Jul 1, 2021 | Volume 62, Special Issue
By: Henry Gao
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Abstract
In November 2001, China finally acceded to the World Trade Organization, in a deal described by then WTO Director General Mike Moore as a “defining moment in the history of the multilateral trading system.” In recent years, however, China has been accused of defiling the letter and spirit of WTO rules with its unique economic model. Believing that existing WTO rules are inadequate in dealing with the China challenge, key WTO Members have launched a new round of WTO reform, which is the subject of this article.
Contrary to popular belief, most of the problems concerning China are not new but reflect long-standing issues in China’s economic system which predate the WTO accession. Thus, the article starts by tracing China’s long and storied history with the GATT and WTO, highlighting the key commitments designed to alleviate the perceived problems with China’s unique economic system. The next part discusses China’s limited role in the ill-fated Doha Round, the first and only negotiating round ever officially launched by the WTO. This is followed by a comprehensive and in-depth analysis of the main issues in the current discussions on WTO reform, a process that started at the last WTO Ministerial Conference held in December 2017. In particular, the paper examines in detail the efforts by some major players to turn it into a so-called “China Round,” and China’s reactions. The paper concludes with a review of the failed attempt of the United States to address some of these issues through the trade war and suggests that multilateral negotiation is the best way forward.
Jul 1, 2021 | Volume 62, Special Issue
By: Weixia Gu
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Abstract
Established in 2018, the China International Commercial Court (CICC) represents a major step of China’s top-down effort in its capacity building in terms of its national dispute resolution infrastructure, judicial personnel, as well as the ambition to create a Belt and Road lex mercatoria and legal harmonization.
Through a close examination of the legal framework of the CICC, the paper argues that the establishment of the CICC has showcased a shift in the paradigm in the Beijing Consensus in the context of law and development via a more active top-down, institutional and hard-law approach. The article argues that the shift in paradigm does not mean that China is necessarily moving away from or abandoning the norm-based soft-law approach. Instead, it is likely that both Yin (soft power) and Yang (hard power) of China’s law and development will be a complementary attempt in its overriding “Rule of Law China” (fazhi zhongguo) vision. It is further argued that the establishment of the CICC will represent a reshaping and readjustment of the Beijing Consensus amidst the tension between Beijing’s Belt and Road Initiative and Washington’s IndoPacific Strategy, signifying a more determined and proactive mindset in the ideological tug of war in the realm of legal architecture and the international rule of law discourse.
Jul 1, 2021 | Volume 62, Special Issue
By: Tom Ginsburg
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Abstract
China’s Belt and Road Initiative (“BRI”) has been the object of much speculation and even alarmism in some quarters. On the one hand, it seems to embody Xi Jinping’s “Win-Win” diplomacy and the aspiration of China to play a positive role on the world stage; on the other hand, some have raised fears of debt traps and other negative consequences for participating countries. This article considers the effect of the development program on democracy in participating countries. China generally takes non-interference rhetoric seriously, and has not engaged in the extensive democracy undermining programs of Russia and other authoritarians. But the BRI complicates China’s relationships with recipient countries and changes domestic politics therein, whether as a matter of conscious strategy or not. This article explains the mechanisms whereby domestic democratic processes may be hindered or potentially even enhanced through the BRI. It also considers China’s recent moves to utilize extraterritorial jurisdiction as a further point of leverage, suggesting that the BRI will have a political impact as well as its economic one.
Jul 1, 2021 | Volume 62, Special Issue
By: Michelle Ratton Sanchez-Badin & Fabio Morosini
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Abstract
This paper aims to fill a vacuum in the international economic law literature about the legal tools mobilized by Chinese state-investments in middle-income economies. In order to develop this analysis, we scrutinize the largest operation of Chinese investments in Brazil: the acquisition of Companhia Paulista de Força e Luz (“CPFL”) by State Grid in the electric energy sector. This analysis assesses the impact of such investments on three levels: the bilateral coordination macrolevel, the national regulatory framework mesolevel, and the corporate governance microlevel. The two main questions driving this exercise are: Which legal instruments support these economic interactions, and can they be qualified as disruptive of the international economic law order? We conclude that, in comparison to large and small economies, Chinese investments have been much less disruptive to middle-income economies such as Brazil, due to (i) the similar legal tools employed to manage the international economic legal order, (ii) an economic and legal environment previously exposed to foreign direct investments in strategic sectors; and (iii) the inexistence of reported direct interference, also known as “shadow administration,” of the Chinese Communist Party in the daily operations of the corporation.
