European Chinese Law Research Hub

Merger Control with Chinese Characteristics?

28. December 2022

A paper by Alexandr Svetlicinii

The headquarters of Tencent Holdings, which has seen several attempted mergers blocked by antitrust regulators in recent years. ^{Photo by laboratoriolinux}

Besides its significant role in international trade and investment flows as an economic powerhouse, China has also become an important jurisdiction in terms of competition law enforcement. While application of the Anti-Monopoly Law (AML) to commercial activities of domestic companies has important repercussions for their market conduct abroad, the enforcement of merger control directly affects multinational companies, which, due to their business presence in China, have to notify their mergers and acquisitions for clearance by China’s competition authorities.

Like numerous other jurisdictions, China applies its merger control to those transactions by multinational companies where the parties have substantial business presence on the Chinese markets expressed in terms of the realized turnover. It embraces the “effects doctrine”, meaning that it applies merger control extraterritorially “to monopolistic conducts outside the territory of the People’s Republic of China, which serve to eliminate or restrict competition on the domestic market of China.” As a result, even a merger of two foreign companies would have to obtain clearance from the Chinese competition authorities provided the turnover-based notification thresholds are reached.

In competition law scholarship, the narrative is strong that China’s merger control converges with that in Western jurisdictions, as it, too, applies economic analysis as a core basis for merger review and enhances procedural safeguards to protect the rights of the merging parties, increasing legal certainty of merger assessment. The Chinese merger control authorities have been frequently labelled as “young,” “unexperienced” or lacking necessary human resources to achieve a more technocratic enforcement of merger control rules. Despite the intentional choices of China’s legislators and regulators to design and implement its merger control regime with “Chinese characteristics”, Western academic literature is abound with hopes for further international convergence.

One of these “Chinese characteristics” was the initial distribution of the AML enforcement competences among three institutions: the National Development and Reform Commission (NDRC), the Ministry of Commerce (MOFCOM), and the State Administration for Industry and Commerce (SAIC). This distribution of AML enforcement powers renders China’s competition law system unique as in most jurisdictions, competition enforcement powers are entrusted to a single competition authority. The NDRC was authorized to enforce the AML against price-related anti-competitive practices, SAIC was responsible for prosecuting non-price-related infringements, while MOFCOM assumed the responsibility for merger control. Despite its extensive expertise on matters related to international trade and foreign investment, MOFCOM had considerably less knowledge and experience with the functioning of the Chinese domestic markets, compared to the other two anti-monopoly enforcement authorities. MOFCOM was relieved of its responsibility for enforcing merger control under the AML in 2018, when the State Council moved to centralize AML enforcement under a single institutional roof by establishing the State Administration of Market Regulation (SAMR). The Anti-Monopoly Bureau of the MOFCOM subsequently moved to SAMR. Finally, in 2021, China separated its competition authority into an independent Anti-Monopoly Bureau (AMB) that was elevated from the rank of a department within SAMR to a deputy ministerial-level agency. The AMB fully absorbed the merger control department of the SAMR.

While national competition authorities in many jurisdictions have to ensure that their merger decisions contain sufficient reasoning in order to allow for a meaningful judicial review, that is not the case in China. Practitioners frequently note the lack of transparency on the part of the MOFCOM and consider the published decisions of little instructive value for the legal and business strategies of the merging parties. The lack of clarity appears intentional since it increases the de facto discretion of the competition authorities in identifying their concerns and encourages merging parties to engage in negotiations to find the acceptable remedies. Furthermore, unlike other areas of AML enforcement, courts have virtually not played a role in clarifying merger control concepts. As a result, the interpretation of merger rules has been entirely in the hands of the enforcement authorities.

During 2008-2013, out of 750 notifications by AML enforcement agencies, only 57 (8%) concerned transactions involving exclusively domestic companies. This led to the impression that China’s competition authorities intentionally target foreign companies in their merger review. However, instead of focusing on whether China’s merger control deliberately discriminates foreign firms, it would be more relevant to discuss how effective or relevant merger review is for domestic enterprises. One of the reasons for the absence of domestic-to-domestic mergers from the “problematic” cases where mergers were prohibited or cleared with conditions has to do with China’s market structures. In those markets where there is no monopolistic or dominant state-owned enterprise (SOE), the market shares of the parties tend to be rather small, concentration ratios are relatively low, and intended concentrations won’t have significant effects on competition. Due to their importance for the Chinese economy, although the consolidations of the Chinese SOEs were regarded as concentrations of undertakings and fell within the scope of merger control, once the government announces the reorganization of the relevant SOEs, the respective merger clearance of MOFCOM/SAMR remained a formality. While several high-profile SOE mergers passed the merger review, there are numerous instances where SOEs have omitted to submit their merger notifications and were fined with a penalty of up to CNY 500,000. This fine however is unlikely to serve as a sufficient deterrence. Therefore, although formally the merger control rules under the AML are applicable to foreign and domestic companies alike, the merger review was used more assertively in relation to foreign companies as such entities are not state-owned or regulated by means which the Chinese authorities normally use in relation to domestic market players.

Our study of China’s merger control enforcement is based primarily on conditional clearances and prohibition decisions since the AML does not require publication of unconditional clearances. Attempts to screen conditional merger decisions for factors that have been actually considered by MOFCOM/SAMR during the merger assessment process produced only anecdotal evidence. On the other hand, the formulation of merger remedies can serve as a litmus test for assessing the convergence, or lack thereof, between the Western-style, primarily economics-based merger control regimes and China’s sui generis merger control system.

It was widely noted that the most apparent divergence with Western jurisdictions consists in China’s competition authorities’ preference for behavioural remedies. Unlike the structural remedies that preserve market structures by separating certain business units from the control of the merging parties (mainly through divestitures), behavioural remedies allow the competition authorities to shape the specific commercial practices (price levels, sales volumes, market expansions, supply to certain customers, etc.) of the merging parties even after the merger is completed. Behavioural remedies (purely behavioural remedies) were imposed in 40% of cases and hybrid (structural and behavioural) remedies in 25% of cases. The maintenance of behavioural remedies represents a significant interference in the merging parties’ business activities.

For example, in the 2014 Microsoft/Nokia case, MOFCOM used behavioural remedies to ensure that the standard essential patents held by the merging parties would be licensed on FRAND (fair, reasonable, and non-discriminatory) terms. The competition authority has justified its decision by the prevention of possible abuses of patents that may occur post-merger. In another 2014 case, Thermo Fisher/Lifei, the acquiring company was required to lower the China market list prices for its products in the next ten years and not to reduce the discount offered to Chinese customers. Another example of a behavioural remedy is the requirement to notify and ask for permission the competition authority in China about any further expansion of the merging parties’ business.

The present study of China’s merger control legislation and enforcement records demonstrates that while formally following the widely accepted competition harm theories, the significant discretion of the merger control authorities results in a limited degree of predictability in merger assessment. With regard to the nationality of the merging parties subjected to prohibitions or imposition of remedies, enforcement statistics suggest that China’s merger control enforcement is applied more assertively in relation to foreign companies.

The paper China’s Merger Control: Competition Assessment or Foreign Investment Screening? was published in the KLRI Journal of Law and Legislation. Alexandr Svetlicinii is Associate Professor at the University of Macau, Faculty of Law where he also serves as the Programme Coordinator of Master of Law in International Business Law. He is the author of the monograph Chinese State-Owned Enterprises and EU Merger Control.

Conjuring up Equality Rights? How China’s Statist Approach Fosters in an Emerging Global Regulatory Patchwork of Online Hate Speech

3. December 2022

A paper by Ge Chen

Definition by Chenchen Zhang (2017). Censorship on the Chinese internet often stops short of regulating the slander of those labelled as Baizuo.

Hate speech has almost never been a major legal issue in China. It is not until very recently that the need to regulate online hate speech as a criminal offence attracted more attention from legal scholars. On the plane of governance, the problem of potential tensions between different nationalities, religions, genders and perhaps regions is a politically sensitive item, albeit far from being the most sensitive one that triggers the nerve of the ruling party. In most cases, such potential tensions are glossed over either by the work of the “United Front” or by media censorship. Due to the prevalence of the authoritarian, Confucianist, and Great-Han culture, those tensions are likewise often ignored by many ordinary Chinese: in their eyes, such issues range from being petty and unimportant to non-existent. After all, highlighting those issues marks profound deviation from a “harmonious” society in Confucianist illusion.

Yet those tensions do exist as in any other society. And speech expressive of hatred and resentment of anything in those categories is ubiquitous in China – online or offline. The reason why hate speech is neither a legally defined term nor anywhere properly regulated in Chinese law is that hate speech is simply ranked very low among various types of political speech in a highly authoritarian system of speech regulation. Where political speech lacks real constitutional protection, hate speech will not even be recognised as such. However, speech regulation is real and, by its very definition, hate speech does fall sometimes into the purview of such regulation. One of the main legal sources that captures hate speech regulation is China’s Criminal Code (Arts. 249 & 250). Other recent sources include numerous administrative regulations on publication as well as the new Civil Code (Art. 1183).

The reason why hate speech is neither a legally defined term nor anywhere properly regulated in Chinese law is that hate speech is simply ranked very low among various types of political speech in a highly authoritarian system of speech regulation.

Importantly, this emerging patchwork of hate speech regulation looms large amid a bunch of new online hate speech regulations in liberal democracies, where the constitutional protection of free speech is sacrosanct but may be circumscribed by equally important priorities. The constitutional and legal contours of speech protection and regulation, however, are at variance among those countries, and distinctly so between the US and Europe. At any rate, equality concerns are a rising factor that could puzzle even lawmakers and courts when it comes to a potential conflict between freedom and equality. So far the regulation of online hate speech has been a topic of controversy among politicians, lawyers, activists and media. While many are zealous followers of, say, minority protection and gender equality, others cast doubt on the overemphasis on equality-related considerations that could buttress authoritarians’ “benevolent violation” of personal freedom – here, in particular, freedom of expression.

Thus, it is highly interesting to look into the regulatory area of online hate speech through a comparative lens. Can those rising equalitarian considerations in the constitutional regulation of hate speech lend a hand to an authoritarian regime in legitimising its legal technique of restricting political speech in a more nuanced, less noticeable manner? At least, the notice and takedown regime is highly identical to that in western hate speech laws such as the German Network Enforcement Act (‘NetzDG’). But there are more advanced restrictive measures of political speech such as a manipulated campaign of unleashing hateful speech against liberalism itself. A leading example is the online, public disparagement of “White Left” (baizuo) which has had impingement on any liberal-minded speakers that may articulate their criticism of the mainstream ideologies or governance models.

This paper explores this unique pattern of regulating online hate speech in alignment with the prevailing regulatory framework in Europe and the US. The paper analyses the emerging regulatory patchwork of hate speech regulation in China which builds on the regulation of political speech in China and addresses the ways in which European and US approaches have informed Chinese law, though the latter are used in different ways within an authoritarian constitutional order characterised by demoralised pragmatism and interest-driven administrative law. The paper develops a case study of the disregulation of “white-left” commentators (deemed to represent Western liberalism), which raises questions about the connection between support for particular modes of regulation against the background of a particular political system, with differing roles for the state, private actors, and media organisations.

The paper “How equalitarian regulation of online hate speech turns authoritarian: a Chinese perspective” was published in the Journal of Media Law. Ge Chen is Assistant Professor in Global Media & Information Law at Durham Law School. His main research interest is free speech in international and comparative perspectives. He was postdoctoral research associate and remains associate of the Centre for Intellectual Property and Information Law at the University of Cambridge. He was resident fellow (Fulbright nominee) and remains affiliated fellow of the Information Society Project at Yale Law School. He was Visiting Academic of the Programme for Comparative Media Law and Policy at the University of Oxford. He is the author of Copyright and International Negotiations: An Engine of Free Expression in China? (CUP 2017), a research monograph featured in Harvard Law Review.

China’s Constitutions: Past and Present

6. November 2022

A paper by Leigha Crout

The 1954 Constitution was drafted under the leadership of Mao Zedong in this house near the West Lake in Hangzhou. Today it hosts China’s first Constitution-themed museum and is a popular “red tourism” destination. ^{Photo by Siyuwj, licensed under CC BY-SA 4.0}

The Constitution in the People’s Republic of China (the PRC or China) has experienced a modern revival under the Xi administration. Both the Communist Party of China (the CCP or the Party) and state leaders have called upon the nation to rely upon the guiding force of the Constitution and its laws in recent years and to adopt Xi Jinping Thought on the Rule of Law (习近平法治思想) in enforcing legal mandates. However, it is also clear that this new emphasis on constitutional law – and by extension, constitutionalism – excludes some of the ideas traditionally associated with a constitutionalist state.

Core facets of constitutionalism, including judicial independence and the separation of powers, are notably absent in its new and contextualised version in China. This is best represented in the adoption of the 2018 Constitutional amendments, which eliminated term limits for the state’s highest offices (one of few procedural limitations consistently enforced by China’s leadership), equated the ‘leadership of the Communist Party of China’ with the founding ideology of the nation, and further blurred the boundaries between Party and state governance. Now, it seems China’s leadership has embraced a political-style constitutionalism that relies on the leadership of the Party as the real or ‘living constitution’ of the nation.

Adopting a historical perspective, this paper analyses the development and progressive implementation of China’s four constitutions, using three interrelated frames – ideology, text, and judicial implementation – as a metric for determining how the theoretical footholds of this new ‘constitutionalism’ within China developed over time.

This work begins with an overview of the competing legal philosophies that influenced dynastic China and preceded the development of the state’s first constitution. Two polarised conceptions of law predominated – Confucianism, which emphasizes social rules and the maintenance of harmony, and Legalism, an ideology that presupposes humankind to be cruel and generally unlawful. Whereas Confucianism would eschew formal institutions for the resolution of conflict as disruptive to social order, Legalists preferred a strong administration, detailed edicts and harsh penalties for violations of the law. Both philosophies, though seemingly contrary, continue to exert great influence on governance in modern China; for example, Xi Jinping is well known to cite the Confucian classics in his speeches, while encouraging the development of a ‘legalistic’ administration.

The form and content of most of these documents traced the historical political trajectory of the state. The 1954 Constitution, for instance, was a product of the Communist Party’s victory in the Chinese civil war and the nation’s then-strong alliance with the USSR. The text supported the supremacy of the vanguard party and included a stronger program for collective entitlements and responsibilities of citizens. In terms of judicial enforcement, this text was explicitly excluded from the courtroom in a communication from the nation’s highest court (the Supreme People’s Court) to a lower court, in confirming that the Constitution could not be cited in criminal matters.

The short-lived 1975 Constitution reflected a turn within the Mao Zedong era – the Cultural Revolution, a national movement which endeavoured to ‘cleanse’ the nation of its traditionalist past and Western influence to form a new Communist revolution for its people. Alongside many of the nation’s historical relics, the legal system was fundamentally hollowed out during this time as lawyers and judges were detained, disappeared and sent to labour camps or re-education facilities. Judges held court on limited matters, primarily on divorces or important criminal cases. In many ways, China is still recovering from this generational loss of its legal profession. In its text, the Constitution reserved absolute authority for the CCP. While different branches of the government were maintained, all were required to express deference to the Party. Rights were also condensed to merely four articles, leaving little room for enforcement. Fundamentally, the 1975 Constitution represented a legitimation of the power already subsumed by the Communist Party and proved to be an unsustainable model that was reformed upon Mao’s descent from power.

The 1978 Constitution was also transitional – taking the state out of the Cultural Revolution and paving a path for the modern era. This text was an amalgamation of elements originating from the 1954 draft and its immediate predecessor; it once more expanded the number of constitutional rights, while also maintaining the structure of deference to the Party. Ultimately, reformists within the state resistance were successful in calling for a new text in 1982 that reflected the contemporary era of constitution building and economic globalisation. This current Constitution in many ways mirrors the common programs of democratic nations. It includes traditional principles of a constitutionalist state, like judicial independence and provisions for the separation of powers. It also adopts a robust commitment to rights, improved by the 2004 amendments’ addition of an explicit state obligation to respect human rights.

Since its adoption, the Constitution has been amended five times, and most subsequent modifications brought China closer to constitutionalism in its organic sense. In 2001, the Constitution was judicialized for the first time when the nation’s highest court relied on the text to vindicate a plaintiff’s constitutional right to education (though this ruling was later vacated).

However, the 2018 amendments brought the state’s Constitution reformation period to an abrupt halt, introducing a ‘New Era’ of constitutionalism with old roots. As a result, this historical perspective is particularly relevant and instructive in today’s China. Human rights and traditional constitutionalist principles within China’s Constitutional text now seem to rival the revived citizen obligations and commitment to Party leadership of the Mao period. These developments are not incidental but represent an intentional reversion to specific historical mandates.

With precepts found in the dynastic and Communist states, this constitutionalism appeals to several key elements of China’s constitutional past. Intentional efforts from the Party to create law ‘suitable for China’ tend to focus on constitutional language from the Mao era, which laid precedent in situating the Party at the helm of the Constitution. Constitutional concepts such as Mao’s People’s Democratic Dictatorship, or the idea that China is a democracy for its friends and a dictatorship for its enemies, have generated fresh debates within state media and domestic literature. Moreover, the state’s efforts towards administrative centralization have echoed within China’s legalist traditions. Taken together, it is clear that the PRC’s legal history plays a newly significant role in the present.

While China’s constitutional future remains unclear, the modern revival of these elements and others signifies a departure from its era of reform. However, many protest a return to the past. While suppression of dissent has become commonplace, activists nevertheless persist in advocating to vitalize their constitutional rights. As resistance efforts continue, it may be that this New Era of constitutionalism has the same transitional nature as its predecessors.

The paper The Evolution of Constitutionalism in the People’s Republic of China: Past and Present was published with the Indiana International and Comparative Law Review. Leigha Cout is a William H. Hastie Fellow at the University of Wisconsin Law School, a PhD Candidate in Law at King’s College London and a Research Associate with the China, Law and Development Research Project at Oxford University. Her current research focuses on constitutional law and change in the People’s Republic of China.

Green Finance as an Institutional Mechanism to Direct the BRI towards Sustainability

9. October 2022

A new paper by Meihui Zhang, Chi Zhang, Fenghua Li and Ziyu Liu

A Tapanuli orangutan female in the North Sumatran Province, Indonesia. A BRI-funded hydropower dam has been under attack for demolishing this endangered species’ habitat. Photo by Tim Laman.

The construction projects realized through the Belt and Road Initiative (BRI) globally have come under attack for causing severe damage to the environment. China’s regulators have responded by issuing green finance rules. In our article we ask: Is the current framework of laws and regulations really a strong guarantee for more sustainable BRI investment projects?

In 2013, President Xi announced the BRI, an investment program to construct infrastructure and power plants in countries that join the initiative, during an official visit to Kazakhstan. At the present time, the BRI extends to more than 140 countries on three continents. Constructing mega projects requires considerable investments, an overwhelming majority of which are made by Chinese enterprises under the official policy of ‘going out’ 企业走出去. The projects are mainly financed by loans from Chinese state-owned and state-controlled banks.

While the BRI is an ambitious plan (and is sometimes compared to the Marshall Plan after the Second World War), its prospects are ostensibly dimmed in view of a number of challenges. Since the Covid-19 pandemic, China’s banks have allocated more resources to lending in the domestic market. For a resilient recovery, the halted BRI projects require more investments, however, it is unclear where such funding will come from. It appears that China’s banks are unlikely to be able to continue to provide for foreign loans on such a large scale.

The BRI faces an additional (and perhaps a more profound) challenge: Building roads and powerplants, if not well-managed, damages local environments. Several news outlets have already reported how the mega projects threaten environmental sustainability. For example, approximate 800 Tapanuli orangutans lost their treetop home in Indonesia’s Batang Toru rainforest because of the construction of a hydropower project partly financed by the Bank of China. If China and countries along the BRI fail to address these threats to the environment, the BRI cannot achieve the long-term sustainability.

One means to increase the sustainability of BRI investment projects are green finance tools. Banks can raise funds by issuance of ‘BRI theme’ green bonds and lend the proceeds to green projects in BRI host countries. Thus, at least in theory, both the constraint of funding as well as the concern over environmental sustainability can be alleviated. Utilising green finance tools, however, is only possible if domestic and international ESG investors are convinced that the ‘green projects’ are truly environmentally friendly. This requires, among others, banking and securities offerings regulations to incorporate ‘green finance’ rules so that greenwashing problems are avoided. Furthermore, the issuer of the green bond must adhere to a reputable ‘green bond standard’, and mandate that issuers of green bonds disclose information concerning the use of bond proceeds and label the bond with a third-party certification.

China’s regulatory authorities have recently issued related rules. Our in-depth examination of these rules in our recent research paper, we discovered that despite significant achievements, there remain a number of deficiencies in China’s green finance regulations. These deficiencies include a lack of legally binding force of applicable green overseas lending guidelines, insufficient environmental disclosure requirements, and fragmented rules regarding the use of green bond proceeds. Realising the deficiencies entrenched in China’s green finance regulations, the paper presents a number of policy recommendations. This study contributes to future research in the area of green finance and the BRI, particularly in terms of Chinese law and regulations.

Our paper Green Finance as an Institutional Mechanism to Direct the Belt and Road Initiative towards Sustainability: The Case of China is published in Sustainability and can be accessed here.

Meihui Zhang is a lecturer in financial law at School of Law, Tianjin University of Finance and Economics. Prior to joining TUFE, she was a lecturer (2016‐2022) at the School of Finance, Nankai University. She holds a PhD in law from University of Glasgow, an LLM and LLB degree from Renmin University of China.

Chi Zhang is a lecturer in commercial law at School of Law, University of Glasgow. He holds a PhD in law from University of Glasgow, and MPhil in Law and LLB from Tsinghua University. He is a member of the Society of Law Scholars (UK).

Fenghua Li is an associate professor at Law School, University of International Business and Economics. He received a first PhD from China University of Political Science and Law, and a second PhD from University of Glasgow. He is the Secretary-Gernaral of the UIBE Centre for BRI Legal Study affiliated to the China Law Society.

Ziyu Liu is a lecturer at Department of International Law, China Foreign Affairs University. She received her LLB degree from Renmin University of China, LLM degree from National University of Singapore, and PhD degree from University of Hong Kong.

Understanding the Authority upon China’s International Lawyers

7. September 2022

A think piece by Michael Liu

In Spring 2019, the People’s Republic’s government selected Dr. Xu Hong as the new top envoy to the Netherlands

More than one year ago, China’s former Ambassador to the Netherlands, Dr. Xu Hong (徐宏) passed away in Beijing at the age of 57. Xu was diagnosed with a malicious cancer a year before and returned to China for treatment shortly after. Xu is a well-known figure among China’s international lawyers. Given the rather late stage of the illness, his death came as less of a surprise than the diagnosis itself. Yet immediately, social media was flooded with memorial notes and tributes to him. The amount of regret for his departure went beyond the common respect for a senior authoritative figure. He was in a high and powerful position (位高权重), but what struck me most was his unusual sincerity.

While saddened by abruptly losing a well-respected figure, I am also intrigued by the question why he is held with such high esteem by China’s international lawyers. Why is he so much missed, and what makes him different? To answer these questions, I interviewed a dozen people in the circle of international law who knew him. Some of them were his colleagues, superiors and subordinates, or “comrades” in the bureaucratic system, some were opponents who didn’t share his views, some were ordinary friends, or just people who had observed him closely, some inside China and its information great firewall (防火墙) and some outside.

Who is Xu?

Xu is better known to China’s international lawyers as Director Xu or Xu Si (徐司) than Ambassador Xu. Prior to the post of Ambassador Extraordinary and Plenipotentiary to the Kingdom of the Netherlands, Xu served Director-General of the Department of Treaty and Law of the PRC’s Foreign Ministry (外交部条法司) from 2013 to 2019, which is the top authority on matters of international law in China[1].

For what we know, he is a career diplomat. The Foreign Ministry was his first job upon graduating from Wuhan University in 1985 and only employer in his short-lived life. Xu held several different positions, regularly rotating back to his base, the Department of Treaty and Law, each time on a higher rank. With some pride, he described it as a place with overcrowded and rustic offices, but many important figures in international law when he first joined: “When seeing these senior figurers, I am immensely in awe and felt I am in a sacred palace.” [2]

The State and its lawyers

For a long time, Chinese authorities have been ambivalent and anxious about lawyers’ role in state affairs. Legal professionals are perceived to be influenced by liberalism .[3] Occasionally, the state orchestrated campaigns against “hard core litigant lawyers”(死磕律师). Those who invoke international rules for their cause are also unwelcomed with situations sometimes escalating to a diplomatic crisis for the State.[4]

While the “sticks” in the hands of Chinese authorities have been better studied, recent research also shed light on the “carrots” side of the mission to create a rank of state-adjacent lawyers. Stern and Liu (2019) found that the state uses different channels to celebrate “the good lawyer”, those who are willing to work closely with the authorities and urge critical colleagues to separate private beliefs from public behavior. Essentially, by curating an appealing state strand of legal professionalism rather than relying on coercion alone, lawyers can participate in politics without opposing the regime.[5] Answering Stern and Liu’s call to examine this further with “varieties of legal professionalism” and different segments of the Chinese bar, this essay looks into how among China’s international lawyers an authoritative figure is established.

To help understand the context, I will use Matthew Erie’s (2021) framing on the exchange between the Party-State and Chinese legal academia, “a relationship that lies at the heart of understanding why and how Chinese scholarship on international law assumes the forms it does”:

“Party-State and international law scholars mutually assist each other for their own benefit. The former obtains expert commentary which is aligned with its political and geostrategic aims. The latter earns access to data and government funding, a phenomenon which I will now turn to”.

For example, in a well observed event among Chinese international lawyers, Xi Jinping made a high-profile visit to the China University of Political Science and Law (CUPL) on its sixty-fifth anniversary in 2017. He met with senior legal academics from different universities and made a speech during which he exhorted the students to contribute to building “global rule of law” (世界法治). Reciprocally, Professor Huang Jin, President of CUPL, has proposed that international law be elevated to a “first-level academic discipline” (一级学科) in China, effectively calling for a greater standing of international law scholars in Chinese academia. Professor Huang is also an advocate of applying Xi Jinping Thought to international law. The message that emerged from this exchange is that the Party-State and international law scholars mutually assist each other for their own benefit: The former obtains expert commentary which is aligned with its political and geostrategic aims. The latter earns access to data and government funding.

My interviews confirm that Xu played an important role in both processes: the government’s encouragement for international law academics to strategically use research funding, study areas of international economic law and the law of the sea to best protect China’s interest, as well as enabling access to data for researchers. For instance, Xu’s Department of Treaty and Law has continuously recruited mid-level international law academics to join the rank with temporary affiliations. Institution-wise, the same Department also established a Consultative Committee on International Law during Xu’s tenure, consisting of mostly academic experts.[7]

These efforts pay off. When Chinese legal academics who specialize in the study of international law have rallied to Beijing’s cause when faced with adverse arbitral award in the South China Sea Arbitration Case. In Ku’s (2016) account,

State broadcaster China Central Television America recently reported that “300 Chinese legal experts” reached a “unanimous” opinion that “China should abstain from participating in the case, because the arbitration panel has no jurisdiction over the dispute [and] China has legitimate rights under international law to reject the arbitration.” State news agency Xinhua noted that the China Law Society, an organization which represents all academic lawyers in China, released a similarly unanimous and supportive statement of China’s legal position. Xinhua also recently touted an open letter endorsing China’s legal position signed by hundreds of young Chinese international law scholars studying overseas. And leading Chinese scholars have written essays defending the government’s position.[8]

A year later, the Chinese Journal of International Law, an Oxford University Press journal headed by Professor Yee, a member of Xu’s Consultative Committee on International Law, published an extraordinary 500 page “Critical Study” of the arbitral award by the Chinese Society of International Law (CSIL). The study was hailed as unbalanced,[9] and the Working Report of the Board of Chinese Society of International Law (2013-18) openly reported that it was carried out “under the supervision and leadership of the Foreign Ministry”.[10]

Ku finds that scholars within the Chinese legal establishment have indeed either expressed support for Beijing’s position or have kept silent. Reasons, he argues, are censorship, retribution, and nationalism. My interviews also show in addition to material encouragement and disencouragement, Xu’s personal charisma or mianzi (面子) might have contributed to the standing of Chinese legal establishment in this case.

Schachter described international lawyers as a professional community which, though dispersed throughout the world and engaged in diverse occupations, constitute a kind of invisible college dedicated to a common intellectual enterprise.[11] It seems while China is eager to bolster its standing in this “invisible college”, it is also raising its very own national not so invisible college. Xu is the central figure of these two parallel efforts.

How did Xu win the respect of China’s international lawyers?

Many interviewees told me that the situation should be de-romanticized before this question can be answered, especially in the Chinese society which emphasizes relationships. There are a lot of pragmatic and realistic aspects behind Xu’s high esteem. All of the interviewees seemed to have their own understanding of this point. A professor with a great deal of practical experience succinctly summed up what he had observed:

First of all, I don’t know him well, but as far as I know, he has a very good reputation in the academic community, and it’s normal for people to think well of him; Second, he is the Director of the Department of Treaty and Law of MFA, and for Chinese international law scholars, he is the biggest owner and distributor of resources, and everyone must say good things about him; third, he is from Wuhan University, and the Chinese international law circle, in a sense, is the alumni circle of Wuhan University.

This was also indirectly confirmed by a former colleague. When I asked him to explain the extraordinarily high number of tributes on WeChat, this former colleague said that Xu was well-connected and had long-standing connections to many because he held this pivotal position for a long period of time. His sudden death shocked many.

But what seems natural to this former colleague may have another dimension. Among Chinese officials, being able to put down their “officialism” and communicate with ordinary people is unusual, especially against the background of the almost insurmountable barriers between those inside and those outside the official system 体制内外. Few pivotal officials are accessible. In contrast, as almost all interviewees stated, Xu was a very humane and good person, had no airs, and was always helping others. This reminds me of how retired Chinese president Jiang Zeming is being affectionally remembered in China. One young interviewee added that Xu drew a strict line between personal time and work time. This made people around him think that he was a humane person (“of flesh-and-blood” 有血有肉的人). Many mentioned that Xu cared about his subordinates and colleagues, respected young people and gave them chances to grow.

His willingness to help others despite his high position surprised people who came into contact with him for the first time. A recent graduate recalled that when she sought advice from him, “not only did he immediately reply to my message, he also immediately introduced me to his colleagues and asked them to follow up. I was dumbfounded at that time. I have never seen such a good person”. A professor who worked briefly with him and his colleagues said that “working with them gave you the feeling that they were there to serve, not to command.”

Another character that sets Xu apart from others is that he is portrayed differently than his diplomatic peers. As many Chinese diplomats as well as the MFA’s spokesperson adopted aggressive language and dogmatism and were therefore dubbed “wolf diplomats”, Xu remained comparably moderate. One interviewed researcher, who is known for his critical stance towards the Chinese government, observed that Xu “speaks with reason, unlike other ambassadors.” In his opinion, Xu’s handling of the South China Sea arbitration shows that although while he must stick to the official political line, he makes efforts to support his position with legal language. The same is true of the document issued later under his leadership regarding the Sino-British Communique concerning Hong Kong. Chinese and foreign observers note that they understand his position and respect his effort to represent it.

It is a sign of Xu’s professionalism that people with different positions appreciate him. But, with the exception of one former colleague, to those who have worked with him, the most memorable traits are is humane attitude and willingness to help others.

Epilogue: Xu in my own eye

Xu and I are members of the same community, but although working on the different front lines of international law, I only had one direct contact with Xu and caught a glimpse of his personality.

In the summer of 2019, I organized the ICC Chinese Moot Court Competition and took around 100 Chinese students and teachers to the Netherlands. Through a friend, I was able to arrange a visit to the Chinese Embassy for our group. It was nice to see the students cheerfully taking photos with Ambassador Xu. Although Chinese embassies often proclaim to be “the home to the overseas Chinese nationals”, those of us who needed to work with them from time to time certainly don’t feel that way. This time, not only did Xu come out himself, he also thoughtfully arranged for the young diplomats in the embassy to come out and meet with students.

On the same day, I spoke to Xu for the first time. Xu knew about the moot court competition before as parts of his team would participate as judges. I expressed my gratitude to him as the organizer of the competition. I will always remember his response. After a brief exchange on the particulars of the competition, he told me that he was concerned that recently the Philippines had been trying to use the court to stir up attention, and asked whether I had noticed. Initially, I did not understand what this had to do with our moot court or my engagement with the Court. Later, I realized that he used our informal channel, the non-governmental organization I represented, to convey his government’s “concern” on Philippines’ move. I then understood better the diplomatic term “concern” and how it works in a multilateral setting with different stakeholders involved. The impression I gathered is Xu might be a sophisticated diplomat who thinks about work all the time.

I am glad I got it half right and half wrong, and I deeply regret that was my only lesson from him in this invisible college.

Michael Liu is a lawyer and civil society activist from China. The NGO that he founded in 2012, “Chinese Initiative on International Law” (CIIL) has been actively engaged in rule of law training, refugee relief and gay rights advocacy in and out of China. The organization has also been granted a consultative status with the United Nations (ECOSOC). Previously, Michael was a victims’ counsel at the Extraordinary Chambers in the Courts of Cambodia (Khmer Rouge Tribunal) and worked at the International Criminal Court, the International Committee of Red Cross and a private law firm (Fangda Partners) under various capacities. His PhD project at Leiden University is about the rise of China as a norm shaping force in the global human rights discourse

[1] In addition to the Department of Treaty and Law, the Department of Boundary and Ocean Affairs (边海司) and the Department of International Organizations and Conferences (国际司) also deal with issues of international law.

^[2] Interview with Xu Hong at the 40th anniversary of international law institute of Wuhan University (武大国际法所四十周年所庆之“校友风云榜”,徐宏大使访谈录：漫漫外交路拳拳珞珈情) https://mp.weixin.qq.com/s/aXs0OiuGUoIQ3aXoZyAFWg accessed 24 March 2022.

[3] See Eva Pils (2018) Human Rights in China: A Social Practice in the Shadows of Authoritarianism, Wiley; Di Wang and Sida Liu (2020) Performing Artivism: Feminists, Lawyers, and Online Legal Mobilization in China’, Law and Social Inquiry 45(3), pp. 678 – 705 678.

[4] Yaxue Cao (2014) The Life and Death of Cao Shunli (1961 — 2014), China Change, 18 March 2014, https://chinachange.org/2014/03/18/the-life-and-death-of-cao-shunli-1961-2014/, accessed 1 April 2022.

[5] Rachel E Stern and Lawrence J Liu (2020) The Good Lawyer: State-Led Professional Socialization in Contemporary China, Law and Social Inquiry 45(1), pp. 226 – 248.

[7] The Editors (2021) In Memoriam: XU Hong (1963-2021), Chinese Journal of International Law 20(1), 217.

[8] Julian G Ku (2016) China’s Legal Scholars Are Less Credible After South China Sea Ruling, Foreign Policy, 14 July 2016, https://foreignpolicy.com/2016/07/14/south-china-sea-lawyers-unclos-beijing-legal-tribunal/, accessed 24 March 2022.

[9] Douglas Guilfoyle (2018) A New Twist in the South China Sea Arbitration: The Chinese Society of International Law’s Critical Study, EJIL: Talk!, 25 May 2018, https://www.ejiltalk.org/a-new-twist-in-the-south-china-sea-arbitration-the-chinese-society-of-international-laws-critical-study/, accessed 24 March 2022.

[10] Work Report by CSIL(中国国际法学会理事会工作报告) on May 22, 2018 https://mp.weixin.qq.com/s/Xv8Kij_bDuqMETULvUfMqg

[11] Swethaa S Ballakrishnen and Sara Dezalay (eds.) (2020) Invisible Institutionalisms: Collective Reflections on the Shadows of Legal Globalisation, Hart Publishing, an imprint of Bloomsbury Publishing.

Cultural Issues in International Arbitration

8. August 2022

Shahla Ali and Chinwe Alli

As the world economy continues to globalize, business transactions increasingly involve multiple countries and cultures. This development fostered an exchange of cultural thought, perceptions and beliefs, thus making individuals more aware of the areas where their culture converges with others and also areas where it differs. This phenomenon is present in all kinds of relationships and international arbitration is not an exception. In our article “Cultural Issues in International Arbitration”, we compare the cases of the Hong Kong Special Administrative Region and mainland China to address cultural differences in the conduct of international arbitration proceedings as well as some areas in international arbitration where there exists some form of convergence.

In the field of international arbitration, constant networking among major parties and players (this includes regulators, legal practitioners, disputants and arbitrators) from countries with diverse cultures and legal systems who are involved in the entire arbitration process has promoted the unification of legal procedures, thus leading to legal convergence. With the adoption of the 1985 UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”), a suggested pattern for the conduct of arbitration proceedings is created. It was adopted (in full or in part) by lawmakers in 85 states out of 118, and incorporated into their domestic legislation on arbitration proceedings.

However, despite this level of legal convergence in international arbitration, there remain notable differences, largely relating to the cultures of the parties involved. The differences highlighted in this article between international arbitration conducted in Mainland China and Hong Kong Special Administrative Region (SAR) relate most strongly to the difference in legal traditions. Based on the principle of “one country two systems”, Hong Kong SAR operates a common law system modelled after the English common law, while Mainland China on the other hand mainly operates a civil law system. Differences include the presentation of witness testimony, as well as the involvement of arbitrators in the arbitral proceeding, among others.

With respect to the arbitrator’s involvement in the arbitral proceedings, we find that arbitrators in Mainland China tend to actively participate in the settlement of dispute, thus playing a dual role of mediator and arbitrator. This may be attributed to the Confucian culture of mediation that stresses social relations as well as the Chinese legal structure which recognizes and gives legal protection to such med-arb arbitral awards. On the contrary, arbitration conducted in Hong Kong SAR takes a more technical legal approach, stressing due process and neutrality, thus preserving the legal boundaries of arbitrators in arbitral proceedings.

We further find that arbitrators in Hong Kong SAR attach more importance to witness testimonies and cross-examination than their counterparts in mainland China who give priority to documentary evidence. This strong reliance on documentary evidence in arbitration has its roots in the legal culture of Mainland China, as Chinese courts attach significant importance to documentary evidence. In addition to the notion that relying on documentary evidence makes litigation faster, courts believe that testimonial evidence can be manipulated and has a likelihood of change when put to test. This litigation practice therefore influenced how evidence is obtained and evaluated in arbitration conducted in Mainland China.

We conclude by pointing out the significant role that culture plays in arbitral proceedings, especially in transnational arbitration which involves disputants, litigants, law makers and arbitration from two or more diverse jurisdictions. Hence, in order to have a smooth and effective arbitral process, it is necessary to further identify and study the areas of convergence and difference in various legal cultures across the globe.

Find a free version of the chapter here.

Shahla Ali is Professor of Law and Associate Dean at the University of Hong Kong Faculty of Law and Director of the LLM Program in Arbitration and Dispute Resolution. Her work centers on questions of governance, sustainable development and cross-border dispute resolution in the Asia Pacific region. She also serves as a bilingual arbitrator (English/Chinese) with CIETAC, HKIAC, KCAB and SIAC.

Chinwe Alli is the Project Manager for the global team of Jumia Group and also a mentee of the WIA program of the HKIAC. She is a Lawyer licensed to practice law as a Barrister and Solicitor in Nigeria and she holds a master’s degree in international law from Peking University. She is currently based in China and engages in global compliance, legal advisory, contract management, business development and international arbitration.

The Quota Reform in Chinese Courts and Its Implications

13. July 2022

A new paper by Ying Sun and Hualing Fu

^{Haikou Intermediate People’s Court. Photo by Anna Frodesiak}

From the year 2014 a new round of judicial reform was launched in Chinese courts all over the country. For Chinese judges, the most significant change is the “quota reform”(员额制改革). The quota reform aims to professionalize the ranks of adjudicators: by edging out a given percentage of judges, only the better qualified judges would be re-appointed. The background of the quota reform is the plan to reduce the level and the intensity of both political and bureaucratic control over judges in adjudication and to decentralize judicial power to the rank and file judges only, restoring individualized judging while enhancing judicial accountability.

A keen interest in the details of the quota reform drew the author (Ying Sun) to conducting interviews and observations in Guangdong province, Henan province and other places. She gained first-hand insights into how the quota reform is implemented and how the judges saw it.

Before the reform, the number of judges in Chinese courts were calculated in three groups:

the overall size of the judiciary, including judges, but also political and managerial staff and supporting personnel;
the number of judges, i.e. those with proper judicial qualification and, importantly, the percentage of judges in the overall established judicial size; and
the number of so-called “frontline judges” (yixian faguan一线法官), i.e. judges who actually adjudicate cases as judges and their percentage among judges excluding judges holding management positions who are assigned to non-judicial posts.

In 2002, nationwide, there were approximately 210,000 judges and 150,000 of them were frontliners. ^[1] The number and percentage of the frontline judges had remained stable (211,990 judges in 2014) prior to the reforms. A remaining three types of judges did little or no judging. The first group involved judges in management positions, including presidents, vice presidents and chief judges in professional chambers and their deputies; the second, judges who had transferred from professional chambers to political and administrative departments within the courts; the third, judges whose sole responsibility was to execute judgments. The long term objective of quota reform was to limit judgeship to judges whose principal job was to judge.

The reform caused a significant shake-up in the overall profile of the judiciary, with a large number of former judges ceasing to be judges. The court at hand however was able to absorb and neutralize the reform impact throughout its implementation.

First, the quota reform’s ambition to separate judges from administrators forced judges holding political and administrative offices to make a choice. And their choices were clear: the majority of them decided to stay in the administrative departments, while predictably few were willing to give up their status and ranking, especially those holding key positions.

Second, the quota reform unintentionally gave rise to a renewed exodus of middle career judges who left for law firms or other private sector employment. The trend of able judges leaving the judiciary for other careers was well-known, and the quota reform was intended to reign in the problem. However, by reducing the size of the judiciary and creating uncertainty among judges, the reform triggered another miniature exodus – judges, fearful of being left out and worried about the future prospect in an uncertain environment, seized the opportunity to leave the judiciary.

Third, the quota reform posed a significant challenge to courts as they had to contend with a sizeable group of judges who participated in the quota selection but failed and as a result were demoted to the rank of judicial assistants. They did so by offering a transition period, or grace period, during which some of the disqualified judges were allowed, de facto, to adjudicate as judges.

The centre-piece of judge quota reform was to free frontline judges from bureaucratic control in judicial decision that they used to be subjected to, and to abolish the vetting system that required judges to submit their draft opinions to leaders for approval, all to facilitate and promote individualised judging. And indeed, gradually, judging started to shift away from a collective endeavour with decisions subject to multiple layers of vetting and approval. The quota system was successful in placing individualised judging and accountability at the centre of adjudication in the vast majority of cases and in shifting the focus of judicial decisions from a fixation on the social impact of a decision to emphasis on its internal legal quality within an increasingly self-referencing judicial universe. With the new focus on the court-centric and rules-based dimension of judging, as the reforms require, judges do increasingly look for legal guidance to craft a decision. On the other hand, while the rise of individualised judging has created space for judges to deliberate individual cases, it does not reduce judicial accountability. Rather, it created an opportunity for reconfiguration of the control system. Riding on the tide of standardisation, a higher court is filling the gap that the reforms created at the local level and exercising real leadership.

Notwithstanding the fanfare, self-contradictions and tensions, the reforms have been muddled through to create a more identifiable, distinct judiciary. It is now well established that judges are those who judge, excluding political and administrative officers from holding the title of judgeship. The quota reform reflects the contradictions of judicial reform in a party-state. As the quota reform story testifies, the judiciary within a political system can explore spaces for its professionalization project – judges can judge on their own most of the time and in most of the cases. In that process, the Party could be both a helping and a restraining hand, and the bureaucratic system in which the court is an integral part creates both positive and negative incentives for the reform.

Ying Sun and Hualing Fu’s paper was published with The China Quarterly, find it here.

Dr. Ying Sun is an associate professor at the School of Law, Sun Yat-sen University, China. She teaches constitutional law and comparative legislatures. Her research interests include election process, the Chinese people’s congress system, judicial reform and law-making politics in China. Hualing Fu is the dean and the Warren Chan professor in human rights and responsibilities at the Faculty of Law of the University of Hong Kong. He specializes in public law and criminal law, with a focus on China, and cross-border legal relations in the Greater China region. His other research areas include the constitutional status of Hong Kong, in particular central–local relationships in the Hong Kong context and national security legislation.

[1] Xiao, Yang. 2002. “在全国法院队伍建设工作会议上的讲话” (Speech at the national conference on court personnel construction project), ChinaCourt.org, 8 July, https://www.chinacourt.org/article/detail/2002/07/id/7829.shtml. Accessed 16 September 2018.

The Enforcement of Mandatory Rules against Illegal Contracts

24. June 2022

A new paper by Bingwan Xiong and Mateja Durovic

Lottery Kiosk at Xuzhou Station. Under Chinese law, lotteries are considered gambling and thus illegal -with two major exceptions: the China Welfare Lottery and the China Sports Lottery.
^{Photo by MNXANL licensed under Creative Commons Attribution-Share Alike 4.0 International.}

In the past, Chinese courts tended to directly invalidate illegal contracts, thus possibly tolerate opportunistic behaviour sometimes. Article 52(5) of the 1999 Contract Law provides that a contract is void if it violates a mandatory rule prescribed by law or administrative regulation. Empirical research shows that by April 2014, in 355 of 453 cases concerning Article 52(5) of the Contract Law, the contract was ruled void.[1]

This practice underwent a change with the compilation of the Civil Code, where Chinese scholars sought to establish better coordination between the nature of private law and its attached public or regulatory facet. Building on a 2009 judicial interpretation that introduced a classification of mandatory rules, Article 153 of the new Civil Code stipulates a doctrine of defining mandatory rules with different levels of restrictions, with the aim of relieving the state’s restraint on the transition of economy. In result, a violation of mandatory rules may now render the contract involved void ab initio, voidable or still valid, depending on the significance of illegality defined by the law.

This change of jurisprudence successfully reversed the courts’ strong stance on the invalidation of contracts, giving them much more discretion in deciding the nature of mandatory rules and the effect on contracts. The reform also aligns the treatment of illegal contracts with the general trend in other jurisdictions. Nevertheless, we argue that across jurisdictions, this doctrine is merely targeted at the connotation of mandatory rules and the theoretical effects on contracts. Scholars and judges fail to equally emphasise the enforcement of the law against the contractors after upholding the validity of their illegal contracts. In other words, they end the debate within the realm of private law and simply assume that thereafter competent regulatory agencies would duly resolve the harm of illegality.

In our paper, we look into the case of the regulation of the lottery tickets sales on credit. As per Article 18 of China’s Lottery Regulation, no lottery may sell lottery tickets on open account or credit. Such a deed may result in imposed suspension, confiscation plus fines, and punishment on the person in charge as per Article 39. Armed with the new jurisprudence that not all kinds of illegality shall render contracts void and null, Chinese civil courts tend to uphold the validity of lottery sales on credit. Though this saves the innocent party from the loss because of the invalidation of the contract, the problem is, without the following actions of administrative organs, justice stops at the decision in court and the mandatory rules are not equipped with administrative enforcement power.

We find that the major obstacle is information asymmetry between courts and regulatory agencies: not only would the contracting parties not expose the illegal deal in fear of punishment or losing their interest. Also, the courts fail to actively transmit such information to the responsible departments, despite the Supreme People’s Court of China formally encouraging local courts to issue judicial proposals to regulatory agencies.

Empirical studies show that judges seldom issue judicial proposals about their cases to regulatory agencies due to their heavy workload, worries of engaging in improper judicial interference and a lack of rewarding incentives. As it encourages contracts and prevents opportunistic behaviour, we suggest to uphold the current jurisprudence about illegality, and further propose to establish a better systematic interplay among courts and regulatory agencies. This might be achieved through institutional reforms and technological solutions that help forward information of illegal transactions so it can serve the ultimate objective of enforcing the law.

[1] Ye Mingyi 叶名怡 (2015) Empirical Research of Invalidation of Illegal Contracts in China (我国违法合同无效制度的实证研究), Science of Law (法律科学) 6, 120.

This paper by Bingwan Xiong & Mateja Durovic The Enforcement of Mandatory Rules against Illegal Contracts was published in the Asia Pacific Law Review.

Bingwan Xiong is Associate Professor at School of Law, Renmin University of China. He is also Senior Research Fellow at Renmin University Center for Civil and Commercial Law. He obtained his PhD degree from Renmin University and LLM degree Harvard University. Email: bxiong@ruc.edu.cn.

Mateja Durovic is a Reader in Contract and Commercial Law, having joined The Dickson Poon School of Law in July 2017. Prior to joining King’s, he was Assistant Professor (2015‐2017) at the School of Law, City University of Hong Kong. He holds a PhD and LLM degrees from the European University Institute; LLM degree from the University of Cambridge; and an LLB degree from the University of Belgrade. Email: mateja.durovic@kcl.ac.uk

Transforming the Culture of Chinese Prosecutors through Guiding Cases

26. May 2022

A new paper by Colin Hawes

Inside a meeting room of the Supreme People’s Procuratorate: seat of Zhang Jun 张军, Prosecutor-General and former Minister of Justice. Photo by Charlie Qi

Much attention has been paid to the Guiding Cases issued by China’s Supreme People’s Court. The Supreme People’s Procuratorate, China’s top prosecutor, likewise issues guiding cases. In his recent paper, Colin Hawes finds that these cases in recent years indicate a significant turn in prosecution work in China, which is characterized by close cooperation between police, local governments and courts (see Grace Mou’s work).

My interest in guiding cases came through my previous research on the growing use of case precedents by Chinese judges, especially focusing on corporate law cases.¹ With the huge increase in publication of Chinese court judgments on freely available online databases – over one hundred million judgments have now been published in the past ten years – it is possible to trace how the law is being applied at a very granular level, whether in individual Chinese regions/cities or specific levels of court, in all types of legal cases except those involving sensitive political interests (which remain unpublished).

China is a civil/continental law jurisdiction, so prior Chinese court judgments are officially not binding on subsequent cases; but in practice, I found that both judges and lawyers would refer to previous judgments, especially those from higher courts, to support their opinions and maintain consistency. However, while they do routinely refer to prior judgments during court hearings, judges are still not permitted to openly cite those precedents in their written judgments. The only exception is a very small number of “guiding cases” (指导性案例) that have been selected by the Supreme People’s Court (SPC) and given official approval to be cited and effectively binding on all courts in China, when dealing with similar legal issues.

The problem is, the selection process for these SPC Guiding Cases is so slow, and the legal issues that they deal with are mostly so narrow, that it is very rare for lawyers and judges to find a relevant guiding case to assist their legal arguments. As compared with over one hundred million published judgments online dealing with all manner of legal issues, at the time of writing there were less than two hundred guiding cases available.²Not surprisingly, therefore, lawyers and judges continue to make use of the larger database of online judgments as an informal case precedent system.

Not only the SPC, also China’s public prosecutor, the Supreme People’s Procuratorate (SPP) had started publishing its own SPP Guiding Cases. Though also relatively few in number, these cases are likely to have a much greater impact on the administration of justice in China, both in criminal law cases and environmental protection cases.

The reasons are, firstly, that several of the SPP Guiding Cases focus on aspects of the death penalty, so if followed by all procurators as they are supposed to, they will literally have a life-or-death impact on criminal suspects.

Secondly, the SPP Guiding Cases make it clear that a key role of procurators is to uphold the public interest against abuse by powerful officials or corporate interests. Many of the SPP Guiding Cases deal with prosecution of government officials or state representatives working at agencies such as the environmental protection and food safety bureaus as well as urban control officers and police officers, The most common charges are corruption and criminal negligence. The eighth set of cases focuses entirely on People’s Procurators bringing civil public interest lawsuits and administrative lawsuits against environmental polluters and government officials who fail to prevent pollution. This pilot project has resulted in a huge increase in the number of successful environmental pollution lawsuits in China, now numbering in the tens of thousands.

Finally, several SPP Guiding Cases go beyond narrow and specific points of law to cover broad procedural issues that are generally applicable over a wide range of criminal cases. For example, one of the most significant issues is the exclusion of illegally obtained evidence, especially evidence obtained through torture or beating of suspects, which is clearly addressed in SPP Guiding Case 27. The rule in this case can be applied to any criminal prosecution. If it is followed consistently by local branches of the People’s Procuracy, it should reduce the number of wrongful convictions, and in the longer term, remove the incentive for police to mistreat criminal suspects in custody which, according to international human rights groups, commonly occurs.

To be sure, these SPP Guiding Cases are only one part of a broader reform effort in the sphere of criminal procedure and regulation of procurators. Others include a comprehensive revision of the Criminal Procedure Law in 2012, regulations issued by the SPP in relation to public interest lawsuits in 2016, and an amended Procurators Law in 2017. There is also some ambiguity about the legal status and weight of SPP Guiding Cases in relation to these more formal legal sources, an issue discussed further in the concluding sections of my article.

Even so, the SPP Guiding Cases clearly demonstrate to people’s procurators throughout China how the revised laws and regulations should be applied in practice. They provide local procurators with precedents endorsed at the highest levels of the SPP to support battles against criminal activity and environmental pollution at the local government levels. And perhaps most importantly, both the content of the Guiding Cases and the fact that they were issued at all reveals an unprecedented cultural change within the people’s procuracy itself from a body that was essentially an extension of the police or local power interests to one that sees itself as a professional and relatively independent institution with a focus on protecting individual rights and the public interest.

Having said this, criminal defence lawyers and civil society groups are still severely restricted and often persecuted in China. And due to the continued Communist Party interference in the Chinese legal system, demonstrated in more detail in the paper, it is too early to say whether the greater respect for basic legal rights revealed by these Guiding Cases is a step towards increased liberalization of the Chinese legal order and political system.

Find the paper, published with the New Criminal Law Review, here. Dr. Colin Hawes is an associate professor in the Faculty of Law, University of Technology Sydney, Australia. He has an LL.B. and a Ph.D. in Chinese studies from the University of British Columbia, Canada, and a B.A. Hons. from the University of Durham, UK. He also studied Chinese language at People’s University in Beijing and Wuhan University. He has published widely on Chinese corporations, law, and culture, including three books, the latest of which is The Chinese Corporate Ecosystem (Cambridge University Press, forthcoming July 2022).

¹ Colin Hawes, “How Chinese Judges Deal with Ambiguity in Corporate Law: Suggestions for Improving the Chinese Case Precedent System,” Australian Journal of Asian Law Vol 19 No 1 (August 2018): 1-22; and Colin Hawes, Alex K L Lau and Angus Young, “Lifting the Corporate Veil in China: Statutory Vagueness, Shareholder Ignorance, and Case Precedents in a Civil Law System,” Journal of Corporate Law Studies vol.15.2 (2015): 341-376. Both papers are available at https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=503318.

² Currently there are 165 SPC Guiding Cases: see full Chinese texts at https://anli.court.gov.cn/static/web/index.html#/zdal.

³ SPP Chief Procurator Zhang Jun stated that 84,000 environmental public interest cases were brought by procurators in 2020 alone: Zhang Jun, “Zuigao Renmin Jianchayuan Gongzuo Baogao, 2020 Nian” [SPP Work Report 2020], National People’s Congress, 8 March 2021, section 2, http://www.gov.cn/xinwen/2021-03/15/content_5593016.htm.

Authoritarian Legality and Legal Instrumentalism in China

8. May 2022

A new paper by Shucheng Wang

_{^{Sailing Junk in Sai Wan Ho, Hong Kong}}

Can authoritarian regimes use the ‘law’ – as construed from a liberal-rational legal perspective – to solidify and legitimize their rule? Scholarship increasingly pays attention to the role of law in authoritarian regimes. As far as Chinese law is concerned, Mary Gallagher, Hualing Fu & Michael Dowdle, and Taisu Zhang & Tom Ginsburg have investigated the role of law for China’s Party-state, among others.

Against the backdrop of the rise of illiberal democracy, this short article titled “Authoritarian Legality and Legal Instrumentalism in China” engages with this scholarship by unpacking the dynamics of authoritarian legality. As the term indicates, authoritarian legality refers to legal norms advanced by authoritarian regimes, where an active adherence to law may nonetheless thrive without political or democratic reform. The article describes two pure types of authoritarian politics namely, normal politics, and exceptional politics. In normal politics, the law is relatively stable and predictable, particularly on issues relating to apolitical matters. In exceptional politics, however, the law may be adjusted, redefined or even suspended in order to accord with specific socio-political goals.

Using China as a case study, the article takes note of the effort that has been made in establishing a comprehensive system of positive law and in institutionalizing authoritarian legality through a politically controllable congress and court system. Yet, these efforts remain counterintuitive – since legality requires institutionalisation, predictability, and certainty – all of which are seemingly absent in an authoritarian regime. This is not to say that the ‘law’ still does not serve as a crucial instrument for distinguishing ‘lawful’ from ‘unlawful’ actions, but rather, that law is inextricable from politics. The inner logic of authoritarian legality is therefore revealed in the existence of political penetration – either explicit or implicit – into formal laws and informal practices. In essence, while authoritarian legality indicates the legalistic aspirations of illiberal regimes, the legality of the laws is often premised on illiberal fundamentals.

The article identifies three pure types of instantiations of legal instrumentalism, based on the variance of political ideologies: liberal, apolitical, and illiberal. The theory of legal instrumentalism posits that laws should not be seen as a manifestation of universally fixed norms, but rather as a tool for promoting the interests of society and the State. This theory has largely been delinked from the religious and historical roots of western jurisprudence. Legal instrumentalism, therefore, has become far more reflective of a non-Western context and may have found a widespread resonance beyond the differences between liberal and illiberal political ideologies.

The rest of the article argues that legal instrumentalism as instantiated in China’s illiberal context provides a stronger explanatory framework for the law’s function as a crucial instrument in developing the enterprise of legality grounded in illiberal principles than Marxist or Confucian legal theories. Overall, unlike the liberal instantiation of instrumentalism posited within liberal ideologies, the illiberal instantiation of instrumentalism in China shows a dimension of law as an instrument for facilitating China’s development and developing the enterprise of legality grounded on illiberal principles.

Shucheng Wang’s paper Authoritarian Legality and Legal Instrumentalism in China was published in the The Chinese Journal of Comparative Law, a free draft is available here).

Shucheng Wang is an Associate Professor at the School of Law, City University of Hong Kong and an affiliated researcher of the Law and Religion in the Asia Pacific Region program at The University of Queensland, Australia. He was a Fulbright Scholar (Emory University) and a Clarendon Scholar (Oxford University). He has authored four books, including most recently Law as an Instrument: Sources of Chinese Law for Authoritarian Legality (Cambridge University Press 2022 forthcoming), as well as over fifty articles.