost any other they face in the ordinary course of business in the U.S. Relying in part on previously confidential exit ban data on U.S. citizens, obtained from the U.S. Embassy in Beijing under a FOIA request, this article explains how U.S. and other nations’ business leaders can use legal strategy to prepare for and handle commercial hostage and business exit ban situations. The article also explains the Chinese legal and cultural influences that give rise to both practices.
Sino-American Parallels in Administrative Law
Posted on Fri, Dec. 29, 2023
Andrew Willinger, Duke University
This Article explores the parallels between challenges to agency deference in the United States and recent popular concerns about arbitrary local government action in China. By analyzing both legal scholarship and media reports, the Article shows that these phenomena are two sides of the same coin. While China is not likely to embrace judicial independent, this Article suggests two ways to address perceived local government overreach in China—informed by the American experience with Chevron. Rather than rely on normal judicial review, which is likely to be highly deferential in the Chevron mold, the Chinese judiciary might embrace broader policy suggestions and conduct more probing textual analysis of whether local governments are acting in accordance with positive, statutory law.
Monopoly and Fragmentation: Data Collection in Chinese Empirical Legal Studies
Posted on Thu, Dec. 28, 2023
Qin (Sky) Ma, New York University
The quality of empirical research is dependent on the reliability and validity of the data collected. This paper aims to analyze the problems in data collection methods in Chinese empirical legal studies. Based on the analysis of 692 empirical legal research articles published in Chinese core journals, this study has identified the prominent problems including serious monopoly, fragmentation, over-reliance on secondary data, incompleteness of data, and unclear descriptions of data collection methods, etc. These problems have severely limited the validity, depth, and development of Chinese empirical legal research. The findings highlight the necessity of addressing the deficiencies in data collection to promote the quality of empirical legal research.
Posted on Thu, Dec. 28, 2023
Wei Zhang, Singapore Management University
Despite the increasing tension between China and US, a student of Chinese law will be surprised at the increasing similarity between corporate and securities laws in China and US. Many Chinese twists as there are, the overall trajectory of China’s corporate and securities laws appears evidently moving closer toward their American counterparts. The author will trace the recent changes in Chinese laws, regulations and judicial interpretations and decisions to substantiate this point. At the same time, the author will also present an analytical framework to explain this legal convergence in an era of decoupling between China and the US. The explanation is based on two key factors, legal professionalism and political populism. Understanding the convergence of Chinese corporate and securities laws to their American counterparts will enable us to make a better-informed assessment of the uniqueness of China’s corporate governance and securities regulation paradigms.
How Do Patent Subsidies Drive SMEs to Patent? Evidence from China
Posted on Mon, Dec. 11, 2023
Runhua Wang, The University of Science and Technology Beijing
This study explores how patent subsidies have promoted the patenting propensities of small and medium-sized enterprises (SMEs) in China. Patent subsidy policies provided limited financial support but sent signals to create prospects of obtaining policy surpluses by filing patent applications. This study provides empirical evidence of the signaling effect by showing that innovation-inactive SMEs and SMEs in patent-free industries filed inframarginal patent applications. Ex-ante subsidy policies offered stronger signals than ex-post subsidy policies. However, after a pro-patent culture was cultivated, SMEs were impervious to a decrease in patent subsidies and did not effectively perceive messages of strengthening patent quality from further policy changes. The signaling effect suggests effective policies for promoting patent applications in a weak patent regime that does not reward patents through the market. By contrast, it also accompanied distortion effects, indicating the policy’s failure to reduce the transaction costs associated with SME adapting to the patent regime.
‘Duty-Related Violations’: An Umbrella Notion for Politicising the Supervisory System in China
Posted on Mon, Dec. 11, 2023
Su Bian, Jiangsu Ocean University
The promulgation of the Supervision Law in China reflects the central government’s determination to combat ‘corruption’ at a new level. The National Supervisory Commission was established as an independent commission with broad-ranging supervisory powers, along with other supervisory commissions at local level. While these commissions’ jurisdiction over ‘duty-related crimes’ is prescribed in detail by law, what ‘duty-related violations’ are and how the commissions supervise them remain blind spots in the Supervision Law. This paper analyses supervision-related administrative judgments from 2018 to 2021 to summarise the three channels through which supervisory commissions can become involved in administrative litigation, yet none of them support the undertaking of judicial review. In this respect, the vague definition of duty-related violations, combined with the lack of an effective judicial review mechanism, can have adverse effects on the rule of law project that China has been striving to build over the past four decades.
Posted on Fri, Dec. 8, 2023
Matthew S. Erie, University of Oxford
Two historically disparate fields of law—property and national security—are colliding and they are doing so through the hyper-activity of state governments. Against the backdrop of the U.S.-China trade/tech war, state governors and legislatures try to out-compete each other in introducing China-related bills to sever all ties with China, stunt the growth of Sinocentric supply chains, and neutralize China’s soft power in the world. While the state bills operate in parallel to federal legislation and regulation, in many instances, states’ activities go much farther than federal efforts. States are laboratories of China-delinking. National security is often the justification for these laws. While the state statutes are strong symbolic aspects, they are already affecting property relationships, and raise a host of constitutional and foreign affairs questions. These issues have galvanized litigation that is working its way through the federal court system. The infusion of national security into property law has potentially far-reaching consequences not only for Chinese citizens resident in the U.S. and also for U.S.-China relations, but also for the future development of property law.
China’s Dilemma in Renewing Its Belt and Road Initiative
Posted on Thu, Dec. 7, 2023
Leon Trakman, University of New South Wales
China faces difficult choices in renewing its Belt and Road Initiative (BRI) in the post-Pandemic era. With its primary BRI now extending from Asia to Africa, Latin America and beyond, China is depicted as a saviour rescuing developing states from their colonial roots and sublimation to the economic outreach of Western liberal states. Alternatively, China is envisaged as a new colonial landlord acquiring property through investment and exploiting local economies for its own economic and political good, at their expense. For those mediating between these two extremes, China is both well intended in seeking to promote global investment and to assist developing states, while sometimes aggressively seeking economic benefits for its outbound investors. Whether it is doing so primarily for its own good or for the wellbeing of its developing state partners, conciliators infer, would depend on the specific case. This article explores these dynamics in China’s treaties providing for settling investment disputes along its BRI. It examines how China might reframe these dispute resolution options in the future.
Can China Squelch Free Speech Beyond Its Borders?
Posted on Thu, Dec. 7, 2023
Ge Chen, Durham University
This research presents a pioneering analytical framework that delves into the structural implications of China’s transnational censorship on global freedom of expression over the past decade. The study meticulously unpacks the party-state’s evolving transnational censorship laws, highlighting their novel structural nuances. It further investigates the multi-faceted strategies employed by the party-state to amplify its authoritarian influence across political, economic, and technological domains. At its core, these laws, while appearing to adhere to a legitimate legal framework, are characterized by their unique normative features. Collectively, they not only reshape the content of global discourse but also challenge the prevailing international order that upholds free speech.
The Chinese Approach to Artificial Intelligence: an Analysis of Policy, Ethics, and Regulation
Posted on Wed, Dec. 6, 2023
University of Oxford
In July 2017, China’s State Council released the country’s strategy for developing artificial intelligence (AI), entitled ‘New Generation Artificial Intelligence Development Plan’. This strategy outlined China’s aims to become the world leader in AI by 2030, to monetize AI into a trillion-yuan (ca. 150 billion dollars) industry, and to emerge as the driving force in defining ethical norms and standards for AI. Several reports have analyzed specific aspects of China’s AI policies or have assessed the country’s technical capabilities. Instead, this article focuses on the socio-political background and policy debates that are shaping China’s AI strategy. In particular, it analyzes the main strategic areas in which China is investing in AI and the concurrent ethical debates that are delimiting its use. By focusing on the policy backdrop, this article seeks to provide a more comprehensive and critical understanding of China’s AI policy by bringing together debates and analyses of a wide array of policy documents.
Posted on Wed, Dec. 6, 2023
Yongxi Chen, Australian National University
Anne S. Y. Cheung, The University of Hong Kong
This article first maps out the background to the construction of China’s big data social laboratory and the Social Credit System (SCS), and then summarises the legislative history and evolving concept of social credit. It stresses that apart from the conspicuous SCS policy document introduced by the Chinese central government, pilot legislation has already been implemented at the local levels to regulate the collection and processing of social credit data. The third part critically reviews such local legislation with reference to personal data protection principles. It also highlights the restrictions on the data subjects’ rights that are placed by the uncoordinated legal framework of personal data and the extra-legal regime of personal archive. It argues that existing legislation and proposed regulations require substantial revisions to mitigate the impacts of the SCS on data privacy. This article hopes to lay the groundwork for further legal study related to social credit and big data in China.
Talk: The Law of the Sea and Uncertain Futures (Dec 21 2023)
Posted on Tue, Dec. 5, 2023
Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong
The future can no longer be proofed under existing rules-based international order. Rather, the international community is facing very uncertain global futures. While international community celebrated the 40th Anniversary of the United Nations Convention on the Law of the Sea in 2022, we are at a critical period of developing global regimes for the world’s oceans: the United Nations Conference on Marine Biodiversity in Areas beyond National Jurisdiction (2023 BBNJ Agreement), the Convention on Biological Diversity’s Kunming-Montreal Global Biodiversity Framework (2022), International Seabed Authority’s Mining Code and the Plastics Treaty are all being developed simultaneously. It is therefore essential and timely to examine to what extent current development of the law of the sea can address triple-planetary crisis – climate change, biodiversity loss and pollution, in order to navigate uncertainties towards a peaceful and sustainable future.
Date & Time: December 21, 2023 (Thursday) 12:30-13:30
Venue: Room 723, 7/F, Cheng Yu Tung Tower, HKU (In-person)
Urban Commons on Uncommon Ground: Contesting Co-Governance in China's Global Cities
Posted on Mon, Dec. 4, 2023
Guanchi Zhang, Vermont University
Urban centers worldwide, including those in the United States and China, grapple with a paradox – they are powerhouses of wealth and opportunity, yet they simultaneously suffer from increasing unaffordability and exclusiveness. Can land use regulations be the key to making our urban environments prosperous and common? This paper draws on the growing discourse surrounding urban commons – the idea that views urban land as a shared resource, with individual usage influencing comprehensive economic and social outcomes for the community. The discourse moves beyond the traditional, growth-centric approach favoring the “optimal use” of land, contrasting it with an emerging co-governance paradigm. This alternative model encourages an equitable distribution of power and interests among communities, governments, and developers, fostered through systematic collective action.
“Confucius” and America’s Dangerous Myths about Chinese Law
Posted on Mon, Dec. 4, 2023
Daniel Friedman, Villanova University
American legal scholars can’t stop talking about Confucius: there were over 100 law review articles in 2022 alone that reference Confucian ideas, and nearly 1,500 during the last five years. Almost all of them are wrong about what Confucius has meant for Chinese legal culture. In the face of five decades of contrary historical scholarship, these law review articles argue or imply that Chinese law started to become “Confucian” about 2,000 years ago and has never really changed since. That continuity (or stagnation), these scholars claim, is one of the keys to understanding contemporary Chinese law. As this article will show, the reality is very different.
The Private Law Influence of the Great Qing Code
Posted on Fri, Dec. 1, 2023
Taisu Zhang, Yale University
This chapter considers the socioeconomic functionality of legal codes and codification through the lens of late imperial Chinese legal history. Specifically, it asks whether formal legal codes can wield significant influence over private socioeconomic behavior despite being poorly enforced—or even unenforced—and whether such influence derives, in part, from the symbolic value of codification itself. It argues that the answer to both questions is likely “yes,” at least in the context of Qing Dynasty private law. This contains potentially generalizable insights into the nature of legal authority and prestige, some of which may potentially be applied to the recent passage of the Chinese Civil Code in 2020.
Rape-by-Deception in China: A Messy but Pragmatically Desirable Criminal Law
Posted on Fri, Dec. 1, 2023
Jianlin Chen, University of Melbourne
Bijuan Lu, Avantro
China’s Criminal Law defines rape to include circumstances where a perpetrator “by violence, coercion, or any other means rapes a woman.” This article critically investigates whether and how this provision is applicable to the use of deception to obtain sexual intercourse, and makes three contributions. First, it demonstrates that religious fraudulent sex, medical fraudulent sex, and impersonation of intimate partners are punished as rape in China. Second, it argues that current Chinese law is normatively desirable vis-à-vis the general consensus among scholarly commentary and legal practices elsewhere. Third, it highlights the unique starting point of Chinese sexual offenses provisions as compared to both common law and civil law jurisdictions. This case study of China challenges the prevailing assumption in English-language literature that civil law jurisdictions are less receptive towards fraudulent sex criminalization.
Posted on Thu, Nov. 30, 2023
Alexander Chan Hou Lou, Tsinghua University
Current academic discourse in China predominantly centers on the fair use of personal information within the frameworks of either the Civil Code or the Personal Information Protection Law (PIPL), often overlooking the coordination challenges that arise between these two legislative instruments. Such an oversight complicates the statutory interpretation of contentious matters such as “fair use” versus “post-hoc refusal” concerning disclosed personal information. This gap in understanding is evident in judicial divergences observed in cases involving the secondary publication of judgments, such as the Yi Case and the Liang Case. To address this lacuna, this paper proposes the integration of cognitive science’s “Dual Process Theory” into legal studies.
Comparison of Women’s Abortion Rights between China and the United States
Posted on Thu, Nov. 30, 2023
Xiaojing Gao, George Washington University
This paper compares the current abortion laws in the United States and China and discusses China’s strict restriction on forcing women to abort during China’s one-child policy between 1980 and 2015. It proposes that first, the U.S. Supreme Court’s decision in Dobbs v. Jackson of eliminating the federal constitutional right to abortion went too far to an extreme just like China’s one-child policy. This shift has made a democratic country act like a collectivist country by leaving women no individual freedom. Second, depriving women’s federal constitutional right to abortion violated international human rights. Further, the holding in Dobbs violates the United States’ treaty obligations under the ICCPR. Eliminating women’s abortion rights violates women’s right to autonomy, the right to be free from torture and cruel, inhuman, or degrading treatment.
Posted on Wed, Nov. 29, 2023
Christopher Balding, Fulbright University Vietnam
Donald C. Clarke, George Washington University
As Huawei has come under increasing scrutiny, the question of who really owns and controls it has come to the fore. Huawei calls itself “employee-owned,” but this claim is questionable, and the corporate structure described on its website is misleading. A number of pertinent facts about Huawei’s structure and ownership are in fact well known and have been outlined many times in the Chinese media, but the myth of Huawei’s employee ownership seems to persist outside of China. This article, drawing on publicly available sources such as media reports, corporate databases, and court cases, aims to refute this myth once and for all.
'Me Too': Public Opinion Movement as Collective Action
Posted on Wed, Nov. 29, 2023
Yao Lin, New York University
This article is the first in a two-paper series, which offers a comprehensive and systematic review of, and response to, various anti-MeToo arguments made by MeToo skeptics. Taking the U.S. and China as examples, the first section overviews the local contexts of anti-sexual-assault/harassment movements, and the respective issues and challenges they each confront. It then summarizes the three primary objectives of the MeToo movement (accountability, empowerment and reform) and the three ideal-typical critiques advanced by MeToo skeptics (the Mobs Critique, the Damsels-in-Distress Critique, and the Puritans Critique). The second through fourth sections will address various versions of the Mobs Critique and the fifth section the Damsels-in-Distress Critique, whereas the Puritans Critique will be left for the forthcoming second article in the series.
Chinese Cross-border Insolvency Laws: Recent Developments and International Implications
Posted on Tue, Nov. 28, 2023
Shuai Guo, China University of Political Science and Law
Jieche Su, China University of Political Science and Law
The present Chinese insolvency law is under the process of legislative reform, and one focus point among legislators and academics is cross-border issues. China is slowly opening up its market to foreign insolvency proceedings, as demonstrated by the 2021 Chinese Mainland-Hong Kong cross-border insolvency cooperation mechanism. This first attempt, however, is only available in three trial cities in the Mainland and does not apply to jurisdictions other than Hong Kong. Nevertheless, it does not undermine the intention of the Mainland to advance its cross-border insolvency framework. Based on a thorough examination of Chinese legislation and judicial practices, this article submits that China would be willing to accept international standards and be a more active player in international insolvencies.
Evolution of Co-Patent Network and Patent Citation Network Centering on Chinese Firms
Posted on Tue, Nov. 28, 2023
Taro Akiyamma, University of Niigata Prefecture
Baojun Fang, University of Niigata Prefecture
This study investigates Chinese firms’ co-patenting and citation networks and examines their evolution since 1985. The co-patenting network exhibits declining betweenness centrality, indicating a more decentralized innovation ecosystem. By contrast, the citation network’s transitivity remains stable owing to the narrowing of the technological gap. Chinese universities hold central positions in the co-patenting network, whereas firms from the US, Japan, Germany, Taiwan, and South Korea maintain active interactions with China in the citation network. The increasingly interconnected structure of citation networks fosters a collaborative innovation environment, emphasizing the value of impactful innovations and strategic network positioning for enhanced innovation performance. These findings underscore the importance of these networks in fostering innovation and knowledge diffusion in China.
The Belt and Road Initiative and Sustainability: A Driving Force for Change or a Missed Opportunity?
Posted on Mon, Nov. 27, 2023
Roza Nurgozhayeva, Nazarbayev University
The traditional approach to regulating sustainability issues has empowered international institutions, states, and multinational corporate actors to lead and coordinate the worldwide agenda of a more sustainable future. However, the existing constraints create significant barriers to achieving the global sustainable development agenda. The fundamental questions, then: (1) to what extent does the Belt and Road Initiative (BRI) proposed by China help translate international sustainability commitments into global actions and create sufficient incentives to address suitability challenges worldwide? and (2) what are the constraints that erode the BRI’s effect on global sustainability?
Conference: Regulating Generative AI (Dec 14-15 2023)
Posted on Fri, Nov. 24, 2023
Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong
Since 2022, large-scale generative artificial intelligence has taken the global market by storm, revolutionizing industries and transforming people’s lives. However, the proliferation of AI has also spawned intricate legal, ethical, and regulatory challenges. Many countries have heightened their vigilance against AI-related risks, but the varying regulatory priorities and approaches among governments have further complicated the pursuit of responsible and sustainable AI development. In light of these fluid developments, the Philip K.H. Wong Centre for Chinese Law will host the “Regulating Generative Artificial Intelligence” conference to explore important topics such as content moderation, data security, intellectual property protection, ethics compliance, international cooperation, and standard-setting. Our hope is to facilitate international cooperation and contribute to the global dialogue on AI governance and regulation. All welcome to join!
Date & Time: 14 - 15 December 2023, Thursday & Friday, 09:00-17:30
Venue: Academic Conference Room, 11/F, Cheng Yu Tung Tower, HKU (in-person only)
Talk: On the Right to a Human Decision (Dec 12 2023)
Posted on Fri, Nov. 24, 2023
Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong
The spectacular development of AI-based technologies raises the question whether the encroachment of these technologies upon our lives should be constrained in various ways. Among the more normatively powerful and rhetorically resonant forms of constraint is the kind established by individual rights, especially human rights. And there has been an important discussion underway for some time now as to whether new developments in AI and digital technologies generally require that we re-conceive our understanding of human rights in various ways. In this talk, Professor Tasioulas focuses on one potential reconception: that the rise of AI justifies the recognition of a right to a human decision which requires, among other things, that certain types of decisions are made by humans and not AI systems.
Date & Time: 12 December 2023, Tuesday, 12:00-13:00
Venue: Academic Conference Room, 11/F, Cheng Yu Tung Tower, HKU (in-person only)
Competing with Leviathan: Law and Government Ownership in China’s Public-Private Partnership Market
Posted on Thu, Nov. 23, 2023
James Si Zeng, Chinese University of Hong Kong
Despite years of economic reform, government-owned enterprises (GOEs) continue to be prevalent in certain sectors of China’s economy. Drawing on empirical evidence from China’s public-private partnership (PPP) market, this article empirically tests whether the theory of the ownership of enterprise can explain the distribution of GOEs in China. First, the enforcement of PPP contracts remains relatively weak in China, which gives rise to the concern of government opportunism. Second, the level of government ownership in each project correlates with the chances of government opportunism. These findings show that the level of government ownership is affected by two competing forces—ownership costs and transaction costs. While GOEs incur relatively high ownership costs, they generally incur lower transaction costs because they can curb government opportunism and thus can outcompete private firms in some projects.
Platform Regulation through Sanctions
Posted on Thu, Nov. 23, 2023
Michelle Miao, Chinese University of Hong Kong
This article, theoretically and empirically, articulates the rising role of criminal law as a regulatory tool of China’s digital platform economy. This unique Chinese model of digital platform governance is described as platform regulation through sanctions. Based on a comprehensive survey of a wide range of digital platforms, e.g., financial fundraising platforms, e-commerce, taxi-hailing and video-sharing platforms, and criminal cases involving such platforms, the author reveals the logic of regulation through sanctions: it shifts state regulatory burden and accountability, redistributes risks and responsibility, and enhances political legitimacy. This legal and regulatory of ecology exerts pressure on digital platforms but also allows its power to extend upward to serve public management functions as well as downward to modify individual behavior.
Chinese Law and Development: Implications for US Rule of Law Programs
Posted on Wed, Nov. 22, 2023
Matthew S. Erie, University of Oxford
China is emerging as an alternative source for law and development for low-income and middle-income states. A number of supply and demand factors account for this. On the supply side, China is becoming increasingly assertive in offering “Chinese-style modernization” to host states in the Global South. Specifically, the Party-State has endorsed what is called “foreign-related ‘rule of law’” which is a bi-directional policy initiative that seeks to both integrate more foreign law into the Chinese legal system and also incorporate more Chinese law into foreign and international law. Beyond the political bluster and political signalling, there is evidence of such initiatives affecting legal practice and institutions. On the demand side, host states value Chinese industrial policy, governance strategies, and digital ecosystem as facilitative of China’s economic growth model, of which law and regulation is part. In the long run, these innovations may promote South-South solidarity but they may just as likely support the commercial and geo-strategic interests of Chinese enterprises which may have aggregate effects on access to justice, procedural transparency, and human rights in vulnerable states.
The Geoeconomics of Trade Infrastructure and the Innovation Competition between China and the US
Posted on Tue, Nov. 21, 2023
Kai A. Konrad, Max Planck Institute for Tax Law and Public Finance
China’s high investment in foreign trade structures and the extraordinary innovation efforts of their firms are closely related. They can be explained as a subgame perfect equilibrium outcome of an asymmetric strategic-trade model, in which infrastructure investment renders successful innovation by exporting companies in China more profitable, and in which China and the US have to choose different roles in this innovation competition. That China ends up in the role of the more active investor and the more innovative competitor in this process can be explained by China’s larger export sector and by their competition policy, which is more focused on national champions.
Responsibility for Special Equipment Safety Accidents in China
Posted on Tue, Nov. 21, 2023
Lin Xu, Central South University
Special equipment is widely used across China’s economic and social spheres, forming the basis for stable social and economic growth. However, the particularity of special equipment presents potential safety hazards during operation, which may result in severe accidents or damages. Currently, there are considerable theoretical disparities and legislative shortcomings in defining special equipment safety accidents and allocating legal liability. It is essential to clarify the role of product quality laws and consumer protection laws for special equipment. The function and significance of consumer protection laws in modern society must be determined concerning special equipment safety legislation. Finally, a professionalized national special equipment law should be enacted to eliminate safety hazards and minimize accident damages specific to the production and operation of special equipment.
Characterization (and Registration) of a “BRI Dispute”
Posted on Mon, Nov. 20, 2023
Jamieson Kirkwood, The University of Hong Kong
This article explores the terms “BRI dispute” and “BRI jurisprudence”. It undertakes a practical and theoretical analysis that considers whether “BRI disputes” have distinct and visible characteristics and are capable of being identified in a legal sense. This is important since practitioners – arbitration centres and law firms – use the term broadly and without specific criteria. By exploring the customary usage and the approach of legal scholars to the term, presenting examples of “BRI disputes” and examining their unique features, and constructing a theoretical approach, this article moves from a broad to a narrow analysis to develop both a definition and a system of registration of “BRI disputes” for use by academics, practitioners, and policymakers.
Equality, Dignity and Same-sex Marriage: Reflections on Developments in Hong Kong
Posted on Mon, Nov. 20, 2023
Kelley Loper, The University of Hong Kong
In 2023, the Hong Kong Court of Final Appeal (CFA) heard an appeal of the Court of Appeal’s decision in Sham Tsz Kit v Secretary for Justice, a case challenging the exclusion of same-sex couples from marriage and the lack of other forms of relationship recognition with equivalent rights and responsibilities. This article considers the lower courts’ earlier rejection of these constitutional claims and argues that their conception of the relevant constitutional, legal, and historical contexts is overly narrow. In particular, the failure to invoke the constitutional values of equality and dignity departs from CFA precedent and the well-established “purposive and contextual” approach to the interpretation of constitutional rights.
Addressing a Human Rights Paradox in the Green Transition
Posted on Fri, Nov. 17, 2023
Karin Buhmann, University of Southern Denmark
Current understandings of ‘cleaner production’ include views that companies should act on problems involving human rights, resources, and community involvement. While theory-based knowledge on how investors may do this remains limited, some transnational business governance instruments provide guidance. This article discusses how the human rights paradox of the green transition to fight climate change can be turned into opportunities for investors to contribute to local communities hosting transition minerals mining. The analysis is based on guidance from the OECD, a major market for transition minerals or energy-related products containing such minerals, and China, the world’s largest buyer and manufacturer of transition minerals. The author identifies actions for investors to cascade human rights due diligence and relevant capacity through the investment chain in ways that both limit harmful impacts and contribute beneficially to communities' human rights.
Coded Social Control: China’s Normalization of Biometric Surveillance in the Post-COVID-19 Era
Posted on Fri, Nov. 17, 2023
Michelle Miao, Chinese University of Hong Kong
China widely used health QR codes to combat the COVID-19 pandemic. A commonly held assumption is that health QR codes have become obsolete in post-pandemic China. This study challenges such an assumption. It reveals their persistence and integration—through mobile apps and online platforms—beyond the COVID-19 public health emergency. Their functional transformation from epidemiological risk assessment tools to instruments of behavior modification and social governance heralds the emergence of a Data Leviathan. This transformation is underpinned by a duality of underlying political and commercial forces. These include 1) a structural enabler: a powerful alliance between political authorities and tech giants and 2) an ideological legitimizer: a commitment to collective security over individual autonomy.
Effectiveness of Keepwell Deeds under Chinese Law and Consideration of the Public Interest
Posted on Thu, Nov. 16, 2023
Fang Wang, City University of Hong Kong
Keepwell deed structures are widely used by Chinese companies to enhance credit when they issue bonds overseas due to the limitations posed by foreign exchange regulations. However, when Chinese companies encounter distress and are unable to pay off the debt, questions as to their validity arise. Normally Chinese courts have no jurisdiction over these disputes where the parties have chosen foreign law and have an exclusive choice of the foreign court in the keepwell deed. However, when the enterprise commences an insolvency proceeding, the overseas creditors will have to enforce the keepwell deeds in China. Given the importance of foreign exchange regulation, the enforcement of the keepwell deed in China raises public interest issues.
Data Sovereignty: From the Digital Silk Road to the Return of the State
Posted on Wed, Nov. 15, 2023
Anupam Chander, Georgetown University
Haochen Sun, The University of Hong Kong
Data Sovereignty focuses on the question of territorial control over data flows and attempts by national and regional governments to place limits on the free movement of data across a global internet. Drawing on theories in political economy, international law, human rights, and data protection, this volume offers new theoretical perspectives and thought-provoking ideas about the nature and scope of data sovereignty. It examines the extent to which new technologies, such as artificial intelligence, robotics, and automation, pose challenges to data sovereignty and how those challenges might be addressed. In chapters that are both descriptively comprehensive and analytically rich, the book explains the national, regional, and international legal frameworks for regulating the digital economy.
Posted on Tue, Nov. 14, 2023
Ying Xia, The University of Hong Kong
Although the Belt and Road Initiative (BRI) presents growth opportunities for less developed regions, it also raises concerns about negative environmental impacts and sustainability. Despite proliferating academic interest in China’s efforts to green the BRI, the engagement of non-governmental organisations in policymaking has been understudied. This research marks the first empirical effort to examine the interactions between environmental non-governmental organisations and the Chinese government under the banner of a green BRI. It finds that non-governmental organisations have employed four strategies to engage with the state-led initiative – civil diplomacy, development partnership, service provision, and outside reform – and that development partners and service providers have been more active than the others in shaping China’s BRI-related environmental policies. This article elucidates civil society actors’ opportunities and constraints in greening the BRI and non-governmental organisations–government dynamics in a non-democratic context.
License of Right System in UK and Germany — Implication for China
Posted on Tue, Nov. 14, 2023
Xia Liu, Tongji University
As a form of patent licensing, open licensing is a crucial mechanism for facilitating the transformation of patented technological achievements and knowledge diffusion. However, since China introduced this system in 2021, the detailed mechanism remains a topic of debate. This paper examines the similarities and differences in the specific mechanism designs of patent open licensing systems in the UK and Germany. By analyzing registered data from 2004 to 2020, and matching it with patent applicant and patent citation information, the study empirically tests the implementation effects of open licensing on knowledge diffusion. The assessment reveals that the incentive for knowledge spillover is relatively limited. Consequently, China needs to implement further institutional innovations during the introduction of the open licensing system.
Bend, Don’t Break: China’s Approach to the International Human Rights Order
Posted on Mon, Nov. 13, 2023
Jackson Neagli, Harvard University
This paper compares novel Chinese human rights proposals with Euro-American responses. Despite the allegedly irreconcilable differences between Chinese and western human rights frameworks, the paper identifies some areas of mutual intelligibility, if not agreement. The paper concludes that Beijing seeks to alter, but not undermine or replace, the international human rights order. Ultimately, however, China's human rights framework is unlikely to achieve dominance in the global marketplace of ideas.
Posted on Mon, Nov. 13, 2023
Haishan Yuan, University of Queensland
China has implemented the world’s first large-scale seasonal fishing bans for sustainable fishery, but their effectiveness is unclear given the challenges of patrolling a vast ocean. The author finds that the bans reduce boat detections in China’s Exclusive Economic Zone (EEZ) by about 72%, and the subsequent lifting of the fishing ban increased the number of boat detections by about 78%. However, there is no spatial discontinuity around the EEZ border, and more boats are detected inside the Chinese EEZ near its border with the Vietnamese EEZ when the Chinese fishing bans are effective. Since the Vietnamese EEZ was more intensively fished than the nearby Chinese EEZ, this spatial pattern near the EEZ border suggests that Vietnamese fishermen fished in the Chinese EEZ during the ban periods.
Foundational Principles of the Hong Kong National Security Law and the Institutions Established (Nov 17 2023)
Posted on Fri, Nov. 10, 2023
Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong
The Hong Kong National Security Law is an exceptionally distinctive legislation. Although not enacted within the Hong Kong SAR, it has been specifically tailored to address Hong Kong's “unique circumstances” and aims to achieve objectives with “Hong Kong characteristics”. This law incorporates numerous “Mainland China” legal concepts, but it is essential not to merely transplant or misapply the theories, methods, and standards of mainland criminal law or criminal procedure. This lecture by Professor Mingtao Huang will focus on the unique aspects of the Hong Kong National Security Law and discuss pertinent issues to consider in its implementation and judicial adjudication.
Date & Time: November 17, 2023 (Friday) 17:30 – 19:30
Venue: Academic Conference Room, 11/F, Cheng Yu Tung Tower, The University of Hong Kong (Live via Zoom in Mandarin)
China Data Privacy Laws, WeChat Muddy Cross-Border Inquiries
Posted on Fri, Nov. 10, 2023
T. Markus Funk, Perkins Coie
Mason Ji, Perkins Coie
Huijie Shao, Perkins Coie
Perkins Coie attorneys explain how China’s new data security laws and use of third-party apps, such as WeChat, by Chinese employees create significant obstacles for companies conducting internal investigations in the country.
Posted on Thu, Nov. 9, 2023
Jiahui Duan, The University of Hong Kong
Much of the social and economic inequality that sexual harassment perpetuates is created in the workplace. But research has not always acknowledged the fluid and changing nature of workspaces. This article argues that irregular workspaces and activities—bars and other social drinking sites at which yingchou (business drinking activities) take place, team building, and the WeChat social media platform—are significant sites of sexual harassment in China. These irregular workplaces play a significant role in working life in China, and their informality has made them prone to sexual harassment in the context of deeply entrenched gender norms and vertical power hierarchy.
China’s Influence on the Western Balkans’ EU Accession Process: Synergies and Obstacles
Posted on Thu, Nov. 9, 2023
Wilfried Martens Centre for European Studies
This study examines the influence of China’s presence and activities on the European Union (EU) integration process of the Western Balkans. Since the Thessaloniki Summit of 2003, only Croatia managed to join the EU, while the other countries in the region remain candidates for membership, with little prospects to join by 2030. The research investigates how China’s approach impacts specific outcomes, both supporting and undermining the EU accession process, chapter by chapter. It also explores the reasons behind these outcomes, including China’s approach, domestic agency, and geopolitical factors. The goal is to provide a comprehensive and cross-country analysis of China’s impact in the region and identify areas where the Western Balkan countries can eliminate or minimise negative consequences, or leverage potential synergies, ultimately aiming to understand the interplay between China’s involvement and the EU integration process in the Western Balkans.
Why Public Opinion on the Death Penalty Doesn’t Matter in China
Posted on Wed, Nov. 8, 2023
Michelle Miao, Chinese University of Hong Kong
Capital punishment is a topic that has long attracted international legal, media and public policy discourses. As a global champion in administering the ultimate penalty in the past decades, China has yet to conduct any national public opinion surveys on the death penalty. Existing academic studies on the status of public opinion in China have not gained much traction in shaping public policy in China. Why doesn’t public opinion matter in China? This article explains that the scientific measurement of public opinion does not matter for at least three reasons: the two-tier opacity of the death penalty policies in China; the populist political need for constructing (rather than empirically measuring) public opinion; and the fluid and ill-informed nature of public sentiments that sometimes (but not always) affect judicial decisions.
Son Preference in Testate Succession
Posted on Wed, Nov. 8, 2023
Yun-chien Chang, Cornell University
Sieh-Chuen Huang, National Taiwan University
Su-Li Her, Su-Li Her Notary Public Office
Despite a plethora of normative discussions on gender equality as well as empirical studies on gender discrimination and gender effects in various settings, there is a paucity of large-scale empirical studies on son preference by ordinary people in asset distribution. Using an idiosyncratic data set on more than 1800 notarized or authenticated wills in Taiwan, this article investigates whether testators show son preference in distributing estates in wills, and if so, what the driving factors are.
Interlinking between Income Tax, Citizenship and Democracy? A Case Study of Canada and China
Posted on Tue, Nov. 7, 2023
Jinyan Li, York University
The interlink between taxation, citizenship and democracy appears to be obvious in Western democracies: citizens are voters, taxpayers and beneficiaries of public spending funded by tax revenues. The literature on the politics of taxation suggests that democratic institutions affect taxation at every stage of the policy-making process, the type of elections and governance model influence the level of redistribution and complexity of the tax system, democracies generally choose policies that are more favorable to the poor than non-democracies, the tax mix varies with the nature of the political regime, and more repressive governments rely less on personal income taxation. Political citizenship is not identical to tax citizenship. However, citizenship can be viewed as a proxy for domicile and, in effect, correspond to residence in most cases. The principle of “no taxation without representation” captures the quintessential link between taxation and democracy. This paper examines the interlink in Canada and China.
Constructing a Theoretical Framework for a Rules-Based Approach in BRI Dispute Resolution
Posted on Mon, Nov. 6, 2023
Jamieson Kirkwood, The University of Hong Kong
This article constructs a theoretical framework that sets out the basis for instituting a rules-based approach in BRI dispute resolution. This article is a response to the fact that there have been numerous calls for instituting a rules-based approach in BRI dispute resolution, but there has been little written in terms of laying a theoretical foundation for doing this. In such way, this article fills this gap by analysing what a rules-based approach to dispute resolution means, exploring what the BRI actually is and considering why rules are understood to be necessary in BRI dispute resolution. Although the article principally adds to the ongoing academic discussion regarding the reform of BRI dispute resolution it is also of use to practitioners and policy makers active in this field.
The Regulation of Dismissal in China
Posted on Mon, Nov. 6, 2023
Peter Chan, City University of Hong Kong
This article describes the origin and development of China’s dismissal legislation and local regulations. It identifies the quasi-federal nature of the Chinese dismissal system. The article then examines the legal framework of dismissal in China, focusing on dismissal types, grounds for lawful dismissal, employer obligations in terminating employment, and the remedies. The article focusses on the most important and controversial dismissal type: dismissal for breach of the employer’s internal regulations under Article 39(2) of the LCL. It analyses the diverging court practices and the local regulation of this type of dismissal. Finally, the article calls for a unified system to govern unlawful dismissal and considers how ILO Convention 158 can aid in refining China’s dismissal system.
China-U.S. Tech Rivalry Is Making It Harder to Contain AI Risks
Posted on Fri, Nov. 3, 2023
Angela Huyue Zhang, The University of Hong Kong
This week, the U.K. will convene a much-anticipated summit on artificial intelligence safety. The inclusion of China as a participant in the event has drawn a storm of criticism, though, with former British Prime Minister Liz Truss among those calling the move a mistake. Yet allowing ideology to interfere with global efforts to improve AI safety would be a grave error. Global AI safety requires international collaboration, and policymakers should recognize the urgency of this before it is too late. As the Sino-U.S. tech rivalry risks precipitating a regulatory “race to the bottom” in AI governance between the world’s two most prominent AI powerhouses, the international community must be alive to the potential catastrophic risks associated with AI and urge global AI businesses to establish robust safety protocols.
Place-Based Innovation Policies and China’s Patent Boom: Promotion vs. Distortion?
Posted on Fri, Nov. 3, 2023
Wenyin Cheng, Japan External Trade Organization
Bo Meng, Japan External Trade Organization
Yuning Gao, Tsinghua University
David Dollar, Brookings Institution
The past three decades have witnessed the boom of patents and mounting place-based innovation policies (PIPs) in China. However, the PIP-innovation nexus, particularly the distortion effect and underlying mechanisms, remains poorly understood. Matching micro-level patent data and industrial firm data, the authors document a promotion effect of PIPs on local firm innovation measured by both patent quantity and quality. Moreover, they observe a distortion effect on patent quality following the 2008 crisis, primarily originating from privately owned enterprises. Drawing from theories of technological learning and the unique institutional characteristics of PIPs in China, the authors unpack the underlying mechanisms driving these effects. Additionally, they reveal that preferential policies, such as patent subsidies and reductions in land prices, are instrumental in enabling PIPs to exert their impact.
Never Meet Your Heroes: Community Policing in Contemporary China
Posted on Thu, Nov. 2, 2023
Viola Rothschild, Duke University
Hongshen Zhu, University of Pennsylvania
For ordinary citizens, the local police represent the most common and recognizable face of coercive state power, yet, we have little systematic knowledge about how everyday, street-level policing impacts citizen’s political attitudes and behaviors. The authors study these relationships in the context of contemporary China. They propose that citizens living geographically closer to police stations will be both more exposed to, and reminded of, police violence, incompetence, or malfeasance. As a result, these citizens will be less likely to trust and participate in community political institutions. Using data from a recent nationally-representative, probability sample survey and highly precise, geo-referenced information on the location of police stations, the authors find evidence to support our theory. The findings indicate that the growing investment in the physical police state may further exacerbate local information capture and the alienation of citizens from the system.
Counter Currents to the Globalization of Proportionality
Posted on Thu, Nov. 2, 2023
Shiling Xiao, City University of Hong Kong
There has been extensive literature on proportionality that praises its global spread and delves into its embedment in domestic contexts. Through a series of case studies from around the world, however, this Article shows judicial practices countering, explicitly or implicitly, the popular notion of globalization of proportionality. The Chinese courts are but one of the examples. This Article describes these judicial practices as counter currents of proportionality and argues that they are not merely variations of proportionality used in local contexts, as they have either deserted this doctrine or contradicted its core features. In response to these counter currents, this Article proposes that once a court adopts proportionality in its adjudication, it must adhere to the structured analytical framework and insist on a minimum rigor of this doctrine.
American Law in the New Global Conflict (Nov 16 2023)
Posted on Wed, Nov. 1, 2023
Mark Jia, Georgetown University
International conflict has profoundly influenced American law. It has shaped the scope of civil rights and civil liberties, transformed the balance of constitutional institutions, and fostered shifts in legal culture. This talk will examine how today’s principal conflict, a growing rivalry between the United States and China, is shaping the American legal system. It contends that the new global conflict is reproducing, in attenuated form, the same politics of threat that has driven wartime legal development for much of American history. The result is that American law is reprising familiar patterns and pathologies. The talk provides a framework for understanding legal developments in this new era, contributes to our understanding of rights and structure in periods of conflict, and offers some tentative reflections on what comes next in the new global conflict, and how best to shape it.
Date & Time: Nov 16, 2023 (Thursday) 12:30-13:30
Venue: Academic Conference Room, 11/F, Cheng Yu Tung Tower, HKU (In-person only)
Regime Type and Beyond: The Transformation of Police in Asia
Posted on Tue, Oct. 31, 2023
Weitseng Chen, National University of Singapore
Hualing Fu, The University of Hong Kong
Policing is legitimized in different ways in authoritarian and democratic states. In East and Southeast Asia, different regime types to a greater or lesser extent determine the power of the police and their complex relationship with the rule of law. This volume examines the evolution of the police as a key political institution from a historical perspective and offers comparative insights into the potential of democratic policing and conversely the resilience of authoritarian policing in Asia. The case studies focus on eight jurisdictions: Singapore, Thailand, Hong Kong, Vietnam, China, Taiwan, Japan and South Korea. The theoretical chapters analyse and explain the links between policing and society, the politics of policing and recent police reforms. This volume fills a gap in the literature by exploring the nature of authoritarian policing and how it has transformed and developed the rule of law throughout East and Southeast Asia.
Interpretation of the Basic Law of the Hong Kong SAR (Nov 10 2023)
Posted on Tue, Oct. 31, 2023
Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong
In this lecture, Professor Pingxue Zou will explore the system and practices associated with interpreting the Hong Kong Basic Law, examine the debates arising from its interpretative practices, and provide a summary of the common ground and persisting disparities in the interpretation of the Basic Law.
Date & Time: November 10, 2023 (Friday) 17:30 – 19:30
Venue: Academic Conference Room, 11/F, Cheng Yu Tung Tower, The University of Hong Kong (Live via Zoom in Mandarin)
Posted on Mon, Oct. 30, 2023
Di Gong, University of International Business and Economics
Thomas Lambert, Erasmus University Rotterdam
Wolf Wagner, Erasmus University Rotterdam
This paper provides novel evidence for informational advantages of local bank supervision, outweighing biases due to the pursuit of local interests. For identification, the authors exploit a policy reform in China that moved supervision for a subset of bank branches from the national to the city level. Following the reform, these branches were 50 to 74% more likely to face an enforcement action. The tighter local supervision results in more conservative lending by banks, reducing in turn aggregate loan supply in cities with more local supervision. These findings inform the debate on the design of an optimal supervisory architecture.
Posted on Mon, Oct. 30, 2023
Jun He, Southern Utah University
To discourage counterfeits and compensate affected consumers, the Chinese government implements a compensation policy that stipulates buyers to receive compensation several times greater than the price of the transacted goods. This rule is exploited by “counterfeit hunters,” opportunistic buyers who specialize in detecting counterfeits and only purchase them to claim compensation. Using a simultaneous game, the author determines that the law should maintain the overcompensation while disallowing counterfeit hunters from an efficiency consideration. Although allowing counterfeit hunters to benefit from overcompensation leads to improvement in social welfare than the scenario without overcompensation (and hunters), social welfare further improves if overcompensation excludes hunters but, instead, extends its protection only to sophisticated consumers.
Angela Zhang on Why the West Should Pay More Attention to Chinese Antitrust Law
Posted on Fri, Oct. 27, 2023
Christopher Marquis, The China Project
While antitrust law may sound like an obscure and dry topic, Angela Zhang, author of Chinese Antitrust Exceptionalism: How the Rise of China Challenges Global Regulation published by Oxford University Press in 2021, persuasively advances the idea that it is essential to understand in today’s climate of geopolitical tension between China and the West. In this interview, Angela provides background on antitrust enforcement in China and also discusses how China’s antitrust regulations can be strategically leveraged as a potent economic tool to offset sanctions from the United States and other countries.
Sovereign Investors as ICSID Claimants: Lessons from the Drafting Documents and the Case Law
Posted on Thu, Oct. 26, 2023
Dini Sejko, Tufts University
The prominence of state-controlled entities (SCEs) in foreign direct investment (FDI) flows has created multilayer regulatory challenges. The nature of SCEs and geo-economic considerations related to their investments have exacerbated investment-related concerns and, since the global financial crisis and during the global pandemic, triggered legal reforms. Concurrently, SCEs have increasingly relied on international investment arbitration to solve their disputes. This Article examines the role of the International Centre for Settlement of Investment Disputes (ICSID) in resolving cases brought by an increasing number of sovereign investors. A comprehensive evaluation of the case law reveals that European SCEs have massively relied on the ICSID system, in contrast with Chinese SCEs that have made marginal use of it.
Posted on Thu, Oct. 26, 2023
Juan Ortiz Freuler, Harvard University
In the early 1990s, US leaders promoted the internet as post-nation “global information infrastructure.” However, throughout the 2000s, critical internet infrastructure became centralized under the tight control of a handful of US-based multinational companies. This paper examines the US government’s willingness to leverage its regulatory control over privately run critical infrastructure to exercise massive internet surveillance, massive influence campaigns, and, increasingly, to levy unilateral cyber-sanctions on other sovereign states. The author argues that the weaponization of corporate internet infrastructure by the US government marks a new era of internet governance and is one of the key drivers of what is often discussed as internet fragmentation in internet governance forums.
Expropriation Risk and Investment: A Natural Experiment
Posted on Wed, Oct. 25, 2023
Siddharth M. Bhambhwani, Washington College
Hui Dong, Shanghai University of Finance and Economics
Allen Huang, Hong Kong University of Science and Technology
This paper uses the enactment of China’s 2007 Property Law (the Law), which reduces the risk of expropriation by local governments, as the setting to investigate the importance of property rights protection for private firm investment. Using propensity score matching and a difference-in-differences design, the authors find that firms facing weaker property rights protection prior to the Law significantly increase their investment and investment efficiency after the Law. Cross-sectional analyses document evidence consistent with a decrease in firms’ perceived expropriation risk as the main mechanism underlying the Law’s effect. Finally, the authors show that the Law improves local economic outcomes and employment.
Patent Pledgeability, Trade Secrecy, and Corporate Patenting
Posted on Wed, Oct. 25, 2023
Yanke Dai, Shanghai University of International Business and Economics
Ting Du, Central University of Finance and Economics
Huasheng Gao, Fudan University
Yan Gu, Fudan University
The authors identify a positive effect of patent pledgeability on corporate patenting. Their tests exploit the staggered city-level policy change, which allows firms to use patents as collateral for financing. Their study finds a significant increase in patents and patent citations for firms headquartered in cities that have adopted such policies relative to firms headquartered in cities that have not. The authors further show that patent pledgeability increases corporate patenting through the channel of inducing firms to shift from secrecy-based innovation to patent-based innovation, rather than the channel of mitigating financial constraints.
Self-regulatory Measures as Securities Regulation: The Saga of Antitakeover Regulation in China
Posted on Tue, Oct. 24, 2023
Sirui Han, Hong Kong Polytechnic University
Who writes antitakeover regulation in China? The rise of stock exchanges as self-regulatory agencies has transformed the landscape of antitakeover regulation in China. With non-coercive regulatory letters, stock exchanges’ disclosure-based approach has settled long-lasting debate on the validity of antitakeover provisions in China. Depending on justifications listed companies provide for antitakeover provisions, self-regulatory measures allow stock exchanges in China to run case-by-case review on the validity of antitakeover provisions in China. With self-regulatory measures, antitakeover regulation in China has been incrementally deviating from orthodoxically ex ante legislative prohibitions, and at the same time converging towards an agenda of disclosure-based ex post regulatory review.
Happy Citizens Trust Their Rulers
Posted on Tue, Oct. 24, 2023
Youxing Zhang, University of Leeds
Peter Howley, University of Leeds
Clemens Hetschko, University of Leeds
This study asks whether an authoritarian regime has an incentive to foster the happiness of its citizens. Using Chinese panel data, the authors examine whether citizen well-being impacts the formation of political trust, which is key to regime stability, even in an authoritarian system. Through a quasi-experimental method, the authors demonstrate how an improvement in subjective well-being leads to increased political trust. In supplementary analysis, they also demonstrate how political trust is predictive of actions that undermine regime stability. The key implication of this study is that any government, even an authoritarian one, has an incentive to foster the happiness of its citizens.
Regulating Generative AI Talk Series: Intellectual Property (Nov 1 2023)
Posted on Fri, Oct. 20, 2023
Philip K. H. Wong Centre for Chinese Law, The University of Hong Kong
Artificial Intelligence Generated Content (AIGC) technologies have made the leap from “imitation” to “innovation,” leading to significant changes in traditional creative processes. Responding to the growth and application of AIGC within the intellectual property framework has become a pressing concern for regulators and industry professionals. Building on the Chinese legal system and comparative law insights, this talk will examine "fair use" regarding the utilization of existing works for algorithm model training, while addressing the practical challenges of using user input for model optimization. Furthermore, the talk will provide an in-depth analysis of AIGC-related issues, such as copyrightability, ownership design and allocation, as well as intellectual property infringement risks and liability. Finally, strategies for striking a balance among creative incentives will be explored. Live via Zoom!
Date & Time: Nov 1, 2023, Wednesday, 20:00-21:00 (in Mandarin)
A Review of China’s Sustainable Development Goals through International Investment Agreements
Posted on Fri, Oct. 20, 2023
Kun Fan, University of New South Wales
Based on a comprehensive treaty survey, the article presents the general approaches to sustainable development goals (SDGs) in Chinese International Investment Agreements (IIAs). While there is still an overall lack of sustainable development provisions in existing Chinese IIAs, an increasing number of China’s recent treatises move towards sustainability. Most sustainable development provisions in Chinese IIAs are carve-out provisions to preserve the States’ regulatory space in public health, environment, and other SDGs. In recent IIAs, provisions include social and environmental obligations on investors, ranging from a mere signal of the Contracting Parties’ commitment to sustainable development in the preamble, to corporate social responsibility (CSR) type provision in the form of no lowering of standards clauses or best endeavours provisions. Finally, procedural provisions on sustainable development safeguard substantive protections.
Government Deleveraging and Corporate Distress
Posted on Thu, Oct. 19, 2023
Jiayin Hu, Peking University
Songrui Liu, Peking University
Yang Yao, Peking University
Zhu Zong, Peking University
The authors demonstrate how government deleveraging causes corporate distress in a distorted financial market. The difference-in-differences (DID) analysis exploits China's top-down deleveraging policy in 2017, which targets shadow bank financing and reduces local governments' borrowing capacity. The authors find that after the government deleveraging, private firms with local government procurement contracts experienced larger accounts receivable increases, larger cash holdings reductions, and higher external financing costs. These firms also experienced more share-pledging activities by controlling shareholders, greater likelihoods of ownership changes, and deteriorated performance. The authors do not find similar effects among state-owned enterprises (SOEs), which enjoy funding privileges in China's financial system.
Rule by law: Is there justice in China?
Posted on Wed, Oct. 18, 2023
Matej Šimalčík, Central European Institute of Asian Studies
To consider China a lawless state is too simplistic. Despite the apparent shortcomings in protecting human rights, mainly because of state restrictions, China has a relatively well-developed legal system with a tradition dating back to antiquity. This chapter aims to introduce the issue of the development of law in China and its role today. What are the philosophical foundations of traditional Chinese law? Do they manifest themselves in the modern legal system? How do Chinese courts under the control of the Communist Party function, and how is the Chinese judicial system adapting to new digital trends?
The Case for the U.S.-China Science and Technology Agreement
Posted on Wed, Oct. 18, 2023
Kaiser Kuo, The China Project
Deborah Seligsohn, Villanova University
Karen Hao, The Wall Street Journal
For four decades, a pact established in 1979 between U.S. President Jimmy Carter and then Chinese leader Deng Xiaoping facilitated scientific and technological collaboration between the U.S. and China, with renewals occurring every five years. However, in August 2023, the Biden administration opted to provisionally extend the agreement for only six months. Seligsohn and Hao delve into the Science and Technology Agreement's (STA) inception, its purpose, and the criticisms it has faced. They emphasize the ramifications of terminating the scientific partnership with China, exemplified by the cessation of space exploration collaboration, and identify specific projects that could be stalled without a renewed commitment to scientific cooperation with China. Lastly, they examine the prospects of renewing the agreement following the six-month extension and consider alternative avenues for collaboration in AI should the STA be discontinued.
China’s Pursuit of Central Bank Digital Currency: Reasons, Prospects and Implications
Posted on Tue, Oct. 17, 2023
Robin Hui Huang, Chinese University of Hong Kong
Xiyuan LI, Chinese University of Hong Kong
China’s CBDC, commonly known as e-CNY, is designed with several distinctive features, enabling it to compare favorably to other payment methods. A variety of social, economic, political, and regulatory reasons can be identified to help explain China’s active pursuit of CBDC. However, the prospect of success will be affected by many factors and may vary between the domestic and international markets. The development of e-CNY seems to have created a catfish effect on other major economies in the race for CBDC. It is not fully clear, however, that the CBDC race will be better explained by the first-mover or the late-mover advantage theory. The CBDC project will have both public and private law implications, and several legal issues warrant particular attention in relation to the legal status of CBCD, the role and responsibility of the central bank, legal remedies for losses suffered by CBDC users from cybersecurity issues and operational problems, and the issue of data privacy and protection.
Chinese State-Owned Companies and Investment in Latin America and Europe
Posted on Tue, Oct. 17, 2023
Larry Catá Backer, The Pennsylvania State University
The Chinese state owned enterprise (CSOE) presents an anomaly in the operation of the well-ordered construction of a self-referencing and closed system of liberal democratic internationalism, especially as that system touches on business responsibilities under national and international human rights and environmental law and markets driven norms. The anomaly is sourced in the increasingly distinct and autonomous framework principles within which it is possible to develop conduct-based systems respectful of both human and environmental rights which are emerging as between liberal democratic and Marxist-Leninist systems. This essay considers the forms and manifestations of these disjunctions where CSOEs are used as vehicles for the projection of Chinese economic activity beyond its borders.
Authentic Instruments in Chinese Private International Law
Posted on Mon, Oct. 16, 2023
Zheng (Sophia) Tang, Wuhan University
Xu Huang, Wuhan University
Professor Fitchen defines an authentic instrument as ‘a public document that allows the public official who registers or draws it up to record evidence concerning matters of fact concerning a judicial act that persons may (or must) have formally recorded in such a fashion as to raise a very strong evidential presumption that the factual matters so registered or recorded are, to the extent allowed by the legal system in which the authentic instrument is created, henceforward to be presumed accurate and ‘proven’.’ In the country where authentic instruments are issued by the authorized entities, they automatically receive legal effects to prove the recorded fact. The overseas effects of authentic instruments, however, are unclear. Since international judicial cooperation on authentic instruments does not exist, the procedural requirements and effects given to foreign authentic instruments largely depend on the domestic law of each country. The cross-border probative and executory effect of authentic instruments is a significant part of private international law, but is overlooked by Chinese private international law scholars and lawyers and will be discussed in this work.
Haze and Crime: Evidence from Court Judgments in China
Posted on Mon, Oct. 16, 2023
Yajie Han, National University of Singapore
Ming Li, Chinese University of Hong Kong
Yu Qin, National University of Singapore
The authors explore how short-term air pollution exposure affects crime rates, utilizing 1.5 million court judgment files in China from 2015–2018. Using thermal inversion as the instrument for PM2.5, the authors find that a 10 µg/m3 increase in daily PM2.5 increases the daily crime rate of intentional injury by 1.583%, whereas other types of crime are unaffected. Pollution-influenced perpetrators are typically repeat offenders, unarmed, and act alone. They are also more likely to surrender voluntarily. Moreover, pollution salience may induce moods that can lead to criminal behavior. The findings have implications for measuring pollution’s social costs and designing crime reduction policies.
How to Do Empirical Legal Studies without Numbers?
Posted on Thu, Oct. 12, 2023
Sida Liu, The University of Hong Kong
Sitao Li, University of Toronto
How to do empirical legal studies without numbers? This article addresses this methodological question at a crossroads of empirical legal studies in China. It does not aim to provide a normative defence for the value of qualitative methods. Instead, we demonstrate how a ‘scientific turn’ in the 2010s has made empirical legal research in China almost exclusively about quantitative research and then illustrate how qualitative methods can also benefit from the rise of digital technology. We draw on three recent studies as examples to compare and contrast the methodological challenges and opportunities for doing empirical legal studies without numbers: (1) Ke Li’s book Marriage Unbound as an example of ethnography in combination with archival research; (2) Sitao Li’s article ‘Face-Work in Chinese Routine Criminal Trials’ as an example of trial video observation; and, (3) Di Wang and Sida Liu’s article ‘Performing “Artivism”’ as an example of online ethnography. The discussion shows that, despite the rising popularity of ‘big data’ computational analysis in recent years, quantitative methods are not necessarily more technologically advanced than qualitative ones. Technology-assisted interviews and ethnography can open up many new possibilities in data collection and data analysis, sometimes resulting in more exciting and innovative research.
Posted on Thu, Oct. 12, 2023
Francis Snyder, Peking University
The chapter argues in favour of building bridges, figuratively as well as literally, and for regulatory cooperation and the use of international standards. It is divided into three main parts. The first main part explores the interconnections between social and legal fields, standards, and soft law in the BRI. A second part focuses on institutions, processes, and actors in standard setting in the EU and China. A third part presents the example of railway transport, a key element of the BRI. A brief conclusion summarizes the discussion and identifies subjects for further research.
War Extractions and Governance Paradigm Shifts
Posted on Wed, Oct. 11, 2023
Shuo Chen, Fudan University
Xinyu Fan, Cheung Kong Graduate School of Business
Yongtao Li, Liaoning University
Yin Yanfei, Nanjing University
How does the state choose between direct and indirect governance during wartime? Using the 70-year Dzungar-Qing War (1688-1758) as an exogenous shock and a difference-in-differences strategy on prefecture-level panel data, the authors reveal that for the Qing Empire, southern resource-rich regions were more likely to shift from local autonomy to direct governance after the war started on northwestern borders. The shifts were more likely to occur where resource transportation was more convenient, while resource-rich areas opened more factories during rather than after the war – all of which highlights the demand for strategic resources as an important determinant of governance paradigm shifts.
Posted on Wed, Oct. 11, 2023
Terence C. Halliday, American Bar Foundation
Prompted by a conference examining the autonomy of law in China, this paper focuses on leading criminal defense, weiquan or rights’ lawyers. Drawing on extensive empirical data, the paper depicts practicing lawyers’ understandings of the presence and prospects of autonomy for law in the most difficult and sensitive cases they take on. The paper asks four questions. First, when does autonomy of law truly matter? Second, who can most acutely discern vulnerability of China’s citizens to unbridled executive power? Third, why should we care about this tiny segment of lawyers among the hundreds of thousands of private lawyers in the entire country? Fourth, what do rights’ lawyers judge to be the conditions—their “political sociology”—that might advance and sustain the autonomy of law in a new New China?
Self-governing Organizations and Culture
Posted on Tue, Oct. 10, 2023
Lei Chen, Durham University
While much has been written on the importance of property rights to economic development, relatively little seems to be understood about processes of change in complex property systems, particularly in China, a socialist-transforming country. Specifically, there is a lack of reliable knowledge about the intricate relations between the structure of organizations for collective action and cultural orientations that practically guide interpersonal interactions in Chinese society. The question at the heart of this research relates to the condominium rules most suitable for an emerging Chinese private property market.
The Latest Round of China’s State-owned Enterprise Reforms
Posted on Mon, Oct. 9, 2023
Tianqi Gu, Western Sydney University
Despite the remarkable economic growth, China maintains a large-scale State economy comprised of extensive State-owned enterprises (SOEs) that continue to play a dominant role in the national economy. In spite of this, China has been substantially restructuring its State economy in its long-lasting SOE reforms since 1978, and the fourth round of the reforms commenced in 2013. China's expanding geopolitical influence and escalating Sino-Western tensions warrant an in-depth examination of its genuine State economy reform objective and process. Based on comprehensive analyses of relevant laws and policies of China’s major State economy restructuring programs promoted in the second and the latest round of the reforms, this article firstly demonstrates SOE's well-established primacy in China’s political-economic system.
Unequal Treaties: Revisiting China’s Approaches Toward Colonial Injustice
Posted on Mon, Oct. 9, 2023
Sze Hong Lam, Leiden University
This paper revisits the various approaches of successive Chinese governments in revising the ‘unequal treaties’ signed between the Qing Empire and foreign powers in the 19th century. The central claim of this paper is that the Chinese discourse of ‘unequal treaties’ served more as a legitimacy rather than a legality discourse, which is selectively applied to (historic) treaties in which China perceives itself as the weaker party. With the Chinese ‘unequal treaties’ doctrine intrinsically linked to the project of Chinese nation-building, this paper challenges whether a contemporary recognition of the ‘unequal treaties’ doctrine as an exception to intertemporal rule would be a ‘fair’ way to address colonial injustice.
Regulating Generative AI Talk Series: Data Compliance (Oct 19 2023)
Posted on Fri, Oct. 6, 2023
Philip K. H. Wong Centre for Chinese Law, The University of Hong Kong
Generative artificial intelligence (AI) models rely heavily on the extensive collection and processing of massive data sets. As numerous countries enact regulatory policies and laws governing generative AI, data rights holders are increasingly filing infringement lawsuits. Consequently, legal matters surrounding generative AI data processing have garnered increased attention from both theoretical and practical perspectives. This talk by Professor Linghan Zhang, drawing from research on data ownership, intellectual property rights, data security, and generative AI regulatory frameworks, will examine the various stages of generative AI processing, such as data acquisition, cleaning, and labeling. Additionally, it will provide an analysis of relevant policies, regulations, and notable cases while discussing the institutional considerations and trends in multiple countries, with a particular emphasis on China.
Rebalancing the Burden of Proof for Trade Secrets Cases in China
Posted on Fri, Oct. 6, 2023
Yang Chen, City University of Hong Kong
One of the most significant legal changes to the trade secrets system in China during the past three years has been the addition of Article 32 of the 2019 Anti-Unfair Competition Law (AUCL). Article 32, which seeks to reduce plaintiffs’ burden of proof, was promulgated against the backdrop of the U.S.–China trade war, and its language largely follows that of the U.S.–China Phase One Agreement. Article 32 alleviates plaintiffs’ burden by allowing the burden of proof for the trade secrets status elements (secrecy and commercial value) and for the existence of misappropriation conduct to be shifted to defendants. It is, however, full of problems. In light of these doubts, this article reexamines Article 32 of the current Chinese trade secrets law by attempting to clarify its ambiguity and introduce a suitable interpretation.
Superpower Legal Rivalry and the Global Compliance Dilemma
Posted on Thu, Oct. 5, 2023
Ji Li, University of California, Irvine
The intensifying rivalry between the United States and China has spawned a proliferation of contradictory laws and regulations, plunging transnational actors into a vexing compliance dilemma—conformity with U.S. law often necessitates contravention of Chinese law, and vice versa. This Article illuminates this superpower legal rivalry and how multinational corporations (MNCs), as prime beneficiaries of post-Cold War economic globalization, navigate this fractured, intricate legal terrain when compelled to take sides amid the great power competition.
The State of China’s Semiconductor Industry
Posted on Thu, Oct. 5, 2023
Mercy A. Kuo, Pamir Consulting
Douglas Fuller, Copenhagen Business School
In the conversation between Mercy Kuo and Douglas Fuller, they discuss pivotal issues concerning the state of China's semiconductor industry. They first explore the implications of the 7-nanometer chip in Huawei’s latest 5G smartphone, and then analyze whether U.S. efforts to restrict investment in and export of advanced chips to China have accelerated the country’s indigenous developments of semiconductor self-sufficiency. Furthermore, they identify the key strengths and weaknesses in the China-U.S. contest for silicon supremacy. Finally, the conversation assesses the impact of China-U.S. chip competition on global supply chains and market share.
Chinese Regulators Give AI Firms a Helping Hand
Posted on Wed, Oct. 4, 2023
Angela Huyue Zhang, The University of Hong Kong
While China was an early mover in regulating generative AI, it is also highly supportive of the technology and the companies developing it. Chinese AI firms might even have a competitive advantage over their American and European counterparts, which are facing strong regulatory headwinds and proliferating legal challenges.
Chinese State-owned Enterprises’ Foreign Investments in Developed Countries
Posted on Wed, Oct. 4, 2023
Tianqi Gu, Western Sydney University, School of Law
As a response to the less favourable international environment, in 2014, China expanded its concept of national security in both socialist ideology and legislation to cover almost all threats that may jeopardise its future prosperity. Chinese State-owned enterprises (SOEs) are entrusted with the grand mission to ensure national security, not only domestically but also on a global scale. This paper argues that ensuring national security has become a significant driver for Chinese SOEs’ foreign direct investment (FDI) in developed countries. Based on a comprehensive analysis of Chinese SOEs’ national security-driven FDI from the perspectives of policy rationales, implementation modes, this paper provides an analysis of the risks that Chinese SOEs’ national security-driven FDI can pose to the host States.
The Chinese Path to Generative AI Governance
Posted on Tue, Oct. 3, 2023
Surong Zhu, Beijing Foreign Studies University
Guoyang Ma, Beijing Jiaotong University
The emergence of generative AI has brought significant development opportunities for the AI industry, but it has also triggered legal issues such as data leakage and technology abuse. Therefore, how to ensure the upward and positive development of generative AI technology has become a focus of attention for countries worldwide. China has taken the lead in legislative measures by introducing July 2023 the world’s first departmental regulation dedicated to generative AI, a product of the vertical iterative legislative model. At the same time, the EU and the US have effectively addressed the risks posed by generative AI by taking existing legal norms as the cornerstone and adopting law enforcement and legislative measures. This article provides a detailed description of China's regulatory ideas and specific methods. It compares the different views of China with those of the EU and the US, further commenting on the innovations and shortcomings of China’s program.
Production and Global Dissemination of Chinese Legal Ideology
Posted on Tue, Oct. 3, 2023
Samuli Seppänen, Chinese University of Hong Kong
The leaders and ideologues of the Chinese Communist Party profess an interest in increasing the impact of its social sciences and governance ideology in foreign countries. But these attempts highlight various challenges that illiberal regimes face in ideological production and advocacy. Despite such challenges, Chinese ideological speech has been effective in foreign contexts. Among other things, Chinese ideological advocacy has made it easier for foreign politicians and legal scholars to criticize Western promotion of the rule of law and human rights. To illustrate the possibilities and challenges of Chinese ideological advocacy efforts, this Article situates various arguments about the advantages of Chinese legal thought within the East African context.
The Governance of Chinese Charitable Trusts
Posted on Fri, Sep. 29, 2023
Hui Jing, The University of Hong Kong
Legislators in China introduced the charitable trust model in 2016 with the passage of the Chinese Charity Law. They constructed a new legal framework for this model, in order to unlock the potential of trust institutions to further and develop charitable causes. This is the first English-language monograph exploring the governance of Chinese charitable trusts from the perspective of law and sociology. Through the application of doctrinal analysis and semi-structured qualitative interviews, this book reveals that China's particular political, social, and economic conditions are essential to understanding the legislated governance framework for charitable trusts and its implementation in practice. Embedded in China's unique institutional context, the governance of Chinese charitable trusts can only be fully understood in light of relevant law, administrative practice, and private actions taken by charitable trust parties.
This Is the State of Generative AI in China
Posted on Thu, Sep. 28, 2023
Paul Triolo, Albright Stonebridge Group
Anarkalee Perera, Albright Stonebridge Group
In the first part of this series, the authors examined how to think about generative AI and China, including regulatory issues. In this installment, the authors will examine how leading generative AI companies in China view the sector and its challenges. The commentary is primarily based on extensive discussions with the major players in China over the past several months.
The “Constitutional” Rise of Chinese Speech Imperialism
Posted on Thu, Sep. 28, 2023
Ge Chen, Durham University
This article conceptualizes China’s new constitutional doctrine of “party supremacy” and explains the implications it carries for speech regulation in both domestic and international public spheres. In particular, the article captures the Chinese Communist Party’s scheme of legitimizing its comprehensive speech regulation through party supremacy. This new constitutional doctrine, in contrast to China’s earlier dualistic constitutional framework, attempts to overcome the textual and contextual barriers for speech regulation and reshape the constitutive mechanism of the CCP’s domestic and international speech rules. Thus, there is a multilayer “constitutional” spillover effect of intra-party speech regulation.
The Cost of Political Connections and Labor Protection
Posted on Wed, Sep. 27, 2023
Maobin Xu, Chinese University of Hong Kong
After re-considering the costs of political connections, the author uncovers the bright side of such connections on labor protection in China. As more directors on the board have political connections, corporate risk in labor disputes will be lower, especially for non-state-owned enterprises, and spill over to their suppliers. The decline in labor disputes is not exogenously blocked and suppressed by rent-seeking connections but endogenously reduced due to better employee benefits, such as fewer salary and job cuts. Consequently, politically connected firms have higher labor productivity. Politically connected firms do not invest in employee benefits for free, and they win more bids from government procurement. However, the restrictions of government procurement on supplier reputation serve as an incentive for investment in labor protection and a discipline tool in reducing labor disputes.
China's New Legal Framework for Vertical Price Restraints: Aspirations and Limitations
Posted on Wed, Sep. 27, 2023
Sandra Marco Colino, Chinese University of Hong Kong
This article explores, and critically discusses, the revised legal framework for vertical price fixing and minimum resale price maintenance under Chinese competition law from a comparative perspective. In recent years, the Supreme People’s Court (SPC) and China’s legislature have attempted to close the gap in the administrative and judicial readings of the Anti-Monopoly Law (AML). The clarifications made in the 2022 AML reform largely resolve long-standing interpretative tensions. Nonetheless, they raise new doubts with regard to the standard of proof required to show the absence of effects. Moreover, the modus operandi of the exemptions remains unclear, since they have rarely ever been successfully invoked in practice. The article questions the true extent of the flexibility afforded by the modified policy, and proposes ways to enhance effective competition law enforcement.
Posted on Tue, Sep. 26, 2023
Alex Mueller, University of Pennsylvania
Christopher S. Yoo, University of Pennsylvania
China is making an active push to enlarge its role in the development of Internet-related technical standards. The prevailing narrative surrounding this trend suggests that Beijing is aiming to uproot the liberal, democratic values embedded in the Internet’s technical foundation and governance arrangements in favor of authoritarian-friendly alternatives. Yet, the conventional narrative seems to be missing something. Using New IP as the primary case study, this article examines China's standard-setting push, its potential motivations, and its implications for the future of the global Internet. The authors find it equally plausible that New IP was motivated by economic considerations, something that has largely been absent from the debate over China’s standards ambitions. They thus caution against the presumption that Chinese-developed standards are intended to advance the cause of digital repression as well as against politically driven opposition to growing Chinese participation at Internet standard-setting bodies.
The Dark Side of Automation: Robot and Crime
Posted on Tue, Sep. 26, 2023
Shiying Zhang, Harbin Institute of Technology
Peng Zhang, Chinese University of Hong Kong
This study presents the first empirical evidence on the impact of industrial robot adoption on criminal activities, utilizing a comprehensive dataset from more than 2 million court documents in China. The authors find that a one-standard-deviation increase in robot exposure leads to a 12.8%, a 15.5%, and a 9.1% increase in violent, property, and fraud crimes respectively. These results are likely driven by a decrease in the employment-to-population ratio, an increase in drinking frequency, and the deteriorating mental health of individuals. Finally, the authors find that unemployment insurance is effective in mitigating the adverse impact of robots on crimes.
Cooperating to Resist: State and Society During China's Covid Lockdowns
Posted on Mon, Sep. 25, 2023
Shitong Qiao, Duke University
China’s lockdown during the COVID-19 pandemic was widely considered a stark demonstration of the unconstrained power of an authoritarian state. Yet this power may not be as limitless as it appears. This article, the result of extensive fieldwork encompassing over ninety interviews and on-site visits to Chinese cities, primarily focusing on Shanghai and Wuhan, where the most significant lockdowns occurred, delves into the intricacies of the Chinese party-state’s response to the pandemic. It offers a unique perspective on the constraints that societal forces impose on the party-state’s exercise of power and, in doing so, challenges conventional wisdom. This study uncovers the hitherto unexamined role of society in monitoring and resisting the party-state’s encroachments on individual rights during the pandemic, a phenomenon the author terms “cooperating to resist.” It also offers fresh insights into the dynamics of power and legality in authoritarian regimes and casts new light on the relationship between property rights and sovereignty.
Navigating Decoupling in a Bifurcated World
Posted on Mon, Sep. 25, 2023
Peter Li, Copenhagen Business School
Sunny Li Sun, University of Massachusetts Lowell
This article explores the potential scenarios for decoupling between China and the US, and how multinational enterprises can navigate and manage the inherent paradox of coupling and decoupling in those scenarios. The authors apply the concept of bifurcation, which refers to the division between the rule of law and the rule of the ruler, to analyze three decoupling scenarios. They propose multiplex governance as a new strategy for MNEs to manage decoupled operations. This study contributes to the emerging research on decoupling and the need to consider geopolitical factors in international business studies, particularly in the context of a bifurcated world.
Demystifying China’s Critical Minerals Strategies: Rethinking “De-risking” Supply Chains
Posted on Fri, Sep. 22, 2023
Weihuan Zhou, University of New South Wales
Victor Crochet, Van Bael & Bellis
Haoxue Wang, University of New South Wales
“De-risking” is the latest buzzword in the China strategy of the United States and its allies. It means limiting dependence on and engagement with China in select strategic sectors. One of such sectors concerns critical minerals (CMs) which are essential for the ongoing green economic transition. To secure access to CMs and reduce reliance on China, the US and its allies have been developing networks for ally-shoring supply chains. The authors offer a detailed analysis of the Chinese strategies and policies regarding CMs, which shows that they have been primarily aimed at addressing internal challenges and policy priorities in China rather than dominating, weaponizing or causing disruptions in global supply chains. To address supply chains risks most effectively, international collaborative frameworks should engage with, rather than exclude, China. Confrontational strategies with “China being the risk” at the core might themselves be a risk by undermining rational policymaking and leading to disruptive policies.
Posted on Thu, Sep. 21, 2023
Menglu Wang, The University of Hong Kong
Robin Hui Huang, Chinese University of Hong Kong
Douglas W. Arner, The University of Hong Kong
A lack of sufficient information about potential borrowers is a major obstacle to access to financing from the traditional financial sector. Reflecting international experience, China has over the past three decades developed a regulatory regime for credit information reporting and business. However, even in the context of traditional banking and credit, it has not come without problems. With the rapid growth and development of FinTech, TechFin and BigTech lenders, have come both real opportunities to leverage credit information and data but also real challenges around its regulation. Drawing upon the experiences of other jurisdictions, this paper argues that China should establish a licensing regime and set out differentiated requirements for credit reporting agencies in line with the scope and nature of their business, and put in place an effective information and data sharing scheme. The lessons from China’s experience in turn hold key lessons for other jurisdictions.
The Constitutional System of the Hong Kong SAR
Posted on Wed, Sep. 20, 2023
Albert H Y Chen, The University of Hong Kong
Po Jen Yap, The University of Hong Kong
The British colony of Hong Kong reverted to Chinese rule in 1997. Since then, Hong Kong has continued to be an international financial centre, a free market, and a cosmopolitan city. At the same time, the tensions and contradictions inherent in “One Country, Two Systems” have given rise to constitutional controversies and social movements, culminating in the Umbrella movement of 2014, the anti-extradition law movement of 2019, the enactment of a National Security Law in 2020, and the electoral overhaul of 2021. This book discusses the structure and operations of Hong Kong's legal, judicial and political systems and their interactions with the national authorities of the PRC. The book provides a useful case study in comparative constitutional law, especially on autonomy and devolution issues within sovereign States. This comparative study is particularly interesting because Hong Kong is a common law jurisdiction within the PRC's socialist legal system.
Posted on Wed, Sep. 20, 2023
Weixia Gu, The University of Hong Kong
Deference usually refers to some kind of hierarchy with a ‘superior’ entity that is to be acknowledged or submitted to. However, the concept of deference under international law can be defined to describe a response by one actor to the recognition of another actor’s decision-making authority. This means the first actor (the deferring actor) places some weight or relevance on the decision of the second actor (the actor being deferred to) in order to reach a decision in a given matter. Accordingly, studying the relationships between these actors is greatly beneficial in understanding the various approaches and reasoning devices taken, especially where overlapping decisions over the same matter may potentially occur. This chapter explores the deference between two categories of courts at the national level. More specifically, the relationship explored herein concerns the relationship between the courts at the seat and the courts at a foreign place of enforcement.
The Foundations of Constitutional Review in China (Sept 26 2023)
Posted on Tue, Sep. 19, 2023
Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong
The Chinese constitutional system features itself with the “People’s Congress” form of government, which results in the rejection of both the American model of judicial review of constitutionality and the European model of constitutional court-based review of constitutionality. While on the other hand, constitutionalism is not alien to China and the leading theory is that the Chinese Constitution(1982) is a “written constitution” with entrenched status. So, how to enforce the constitutional law? In this lecture, Professor Mingtao Huang from Wuhan University will explain the contemporary constitutional structure and the foundations of constitutional review in China.
Date & Time: September 26, 2023 (Tuesday) 16:30 – 17:30
Venue: Room 723, 7/F, Cheng Yu Tung Tower, The University of Hong Kong (Live via Zoom)
Navigating the Identity Thicket in China from a Comparative Lens
Posted on Tue, Sep. 19, 2023
Yang Chen, City University of Hong Kong
The proliferation of “idol culture” and “social media influencers” in China has compelled an increasing number of persons to seek to become celebrities who are “famous for being famous.” Yet, becoming active in the entertainment industry gives rise to both old and new identity thicket issues centred around the overlapping and contradictory control rights over celebrities’ names. This article focuses on unravelling these identity thicket issues from comparative experiences, with a focus on the US experience. It first introduces the potential coexistent rights to a person’s name and explores the how those rights might be vested in different parties in today’s entertainment industry in China. The article then proceeds to divide the identity thicket arising from conflicting rights into three scenarios. A key finding is that current Chinese law fails to provide clear legal solutions to solve the identity thicket issues in scenarios 2 and 3. The article offers reform suggestions tailored to each scenario, with effort made to balance the interests of name holders and trademark holders while avoiding too much consumer confusion.
From Effect to Behaviour – Regulating State-Owned Enterprises as Competitors in Trade Agreements
Posted on Mon, Sep. 18, 2023
Xueji Su, Chinese University of Hong Kong
In recent years, the attempt to curb state-owned enterprises (SOEs) has resulted in dedicated rules in trade agreements. This paper reveals significant paradigm shifts in cross-border SOE regulation by exploring the emerging SOE rules and contrasting them with SOE disciplines in WTO agreements. First, the emerging SOE rules shift the emphasis from regulating trade measures to the competitive behaviour of SOEs. More importantly, the emerging SOE rules are characterized by excessive focus on behaviour analysis and a per se approach. Under a per se approach, a violation of the emerging SOE rules could be established regardless of whether the behaviour of an SOE caused a harmful trade or competition effect. Finally, in light of SOE reform in China, the article contends that the emerging SOE rules’ behaviour analysis deviate cross-border SOE regulation from its primary goal of levelling the playing field.
Posted on Mon, Sep. 18, 2023
Michelle Miao, Chinese University of Hong Kong
Does legal representation affect critical judicial decisions? This article highlights a paradox at the heart of court sentencing of death-eligible drug offenders in China. On the one hand, lawyers are regarded as a staple of due process. On the other, court decisions are insensitive to the availability and the quality of legal representation. The author argues that this perplexing contradiction derives from the institutional alienation of criminal lawyers in China, a theory containing three main dimensions: power deficit, identity confliction, and procedural-based legitimacy. This paradox - the insignificance of differences - takes place in China’s non-adversarial judicial settings and its authoritarian political environment. It is differentiated but connected with a paradox between eradicating inequality and providing adequate assistance to the most marginalized defendants in adversarial criminal justice systems. This article adopts mixed research methods, including qualitative interviews of legal professionals across China and quantitative analysis based on a regression analysis of national-level (N=10,132) and provincial-specific (N=3,955) samples of court judgments.
Regulating Generative AI Talk Series
Posted on Fri, Sep. 15, 2023
Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong
Since 2022, large-scale generative artificial intelligence has taken the global market by storm, revolutionizing industries and transforming people’s lives. However, the proliferation of AI has also spawned intricate legal, ethical, and regulatory challenges. Against this backdrop, the Philip K.H. Wong Centre for Chinese Law is set to host the “Regulating Generative Artificial Intelligence” talk series in fall 2023. This talk series will feature renowned experts and scholars from China and abroad to explore vital topics such as content moderation, data security, intellectual property protection, and AI ethics. With the majority of the talks being held online, the series aims to foster a constructive dialogue on the essential challenges and solutions surrounding AI, inspiring collaborative innovation in global AI regulation. Stay tuned for our upcoming schedule—we warmly welcome your participation!
Data Still Needs Theory: Collider Bias in Empirical Legal Research
Posted on Fri, Sep. 15, 2023
Benjamin Minhao Chen, The University of Hong Kong
Xiaohan Yin, The University of Hong Kong
Big data is characterised not only by the amount but also the kinds of information that can be created, stored, and processed. This explosion of data, accompanied by the capacity to analyse them, has catalyzed large n, quantitative approaches to the study of law and legal institutions. But neither size nor quality guarantees the validity of causal inferences drawn from observational data. For example, although the inclusion of control variables can help isolate causal effects, not all variables are good controls. Bad controls are not harmless and can create the impression of a causal relationship where none exists. This spurious association is called collider bias. The authors introduce the concept of collider bias and give motivated examples of how it can arise in empirical legal research. The selection of good controls requires knowledge and assumptions about causal structures. Theory and domain knowledge are essential for quantitative analysis, even in the era of big data.
Copyright Law and Non-fungible Tokens: Experience From China
Posted on Thu, Sep. 14, 2023
Baiyang Xiao, University of Szeged
While the popularity of non-fungible tokens (NFTs) has brought significant profits, legal practitioners have been exposed to unanswered legal concerns behind the frenzy of NFT transactions. Generally, such concerns include those related to the applicability of copyright to NFTs, the legal relationship between an NFT and the tokenized work, and the copyrights associated with the NFT in transactions. The Hangzhou Internet Court released the first NFT-related copyright case, setting a course for the subsequent judicial and business practice of IP-related NFTs nationally and internationally. With these general considerations in mind, the paper briefly introduces what non-fungible tokens are and how they relate to copyright law. Specifically, by interpreting the first NFT-related copyright decision in detail, the paper addresses the legal status of NFT and NFT transactions from the perspective of Chinese Copyright Law, with particular focus on the liability of online platforms and the applicability of the exhaustion doctrine.
Augmenting Serialized Bureaucratic Data: The Case of Chinese Courts
Posted on Thu, Sep. 14, 2023
Xiaohan Wu, University of California, San Diego
Margaret E. Roberts, University of California, San Diego
Rachel E. Stern, University of California, Berkeley
Benjamin L. Liebman, Columbia University
Amarnath Gupta, San Diego Supercomputer Center
Luke Sanford, Yale University
Courts around the world are putting their data online, making information about case load, parties, and decisions available to the public. Yet, this data is far from complete, and often only reflects a portion of courts’ dockets. The authors offer and validate a set of tools for leveraging the serialized bureaucratic data from courts to evaluate missingness and court delay. Using data from more than 3,000 courts in China, the authors assess patterns of missingness in court data across geography and by type of case and to conduct the largest quantitative analysis to date on court delay in China. Their validation provides recommendations for researchers looking to augment incomplete bureaucratic data around the world.
State-Backed Shareholder Activism
Posted on Wed, Sep. 13, 2023
Chao Xi, Chinese University of Hong Kong
In the global quest for the improvement of institutional shareholder activism, an alternative approach has emerged and proliferated in East Asian jurisdictions: nonprofit organizations (NPOs) as activist investors. This Article examines the hitherto understudied case of China’s activist NPOs, in particular, the China Securities Investor Services Center (ISC). It examines the ISC’s wide array of activism and engagement activities and tactics, including China’s first opt-out securities class action, derivative action, public campaigns, naming and shaming, and behind-the-scene engagements. The research further shows that the ISC represents a new form of NPO activism: state-backed shareholder activism.
Artificial Intelligence with American Values and Chinese Characteristics
Posted on Tue, Sep. 12, 2023
Emmie Hine, University of Bologna
Luciano Floridi, Yale University
As China and the United States strive to be the primary global leader in AI, their visions are coming into conflict. This is frequently painted as a fundamental clash of civilisations, with evidence based primarily around each country’s current political system and present geopolitical tensions. However, such a narrow view claims to extrapolate into the future from an analysis of a momentary situation, ignoring a wealth of historical factors that influence each country’s prevailing philosophy of technology and thus their overarching AI strategies. This article builds a philosophy-of-technology-grounded framework to analyse what differences in Chinese and American AI policies exist and, on a fundamental level, why they exist. It fills a gap in US-China AI policy comparison and constructs a framework for understanding the origin and trajectory of policy differences. By investigating what factors are informing each country’s philosophy of technology and thus their overall approach to AI policy, the authors argue that while significant obstacles to cooperation remain, there is room for dialogue and mutual growth.
Disclosure and Registration Requirements in Franchising: Common Law or Civil Perspective?
Posted on Tue, Sep. 12, 2023
Radwa S. Elsaman, American University Washington
Disclosure and registration are critical steps in the process of franchising for countries where franchise laws are essentially disclosure laws. Disclosure laws require franchisors to disclose to potential franchisees specific, material information that would materially affect the franchisee’s decision of whether to invest. In addition, registration rules require registering disclosure documents with the competent governmental agency. In short, disclosure and registration reduce the chances the franchise will fail, as both parties come to know all the necessary information about the other.
Privacy in Chinese iOS Apps and Impact of the Personal Information Protection Law
Posted on Mon, Sep. 11, 2023
Konrad Kollnig, Maastricht University
Lu Zhang, China University of Political Science and Law
Jun Zhao, University of Oxford
Nigel Shadbolt, University of Oxford
Privacy in apps is a topic of widespread interest because many apps collect and share large amounts of highly sensitive information. In response, the Chinese legislator introduced a range of new data protection laws over recent years, notably the Personal Information Protection Law (PIPL) in 2021. So far, there exists limited research on the impacts of these new laws on apps’ privacy practices. To address this gap, this paper analyses data collection in pairs of 634 Chinese iOS apps, one version from early 2020 and one from late 2021.
Chinese State-owned Enterprises and International Investment Law
Posted on Fri, Sep. 8, 2023
Ming Du, Durham University
The objective of this Article is to critically examine the alleged challenges that the expansion of Chinese SOEs’ outbound foreign investment has posed to the liberal international investment order and to analyze whether the current international investment regime is resilient enough to accommodate the systemic friction between heterogeneous economic systems. It argues that international investment law is poorly designed to deal with Chinese SOEs because it is premised on some untenable assumptions, and these assumptions are not applicable to Chinese SOEs. The lack of effective international rules pushes nation states to become norm entrepreneurs in international investment law. However, the new SOE norms not only risk either overshooting or undershooting the Chinese SOE problem but also result in greater fragmentation of the international investment regime.
Resisting Domestic Courts’ Universal Jurisdiction over International Crimes
Posted on Thu, Sep. 7, 2023
Riccardo Vecellio Segate, University of Macau
The prosecution of international crimes by specialised non-domestic courts and tribunals raises several concerns, not least in evidentiary assessments; thus, the future of international criminal justice shall be relocated to domestic trials by reliance on universal jurisdiction (UJ). While a few “Western” jurisdictions have recently started to employ this legal device, “Eastern” jurisdictions have consistently voiced suspicion at this trend, while other Western jurisdictions seem not yet ready to embrace it, either. Among those jurisdictions which declare themselves unwilling or unready to face this relatively new challenge, the PRC and Italy stand out, owing to their regional appeal, their involvement in (alternative) discourses on global justice, and their millenary intertwined roots as legal civilisations. Hence, the present study investigates these two jurisdictions comparatively, as far as their stances regarding UJ’s applicability over international crimes (and practice thereto) are concerned.
Copyright and International Negotiations
Posted on Thu, Sep. 7, 2023
Ge Chen, Durham Law School
Copyright and International Negotiations provides a historical study of the development of Chinese copyright law in terms of China’s contemporary political economy and the impact that international copyright law has had. The analysis shows how China’s copyright system is intertwined with censorship and international copyright law and how this has affected freedom of expression. The book explores the development and architecture of Chinese copyright law in parallel with international copyright law, clarifies China's nuanced patterns of the control of free expression through copyright law, and identifies a breakthrough for neutralising the impact of China’s censorship policies through copyright law.
From Hierarchical to Panoptic Control: The Chinese Solution in Monitoring Judges
Posted on Wed, Sep. 6, 2023
Xin He, The University of Hong Kong
In the wake of the 2014 judicial reforms, are Chinese judges in most circumstances free in their decision-making? Based primarily on interviews with judges, this article argues that although a truncated hierarchy has led to increased judicial autonomy, the state maintains its tight grip over judges. In its new form, the state’s control is more indirect, external, ex post, diffused, and ideological. It allows the state to closely monitor judges’ entire handling of cases (hence the designation “panoptic”). It has some similarities with, yet fundamentally differs from, existing patterns in authoritarian states. While judges’ accountability continues to be largely a bureaucratic matter, this Chinese form of control has nonetheless been effective at a time of soaring caseloads, a slimmed-down judiciary, and increasing insistence on legitimacy. This article seeks to deepen understanding of developments in Chinese courts and, more widely, judicial politics in authoritarian states.
Posted on Wed, Sep. 6, 2023
Rehan Abeyratne, Western Sydney University
This Chapter examines constitutional judicial review in the Hong Kong Special Administrative Region (HKSAR) from the 1990s to the present day. Hong Kong occupies a unique position in Greater China as the only former British colony. It maintains a common law legal system, which forms the bedrock of a sui generis model of judicial review that incorporates liberal constitutional rights and aspects of socialist constitutionalism. The Chapter consists of two main parts. Part I examines judicial review in the shadow of the National People's Congress Standing Committee (NPCSC). Part II analyzes judicial review with respect to fundamental rights adjudicated that have thus far remained outside the NPCSC’s purview.
Smart Courts, Smart Contracts, and the Future of Online Dispute Resolution
Posted on Tue, Sep. 5, 2023
Jamieson M. Kirkwood, The University of Hong Kong
Julien Chaisse, City University of Hong Kong
This article presents a critical assessment of online dispute resolution involving smart courts and smart contracts (ODR+), which is a mechanism that China may consider for settling its Belt & Road Initiative (BRI) disputes. As the first article to address the emerging dispute settlement technologies in the BRI context, it suggests guidance for policy makers and practitioners. Furthermore, the article asks the key question of whether ODR+ can result in a more convenient and efficient processing of BRI disputes and hence be assimilated into the current BRI dispute settlement framework. While attention is also given to recent proposals for such ODR+ and its implementation in China and certain other States who participate in the BRI, it is more significant to address whether the BRI as a whole should and can embrace ODR+; or whether embracing ODR+ might merely be an artificial capitulation to the apparent conditions of modern society (a vanity project) more than a superior system for administering dispute settlement.
Posted on Tue, Sep. 5, 2023
Ji Li, University of California, Irvine
This Article proceeds in two sections. Section One traces the development of the Chinese legal system and the evolving rule of law debates in China. Unlike prior research on this topic, which has generally treated the sovereign state as the unit of analysis, this section highlights the power dynamics within the Chinese ruling elites and the influence of the international legal community as well as the global rule of law discourse. Section Two reverses the inquiry and explores how China might impact the international legal order. It contends that varying coalitions of Chinese actors populate the interfaces between China and international law across different issue areas and that China’s impacts on the international legal order vary as well. Both sections will also discuss how the ideological remnants have produced three common, entrenched perceptions of law and legal institutions: legal instrumentalism, economic determinism, and linearity of institutional changes, and how these perceptions have modified China’s interactions with international law.
Legalist Confucianism: What's Living and What's Dead
Posted on Mon, Sep. 4, 2023
Daniel Bell, The University of Hong Kong
Confucianism and Legalism are the two most influential political traditions in Chinese history. They are diverse and complex traditions with different interpretations in different times, but there are continuities and commonalities and ongoing themes in each tradition. Although the two traditions contrast with each other at the level of philosophy, they were combined in different ways in Chinese imperial history and some form of Legalist Confucianism continues to be influential in the 21st century. The author will identify the main traits of the Confucian and Legalist traditions and show how they were combined in Chinese history. The normative question raised here is: Which aspects of Legalist Confucianism should be promoted in the future and which parts should be consigned to the dustbin of history? The author will respond with examples from contemporary China to suggest it is both possible and desirable to promote a form of Legalist Confucianism today and in the foreseeable future.
Navigating The Career Mobility Landscape Of Law Firm Partners In Hong Kong
Posted on Mon, Sep. 4, 2023
Sida Liu, The University of Hong Kong
Achieving partnership in a law firm is a coveted milestone for lawyers looking to advance their careers. In the past, lateral mobility between firms was uncommon for most partners in large law firms, due to the widely-adopted ‘Cravath System’ of law firm management. This system operated under the assumption that the most talented associates would be promoted to partners, and that most partners would remain with the firm until retirement. However, this assumption is no longer valid in the 21st century. Today, lateral moves of partners between law firms are increasingly common, and some partners also pursue in-house positions or leave the legal profession altogether for other job opportunities.
Call for Papers: China Law & Society Review
Posted on Fri, Sep. 1, 2023
The University of Hong Kong
China Law & Society Review (CLSR) is now welcoming submissions for its upcoming issues. CLSR is a highly-acclaimed, peer-reviewed academic journal, published by Brill in partnership with the University of Hong Kong Faculty of Law. The journal is seeking original research and review articles that provide cutting-edge insights into interdisciplinary socio-legal topics. These may include, but are not limited to, legal consciousness, access to justice, rule of law, law and development, courts, legal professions, human rights, law enforcement and compliance, regulation and governance, ethics and corruption, central-local relations, and formal and informal institutions.
China’s Digital Transformation: Data-empowered State Capitalism and Social Governmentality
Posted on Thu, Aug. 31, 2023
Wayne Wei Wang, The University of Hong Kong
The article scrutinises the trajectory of China’s establishment of a digital state, rooted in a “whole-of-nation” system—or aptly termed (party–)state capitalism. The author illustrates the path of formulating and enforcing strategies to digitalise public services—including, importantly, the digital identity infrastructure—via institutional concentration that exemplifies both the positive and the exclusionary nature of social big data in streamlining administrative procedures. Two catalysts are spotlighted in China’s digital transformation: quasi-neoliberal market processes, and technology’s social change spillover effects. The author points to the fact that, since its inception, the contemporary Chinese state has created a cybernetic justification for “social governmentality”, as a means to redress potential informational imbalances in the process of ruling the state polity. For the Chinese administrative hierarchy, data provides the means to execute a top-down correctivist paradigm for steering societal conduct, a paradigm integrated into (but also to some extent in tension with) data-empowered state capitalism.
Cities and Local Governments: International Development from Below?
Posted on Thu, Aug. 31, 2023
Helmut Aust, Free University of Berlin
Alejandro Rodiles, Instituto Tecnológico Autónomo de México
Cities and local governments have become both important sites for international development as well as actors which aspire to shape the practice in this field. This paper retraces the emergence of cities and local governments as having this dual character, in order to provide the ground for a more forward-looking deliberation on some of the emerging themes on the role of cities in and for international law and development today. The authors see in particular a friction between two seemingly competing and broader understandings of global development, in both of which cities play a prominent role: the SDGs as adopted in 2015, and China’s Belt and Road Initiative (BRI). What unites these two blueprints for global development is that international law, as traditionally understood, does not seem to take center stage. Or rather, the authors wish to expound, it may be a new type of international law which emerges from these global constellations of international development which comes not only, but also from below.
Posted on Wed, Aug. 30, 2023
Emmie Hine, University of Bologna
This article examines recent developments in AI governance in the US and China, exploring their implications for each country’s development trajectory. Drawing on a framework informed by the philosophy of technology, the article delves into not only the differences between the two countries’ approaches but also the reasons behind these differences. The US, after years of industry self-regulation, is slowly moving towards concrete legislation, while China is centralizing its development and regulatory initiatives. Despite China’s expressed desire for values-pluralistic international governance, existing tensions between the two, coupled with the US’s burgeoning coalition centered around AI with “democratic values,” might pose challenges to collaboration and international governance. Nonetheless, the article contends that both systems can be accommodated within a values-pluralistic human rights framework, potentially paving the way for meaningful international governance efforts.
Digital Empires: The Global Battle to Regulate Technology (Book Talk)
Posted on Tue, Aug. 29, 2023
Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong
The United States, China, and the European Union are racing to regulate tech companies. Each market is advancing a competing vision for the digital economy while attempting to expand its sphere of influence in the digital world. The latest book by Professor Anu Bradford, Digital Empires: The Global Battle to Regulate Technology (Oxford University Press, 2023) explores how governments and tech companies navigate the inevitable conflicts that arise when these different regulatory approaches collide in the international domain. Please join us for an engaging in-person discussion of Digital Empires and the choices we face as societies and individuals, the forces that shape those choices, and the huge stakes involved for everyone who uses digital technologies.
Date & Time: Sep 18, 2023 (Monday) 17:00 - 18:30
Venue: Academic Conference Room, 11/F, Cheng Yu Tung Tower, The University of Hong Kong (In-person only)
The Brussels Effect: How the European Union Rules the World (Book Talk)
Posted on Tue, Aug. 29, 2023
Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong
For many observers, the European Union is mired in a deep crisis, seen as a declining power on the world stage. In her iconic book The Brussels Effect: How the European Union Rules the World (Oxford University Press, 2020), Professor Anu Bradford argues the opposite: the EU remains an influential superpower that shapes the world in its image. By promulgating regulations that shape the international business environment, elevating standards worldwide, and leading to a notable Europeanization of many important aspects of global commerce, the EU has managed to shape policy in areas such as data privacy, consumer health and safety, environmental protection, antitrust, and online hate speech. The Brussels Effect shows how the EU has acquired such power, why multinational companies use EU standards as global standards, and why the EU's role as the world's regulator is likely to outlive its gradual economic decline, extending the EU's influence long into the future.
Date & Time: Sep 21, 2023 (Thursday) 12:00 - 13:00
Venue: Academic Conference Room, 11/F, Cheng Yu Tung Tower, The University of Hong Kong (In-person only)
International Human Rights Law in Asian Constitutions
Posted on Mon, Aug. 28, 2023
Son Ngoc Bui, University of Oxford
The convergence of national constitutions with international human rights (IHR) law has been a global trend. Asia has been underexplored in the global scholarship on constitutional convergence. This Article explores three models of convergence with IHR law in seven Asian constitutions: convergence impelled by international inducement in post-war and post-conflict states (Japan and Cambodia), convergence propelled by the domestic precommitment of new democracies (South Korea and Indonesia), and convergence compelled by the international socialization of the socialist states (China, Laos, and Vietnam). Formal convergence creates the condition for several Asian constitutional courts to engage with IHR law. Convergence is not merely a town-down project. This Article additionally introduces a bottom-up theory of discursive convergence, which holds that citizens’ public discourse can influence the incorporation of IHR law into constitutions.
Posted on Mon, Aug. 28, 2023
Zhong Zhang, University of Sheffield
Despite more than 40 years’ legislation to build a ‘law-governed country’ and the China’s Communist Party (CCP)’s repeated proclaiming to ‘govern the country according to law’, China still lacks legislation concerning a constitutional matter that is central to its governance, i.e. the powers of the CCP to rule. No law specifies its powers, and the CCP’s rule is not based on law. Why has such a crucial and apparent loophole not been filled? It is essentially because of the CCP’s insistence on supremacy with unchallengeable authority in the governance of China. Hence, an insoluble dilemma can be observed: while the CCP leadership wants China to become a law-governed country to attain lasting order and stability, they have to rule the country extralegally to avoid legal challenges to the supremacy of their rule. This article not only sheds light on this inherent contradiction, but also offers insight into the nature of the CCP’s practice to ‘govern the country according to law’.
International Economic Administrative Law: Experience, Logic and Future
Posted on Fri, Aug. 25, 2023
Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong
With economic globalization, we have witnessed the merging of public and private law, along with the integration of international and domestic law. In this context, a legal department focused on regulating cross-border economic administrative relations is taking shaping. This has led to the emergence of a new branch of jurisprudence with distinct research subjects, known as International Economic Administrative Law (IEAL). Given that the new legal department can be described as the international coordination of government economic regulation law, IEAL may be viewed as the study of its fundamental attributes, primary principles, institutional frameworks, and developmental laws. In this lecture, Prof. Zhu Shudi from Fudan University will delve into China’s experiences in IEAL, examine its logical construction, and discuss potential future research focal points.
Date & Time: August 31, 2023 (Thursday) 12:00 – 13:00
Venue: Room 723, 7/F, Cheng Yu Tung Tower, The University of Hong Kong
China’s AI Regulations and How They Get Made
Posted on Fri, Aug. 25, 2023
Matt Sheehan, Carnegie Endowment for International Peace
China is in the midst of rolling out some of the world’s earliest and most detailed regulations governing artificial intelligence (AI). But in the West, China’s regulations are often dismissed as irrelevant or seen purely through the lens of a geopolitical competition to write the rules for AI. In this series of three papers, the author will attempt to reverse engineer Chinese AI governance. He breaks down the regulations into their component parts—the terminology, key concepts, and specific requirements—and then trace those components to their roots, revealing how Chinese academics, bureaucrats, and journalists shaped the regulations. In doing so, the author has built a conceptual model of how China makes AI governance policy, one that can be used to project the future trajectory of Chinese AI governance.
American Law in the New Global Conflict
Posted on Thu, Aug. 24, 2023
Mark Jia, Georgetown University
This Article is the first to comprehensively assess how today’s principal conflict, a growing rivalry between the United States and China, is shaping the American legal system. It contends that the new global conflict is reproducing the same politics of threat that has driven wartime legal development for much of the US history. The result is that American law is reprising familiar patterns and pathologies. There has been a diminishment in rights among groups with imputed connections to a geopolitical adversary. But there has also been a modest expansion in rights where affected constituencies have linked desired reforms with geopolitical goals. Institutionally, the new global conflict has at times fostered executive overreach and increased interbranch and interparty consensus. Legal-culturally, it has evinced a decline in legal rationality resulting from the return of familiar ideological and nationalistic frames. The Article provides a framework for understanding legal developments in this new era, contributes to our understanding of rights and structure in periods of conflict, and offers some tentative reflections on what comes next in the new global conflict, and how best to shape it.
Posted on Thu, Aug. 24, 2023
Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong
This lecture series will provide an introduction to the Constitution of the People’s Republic of China (PRC), the Basic Law of the HKSAR, and the Law of the PRC on Safeguarding National Security in the HKSAR for students and teachers at the University of Hong Kong, as well as for legal professionals and individuals from various backgrounds in Hong Kong. Featuring distinguished Chinese scholars with extensive research and publications on related topics, this lecture series will be conducted in Mandarin. Each event lasts for two hours, including a 1.5-hour lecture followed by a 30-minute Q&A and discussion period. CPD certification will be applied for each lecture from the Law Society of Hong Kong.
The Legal System of the People's Republic of China in a Nutshell (4th ed. 2023)
Posted on Wed, Aug. 23, 2023
Daniel C. K. Chow, Ohio State University
The fourth edition has been completely updated and revised to reflect major legal and political developments in the People’s Republic of China. This new edition offers extensive coverage and analysis of two landmarks in the development of China’s legal system, the Civil Code (2021) and the Foreign Investment Law (2020). It also contains extensive coverage of the recent downturn in the political and economic relations of the United States and China, initiated by the Trump administration and continuing under the Biden administration. Other major issues discussed are new developments in China’s human rights regime, improvements in China’s criminal procedure law, the “forced” technology transfer issue, and counterfeiting and piracy on the internet.
Charting Limitations on Trademark Rights
Posted on Tue, Aug. 22, 2023
Haochen Sun, The University of Hong Kong
Barton Beebe, New York University
Trademark scholarship has to date focused largely on the protection of trademark rights against consumer confusion and trademark dilution. Studies of limitations on trademark rights, meanwhile, have remained relatively peripheral, especially in jurisdictions outside of the United States. However, this treatment is incongruous with the importance of the limitations, such as descriptive and nominative uses, in promoting freedom of commerce, market competition, free speech, and cultural dynamics. Against this backdrop, Charting Limitations on Trademark Rights is the first comprehensive academic volume exploring limitations on trademark rights from both the theoretical and comparative perspectives. The volume presents new theoretical ideas justifying trademark rights limitations, re-examines their nature, delineates their scope, and offers comparative studies.
Algorithmic Dissuasion: De-ranking Possible Copyright Infringing Content into Relative Oblivion
Posted on Tue, Aug. 22, 2023
Danny Friedmann, Peking University
This article focuses on platforms operating in the algorithmic twilight zone between presenting search results and blocking them. To avoid risks or to optimize at the copyright holders’ request, platforms directly or in a time-phased way de-rank unauthorized but possibly legal content into relative oblivion. This midway manipulation of traffic to suspected content is opaque to the uploader of content, and the general user, lacks any redress mechanism, and possibly chills the freedom to share transformed content that includes copyrighted works. One can argue that the fundamental rights preempt license conditions which are incompatible with it.
Navigating Cross-Border Data Transfer Policies: The Case of China
Posted on Mon, Aug. 21, 2023
Taojun Xie, National University of Singapore
Jingting Liu, National University of Singapore
Ulrike Sengstschmid, National University of Singapore
Yixuan Ge, National University of Singapore
This paper examines the new Chinese regulatory framework on personal data protection, with a specific focus on cross-border data transfers. It aims to keep businesses and policymakers informed of the latest updates to China’s cross-border data transfer regulatory framework, and serve as a reference to gauge the impact of China’s regulations. The authors compare the new regulations with the EU GDPR to find that although key definitions and the legal basis for data processing is quite similar, the cross-border data transfer requirements are more stringent in the Chinese case. Firms, and especially non-Chinese firms, will face increased operating costs. Subsequently, foreign firms are likely to lose market share vis-à-vis domestic competitors. As larger domestic firms are likely to gain market share from smaller counterparts, these policies are likely to foster national IT champions. On a global scale, China seems to exemplify the emerging trend of multiple data protection models hampering cross-border data flows.
A Comparative Study on Obtaining Third Party Evidence in Civil and Commercial Arbitration
Posted on Mon, Aug. 21, 2023
Ke Mu, University of Edinburgh
Arbitration is a private and consensual process with a strong character of relativity, which means it can only bind the signatories of arbitration agreements in general terms. However, the increasing complexity of civil and commercial disputes in modern society leads to a rising need for third-party evidence in order to discover the facts before the adjudication. It draws forth the key question of this research: How could the parties, arbitral tribunals, and state courts cope with the situation where third parties are unwilling to submit evidence that is under their control? International conventions, model rules, and domestic laws as the UK and China keep silent on this issue. This Article proposes that the decisive factor to the taking of evidence should be the interactive dynamics of arbitration stakeholders and observes the special status of state courts in taking third party evidence for arbitration. It analyzes English law and practice in terms of providing judicial assistance in taking third-party evidence in arbitration-related contexts. It further proposes original suggestions for improving the Chinese regulatory framework.
Technological Platforms and National Security in Hong Kong: The Domain of Standards Setting (Aug 25 2023)
Posted on Fri, Aug. 18, 2023
Law & Technology Centre, The University of Hong Kong
Emerging regulatory frameworks recognize the duties of technological platforms toward a growing range of values that their activities mobilize. Values of such a kind intertwine with larger questions of national interest or concern and have been mobilized in contemporary affairs. This Workshop will place platforms' growing roles and responsibilities in the context of such larger questions — and, within these, in the context of relations between Hong Kong, the Mainland, and the international community. It will reflect on how the powers of the Hong Kong SAR to decide on technological standards should be understood in the context of these same relations, as well as on the challenges and opportunities introduced by technological platforms to matters of national interest or concern.
Date & Time: August 25, 2023 (Friday), 2:15pm - 6:00pm
Venue: Academic Conference Room, 11/F Cheng Yu Tung Tower, Faculty of Law, The University of Hong Kong
Book Talk: The Dean of Shandong (Sept 8 2023)
Posted on Fri, Aug. 18, 2023
Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong
The panellists will discuss Daniel A. Bell’s recent book, The Dean of Shandong: Confessions of a Minor Bureaucrat at a Chinese University (Princeton University Press, 2023). The book was selected as a Summer Book of the Year by the Financial Times. On January 1, 2017, Daniel Bell was appointed dean of the School of Political Science and Public Administration at Shandong University―the first foreign dean of a political science faculty in mainland China’s history. In The Dean of Shandong, Bell chronicles his experiences as what he calls “a minor bureaucrat,” offering an inside account of the workings of Chinese academia and what they reveal about China’s political system.
Date & Time: 8 September 2023 (Friday) 12:00 – 13:30
Venue: Academic Conference Room, 11/F, Cheng Yu Tung Tower, The University of Hong Kong (Live via Zoom)
Superpower Rivalry and the 'Modernization' of Foreign Investment Risk Review
Posted on Thu, Aug. 17, 2023
Ji Li, University of California, Irvine
Managing US-China relations is the biggest geopolitical test of the 21st century. This Article explores a crucial, delicate part of that test: national security review of Chinese foreign investment. To address emerging threats from China, Congress passed the Foreign Investment Risk Review Modernization Act of 2018 (“FIRRMA”), greatly strengthening the federal multi-agency body responsible for foreign investment screening—the Committee on Foreign Investment in the United States (“CFIUS”)—and vastly expanding its jurisdiction. This Article presents the first ever survey-based empirical study of FIRRMA’s impacts on Chinese investments in the United States. Apart from FIRRMA’s investment effects, the author also presents a detailed account of the diffusion of the US foreign investment screening system and its institutional implications in China.
Posted on Thu, Aug. 17, 2023
Ming Du, Durham University
This article questions the consistency of the EU anti-dumping regulation with the WTO Anti-dumping Agreement. It argues that China’s WTO Accession Protocol may no longer provide the legal basis for the EU to set aside Chinese domestic prices in determining normal value of Chinese products. Moreover, given that the European Commission has consistently used costs that are not actual costs of Chinese producers in constructing normal value of Chinese products, the EU anti-dumping practice runs the risk of being inconsistent with WTO law. Drawing on Jackson’s interface theory, this article further argues that the EU’s introduction of the new concept ‘significant market distortions’ to anti-dumping practices should be conceptualized as an effort to reconstitute alternative interface mechanisms when old ones are no longer applicable. The dubious legality of the EU’s new anti-dumping regulation is simply a symptom of a long-brewing tension in the multilateral trade system: how can the WTO accommodate systemic friction between heterogeneous economic models?
A SAD New Category of Abusive Intellectual Property Litigation
Posted on Wed, Aug. 16, 2023
Eric Goldman, Santa Clara University
This paper describes a sophisticated but underreported system of mass-defendant intellectual property litigation called the “Schedule A Defendants Scheme” (the “SAD Scheme”), which occurs most frequently in the Northern District of Illinois as a way to target Chinese online marketplace vendors. The SAD Scheme capitalizes on weak spots in the Federal Rules of Civil Procedure, judicial deference to IP rightsowners, and online marketplaces’ desire to reduce their liability exposure. With substantial assistance from judges, rightsowners use these dynamics to extract settlements from online vendors without satisfying basic procedural safeguards like serving the complaint and establishing personal jurisdiction over defendants. This paper explains the scheme, how it bypasses standard legal safeguards, how it’s affected hundreds of thousands of defendants, and how it may have cost the federal courts a quarter-billion dollars. The paper concludes with some ideas about ways to curb the system.
Regularized Campaigns as a New Institution for Effective Governance
Posted on Wed, Aug. 16, 2023
Shiran Victoria Shen, Stanford University
Qi Wang, Nanjing University
Bing Zhang, Nanjing University
The legislator primarily uses institutions and implements campaigns to achieve effective governance. Institutions foster regularized implementation, while campaigns happen ad hoc and achieve quick but transient results. This paper fills theoretical gaps by systematically exploring how campaigns can enhance institutions and how regularized campaigns as new institution exercise persistent effects beyond the periods when campaigns are actively ongoing. The authors theorize that institutions can become ineffective when special interests capture the bureaucracy, in which case campaigns are needed to weaken the regulated entities’ bargaining power. Using an original firm-level dataset, the authors test this theory on industrial firm responses to changes in air pollution regulation in China. The result suggests that when bureaucratic capture undermines the promise of institutions, campaigns can improve compliance, and their effects can persist when regularized.
Third-Party and Bankruptcy Effects under Chinese Trust Law: Comparisons with English Trust Law
Posted on Tue, Aug. 15, 2023
Hui Jing, The University of Hong Kong
In English law, the trust’s third-party and bankruptcy effects contribute significantly to its wide use in commercial transactions. In view of the trust’s attractiveness in conducting commercial dealings, China also introduced the trust model into its domestic legal system to enhance its financial infrastructure. However, given the extent to which Chinese law has been influenced by the Roman-Germanic tradition, China has encountered doctrinal obstacles in the course of replicating the trust’s third-party and bankruptcy effects. Drawing upon the experience of its Northeast Asian forerunners, China established two mechanisms to achieve both effects: the regime of trust fund independence and the granting of the right of rescission to beneficiaries. These two mechanisms represent the adjustments made by Chinese legislators in the course of transplanting the trust model into the Chinese legal context.
Law and Social Policy in the Global South
Posted on Tue, Aug. 15, 2023
Ulrike Davy, Universität Bielefeld
Albert H.Y. Chen, The University of Hong Kong
The book is an in-depth study of the origins and the trajectories of the law governing social policies in Brazil, China, India, and South Africa, four middle-income countries in the global South with a history in social policy making that starts in the 1920s. The book takes the legal framework of the policies as a starting point, but the main interest lies behind the letter of the law: What were the objectives and goals of social policy over the course of the last 100 years? What were the ideas, ideologies, and values pursued by relevant actors? The book comprises four country studies and a comparative study. The country studies concentrate on the political and social context of social policy making in Brazil, China, India, and South Africa as well as on the ideas, ideologies, and values underpinning the constitution, statutory laws, and case law that frame and shape social policy at the national level. The country studies are complemented by a comparative study exploring and describing the commonalities and differences in the ideational approaches to social policies across the four countries, nationally and – in the formative decades – internationally.
China’s Lawyers and China’s Publics: 'When the People Awake'
Posted on Mon, Aug. 14, 2023
Terence C. Halliday, American Bar Foundation
This paper explores in 21st century China the salience of lawyers as spokespersons for publics, a concept originally generated from Lucien Karpik’s research on 19th century France. The paper unfolds in four parts. (1) It presents a brief overview of Karpik’s research and theory. (2) It offers an account of ways that lawyers as spokespersons for publics amplify the wider scholarship on legal complexes and struggles for political liberalism in North East Asia and beyond. (3) It provides a close reading of extensive interviews with notable activist lawyers on significant cases which involved publics in China from 2009-2015. (4) The paper concludes by reflecting on lawyers as spokespersons in China’s “contentious public square” (Lei 2018), building on Lei’s argument that the intersection of “marketized media, the Internet, and law . . . unequivocally empowered Chinese people.”
Regulating Algorithmic Disinformation
Posted on Mon, Aug. 14, 2023
Haochen Sun, The University of Hong Kong
The regulation of algorithmic disinformation is one of today’s thorniest legal problems. This Article proposes a novel approach to regulating algorithmic disinformation effectively. It first explores why transparency, intelligibility, and accountability should be adopted as the three major principles of the legal regulation of algorithmic disinformation. The US has yet to adopt any laws regulating algorithmic disinformation, let alone these three principles. The Article then examines legislative reforms in France and China, where the three principles have been translated into legal rules. Based on a critical discussion of the major problems with these legal rules, the Article puts forward a multi-stakeholder approach to better implement the three principles.
Comparative and Transnational Dispute Resolution
Posted on Fri, Aug. 11, 2023
Shahla Ali, The University of Hong Kong
This edited volume presents research and policy insights into the theory and practice of dispute systems reform in diverse jurisdictions. It highlights how important extra-judicial mechanisms are for resolving cross-border disputes, as evidenced both by the breadth of scholarship dedicated to the issue and the proliferation of parties resorting to non-litigious dispute resolution mechanisms in recent years. Drawing on selected case studies, the book examines the impact of comparative research and policy analysis in advancing reform of dispute resolution institutions at both the regional and global levels. It explores the challenges and opportunities of understanding and assessing developments in systems of dispute resolution in diverse social and political contexts through comparative research. With a growing number of disputes which have come to involve cross-border issues, anyone interested in transnational and comparative dispute resolution will find this book a useful reference.
FinTech: Finance, Technology and Regulation - Introduction
Posted on Thu, Aug. 10, 2023
Ross P. Buckley, University of New South Wales
Douglas W. Arner, The University of Hong Kong
Dirk A. Zetzsche, Universite du Luxembourg
This is the introductory chapter of the latest book by the authors titled FinTech: Finance, Technology and Regulation. The authors offer an ideal reference for anyone seeking to understand the technological transformation of finance and the role of regulation. They consider FinTech technologies including algorithms, AI, blockchain, BigData, cloud computing, cryptocurrencies, central bank digital currencies, crypto-exchanges and distributed ledger technologies, and provide a unique perspective on FinTech as an interactive system involving finance, technology, and law and regulation. Starting with an evolutionary perspective, the authors then consider the major technologies transforming finance, arguing for approaches to balance the risks and challenges of innovation. They then move address through the central role of infrastructure in digital financial transformation, highlighting the lessons of China, India, the EU as well as the impact of pandemics and other sustainability crises, while and analyze considering the risks generated by FinTech. They conclude by offering forward-looking strategies that will best assist societies seeking to employ FinTech to address the challenges facing our world today.
Chinese Cybersecurity Law: An Overview
Posted on Thu, Aug. 10, 2023
Hunter Dorwart, Bird & Bird
This chapter provides an overview of cybersecurity law in China, from introductory developments in the early 1990s regarding security of physical IT systems to contemporary debates around data protection, data security, and software vulnerabilities. It attempts to provide the reader with an introduction to cybersecurity law in China including key policy rationales, laws, and administrative regulations.
Artificial Intelligence Inventions
Posted on Wed, Aug. 9, 2023
Haochen Sun, The University of Hong Kong
This Article argues that the current divergent approaches to determining the legal status of AI inventorship fail to address proper policy considerations central to shaping AI and patent law in service of the public interest. Applying broad-based, forward-looking policy considerations, this Article puts forward three legal principles for protecting AI-generated inventions. The first principle draws on the doctrine of “piercing the corporate veil” to ascertain the sole patent proprietor of AI-generated inventions. It attempts to remove the unnecessary cost of protecting AI systems that are incapable of securing ownership of their inventions. The second principle considers the capacity to take legal responsibility as a means of evaluating whether AI systems should be recognized as inventors. It channels an ethos mandating that any grant of patent rights be conditioned on certain legal responsibilities. The third principle dictates that patent protection of AI-generated inventions must promote robustness of the public domain through the free flow of information and knowledge not subject to proprietary control.
The Evolution of Modern Chinese Nationality Law: A Historical Perspective
Posted on Wed, Aug. 9, 2023
Albert H. Y. Chen, The University of Hong Kong
The legal concept of nationality was a Western import into China in the 19th century. The modern notion of nationality was a product of modern public international law and the domestic constitutional laws of Western states. In 1909, China under the Qing Dynasty enacted its first nationality law. After the Republic of China was founded, it enacted in 1912 a nationality law which was largely the same as the 1909 law. This law was slightly amended in 1914. After the Chinese Nationalist Party (Kuomintang) came into power, a new nationality law was enacted in 1929. This law is still largely in force in Taiwan today. The People’s Republic of China only adopted its first nationality law in 1980. This law is still in force today. This article will trace the evolution of modern Chinese nationality law by examining the laws mentioned above. It will seek to understand the evolving Chinese nationality law in the light of its changing political and social contexts and the international environment in which China found itself.
Moving to Opportunity for Polluting: Intra-City Evidence from China’s Land Market
Posted on Tue, Aug. 8, 2023
Shiyu Bo, Jinan University
Fan Zhang, University of International Business and Economics
Hongjia Zhu, Jinan University
As a response to local environmental regulations, it is prevalent to observe the relocations of polluting firms across cities. The authors provide the first piece of evidence of the within-city relocations of polluting plants through the spatial distribution of industrial land. The authors use the unique setting of the 12th Five-Year Plan on Air Pollution Prevention and Control covering 117 cities in China, among which the 47 treatment cities received more stringent regulation than the remaining 70. Using a triple-difference model, the authors find that after the implementation of the regulation, the locations of land newly leased by firms in polluting industries in the treatment cities are further away from the monitoring stations than those in the control cities. The event study results and the placebo tests using other categories of land farther validate the causal relationship. The channel analysis suggests that the mechanism is through both the supply side and the demand side: the local governments move their industrial land supply away from the monitoring stations after the regulation; land buyers also show less of a tendency to bid for land near the monitoring stations.
Godfather Politicians and Organized Violence: The Good, the Bad, and the Bloody
Posted on Tue, Aug. 8, 2023
Shuo Chen, Fudan University
Xinyu Fan, Cheung Kong Graduate School of Business
Xuanyi Wang, University of Zurich
Yuzheng Wang, Central University of Finance and Economics
Virtuous politicians are considered as ideal public servants. Ironically, social order does not necessarily improve when good politicians replace flawed ones. A corrupt politician (“Godfather”) may arbitrate otherwise violent conflicts for extralegal personal benefits, while maintaining local peace. Eradicating such politicians, therefore, leads to social unrest. Utilizing a unique natural experiment – China’s anti-corruption campaign since 2013, we use a difference-in-differences test to show that organized violence surged by an additional 14% in cases where officials were found colluding with organized criminals. We further show that the organized violence surge was not due to reporting bias, government failures, or gangster infightings.
Posted on Mon, Aug. 7, 2023
Jerome A. Cohen, New York University
This essay reviews Professor Cai Congyan's book, “The Rise of China and International Law: Taking Chinese Exceptionalism Seriously.” Despite the confines of the Xi era, the book delivers an in-depth analysis of the laws, politics, philosophy, and economics underpinning China’s global practice. His insightful arguments particularly shine in addressing the PRC’s increasing role in the WTO and other economic forums. However, the book falls short in addressing critical international issues, including the PRC’s claim over Taiwan, the implications of the Belt and Road Initiative, the country’s rejection of the 2016 UN Convention on the Law of the Sea arbitration award, and the detention of two Canadian citizens in retaliation to Canada’s cooperation with the U.S. extradition of a Huawei executive. The book also overlooks the significant influence exerted by the CCP over judicial institutions. Despite these limitations, the book is a valuable resource for those seeking to understand China’s complex and evolving approach to international law, calling for further evaluation of Beijing’s advocacy for “a community of shared future for mankind.”
China's New Legal Framework for Vertical Price Restraints: Aspirations and Limitations
Posted on Mon, Aug. 7, 2023
Sandra Marco Colino, Chinese University of Hong Kong
This article explores, and critically discusses, the revised legal framework for vertical price fixing and minimum resale price maintenance under Chinese competition law from a comparative perspective. In recent years, the Supreme People’s Court (SPC) and China’s legislature have attempted to close the gap in the administrative and judicial readings of the Anti-Monopoly Law (AML). The clarifications made in the 2022 AML reform largely resolve long-standing interpretative tensions. Nonetheless, they raise new doubts with regard to the standard of proof required to show the absence of effects. Moreover, the modus operandi of the exemptions remains unclear, since they have rarely ever been successfully invoked in practice. The article questions the true extent of the flexibility afforded by the modified policy, and proposes ways to enhance effective competition law enforcement.
Law In Books Versus Law In Action In the Landmark Shenzhen, China, Personal Bankruptcy Regime
Posted on Fri, Aug. 4, 2023
Jason J. Kilborn, University of Illinois
The first personal bankruptcy regime in Mainland China celebrated its second anniversary on March 1, 2023, and empirical assessment of the law in action during these first two years reveals some troubling deviations from the early promise of the new law on the books. The new system seems to be operating in quite a skewed fashion, admitting only a very small fraction of applicants and offering relief on narrow and demanding grounds. This is a disappointing abandonment of the textual promise of broad, standardized relief consistent with international best practices. As national authorities in China (and elsewhere) consider adopting a country-wide personal bankruptcy law, Shenzhen's experience illustrates the challenges of striking the right balance between relief and responsibility in personal insolvency regulation.
Property Rights and Firm Scope
Posted on Fri, Aug. 4, 2023
Zhimin Li, Peking University
Tony Tong, University of Colorado
Mingtao Xu, Tsinghua University
The voluminous strategy research on the determinants of corporate scope is often premised on a well-established property rights regime, which contrasts with the weak property rights protection that still characterizes most countries today. The authors address this gap by applying property rights theory to theorize and empirically examine how the strengthening of the property rights regime affects corporate scope. Their analysis exploits the enactment of a property law that enhanced the formal protection of private properties in China as a quasi-experiment. They show that with a strengthened property rights regime, the horizontal relatedness among private firms’ businesses increases, but their vertical relatedness decreases, compared with state-owned firms. Further, these effects are less prominent for politically connected firms that are afforded informal protection of property rights. The findings shed new light on the property rights regime as a critical determinant of firms’ horizontal and vertical scope.
China and Global Data Transfers: Implications for Future Rulemaking
Posted on Thu, Aug. 3, 2023
Hunter Dorwart, Bird & Bird
In recent years, the rise of China as a cyberpower has raised concerns over the future of the Internet, the international norms of cyberspace, and the role of governments in regulating information and digital technologies. A central pillar of China’s cyberpower capabilities is the country’s new data governance framework, which attempts to regulate the flow of data across borders and exert sovereignty and control over entities and individuals that use information. At the same time, international rules around cross-border transfers have diverged, with numerous governments asserting their own jurisdiction to restrict the global flow of data. This chapter outlines the Chinese government's strategic ambitions with respect to data transfers and how and to what extent its goal may influence future rulemaking. It argues that while China’s overarching objective for data transfers is clear, its strategy to translate these goals into international rules and principles remains inchoate. Nonetheless, this chapter identifies three spillover effects of China’s regulatory rulemaking that could form a multi-dimensional foundation through which China may influence international data flows in the future.
Posted on Thu, Aug. 3, 2023
Luther Lie, Harvard University
A nation’s economic development requires a significant investment in infrastructure. Infrastructure investment, however, is costly and risky: it is capital intensive, is potentially unprofitable, and requires high levels of technical expertise in many disciplines. To solve this challenge, most countries, apparently including China, seem to have adopted the public-private partnership (PPP) model for infrastructure financing and development — a legal-financial model developed in the United Kingdom in the 1990s. Being private sector driven, the Western PPP model was seen as a solution to the problem. This paper, however, argues that the Western model is far from globalized. China, in particular, has created and advanced its own model of infrastructure financing and development. Under the Chinese model, state-owned enterprise corporations (SOEs) lead infrastructure financing, construction, and operation. The Chinese model has been developed and indeed become a contender in emerging markets and developing economies in Asia such as Indonesia and Vietnam.
Regulation of the Legal Profession in China: An Historical Overview
Posted on Wed, Aug. 2, 2023
John K.M. Ohnesorge, University of Wisconsin
This essay begins with an exploration of the role of law and “proto lawyers” in imperial China, followed by a survey of the legal profession and its regulation in Republican China before 1949 (Section II). Section III addresses lawyer regulation during the high tide of Soviet and the Maoist influence (III.A.), and in the post-1978 reform period (III.B. and III.C.), including the regulation of foreign lawyers and law firms in the China market. Section III.D. turns to developments since Xi Jinping took power in 2012, and Section IV offers concluding observations.
Posted on Wed, Aug. 2, 2023
Paolo Davide Farah, West Virginia University
The regulation of standard setting varies significantly across regions and covering and comparing in detail the EU and Chinese regimes is an interesting decision and illustrates how two highly bureaucratic systems address the regulation of technological advancements. The analysis demonstrates how not only legal and economic considerations play a role in the regulation of standards, but also and most importantly political ones. The “openness” of China’s standardization is a telling example in this regard. The adoption of particular standards has the power to shape the industry, fostering innovation and interoperability, and at the same time, competition. This competition is not limited within State boundaries. It is taking place on a transnational scale where not only economic, but also geopolitical considerations play a role in shaping standards. The focus on information and communication technology (ICT) introduces the connections and interlinkage between standards and Intellectual Property Rights (IPRs).
Credibility Standards: A New Social Credit Mode of Regulation?
Posted on Tue, Aug. 1, 2023
Marianne von Blomberg, University of Cologne
Under the social credit system project, China’s government promotes credibility-based regulation, a mode of discretionary decision-making informed by quantified assessments of regulatory subjects’ credibility. Credibility-based regulation is intended to combat China’s law enforcement problem by activating non-state actors to participate in regulatory work through conducting and sharing credibility assessments. However, little is known about its implementation. This article argues that a yet unexplored series of voluntary national standards provides the technical link between central-level rhetoric on credibility-based regulation and its implementation. Specifically, these standards lay down assessment methods and quantitative indicators for assessing credibility, and are drafted for the use of regulatory agencies, platform companies, industry associations and other state and non-state stakeholders. National standards provide a suitable link for implementing credibility-based regulation because, unlike top–down laws and policies, their creation involves a range of non-state affiliated actors, producing negotiated solutions that co-regulators may be more likely to adopt.
Exploring China’s Dual-Class Equity Structure: Investor Protection Measures and Policy Implications
Posted on Tue, Aug. 1, 2023
Sang Yop Kang, Peking University
Tong Ling, Fangda Partners
Mainland China traditionally maintained the one-share-one-vote (OSOV) principle. Since 2019, however, Chinese authorities have introduced rules supporting the dual-class equity structure (DCES) for “innovative enterprises.” Due to concerns about investor-protection issues, China’s DCES operates as a “stringent permit system,” and as of the end of December 2022, only eight corporations have used it so far. This article provides a broad and profound policy analysis of the Chinese DCES system, including empirical analyses on the eight existing DCES cases. It also explores the legal and economic aspects of investor-protection issues with respect to the China’s DCES. To foment founders’ entrepreneurship and allow more corporations with the DCES, this article recommends that the Chinese authorities gradually relax the implementation of the current DCES system of de facto stringent permit system. The future relaxation of the stringent permit system will also be beneficial for China.
The Holding Foreign Companies Accountable Act: A Critique
Posted on Thu, Jul. 13, 2023
Jesse M. Fried, Harvard University
Tamar Groswald Ozery, Hebrew University of Jerusalem
The 2020 Holding Foreign Companies Accountable (HFCA) Act will force China-based firms to delist from U.S. exchanges if China fails to permit audit inspections during a two-year period. The Act also requires such firms, as soon as China blocks such inspections, to disclose ties to the Chinese party-state. The authors first explain why the delisting provisions, while well-intentioned, may well harm U.S. investors. The authors then turn to the disclosure provisions, explaining that they appear to be motivated by a desire to name-shame Chinese firms rather than to protect investors. While China-based firms do pose unique risks to U.S. investors, the Act fails to mitigate—and may well exacerbate—these risks.
The Good Chinese Lawyer: A Student Guide to Law and Ethics
Posted on Thu, Jul. 13, 2023
Adrian Evans, Monash University
Richard Wu, The University of Hong Kong
Xu Shenjian, China University of Political Science and Law
This new book explores the ethical and professional challenges that will confront a law student, and will help them to prepare for life as a lawyer. The book offers principled and pragmatic advice about how to overcome such challenges. It urges readers to examine motives for seeking a career in law, to foster a deep understanding of what it means to be 'good' lawyer, and how to draw on virtue and judgment when difficult choices arise, rather than simply relying on rushed compliance with rules or codes. The Good Chinese Lawyer analyses four important areas of legal ethics – truth and deception, professional secrets, conflicts of interest, and professional competence – and explains the choices that are available when determining a course of moral action. It links theory to practice, and includes many diagrams and scenarios to illustrate ethical concepts and good decision-making.
The Cooperation Mechanism and Legal Harmonisation
Posted on Wed, Jul. 12, 2023
Emily Lee, The University of Hong Kong
This article examines the potential and challenges of the ‘Cooperation Mechanism’, a scheme introduced jointly by the Supreme People’s Court in China and the Hong Kong Government on 14 May 2021, for enhancing mutual recognition and assistance in insolvency proceedings. This article contends that the Cooperation Mechanism does not in itself constitute a formal mechanism for mutual recognition. To assess its impact, this article traces and analyses court decisions on recognition and assistance made before the implementation of the Cooperation Mechanism, and places them in contrast to those pursuant to or influenced by the Cooperation Mechanism. Additionally, it highlights a similar practice between Europe’s Brussels Convention of 1968 and two arrangements between Hong Kong and mainland China, namely the 2006 Arrangement and the 2019 Arrangement, in carving out bankruptcy and insolvency proceedings, notwithstanding some technical differences.
Recent and Noteworthy Legal Works Published in China
Posted on Wed, Jul. 12, 2023
Mark Sidel, University of Wisconsin Law School
1985 and 1986 were banner years in Chinese legal publishing. More than ever, Chinese legal scholars and commentators were freed from producing numbingly repetitive law textbooks and guides for citizens on such topics as family law and criminal law and began to write books and articles, some imbued with an unprecedented innovative spirit, on subjects as varied as administrative law, inheritance law, bankruptcy, intellectual property and the relationship between law and democracy. Works examining the traditional subjects of the Chinese legal scholar and commentator, economic law, criminal law and procedure, civil law, family law and legal history, were more lively and imaginative and often employ specific case examples. Books of civil and criminal cases, a new genre in Chinese legal publishing, have burst upon the stage. Academic and popular law journals have emerged relatively free of restraint, and legal periodicals have thrived.
Between Rules and Power: Finding a Place for Lawyers in the Sociology of Professions
Posted on Tue, Jul. 11, 2023
Sida Liu, The University of Hong Kong
The legal profession’s maintenance of ‘rule-boundedness’ is not a simple choice between order and liberty or between ‘authoritarian or the anti-authoritarian powers’ as Max Weber put it. It is rather a complex and everyday balancing act between the toolkit of rules and the river of power. Rules are lawyers’ most potent technical weapon as well as their heaviest moral burden. They enable lawyers to serve or resist state power, but they also constrain lawyers’ political mobilisation by limiting the scope of individual or collective action. Power, by contrast, is both lawyers’ best friend and bitterest foe. It gives lawyers the capacity to use their legal expertise to mobilise the state on behalf of their clients, but it also poses the constant threat of abuse of rules and proceduralism by the state and its officials. This juxtaposition of rules and power makes the practice of law distinctive among the professions, most of which are not as close as lawyers to rules and power.
Chinese Legal Response to the Shared Motherhood Model in Lesbians’ Family-making
Posted on Tue, Jul. 11, 2023
Chunyan Ding, City University of Hong Kong
Despite the non-recognition of same-sex relationships or marriage by the law, lesbian motherhood has become an emerging socio-legal issue in China. Some Chinese lesbian couples adopt a ‘shared motherhood model’ where one lesbian contributes an egg while her partner becomes pregnant through embryo transfer following artificial insemination with a donor’s sperm. Because this model divides the roles of biological mother and gestational mother between lesbian couples, it has allowed legal controversies to emerge associated with the parenthood of the conceived child as well as custody, support of, and visitation of the child. There are two pending judicial cases involving a shared motherhood arrangement reported in the country. Given little literature discussing Chinese legal responses to the shared motherhood model, this article aims to fill the gap by investigating the basis of parenthood under Chinese law and analyzing the parentage issue concerning the different types of relationships between lesbians and children born of a shared motherhood arrangement.
Is Trial Fairness Affected in Live Broadcast? Preliminary Evidence from a Court in China
Posted on Mon, Jul. 10, 2023
Yingmao Tang, Fudan University
Zhuang Liu, The University of Hong Kong
Kangyun Bao, Peking University
This article examines the impact of live broadcast of trials on the behavior of trial participants and court decisions, which is a fundamental question raised by the US Supreme Court in Estes v. Texas in 1965, but has largely been ignored by the advocates of China’s recent initiative to promote and support live broadcast of trials. Using data collected from a court in China, the authors compare trials with and without live broadcasting. They find that trial participants’ rate of speech (average speaking speed measured in words per minute) is slower in the presence of live broadcast, suggesting that they are more cautious. The authors do not find evidence that live broadcasting influences court decisions or judgments in civil or criminal cases.
Open Access in the Economic Sphere: Understanding China’s Development
Posted on Mon, Jul. 10, 2023
Guanghua Yu, The University of Hong Kong
This article is the last piece in a series of articles written from the perspective of contemporary non-Western countries, arguing that it is open access in the economic sphere and the interconnected institutions in the areas of property right protection and contract enforcement, financial market, rule of law, and the accumulation of human resources that determine economic and human development. The case of China shows again that the theory of North and his colleagues overemphasizes the role of open access to political organizations or competitive democracy in economic development. While Singapore restricts the role of opposition parties, China strictly prohibits opposition parties. Both countries have developed relatively well. If the author’s argument is correct, there are new ways of defining the roles of government in economic development.
An Unlikely Duet: Public-Private Interaction in China's Environmental Public Interest Litigation
Posted on Fri, Jul. 7, 2023
Ying Xia, The University of Hong Kong
Yueduan Wang, Peking University
Increasing research has been devoted to examining collaborations between public and private actors in environmental regulation under neoliberal democracies. However, this public-private interaction in authoritarian regimes remains understudied. This article seeks to address this gap through an empirical examination of the interaction between environmental non-governmental organizations (NGOs) and procuratorates in China’s environmental public interest litigation. The authors find emerging complementarity: NGOs focus on new issues and target high-profile defendants to increase the socio-legal impact of their civil litigation, whereas procuratorates increasingly engage in administrative litigation against government agencies. This complementarity is shaped by the different legal opportunities for Chinese NGOs and procuratorates, as well as their respective institutional objectives and capacities. Their divergent regulatory preferences have also fostered synergy between these two actors, allowing them to collaborate on legal experimentation and innovation.
Posted on Fri, Jul. 7, 2023
Min Yan, Queen Mary University of London
Following other leading financial centres in Asia, China also recently relaxes restrictions on one share-one vote and starts to allow companies with differentiated voting rights (DVR) arrangement under dual-class share (DCS) structures to list on its newly established Sci-Tech innovation board. The move primarily aims to provide more flexible capital structures to support a sustainable development of high-tech and innovative companies and to increase stock exchanges’ competitiveness in attracting companies that prefer going public with DCS structures. However, the reality deviates from scholars and policymakers’ expectation as only one company applies for and gets listed with a DCS structure since the official permission of such share structures in March 2019. This article examines underlying reasons for the discrepancy between the expectation and the reality of China’s implementation of DCS structures. It also critically discusses the role and future of DCS structures in the Chinese context.
How Did Qing Magistrates Decide Cases? Philip Huang vs. Shiga Shūzō
Posted on Thu, Jul. 6, 2023
Donald C. Clarke, George Washington University
Shiga Shūzō argued in 1981 that in cases where serious criminal punishment was not contemplated, Qing magistrates adjudicated not according to the Qing code or other legal sources, but instead according to their own sense of what was right and appropriate. Against this, Philip Huang argued in 1996 that the vast majority of cases were adjudicated unequivocally according to the Qing code. But Huang fails to disprove Shiga’s claim. First, by his own admission, he is constructing through his own inferences the rules of the Qing code that he says the magistrates were applying; they do not in fact appear in the code. Second, the rules he constructs are so broad and virtually tautological—for example, “enforce legitimate debts”—that they do not meaningfully distinguish the Qing code from general principles of law and morality that have applied in many societies across time and space.
Posted on Thu, Jul. 6, 2023
Albert H. Y. Chen, The University of Hong Kong
Simon N. M. Young, The University of Hong Kong
Under art 29(4) of Hong Kong’s National Security Law, a person or company who “receives instructions” from a foreign country to commit the act of “imposing sanctions” against the Hong Kong Special Administrative Region (HKSAR) or the People’s Republic of China (PRC) commits a criminal offence. If, as required by the law of a foreign country X, a financial institution in Hong Kong performs an act in the course of its business for the purpose of implementing a sanction imposed by country X against the HKSAR or PRC, does that financial institution violate art 29(4)? The authors argue the financial institution does not, and that the scope of art 29(4) must be interpreted contextually.
The Other Roles of Law: Signaling, Self-Commitment and Coordination
Posted on Wed, Jul. 5, 2023
Guanghua Yu, The University of Hong Kong
The existing literature on the role of formal law in economic development mainly focuses on the protective function of law. The dominant position of law and development scholars with expertise in Chinese law or economy downplays the role of formal law in China’s economic development. This article, however, demonstrates that there is still inadequate evidence to support this position. In addition to pointing out that there might be a role for formal law in China’s economic development with respect to the enforcement of contracts and the protection of property rights, this article analyses the other roles of law. They include signaling, self-commitment, and coordination. These roles of formal law have varying degrees of impact in different countries depending upon their political economy. More importantly, it is the law that defines the role of the state or government in economic development. This article rejects the position that there is a role of the government in owning or managing SOEs or TVEs in China except for a period under distorted economic conditions. The role of the state, instead, should be in the provision of public goods including law.
Posted on Wed, Jul. 5, 2023
Matthew S. Erie, University of Oxford
China has emerged as a champion of economic globalization, particularly through building global supply chains, financing overseas infrastructure and energy projects, and exporting labour to developing countries throughout the world. The Belt and Road Initiative (BRI), announced in 2013, is a keystone in China’s economic globalization. The BRI emphasizes connectivity: policy, infrastructure, trade, financial, and ‘people-to-people’. Despite the broad significance of Chinese economic globalization, its legal dimensions are still poorly understood. China, Law and Development (CLD) is an international and multi-disciplinary research project that aims to study the legal and regulatory aspects of this stage of globalization. This symposium is comprised of articles by CLD research associates who investigate various questions, including labour rights, skilled migration facilitation, investment review, multilateralism, and patronage and clientelism. This article introduces the symposium, and it does so through the example of China’s role in global health governance.
The Identifiability Problem in Transnational Privacy Regulation
Posted on Tue, Jul. 4, 2023
Xiaowei Yu, The University of Hong Kong
Commercial surveillance pervasively compromises data privacy by tracking consumers without meaningful consent or knowledge, yet there is no consensus on when data privacy laws should intervene. The crux lies in the standard of identifiability, which functions as the threshold trigger for when regulation is permissible. The world’s key privacy jurisdictions—the EU, U.S., and China—continue to struggle in similar ways with inadequately defining and inconsistently applying the concept of identifiability. This article generalizes from the transnational convergence and refers it as “the identifiability problem.” Recognizing the identifiability problem reveals an overlooked phenomenon across jurisdictions. Besides, it lays a factual foundation to synthesizing international efforts into solving the threshold issue of data privacy law. Moreover, it calls forth a normative inquiry. Whether we can justify the use of identifiability as the threshold for regulation is the first and foremost task prior to revising identifiability or abandoning it.
Will China's New Anti-Suit Injunctions Shift the Balance of Global FRAND Litigation?
Posted on Tue, Jul. 4, 2023
Jorge L. Contreras, University of Utah
Yang Yu, Shanghai University of International Business and Economics
By issuing anti-suit injunctions (ASIs) in Conversant v. Huawei and InterDigital v. Xiaomi in late 2020, Chinese courts have signaled a new willingness to vie for jurisdictional authority in global battles over standard-essential patents and FRAND licensing. While the Supreme People’s Court in Conversant largely followed the pattern of US and UK courts that have issued ASIs in similar cases, the ruling of the Wuhan court in InterDigital is far broader in two major respects. First, its geographic scope is not limited to the country in which InterDigital sought injunctive relief (India), but extends to all jurisdictions in the world. Second, it prohibits InterDigital from seeking a determination of a global FRAND rate for its 3G/4G patents anywhere in the world. In view of these two recent cases, China has clearly joined the international race to be the jurisdiction of choice for determining FRAND royalty rates in global disputes involving standard-essential patents.
The Digital Yuan and Cross-Border Payments
Posted on Mon, Jul. 3, 2023
Oriol Caudevilla, The University of Hong Kong
Henry M. Kim, York University
China’s launch of its digital yuan begins a new era in payments. After six years of research and development, the Chinese government announced its testing of the digital yuan (e-CNY) within its digital currency electronic payment (DCEP) system. China has also laid the groundwork to launch the digital yuan internationally. The domestic and cross-border tests proved so successful that the People’s Bank of China released digital yuan wallet applications for Android and iOS in early January 2022. Western policymakers have expressed concerns over China’s aspirations to internationalize the renminbi by expanding its DCEP, potentially allowing China’s security agencies to monitor the financial activity of foreign visitors, companies, or governments doing business in China or in its Belt and Road Initiative, or to bypass sanctions against some of the initiative’s members. This case study looks at how China might leverage the e-CNY to increase its influence in the global economy.
Development Is Not a Dinner Party
Posted on Mon, Jul. 3, 2023
John K.M. Ohnesorge, University of Wisconsin Law School
Much has been written, and remains to be written, about the many roles law has played in China’s economic development since 1978. Without minimizing the value of what has been written so far, this essay seeks to broaden the discussion by applying to China’s recent history certain ideas of the great historian of 19th Century American law and economic development, James Willard Hurst. The essay proceeds by providing a brief introduction to Hurst and his work on law and economic growth in the United States, then explores how those ideas might be applied to assist our understanding of what has happened in China.
How Will Technology Change the Face of Chinese Justice?
Posted on Fri, Jun. 30, 2023
Benjamin Minhao Chen, The University of Hong Kong
Zhiyu Li, Durham Law School
Chinese courts are piloting AI systems that promise to streamline adjudicatory processes and expand access to justice. Although other jurisdictions have employed statistical and computational methods to improve judicial decision-making, few have sought to exploit technology to the same degree. A way of understanding this exceptionalism is to view the integration of technology into law as a microcosm of China’s ambitions to emerge as a global artificial intelligence powerhouse and thereby establish itself in the first rank of nations. Seen from a different perspective, however, the technologization of the legal system responds to certain oppositions in Chinese justice. Technological initiatives for administering justice simply, swiftly, and singly have thus blossomed in China because they relieve some of the tensions in its legal system. But there is also a larger warning here that transcends jurisdictional boundaries and legal cultures concerning the marginalization of the legal profession.
The Effects of Government Licensing on E-Commerce: Evidence from Alibaba
Posted on Fri, Jun. 30, 2023
Ginger Zhe Jin, University of Maryland
Zhentong Lu, Bank of Canada
Xiaolu Zhou, Xiamen University
Chunxiao Li, Alibaba Group
Using proprietary data from Alibaba, the authors examine how the 2015 Food Safety Law (FSL) affects e-commerce in China. The FSL requires most food sellers on e-commerce platforms to obtain a valid, online license for retail food handling. Because the FSL was rolled out progressively, the authors have a rare opportunity to observe a gradual transition from voluntary certification to partial licensing and mandatory licensing. Data summary shows many insightful results and suggests that the FSL does not hamper the long run performance of the regulated market.
Cultural Issues in International Arbitration
Posted on Thu, Jun. 29, 2023
Shahla F. Ali, The University of Hong Kong
This paper addresses the theme of cultural convergence and divergence in international arbitration practice. Applying theoretical insights to unique arbitral practices in Hong Kong and Mainland China, the chapter draws on the author’s survey and field work in the region. Examining both the convergence and divergence of approaches to arbitration in diverse settings provides an avenue to understanding the impact of globalization on the international practice of law.
Does Stricter Disclosure Regulation of Private Meetings Improve the Information Environment?
Posted on Thu, Jun. 29, 2023
Robert M. Bowen, Chapman University
Shantanu Dutta, University of Ottawa
Songlian Tang, City University of New York
Pengcheng Zhu, University of San Diego
The Shenzhen Stock Exchange (SZSE) in China is unique worldwide in requiring disclosure of the existence and content of private meetings between firm managers and outside investors. The authors investigate whether the SZSE’s increased disclosure requirements led to tangible benefits for market participants. Despite allegedly ‘improved’ disclosures, the authors find the SZSE’s information environment experienced increased stock price volatility and reduced information efficiency. Private meetings became quasi-public and disclosures became more positive and less informative. Mutual fund participation in private meetings increased – especially for funds with little or no ownership in the host firm. Increased participation by these less informed institutional investors is one explanation for observed higher stock volatility and lower information efficiency around these meetings.
Posted on Wed, Jun. 28, 2023
Chao Xi, Chinese University of Hong Kong
One of the most contentious topics in the regulation of related party transactions (RPTs) is the majority-of-the-minority (MOM) vote, which purports to provide non-controlling and minority shareholders with protection against expropriation by corporate controllers and insiders. Surprisingly missing in the current comparative discourse is the case of China. China has adopted the MOM for over two decades (since 2000), and its experience promises to offer important comparative insights. The intriguing absence of China from the ongoing comparative debate is mainly due to the paucity of available data. To bridge this critical gap, we have successfully deployed state-of-the-art data mining techniques.
Posted on Wed, Jun. 28, 2023
Jie Cheng, University of British Columbia
This paper contends that the late Qing constitutional reform failed not because it was a top-down reform or because the need for survival prevailed the enlightenment movement. It argues that the reform failed to address two major crises: the problem of over-concentration of powers in terms of central-local relationship and the tension between Man-Han elites. Since these challenges were drastically different from those in Japan during the Meiji Era, the late Qing reform failed even though it emulated many polices of the Meiji Restoration.
The Public Sector Ombudsman in Greater China: Four 'Chinese' Models of Administrative Supervision
Posted on Tue, Jun. 27, 2023
Stephen Thomson, Australian National University
Among the challenges facing Greater China, the ombudsman is rarely, if ever, considered one of them. Yet this relatively innocuous institution can, under the right conditions, contribute much that is beneficial to standards in public administration. This is the first article to contrast the models of public sector ombudsman in Mainland China, Hong Kong, Macau, and Taiwan, drawing comparisons on such features as institutional function, constitutional and legal status, relationship with the executive branch, process, substantive powers, effectiveness and transparency. Even in a region as politically , constitutionally and economically associated as Greater China, four diverse models of ombudsman coexist.
Posted on Tue, Jun. 27, 2023
Cheng Han Tan, City University of Hong Kong
Jiangyu Wang, City University of Hong Kong
The Covid-19 pandemic in general had a deleterious effect on business enterprises, and it was not surprising that governments have stepped in adopting a wide range of legal and policy measures to help business stay above the water in this poisoned environment. These measures included temporary moratoriums on financial obligations and debt recovery, relief from other contractual obligations, employment support, increases to the debt thresholds for the commencement of insolvency proceedings, and infrastructure investments. These extraordinary measures, if effective, had the potential to become part of an expanded standard playbook to deal with future economic shocks, and this chapter will focus on them with particular reference to China, Hong Kong, Malaysia, and Singapore.
Ideology and Historiographic License in Chinese Legal Scholarship
Posted on Mon, Jun. 26, 2023
Samuli Seppänen, Chinese University of Hong Kong
Historical scholarship appeals to many Chinese legal scholars because it is not seen and experienced as being as ideologically sensitive a field as other branches of Chinese legal scholarship. Chinese legal historians themselves have acknowledged their ability to discuss controversial topics – their ‘historiographic license’ – through legal historical research. This article describes Chinese legal scholars’ historiographic license through the tools of rhetorical theory. The subversive elements of Chinese legal historiography can be attributed to the use of figurative language, which conveys forbidden meanings through innocuous surface text. Figurative language also allows Chinese legal scholars to subtly question ideological doctrines – which they may support in other social contexts – without having to negate these doctrines explicitly. Historiography arguably even offers Chinese legal scholars a means to question their own ideological beliefs.
Registration of Chinese Trusts: Lessons from English Trust Law
Posted on Mon, Jun. 26, 2023
Siyi Lin, King & Wood Mallesons
Hui Jing, The University of Hong Kong
The registration of the trust property (RTP) requirement was introduced in 2001 with the enactment of Article 10 of Chinese Trust Law. However, over the past two decades, neither legislators nor courts have issued any instructions guiding the implementation of the RTP requirement. This has led to difficulties implementing it, considerably hindering the development of real estate trusts in China. In 2016, the China Banking Regulatory Commission established China Trust Registration Co., Ltd. (CTR), to register Chinese trusts. However, the CTR system centres on registering trust products rather than trust property; as such, it cannot implement the RTP requirement under Article 10. With the imminent promulgation of the Real Estate Registration Law, questions regarding whether trust registration is necessary and how to implement it have been intensively discussed recently. This article explores the underlying rationale of the RTP requirement from a comparative law perspective and offers suggestions for its implementation.
The US-China Audit Oversight Dispute: Causes, Solutions, and Implications for Hong Kong
Posted on Fri, Jun. 23, 2023
Robin Hui Huang, Chinese University of Hong Kong
The U.S. audit regulator, PCAOB, has extraterritorial oversight power over all accounting firms that audit U.S.-listed companies, including that of foreign accounting firms. This put it in conflict with foreign audit regulators due to sovereignty and conflict of law issues. Today China remains to prevent its accounting firms to be inspected by the PCAOB, although most other jurisdictions have resolved their differences with the U.S. regulator. This dispute between the U.S. and China had led to lawsuits, warnings, and potential bill to de-list all Chinese companies. This article examines the U.S. audit oversight regime and its inspection practices, the law of China that prevent foreign access to audit documents, as well as the court cases that arose out of the dispute. The reasons for the reluctance of the Chinese side to cooperate are found to be multi-folded. As another major listing destination for Chinese companies, Hong Kong has also encountered difficulties with access to Chinese audit documents but has taken a different approach to solving them. This article proposes various policy options to cope with the dispute over cross-border audit oversight.
Debt Relief with Chinese Characteristics
Posted on Fri, Jun. 23, 2023
Kevin Acker, Johns Hopkins University
Deborah Bräutigam, Johns Hopkins University
Yufan Huang, Johns Hopkins University
As China is poised to become the world’s largest creditor, concerns about debt sustainability have grown. Yet considerable confusion exists over what is likely to happen when a government runs into trouble repaying its Chinese loans. The authors draw on data from the China Africa Research Initiative (CARI) to review evidence on China’s debt cancellation and restructuring in Africa, in comparative and historical perspective. Cases from Sri Lanka, Iraq, Zimbabwe, Ethiopia, Angola, and the Republic of Congo, among others, point to debt relief patterns with distinctly Chinese characteristics.
Toward Healing and Restoration Against Medical Disturbance (Yinao) in China
Posted on Wed, Jun. 21, 2023
Tianlong Lawrence Hu, Renmin University of China
Imbalanced doctor-patient conflicts and divergences such as healthcare disturbance (yinao) significantly undermine the already-weakened mutual trust and lead to further deterioration of workplace safety and environment for medical professionals in China. China has to implement all sorts of efforts to cut off the hostile settings where medical disturbances are rooted and developed. Such measures should at least include sufficient remedies provided by medical insurance, refined administrative mediation mechanism, better workplace protective systems in medical institutions, and more importantly, a full-pledged framework with enforceable rules to circumvent medical disturbances and resolving medical accidents. In addition to a more refined legal framework, the social, cultural and professional settings of medical practice should also be further improved by removing “revenge” attacks on Chinese hospital professionals.
A Comprehensive Proposal for the Reform of the Dismissal Law in China
Posted on Wed, Jun. 21, 2023
Zhenxing Ke, Nankai University
This article will offer a comprehensive proposal for the reform of the law of dismissal in China. Even though this topic has received extensive discussion, its significance remains relevant today for the following reasons. First, nowadays, an increasing number of companies operating under the platform model are inclined to reclassify employees as independent contractors. Given this extraordinary circumstance, loosening the dismissal protection and other legal protections may somewhat slow down this process. Second, there is room for the reduction of dismissal protection. Several provisions in the dismissal law are unreasonable and have placed undue burdens on employers. In addition, the establishment of social insurance provides an opportunity for the legislature to reform the dismissal law. By making it less restrictive, legislators can seek a new balance of interest between the employer and the employee.
Regional Judicial Cooperation in Criminal Matters: Mainland China, Hong Kong and Macau
Posted on Tue, Jun. 20, 2023
Miguel Manero de Lemos, University of Macau
Simon NM Young, The University of Hong Kong
This entry outlines the law and practice of regional judicial cooperation in criminal matters within the larger People’s Republic of China (PRC). The current account is one of cooperation between three territorial parts of the PRC, namely Mainland China and the two special administrative regions of the PRC. But prior to 1997 and 1999, the years in which the PRC respectively resumed the exercise of sovereignty over Hong Kong and Macau, the account was one of cooperation between three sovereigns, namely the PRC, the United Kingdom, and Portugal. Ironically, in the more than two decades after the resumption of Chinese sovereignty, there has been less formal cooperation between the three territories within one country than there was when cooperation was between three sovereign states. Why?
Posted on Tue, Jun. 20, 2023
Yun Zhao, The University of Hong Kong
Hui Chen, The University of Hong Kong
This article examines relevant theories and practices concerning the strengthening of access to digital justice and explores pathways to expanding the application of online dispute resolution (ODR). At the deal-making stage, the application of e-signatures is analyzed with respect to the prevention of compliance and security risks. The best practices of smart contracts and blockchain technology are also investigated to promote relevant innovative designs in the digital governance of online contract performance. In addition, top-down and bottom-up ODR platforms are compared in terms of their respective patterns for enhancing efficiency and fairness, as well as their differing potential for institutionalization. Finally, existing ODR self-enforcement models are explored, with emphasis on the “preauthorization” model and the example of Taobao.
Chinese Legal Thought on the Global and the Domestic Stage: A Rhetorical Study
Posted on Mon, Jun. 19, 2023
Samuli Seppänen, Chinese University of Hong Kong
Chinese ruling party ideologues and a number of prominent legal scholars have become outspoken about the global significance of Chinese legal thought. The question is, however, whether the ambitious statements about the global importance of Chinese legal thought are supported by legal theoretical arguments, which could be influential abroad. This article examines the interaction between the domestic and global stages of Chinese legal speech through the tools of rhetorical theory. Arguments about the nature and global significance of Chinese law are made for different purposes and for different audiences. The author’s observations highlight the role of language and persuasion in the globalization of law.
RegTech Innovation and Cooperation – Australia and China Compared
Posted on Mon, Jun. 19, 2023
Andrew Godwin, University of Melbourne
Stacey Steele, University of Melbourne
Dong Yang, Renmin University of China
Meihui Zhang, Nankai University
Regulators in Australia and China are increasingly embracing RegTech. ‘RegTech’ is a contraction of the terms ‘regulatory’ and ‘technology’. The term describes the use of technology to help companies comply with regulation and help regulators perform their regulatory and supervisory functions. This article identifies various ways that regulators in Australia and China are facilitating RegTech initiatives and categorizes and compares those initiatives. The analysis suggests a significant degree of overlap between the two countries in relation to initiatives to facilitate reporting requirements and to improve supervision and supervisory processes. There is a greater focus in China on initiatives to support and strengthen the use of data than in Australia at this stage. However, Australia’s regulators are more active in facilitating initiatives to consult and engage with other stakeholders.
Preempting Court-Civil Society Synergy
Posted on Thu, Jun. 15, 2023
Yueduan Wang, Peking University
In the past two decades, two successive Chinese administrations have taken two drastically different and seemingly self-contradictory stances towards judicial autonomy and legal activism. The previous administration, under the banner of “harmonious society,” adopted a relatively mild approach towards activist lawyers while concurrently undermining court independence. The current administration, on the other hand, has taken the opposite route in an effort to promote “law-based governance,” severely limiting the space for legal activism while pressing for reform aimed at enhancing judges’ autonomy and professionalism. This study argues that the transition was motivated by a combination of three factors: the regime’s changing conception of its own legitimacy, the recent centralization of political power, and the regime’s continual desire to avoid synergy between judicial autonomy and legal activism, which it deems a threat to social and political stability.
Delivering Solidarity: Platform Architecture and Collective Contention in China’s Platform Economy
Posted on Thu, Jun. 15, 2023
Ya-Wen Lei, Harvard University
This study examines how and when labor control and management leads to collective resistance in China’s food-delivery platform economy. The author develops the concept of “platform architecture” to differentiate and examine the technological, legal, and organizational aspects of labor control and management and their relationship with labor contention. She compares the platform architecture of service platforms and gig platforms and examines the relationship between their respective architecture and labor contention. She argues that specific differences in platform architecture diffuse or heighten collective contention. Gig platform couriers are more likely to consider their work relations exploitative and to mobilize contention, despite the fact that they face higher barriers to collective action due to the atomization of their work.
How Stable Is China’s Growth? Shedding Light on Sparse Data
Posted on Wed, Jun. 14, 2023
Hunter L. Clark, Federal Reserve Bank of New York
Jeffrey B. Dawson, Federal Reserve Bank of New York
Maxim Pinkovskiy, Federal Reserve Bank of New York
Policymakers, academics, and market participants have raised many questions in recent years over the accuracy of China’s official economic growth rates, both in terms of levels and volatility. This study addresses the question of growth volatility using a set of alternative growth indicators and concludes that China’s official growth rate most likely has been implausibly smooth. Moreover, growth slowdowns during 2014-15 and 2017-19 were about twice as large as officially reported, while a growth rebound in 2016 was scarcely reported at all; the 2017-19 downturn was also shallower than that of 2014-15, by alternative measures. This picture fits reasonably well with other indicators of the global economy, China’s own domestic data, and policy developments in China. Economic cycles in the period after the global financial crises have shown much shorter upturns and much longer downturns compared with the first decade after China joined the World Trade Organization.
China and the Rise of Law-Proof Insiders
Posted on Wed, Jun. 14, 2023
Jesse M. Fried, Harvard University
Ehud Kamar, Tel Aviv University
Alibaba, the e-commerce giant that completed a record-setting IPO in the United States in 2014 and was valued at over $700 billion in early 2021, is one of hundreds of China-based firms listed in the United States whose controlling insiders are largely law-proof: the corporate and securities laws governing these firms are unenforceable because the firms’ insiders, records, and assets are in China. This casts doubt on the claim that foreign firms list in the United States to bond insiders to tough securities law. In fact, for China-based firms, listing in the United States but not in China effectively insulates insiders from any securities law. Yet U.S. securities law not only allows these firms to list, but also requires them to dis-close less than domestic firms.
The Role of Law in Chinese Value Chains
Posted on Tue, Jun. 13, 2023
Henry S. Gao, Singapore Management University
Gregory Shaffer, University of California, Irvine
Global Value Chains (GVCs) rely on division of labor within and beyond borders to minimize production costs and build regional and global value chains. Since starting its economic reform four decades ago, China has been highly successful in integrating its economy into regional and global value chains. Much has been written on global value chains and China, but little as regards their relation to law. Over time, China changed its laws and developed its legal system in ways that incentivized GVCs. This article analyzes the development of Chinese law, legal institutions, and international and transnational legal initiatives to support the development of GVCs. The article does not idealize law in terms of “commitment” or “rule of law,” but rather, in the legal realist tradition, views law as an important, contributing factor in economic change. It presents law as a signaling and coordinative device that serves to channel private conduct for business planning and coordination.
Laboratories of Authoritarianism
Posted on Tue, Jun. 13, 2023
Yueduan Wang, Peking University
By analyzing major transformations in China, this study shows how the party-state systematically utilizes subnational policy experiments to modernize its communist institutions and adapt to the changing political and social landscape. Like in the U.S., experiments in China result from the interaction between its constitutional structure and competition among political elites. However, contrary to the U.S., China’s center-local constitutional relationship is characterized by a unique combination of decentralized policy-making powers and centralized appointment/removal powers. It is under this arrangement that various Party factions compete for political supremacy. Amid such competition, faction members in subnational leadership positions use their broad policy discretion to pilot new ideas that conform to the faction’s policy objectives. Such innovation often spread either by peer-to-peer learning or through national adoption pushed for by the faction’s central leadership. This cycle of experimentation has become a frequently utilized method for political elites to expand their policy and political influence and is responsible for many institutional innovations critical to the communist country’s modernization and eventual rise as a global superpower.
Posted on Mon, Jun. 12, 2023
Lerong Lu, King's College London
This article discusses and analyses the latest capital markets law reform in China, which involves the launch of the star market (sci-tech innovation board) at the Shanghai Stock Exchange as well as the introduction of the “registration-based” IPO regime to replace the previous “approval-based” system. The article considers whether laws can be used as a useful and transformative tool to create deep and liquid capital markets and to promote technological developments.
Posted on Mon, Jun. 12, 2023
Jieun Kim, University of California, Berkeley
Kevin J. O'Brien, University of California, Berkeley
Studies of local governance in China often point to nimble experimentation but problematic implementation. To reconcile these competing images, it is useful to clarify the concepts of experimentation and implementation and see how they unfolded in one policy area. The history of China’s Open Government Information (OGI) initiative shows that the experimentation stage sometimes proceeds well and produces new policy options, but may falter if local leaders are unwilling to carry out an experiment. The implementation stage often poses challenges, but may improve if the Center initiates new, small-scale experiments and encourages local innovation. This suggests that the experimentation and implementation stages are not so different when officials in Beijing and the localities have diverging interests and the Center is more supportive of a measure than local officials. The ups and downs of OGI, and also village elections, can be traced to the policy goal of monitoring local cadres, the central-local divide, and the pattern of support and opposition within the state.
Crowd-Judging on Two-Sided Platforms: An Analysis of In-Group Bias
Posted on Fri, Jun. 9, 2023
Alan P. Kwan, The University of Hong Kong
S. Alex Yang, London Business School
Angela Huyue Zhang, The University Hong Kong
Disputes over transactions on two-sided platforms are common and usually arbitrated through platforms’ customer service departments or third-party service providers. This paper studies crowd-judging, a novel crowdsourcing mechanism whereby users (buyers and sellers) volunteer as jurors to decide disputes arising from the platform. Using a rich data set from the dispute resolution center at Taobao, a leading Chinese e-commerce platform, the authors aim to understand this innovation and propose and analyze potential operational improvements with a focus on in-group bias (buyer jurors favor the buyer, likewise for sellers). Their empirical findings suggest that such concern is not completely unfounded. However, the bias diminishes as jurors gain experience. Incorporating these findings and juror participation dynamics in a simulation study, this paper delivers three managerial insights.
Posted on Fri, Jun. 9, 2023
Natalie Mrockova, University of Oxford
This paper looks at whose voice is heard and whose interests are protected in the making of finance-related laws in China. To ensure its accuracy, the paper focuses on a real-life case study of the making of bankruptcy laws in 1986 and 2006. Laws provide a set of incentives and constraints on their intended users and beneficiaries. In the context of bankruptcy law this means determining who shall bear the risk of corporate failure, whose interests shall be prioritized in corporate exit or reorganization, and who shall be the mediator/decision-maker in a case of conflict. Exploring bankruptcy law-making process in China sheds light on the interaction between and pressures exerted by the various stakeholders, which in turn informs the debate of representation and participation in China’s legislative process.
Posted on Thu, Jun. 8, 2023
Lin Lin, National University of Singapore
Dan W. Puchniak, Singapore Management University
The CCP’s role as the architect – and direct and indirect controller – of institutional investors in China has been largely overlooked in the comparative corporate law literature. This Article aims to take the first step in filling this gap. It reveals how the CCP has promoted the growth of domestic institutional investors through relaxation of policies and law reforms to improve corporate governance and stabilize the stock market, while limiting the influence of foreign institutional investors. However, contrary to what some conceptions of “state capitalism” may suggest, the CCP does not micro-manage institutional investors on a day-to-day basis. Rather, institutional investors normally function according to free-market forces and increasingly perform an important corporate governance role – with the CCP using its policy channeling in a targeted way: what this Article coin’s the “market within the state” for institutional investors in China.
China's Energy Policies and Strategies for Climate Change and Energy Security
Posted on Thu, Jun. 8, 2023
Haifeng Deng, Tsinghua University
Paolo Davide Farah, West Virginia University
National energy security, parallel with the ultimate goal of emissions reductions, is of utmost priority for the Chinese government. This article focuses on the concept of energy security in assessing whether, and how, the priorities related to climate change are gradually changing. Based on the examination of China’s efforts to transition towards a low-carbon economy, the authors provide a holistic definition of energy security through the lens of three dimensions: energy supply security, energy economy and energy ecological security. They then address the relationship between energy security and climate change. The results insist that, in order to strengthen environmental protection in China, it is crucial to reform the highly inefficient and strictly regulated national energy market. In doing so, China’s transition to a low-carbon society and economy could prove less painful, as China’s available resources offer the potential for a strengthened ecological dimension and sustained socio-economic development.
Weak Criminalization of Domestic Violence in China: Two Key Weaknesses
Posted on Wed, Jun. 7, 2023
Peter Chan, City University of Hong Kong
Huina Xiao, Macau University of Science and Technology
This article deals with the difficulties that arise from the limited criminalization of domestic violence by the criminal justice system in China. Substantive law is weak in at least four respects. In terms of the processes of criminal justice, the frailties are even more serious. The police in their law enforcement work do not give sufficient weight to domestic violence cases. The provisions of Chinese criminal procedure provide only a very limited deterrence regime regarding domestic violence. For example, the police are not incentivized sufficiently to implement and to enforce the protection order system. Important too in explaining the problem of limited police impact is the practice of pre-trial cooperation between the police, the procuracy and the courts. Here, the police definition of the situation prevails, with the agencies inclined to allow the police characterization to prevail. So, in effect, law enforcement agencies combine to restrict access to gender justice.
Posted on Wed, Jun. 7, 2023
Da Zhao, Sichuan University
Ao Yu, Sichuan University
Jingyuan Guo, Bocconi University
A central challenge in economic development is market segmentation (MS) within countries, which largely arises from judicial local protection (JLP). By taking advantage of China’s establishment of interprovincial circuit tribunals (ICTs) that separate the judicial system from local governments, the authors find that: (1) ICTs significantly rectify the JLP provided by lower-level courts. (2) ICTs decrease transportation costs of cases involving small and private enterprises as plaintiffs and increase their probability applying for retrials in the Supreme People’s Court (SPC). In combination with the fact that these enterprises are more likely to be discriminated against by lower-level courts, the rectification effect of ICTs becomes significant after the reform. (3) Consistently, although ICTs significantly decrease the MS between provinces within the same circuit area, the MS between provinces of different circuit areas barely changes. This paper provides timely implications and potentially actionable insights for countries facing similar concerns.
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.
Posted on Thu, Feb. 16, 2023
Yueduan Wang, Peking University
Ying Xia, The University of Hong Kong
Through empirically examining three cases of environmental legal entrepreneurship under China's new public interest litigation (PIL) system, this study aims to reevaluate the patterns and limits of judicial expansion under authoritarianism. It finds that Chinese judges, prosecutors, and NGOs have been able to leverage the PIL system and their respective institutional advantages to substantially expand judicial oversight on eco-environmental protection. However, the state has established boundaries for such legal entrepreneurship in terms of subject matter, institutional autonomy, and geographic reach, effectively confining them within political spheres considered unthreatening to the regime. Such quarantined judicial expansion shields relevant actors from authoritarian governments’ tendency to suppress legal mobilization and thus may be a more viable form of judicial expansion in nondemocratic settings.
Punitive Damages under the New Chinese Civil Code – A Critical and Comparative Analysis
Posted on Thu, Feb. 16, 2023
André Janssen, Radboud University Nijmegen
Jia Wang, Durham University
Punitive damages have their roots in the common law system. This article scrutinizes whether it is viable for a civilian legal system to adopt punitive damages in the realm of tort law. The authors conduct research mainly from the perspective of China, which has been very progressive in introducing punitive damages into various areas of private law and recently codified it in its new Chinese Civil Code. The discussion of Chinese law is proceeded with a comparison with the German law, which is also a civilian legal system that used to have a great influence on the making of Chinese law. The authors find that the German private law put much emphasis on disgorgement damages, while the Chinese legislator put his trust in punitive damages. The authors provide recommendations for the future implementation of the Chinese punitive damages law in order to maintain a balance between efficient protection for claimants and sanctions on wrongdoers.
China, Export Cartels, and Vitamin C: America Second?
Posted on Wed, Feb. 15, 2023
Eleanor M. Fox, New York University
The US Supreme Court will soon decide an unusual price-fixing case: In re Vitamin C Antitrust Litigation. It is unusual because the defendants – Chinese manufacturers – do not deny they fixed prices; because China claims it ordered them to do so, but this is a controversial fact; because the jury rendered a verdict for the plaintiffs (direct US buyers) but the appellate court dismissed on comity grounds; and because the Supreme Court certified only a narrow question: Must a court treat as conclusive a nation’s statement to the court interpreting its own law? The case raises a series of fascinating issues apart from the certified question. In this article, Fox does not engage directly with the certified question; but if her narrative has traction, it provides a powerful policy reason for the Supreme Court to hold that the trial court properly considered all of the evidence.
Pandemic Control in China's Gated Communities
Posted on Wed, Feb. 15, 2023
Hualing Fu, The University of Hong Kong
One notable feature that has characterized the Chinese strategy to the COVID-19 pandemic is the broad societal participation and the ability of residential communities, shequ, to enforce Stay-at-Home (SaH) orders. In what was dubbed by the Communist Party as the people’s war against the pandemic, Chinese urban communities have showcased the effectiveness of the unique governance style in activating participation and inducing compliance. Even the experiences in Shanghai’s lockdown in 2022, when the shequ system was stretched to a breaking point under the stress, prove, in a negative way, that there is no alternative to the existing urban design, calling for further solidification, reenforcement, and legitimization of the existing social and political system of the Chinese neighbourhood in the post-crisis era. In coming out of the crisis, shequ governance, with all its innovation and upgrading, will remain a public–private partnership under the renewed leadership of the Party at the grassroots level.
The COVID State: Chinese Administrative Expansion in the Xi Jinping Era
Posted on Tue, Feb. 14, 2023
Yutian An, Princeton University
Taisu Zhang, Yale University
With the onset of the Covid-19 Pandemic, China embarked on one of the largest expansions of administrative capacity in its modern history. Compared to its pre-Covid self, the current Chinese Party-state apparatus can now track and control individual activity with unprecedented precision and regularity. Many of them have become institutionally entrenched through generalized lawmaking and policymaking. Most importantly, the Party-state delegated enormous administrative law enforcement and information collection powers to two levels of urban government—the “subdistrict,” and below it, the “neighborhood community”—that used to be institutionally marginalized. This article is the first systemic study of this paradigmatic transformation. Through a comprehensive analysis of central-level laws, regulations, and policies, paired with local case studies from major cities, it traces the institutional framework and political logic of Chinese administrative expansion. Its core argument is that the sudden onset of Covid-19 forced cohesive action onto a previously internally conflicted political landscape.
Posted on Tue, Feb. 14, 2023
Haochuan Gong, Jilin University
Ning Cao, Chinese University of Hong Kong
Chao Xi, Chinese University of Hong Kong
Undertakings by the controlling shareholders in Chinese listed companies are commonplace. This study empirically examines the events where the controlling shareholders announced its intentions not to honour their undertakings. Using event study methods, the authors show that these events are associated strongly with shareholder value destruction. Chinese law requires that the proposed breach of undertakings by the controllers be approved by independent shareholders. Paradoxically, Chinese minority investors almost invariably approved these value-destructive proposals. This paradox is explainable by the empirical finding that a veto of these proposals is more costly than approving them. As such, Chinese minority investors find themselves between a rock and a hard place, and are left with no choice but to approve the proposals that come at their expense. The research proposes that Chinese public investors be duly compensated by the controlling shareholders for a non-compliance with their own undertakings.
Posted on Mon, Feb. 13, 2023
Weilin Xiao, Yale University
The custom of prepaying land rent, a widespread practice in North China stretching from the Ming dynasty to the Republic, has not been fully discussed in the scholarship. This article addresses two issues surrounding this custom from the perspectives of legal history and the social and economic history of North China. The first issue is the custom itself. The author explores how the Guomindang government institutionalized and legitimized the custom at the normative and empirical levels through the Civil Code of the Republic of China and other laws. The second issue is the institutional consequences. Through historical analysis, the author points out that the rent prepayment custom brought about fluctuations in the grain market in rural North China, plunging peasants into a situation of selling grain at low prices in order to prepay the land rent, which in turn led them into a cycle of poverty.
State-Centric Proportionality Analysis in Chinese Administrative Litigation
Posted on Mon, Feb. 13, 2023
Shiling Xiao, City University of Hong Kong
This article examines the application of proportionality in Chinese administrative litigation over the last two decades. The author finds that the courts invoked proportionality in a negligible portion of all administrative litigation judgments and had inadequate emphases on protecting individual rights. Proportionality has not appreciably assisted the courts in enhancing their oversight of governmental power and protection of individual rights. This could be attributed to the restricted function of administrative litigation in China’s party-state governance structure and owing to the country’s long-held belief that public interest takes precedence over individual rights. Administrative litigation, which China’s ruling party employs to resolve principal-agent issues, is seriously constrained. The courts are expected to review the formal legality of executive actions, but not their substance.
The Hong Kong and Greater China Response to COVID-19 (new book chapter)
Posted on Fri, Feb. 10, 2023
Richard Cullen, The University of Hong Kong
This chapter examines how the Hong Kong Special Administrative Region (HKSAR) developed and managed its response to the COVID-19 pandemic starting in early 2020. The review includes a comparative discussion of COVID-19 responses in other jurisdictions in Greater China and Singapore. In June 2020, the International Monetary Fund said that the COVID-19 pandemic had generated ‘a crisis like no other’. The investigative approach in this chapter relies on an event-based evaluation of how this crisis unfolded in the HKSAR. The aim is to form an understanding of certain key elements that shaped what happened and to use this to discuss serious ongoing challenges and future pandemic-related choices.
Investor-initiated Interactive Platforms and Corporate Misconduct
Posted on Fri, Feb. 10, 2023
Lawrence Kryzanowski, Concordia University
Mingyang Li, Huazhong University of Science and Technology
Sheng Xu, Zhongnan University of Economics and Law
Jie Zhang, Trent University
This study examines whether and how investor-initiated communications with Chinese firms on online interactive platforms affect corporate misconduct. The authors find that such interactions, including those with negative sentiment, reduce corporate misconduct. The findings remain with the use of various identification and falsification tests, and with the consideration of alternative external information intermediaries (analysts, print media and internet) for investor communications, and good corporate internal controls. The findings indicate that online investor-initiated communications enhance firm value as an important monitor for the incidence of corporate misconduct, which could be adopted by other regulatory jurisdictions.
Public Ownership and the WTO in a Post Covid-19 Era: From Trade Disputes to a 'Social' Function
Posted on Thu, Feb. 9, 2023
Paolo Davide Farah, Global Law Initiatives for Sustainable Development
Davide Zoppolato, Global Law Initiatives for Sustainable Development
Public ownership is closely bound to the need of the government to protect and guarantee the well-being of its citizens. Although in the past century this behavior was accepted as one of the expressions of the public authority and part of the social contract, such perception has shifted partially in accordance with the wave of privatization programs and the advent of economic neoliberalism. This article aims to examine and understand how International Economic Law addresses public ownership. It will first cover the relationship between public ownership and international economic law. It then moves to China and highlights the challenges to international economic law and WTO Law brought on by Chinese SOEs and the lack of regulation in this context. Lastly, the article analyzes the increase in the use of SOEs to counteract the COVID-19 pandemic and assesses how the relationship between the state and the market will likely change as a result.
Lawyer Discipline in an Authoritarian Regime: Empirical Insights from Zhejiang Province, China
Posted on Thu, Feb. 9, 2023
Judith A. McMorrow, Boston College
Sida Liu, The University of Hong Kong
Benjamin van Rooij, University of California, Irvine
On paper, the state-run lawyer disciplinary system in China serves multiple interests: client protection, maintaining the reputation of the legal profession, upholding the rule of law, and safeguarding the party-state authority. This article assesses which of these interests dominates in the lawyer disciplinary process by analyzing 122 published lawyer discipline cases from Zhejiang Province from 2007–2015. These records of lawyer discipline evidence an authoritarian political logic of attorney discipline, with punishment most clearly serving to safeguard the Party’s rule by keeping lawyers in bounds and tightly tied to their law firms. Subordinate to this are other state interests such as upholding the legal system and rule of law, as well as private interests of protecting firm income. Client protection is a secondary interest at best, with only a handful of cases having clear client-protection goals.
Concepts of Justice and National Context – Outlining Legal Comparisons between the Federal Republic of Germany, the United States of America, and the People's Republic of China
Posted on Wed, Feb. 8, 2023
Thomas M.J. Möllers, University of Augsburg
Comparative law holds the promise of improving knowledge. Looking at other legal systems enables a nuanced understanding of the rules of one’s own country. While comparative law traditionally starts with a concrete issue, the purpose of this paper is to explore why concepts of justice often differ widely from country to country. The following compares three major economic powerhouses: the United States, the People's Republic of China and the Federal Republic of Germany. It will discuss the differences between a liberal and a social market economy, as well as the role of the constitution in society. The outline concludes by looking at the question of when different concepts of justice might converge.
Taking Rights Seriously - The Hong Kong Judiciary at a Challenging Time
Posted on Wed, Feb. 8, 2023
Johannes M M Chan, The University of Hong Kong
While the judiciary is generally regarded as the defender of the rule of law and fundamental rights, it is not uncommon that judges could also suppress democratic values. Courts around the world have legitimized undemocratic or even repressive law and practices. Authoritarian regimes tend to capture the judiciary, not only because the judiciary would provide the legitimacy for anti-democratic measures, but the nature of the institution could also masquerade such measures as a legitimate exercise of power that makes it more difficult to detect and respond to. This study examines the relationship between the Central Government and the judiciary of the HKSAR. It focuses on the judicial responses when the Central Government decided to shift the emphasis from two systems to one country under the constitutional design of the HKSAR and did exercise full jurisdiction over Hong Kong.
Innovation and Appropriation: Insights from the Chinese Patent Survey
Posted on Tue, Feb. 7, 2023
Dong Cheng, Union College
Michael A. Klein, Rensselaer Polytechnic Institute
M. Fuat Sener, Union College
Using comprehensive microdata based on the Chinese Patent Survey, the authors examine the appropriation strategies that firms use to capture value from their innovations. They analyze firm preferences over five distinct appropriation strategies, as well as the motivations underpinning these strategies. They find a robust overall preference for the use of patents among Chinese firms in all industries and across multiple characteristics. However, results indicate that firms pursuing the most expensive R&D projects exhibit a relative preference for secrecy over patents, consistent with theories that predict the use of secrecy to protect a firm’s most valuable intellectual assets. Furthermore, firms routinely indicate a preference for multiple, complementary strategies to protect innovations. In particular, findings suggest that firms utilize patents to secure initial financing and negotiate third party production contracts, while relying on secrecy and/or first mover advantage to protect against competitor imitation.
Formulating Copyright Damages in China
Posted on Tue, Feb. 7, 2023
Jyh-An Lee, Chinese University of Hong Kong
In China, multinational enterprises (MNEs) have long criticized the unreasonably low damages granted by courts for copyright infringement. Numerous copyright holders are unable to recover infringement losses and litigation expenses even if they win the case, and many MNEs have hesitated to initiate copyright litigation in the country. In response to the above criticisms, China revamped the damages scheme in its 2020 amendment to the Copyright Law by providing new criteria for calculating damages, increasing statutory damages, and introducing punitive damages and a new evidence rule on damages. This study first introduces the damages provisions in China’s previous Copyright Law and the main changes in the new law. It also analyzes the background on individual approaches to copyright damages in the new law and evaluates their effectiveness in facilitating copyright protection.
The Forms and Architects of China's International Legal Order
Posted on Mon, Feb. 6, 2023
Matthew S. Erie, University of Oxford
Sida Liu, The University of Hong Kong
Conflict of laws is often understood as judges or lawyers choosing the governing law in a multijurisdictional matter. The authors turn this notion on its head to ask whether the rules may also choose the legal experts. While choice of law is often subject to parties’ bargaining, and China, as capital-exporter, may occupy a dominant bargaining position vis-à-vis the host state, the territorial sovereignty and mandatory norms of the latter frequently require local law. Consequently, whereas the legal form produces an ecology of legal professionals, it is often the local lawyers who play a pivotal role in generating and sustaining China’s cross-border deals. This study suggests that China’s “rise” may not reproduce familiar forms of law and globalization. From the perspective of private international law, China itself appears unlikely to overturn the existing international legal order, even if that order is currently undergoing a severe test and China may wish to reform the order to occupy a central role. Top-down perspectives on international legal orders must be mirrored and contested by bottom-up ones; such a holistic view spotlights the highly contingent nature of Chinese outbound capital.
Chinese Aircraft Grounded at Kai Tak 1949-1952 (Feb 14 2023)
Posted on Mon, Feb. 6, 2023
Malcolm Merry, The University of Hong Kong
In the spring of 1949 as the Chinese Civil War reached its conclusion, the two main Chinese airlines, controlled by the Nationalist government, moved their aircraft to Kai Tak aerodrome in the then British Crown Colony of HK for safety from the advancing Communists. There followed a 3-year struggle for ownership of the planes between the PRC and American interests who had bought the planes from the Nationalists. The British and HK governments were caught in the middle, insisting that ownership was purely a legal question, despite pressure from the USA and the PRC and the dispute becoming enmeshed by contemporary political tensions. The ensuing litigation raised issues of international law including those of Sovereign Immunity and State Succession to Property. This talk, which is based on the author’s recent book, will examine those aspects, how they arose and how they were resolved, and describe the international tensions in which they were set.
The Good Old Days Will Not be Back for China's Internet Companies
Posted on Fri, Feb. 3, 2023
Angela Huyue Zhang, The University of Hong Kong
Are the Chinese technology sector's regulatory troubles ending? Or is Beijing tightening its grip on internet companies even harder? Recent days have provided evidence for both views. How should we decipher the conflicting signals about the direction of the Chinese tech sector? In fact, tech regulation already started to ease a year ago, as the Chinese economy began to suffer a sharp slowdown. While the tech crackdown was short-lived, it has resulted in long-lasting institutional changes. Tech regulation will never recover to the pre-2020 status quo, even though tech companies will enjoy a temporary reprieve. As Beijing's rule becomes both more personalized and more centralized, tech regulation will only become more unpredictable and volatile in the years to come.
An Empirical Study of Pain and Suffering Awards in Chinese Personal Injury Cases
Posted on Fri, Feb. 3, 2023
Chunyan Ding, City University of Hong Kong
Zhi Pe, City University of Hong Kong
Drawing on 1,882 personal injury lawsuits involving medical negligence, this study presents the first empirical analysis of pain and suffering awards given by Chinese judges in the real-world setting of personal injury litigation. It investigates when judges refuse to award pain and suffering damages in personal injury cases, and whether the relevant guiding factors suggested by the Supreme People’s Court have a significant influence on award amounts of pain and suffering damages, as well as whether the deep pockets effect and the anchoring effect exist in Chinese personal injury litigation.
Central Judicial Inspector: Establishment of Circuit Tribunals and Corporate Innovation in China
Posted on Thu, Feb. 2, 2023
Kai Wu, Central University of Finance and Economics
Minli Sun, Central University of Finance and Economics
Yuzi Chen, Central University of Finance and Economics
The growing localization of the judicial system has been a critical concern in China's justice reform, and its consequence on entrepreneurship receives little attention. The authors evaluate the effects of judicial reform on the innovation of private-controlled listed firms in China using the transformation of judicial decentralization: inter-provincial circuit tribunals. Results show that the establishment of circuit tribunals significantly promotes innovation quantity and quality. The legal reform affects firms' incentives to innovate by increasing access to long-term bank loans and enhancing risk tolerance. The positive effect is more pronounced for firms with weaker political ties, a longer distance from the Supreme People's Court, and a better market institution for the private sector.
Political Influence in the Regulation of Chinese Charitable Trusts
Posted on Thu, Feb. 2, 2023
Hui Jing, The University of Hong Kong
With the 2016 Charity Law, Chinese legislators created a public-private hybrid model for the governance of charitable trusts. By endowing private actors with greater rights in the creation and management of charitable trusts, this hybrid model demonstrates the State’s intention of changing the functioning of the charitable trust sector from complete dependence on the State to a partnership. However, embedded in China’s particular institutional environment, the partnership relationship still bears the mark of strict government control, which is secured by granting extensive powers to regulators. Jing analyzes the newly established regulatory framework for charitable trusts and outlines how regulators exercise their power in practice. His findings show that the tradition of regulators being subject to intense administrative pressures remains unchanged and that political concerns permeate every aspect of the regulation of charitable trusts.
Improving Dispute Resolution in Two-Sided Platforms: The Case of Review Blackmail
Posted on Wed, Feb. 1, 2023
Yiangos Papanastasiou, University of California, Berkeley
S. Alex Yang, London Business School
Angela Huyue Zhang, The University of Hong Kong
The authors study the relative merits of different dispute resolution mechanisms in two-sided platforms in the context of disputes involving malicious reviews and blackmail. They develop a game-theoretic model of the strategic interactions between a seller and a (potentially malicious) consumer. In the model, the seller takes into account the impact of consumer reviews on his future earnings; recognizing this, a malicious consumer may attempt to blackmail the seller by purchasing the product, posting a negative review, and demanding ransom to remove it. Without a dispute resolution mechanism in place, the presence of malicious consumers in the market can lead to a significant decrease in seller profit. The introduction of a standard centralized dispute resolution mechanism (whereby the seller can report allegedly malicious reviews to the host platform) can restore efficiency to some extent but requires the platform’s judgments to be both very quick and highly accurate. The authors demonstrate that a more decentralized mechanism can be much more effective, while simultaneously alleviating—almost entirely—the need for the platform’s judgments to be quick.
Foreword to ‘US Trade Policy, China and the WTO'
Posted on Wed, Feb. 1, 2023
Paolo Davide Farah, West Virginia University
Nerina Boschiero addresses a key topic in contemporary international economic law and global governance. By focusing on a turning point in global politics and the shaping/framing of trade policy in the U.S.– the election of President Trump sheds light on the tumultuous process of reshaping of global governance. The crisis of multilateralism has been discussed at length in academia and mainstream media. However, little attention has been paid to how the U.S. is reacting to the rise of China in the global order, in practical terms. In particular, focus remains on the realm of trade. This book highlights how the path taken by the U.S., with a trade policy at the service of national security, has serious consequences for the global economy. While Biden seems more cautious to engage in trade wars, most of the measures implemented by Trump are still in place. This needs to be viewed in the context of power dynamics and the consequences of the political changes in China and the world towards a reinvigorating authoritarianism and nationalism.
Posted on Tue, Jan. 31, 2023
Philip K. H. Wong Centre for Chinese Law, The University of Hong Kong
This talk explores 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, Erie takes the view that gaps between the foreign-facing and domestic aspects of a legal system may threaten that system’s legitimacy and its sustainability. Compatibility between the foreign/external and domestic/internal aspects of a legal system could be measured across a range of categories. Erie focuses on the recognition of difference. The question posed is whether a legal system can regard difference disparately between its foreign-facing and domestic aspects. Erie addresses this question through a comparison between the PRC and the US.
Vaccine Development, the China Dilemma and International Regulatory Challenges
Posted on Tue, Jan. 31, 2023
Peter K. Yu, Texas A&M University
As the pandemic has become more successfully contained, demands for emergency relief measures have given way to debates on the development of new standards to provide a more effective response during the inter-pandemic period and in the post-COVID era. One challenging debate concerns the role of China in such development at the intersection of intellectual property, international trade, and public health. Among the important issues are whether China will support the development of new international regulatory standards, whether its participation will create complications, how its role will evolve in the near future and how other countries should engage with China in the international regulatory system. Improving global pandemic preparedness in this system is particularly important since many experts have already predicted that another global pandemic will happen in the next decade or two.
No County Is An Island: The Rise of Interjurisdictional Cooperation among Counties in China
Posted on Mon, Jan. 30, 2023
Xinhui Jiang, Nanjing University
Sarah Eaton, Humboldt University of Berlin
Genia Kostka, Freie Universität
Why are China’s notoriously competitive local governments increasingly cooperating with each other? Combining interjurisdictional cooperation data from 820 counties and fieldwork in 24 localities, the authors argue that the increasing trend of inter-county cooperation is the newest manifestation of China’s state-rescaling initiative. It is the combined result of the state’s devolution of governance responsibilities and competitive-minded local cadres’ interests in benefits associated with scaling up. This study contributes to understanding how counties’ growing interdependence intersects with the regime’s survival logic in the unfolding reconfiguration of China’s counties.
Judicial Review of Administrative Rules in China: Incremental Expansion of Judicial Power
Posted on Mon, Jan. 30, 2023
Shiling Xiao, The University of Hong Kong
Yang Lin, The University of Hong Kong
Chinese courts were not expressly vested with the power to review administrative rules until the first amendment to the Administrative Litigation Law (ALL) in 2014. This article examines the evolution of the Chinese judicial review of administrative rulemaking and the court’s practice in the last seven years (2014-2021). It argues that whereas the judicial empowerment in 2014 is a symbolically significant step toward improving Chinese administrative rulemaking, public accountability, and the rule of law, China has merely established a weak-form judicial review of administrative rules, and the timid and deferential approach of the courts to this new empowerment seriously limits the judicial function of supervising government’s policy-making.
Equality Rights Literature Database
Posted on Thu, Jan. 19, 2023
Equality Rights Project, 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.
Beyond Law and Politics: Judicial Mediation in China
Posted on Thu, Jan. 19, 2023
Kun Fan, University of New South Wales
Beyond law and politics, Fan considers how will other factors influence individual judicial behavior in China? How do the gains of efficiency and substantive justice compare with the potential losses of procedural protections? Is the mandate of the judges to resolve the disputes between the parties by the most appropriate means, or is it only an attempt to render and enforce an authoritative binding decision? Do judges see their role as only to resolve the immediate conflicts between the parties or as a guardian of justice that transcends the parties? Through a series of interviews of Chinese judges in six courts in three different cities at different stages of economic developments, Fan provides an empirical narrative on how judicial mediation is actually practiced in China and analyzes values and limitations of judicial mediation. She empirically illustrates the multiplicity of influences on judicial behavior and the perception of the role of judges in China.
HKUCCL International Speaker Series 2022-2023
Posted on Wed, Jan. 18, 2023
Philip K. H. Wong Centre for Chinese Law, The University of Hong Kong
In Spring 2023, the Philip K. H. Wong Centre for Chinese Law will invite scholars from multiple jurisdictions to give interactive talks on their most up-to-date ideas and publications. This International Speaker Series will contribute fresh perspectives to help us better understand the past, present, and future of Chinese and global governance, legal institutions, economics, and finance. In their presentation of five illuminating topics, the speakers will offer insights on how to make sense of Chinese judicial trends, China’s dream of legal cosmopolitanism, its reinvention of money, China’s performative governance at the street-level of its bureaucracy, and its relative economic decline in the 18-19th centuries. Anyone with a keen interest in China is most welcome to join us!
Legal Semiotics, Globalization and Governance
Posted on Wed, Jan. 18, 2023
Larry Catá Backer, The Pennsylvania State University
When the leaders of the United States and of the People's Republic of China refer to human rights, they invoke entirely different conceptions. The only thing in common is the use of the term itself. Trouble follows incoherence and the normative gaps that this incoherence produces. The difference in meaning drives contests over the meaning of legitimate governance. These consequences affect not just governance, through law, but also the law and governance of the relation among collectives—subsumed under another term, globalization. Backer suggests the power of semiotics to understand, analyze, and perhaps engage with both the constitution of meaning from which these collectives build and understand themselves, but also to understand the power of law and governance to organize human activity at the most granular level.
Posted on Tue, Jan. 17, 2023
Chunyan Ding, City University of Hong Kong
Chinese government abolished the 36-year-old one-child policy and replaced it with the two-child policy in 2016 and further with the three-child policy in 2021. However, the rate of infertility among couples of reproductive age in the country was about 25%, much higher than a global average of 15%. More and more infertile couples seek fertility treatment, and as a result have produced and stored millions of frozen embryos at hospitals in China, thus creating new challenging legal issues and a significant increase of frozen embryo disputes both in number and type. Since the 2014 ‘orphan embryo dispute’, Chinese courts have decided more frozen embryo disputes, which have raised important issues about the progenitor’s right to procreate and right to reproductive autonomy as well as intergenerational rights in the embryo within the family especially after the implementation of China’s new Civil Code. Ding revisits the fundamental issue about the legal status of the embryo under the Civil Code. She further analyzes the key legal issues arising from three types of Chinese frozen embryo disputes and suggests appropriate legal solutions to them.
The Great Rectification: A New Paradigm for China’s Online Platform Economy
Posted on Tue, Jan. 17, 2023
Rogier Creemers, Leiden University
Creemers reviews the regulatory campaign against China’s online platform sector that took place between 2020 and 2022. He focuses specifically on its substantive policy aspects, arguing that this “rectification” both intended to remedy existing perceived problems in the online platform industry and to reshape the sector to better meet the needs of the rapidly altering economic and development policy environment. The rectification pursued six discrete goals: managing macro-economic risks, maintaining content control, addressing emerging social concerns, remedying market imbalances, mitigating foreign risks, and supporting the technology development area. It led to significant punitive actions, as well as rhetorical and behavioural shifts by companies. As such, it provides a first test case of the bigger changes occurring under the post-19th Party Congress “New Era”, but also holds comparative potential for researching platform governance worldwide.
Posted on Mon, Jan. 16, 2023
Ji Li, University of California
Carrie Menkel-Meadow, University of California, Georgetown University
This article reports the first ever empirical study of how Chinese-owned businesses in the US utilize contract clauses to choose dispute processes. China presents an interesting case study of whether foreign owned businesses replicate American dispute resolution process choices when disputes arise within the United States. This study also offers a window into the continuing scholarly and practical questions of whether American courts (or other arenas) are considered “biased” against foreign litigants. The authors explore a number of factors that might influence whether Chinese-owned companies prefer arbitration or litigation in disputes arising in the US. They find several factors to be correlated with the presence of arbitration clauses in Chinese business contracts: sensitivity to costs and fees, access to corporate internal legal advice, views about judicial fairness, and preference for US lawyers with Chinese backgrounds. This study also raises several novel questions for further consideration.
Becoming 'Co-Ed': A Protestant Gift to China
Posted on Mon, Jan. 16, 2023
Ningning Ma, Peking University
Se Yan, Peking University
Yiling Zhao, Peking University
The Protestant missionaries started the trend to educate women in the 19th century China, paving Chinese women’s way into higher education and professional services. Using various measures of Protestant activities by 1920 and a hand-collected dataset of college students from 1928-1938, the authors show that the Protestant missions improved gender equality in higher education. By exploring the timing of Protestant activities, they find counties with earlier missionary settlements had higher levels of gender equality. Because early missionary settlements followed closely with the opening of treaty ports, the authors adopt an IV strategy that exploits the quasi-random variation in counties’ distances to treaty ports opened by 1880. Finally, they find that the increase in educational attainment led to a higher number of female doctors and civil servants in the short run and a higher gender ratio in skilled occupations in the long run.
State-Sponsored Activism: How China's Law Reforms Impact NGOs’ Legal Practice
Posted on Fri, Jan. 13, 2023
Yueduan Wang, Peking University
Ying Xia, The University of Hong Kong
The authors examine legal opportunity in China after the recent “law-based governance” reforms, including those that have professionalized the judiciary, established NGOs’ public interest standing, and expanded legal aid coverage. Based on in-depth interviews, they find that despite the generally tightening political control over the social sector, the reforms have helped some law-related NGOs expand their litigation practice, social and legislative influence, and domestic funding sources. At the same time, these changes have had considerable cooptation effects by aligning these NGOs’ interests with the state’s and channeling their activities into state-sanctioned institutional processes. The findings suggest that states can effectively utilize a dualist strategy that combines restrictive and supportive approaches to public participation in the legal process. This study thus sheds light on the progression of legality within various political and institutional contexts.
The History of the Drafting and Implementation of the Basic Law of the Hong Kong Special Administrative Region
Posted on Fri, Jan. 13, 2023
Albert Hung-yee Chen, The University of Hong Kong
Chen discusses the history of the drafting and implementation of the Basic Law. He traces the origins of the Basic Law to the Sino-British Joint Declaration (1984), in which the concept of “One Country, Two Systems” (OCTS) was codified. He examines the process of the drafting of the Basic Law in 1985–1990. Even though the Basic Law only came into effect in HK in 1997, it had the effect of shaping HK’s transition from 1990 to 1997. After reviewing developments in this period, Chen then recounts the history of the implementation of the Basic Law from 1997 to 2021. He demonstrates that the tensions and conflicts inherent in OCTS have plagued the process of the implementation of the Basic Law.
Navigating Complexity: Globalization Narratives in China and the West
Posted on Thu, Jan. 12, 2023
Anthea Roberts, School of Regulation & Global Governance
Nicolas Lamp, Queen's University
Relations between China and the West appear to be caught in a downward spiral. In the West, there is a widespread perception that China has unduly benefited from economic globalization, while in China, there appears to be increasing concern that the West is seeking to contain China’s rise. The authors argue that the picture is more complex. They first discuss the highly varied ways in which China appears in Western narratives about economic globalization, then sketch their understanding of how different narratives about globalization are playing out in China. Their approach highlights the diversity of perspectives within and between the West and China. How countries, companies, and individuals navigate this complexity depends not just on the rise and fall of narratives within the West and China, but also on how these narratives intersect and interact with each other.
International Law in Chinese Courts
Posted on Thu, Jan. 12, 2023
Björn Ahl, University of Cologne
Whereas statutory provisions and government statements regarding the domestic implementation of international law often remain vague, court practice reveals the actual significance of international law within a domestic legal system. The author analyzes a number of treaties from various areas of international law in order to answer, inter alia, the following questions: What kind of international treaties are applied by courts? Do judges give primacy to national law or to international law in case of conflicting provisions? What standards of interpretation do judges apply when interpreting international treaties? The author further analyzes court practice with regard to other sources of international law such as international customary law. Moreover, he addresses the questions of how Chinese courts fit into global trends of applying international law in domestic courts, whether Chinese judges selectively adapt international norms or engage in international norm-making.
Minority Shareholder Voting and Dividend Policy
Posted on Wed, Jan. 11, 2023
Jing Lin, University of Electronic Science and Technology of China
Fang Li, Southwestern University of Finance and Economics
Steven Xiaofan Zheng, University of Manitoba
Mingshan Zhou, Southwestern University of Finance and Economics
The authors find that minority shareholders’ voting opposition to dividend proposals is associated with significantly higher cash dividend payout in the following year for stocks listed in Shanghai Stock Exchange. When minority shareholders’ voting opposition increases, the likelihood and frequency of regulatory penalties increase. The reverse happens after firms increase dividend payout. Minority shareholders’ voting opposition has a stronger positive effect on cash dividend payout when they post more messages in stock forums and when independent directors express dissenting opinions. The effect is weaker if the board chair or CEO has political connections. The authors do find evidence that minority shareholder voting opposition reduces expropriation by major shareholders. This supports a hypothesis that regulators use the minority shareholder voting results to screen out possible cases of shareholder oppression.
The Rise, Fall and Future of P2P Lending Platforms in China: the Role of Policy, Law and Enforcement
Posted on Wed, Jan. 11, 2023
Joseph Lee, University of Manchester
Yonghui Bao, University of Exeter
Financial innovation has boosted the growth of alternative financing channels and increased access to finance. In 2015, the Chinese gov began supporting the development of financial platforms such as peer-to-peer lending platforms and equity crowdfunding platforms without a strong regulatory framework in place. However, the growth of platforms while regulation was loose increased risk in the financial market, so stricter policies to regulate financial platforms were then introduced. The new regulation was so strict that many financial platforms did not survive and even some major financial platforms were in danger. All peer-to-peer platforms in China were closed by the end of 2021. This paper traces the development of financial platforms in China. It discusses the risks posed by such a rapid development through systemic risk and investor protection. It then looks at the legal and administrative tools used by the Chinese authorities to control risk, and their effect on the future development of FinTech platforms in China.
NPC Interpretation and Overseas Lawyers
Posted on Tue, Jan. 10, 2023
Albert Hung-yee Chen, The University of Hong Kong
As to whether Timothy Wynn Owen, Queen's Counsel of the UK, can participate in the trial and defense of Jimmy Lai's case, the Chief Executive submitted a report to the central government on Nov 28, 2022, suggesting that the Standing Committee of the National People’s Congress (NPC) should be requested to interpret the “Hong Kong National Security Law” to deal with “whether overseas lawyers who do not have local qualifications to practice law can participate in handling criminal cases endangering national security.” In response, the Standing Committee of the NPC issued an interpretation on Articles 14 and 47 of the "Hong Kong National Security Law" on Dec 30, 2022.
Posted on Fri, Jan. 6, 2023
Faculty of Law, The University of Hong Kong
Empirical studies of the Chinese legal system have proliferated in recent decades. This trend has only been accelerated by greater generation of data on the one hand and methodological innovations in the social sciences on the other. Empirical legal research promises to enrich our understanding of legal phenomenon and to furnish a knowledge base for debating legal doctrine and theory. But the apparent objectivity of numbers can also mislead those unfamiliar with the assumptions and extrapolations underlying many of the conclusions drawn from quantitative research. To foster critical and constructive discussion about this emerging field, HKU Law will host a conference to be held in-person at the University’s Centennial Campus on Jan 9-10 2023. Online participation is also available.
A Fireside Chat with Benjamin Liebman on Chinese Judicial Trend (Jan 10 2023)
Posted on Fri, Jan. 6, 2023
Philip K.H. Wong Centre for Chinese Law, The University of Hong Kong
There is a long-held perception that Chinese courts are weak, so why do people study them? Are Chinese judicial reforms heading toward the right direction? How might the selection of new Party leadership change the trajectory of Chinese judicial reform? Philip K.H. Wong Centre for Chinese Law will host an in-person fireside chat with Professor Benjamin Liebman on Chinese judicial trend to help better understand these questions. Online participation is also available.
Posted on Fri, Jan. 6, 2023
Renjie Zhao, Northwest University
Jiakai Zhang, The City University of New York
Using the policy of unified management of local courts below the province, the authors found that the independence of the judiciary can significantly improve the success rate of firms in administrative litigation cases, promoting the corporate fixed assets investment rate. The positive influence of reform of local judicial system on private firms is more significant than that on state-owned enterprises. Mechanism analysis shows that the reform of local judicial system will promote financial development and improve corporate financing, reduce corporate bribery expenditures and promote long-term investment and R&D expenditures, which indicates that deepening judicial system reform can achieve the simultaneous advancement of legal construction and economic construction.
The Coming Central Bank Digital Currency Revolution and the E-CNY: Considerations and Ramifications
Posted on Thu, Jan. 5, 2023
Heng Wang, Singapore Management University
Ross P. Buckley, University of New South Wales
The only central bank money individuals and businesses have today is cash. Everything else they use as money is commercial bank promises. Central bank digital currencies (CBDC) will likely change all this by putting central bank money into everyone’s hands. China is a front runner in this revolution, and its CBDC, the e-CNY, may well in time profoundly affect the international economic order. Wang and Buckley analyse the major considerations around the e-CNY, its ramifications in particular for trade, and its possible challenges.
Posted on Thu, Jan. 5, 2023
Sau Wai Law, Hong Kong Shue Yan University
Law examines how virtual banks in Hong Kong may discourage the use of banking services and create new forms of financial exclusion. The competitive edge of virtual banks is also lacking when conventional banks offer the same online services. Law suggests the role of technology in promoting financial inclusion should be scrutinised.
Natural Resource Governance in Qing China: Lineage Institutions and the Making of Common Property Regimes
Posted on Wed, Jan. 4, 2023
Jason Jia-Xi Wu, Harvard University
Using forest commons in Qing China (1644-1912) as a historical case study, Wu argues that lineage institutions—a form of organized kinship—created conditions for the longevity of common property regimes in China due to three factors: (1) as a result of the Qing state’s laissez-faire attitude towards property, lineages assumed key administrative functions in regulating property relations at the locality; (2) lineages took advantage of the laws and institutions of the Qing state, which were designed to protect entrenched local interests rather than to maximize economic welfare; and (3) the organizational features of lineages allowed them to provide extra-legal solutions to disputes arising from contested access to common resources, largely displacing the roles of formal legal institutions. These factors illustrate the degree to which organized kinship groups were able to adopt sophisticated institutional arrangements that co-opted, resisted, and even competed with the state in crafting the rules of the game.
Posted on Tue, Jan. 3, 2023
Alec Stone Sweet, The University of Hong Kong
Trevor T W. Wan, The University of Hong Kong
The PRC has declared dignity to be a foundational norm of the legal system, as institutionalized through a suite of constitutional and legislative reforms. Indeed, the 2017–2021 period features a set of the most far-reaching statutes in the history of the PRC, the centerpiece of which is the new Civil Code (2021). In both structure and content, statutory provisions of the Code comprise a quasi-constitutional charter of rights. Many Chinese scholars treat the Code as such, developing sophisticated constitutional theory along the way. At the core of these claims is dignity, from which a host of additional rights can be derived. After situating these developments in light of global constitutional practice, the authors examine the emergence of dignity as an officially-sanctioned commitment device, analyze the pertinent scholarly discourse, the new Civil Code, and the various roles that the Communist Party, the National People’s Congress, and the Supreme People’s Court are expected to perform in supervising the work of the judiciary.
Approaching the Legitimacy Paradox in Hong Kong: Lessons for Hybrid Regime Courts
Posted on Mon, Jan. 2, 2023
Julius Yam, University of Hong Kong
A hybrid regime court faces a legitimacy paradox: an activist court risks attracting backlash from the incumbent, whereas a deferential court may undermine public trust. For the first twenty years or so, the HK courts have been a successful example of navigating the legitimacy paradox despite the conflicting expectations from political actors. Yam draws on the experiences of the HK courts since the handover to better understand the legitimacy paradox. He identifies three tools that HK courts have used to maneuver through the paradox. Studying these techniques may provide insights that are relevant to courts in similarly constrained political environments as to how judicial legitimacy can be earned. He also reflects on the institutional future of HK courts in light of the increasing polarization of HK society as a result of the anti-extradition bill protests and signs of greater interference from Mainland China.
Posted on Wed, Dec. 21, 2022
Yueduan Wang, Peking University
Ying Xia, University of Hong Kong
Scholars consider deficient local accountability mechanisms a key shortcoming of China’s response to environmental issues. Through empirical analysis of the new procurator-led public interest litigation (PIL) system, this study examines whether – and to what extent – this shortcoming can be remedied by empowering the juridical institutions. It concludes that thanks to the procuratorates’ political insider status, relative autonomy from local politics and extensive resources, procurators have generally found ways to maintain a delicate balance between holding executive agencies environmentally accountable and managing local governments’ resistance to the PIL system. However, reliance on top-down political support may ultimately hinder the expansion and stability of the procuratorial PIL system.
Contract Law and Financial Regulation in China: An Illegality Perspective
Posted on Tue, Dec. 20, 2022
Chao Xi, Chinese University of Hong Kong
Xi depicts the unique evolutionary trajectory of the Chinese law on illegality and public policy as applied to financial contracts and transactions. He demonstrates that until recently Chinese law had generally evolved towards insulating contractual freedom and uncertainty from the intrusion of financial regulation in particular and regulatory legislation in general. The recent elevation of financial regulation to become China’s foremost policy priority, however, has resulted in a reassessment of this approach. Financial regulatory rules have been re-characterised as embodiments of public policy. Consequently, Chinese contract law seems to have been mobilized as a tool to achieve national policy objectives. Notable though it is, this reassessment does not seem penetrating and all-encompassing.
Default and Bankruptcy Resolution in China
Posted on Mon, Dec. 19, 2022
Edith S. Hotchkiss, Boston College
Kose John, New York University
Bo Li, Tsinghua University
Jacopo Ponticelli, Northwestern University
Wei Wang, Queen's University
The authors review the literature on the recent growth of corporate debt in China, and present stylized facts on the evolution of debt composition, non-performing loans, defaults, and bankruptcy filings. They then describe the legal and political institutions that characterize the system for restructuring and liquidating financially distressed firms, including recent reforms of China's bankruptcy law. Finally, they discuss the main challenges faced by China in the implementation of these reforms, including frictions in judicial enforcement. They also propose potential avenues for future research.
Legal and Institutional Impediments to Sharing Economy: Case of Uber's Non-uptake in Hong Kong
Posted on Mon, Dec. 19, 2022
Kwan Yuen Iu, Albert Luk’s Chambers
Paul W.H. Cheuk, Chinese University of Hong Kong
In the face of technological changes brought by sharing economy, there is a differential in the responsiveness of rule-making institutions across different jurisdictions. The authors analyze the rule-making institutions that allow for the regulatory changes procured by Uber and the institutional impediments that may restrict jurisdiction in accommodating this type of crowd-based technological disrupters. Uber’s non-adoption in HK is compared to its success in the US to assess the limitations of rule-making institutions in responding to the legal change required by sharing economy companies.
Venture Capital Research in China: Data and Institutional Details
Posted on Fri, Dec. 16, 2022
Jun Chen, Renmin University of China
Although the history of China’s venture capital (VC) market is relatively short, it has already become the second largest VC market in the world and produced the second largest number of “unicorns” after the US. Despite the remarkable growth of both China’s tech sector and venture capital market, academic research in this area remains sparse. Two broad issues hinder the efforts of researchers studying this market: choosing the right data sources and understanding evolving institutional details. To address these two issues, Chen first describes available data sources, accompanied with filters aimed at improving the quality of the data. He then reviews institutional details unique to the Chinese setting and recent regulatory changes that have direct impacts on the Chinese venture capital market.
Decoding the Supreme People's Court's Services and Safeguards Opinions
Posted on Thu, Dec. 15, 2022
Susan Finder, Peking University, University of Hong Kong
Over the past seven years, the Supreme People’s Court (SPC) has issued almost 30 documents that contain the phrase “judicial services and safeguards” (司法服务与保障) followed by the title of a new or updated national strategy or major initiative. These documents have received little attention at home or abroad, but they represent what is becoming the SPC’s most important function in the Xi era. Reading them closely illuminates how Party policy becomes legal policy, with the possibility of eventually being incorporated into soft law, quasi-law, and even hard law. These documents are written for insiders and employ a combination of court and party jargon. Many matters are implied or require knowledge about how the court and related systems work or interact to fully understand.
Chinese Data Protection in Transition: A Look at Enforceability of Rights and the Role of Courts
Posted on Thu, Dec. 15, 2022
Hunter Dorwart, Future of Privacy Forum
In recent years, the Chinese government has solidified its data protection framework through a series of laws and regulations to address the social, economic, and political challenges posed by the digital age. Many of these policy instruments explicitly recognize data subject rights and set forth numerous obligations for entities processing personal information—a trend seen in other regulatory approaches around the world. While much of the academic community has focused on the implementation of this larger framework through China’s top-down, centrally administered institutions, little discussion has turned to the role of courts in enforcing these rights at the local level. This paper attempts to address that gap by examining recent privacy litigation in China and situating it within China’s larger governance structure.
Separation of Powers in Hong Kong: Inching Towards a More Flexible Judicial Interpretation
Posted on Wed, Dec. 14, 2022
Danny Gittings, University of Hong Kong
Separation of powers is not an area where courts in a number of common law jurisdictions have displayed a great deal of consistency, and the Hong Kong judiciary proved no exception during the early decades of the Special Administrative Region. Faced with a doctrine enshrined in the Basic Law, which they had virtually no prior experience of interpreting during Hong Kong’s colonial era, the courts resorted to a simplistic and formalist approach during some early cases, drawing on rigid overseas precedents to enforce the prophylactic barriers between executive, legislature and judiciary so beloved by separation of powers purists. But influenced by the writings of Sir Anthony Mason, the courts began inching towards a more flexible interpretation of separation of powers during the second decade of the Special Administrative Region. Yet this quasi-functionalist approach remains a work very much in progress.
Posted on Wed, Dec. 14, 2022
Wenbiao Sha, Sun Yat-sen University
Xianqiang Zou, Renmin University of China
The authors ask whether eminent domain can deliver net benefits to households and how affected citizens politically interact with the government. The context is house seizure and demolition in urban China during 2010-2018, a period in which market value-based compensation is offered for seized houses. Using large-scale panel data, the authors find having one household’s housing seized or demolished increases households’ housing wealth by 14% and total consumption by 20%. It also reduces the labor supply of affected household members and improves their psychological well-being. They also find housing demolition increases affected citizens’ trust in local officials and subjective evaluation of local government performance in less corrupt cities. These findings highlight the importance of fair compensation and sound governance for implementing eminent domain programs in developing countries.
AI’s Future Impact on Copyright for AI-Generated Work: Insights from Chinese Case Law
Posted on Tue, Dec. 13, 2022
Ernest Southworth, University of Hong Kong
Yahong Li, University of Hong Kong
AI generated work presents a significant challenge to established rules of copyright. The authors provide insight into two landmark cases from the People’s Republic of China that directly deal with the issues of copyright raised by artificially generated works. Through the analysis of those cases, the authors offer a first in assessing judicial reasoning applied to AI generated works. The originality of AI generated works, including both the acts of the AI software and human users of that software, is discussed using a comparative approach between PRC, US, UK and EU law. The “arrangers” provision with the Copyright, Design and Patents Act 1988 is analysed and cross applied to those recent cases to demonstrate that it offers other jurisdictions a solid template for dealing with authorship disputes of AI generated work.
How the Chinese Judiciary Works: New Insights from Data-Driven Research
Posted on Tue, Dec. 13, 2022
Chao Xi, Chinese University of Hong Kong
The various transparency initiatives orchestrated by the Supreme People’s Court have significantly increased availability of data on the Chinese judiciary. A growing literature has ensued, offering penetrating insights. Xi's research aims to make original contributions to this rapidly developing field. It presents key findings from a number of data-oriented projects on the work of China’s judiciary, demonstrating the tremendous potential of data-driven research. It also highlights some potential methodological challenges, particularly the issue of data missingness.
Posted on Mon, Dec. 12, 2022
Yang Chen, University of Pennsylvania Carey Law School
Current laws related to intellectual property (IP) protection afford certain strong protections for software programs. However, all IP laws have their limits set by legislators purposefully, to maintain a sound balance between private monopoly rights and public interest. To deal with these limits, software companies frequently include certain restrictive provisions in software enduser licensing terms. The anti-reverse engineering clause is a typical example of companies’ efforts to supplement IP protections for software programs. The enforceability of these terms is a critical issue because they disrupt the balance intended by IP laws. Chen discusses the position of China on the enforceability of antireverse engineering clauses and finds that the Chinese position is too uncertain. By drawing on insights and policy considerations from the US and EU positions, Chen argues the one-size-fits-all approach is inadequate for China and that an intermediate approach would be a more appropriate alternative.
All Rise for the Honourable Robot Judge? Using Artificial Intelligence to Regulate AI
Posted on Mon, Dec. 12, 2022
Simon Chesterman, National University of Singapore
There is a rich literature on the challenges that AI poses to the legal order. But to what extent might such systems also offer part of the solution? China, which has among the least developed rules to regulate conduct by AI systems, is at the forefront of using that same technology in the courtroom. This, however, is a double-edged sword as its use implies a view of law that is instrumental, with parties to proceedings treated as means rather than ends. That, in turn, raises fundamental questions about the nature of law and authority: at base, whether law is reducible to code that can optimize the human condition, or if it must remain a site of contestation, of politics, and inextricably linked to institutions that are themselves accountable to a public. For some of the questions raised, what the answer is may be less important than how and why it was reached, and whom an affected population can hold to account for its consequences.
The Criminalisation of Cryptocurrency Operation in China: Limits of Private Money Reconsidered
Posted on Fri, Dec. 9, 2022
Shuping Li, University of Hong Kong
Li examines the governance model and the political economic considerations in the criminalisation trend of cryptocurrencies in China since 2017. Cryptocurrencies are completely banned for threats to the central bank and commercial bank-dominated sovereign monetary system and their policy tasks; for financial stability, market integrity and illegal fundraising concerns and for regulatory cost and capability of identifying and supervising different kinds of cryptocurrencies and their operators. The downside of such a criminalisation decision is arguably sacrificing market efficiency and autonomy. Based on the idea that the essence of money is credit, Li then explores the limits of private money operation in China. A policy suggestion is that private entities with technological strengths for risk control and infrastructure design should be encouraged to provide banking and payment services.
Book Review: Advancing the Right to Healthcare in China: Towards Accountability
Posted on Fri, Dec. 9, 2022
Michael Palmer, University of London
Zhang Yi’s book shows how China is trying to construct an effective healthcare system while dealing with various problems. The book examines issues in healthcare provision and rights primarily in the context of the international obligations that the PRC has assumed. In 2001, the PRC ratified the International Covenant on Economic, Social and Cultural Rights, and has responsibilities to implement appropriate measures domestically in order to deliver the right to health. A very important dimension is accountability. The book offers a valuable and well-structured study, examining in particular what role greater accountability might play in advancing the right to health care in the People’s Republic. It uses China as a case study, seeking to offer a model of constructive accountability that addresses health concerns not only in China, but also in other societies, especially those with non-electoral regimes.
Posted on Thu, Dec. 8, 2022
Xinjie Shi, Zhejiang University
Bingyu Huangfu, Zhejiang University
Songqing Jin, Michigan State University
Xuwen Gao, Peking University
This study examines the gender-differentiated effects of improved land property rights on labor reallocation in the timing of the implementation of the Rural Land Contracting Law in China, which allows farmers to lease out their land. The authors find that while both men and women tend to shift their labor away from the agricultural sector and into non-agricultural sectors following the land reform, women lag behind men, with a noticeable gender gap in growth of days worked in off-farm sectors. Implementing land reforms without accompanying reforms to address the root causes of the gendered difference in off-farm employment would not only limit the potential of the reform benefit but also result in the reduced bargaining power of females and subsequent negative effects on the welfare of the next generation, especially female children.
Posted on Thu, Dec. 8, 2022
Rohan Grover, University of Southern California
Kyooeun Jang, University of Southern California
Li Wen Su, University of Southern California
Personal data is increasingly a site of political and economic contestation. States around the world have adopted personal data protection regulations (PDPRs) while asserting distinct data governance frameworks. What are the specific values and conceptualizations about data that are advanced with actually existing PDPRs? The authors provide a comparative policy analysis of PDPRs in three Asian states and then pursue a critical evaluation of “protectionism” and “sovereignty” in each context. They argue that PDPRs must be understood in each state’s specific conceptualization of privacy, relationship to major tech platforms, and approach to citizen-state relations. Their findings carry implications for evaluating data protection regulations within specific contexts and not within a simple binary distinction between an open and a fragmented internet.
Posted on Wed, Dec. 7, 2022
Xueji Su, Chinese University of Hong Kong
The newly-concluded EU-China Comprehensive Agreement on Investment (CAI) is the black sheep in the investment agreement family. Su pins down one principal investment liberalization discipline provided in the CAI – the state-owned enterprise (SOE) rule. Su concerns the capability and problems of the new SOE rule in addressing market access issues arising from the competition and incumbency of SOEs. Dedicated SOE disciplines are not an innovation of the CAI. Nor does the rule seem strikingly different from state-of-the-art treaty practice. However, delving into the nuances, Su finds that, when it comes to market liberalization, the CAI blurs out the stringent, clear-cut approach the (CP)TPP model is intended to establish. For both bodies of rules leave plenty of room for interpretation, the effectiveness of the new SOE rule remains uncertain and susceptible to politicization.
Posted on Wed, Dec. 7, 2022
Anne S. Y. Cheung, University of Hong Kong
Some attributed the decline of press freedom to the National Security Law (NSL) , enacted on 30 June 2020 by the PRC Government to be directly applicable to Hong Kong. Indeed, the NSL provides a critical intersecting point to examine the continued operation of the one country two systems model. Other than analyzing the legal provisions of the NSL and the judicial interpretation of relevant cases affecting the media, the study of press freedom in the HKSAR must be examined in the larger national security roadmap of the PRC. Cheung argues that the enactment of NSL signifies an important milestone in the development of the “uncommon” law in the HKSAR: a move towards a system of common law with Chinese characteristics and rendering the common law operating in the HKSAR becoming uncommon among other common law jurisdictions.
China’s Standard Contractual Clauses: Restricted Use and Complex Terms
Posted on Tue, Dec. 6, 2022
Graham Greenleaf, University of New South Wales
The Cyberspace Administration of China (CAC) issued a consultation draft on 30 June 2022 of its Standard Contract for the Export of Personal Information (SCE), and Provisions governing their use. These SCEs are China’s equivalent to the EU’s Standard Contractual Clauses (SCCs), but are very different in content and when they may be used. Greenleaf offers a short introduction to the SCEs. There are quite restrictive conditions on which personal information handlers (controllers) may use the SCEs. SCEs much include an extensive list of standard clauses, as well as provide quite a lot of information about the export in question. Also, the controller must first carry out a personal information protection impact assessment (PIPIA). This can be dangerous if the controller does not ‘get it right’.
Posted on Tue, Dec. 6, 2022
Robert Wolfe, Queen’s University
Xinquan Tu, University of International Business and Economics
Bernard Hoekman, European University Institute
China, the EU and the U.S. are the world’s largest traders, and many of the tensions in the trading system arise in the relations among them. The authors’ premise is that reforming WTO is a necessary condition for the organization to be a more salient forum for the three large economies to address trade tensions, and that agreement among these three trade powers in turn is necessary to resolve the problems of the WTO. The authors discuss both how China understands WTO reform, and how the other two leading powers see the China problem in the WTO. They consider how the three see transparency, plurilateral negotiations, economic development differences, fisheries and industrial subsidies, WTO working practices, and dispute settlement.
Breaching the Taboo? Constitutional Dimensions of China's New Civil Code
Posted on Mon, Dec. 5, 2022
Alec Stone Sweet, University of Hong Kong
Chong Bu, University of Hong Kong
Chinese political and legal elites have celebrated the new Civil Code (Jan 1, 2021) as the most important statute in the nation’s history, and the ‘cornerstone’ of the turn toward ‘rule of law’ and ‘good governance’. While constituting an act of massive delegation to the courts, judges remain formally prohibited from directly enforcing the PRC’s Constitution. The authors explore the relationship between the Code and Constitution, through a comparative analysis of: (i) the wider process of the ‘constitutionalisation’ around the globe; (ii) the scholarly discourse on the ‘horizontal effect’ of rights and the prohibition of constitutional judicial review in China; (iii) the normative structure of the Code itself; and (iv) the development of ‘political’ control mechanisms, to be deployed by the CCP and the highest organs of the state to constrain how judges use their interpretive powers.
The Regulation of Personal Data Accuracy in China’s Public Social Credit System
Posted on Mon, Dec. 5, 2022
Hannah Klöber, University of Cologne
The state-run Social Credit System (SCS), China’s mega-project to improve governance capabilities and legal compliance, depends on accurate data to achieve its purposes, but national-level regulation promoting it is slim. Klöber examines the overall regulatory framework dealing with the accuracy of personal information used in the public SCS, considering special sectoral and provincial regulations and national legislation. Her study frames the SCS as a data processing mechanism and discusses data input and use, as well as the overall legal framework it operates in. Subsequently it assesses the legal content of existing regulations with regard to ensuring data accuracy. Klöber finds that special legislation is inconsistent, and that national legislation is often too vague to deal with the complicated and diverse processes of the SCS. Further legislation will be needed to standardize procedures.
Policy Coordination and Selective Corruption Control in China
Posted on Mon, Dec. 5, 2022
Jing Vivian Zhan, Chinese University of Hong Kong
Jiangnan Zhu, University of Hong Kong
The allocation of the scant attention available for fighting corruption strongly affects corruption control. Although research has found that authoritarian regimes tend to fight corruption selectively, it is unknown whether and how they allocate attention across different policy areas to combat corruption. The authors propose that single-party authoritarian regimes can steer anticorruption attention to the policy domains prioritized by the central authority through the mechanism of cross-organizational policy coordination. Using original datasets compiled from Chinese governmental and procuratorial policy papers from 1998 to 2016, the authors demonstrate that Chinese prosecutors direct anticorruption attention to the policy domains accentuated in the central government’s major reforms. Field interviews support this finding and reveal possible disruption of anticorruption efforts in policy domains falling off the central government’s top list.
Why I Research China’s Supreme People’s Court (SPC)
Posted on Fri, Dec. 2, 2022
Susan Finder, Peking University, University of Hong Kong
Finder provides a brief article explaining a few of the most important things that non-specialists outside of China should understand about China’s highest court. First, the SPC is a unique institution among national supreme courts with some special functions and modes of operation. Second, like other Party and state organs, the SPC is organized in an administrative pyramid, and its judges have bureaucratic ranks. Third, because CCP leadership now values the role of the SPC in national governance, it is more involved in approving major changes to the court system. Fourth, the SPC is institutionally both more and less powerful than other apex courts. Fifth, the SPC treats judicial decision-making as an institutional function, making the role of individual judges less important and less visible. Sixth, what the SPC decides is already having an impact on the world outside China.
Review of Shucheng Wang, Law as an Instrument
Posted on Fri, Dec. 2, 2022
Donald C. Clarke, George Washington University
Clarke reviews Wang’s book Law as an Instrument. He finds that Wang provides a well-informed, in-depth exploration of the sources of Chinese law and catches the political realities of the Chinese legal system. As Wang himself says, the book “aims to make a contribution by systematically examining various sources of Chinese law and illustrating the dynamics of their sociopolitical logic employed in the applications.” Wang is specifically concerned with positive law, and even more specifically with law defined as the rules courts apply when making decisions in cases before them. The book covers the Constitution, formal judicial interpretations by the Supreme People’s Court (SPC), other kinds of judicial documents created by courts in the course of their work, formal Guiding Cases issued by the SPC, and judicial precedents more generally coming under various labels.
Why to Apply for Legal Interpretation on Jimmy Lai’s Hiring of a British Barrister
Posted on Fri, Dec. 2, 2022
Albert Chen Hung-yee, University of Hong Kong
The HKSAR gov requested an interpretation of the law from the Central gov regarding the case of Jimmy Lai, the founder of Next Media. The trigger point was a new legal issue that had never been dealt with in HK’s legal system, i.e., whether lawyers can be approved by the court to participate in litigation involving the National Security Law and represent their clients in court defense. It is an international practice for lawyers who are qualified to practice in their own jurisdictions to provide legal services and to represent the parties in court. Yet HK is a special case due to historical reasons, with its law allowing the court to approve in individual cases Queen’s Counsel to participate in the hearing of cases involving important and complex legal issues.
When a Judicial Mistake Went Viral: The Diffusion of Law in China
Posted on Thu, Dec. 1, 2022
Chao Xi, Chinese University of Hong Kong
Yingcheng Qi, Jilin University
Ruobing Wang, Chinese University of Hong Kong
Ning Cao, Chinese University of Hong Kong
Earlier anecdotal evidence suggests that judicially-developed doctrines, concepts, principles, norms and practices are disseminated not only downwards, but also upwards and horizontally, among Chinese courts. Methodologically, however, the rejection of the common law notion of precedents by China’s civil law tradition has rendered any attempt to quantitatively track the dissemination of legal information an unrewarding exercise. The spread – and citations by mistake – of a non-existent judicial interpretation across all four levels of the Chinese judiciary has offered a rare window into the diffusion of law in China. The authors present a first quantitative data-based evidence that hierarchical relationships between courts are at work in channeling information in the Chinese judiciary, particularly at the basic and intermediate levels. They also empirically demonstrate the role of cultural and geographical bonds in facilitating the dissemination of information among Chinese courts.
Posted on Thu, Dec. 1, 2022
Larry Catá Backer, Pennsylvania State University
Social credit can be understood as the building blocks for a legality based on the quantification of objectives and expectations that target people, groups, activity, and their interactions in all spheres of human collective organization. Backer’s research asks a straightforward question: in what ways are social credit systems embedded into the conceptualization and implementation of socialist legality. Two sub-questions follow: (1) how does that embedding shape the character of social credit ‘as’ or ‘in’ the cage of regulation through which the rule of law structures of Chinese constitutionalism are ordered; and (2) in what ways does the implementation of social credit through platforms change or displace traditional forms of the administration of law. Backer’s paper undertakes a close reading of the progression of State Council SCS White Papers in the context of the recent State Council White Papers on the construction and characteristics of Socialist Democracy and Political Parties in China. The object is to theorize ideologically authoritative Socialist Legality expressed as both the law of and a law for social credit under the leadership and guidance of the Communist Party of China. Lastly, the consequences of this interlinking are explored.
Work or Crook: The Socioeconomic Consequences of the Export Slowdown in China
Posted on Thu, Dec. 1, 2022
Hong Ma, Tsinghua University
Yu Pan, Tsinghua University
Mingzhi Xu, Peking University
The authors highlight a lesser-known consequence of the remarkable slowdown in global trade growth in recent years: the rise of criminal activities. Applying the textual analysis to millions of judgment documents at all levels of courts in China, the authors find higher crime rates in cities that experience a more severe export slowdown. The effects are more pronounced in regions that specialize in manufacturing, that have a larger share of the young and migrant population. Regarding types of crime, larger effects are found in resource appropriation activities such as robbery, stealing, defraudation, counterfeiting, and intellectual property infringement, as well as in criminal activities involving violence, felony traffic offenses, drugs, prostitution, and gambling. Negative export shocks also cause shrinking job opportunities, declining labor earnings, and rising labor disputes, suggesting that a weakened manufacturing labor market lowers the opportunity costs of committing a crime. Alternative mechanisms, such as spending on stability maintenance, appear to play less of a role. The paper’s estimates indicate that if China's export had maintained an annual growth rate as high as in 2011, the crime rate would have decreased by 9.5% from the current level.
Uncovering Trade Secrets in China: An Empirical Study of Civil Litigation from 2010 to 2020
Posted on Thu, Dec. 1, 2022
Jyh-An Lee, Chinese University of Hong Kong
Jingwen Liu, Chinese University of Hong Kong
Haifeng Huang, Chinese University of Hong Kong
The importance of trade secrets has been increasingly recognized by both policymakers and industry players in China. This said, the country’s trading partners and foreign investors have perceptions that trade secret protection there is far from adequate. These perceptions are rooted largely in the unsatisfactory plaintiff win rates, the low awarded damages and the excessive burden-of-proof requirements that trade secret owners are subjected to by China. Although these issues have been controversial for more than two decades, relevant debates have been framed, without empirical support, as simply the perceptions of diverse stakeholders. To help bridge the gaps in this debate, the authors investigate all published civil cases pertaining to trade secret misappropriation in China from 2010 to 2020. In analyzing the empirical data, they present various findings that shed considerable light on patterns of trade secret protection in China during the 2010–2020 period.
Judicial Independence, Local Protectionism, and Economic Integration: Evidence from China
Posted on Thu, Dec. 1, 2022
Ernest Liu, Princeton University
Yi Lu, Tsinghua University
Wenwei Peng, Hong Kong University of Science & Technology
Shaoda Wang, University of Chicago
The authors show that judicial independence can reduce local protectionism and foster cross-regional economic integration. Their research exploits a judicial independence reform in China with staggered roll-out since 2014. The reform removed local governments’ control over local courts’ financial and personnel decisions, thereby substantially improving local courts’ independence. The authors find that local defendants’ rate of winning court cases against non-local plaintiffs declined by 7.0% after the reform. The effect is mainly driven by improvements in the quality of judicial decisions and is more salient for politically connected local defendants. Over time, the reduction in local protectionism encouraged smaller non-local firms to file lawsuits against larger local firms. The authors also find that the decline in local protectionism could attract 8.4% more inward investment flows into reformed localities. This has the potential to increase China’s GDP by 2.3% when the judicial independence reform is implemented nationwide.
Finance Without Law: The Case of China
Posted on Wed, Nov. 30, 2022
Shitong Qiao, Duke University
Can there be a highly developed financial market without the legal protection of investors and creditors? Qiao investigates how two financial markets of trillions of dollars have developed extralegally. More specifically, he examines: (1) how Chinese internet companies have designed contracts to circumvent the government’s ban on foreign capital in certain industries and (2) how Chinese entities and foreign investors contract out of China’s stringent regulations on the issuance of international bonds. These extralegal contracts incur significant legal uncertainties and are unlikely to be enforceable in Chinese courts; yet numerous international investors have invested in China through such contracts. Overall, Qiao’s paper reveals that the network of financial intermediaries that controls access to the international capital market, the industry-specific communities of Chinese entrepreneurs and corporations that need access to that market, and the Chinese state, which promotes stability and predictability in both markets despite their extralegal contractual basis, replaces judicial enforcement in supporting financial development of a remarkable duration and scale.
Bureaucracy in the Service of Law: Holding Chinese Controlling Shareholders Accountable
Posted on Wed, Nov. 30, 2022
Ezra Wasserman Mitchell, Shanghai University of Political Science and Law
Common law style fiduciary duty has existed in Chinese Company Law since 2006. Most of the literature pronounced it a failure, or at best a slowly developing doctrine. But Mitchell’s research finds that recent judicial enforcement of fiduciary duty is quite healthy in privately-held companies, at least in Shanghai. Although doctrinal analysis is almost non-existent, Shanghai judges know a fiduciary breach when they see one and possess the statutory means to redress it. Matters are also well when it comes to holding controlling shareholders accountable in privately-held companies, despite the rare usage of the relevant statute. The real problem is the virtually non-existent legal accountability of controlling shareholders in mixed ownership enterprises, especially listed SOEs. Mitchell proposes a way to situate fiduciary enforcement within the appropriate and suitable Chinese bureaucratic tradition rather than to continue to try to force adjudicative methods where they have failed and will continue to fail because of structural, political, and cultural impediments, thus creating a uniquely Chinese way of controlling shareholder fiduciary enforcement.
Posted on Tue, Nov. 29, 2022
Igor Calzada, University of Oxford
The Personal Information Protection Law (PIPL) was launched on 1 November 2021 in China. Calzada provides a state-of-the-art review of PIPL through a policy analysis. His paper aims to compare the three main worldwide data privacy paradigms that exist at present: (i) the General Data Protection Regulation (GDPR) in the E.U., (ii) the California Consumer Privacy Act (CCPA) in the U.S., and (iii) PIPL in China. The research question is twofold: (i) how will PIPL affect the data privacy of Chinese citizens and consequently, (ii) how will PIPL influence the global digital order, particularly paralleling the existing GDPR and CCPA? The paper first introduces the topic of data privacy as a global concern, followed by an in-depth policy context analysis of PIPL and a literature review on privacy that elucidates in particular the impact of the Social Credit System. A comparative benchmarking is then carried out between the GDPR, CCPA, and PIPL. A case study of Shenzhen is also examined by undertaking a multistakeholder analysis following the Penta Helix framework.
Posted on Tue, Nov. 29, 2022
Liyang Hou, Shanghai Jiao Tong University
Shuai Han, Shanghai Jiao Tong University
China's State Administration for Market Regulation announced two guidelines in October 2021. The drafted Guidelines for Classification and Grading of Internet Platforms categorize digital platforms into super, large and medium-to-small platforms by size, and the drafted Guidelines for Implementing Subject Responsibilities on Internet Platforms impose extra responsibilities and obligations when a platform falls into the category of “super” or “large”, with the purpose of securing fair competition, equal internal governance, and an open ecosystem. China is certainly not alone in doing so. The EU recently adopted the Digital Markets Act, while the US House of Representatives formed a set of five bills trying to hold accountable Big Tech companies for anti-competitive conduct. All these guidelines and proposed acts have one common goal that is to seek government regulation against big platform operators outside the box of competition law. So what are the differences between these arrangements, and what should be the future for platform regulation?
Posted on Tue, Nov. 29, 2022
Matthew Erie, University of Oxford
Jingjing Zhang, University of Maryland
The paper compares China’s foreign direct investment (FDI) and overseas direct investment (ODI) regimes, finding that, at a general level, whereas the former has transitioned from restrictive to lenient, the latter has evolved in the opposite direction, from lenient to restrictive. The different trajectories cannot be explained solely in terms of the time lag in their respective development. The authors argue that one reason why the FDI regime is more advanced is because of the influence of the WTO accession of 2001. Whereas the FDI regime has become more streamlined, efficient and coordinated, partly as a result of the WTO accession package, the ODI regime, which has not yet benefited from an analogous multilateral framework, remains bureaucratic, suboptimal, and disaggregated. The authors base their analysis on a data set of hundreds of normative documents that comprise the FDI and ODI regulatory regimes. They focus on the specific example of the regulation of the environment impact of FDI and ODI, and find that the environmental and social impact of Chinese ODI is inadequately regulated resulting in potential harms to Chinese investors and impacted communities in host states alike in the course of Chinese-financed projects overseas.