Law Commons^™

Anatomy Of China’S Maritime Strategy: Threatening The Maritime Order Through Its National Legislation And Self-Centered Interpretation Of Unclos, Shigeki Sakamoto

International Law Studies

While the 1982 United Nations Convention on the Law of the Sea (UNCLOS) establishes an objective framework for the coordinated handling of the use of the sea by States in the exercise of their legislative, judicial, and executive powers, China’s legislative bodies, in enacting domestic laws for the fulfillment of treaty obligations, distort obligations in its domestic laws to secure their own national interests. For example, Article 6.2 of China’s Territorial Sea Law violates articles of UNCLOS by denying the right of innocent passage. In addition, China is extending its jurisdiction over security to the contiguous zone with Article 13 …

Property And Prosperity, A Demythifying Story, Xiaoqian Hu

St. John's Law Review

(Excerpt)

Economic development is fundamentally a property law story. Prominent thinkers―from Adam Smith and Jeremy Bentham, to Douglass North and Richard Posner―tell us that protection of private property rights is essential for economic growth and wealth accumulation. Clear and freely alienable property rights reduce transaction costs and allow private bargaining to produce efficient results. Property rights allow owners to internalize the costs and benefits of their own behavior, reduce production costs, and encourage innovation. Secure property rights protect owners from arbitrary confiscation by the government, foster owner expectations, and facilitate investment, trade, and the development of financial markets. The idea …

Commercial Mediation In Mainland China: Pitfalls & Opportunities, Meng Chen

Pepperdine Dispute Resolution Law Journal

This article offers insight into the practice of Chinese mediation, especially in resolving commercial disputes, considering the United Nations Convention on International Settlement Agreements Resulting from Mediation (the Singapore Convention) entered into force on September 12, 2020. First, this article evaluates the attractiveness, vulnerabilities, and popularity of mediation as a means of dispute resolution. The article then introduces the Chinese model of using mediation to resolve commercial disputes, specifically in judicial and arbitral proceedings. Based on empirical data and rules analysis, this article concludes with the benefits of using mediation in China to resolve disputes and exposes a discrepancy between …

Enhancing The Battleverse: The People’S Liberation Army’S Digital Twin Strategy, Joshua Baughman

Military Cyber Affairs

No abstract provided.

A Private And Efficient Approach To Us-China Trade: Bringing A Non-Violation Case In The Wto, Daniel C.K. Chow, Ian M. Sheldon

Vanderbilt Journal of Transnational Law

When Joe Biden defeated Donald Trump to become president of the United States in 2020, many observers hoped that Biden would reset the troubled US-China trade relationship. The Trump administration had abandoned the rules-based approach to international trade of the World Trade Organization (WTO) and adopted a power-based approach instead. Using a power-based approach, the United States imposed or threatened sanctions if China did not dismantle its state-led economy and terminate the use of industrial subsidies to support its domestic industries. The United States also crippled the dispute settlement system of the WTO so that nations could not challenge US …

Antitrust For Dominant Digital Platforms: An Alternative To The Monopoly Power Standard To Restore Competition, Jordan Ramsey

Senior Honors Theses

Antitrust law is meant to promote competition by prohibiting anticompetitive business practices such as mergers and acquisitions as well as exclusionary conduct. Judicial interpretation of antitrust law has allowed dominant digital platforms to undertake anticompetitive actions without prosecution. The Sherman Antitrust Act should be amended to remove the monopoly power standard that allows firms to engage in anticompetitive conduct as long as the conduct does not create or uphold monopoly power. The amendment would make anticompetitive conduct illegal regardless of monopoly power, as long as six proof requirements are met. This would result in lessened market concentration, which would benefit …

The Eagle’S Eye On The Rising Dragon: Why The United States Has Shifted Its View Of China, Jackson Craig Scott

Baker Scholar Projects

Since 1978, the People’s Republic of China (PRC) has long been viewed as an economic trading partner of the United States of America (US). The PRC has grown to be an economic powerhouse, and the US directly helped with that process and still benefits from it. However, during the mid-2010’s, US rhetoric began to turn sour against the PRC. The American government rhetoric toward the PRC, beginning with the Obama administration, switched. As Trump’s administration came along, they bolstered this rhetoric from non-friendly to more or less hostile. Then, Biden’s administration strengthened Trump’s rhetoric. Over the past ten years or …

A Fake Future: The Threat Of Foreign Disinformation On The U.S. And Its Allies, Brandon M. Rubsamen

Global Tides

This paper attempts to explain the threat that foreign disinformation poses for the United States Intelligence Community and its allies. The paper examines Russian disinformation from both a historical and contemporary context and how its effect on Western democracies may only be exacerbated in light of Chinese involvement and evolving technologies. Fortunately, the paper also studies practices and strategies that the United States Intelligence Community and its allied foreign counterparts may use to respond. It is hoped that this study will help shed further light on Russian and Chinese disinformation campaigns and explain how the Intelligence Community can efficiently react.

United States Of America As The Global Steward, Grant Fuller

Liberty University Journal of Statesmanship & Public Policy

The principle of subsidiarity states that local communities are best equipped to govern most of their affairs. In an increasingly connected world, this idea gets contested frequently. Since World War II, the world has experienced relative peace due to U.S. precedence. Today, we see U.S. leadership challenged by global players like China, which is doing so in a manner that prioritizes their people and goals. In order to maintain relevance, the United States must revisit trade policy, monetary policy, fiscal policy, and national security policy.

Pandemic As Transboundary Harm: Lessons From The Trail Smelter Arbitration, Russell A. Miller

Scholarly Articles

The COVID-19 pandemic has caused incalculable harm around the world. The fact that this immense harm can be traced back to a localized outbreak in or near Wuhan, China, raises questions about the responsibility China might bear for the pandemic under public international law. Famously applied in the seminal Trail Smelter Arbitration (1938/1941), the Transboundary Harm Principle provides that no state can use or allow the use of its territory in a manner that causes significant harm in the territory of other states. This article does not intend to tap into the unseemly, xenophobic spirit that animates much of the …

Corporate Foreign Policy In War, Kishanthi Parella

Scholarly Articles

On February 24, 2022, Russian troops invaded Ukraine. Over a year later, the war has claimed tens of thousands of lives and led to the displacement of millions. In Spring 2023, both Ukrainian and Russian forces prepared new offensives, while the United States committed to providing Ukraine with military tanks—a move that Russian officials had previously warned would constitute direct involvement in the war. While countries debated how to respond, we also witnessed the privatization of foreign policy as hundreds of companies around the world similarly sought to assist Ukraine or punish Russia using the tools of national foreign policy—humanitarian …

Manufacturing Innovation, Xuan-Thao Nguyen

Articles

Using intellectual property assets as the proxy for innovation measures, this paper provides a comprehensive analysis of the legal and policy strategies that form the foundation for China's new role as the global manufacturer of innovation. Manufacturing innovation is evident through China's multi-prong approach regarding intellectual property production and maximization. Significantly, among many other policies that target innovation, China encourages the production of innovation by accepting patents and trademarks as collateral assets for financing. Entrepreneurs can quickly obtain loans against their portfolios of patents and trademarks. China also requires enterprises seeking to undergo an initial public offering (IPO) on the …

Trademarks And Censorship In The Time Of Covid-19, Xuan-Thao Nguyen

Articles

During the devastating year of 2020, China quickly conquered the novel coronavirus and roared back economically while the United States faced staggering deaths and economic losses. But underneath the divergent experience of the two countries is an untold story of trademark and censorship in the time of COVID-19. This Article observes that while the United States Supreme Court has lifted the ban on trademark registrations for unconstitutional viewpoint discrimination, opening the door for offensive COVID-19 trademark applications, China has transformed trademark law into the law for censorship as Chinese authorities press forward to achieve twin victories over the coronavirus and …

What Role For The Wto In Disciplining China’S State-Dominated Economy?, Jennifer A. Hillman

Georgetown Law Faculty Publications and Other Works

Is the World Trade Organization (WTO) and its rules-based system capable of addressing the distortions in trade caused by the explosive growth of China’s State-Owned Enterprises (SOEs)? If it is, why hasn’t it been put to use? If the WTO rules are not up to task, where and how do they need to be changed? Those are the questions that Henry Gao and Weihuan Zhou answer in their thorough and compelling assessment of the current state of China’s SOEs, the commitments China made when it joined the WTO and the relevance of the applicable WTO rules, Between Market Economy and …

Judging China: The Chinese Legal System In U.S. Courts, Donald C. Clarke

GW Law Faculty Publications & Other Works

How should American courts understand China’s legal system? How do they understand it, and are they doing a good job? These questions have become important as economic and social ties between China and the United States have mushroomed since China’s days of Maoist isolation. The answers have implications not just for China-related cases, but for the way U.S. courts treat authoritarian and illiberal legal systems more generally.

This Article presents the first attempt to answer these questions empirically through an intensive study of all cases in which parties either sought dismissal to China on forum non conveniens grounds or sought …

Public Ownership And The Wto In A Post Covid-19 Era: From Trade Disputes To A 'Social' Function, Paolo Davide Farah, Davide Zoppolato

Articles

Public ownership is closely bound to the need of the government to protect and guarantee the well-being of its citizens. Where the market cannot, or does not want to, provide goods and services, the State uses different tools to intervene, influence, and control some aspects of the private sphere of expression of its citizens in the name and interest of the collectivity. Although, in the past century, this behavior was accepted as one of the expressions of the public authority and part of the social contract, this perception has shifted partially in accordance with the wave of privatization programs initiated …

Us Trade Policy, China And The Wto (Foreword), Paolo Davide Farah

Book Chapters

In ‘U.S. Trade Policy, China and the WTO’, Nerina Boschiero addresses a key topic in contemporary international economic law and global governance. By focusing on a turning point in global politics and the shaping/framing of trade policy in the U.S.– the election of President Donald Trump sheds light on the tumultuous process of reshaping of global governance. The crisis of multilateralism has been discussed at length in academia and mainstream media. However, little attention has been paid to how the U.S. is reacting to the rise of China in the global order, in practical terms. In particular, focus …

The Chinese Enterprise Income Tax, Wei Cui

All Faculty Publications

China’s Enterprise Income Tax (EIT) is the world’s largest corporate income tax by revenue, contributes a significant share to China’s total tax revenue, and is clearly the most substantial component of capital taxation in China. Yet scholarly research on the EIT is still limited. This overview chapter outlines the EIT’s main components from a legal perspective, while referring to empirical economic and accounting research that sheds light on these components. It discusses the personal scope of the EIT, so as to identify the significance of the pass-through and the tax-exempt sectors relative to the taxable corporate sector. It then examines …

Clearing The Way To Renminbi Domination: Cips, Antitrust, And Currency Competition, Felix B. Chang

Faculty Articles and Other Publications

China watchers have decried the emergence of the Cross-Border Interbank Payment System (“CIPS”) as a turning point in the move to dethrone the U.S. dollar. This Article situates CIPS, which clears and settles Chinese renminbi transactions, with other financial market infrastructures, drawing lessons from how those entities have thrived or failed.

In recent conversations, CIPS has been conflated with other infrastructures (e.g., the SWIFT payment messaging system) and currency trends (e.g., de-dollarization and sanctions evasion). However, a currency clearinghouse is very different than most financial institutions. For CIPS, the market-maker in the adjacent trading market is the Chinese government, a …

China In The Wto Twenty Years On: How To Mend A Broken Relationship?, Petros C. Mavroidis, André Sapir

Faculty Scholarship

China’s participation in the World Trade Organization (WTO) has been a rollercoaster of milestones and frictions. China has emerged as a leading trading nation, which has contributed to the expansion of world trade. Some of its trading partners, however, and most vocally the United States, complain that China has reached its new status by eluding its WTO commitments. Under President Trump, the United States reacted strongly against China, almost bringing the WTO(but not China!) to its knees. These actions have been criticized in different ways: Some underline their unilateral character (and the ensuing legal issues they raise), whereas others focus …

Liability Beyond Law: Conceptions Of Fairness In Chinese Tort Cases, Rachel E. Stern, Benjamin L. Liebman, Wenwa Gao, Xiaohan Wu

Faculty Scholarship

Empirical work consistently finds that Chinese courts resolve civil cases by finding a compromise solution. But beyond this split-it-down-the-middle tendency, when and how do Chinese courts arrive at decisions that feel “fair and just” in cases in which they invoke those ideas? Drawing on a data set of 9,485 tort cases, we find that Chinese courts impose liability on two types of parties with ethical, but not legal, obligation to victims: (1) participants in a shared activity and (2) those who control a physical space. In these cases, Chinese courts stretch the law to spread losses through communities and to …

Dangers Of Protectionism In Free Trade, Jacob Walker

Washington International Law Journal

The recent establishment of large mega-free trade agreements has led to the potential for the rapid economic development of nations through the inclusion of provisions that lower tariff rates on goods crossing borders. Some countries, such as India, have shied away from these agreements in favor of protectionist strategies, which has led to inconsistencies in treaty negotiations and economic decline. India used protectionist strategies as part of its domestic plan, which has led it to withdraw from free trade agreements and weakened its regional partnerships. This comment examines the Foreign Direct Investment flowing into India before and after its withdrawal …

Death Sentences In The Great Qing, 1744-1840: Critical Note On Civilization In Comparison With England And Wales, Moulin Xiong, Ren Liu

University of Miami International and Comparative Law Review

Over the last centuries, the view on the death penalty in Qing China has been distorted, presenting a picture of abusive brutality and excessive cruelty, and thus was used as the critical pretext to establish immune extraterritorial jurisdictions. Nevertheless, the existing comments are more literary embellishments without empirical evidence, and few comparative and historical perspectives have been utilized to clarify the truth. In this study, we mined annual death sentence numerical data for the period 1744 to 1840 from official archives and literatures, deciphering the capital crimes in detail and ascertaining the longitudinal trend with population statistics. To reassess the …

Assessing The Legal Framework For Potential U.S. Conflict With China Over Taiwan, Shawn W. Brennan

International Law Studies

The People’s Republic of China has clearly stated the importance of resolving the Taiwan question and realizing China’s complete “reunification” to end their century of humiliation. As China grows as the most significant strategic competitor to the United States and develops the military capability to force the issue, understanding what legal authorities the President may exercise in ordering a response is increasingly urgent. This article reviews the legal authorities for the use of force by the United States and examines the contours of the President’s authorities and where they intersect with Congress’s authorities. Through various hypothetical scenarios involving attempts by …

From The Acting Editor In Chief, Conrad C. Crane

The US Army War College Quarterly: Parameters

No abstract provided.

Parameters Winter Issue 2022-23, Usawc Press

The US Army War College Quarterly: Parameters

No abstract provided.

Digital Services Trade And Trade Agreements, Henry S. Gao

Research Collection Yong Pung How School Of Law

Trade agreements have become the main forum for the regulation of digital services trade issues over the past decade. This chapter provides a comprehensive examination of the regulation of digital services trade in trade agreements, first reviewing the rules in the World Trade Organization (WTO), then comparing the approaches between the United States (US), the People’s Republic of China (PRC), and the European Union (EU), and explaining the reasons for their deep differences. This chapter further analyzes such provisions in trade agreements in Asia and the Pacific, which has become one of the most dynamic regions in terms of new …

‘Xi Jinping Thought’: Lethal Autonomous Weapons Systems And Military Modernization With Chinese Characteristics, Aiden Warren, Alek Hillas

The Journal of International Relations, Peace Studies, and Development

The article seeks to appraise Beijing’s military modernization and positions on Lethal Autonomous Weapons Systems (LAWS). In examining the rhetoric of Chinese policy makers through a qualitative analysis of relevant policy documents and Chinese statements, the article begins by evaluating the relationship between military modernization and the advancement of China’s innovation and civil- ‍military integration strategies in the Xi Jinping era. Secondly, the article considers, via an analysis of diplomatic statements, the context of Chinese discussions on LAWS under the framework of the Convention on Certain Conventional Weapons (CCW). The analysis proposes it is probable that China is seeking to …

Local Action For Animals As A Stepping Stone To State Protections, Jo Anderson

Law

Municipal ordinances can be an effective way to create animal protection laws at the local level, and could lead to great success at the state level. Passing laws at the local level allows people to help animals in their communities, while providing a model for other cities and jurisdictions. Local laws can also create momentum for statewide initiatives, which demonstrates a state’s strong commitment to protecting animals.

Legislation is a key avenue animal advocates use to effect change at scale, but there is not much research about how to choose tractable issues and lobby for them successfully. The goal of …

Anti-Satellite Tests: A Risk To The Security And Sustainability Of Outer Space, Mckayla Swan

Liberty University Journal of Statesmanship & Public Policy

In November of 2021, The Russian Federation conducted an anti-satellite test (ASAT), destroying one of their defunct satellites in low earth orbit (LEO). This test, although not the first of its kind, created thousands of pieces of new space debris, threatening LEO satellites and the International Space Station (ISS). Russia’s test has resurfaced discussions on the militarization of space and its long-term sustainability. Absent legally binding multilateral agreements aimed at long-term peace and sustainability in space, the area will continue to develop in a hazardous direction. Therefore, The United States should initiate a multilateral treaty to develop a partial ban …