Digital Commons Network^™

The New-Breed, “Die-Hard” Chinese Lawyer: A Comparison With American Civil Rights Cause Lawyers, James E. Moliterno, Rongjie Lan

James E. Moliterno

In times of social upheaval, lawyers can mark the way toward social change. In particular, when lawyers become more aggressive than traditional lawyers in the cause of fighting injustice, they face backlash from multiple sources, including government and their own profession. Such was the case during the U.S. civil rights movement. Unusually aggressive behavior by cause lawyers was met with hostility from their own profession and from government action. Those lawyers, while battered at times with physical violence, bar ethics charges, contempt of court, and state hostility, survived and changed social conditions at the same time they altered the culture …

When The Chinese Intellectual Property System Hits 35, Peter K. Yu

Peter K. Yu

This article explores what it means for the Chinese intellectual property system to hit 35. It begins by briefly recapturing the system’s three phases of development. It discusses the system’s evolution from its birth all the way to the present. The article then explores three different meanings of a middle-aged Chinese intellectual property system – one for intellectual property reform, one for China, and one for the TRIPS Agreement and the global intellectual property community.

The Chinese Anti-Monopoly Law: New Developments And Empirical Evidence, Michael Faure, Xinzhu Zhang, Susan Farmer

Susan Beth Farmer

Beth Farmer contributed the following chapter: "Competition Policy in China: Trends in Private Civil Litigation"

Effective enforcement of competition laws and regulations benefits society, consumers and market participants, and promotes a competition culture. Private civil actions can contribute to healthy economic development (AML Article 1), consumer welfare, and economic efficiency and more complete and effective enforcement of competition law. This chapter discusses developments in private civil actions under the Chinese AML in the context of recent Provisions of the Supreme People’s Court, national development goals, and the experience of four years of active civil litigation. A spokesperson of the Intellectual …

The Impact Of China's Antitrust Law And Other Competition Policies On U.S. Companies, Susan Beth Farmer

Susan Beth Farmer

This article is based on the author's testimony for part of the hearings on “The Impact of China’s Antitrust Law and Other Competition Policies On U.S. Companies,” held by the House Committee on the Judiciary, Subcommittee on Courts and Competition Policy on July 13, 2010. It describes developments in the enforcement and application of the Chinese Anti-Monopoly Law, interpretation and enforcement during the two years since the AML came into effect, with particular attention to merger review. It comments on the organization and staffing of the enforcement agencies and the publication of numerous procedures, guidelines and regulations, which suggests that …

The Evolution Of Chinese Merger Notification Guidelines: A Work In Progress Integrating Global Consensus And Domestic Imperatives, Susan Beth Farmer

Susan Beth Farmer

China is among the most recent entrants into global competition enforcement, having adopted the first competition law of general application, the Anti-Monopoly Law (AML) after more than a decade of drafting. The AML and Merger Notification Thresholds, rules issued by decree of the State Council, became effective on August 3, 2008. Both the law and the guidelines were subject to public review and comment, and went through a number of drafts before final adoption.

This article is a comprehensive comparison of merger standards across jurisdictions, with particular focus on the evolution of merger regulation in China. It comprises six parts; …

Resolving Competition Related Disputes Under The Aml: Theory & Practice, Susan Beth Farmer

Susan Beth Farmer

This presentation was given at the European China Law Studies 2014 Conference, Making, Enforcing and Accessing the Law, in Hong Kong. The presentation addresses the Chinese Anti-Monopoly Law (AML), the MOFCOMM, NDRC, and SAIC, and litigation before the Supreme People's Court.

Can The West Learn From The Rest?' The Chinese Legal Order's Hybrid Modernity, Nicholas Howson

Nicholas Howson

I am asked to present on the "shortcomings of the Western model of legality based on a professionalized, individualistic and highly formalistic approach to justice" as a way to understanding if "the West can develop today a form of legality which is relational rather than based on litigation as a zero sum game, learning from face to face social organizations in which individuals understand the law" - presumably in the context of the imperial and modem Chinese legal systems which I know best as a scholar and have lived for many years as a resident of the modem identity of …

The Study Of Chinese Law In The United States: Reflections On The Past And Concerns About The Future, Stanley Lubman

Stanley Lubman

I first survey the development and current state of the field by reviewing American scholarship on some major areas of Chinese law from those early days up to the present. Then, against this background, I comment on the current scene and address the challenges that Chinese law continues to present to Western attempts at understanding China.

China's Judicial System And Judicial Reform, Nicholas Howson

Nicholas Howson

The following is an extract from the statement delivered by Michigan Law School Professor Nicholas Howson at the inaugural “China-U.S. Rule of Law Dialogue” held at Beijing’s Tsinghua University July 29-30, 2010, and convened by Tsinghua Law Dean Wang Zhenmin and Harvard Law School Professor and East Asian Legal Studies Director William Alford, and with the support of the China-United States Exchange Foundation chaired by C.H. Tung, first chief executive and president of the Executive Council of the Hong Kong Special Administrative Region. The dialogue was organized as a private meeting between senior PRC law professors and U.S.-based Chinese law …

Merger Control Under China's Anti-Monopoly Law, D. Daniel Sokol

D. Daniel Sokol

This essay explores the factors that drive merger outcomes under China's Anti-Monopoly Law (AML). While there are currently only a small number of published merger decisions, this paper overcomes that obstacle by utilizing a unique practitioner survey of antitrust lawyers across multiple jurisdictions. This survey captures transactions contemplated, but never undertaken (deterred by the merger regime), as well as mergers notified for approval under the AML. The survey allows for broader inferences to be drawn about the development of Chinese antitrust law, including: the welfare standard used in merger analysis, what industrial policy and other political factors may impact merger …

Puzzles In Controlling Shareholder Regimes And China: Shareholder Primacy And (Quasi) Monopoly, Sang Yop Kang

Sang Yop Kang

Professor Mark Roe explained that the shareholder wealth maximization norm (“the norm”) is not fit for a country with a (quasi) monopoly, because the norm encourages managers to maximize monopoly rents, to the detriment of the national economy. This Article provides new findings and counter-intuitive arguments as to the tension created by the norm and (quasi) monopoly by exploring three key corporate governance concepts that Roe did not examine—(1) “controlling minority structure” (CMS), where dominant shareholders hold a fractional ownership in their controlled-corporations, (2) “tunneling” (i.e., illicit transfer of corporate wealth to controlling shareholders), and (3) Chinese state-owned enterprises (SOEs). …

Perceptions And Reality: The Enforcement Of Foreign Arbitral Awards In China, Julian Ku, Roger Alford, Bei Xiao

Julian Ku

This Article represents the most recent comprehensive effort to assess China’s record in the enforcement of arbitration awards issued outside of China. This Article fills two gaps in academic literature on China’s treatment of foreign arbitral awards. First, unlike studies that rely mainly on anecdotal evidence, this study reviews and analyzes the reasoning of leading Chinese judicial opinions interpreting and applying China’s obligations under the New York Convention. Second, unlike prior empirical studies of Chinese courts’ enforcement rates, this study also surveys global arbitration practitioners to find out information about their experiences enforcing foreign arbitral awards in China. The Article …

Beyond Ownership: State Capitalism And The Chinese Firm, Curtis J. Milhaupt, Wentong Zheng

Wentong Zheng

Chinese state capitalism has been treated as essentially synonymous with state-owned enterprises (SOEs). But drawing a stark distinction between SOEs and privately owned enterprises (POEs) misperceives the reality of China’s institutional environment and its impact on the formation and operation of large enterprises of all types. We challenge the “ownership bias” of prevailing analyses of Chinese firms by exploring the blurred boundary between SOEs and POEs in China. We argue that the Chinese state has less control over SOEs and more control over POEs than its ownership interest in the firms suggests. Our analysis indicates that Chinese state capitalism can …

Avenues To Foreign Investment In China’S Shipping Industry—Have Lease Financing Arrangements And The Free Trade Zones Opened Markets For Foreign Non-Bank Investment?, Rick Beaumont

Rick Beaumont

No abstract provided.

The Proposed Inheritance Tax And Its Impact On China's Economy, Michael Steve

Michael Steve

No abstract provided.

Legal Pragmatism In The People's Republic Of China, Xingzhong Yu

Xingzhong Yu

No abstract provided.

The European Constitution And Its Implications For China, Xingzhong Yu

Xingzhong Yu

The European Constitution is significant not only for the European Union, but also for a developing constitutional system like that of China. The EU constitutional practice may have positive implications on China's constitutional theory and practice. In the wake of the European constitutional achievement, Chinese constitutional scholars need to re-examine their long-held conviction in the indispensable role of the state in constitutional formation and imagination. The EU experience may have provided China with valuable insights and ways to deal with its inherited ethnic problems and improve its institutions on regional autonomy for ethnic minorities. China's own constitutional experiment in Hong …

China's Competition Policy Reforms: The Anti-Monopoly Law And Beyond, Bruce M. Owen, Su Sun, Wentong Zheng

Wentong Zheng

In August 2007, China adopted the Antimonopoly Law, its first comprehensive antitrust legislation, thirteen years after the drafting of the law began. Such a protracted legislative process is highly unusual in China, and can only be explained by the controversies the law presents. This paper discusses the fundamental issues in China’s economy that give rise to the challenges China faced in the drafting and adoption of the Antimonopoly Law. Those fundamental issues include the role of state-owned enterprises, perceived excessive competition, mergers and acquisitions by foreign companies, administrative monopolies, and the enforcement of the Antimonopoly Law. How China will enforce …

Transplanting Antitrust In China: Economic Transition, Market Structure, And State Control, Wentong Zheng

Wentong Zheng

This Article examines the compatibility of Western antitrust models as incorporated in China's first comprehensive antitrust law – the Antimonopoly Law ("AML") – with China's local conditions. It identifies three forces that shape competition law and policy in China: China's current transitional stage, China's market structures, and pervasive state control in China's economy. This Article discusses how these forces have limited the applicability of Western antitrust models to China in three major areas of antitrust: cartels, abuse of dominant market position, and merger review. Specifically, it details how these forces have prevented China from pursuing a rigorous anti-cartel policy, how …

Counting Once, Counting Twice: The Precarious State Of Subsidy Regulation, Wentong Zheng

Wentong Zheng

Subsidy regulation is in a precarious state. While it has been so ever since the conception of the current subsidy regulation regime, the recent disputes between the United States and China over the “double counting” or “double remedies” of subsidies have threatened the mere functionality of the current regime. This Article argues that the double counting controversy reveals the self-contradictions of the current subsidy regulation regime as to the fundamental question of why subsidies need to be regulated. These self-contradictions make it impossible to devise a coherent solution to the double counting problem within the framework of the current subsidy …

Constitutional Interpretation In Law-Making: China’S Invisible Constitutional Enforcement Mechanism, Tom Ginsburg, Yan Lin

Tom Ginsburg

Abstract: It is conventional wisdom that China’s Constitution is unenforceable, and plays little role in China’s legal system, other than as a symbolic document. This view rests on the fact that the Supreme Court has no power to interpret the Constitution. The formal body with interpretive power, the Standing Committee of the National People’s Congress, has never issued an official interpretation. Despite this apparent lack of enforcement, we argue that China’s Constitution indeed plays an increasingly important role within the party-state. It does through not through the courts but through the legislative process, in which formal requirements of constitutional review …

The Paper Tiger Gets Teeth: Developments In Chinese Environmental Law, Erin Ryan

Erin Ryan

This very short essay reports on the 2014 amendments to China’s Environmental Protection Law, following a series of internationally reported air and water pollution crises leading to unprecedented public protests. The changes promise more meaningful oversight of industrial pollution and harsher penalties for violations, targeting not only polluters but officials who fail to enforce applicable regulations against them. The amendments also empower certain non-governmental organizations to bring environmental litigation on behalf of the public. Official news accounts openly acknowledge the government’s hope that increased public access to legal redress will reduce the growing trend of mass environmental protests. These are …

Expert Seminar The Employment Relationship Beyond Eu And Across National Borders - Challenges And Responses Tuesday 11 March 2014, 09.15-16.00, Michele Faioli

Michele Faioli

No abstract provided.

More Market-Oriented Than U.S. And More Socialist Than China: A Comparative Public Property Story Of Singapore, Jianlin Chen, Jiongzhe Cui

Jianlin Chen

Compared to the more illustrious conceptualization of private property, the conceptualiza-tion of public property remains at a surprisingly infantile stage. The very definition of public property is ambiguous. This article utilizes a comparative case study of traffic congestion policies in the United States, China, and Singapore to highlight the conceptual pitfalls posed by the current confusion on public property. This article proposes a refined public property framework that offers greater conceptual clarity on the real issues at stake. In particular, this article argues that “property” in public property should include regulatory permits while “public” in public property should not be …

The Elaborate Paper Tiger: Environmental Enforcement And The Rule Of Law In China, Erin Ryan

Erin Ryan

The Tragedy Of Hong Kong, Richard Klein

Richard Daniel Klein

While the world watched the fireworks and celebrations occurring in Hong Kong on July 1, 1997, a far sadder event was, in fact, unfolding. The people of Hong Kong, most of whom had originally fled from China -- the country which was now taking over -- have simply never experienced the basic human right of self-determination. Rule was shifting from a colonial power which had denied the people of Hong Kong their basic human rights for virtually all of its 155-year administration, to a country which, immediately upon assuming sovereignty, made it clear that democracy would remain but a dream.

The World’S Youngest Political Prisoner, Richard Klein

Richard Daniel Klein

Every participant at an international human rights conference in June 1998 received a small pamphlet published by Tibetan supporters of Tibetan Buddhism's highest-ranking figure, the Dalai Lama. Entitled "The World's Youngest Political Prisoner," the pamphlet makes a plea for support for a young boy, now nine years old, who the Chinese government has allegedly kidnapped and detained. The Dalai Lama, who has been living in exile for forty years, claims the boy is the eleventh reincarnation of the Panchen Lama, the second holiest individual in Tibetan Buddhism. This battle over the identification of the reincarnation of a holy man is …

To Compete Globally, Brics Nations Need Reputation, Not Imitation, Ahmed E. Souaiaia

Ahmed E SOUAIAIA

The economic, political, and social rise of the Western block of nations was founded on the single most enduring currency: reputation. Reputation, the source of credibility and trust, is the real asset that allows the U.S. to project its stature around the world. BRICS nations cannot rise to prominence by mimicking developed countries. They must build their reputation first. Wealth is only a byproduct of this more precious commodity, and countries who have it can squander it just as emerging economies can acquire it. For either of those results to happen in any country, circumstantial conditions and principled actions must …

Challenges In Designing Public Procurement Linkages: The Case Study Of Smes Preference In China’S Government Procurement, Jianlin Chen

Jianlin Chen

Preferential treatment in government procurement, also known as procurement linkages, is a con-troversial yet popular tool to achieve socio-economic goals, most importantly, affirmative action for certain targeted groups. This Article utilizes the recently enacted small-medium enterprise (“SME”) procurement linkages in China to examine the pitfalls in the design of procurement linkages. Two major deficiencies of the Chinese regime impede effective implementation of procurement linkages. First, loopholes in the Chinese regulatory regime allow large enterprises to usurp the benefits meant for SMEs through the use of wholly owned subsidiaries and other corporate arrangements. Second, aggrieved suppliers face stringent procedural requirements and …

Property Rights Arrangement In Emerging Natural Resources: A Case Study Of China’S Nationalization Of Wind And Sunlight, Jianlin Chen, Jiongzhe Cui

Jianlin Chen

The passage of the Heilongjiang Province Regulation on Climate Resources Survey and Protection (the “Regulation”) that regulates wind and solar energy generation sparked a public furor because it contains a provision that stipulates, “climate resources are owned by the state.” As a case study of this regulatory attempt to manage emerging natural resources, this Article makes the following three arguments. First, the “nationalization” provision in the Regulation is legally compatible with Chinese law that conceives of public property as state-owned property and not as property that requires public access. Second, a clear designation of the state as the manager of …