Comparative and Foreign Law Commons^™

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 …

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

Faculty Scholarship

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 …

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 …

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 …

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 …

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 …

Making Transfer Of Clean Technology Work: Lessons Of The Clean Development Mechanism, Mei Gechlik

San Diego International Law Journal

This Article takes a closer look at the case of China to fill the gap. It draws on numerous sources including Chinese laws and regulations, the country's policies on climate change, the country's technological capabilities and business environment, observations made by CDM specialists, and other studies of CDM projects. Such a comprehensive discussion, together with Dechezleprete et al.'s findings, will present a more complete picture of what actually drives the transfer of clean technologies to China and will, therefore, help design an effective post-Kyoto framework to facilitate international diffusion of clean technologies.

The Chinese Regulatory Licensing Regime For Pharmaceutical Products: A Law And Economics Analysis, Qing Zhang

Michigan Telecommunications & Technology Law Review

China's pharmaceutical market has expanded dramatically in the past twenty years and is expected to become the largest in the world by the year 2050. However, entry to the market remains difficult for many international pharmaceutical manufacturers due to the country's costly and complicated regulatory licensing requirements. This Article provides an overview of the regulatory licensing regime for pharmaceutical products in China. Then, the Article evaluates three key features of the regulatory licensing regime through a law and economics approach. These features include the use of licensing, as contrasted with alternative regulatory and non-regulatory mechanisms; the standards to be met …

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

Other Publications

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 …

Green From Above: Climate Change, New Developmental Strategy, And Regulatory Choice In China, Dongsheng Zang

Articles

This essay discusses a developmental strategy formulated in China between 2004 and 2007, with a strong emphasis on energy efficiency in response to growing pressure from global concerns of climate change. It tries to show how a top-down regulatory structure was reinforced in the process.

Review Of Trial Of Modernity: Judicial Reform In Early Twentieth Century China, 1901-37, By Xiaoqun Xu, Nicholas C. Howson

Reviews

Observing these significant legal-political debates in the Chinese press and academy in the first decade of the twenty-first century, we might think they concern battles started only in the last decade and a half of Reform-era China. Now Professor Xu Xiaoqun reminds us that these struggles have a much longer pedigree, stretching back to the end of the nineteenth century and China's first fraught encounter with "the West" and one idea of "modernity."

Administrative Governance As Corporate Governance: A Partial Explanation For The Growth Of China's Stock Markets, David A. Caragliano

Michigan Journal of International Law

This Note argues that during the first decade of stock market development (roughly 1990-2000) Chinese institutions, which emphasized administrative direction and control, functioned in lieu of legal and financial institutions. Preexisting modes of administrative governance introduced incentives that mitigated information asymmetry problems inherent in initial public offerings (IPOs) and contributed to enhanced market valuation during the post-IPO phase. The author focuses on two sui generis Chinese institutions employed during this time period: the quota system for equity share issuance and the Special Treatment (ST) system for underperforming issuers. In short, the thesis is that administrative governance substituted for corporate governance.

Riots And Cover-Ups: Counterproductive Control Of Local Agents In China, Carl F. Minzner

Faculty Scholarship

Chinese cadre responsibility systems are a core element of Chinese law and governance. These top-down personnel systems set concrete target goals linked to official salaries and career advancement. Judges and courts face annual targets for permissible numbers of mediated, reversed, and closed cases; Communist Party secretaries and government bureaus face similar targets for allowable numbers of protests, traffic accidents, and mine disasters. For many local Chinese officials, these targets have a much more direct impact on their behavior than do formal legal and regulatory norms.

This Article argues that Chinese authorities are dependent on responsibility systems, particularly their use of …

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

Faculty Scholarship

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; …

From Environment To Energy: China's Reconceptualization Of Climate Change, Dongsheng Zang

Articles

Domestically and internationally, by the first half of 2009 it was already questionable whether the Copenhagen Conference could achieve anything. Anthony Giddens warned-in an otherwise inspiring book on climate change-that "doomsday is no longer a religious concept, a day of spiritual reckoning, but a possibility imminent in our society and economy." In such a context, it becomes imperative to revisit some of the fundamental issues in the Kyoto Protocol framework. Are timetables and targets really the best way to regulate climate change? Does the current framework create bad politics? Where are the powerful driving forces towards a low-carbon society?

This …

Why The Chinese Public Prefer Administrative Petitioning Over Litigation, Taisu Zhang

Faculty Scholarship

In recent years, the Chinese public, when facing disputes with government officials, have preferred a non-legal means of resolution, the Xinfang system, over litigation. Some scholars explain this by claiming that administrative litigation is less effective than Xinfang petitioning. Others argue that the Chinese have historically eschewed litigation and continue to do so habitually. This paper proposes a new explanation: Chinese have traditionally litigated administrative disputes, but only when legal procedure is not too adversarial and allows for the possibility of reconciliation through court-directed settlement. Since this possibility does not formally exist in modern Chinese administrative litigation, people tend to …

Judicial Disciplinary Systems For Incorrectly Decided Cases: The Imperial Chinese Heritage Lives On, Carl F. Minzner

Faculty Scholarship

Local Chinese courts commonly use responsibility systems (mubiao guanli zeren zhi, zeren zhuijiu zhi) to evaluate and discipline judges. Judges receive sanctions under these systems for a wide range of behavior, such as illegal or unethical dealings with parties and lawyers, inappropriate courtroom behavior, and neglect of duty.

Many local court Chinese responsibility systems also discipline judges for simple legal error. Judges may face sanctions linked to the number of cases that are reversed on appeal, simply because the interpretation of law made by a higher court differs from that of the original trial judge. Sanctions include monetary fines and …

Scandal, Sukyandaru, And Chouwen, Benjamin L. Liebman

Michigan Law Review

This Review proceeds in four parts. Part I describes West's account of scandal in Japan and the United States and explores some of the ramifications of his account. Part II examines the formation of scandal in contemporary China. Part III compares scandal in China with West's conclusions about scandal in Japan and the United States. Part IV discusses defamation litigation in China, with a view to adding further comparative insight to West's discussion of Japanese libel suits.

Making Much Ado About Theory: The Chinese Trademark Law, Leah Chan Grinvald

Michigan Telecommunications & Technology Law Review

Although the United States has had an active hand in the implementation of trademark law in China over the past century, the same frustrations that marked the turn of the twentieth century are reflected in the twenty-first century. This Article posits that one of the reasons that the United States has not seen the desired level of progress in China's protection of trademarks lies in the imposition of an American theory of trademarks, which has inhibited U.S. reform efforts in China to date. This imposition is understandable, as little thought has been given to the Chinese theoretical justification for their …

East Asia Institutionalizes: China, Japan And The Vogue For Free Trade, Timothy Webster

Faculty Publications

In the past decade, East Asia has taken steps to increase regional integration. This paper examines the vogue for Free Trade Agreements (FTAs) currently raging in China and Japan. After mapping the regional links that knit East Asia together during the 1990s and 2000s, the focus then shifts to the specific trade agreements that China and Japan have signed. Both countries exhibit a particular FTA “style;” Japan has adopted a more orthodox and comprehensive approach to its treaties, while China has shown greater flexibility and gradualism when dealing with FTA partners. It is still unclear whether these efforts will lead …

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

UF Law Faculty Publications

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 …

China Reexamined: The Worst Offender Or A Strong Contender?, Yang Wang

Michigan Law Review

These are the questions that Professor Randall Peerenboom sets out to answer from an American legal scholar's perspective in China Modernizes: Threat to the West or Model for the Rest. Peerenboom advances three main arguments in China Modernizes. First, to more accurately assess China's performance in its quest for modernization, one must "plac[e] China within a broader comparative context" (p. 10). Through a careful analysis of empirical data, Peerenboom observes that China outperforms many other countries at a similar income level on almost all key indicators of well-being and human rights, with the sole exception of civil and political …

Here There Be Pirates: How China Is Meeting Its Ip Enforcement Obligations Under Trips, Kate Colpitts Hunter

San Diego International Law Journal

This paper will examine whether China is meeting its obligations to protect IP rights under the TRIPS agreement, an international intellectual property trade agreement China acceded to upon joining the World Trade Organization (WTO). Moreover, it will address whether China's increased IP protection in law equals increased protection in fact. Part II will describe China's legal structure, its TRIPS obligations upon joining the WTO, and China's IP laws. Part III will discuss China's enforcement of these IP laws from the perspective of developed nations and from China's own perspective. Part IV includes suggestions on how China can improve its enforcement …

Bilateral Regionalism: Paradoxes Of East Asian Integration, Timothy Webster

Faculty Publications

Like many other countries, China and Japan have recently signed a spate of Free Trade Agreements with countries in the Asia Pacific. This paper analyzes both countries’ styles of integration. While China favors multidisciplinary engagement (politics, security, economics), Japan is mainly interested in deepening economic integration with the countries in which it has already established transnational production lines. After analyzing individual FTAs signed by China and Japan, the paper ends by predicting that China’s multifaceted approach will promote greater integration in the Asia Pacific, and a more robust profile for China in regional affairs.

The European Constitution And Its Implications For China, Xingzhong Yu

Cornell Law Faculty Publications

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 …

Imports Or Made-In-China: Comparison Of Two Constitutional Cases In China And The United States, Xiao Li

LLM Theses and Essays

When its economic increase attracts the global attention, China is also looking for a break-through in its judicial reform. The Qi v. Chen case (2001) was considered to be the Chinese version of Marbury v. Madison and gave rise to a heated discussion of the judicial review power in China. This article will analyze the doubts on the Qi case and the prospects of judicial review it indicates through comparison with Marbury v. Madison. Although Qi v. Chen opened the door for constitutional litigation, its dramatic facts and strained application of the Constitution threw it into question. Nevertheless, its effect …

Book Review Of Engaging The Law In China: State, Society, And Possibilities For Justice, Michael Ashley Stein

Faculty Publications

No abstract provided.

China-Australia Free Trade Agreement New Icing On An Old Cake-An Opportunity For Fair Trade?, Benedict Sheehy, Jackson N. Maogoto

ExpressO

The on-going challenge in economic development and globalization, particularly for developing countries, is the issue of development and equality in society. The issue becomes particularly problematic when confronted in matters of international trade. Often misnamed anti-globalization activists and pro-globalization activists fail to take note of the underlying assumptions that lead them to conflict—namely, the actual costs and benefits to society that result from their particular positions. In essence, both activists are searching for ways to improve the lives of people in the domestic context and to minimize the damage to their society and environment. China’s impressive economic record is threatened …

Equal Treatment Of Foreign Shareholders In Transnational Securities Class Action Against A Foreign Issuer—A Chinese Example, Clark Yao

ExpressO

As the world economy and financial markets become increasingly more integrated, cross-boarder securities transaction becomes a daily event. Because Unite States has the world’s largest and arguably most liquid capital markets, it has attracted a significant number of foreign companies to cross-list their stocks in a U.S. stock exchange. Unavoidably, such transactions will not only bring out fortune, but also disputes between transacting parties. Relying on the powerful federal securities law , U.S. investors who have bought or sold such stocks have routinely sued foreign stock issuers through class action when the stock prices went down, alleging their loss is …

Law, Norms, And Legal Change: Global And Local In China And Japan, Nicholas C. Howson, Mark D. West

Michigan Journal of International Law

The editors of the Michigan Journal of International Law have boldly brought together four articles and commentary that focus on different aspects of the same problem in China and Japan: the relationship between domestic legal change and foreign and/or "international" law and regulation, "soft" agreements, norms, or even cultural practices. The compilation is bold in part because scholarship on change in East Asian law and legal systems often suffers from one of two defects. First, it often focuses on purely domestic phenomena in only one system, ignoring the comparative connections. Second, scholars often attack the problem from an exclusively comparative …