Law Commons^™

Protecting The State From Itself? Regulatory Interventions In Corporate Governance And The Financing Of China's 'State Capitalism', Nicholas C, Howson

Book Chapters

From the start of China’s “corporatization without privatization” process in the late 1980s, a Chinese corporate governance regime, apparently shareholder-empowering and determined by enabling legal norms, has been altered by mandatory governance mechanisms imposed by a state administrative agency, the China Securities Regulatory Commission (CSRC). This has been done to protect minority shareholders against exploitation by the Party-state controlling shareholders, the power behind China’s “state capitalism.” This chapter reviews the path of this benign intervention by the CSRC and the structural reasons for it, and then speculates on why this novel example of the China’s “fragmented authoritarianism” continues to be …

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

UF Law Faculty Publications

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 …

The Evolution Of Relational Property Rights: A Case Of Chinese Rural Land Reform, Shitong Qiao, Frank Upham

Faculty Scholarship

The most notable, or at least the most noted, form of property evolution has been the transfer of exclusive rights from collectives to individuals and vice versa, such as the farm collectivization in Soviet Union and the establishment of the People’s Communes in Mao’s China and their reversals. Such radical moments, however, constitute only a small part of history. For the most part, property rights evolve quietly and incrementally, which is hard to explain if we take exclusive rights as the core of property, or, to put it more generally, if we are focusing solely on the question of who …

Freedom From Violence And The Law: A Global Perspective In Light Of Chinese Domestic Violence Law, 2015, Rangita De Silva De Alwis, Jeni Klugman

All Faculty Scholarship

No abstract provided.

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

Presentations

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.

Reverse Cross-Listings - The Coming Race To List In Emerging Markets And An Enhanced Understanding Of Classical Bonding, Nicholas C. Howson, Vikramaditya Khanna

Articles

Studies have found that when a U.S. issuer lists abroad on a foreign exchange, its shares exhibit negative abnormal returns. This negative movement may be because the market expects that the foreign listing will facilitate undetectable insider trading on the foreign exchange or other conduct impermissible in the United States.

'Quack Corporate Governance' As Traditional Chinese Medicine – The Securities Regulation Cannibalization Of China's Corporate Law And A State Regulator's Battle Against Party State Political Economic Power, Nicholas C. Howson

Articles

From the start of the People’s Republic of China’s (PRC) “corporatization ” project in the late 1980s, a Chinese corporate governance regime subject to increasingly enabling legal norms has been determined by mandatory regulations imposed by the PRC securities regulator, the China Securities Regulatory Commission (CSRC). Indeed, the Chinese corporate law system has been cannibalized by all - encompassing securities regulation directed at corporate governance, at least for companies with listed stock. This Article traces the path of that sustained intervention and makes a case — wholly contrary to the “quack corporate governance” critique much aired in the United States …

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

UF Law Faculty Publications

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 …

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

UF Law Faculty Publications

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 …

Privacy Laws And Privacy Levers: Online Surveillance Versus Economic Development In The People's Republic Of China, Ann Bartow

Law Faculty Scholarship

This essay describes and contextualizes the ongoing efforts by the Communist Party of China (CPC) to reconcile two dramatically competing interests: the desire to extensively monitor the communications of its citizenry, and a burning ambition to further develop its banking and financial industries, its high tech innovation capabilities, and its overall share of the “knowledge economy.” Monitoring and censoring communications, especially via “one to many” social networking platforms, is viewed as essential for the prevention of mass anti-Party political activities ranging from peaceful civil disobedience to armed insurrection and for the protection of the reputations of individual Party leaders. Mobile …

Privacy Laws And Privacy Levers: Online Surveillance Versus Economic Development In The People’S Republic Of China, Ann Bartow

Elisabeth Haub School of Law Faculty Publications

This Essay describes and contextualizes the ongoing efforts by the Communist Party of China (CPC) to reconcile two dramatically competing interests: the desire to extensively monitor the communications of its citizenry, and a burning ambition to further develop its banking and financial industries, its high tech innovation capabilities, and its overall share of the “knowledge economy.”

Monitoring and censoring communications, especially via “one-to-many” social networking platforms, is viewed as essential for the prevention of mass anti-Party political activities ranging from peaceful civil disobedience to armed insurrection and for the protection of the reputations of individual Party leaders. Mobile Internet technologies …

John C.H. Wu And His Comparative Law Pursuit, Xiaomeng Zhang

Law Librarian Scholarship

In this paper, I will focus on exploring Wu's accomplishments in comparative law from four different aspects. After a brief introduction to the historical and societal background of Wu' s life and research in Part II, I will examine his comparative law research and methodologies in Part III. In Part IV, I will elaborate his contributions to the development of Chinese legal education in the Republican China era at the Comparative Law School of China. I will then analyze how his jurisprudence was further reflected in his judicial rulings, which helped shape the contemporary Chinese judicial system in Part V. …

Nuclear Arms Control: Challenges And Opportunities In 2013, Steven Pifer

Brookings Scholar Lecture Series

U.S. nuclear arms control policy must address numerous factors, including our strategic relationships with Russia and China, the potential for future nuclear weapons reductions--including non-strategic nuclear weapons, and the offense-defense relationship, given concerns that missile defense developments could in the future affect the nuclear balance. Washington DC must also consider its obligations under the Non-Proliferation Treaty, how to dissuade new countries from joining the nuclear weapons ranks, and what to do about the Comprehensive Test Ban Treaty, which the United States has signed but not ratified. This presentation will explore challenges and opportunities facing Washington DC in the aftermath of …

The Pragmatic Court: Reinterpreting The Supreme People’S Court Of China, Taisu Zhang

Faculty Scholarship

This Article examines the institutional motivations that underlie several major developments in the Supreme People's Court of China's recent policy-making. Since 2007, the SPC has sent off a collection of policy signals that escapes sweeping ideological labeling: it has publically embraced a populist view of legal reform by encouraging the use of mediation in dispute resolution and popular participation in judicial policy-making, while continuing to advocate legal professionalization as a long-term policy objective. It has also eagerly attempted to enhance its own institutional competence by promoting judicial efficiency, simplifying key areas of civil law, and expanding its control over lower …

Enforcement Without Foundation? Insider Trading And China's Administrative Law Crisis, Nicholas C. Howson

Articles

China's securities regulator enforces insider trading prohibitions pursuant to non-legal and non-regulatory internal "guidance." Reported agency decisions indicate that enforcement against insider trading is often possible only pursuant to this guidance, as the behavior identified is far outside of the scope of insider trading liability provided for in statute or regulation. I argue that the agency guidance is itself unlawful and unenforceable, because: (i) the guidance is not the regulatory norm required by the statutory delegation of power; and (ii) the guidance is ultra vires because (a) it addresses something substantively different from what is authorized under the statutory delegation, …

China In Africa: What The Policy Of Nonintervention Adds To The Western Development Dilemma, Madison Condon

Faculty Scholarship

Chinese investment activity in Africa has skyrocketed in recent years, outpacing every other nation except South Africa. China finances more infrastructure projects in Africa than the World Bank and provides billions of dollars in low-interest loans to the continent’s emerging economies. These loans and investments are typically made in exchange for securing access to natural resources. Based on its principles of nonintervention and respect for sovereignty, China gives this money with little or no strings attached. The West, which typically conditions its loans on initiatives like democracy promotion and corruption reduction, has labeled China a “rogue donor,” whose actions will …

China’S ‘Attitude’ Toward Human Rights: Reading Hungdah Chiu In The Era Of The Iraq War, Dongsheng Zang

Articles

China observers in the United States generally share two observations on China today: that China has made impressive progress in economic development in the past three decades, and that China has maintained a poor human rights record since the 1989 Tiananmen Massacre. On the economic front, China overtook Japan and became the second largest economy in 2010. In a joint study with China's Development Research Center of the State Council, the World Bank recently predicted that even if the Chinese economy grows a third as slowly in the future, it will outstrip the United States in terms of overall GDP …

The Moral Dimension Of Employment Dispute Resolution, Theodore J. St. Antoine

Articles

Dispute resolution may be viewed from the perspective of economics or negotiation or contract law or game theory or even military strategy. In this Article, I should like to consider employment dispute resolution in particular from the perspective of morality. I do not necessarily mean "morality" in any religious sense. By "morality" here I mean a concern about the inherent dignity and worth of every human being and the way each one should be treated by society. Some persons who best exemplify that attitude would style themselves secular humanists. Nonetheless, over the centuries religions across the globe have played a …

Property Rights In Land, Agricultural Capitalism, And The Relative Decline Of Pre-Industrial China, Taisu Zhang

Faculty Scholarship

No abstract provided.

The Irony Of International Business Law: U.S. Progressivism And China's New Laissez Faire, Andrew B. Spalding

Law Faculty Publications

As the financial crisis draws U.S. business overseas and developing countries rise in influence, the regulation of international business has never figured so prominendy in federal law. But the dominant paradigm through which academics and policymakers continue to view that law-the so-called Washington Consensus-proves deeply misleading. A more accurate account of the components, origins, and aims of U.S. international business law reveals two striking ironies.

First, in discrete but critical ways, the United States no longer represents the comparatively laissez-faire approach to federal business regulation. Rather, owing to its origins in the Progressive Era, U.S. federal law directs corporations toward …

Taking Stock: China's First Decade Of Free Trade, Jun Zhao, Timothy Webster

Faculty Publications

China has established itself as a global economic presence in the past ten years. This article explains one important but overlooked aspect of this rise, China’s newfound interest in free trade agreements (FTAs). This paper situates the FTA boom within a framework of international political economy and China’s recent regional rise. This paper probes the question of how China selects its FTA partners, referencing US trade practice and policy as a framework by which to analyze China’s own preferences. This paper then explores the main features of China’s FTAs, finding that it has adopted a flexible FTA strategy that attends …

China's Turn Against Law, Carl F. Minzner

Faculty Scholarship

Chinese authorities are reconsidering legal reforms they enacted in the 1980s and 1990s. These reforms had emphasized law, litigation, and courts as institutions for resolving civil grievances between citizens and administrative grievances against the state. But social stability concerns have led top leaders to question these earlier reforms. Central Party leaders now fault legal reforms for insufficiently responding to (or even generating) surging numbers of petitions and protests.

Chinese authorities have now drastically altered course. Substantively, they are de-emphasizing the role of formal law and court adjudication. They are attempting to revive pre-1978 Maoist-style court mediation practices. Procedurally, Chinese authorities …

Review Of Understanding Labor And Employment Law In China, By Ronald C.Brown, Nicholas C. Howson

Reviews

Any attempt to analyze China’s comprehensive labor reform over the past three decades faces at least two dilemmas. First, the analyst must confront the task of describing how the Chinese state has dismantled the “work unit” (or danwei)- based “iron rice bowl” employment and entitlements system, replacing that comforting but low-production employment and social security scheme with formally-proclaimed legal rights and institutions apparently designed to protect employees in a functioning labor market. Second, the analyst must track how the state’s commitment (at all levels of government) to implementation of proclaimed legal and institutional protections has waxed and waned, based upon …

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

Journal Articles

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 …

China's Judicial System And Judicial Reform, Nicholas C. Howson

Other Publications

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 …

Corporate Law In The Shanghai People's Courts, 1992-2008: Judicial Autonomy In A Contemporary Authoritarian State, Nicholas C. Howson

Articles

In late 2005 China adopted a largely rewritten Company Law that radically increased the role of courts. This study, based on a review of more than 1000 Company Law-related disputes reported between 1992 and 2008 and extensive interactions with PRC officials and sitting judges, evaluates how the Shanghai People's Court system has fared over 15 years in corporate law adjudication. Although the Shanghai People's Courts show generally increasing technical competence and even intimations of political independence, their path toward institutional autonomy is inconsistent. Through 2006, the Shanghai Court system demonstrated significantly increased autonomy. After 2006 and enactment of the new …

Judicial Independence And Company Law In The Shanghai People's Courts, 1992-2008, Nicholas C. Howson

Book Chapters

This chapter draws on a detailed study of corporate law adjudication in Shanghai from 1992 to 2008. The purpose of the study was to better understand the demonstrated technical competence, institutional autonomy, and political independence of one court system in the People's Republic of China ("PRC") in a sector outside of the criminal law. The study consisted of a detailed examination and comparison of full-length corporate law opinions for more than 200 reported cases, a 2003 Shanghai High Court opinion on the 1994 Company Law (describing a decade of corporate case outcomes), a 2007 report on cases implementing the Company …

The Development Of Modern Corporate Governance In China And India, Nicholas C. Howson, Vikramaditya S. Khanna

Book Chapters

Corporate governance reform has become a topic of considerable debate both in the US and in many emerging markets. Indeed, the discussion is important because these reforms may have potentially long-standing effects upon the global allocation of capital, and in understanding the ways in which governance norms are communicated across markets and nations in an ever-globalizing world. In this chapter we examine the corporate governance reform efforts of the world's two biggest and fastest growing emerging markets, the People's Republic of China (PRC or China) and India. In the process we find that our understanding of how and why corporate …

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

UF Law Faculty Publications

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 …

Rise Of Political Populism And The Trouble With The Legal Profession In China, Dongsheng Zang

Articles

This essay looks into recent efforts by the ruling party in China to tighten control of the judiciary, the lawyers and prosecutors under the slogan of "harmonious society" in the last couple of years. This reversed the direction of judicial reform under the leadership of Xiao Yang, during his tenure as President of the Supreme People's Court before 2008. The trouble with the legal profession in China, the essay asserts, is not only that it loses its professional autonomy thus its ability to act as a sociopolitical force that is independent from the ruling political party; but also, by virtue …