After Difference: A Meta-Comparative Study of Chinese Encounters with Foreign Comparative Law

12. April 2021
A new paper by Samuli Seppänen
杨梅: Bayberry or Chinese Strawberry

European and American comparative lawyers’ engagement with so-called “radically different” legal systems has generated much introspection and methodological controversy among comparative lawyers. Is it possible to truly understand “radically different” foreign law? Can one understand foreign law through translations? What right do comparatists have to write about areas of law which are outside their field of expertise, in the first place? Similar questions have long been raised in comparative law, but they have gained new momentum as American and European comparatists have begun to examine “non-Western” legal systems.

Yet, there remains a striking asymmetry in how such questions are conventionally posed. While many American and European comparatists have expressed concerns about intercultural comparisons, few studies have examined whether the experience of “radical difference” and its side effects—self-doubt, suspicion of cultural bias, and feelings of inadequacy—affect comparative lawyers in “radically different” legal cultures, such as China.

My article “After Difference: A Meta-Comparative Study of Chinese Encounters with Foreign Comparative Law” (free draft) examines perceptions of difference in Chinese comparative law. I seek to demonstrate that labelling foreign law as “different” or “similar” carries different political implications in China than in liberal democratic societies, such as Britain and the United States. China’s governing Communist Party sees the promotion of Western constitutional democracy as an “attempt to undermine the current leadership and the socialism with Chinese characteristics.”  The Chinese leadership has also instructed legal scholars and other social scientists to develop original theories based on China’s practical conditions.

In this political climate, an emphasis on “similarity” in comparative legal scholarship often coincides with a willingness to adopt liberal legal and political reforms, whereas a conspicuous preference for “difference” implies resistance to such reforms. A legal institution that is described as foreign, and yet familiar, can be more easily advanced in China than a legal institution that can never be “truly” understood or one that is portrayed as being “radically” different from Chinese law.

Strawberry

Comparative law has also supported mainstream legal scholars who try to find a middle ground  between conservative socialism and devotional liberalism. A comparative law focus on the social purposes of legal institutions, for instance, has allowed Chinese comparatists to denounce politically sensitive foreign legal institutions—such as the judicial review of legislation—which supposedly serve the idiosyncratic purposes of Western societies, while at the same time endorsing and advocating politically less controversial legal reforms.

To be sure, there are many nuances in Chinese comparative law. An emphasis on difference can be a liberal strategy,  whereas arguments about similarity have been used to resist legal and political reforms. It is also true that many Chinese comparatists are sufficiently familiar with American and European law so as not to experience them as exotic.  The question of (radical) difference and similarity also relates to Chinese legal scholars’ professional identity and worldview. Whereas American and European comparatists may view Chinese comparatists (and indeed, all students of Chinese law) as being on the margins of their discipline, Chinese mainstream comparatists are committed to learning and understanding foreign law. This attitude is not limited to Chinese studies of European and American law, but it can also be seen in some Chinese research on non-European legal systems, such as Hindu law.  

Finally, the larger argument of my Article is that statements about difference and similarity—and attitudes towards understanding, in general—should be understood in light of the individual scholar’s ideological project. There is no ideologically innocent way to relate to foreign legal systems either in China or abroad.  Scholars who encounter legal systems that at first seem difficult or even impossible to “understand” would do well to remember that difference and similarity are matters of perception—and, it would appear, not the most fruitful theoretical basis for legal research.

Find Samuli Seppänen’s free draft of “After Difference: A Meta-Comparative Study of Chinese Encounters with Foreign Comparative Law” here. He is an Associate Professor at the Chinese University of Hong Kong. His research focuses on legal and political thought in China and developmental aspects of international law. Reach out to him at sseppanen(at)cuhk.edu.hk.

American Constitutional Law in China

22. March 2021
A new paper by Han Liu

American constitutional law has influenced various countries, but what about China? For conventional account, the answer is, little, given China’s socialist constitutional system and continental legal thinking. Diving into a relatively unexplored domain, Han Liu traces the reception of American constitutional law in post-Reform China, arguing that American constitutional law has greatly influenced Chinese constitutional thinking, sometimes even generating practical reform projects (article, free draft).

One influential Chinese text book on US-American Constitutional Law

To be sure, American constitutionalism had almost no influence in proto-socialist China (1949–1979). In 1979, as China and the United States established diplomatic relations, interest in American constitutional system began to surge. Translations, studies, and introductions about American constitutional law started to grow rapidly. This academic project also influenced practice, especially by providing an example of the separation of powers and judicial review.

Han Liu points out that there has been a great change in Chinese understandings of American constitutionalism, that is, from “regime-centered” to “court-centered”. These two exerted different practical influences. In the 1980s, American constitutionalism was generally tantamount to tripartite “separation of powers” to Chinese intellectuals, legal or otherwise, and even political leaders. Deng famously said that “I always criticize the American power holders for having three governments.” Despite Deng’s critique, others tried, without success, to learn from the American example, bringing checks and balances into the Chinese system.

But at the turn of the century, especially in the early 2000s, American constitutionalism shows a different face. For many legal scholars and lawyers, it was understood as synonomous with judicial review. They came to believe that a constitution remains a dead letter if not used in courts and litigations, as in the US. The US Supreme Court, with its power to enforce the Constitution, now took the center stage in the Chinese understandings. Its Chinese counterpart, from 2001 to 2008, even introduced an American model of judicial review into the Chinese judicial system.

Why has this happened? It was not simply a “response-impact” mechanism. Rather, China’s different receptive attitudes towards American constitutional law hinge upon China’s own frame of reference in the legal reform. As the authorities began to construct “the rule of law” in the 1990s, the Constitution had to be activated in practice. Then the American model became attractive.

In the space between theory and practice, the Chinese constitutional mind becomes receptive to American influence.

This logic also explains the decline of American influence in Chinese constitutional theory and practice in the last ten years. While the authorities declare the principle of “governing according to the constitution”, they at the same time stress China’s distinction from “Western” models, especially the US. In due course, American constitutionalism in China will perhaps no longer be the single idol to adore, let alone the best model to follow.

Looking back, American constitutionalism’s impacts on Chinese constitutional development depend upon the internal logic and dynamics of Chinese reform, which determines the optics in the reception of foreign law. The fundamental change in Chinese understandings of American constitutionalism reflects the great transformation in the deep structure of Chinese ideology and jurisprudence.

Han Liu is Associate Professor at Tsinghua University Law School and Deputy Director of Tsinghua Institute for Law and AI. He researches comparative constitutional law, cyber law and policies, and legal theory. His recent paper ‘Regime-Centered and Court-Centered Understandings: The Reception of American Constitutional Law in Contemporary China’ (free draft here) appears in American Journal of Comparative Law, selected as one of the top 10 comparative law articles in the Best of 2020 Law Journals from Oxford University Press. His book Think Big and Beyond Yourself: Law as a Way of Thinking (in Chinese) won “The 10 Best Books 2020 in Law” in China. His online course “Legal Thinking” has attracted more than 70, 000 subscribers. Reach out to him at liuhan[at]tsinghua.edu.cn.

Two Paradigms of Emergency Power: Hong Kong’s Liberal Order Meeting the Authoritarian State

15. March 2021
A new paper by Hualing Fu and Xiaobo Zhai

The Covid-19 pandemic since February 2020 and the Hong Kong National Security Law (HKNSL) passed on June 30, 2020 have set an abrupt end to the protests in Hong Kong, which, according to its mini-Constitution, the Basic Law, enjoys ‘high degree autonomy’ under China’s sovereignty and shall be administered by Hong Kong people. Activating Article 18 (4) of the Basic Law, declaring a state of emergency, and deploying the army to restore order in Hong Kong were under wide and lively discussion in September 2019 (for contributions, see here, here, here, and here). One aim of the HKNSL, as pointed out by Shen Chunyao, head of Beijing’s Basic Law Committee, is to pre-empt the occurrence of the state of emergency provided in Article 18 (4) of the Basic Law, which, Shen stressed, is “a very serious situation”: it is even much worse than Beijing taking over complete jurisdiction and applying Mainland laws in exceptional national security cases (article 55, HKNSL).

What will this “very serious situation” be like? An answer can be found in the Basic Law’s Art. 18 (4), which says,

in the event that the NPCSC … by reason of turmoil within the HKSAR which endangers national unity or security and is beyond the control of the government of the Region, decides that the Region is in a state of emergency, the Central People’s Government may issue an order applying the relevant national laws in the Region.

Fu and Zhai argue that Article 18(4) creates a dual emergency regime: Hong Kong’s own internal one and the NPCSC’s external one. The former is based on the rule of law, where the emergency power is subject to significant legal and political constraints. The latter, however, introduces a state of exception, where an authoritarian state manages a crisis, largely independent of legal rules and without democratic responsibility. In view of this contrast, Fu and Zhai suggest that the HKSAR internalise the responses to states of emergency, so that rights and freedoms be carefully protected, and the rule of law be effectively defended. 

Find the free PDF of the paper here.

Hualing Fu is Dean and holder of the Warren Chan Professorship of Human Rights and Responsibilities, Faculty of Law, the University of Hong Kong. His more recent contributions include: Mediation in Contemporary China (2017); Transparency Challenges Facing China (2018); Socialist Law in Socialist East Asia (2018), and Authoritarian Legality in Asia (2020). Reach out to him at hlfu(at)hku.hk.

Xiaobo Zhai is Associate Professor at Macau University. He co-edited the volumes Bentham’s Theory of Law and Public Opinion (2014) and Bentham Around the World (2020) and is the author of The People’s Constitution (2009) and China’s System of Constitutional Implementation (2009). Reach out to him at xbzhai(at)um.edu.mo.

The financial credit information system and China’s evolving data protection law

1. March 2021
A new paper by Lu Yu and Björn Ahl
The headquarters of the People’s Bank of China in Beijing, supervising entity of the financial credit information system

How is data protected in the evolving Social Credit System? Both, social credit and Chinese data protection law is diverse and fragmented, making the search for an answer to this question a complicated endeavour. Lu Yu and Björn Ahl dive into one arguably most sophisticated arm of the Social Credit System, that is, the financial credit information system (FCIS) in their new article “China’s evolving data protection law and the financial credit information system: court practice and suggestions for legislative reform” (free draft here).

The FCIS is not only one of the most mature parts of the overall SCS, as it regulates private entity’s data collection, it also features stricter and clearer data protection rules than those Social Credit subsystems that include data collection by state organs. Most importantly, Chinese data protection law requires data subjects’ consent to the collection and further transfer of personal data. The authors have found the consent requirement to be incompatible with the functions and purposes of the FCIS, with data subjects having no real choice, as consent is linked to obtaining the financial service in questions. Hence, future rounds of reform should establish exceptions to the consent requirement.

In their article “China’s evolving data protection law and the financial credit information system: court practice and suggestions for legislative reform” (free draft here) the authors investigate the limits that Chinese data protection law imposes on the FCIS. The FCIS receives both financial credit data from financial institutions and public data from public authorities. Yu and Ahl analyse the legal framework and how data protection rules are applied in court practice, including the preconditions for and levels of protection afforded data subjects’ rights and the legal consequences of any violations of those rights. Although the courts have adopted differing approaches to the interpretation of data protection law, the authors find that they have established consistent practice in protecting data subjects against the transfer of incorrect negative data. Chinese data protection law provides for neither an effective legal basis nor for limits on the collection and transfer of public data by public authorities. The Information Security Technology – Personal Information Security Specification (2020, hereafter: Specification) provides comprehensive protection for the personal data processed by all organisations, including public authorities, but it is only a recommended standard that lacks binding authority. Although the 2012 Regulations on the Administration of the Credit Investigation Industry grant data subjects a number of rights, the courts have difficulties applying the data protection rules in practice. In sum, there is a need in both the private and public sectors for nationally applicable, binding and more sophisticated data protection rules.

→ What is the FCIS? Different public authorities organise and maintain their own credit systems. The FCIS is one system at the national level that is supervised by the People’s Bank of China and functions as a public credit registry. It draws on financial credit data, the discredited judgment debtor list system operated by the SPC, which concerns individuals or entities refusing or failing to comply with an effective court judgement; and the information system operated by the China Securities Regulation Commission in relation to capital market activities. Founded in 2006, the FCIS is a predecessor of the Social Credit System: Pursuant to the Interim Measures for the Administration of the Basic Data of Individual Credit Information, the FCIS collects and stores individual credit data to provide inquiry services to commercial banks and individuals. It further offers information to be used for the formulation of currency policy, financial supervision and other purposes provided for by law. Hence, the purpose of the FCIS is twofold: to inform financial institutions for the purpose of reducing credit risks and to provide information to regulators to support policy making. At the end of 2018, the FCIS held personal data concerning 980 million natural persons.

Progress was recently made with the introduction of personal data protection to the new Civil Code, and a comprehensive data protection law is currently on the legislative agenda. Because the Specification has already established a sound model by providing very detailed data protection rules, the future comprehensive data protection law should address the processing of data by public authorities and further refine the already established data protection principles in the Cybersecurity Law and Specification. Improvements in data protection, in particular the regulation of data sharing between public authorities, could serve to balance social governance and individual rights and contribute to enhancing the legitimacy of the overall SCS.

Lu Yu is a research assistant at the chair of Chinese Legal Culture of Cologne University. She is about to submit her dissertation on European and Chinese data protection law to the Georg-August-Universität Göttingen where she has conducted research since October 2017, after working as a legal counsel with Rödl & Partner in Guangzhou. Reach out to her at yuluna5(at)gmail.com.

Björn Ahl is Professor and Chair of Cologne University’s Chinese Legal Culture. Before joining the University of Cologne in 2012, he was Visiting Professor of Chinese Law, Comparative Public Law and International Law in the China EU School of Law at the Chinese University of Political Science and Law in Beijing. Prior to that he held a position as Assistant Professor of Law in the City University of Hong Kong. He has also worked as Associate Director and Lecturer in the Sino German Institute of Legal Studies of Nanjing University and as a Researcher at the Max Planck Institute of Comparative Public Law and International Law in Heidelberg. Find him on LinkedIn.

Divorce in China: Institutional Constraints and Gendered Outcomes

17. February 2021
A new book by Xin He

Why do so many Chinese woman suffer or even die from domestic violence? Why are women still at a disadvantage in Chinese divorce courts for property and child custody? Why are the personal safety protection orders rarely issued?  Why are the laws protecting women’s rights not implemented?

The existing literature has, explicitly or implicitly, attributed this to the following four reasons: incomplete protections of the law, out-of-court gender biases, a lack of gender consciousness on the part of judges, and disparities between the litigation capabilities of men and women. While each of these reasons contributes to the gendered outcomes, they are inadequate at explaining the breadth and depth of women’s bleak situation.

In Divorce in China, Xin He turns to the most unlike suspect—Chinese courts and judges. This new book argues that institutional constraints to which judges are subject, a factor largely ignored by the existing literature, play a crucial role in generating gendered outcomes. Twisting the divorce law practices are the bureaucratic incentives of the court and its political concerns for social stability. The judges are responding to two sets of interrelated institutional constraints: efficiency concerns and stability concerns.

The judiciary trumpets a slogan “to achieve the combination of both legal and social effects.”

Efficiency concerns mean that judges are supposed to handle cases efficiently. The Civil Procedural Law stipulates that cases tried by the Normal Procedure are to be completed within six months, and those using the Simplified Procedure have only three months to finish. Some senior officials managing their courts even shorten the limits to 90 or 20 days, respectively, to allow themselves more room to manoeuvre. The case closure rate, an indication of the effectiveness and efficiency of court operations, appears in every court’s annual work report. By December of each year, many courts stop taking new cases so that they can increase the case closure rate for the year.

Stability concerns mean that the court decision is accepted by the litigation parties and by society at large—it does not foment social instability. This is controlled by the appeal rate, the remand rate, the petition rate, and the number of malicious incidents, including social protests and deaths. The judiciary trumpets a slogan “to achieve the combination of both legal and social effects.” While the legal effects suggest the observations of legal principles and rules, social effects imply that society accepts the decision peacefully. It would be nice if the two were consistent and mutually reinforcing. But when they conflict, legal principles and rules have to make way for social effects. That is, the law is compromised.

Due to these concerns, judges often choose the most efficient, yet safest, way to handle issues in divorce litigation. They have to make sure that cases are finished before the deadline, and this without malicious incidents. They want a balanced decision, acceptable for both parties which does not provoke extreme reactions. This behavior pattern, Xin argues, results in gendered outcomes.

domestic violence confirmed at the trial level is often erased, dismissed, or ignored at the appeal level.

First, many laws protecting women’s interests are not fully implemented. These laws are created to reverse social, cultural, and economic biases against women. They are not necessarily gender neutral; they may favor women, or offer them a hand. Their implementations are crucial for rectifying gender biases and eventually achieving gender equality. Due to judges’ concerns however, domestic violence confirmed at the trial level is often erased, dismissed, or ignored at the appeal level. This occurs because the appeal court needs to strike a balance. The protection order, intended to help the victims of domestic violence before the litigation process ends, has been underutilized, because issuing such orders increases judges’ workloads. Child custody turns into a bargaining chip to soothe the unsatisfied men. Children are taken away from women simply because men are viewed as posing a more imminent threat to social stability.

Second, the judges’ behavior patterns privilege men in litigation outcomes due to their superior economic capabilities. As mentioned, by law, the bidding process is optional. However, out of efficiency concerns, judges encourage litigants to take this option. This is because bidding provides the most efficient way to fix a price for the matrimonial property. As a result, many women lose their homes. Out of stability concerns, judges also often allow an economically superior man to gain an upper hand in highly contested cases. Men with more cash are allowed to buy out women determined not to be divorced. On the other hand, women, with less economic capability, do not enjoy the same luxury when their husbands are equally steadfast against divorce. Women remain ensnared in the marriage shackles, even though they are desperate for their removal.

Finally, the judges do not alleviate cultural biases against women—rather, they perpetuate them. With such an approach, they accept the patriarchal culture, and reinforce gender inequality, turning a blind eye to cultural bias. Because of their concerns for efficiency and stability, they are reluctant to explore women’s sufferings because of their husbands’ impotency, or even rape committed by their husband’s family members. This is not because the judges are unaware that women’s rights are infringed upon. They just do not want to infuriate or even confront the men.  For their purposes of disposing of the cases efficiently without lingering effects, to do so would be unnecessary.

judges, catering to institutional concerns, consciously and inadvertently, make decisions detrimental to women.

It is thus inadequate to say that the brunt to women in divorce litigation stems only from the incomplete coverage of women’s rights, or vague definitions of key terms in the legislation. It is also not enough to blame the judges’ lack of gender consciousness, or inequalities and biases outside the court. One fundamental reason is that the judges, catering to institutional concerns, consciously and inadvertently, make decisions detrimental to women. Driven by these concerns, they allow the forces of inequality in social, economic, cultural, and political areas to infiltrate their decisions. It is the institutional reasons that prevent the judges from offering a level playing field for women. Equality can only be invoked and fulfilled when the courts have acted. Thus, the institutional failure to enforce the laws has become a major obstacle to gender justice.

This book is based on extensive fieldwork and interviews Xin He has conducted in various court settings over more than a decade. Obtaining access to Chinese courts is difficult, and has recently become even more so. Few outside researchers have attained this level of access. This book is the only study of Chinese divorce cases based on fieldwork conducted inside Chinese courtrooms. Xin He has observed more than 50 trials, and these observations constitute the foremost part of my data.

This book is timely, given the renewed and heightened focus on the rule of law in the official discourse in China on the one hand, and from the awaking gender consciousness on the other. From a doctrinal standpoint, China exemplars gender equality and the freedom of divorce. Yet, how are the laws implemented? What the Chinese courts actually do, and what the consequences are. From a socio-legal perspective, the book highlights the richness, sophistication, and cutting-edge nature of the underlying research. Divorce in China is as much an account of Chinese courts in action as a social ethnography of China in the midst of momentous social change.

HE Xin is Professor at HKU Law Faculty. A pioneer in studying China’s legal systems from a socio-legal perspective, he is one of the most cited China law scholars. His monograph Embedded Courts: Judicial Decision Making in China with Kwai Hang Ng (Cambridge University Press 2017) won “the Distinguished Book Award” by the Asian Law & Society Association and the runner-up of the book prize by the ICON-S (the International Public Law Association). He was awarded the Humanities and Social Sciences Prestigious Fellowship of Hong Kong in 2019.

Find his second monograph, Divorce in China: Institutional Constraints and Gendered Outcomes, published by NYU Press in 2020, here.

How Comprehensive is Chinese Data Protection Law?

1. February 2021
A new paper by Anja Geller

When I told people that I am writing an article about Chinese data protection law, the most common reaction was the question “does that even exist?” The surprised and doubtful undertone motivated me to find a convincing answer. On my way, I encountered some obstacles. There is a plethora of regulations with different scopes, legislation bodies and legal effects. Even for specialised Chinese lawyers, it can be difficult to figure out which norms apply in a certain case. In the end, I chose to restrict my analysis to the 13 most important Chinese regulations with a nationwide scope of application.

Lacking a unified law, these norms have to be seen in combination to determine the comprehensiveness of Chinese data protection law. As the European General Data Protection Regulation (GDPR) is one of the most comprehensive and modern data protection regimes, I used it as a framework. When viewing the Chinese norms against this backdrop, it quickly becomes clear that especially the non-binding norms and drafted provisions are the most progressive and strict ones. They show that the Chinese legislators are moving towards the European system rather than the US or a taking a third way.

However, as is common for such cases of legal orientation, “Chinese characteristics” remain. For example, strong divergences exist in the area of administrative penalties. Instead of a focus on severe monetary penalties similar to the GDPR, there are many different sanctions. Starting with warnings and orders to correct, infringers may face a suspension or closure of their business, revocation of their business licences or even a definitive ban from the profession. Furthermore, measures of “naming and shaming” such as the publication of these sanctions in the “Social Credit Register” and other public announcements may be ordered. Compared to the European medieval equivalent of the pillory, such punishments have a long and living tradition in China. Especially the emerging “Social Credit System” relies on such punishments and is presented as a crucial tool for making citizens and companies comply with the law.

Another “Chinese characteristic” is the “real-name registration” requirement, which has already existed in many other fields for quite some time. Providers of network access and other digital services have to require users to provide true identity information before allowing access. Although this may help law enforcement in digital environments, there are well-founded fears concerning its negative implications on privacy and the freedom of speech.

Nevertheless, there are also a lot of positive developments from a European data protection perspective. The Chinese legislators have been very active in recent times and many new regulations and drafts appear on an annual basis. In fact, on 21 October 2020, one month after the online publication of my article, perhaps the most significant draft was published: the “Law of the People’s Republic of China on the Protection of Personal Information (Draft)” (中华人民共和国个人信息保护法(草案)). In the article, I covered an already very promising draft of the same name, which was proposed by several delegates of the National People’s Congress (NPC) in 2017. The 2020 draft, on the other side, was published by the Standing Committee of the NPC as a whole, which gives it much more weight. Both drafts intend to become the first national “laws” that aim to protect the right to personal information as a primary goal. All other regulations that share this as a central objective are on a lower level in the hierarchy of norms.

A quick comparison of their lengths and the amount of their articles – 70 compared to 44 – suggests that the 2020 draft is even more comprehensive. Among the most striking innovations is the broad extraterritorial applicability of the 2020 draft, which is relatively similar to the GDPR. One could say that reciprocity prevails here. As the introduction of the European rules have led to much discussion and controversy, it will be interesting to see what the international response will be as this draft becomes more widely known. Since a more detailed treatment of this new draft would go beyond the scope of this blog post, I refer to the comparisons here, here and here (all in Chinese), and a comprehensive analysis here (English). When and in which form this draft will be enacted is still unclear. Nonetheless, it shows yet again that the Chinese lawmakers are actively working to create an increasingly comprehensive data protection regime.

Therefore, to the question whether or not a Chinese data protection law exists, the short answer is: yes.

The paper “How Comprehensive Is Chinese Data Protection Law? A Systematisation of Chinese Data Protection Law from a European Perspective” appeared in GRUR International 2020, 1191-1203. It is available via open access here.

Anja Geller is a PhD candidate at the Ludwig-Maximilians-Universität and a junior research fellow at the Max Planck Institute for Innovation and Competition, Munich, Germany. Contact her via Anja.Geller@ip.mpg.de or via Linkedin.

“How has Wuhan achieved this without a vaccine? Anyone?”

11. January 2021
A new paper by Philipp Renninger

Although Wuhan was the first epicenter of COVID-19 (from November 2019), the city managed to effectively control the pandemic. Since April 2020, there have been almost zero new (locally transmitted) COVID-19 cases in Wuhan. The city celebrated this success with a huge pool party in August 2020 and a packed New Year’s Eve 2021, whilst other countries remained locked down due to COVID-19. China’s state media expressed (mischievous) delight, some Western newspapers reacted with anger and jealousy, and other journalists asked the crucial question: “How has Wuhan achieved this without a vaccine? Anyone?”

Searching for legal and juristic answers …

Most legal, political, and medical answers to this question focus on the whole of China, and thus on the measures enacted by the central level. In contrast, the local measures in Wuhan have been scrutinized by few Western and Chinese scholars, perceiving this topic as more sensitive than it should be. Therefore, the media rather than academia covers what happened in Wuhan. This poses a first problem for academic research on COVID-19 in China: The current coverage of Wuhan’s pandemic management is not “legal” and “juristic” enough.

In order to solve this first problem of COVID-19 research, my new paper in the Washington International Law Journals clarifies the legal and juristic basis of Wuhan’s COVID-19 management. I explain both the relevant institutions and the relevant instruments: first, China’s central–local, party–state, and politics–law system in general; second, China’s emergency management system with a focus on public health emergencies (PHE) and pandemics; and third, China’s institutions and instruments designed during the current COVID-19 pandemic. In order to fight COVID-19, the center created the State Council’s Joint Mechanism for COVID-19 Prevention and Control Work (国务院应对新型冠状病毒感染的肺炎疫情联防联控工作机制) as well as the CCP’s Central Leading Group for COVID-19 Work (中央应对新型冠状病毒感染肺炎疫情工作领导小组). Wuhan established a mixed party-state Headquarters for COVID-19 Prevention and Control (武汉市新型冠状病毒感染的肺炎疫情防控指挥部).

When containing COVID-19, Wuhan’s Headquarters primarily employed nonlegal normative documents instead of formal law. Researching these documents faces the obstacle affecting most of China’s local politics and law: the lack of accessibility. Many COVID-19 orders and instructions were never published on Wuhan’s official government website but rather on social media, e.g., WeChat or Weibo. Various COVID-19 documents were published on Wuhan’s official website but deleted afterwards. Fortunately, some remained on the central government ‘s homepage (e.g., this notice). In other cases, photos and scans (e.g., of this notice) or the raw text (e.g., of this notice) survived in the depths of the internet.

… by fructifying social-scientific methods

Yet, these documents do not reveal how the institutions and instruments interacted during the COVID-19 pandemic. How did they manage to control COVID-19? And why did they fail to prevent the pandemic in its early stages? Academic research on these questions deals with a second problem quite contrary to the first one: The available official information on Wuhan’s pandemic management is too “legal” and “juristic, i.e., too formalist. The documents do not provide direct background information on the COVID-19 decision processes inside the party–state, central–local, and politics–law system. The traditional juristic methods of legal interpretation cannot unveil these processes in Wuhan. Therefore, in order to unlock hidden insights, my paper consults the methods of social sciences for inspiration.

A first capable social-scientific method is “analytic narratives”. This method “explains specific events by combining the narrative approach of historians with the analytic tools from rational choice theory” (Mongin 2016). It employs a “narrative to elucidate the principal players, their preferences, the key decision points and possibilities, and the rules of game” (Levi & Weingast 2016). Drawing on this method, my paper identifies the narrative of Wuhan’s COVID-19 management, commanded by Xi Jinping: The central and local institutions must “treat the whole country as a chess game” (“全国一盘棋”).

In containing COVID-19, did China and Wuhan really employ the tactics of Chinese chess (象棋), using institutions and officials like “chess pieces” (illustrated by the picture above)? The answer is yes, as my paper demonstrates by consulting a second capable social-scientific method, “process tracing”. The method “draws descriptive and causal inferences from diagnostic evidence” by tracing processes, i.e., “temporal sequences of events or phenomena” (Collier 2011). This enables my paper to trace a triple “chess move” (horizontal–vertical–horizontal) leading to the Wuhan’s complete shutdown in February 2020. Central state leaders acted as party leaders (horizontal) in order to control the local CCP branches (vertical)—by replacing the party secretaries of Hubei Province and Wuhan City on February 13. The new party secretaries then pressured Wuhan’s local state organs (horizontal) to tighten the city’s “closed management” from February 10 to a real curfew on February 14.

Fructifying social-scientific explanation from a specifically juristic perspective, my findings on China’s “COVID-19 chess” have also gained the attention of the media, e.g., the Frankfurter Allgemeine Zeitung and The Diplomat.

Find the full paper “The ‘People’s Total War on COVID-19’: Urban Pandemic Management Through (Non-)Law in Wuhan, China”, published in the Washington International Law Journal, available via open access here.

Philipp Renninger is a doctoral candidate (cotutelle de thèse) and academic assistant at the Universities of Lucerne (Switzerland) and Freiburg (Germany). In his PhD thesis, Philipp develops a new method of comparative law by the example of Chinese, German, and Swiss public law. Contact him at philipp.renninger@yahoo.com or on Twitter @Phil_Renninger.

Chinese influence – New perspectives on international arbitration regimes

3. January 2021
A new paper by Ulla Liukkunen

Cross-border dispute resolution is changing as a part of the Belt and Road Initiative (BRI) development. With the BRI, Chinese interest in international commercial arbitration has gained a new dimension as BRI promotes the expansion of Chinese dispute resolution institutions and their international competitiveness. Ulla Liukkunen finds that these developments challenge the current narrative of international arbitration, underlining the connection between the legal regime of arbitration and endeavours by the state. In her recent paper (PDF), she explores private international law as a framework for discussion of noteworthy characteristics of the Chinese legal system and legal culture that are present in international commercial arbitration.

The People’s Republic of China has made initiatives to develop a joint dispute resolution circle for BRI countries so that there would be an area in the BRI sphere which offers effective and foreseeable dispute resolution based on jurisdictions close to the disputing parties. In 2016, upon an order by the State Council, Shanghai pressed forward with the creation of an international commercial arbitration system which has since then developed rapidly: The Shanghai International Arbitration Centre has witnessed an increase in the number of cases, and has launched a series of initiatives to promote the development of arbitration. In 2018, the CCP’s Central Committee and the State Council issued an Opinion calling the Supreme People’s Court to set up international commercial courts, to take the lead in setting up a committee of international commercial experts, and to support a BRI-related international commercial dispute resolution mechanism. The aim is that the BRI dispute resolution mechanism would form a convenient, speedy and low-cost “one-stop” dispute resolution centre to provide high-quality and efficient legal services for parties involved in BRI construction.

In the theory of international commercial arbitration, elaboration of a doctrine based on the claimed autonomous nature of international arbitration exists, resting on views of self-standing transnational legal standards that distance arbitration from state-bound laws as well as a state-bound setting. The growing role of China in international arbitration ‒ and the state interest embedded therein ‒ challenges this picture which has been built within international arbitration doctrine and which has resulted in loosening the scene of the role of state law in arbitration.

A rethink of comparative methodology is proposed in order to promote an understanding of Chinese law in the arbitration process. This article argues for adopting micro-macro comparison as a methodological approach in arbitration. Micro-macro comparison as a process penetrates the decision-making of arbitrators, also governing the conflict-of-law dimension.

Moreover, considerations of the Chinese private international law and arbitration regime speak for a broader comparative research perspective towards international commercial arbitration. In the international commercial arbitration frame under scrutiny, we can see the conception of party autonomy placed in a Chinese context where the state is shaping the still relatively young private international law frame for exercise of that freedom and certain institutional structures are advocated where party autonomy is placed. Chinese development underlines the connection between the legal regime of arbitration and endeavours by the state, thereby requiring assessment of party autonomy from the perspective of the regulatory framework of private international law that expresses the complex dichotomy between private and public interests.

The article “Chinese context and complexities — comparative law and private international law facing new normativities in international commercial arbitration” is among the first in the new open access publication Ius Comparatum launched by the International Academy of Comparative Law.

Professor Liukkunen examines international commercial arbitration from the perspective of Chinese developments, noting that, in global terms, the organization of cross-border dispute resolution is changing as a part of the Belt and Road Initiative (BRI) development. With the BRI, Chinese interest in international commercial arbitration has gained a new dimension as BRI promotes the expansion of Chinese dispute resolution institutions and their international competitiveness.

Chinese Lawyers in Politics

1. December 2020
A new paper by Lawrence Liu and Rachel Stern

Mr. Zhou* briskly entered the conference room, shook my hand, and apologized for his tardiness. He had just completed an interview with a state-run newspaper and had lost track of time. I thanked him for squeezing me into his busy schedule, and after a bit of small talk, we began our conversation. As with all of our interviewees, I first asked Mr. Zhou whether being selected as a National Outstanding Lawyer by the All China Lawyers Association (ACLA) had an effect on his work or life. Mr. Zhou took this as an opportunity to mention that he has actually won over 400 government awards. In fact, his legal work and ideas for legal reform have even received recognition from Xi Jinping, and Mr. Zhou pulled up his WeChat profile to show off a photo with President Xi in the foreground and him smiling nearby.

Conversations like the one we had with Mr. Zhou reflect an understudied perspective on the relationship between Chinese lawyers and the Chinese government. Much attention has rightly been paid to the brave activist lawyers who have wielded the law as a tool for social change and to the Chinese government’s increasingly repressive response. Showdowns with the state are not the only ways in which Chinese lawyers engage in politics, however.  

In “State-Adjacent Professionals: How Chinese Lawyers Participate in Political Life,” we focus on a group of “state-adjacent” lawyers that serve as trusted citizen-partners in governance, specifically the lawyers who have won the ACLA’s National Outstanding Lawyer Award. Our research on the 600-plus lawyers who received the Outstanding Lawyer Award between 2005 and 2014 shows that ACLA’s process typically results in the selection of a well-read, domestically educated male with strong ties to China’s bar association. Limited data on awardees’ party affiliations suggest that Outstanding Lawyers are also more likely to be members of the Chinese Communist Party.

To understand how and why Outstanding Lawyers participate in politics, we also interviewed twenty eight award-winners in four Chinese cities. We document how Outstanding Lawyers draw on their legal expertise to make suggestions to officials, sometimes through institutions such as the People’s Congresses and sometimes more informally, such as sharing opinions with officials over dinner. In addition, lawyers’ professional status helps them convince disgruntled clients to play by the political rules, and to funnel their grievances through the courts rather than protesting outside of them. We argue that this is an important form of political participation, which shows how blurry the line can be between the governors and the governed. What do lawyers get out of this type of political participation, which is often voluntary and unpaid? Although we do not discount the potential monetary and reputational benefits, we find that awardees are committed believers in gradual reform through cooperation with government officials.

Of course, there are also limits to state-sanctioned political participation. Not only are there limits on the types of advocacy lawyers can pursue, but also on who gets to participate. Like many opportunities in contemporary China, well-connected, older men are overrepresented among state-adjacent lawyers.

As the number of Chinese professionals continues to grow, will we see other types of “state-adjacent” professionals? We close with the suggestion that the answer is yes. Multiple types of state-adjacent professionals likely will participate in politics by channeling information to the government and persuading citizens to buy into government priorities.   

Find the full paper, published in The China Quaterly and available for free download via open access here.

Lawrence J. Liu is a PhD student in the Jurisprudence and Social Policy Program at Berkeley Law as well as a JD Candidate at Yale Law School. His research interests are in administrative law and regulatory politics, law and globalization, and state-society relations, with a focus on how “law” legitimizes or challenges governance efforts in contemporary China. Follow him on Twitter or contact him at ljliu(at)berkeley.edu.

Rachel E. Stern is a professor of law and political science in the Jurisprudence and Social Policy Program at Berkeley Law, where she currently holds the Fong Chair in China Studies. Her research looks at law in mainland China and Hong Kong, especially the relationship between legal institution building, political space, and professionalization. Follow her on Twitter or contact her at rstern(at)law.berkeley.edu


* Mr. Zhou is a pseudonym for one of our interviewees in Beijing.

What is behind China’s Smart Courts

20. November 2020
A new paper by Wen Xiang and Junlin Peng
 “Hello, I am a robot guide Xiaoyu. How may I help you?”
Litigation service halls of many courts in China have introduced robot guides who, equipped with knowledge on the court, legal consultation service, real-time query of case information, help reduce the service workload of staff.

In recent years, digitalization of courts has been explored actively in theory and practice in China. Mostly referring to “smart court” or “intelligent court”, the digitalization of courts means that litigation activities from case-filing, to court trials be carried out online, with the help of modern technology like big data, cloud computing and artificial intelligence. The effects of the COVID-19 pandemic further spurred the need to accelerate the digitalization of the administration of justice and streamline case handling within the sprawling court system in China. Junlin Peng and Wen Xiang ‘s latest paper in the Nordic Journal for Law and Social Research (available here) elaborates the opportunities and challenges associated with digitalization of courts and provides suggestions based on the analysis.

A large number of cases needs to be dealt with by a relatively small number of judges in China: With the rapid development of economy and a growing awareness of rights and obligations, people increasingly resort to law to solve their disputes. The notorious overload of cases and the lack of capacity inevitably affects the quality and efficiency of case-handling. Moreover, traditional ways of collecting, collating and delivering information undermine judicial efficiency. Therefore, the digitalization of courts is expected to contribute to the following: improving judicial efficiency, contributing to judicial transparency, providing convenient services and establishing judicial big data. However, challenges emerge. For instance, how to set the scope of application of technology? Do remote trials violate the Principle of Direct and Verbal Trial? How can electronic services ensure a fair procedure and the litigants’ right to know? This paper shows that some achievements have been made, but court digitalization is still in its infancy in China. It is a phenomenon where practice precedes law, which means there lacks of legislative support and legal theoretical research on informatization of courts. Technological innovations and the scope of their applications require further debate, or else will undermine the legitimacy of digital judiciary.

In particular, the following applications are observed:

Electronic case-filing

According to Article 14 of the Supreme People’s Court’s Rules on Several Issues on Case-filing Registration System, in order to facilitate litigants to exercise litigious rights, courts provide litigation services such as case-filing online systems.  So far, many courts in China have actively explored and established an E-filing system, which enables clients to conveniently file a case online. The main concern about E-filing is false litigation. Judges have voiced their concern that they cannot verify the identification of parties and censor the authenticity of litigation materials, leading to an abuse of litigation rights.

Remote trial

Legislation on remote trial is limited. Article 259 of Judicial Interpretation of Civil Procedure Law of People’s Republic of China (hereinafter referred to as Interpretation of Civil Procedure Law)  stipulates that for simplified procedures (简易程序), with the consent of both parties and permission of the People’s Court, the audiovisual transmission technology may be used to hold a court session. According to Article 73 of Civil Procedure Law, with the permission of the People’s Court, witnesses may testify through audiovisual transmission technology under the following circumstances: inability to attend court due to health reasons, traffic inconvenience, and force majeure such as natural disasters and other valid causes. However, there is no provision relevant to remote trial in Criminal Procedure Law.

At present, practices of remote trial across the country are pioneering endeavours with little legislative support and theoretical research. Practices of courts in various areas are diverse, we thus observe Jilin Province as an exampl: Jilin e-court is equipped with a cloud conference system which can be used for remote trial in case where litigants, witnesses and appraisers cannot go to the court. Before the beginning of the trial, the litigants are expected to log on to the website of Jilin e-court and enter into the cloud conference system at appointed time. The judge will initiate the cloud conference on the court intranet. There are no strict limits for the types of cases which remote trials may be used for. In practice, it is mainly applied in for simplified procedures (简易程序) and in first instance trials of ordinary and special procedures.  In addition, there is no need for both parties to reach an agreement on whether or not to conduct the trial remotely; either party can apply for a remote trial.  Thus, one party can participate in court trial through cloud conference system and the other party may go to the court to attend the trial in the traditional way.

Intelligent execution

In China, 80%-90% of the cases of judicial corruption appear in the field of execution, and 80%-90% of corruption in the field of execution appears in judicial auctions.  If the parties waive the right to choose an auction agency, the court has the right to entrust one. Driven by high commission interest, the auction agency may distribute 40% of the commission to the judge in order to be entrusted by the court.  Besides, the traditional way of judicial auction leads to a limited range of auction information dissemination, so that only a few people obtain auction information and participate. A small number of people participating in judicial auctions and a relative short auction time results in a low hammer price, which impairs the legitimate interests of the creditor and the executed person. In order to eliminate these drawbacks of traditional judicial auctions, courts in Shanghai, Chongqing and Zhejiang are actively exploring online judicial auction (E-auction).

E-auction refers to a model of judicial auction where courts can handle executable property publicly by means of online auction through an auction platform.  Among the three models courts across the country experimented with, the model where courts carry out judicial auctions directly on an Internet auction platform without the participation of an auction agency is most widely used. Since June 2012, more than 1400 courts in 28 provinces have independently conducted judicial auctions online, carrying out 250,000 judicial auctions with the value of the executed property amounting to 150 billion RMB.  According to Article 12 of Regulations on Judicial Auction Online, the judicial auction online should be announced in advance: the auction of movable property shall be announced 15 days before the auction and auction of immovable property shall be announced 30 days before the auction. To ensure bidders’ full participation in bidding, the Regulations of the Supreme People‘s Court on Issues Concerning Judicial Auction Online (Herein referred as Regulations on Judicial Auction Online) requires that the bidding time is no less than 24 hours. Judicial auction online not only lets more people participate in bidding but also furthers the transparency and justice of judicial auction. Article 3 of the Regulations on Judicial Auction Online stipulates that the judicial auction online should be open to the public on the Internet auction platform and be subject to social supervision. With the public being able to supervise the entire auction process online, doubts concerning the fairness of the auction can be eliminated to some extent.

Find the full paper here.

Wen Xiang (corresponding author) is an Assistant Professor and S.C.Van Fellow of Chinese Law at iCourts (Centre of Excellence for International Courts), Faculty of Law, University of Copenhagen. Wen Xiang was a guest lecturer at Harvard Kennedy School and a visiting scholar at Duke University School of Law. Contact him on LinkedIn.

Junlin Peng obtained a bachelor degree in law from Beijing Normal University and a master degree in law from University of Copenhagen. She attended summer school of Georgetown University and exchanged to University of Milan and University of Stockholm. Contact her at junlinpeng[at]163.com.