“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.

Economic Development through Migration: Facilitating Skilled Migration to China through the Belt and Road Initiative

5. November 2020
A new paper by Eva Lena Richter

Contributing to the “China, Law and Development” research project, Eva Lena Richter‘s latest research observes Chinese and multilateral efforts to facilitate skilled migration from Belt and Road Initiative countries to China. Since the launch of the Initiative, strengthening people-to-people ties is part of its cooperation priorities. This cooperation is established in different ways, including student and academic exchanges, research cooperation, joint vocational training, and tourism. The Chinese government is the major guiding force of the Initiative and hence also shapes how these exchanges, or rather forms of migration, develop between China and Belt and Road Initiative-countries. 

This paper (a free draft version here) looks at student, academic, and personnel mobility from Belt and Road Initiative countries to China and forms of migration and national Chinese legislation as well as efforts in bilateral and multilateral cooperation to facilitate them. Is the promise of mutually beneficial development tangible in these efforts? What role does China occupy in shaping the way migration develops along the Belt and Road Initiative? What role does Chinese skilled immigration legislation play? These are some of the questions this paper addresses. 

The findings suggest that new skilled Chinese migration legislation, geared towards foreigners with tertiary education, paired with Belt and Road Initiative cooperation efforts and visa facilitation, is opening comparatively more opportunities for skilled nationals of BRI countries. BRI nationals are more often exempt from visas and have access to targeted talent attraction and retention programs. Nevertheless, up to now, these efforts have been mainly undertaken by the Chinese government, and skilled Belt and Road Initiative nationals are not being encouraged to migrate to China under bilateral employment agreements. For now, the bulk of China’s skilled immigrants does not come from Belt and Road Initiative countries. 

Eva Lena Richter is a PhD Candidate at Cologne University’s Chair for Chinese Legal Culture and a Research Associate with the “China, Law and Development”-project, University of Oxford. She focusses on China’s legal system for skilled labour migration and efforts to attract and retain skilled foreigners in China. Get in touch with her on Linkedin.

How to Build Your Municipal Social Credit System

26. October 2020

‘The trustworthy shall roam everywhere under heaven, while those who breach trust shall not be able to move a single step’ is the underlying maxim of China’s Social Credit System (SCS) project. Taking a step closer to understand what is behind this rhetoric quickly reveals that the SCS is better to be spoken of in plural, and the initiatives proliferating under it include projects as various as commercial loyalty programs, market regulation measures, and judicial enforcement mechanisms. But what does the central government envision in terms of a comprehensive system? We may find answers by looking at how the central government organs in charge of SCS building regularly assess the progress of the pioneers, cities. This is done through quantified criteria, so called SCS Construction Assessment Indicators. They offer a rare comprehensive depiction of how the perfect municipal SCS looks like in the eyes of the central planners. Based on these criteria, Marianne von Blomberg lays out what it takes to build a municipal SCS.

The National Development and Reform Commission and the People’s Bank of China, two major players in SCS creation, annually issue assessment indicators to evaluate the progress cities make on that front. Those performing best are designated “SCS construction model cities” (社会信用体系建设示范城市). Each of the twelve indicators in every set deals with what may be understood as one construction site within the larger SCS project. This is how they work: For progress on each site, cities get points. Further, a set of “hard indicators” includes ten concrete goals “which all must be completed without exception”. They may be regarded as centrally designed manuals for municipal SCS building which are handed to local leaders.

Filling a gap between the broadly termed conceptual central documents and the orders, legislation and specifications scattered across localities and realms which each relate to one of the SCS’s many parts, they are a rare official depiction of the whole SCS which is, moreover, translated into concrete criteria.

Step 1: Build your infrastructure for credit information production & sharing

The code: Under the unified social credit code, the gathered credit information is allotted to the then credit subjects. Issuing this code to legal persons and other organizations is a first fundamental element in SCS construction that reappears in all sets of indicators with the bar to earn points being raised throughout the years.

The records: Credit information is stored in credit records (信用记录, sometimes: sincerity files 诚信档案) that are to be set up by departments in charge of more than 21 realms as various as tax collection, construction, transport, e-commerce, birth control, education and research, environmental protection, law firms and lawyers, notaries, and for civil servants. In addition, the judiciary and providers of public utilities such as water, electricity and telecommunication are to gather and share information. What amounts to credit information differs across localities and administrations, it is commonly stipulated in credit information catalogues (find an example of such a catalogue here). As of 2019, Hangzhou has collected 140 million pieces of credit information, Suzhou has collected 350 million pieces, and Nanjing 1,4 billion (Zhu Lili 祝丽丽 2019).

The platform: Such credit information, once gathered, is directly to be forwarded to the credit information sharing platform (信用信息共享平台). The indicators of 2016 were the last to ask for the creation of such a platform, it was in the following years treated as given prerequisite. Its vital role in the system is illustrated by the fact that approximately one fourth of all points can only be attained if the platform is constructed. One indicator reads: “0.5 points are deducted for every city-level unit that is not connected to the credit sharing platform and sharing their information”. However, the experience of SCS construction model city Zhengzhou shows that linking up the platform with the sources of information such as administrative departments and providers of public utilities is a significant challenge.

Step 2: Make trustworthiness records the basis for decision-making in public administration

Joint reward and punishment: Joint reward and punishment (联合奖惩) refers to the realization of punishments and rewards in one realm to those entities who have been enlisted for trust-breaking or exemplary trustworthy behaviour in another realm. The ban to book high-speed trains for those who have defaulted on court judgments is an example. Joint reward and punishment was, upon the announcement of the first batch of model cities described as the “ring in the bull’s nose” of SCS construction, that, if being taken care of, will “cause all smaller things to follow.” Correspondingly, it has steadily gained importance in the indicators: 11% of all points in 2017 are to be achieved by implementing joint reward and punishment, jumping to 21% in 2018, and to 22% in 2019. Cities can gain points for example for each case where joint punishment was meted out against a trust-breaking entity or where benefits materialized for the red-listed, as well as for institutionalization of joint reward and punishment, meaning its integration in information systems and work procedures. Hard indicator 11 requires that “the number of realms where the city implements joint reward and punishment is not less than the respective number of realms at national level”.

Regulation by credit classification (信用分级分类监管) refers to adjusting the intensity of market regulation measures, such as random inspections, to the credit status of the relevant subject. Regulation by credit classification is on the ascendant, with a rise in proportional value within the respective sets of indicators of 9%, to 17%, to 22% from 2017-2019. This “novel type of regulation” is not only overhauling traditional market regulation but increasingly a tool for administrative agencies concerned with other realms. Since 2017 it has been woven into other indicator groups such as commercial sincerity, social sincerity and judicial credibility construction.

Step 3: Foster a market for credit products for individuals that make use of public credit information

A score: A municipal social credit score is to be set up for the respective city’s residents using their social credit information (this is what in Hangzhou is called the Qian River Score, in Fuzhou the Jasmin Score, in Suzhou the Osmanthus Score, etc). Through the “credit+ programs” enumerated below, public credit information translated into the score indeed follows a subject into numerous areas in daily life- in a rewarding manner.

Credit+ programs: Integrating market forces has helped to develop credit products that are to be used by local administrations in their daily work so that social credit information directly impacts how convenient a citizen’s everyday life is. In the 2017 indicators still vaguely termed “sincerity conveniences in public service”, the concept has matured into fully-fledged programs such as “credit easing procedure” (信易批) in the course of which administrative agencies tolerate the lack of secondary documents when proceeding requests of high-scorers. Likewise, “internet+credit+medical treatment”, “internet+credit+elderly care”, “credit easing transport” and “credit easing loans”, to name just a few of those programs enumerated in the latest set of indicators, allow high-scoring subjects certain privileges such as fast track handling of paperwork at hospitals.

Step 4: Equip your SCS with remedial paths- or don’t

From a legal point of view it appears striking that the objection procedures laid out at some length in province-level social credit regulations and recently reemphasized by the latest central level SCS guideline are not mentioned throughout the indicators. A careful deduction we can draw from that and the fact that the author could not yet find legal cases involving relevant provisions is that the focus of municipal SCS building lies on pushing forward the system’s coverage first.

Credit Repair: Not strictly speaking a remedial measure, credit repair (信用修复) refers to a procedure with the help of which credit subjects can have unfavourable credit information deleted and relevant punishment halted. They are required to eliminate all damages caused by their “untrustworthy” behaviour, or where that is not applicable, undergo “credit repair trainings”. The indicators award points to cities for cases of successfully completed trainings (possible in online formats and without final exam, making them easily circumventable) and the de-blacklisting of entities as a result of such.

Step 5: Make sure your city has a sound financial environment

Interestingly, the indicator on constructing a trustworthy financial eco-system seems to be standing on its own- other than the other indicators, it makes no mention of the credit sharing platform, blacklists, credit records, regulation by credit classification or other central SCS tools. Instead, points are given to cities on the bases of whether normatively, the level of trustworthiness is high. For instance, where no significant regional financial risk has occurred, the 2019 Indicators award two points. While most of the indicators seek to have a system of dealing with specific trust-related problems set up, the indicator on the financial eco-system is less concerned with SCS infrastructure building, but with the greater goal to achieve a more trustworthy financial environment. Further, this indicator alone is to be evaluated not by the assessment groups that handle the other indicators but by the PBoC alone.

Extras

Political ideology: It is less helpful for municipal SCS designers aiming for the title of SCS model city to put much effort on living up to political rhetoric. While the indicators do mention the ubiquitous Xi Jinping Thought, implementing the CPCCC’s and the State Council’s directives on the SCS (all eleven of them which are enlisted, translations here), and Socialist Core Values- The relevance of these elements in relation to the other indicators shrank from 11% in 2017 to 8% in 2018 and 2019, the 2016 indicators and the hard Indicators do not mention them at all.

Innovations and making use of local specialities: Notably, not even this indicator that explicitly encourages experimentation and lists examples mentions the application of AI and other technology that is frequently associated with the SCS. Indeed, the most high-tech element the indicators lay down is the building of the information sharing platform and credit websites. Most technological innovation for municipal SCSs appears to happen within the private sector: Cities gain points for fostering a market of credit products. How such products may eventually be “incorporated” into the larger, centrally driven project was demonstrated in early 2018: The PRC’s first credit scoring services that were given licenses to experiment with their products did not get the license in the end but were made minority shareholders of one PBoC-lead Credit Scoring entity called Baihang Zhengxin (百行征信, the whole story).

Marianne von Blomberg is a PhD Candidate at Zhejiang University’s Law School and Cologne University’s Chair for Chinese Legal Culture and working as a Research Associate with the latter. She is particularly interested in the intersections of the law and social credit and recently focuses on reputational sanctions within the Social Credit System. Get in touch with her on LinkedIn or follow her on Twitter.

Chinese Legal Professionals and Gender Equality

20. October 2020
A new paper by Helle Blomquist
Fading propaganda: “Raise Women’s Status” (tigao funü diwei), spotted in Chaoxing, Zhejiang Province

The notorious gap between socialist ideals of gender equality on the one hand, and the patriarchal reality in the People’s Republic on the other has not been bridged by economic development: Particularly when it comes to political participation, women remain underrepresented. In a small but insightful case study (PDF available here), Helle Blomquist asked in how far legal professionals may play a helpful role to end the severe gender inequalities in Chinese society.

My case study in a Chinese provincial city has given me hopes for the Chinese legal profession and its work for the advancement of gender equality as a value in the modern Chinese state. If gender equality is a goal, lawyers in China may facilitate progress towards this goal in the Chinese population. They may accomplish this through communicating values of gender equality to their clients and thereby presenting feasible options that empower women. In doing so, they function as intermediaries between the modern state with a Marxist ideology of equality and a population with traditional values.

Why is this interesting? Over the years, Western Chinese studies have shown that even though the Chinese government has implemented laws to advance equality, culture has been a drawback. Equality is part-and-parcel of Marxist ideology, as Simone de Beauvoir’s works demonstrates. However, the cleavage between the high-flying Chinese government policy and a traditional population in some cases is too wide. The main finding from my case study points to legal professionals as a ‘missing link’ to bridge this cleavage. Their function however may depend on their individual awareness of their role, their support of gender equality, and their position vis-à-vis the state and party.

The professionals had varied positions: one law professor, a judge, a practicing lawyer, and two project workers. The law professor runs a legal clinic, where she influenced her students and suggested solutions for the clients seeking advice to solve their legal conflicts. The project workers aimed to empower villagers to organize. Both, the project workers and the law professor found solutions for their clients, based on the law and advancing the maximum of equality within the law. They planned their consulting sessions in a way that would encourage women to seek their own solutions and investigate their rights under the law rather than resorting to traditional mechanisms. The judge decided on divorce cases and she had the same aim, but saw herself limited by the law. The practicing lawyer represented clients at court in criminal and commercial cases. He also communicated gender values, even if more traditional ones. A reaction from a law student demonstrated that this made an imprint on her, thereby demonstrating that communication of values matter, in the case of the practicing lawyer the effect would more likely advance barriers against gender equality.

This brings me to the drawbacks I found. Firstly, the bias of the legal professional may influence the values communicated, independent of government policy. Other drawbacks are more subtle. In analyzing them, I drew on classical sociological theory, namely Talcott Parsons’ idea of malfunctions. The legal professional may be under pressure from the state, as for instance the judge in my sample, and in this resort to formalism that will impair her ability to communicate equality. The project worker may identify with his or her clients and exaggerate the client’s case. A practicing lawyer may be likely to adopt a position of self-interest and try to act as gatekeeper to the profession.

A case study cannot reveal anything concerning the extent of the findings, of course. I conducted my study in a single city at a specific time. The practice I detected may change, and it may turn out differently in other cities and government policy and pressures may change. However, my case study showed a potential. 

You may find the whole paper, as published in the Naveiñ Reet, Nordic Journal of Law and Social Research (NNJLSR), No. 9, 2020 here.

An Experimental Regulatory Approach to Encourage Open Public Data: A Chinese Experience

9. October 2020
A new paper by Cancan Wang and Kalina Staykova
SODA (Shanghai Open Data Apps), started in 2015, is one of the first open public data initiatives in Shanghai that encourages the opening of public data. Source: http://soda.data.sh.gov.cn/

Open public data, as a philosophy and a set of policies for increasing the access and use of the dataset of public bodies, has been advocated and implemented across the globe for its promise of increased public accountability among other benefits. Nonetheless, it is often neglected that public accountability is a desired, but not a guaranteed outcome.

Since the first attempt in Shanghai to broaden public data access in 2011, open public data initiatives have witnessed rapid development but also pushbacks from local municipalities and departments, among which lack of willingness in participation and low data quality are the two primary challenges to realize the benefits of local open public data initiatives. As a countermeasure, the local regulators of open public data initiatives in Shanghai have experimented with a novel approach, building on the assumption that the perceived risk of liability in disclosing data is a key barrier for the local municipalities and departments to engage actively with open public data.

In our paper “Decoupling Accountability and Liability”, published recently in Naveiñ Reet: Nordic Journal of Law and Social Research (PDF here), we explore this novel regulatory approach by looking into the recently announced Interim Measures for the Opening of Public Data in Shanghai and the context of their emergence. By unfolding the local regulators’ accounts of the development of the interim measures, we explore: how can interim regulatory measures reduce the perceived risk of liability among public bodies and contribute to accountability of open public data initiatives?

Our findings show that the adopted interim measures have managed to provide both clarity and flexibility to open public data entities, when it comes to opening their data. In particular, the measures institutionalized the roles and responsibilities of these entities by specifying the different categories in which they can be categorized and outlining clearly their specific duties and the circumstances under which they can incur liability. At the same time, due to their interim nature, the measures allowed for certain level of flexibility as they can be easily amended in case they are not optimal. This experimental approach towards regulating open data, which relies on interim, yet specific measures, reduces the legal uncertainty, which open public data encounter when opening their data sets. Thus, they potentially contribute to increased accountability.

In our paper, we also discuss the appropriate level to regulate open data initiatives, an issue which has implications for the ability of the legislators to achieve both, clarity and flexibility of the measures. While the majority of the measures on supra-national (e.g. European Union) or national level remain somehow general and lasting for the foreseeable future, we argue that they cannot substantially reduce the legal uncertainty experienced by public entities, which remain unwilling to participate fully in open data initiatives. In our research, we emphasize the importance of local legislative initiatives to achieve the necessary specificity of the measures, while also ensuring that they remain flexible enough.

The paper is available as a free PDF here.

Cancan Wang is an Assistant Professor at the Department of Business IT, IT University of Copenhagen, Denmark. She was trained in sociology, ethnology and information systems. Her current research interest lies in the sociomaterial development (e.g., governance, regulation, and organizational arrangements, etc.) of public digitalization (e.g., open data, artificial intelligence, social media, etc.). Feel free to contact her at cawa@itu.dk or over LinkedIn.

Kalina Staykova is an Assistant Professor at the Department of Digitalization, Copenhagen Business School, Denmark. She was trained in information systems, inter-national law and management. Her research investigates broad range of issues related to digital platforms (e.g., design, adoption, monetization, regulation, etc.) in various contexts (e.g., digital payments, e-commerce, open data, etc.). Contact her at kss.digi@cbs.dk or find her on LinkedIn.

With a “Pluralized” Approach Towards Predictive Policing

24. September 2020
A new paper by Daniel Sprick

Public security forces in the PRC push for an ‘informatization (信息化)’ of their work, and increasingly apply analytical techniques for not only solving past crimes but also preventing future crimes. Such measures are far-reaching and part of a highly integrated framework which, according to Xi Jinping, is part of a larger policy approach for which his administration coined the phrase ‘social governance (社会治理)’. More and more different policy fields are drawn into what has been described as a ‘pluralization of security work’.

While there is still no nationwide program or concept for predictive policing in China, there are however local projects that make use of analytical data technology (e.g. in Zhongshan, Guangzhou and Hangzhou, Zhejiang) and several specific crimes (e.g. drug-related crimes and telecommunication fraud) are targeted by predictive policing measures in China. Additionally, the pervasive surveillance of the entire (Muslim) population in Xinjiang produces high volumes of data that are used for operational purposes in China’s ‘People’s War against Terror’. Daniel Sprick‘s latest paper in the Nordic Journal for Law and Social Research (available for free here) asks: Can China overcome the problems and drawbacks frequently discussed in the context of predictive policing in general?

In his paper, Daniel Sprick gives an overview of ongoing predictive policing programs and related technology- and data-driven undertakings of the Chinese security apparatus in the context of China’s comprehensive approach towards maintaining order. Based on these observations, he analyzes China’s potential for an effective predictive policing by scrutinizing the availability of possible solutions for the inherent flaws of predictive policing that are frequently conceptualized in the existing English-language literature on the matter.

He finds that it is the propagandistic value of predictive policing, promising fairness and justice to be the single most important end possibly even unsurmountable obstacle in establishing an effective crime reducing system of this kind in China. The Chinese security apparatus appears systemically unfit to critically evaluate, acknowledge error, re-adjust methodologies and adapt responses, which is an indispensable process in making predictive policing work. If predictive policing is seen as an instrument to further target specific (dissident) groups however, China may be able to successfully employ Big Data technology for this particular objective, “It is however not conceivable that this technology will substantially change police operation and police culture in China, it will rather amplify pervasiveness and bias of its practices.”

The paper is available here.

Daniel Sprick is an Associate Researcher and Lecturer at University of Cologne’s Chair for Chinese Legal Culture. He has publicized widely on law and criminal justice in China. Find out more about his work and get in touch with him here or on LinkedIn.

Smart Courts: Vehicles for Genuine Judicial Reform?

31. August 2020
An analysis by Straton Papagianneas

The automation and digitisation of justice (司法信息化 ‘judicial informatisation’) in China has been ongoing for two decades. The latest development is the emergence of “smart courts” (智慧法院), which are part of the Chinese party-state’s efforts to reform and modernise its administration of justice and governance capacity. The advent of Smart Courts is an example of the willingness of the party-state to harness new technologies for its governance reform goals. However, the academic reaction has not been uniformly enthusiastic; there is scepticism about the benefits of increased automation and digitisation. Straton Papagianneas explores the phenomenon in the course of his PhD at Leiden University. In this post he sets out to map the academic reaction to some of the smart courts’ implications among Chinese scholars.

Chinese scholarly work has traditionally been a neglected group in academic discussions, including in the English-language literature on automated and algorithmic justice, whereas the latter is thoroughly cited and discussed by Chinese scholars. However, China is at the vanguard of judicial automatization and digitisation. The implications of its development can certainly be useful for other jurisdictions. Therefore, their academic discussion deserves attention.

A Brief Introduction to Smart Courts

The definition of a “smart court” is difficult to capture, partly because different courts use different technologies. Among the different official definitions, the clearest one, from the 2017 New Generation AI Development Plan (2017 AI Plan, translation here), states that a court can be considered ‘smart’ if it has a:

“[…] courtroom data platform that integrates trials, personnel, data applications, judicial disclosure, and dynamic monitoring, and promotes the application of artificial intelligence in evidence collection, case analysis, legal document reading and analysis; realising a smart court trial system and smart trial capacity.”

A smart court is not necessarily a court where everything is completely automated, with a self-learning ‘robot judge’ adjudicating over cases independently from any human interference. It is a court where judges use software applications to conduct the judicial process in a digital environment. ‘Intelligent legal applications,’ that is, applications that can render expert legal advice or decision making based on big-data analytics and without human interference, are still limited (Sourdin, 2018).

Central to the smart court is the human-computer interaction that results from integrating different technological applications supported by algorithms and big-data analytics into the judicial process. These applications range from systems that can automatically prompt similar cases as a reference for judges, to systems that can process and cross-examine all collected evidence, to ones that can automatically detect contradictions or relevant information for the judge to review (Cui, 2020). Ultimately, it is still the judge that adjudicates, albeit with the aid of technology.

Following the 2017 AI Plan, there are different degrees of smart courts. Some are more ‘intelligent’ than others. For example, there are three types of Internet Court, in Beijing, Guangzhou, and Hangzhou. These courts provide full online dispute resolution for limited types of e-commerce disputes (Xu, 2017). All activities, from the filing of a case through to the enforcement of a judgment, can be conducted online, with litigating parties and the judge all connecting remotely.

It is only later that these Internet Courts progressed to a ‘higher’ level of intelligence. Recently, the Hangzhou Internet Court introduced an AI judge that can take over simple functions during online court trial hearings, thereby assisting human judges, who still monitor the proceedings and make the final decision (Mei, 2019). According to its 2019 White Paper, the Beijing Internet Court developed an intelligent judgment generation system that is able to automatically generate standard instruments, as well as judgments, rulings, and settlements.

Hangzhou, where the PRC’s first smart court was established in 2017

Their Purpose

The 2017 SPC Opinion on Accelerating the Building of Smart Courts (translation here) explains that the purpose of judicial informatization and smart courts is to achieve the following judicial reform goals of making the judiciary more efficient and improving its transparency, consistency, and even autonomy from unwanted internal and external interference.

Remarkable is that technologies are treated almost like a ‘cheat code’ to bypass genuine, structural reforms, which requires an internalisation of norms and changes in behaviour that take a lot more time and effort. Introducing applications that force behavioural change is easier.

However, Chinese scholars are less confident. Smart courts and judicial informatisation are primarily framed as set to improve judicial efficiency and consistency. The advantages can be considered as evident, yet a review of the literature shows that there are doubts they can help achieve the ultimate aim: namely restoring the faith in and credibility of justice.

Efficiency

Efficiency (more output for less input) is low-hanging fruit and is therefore often mentioned as one of the advantages of these smart systems. Automation and digitisation will make the judicial process run smoother and faster, at a lower cost. In general, the efficiency benefits of judicial informatisation are left unquestioned (Guo 2017; Pan 2017; Qian 2018).

Chen and Sun (2019) show that digitisation has only gone so far, and that many judicial institutions have developed isolated data-silos. Many judicial departments have their own databases, but due to secrecy requirements, this data barely moves around between judicial organs. Additionally, for the data to be useful it still needs to be manually selected, cleaned, interpreted, and then finally labelled; increasing the workload of judicial officers after a case is done.

However, Wang (2019) notes that this efficiency discussion is only relevant for ‘traditional technology’, whereas smart technology driven by algorithms and big-data analytics are aimed to achieve much more, such as more accountability, more consistent adjudication, better monitoring and supervision of cases etc. The implications go far beyond an expedited judicial process.

By equivalating efficiency with “a more just and fairer judiciary”, reform goals of a more abstract level are implicitly achieved despite not being explicitly addressed. Technology is not a ‘magic weapon’ that will suddenly help achieve, for example, judicial credibility and fairness. An efficiently automated judiciary, does not, in and of itself, constitute a credible and just judiciary.

Consistency

A major issue plaguing the Chinese judiciary has been inconsistent adjudication, caused by the relative vagueness of laws and different interests trying to influence the judicial decision-making process to the detriment of consistent application of law (Ahl, 2019; Ng & He, 2017). Alongside previous judicial reforms (Ahl, 2014; Ahl & Sprick, 2017), smart courts are expected to enhance consistent adjudication or “similar judgments in similar cases” (同案同判).

Judicial databases feed into applications that conduct big-data analyses to provide adjudicating judges relevant references, or warn them that their judgment is deviating too much from the average judgment of previous, similar cases. Consistency is thus achieved, partly through automation, but also through the supervision of adjudication judges by these applications.

This has worried scholars. Technology should not be more authoritative than the human judges themselves (Y. Liu, 2019). Substantive justice is related to considering the unique circumstance of a case. Automated systems cannot maintain this balance between staying consistent while also considering unique factors. This is only something that human judges with sufficient judicial discretion can achieve. ‘Prefab’ judgments via nearly automatized decision-making would severely damage this (Pan, 2018)

Sun (2019) and Wang (2019) foresee the end of judicial discretion by this fully technologically embedded judicial process that minimises human interference. Judges would become screening bureaucrats that only concern themselves with inputting the right information in the automated system and reviewing its output.

The judicial system risks surrendering its power to technology, shifting the nexus of decision-making power to technical expertise. Judicial pluralism will be endangered by an exaggerated focus on uniformity and automation (P. Liu & Chen, 2019).

This can lead to ‘technological alienation’. Litigating parties can become frustrated by rigid automated system deciding over their cases, subverting the reform goals of restoring judicial credibility and faith (Jiang, 2019; Y. Liu, 2019).

Technology is being heralded as the bringer of a modern, efficient, and consistent judiciary. While this might be the case in most instances, a review of the literature shows the other side of the medal: The instrumental gains of judicial informatisation are no guarantee for a fairer and more credible judiciary.

What is clear from the literature is that judicial automation and digitisation needs to be accompanied by genuine reforms. ‘Cheating’ only gets one so far.

Straton Papagianneas explores China’s smart courts in the course of his PhD at Leiden University. Under the supervision of Dr. Rogier Creemers, he is part of the project called “The Smart State: Law, Governance and Technology in China”. Find him on LinkedIn here and follow him on Twitter.

Ahl, B. (2014). Retaining Judicial Professionalism: The New Guiding Cases Mechanism of the Supreme People’s Court. The China Quarterly, 217, 121-139. doi:10.1017/S0305741013001471

Ahl, B. (2019). Judicialization in authoritarian regimes: The expansion of powers of the Chinese Supreme People’s Court. International Journal of Constitutional Law, 17(1), 252-277.

Ahl, B., & Sprick, D. (2017). Towards judicial transparency in China: The new public access database for court decisions. China Information, 32(1), 3-22. doi:10.1177/0920203X17744544

Cui, Y. (2020). Artificial Intelligence and Judicial Modernization. New York: Springer Publishing.

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