Chinese Journal of Comparative Law最新文献_第6页

The Rise of Screening Mechanisms in the Global North: Weaponizing the Law against China’s Weaponized Investments? 全球北方筛选机制的兴起:将法律武器化以对抗中国的武器化投资?

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Chinese Journal of Comparative Law Pub Date : 2020-09-01 DOI: 10.1093/cjcl/cxaa026

M. Carrai

{"title":"The Rise of Screening Mechanisms in the Global North: Weaponizing the Law against China’s Weaponized Investments?","authors":"M. Carrai","doi":"10.1093/cjcl/cxaa026","DOIUrl":"https://doi.org/10.1093/cjcl/cxaa026","url":null,"abstract":"\u0000 Investment screening mechanisms are proliferating, especially in the global North, apparently in direct reaction to China’s global rise and what is perceived to be its ‘weaponized investments’. Given the lack of clear shared objectives and coordination between screening mechanisms, which remain a core prerogative of each sovereign State’s self-judgment on national security, and the possible negative repercussions on the international economy and cooperation, this article looks at the increase of screening mechanisms for foreign direct investments in Europe and the USA in relation to China’s global rise. What does it entail for Chinese outward foreign direct investments and for the international economic legal order more broadly? In discussing the strengths and limitations of screening mechanisms, this article argues that, while the concerns for Chinese commercial investments aimed at acquiring technology and critical assets are legitimate, at the same time, Western States can disproportionally discriminate against Chinese investments by creating an investment regime that is overly protectionist. The article, adopting the recent screening mechanism of the European Union as a model, proposes how screening mechanisms could be improved through harmonization and cooperation among States, alongside the setting of clear objectives to limit their discriminatory, unjustified, and overly discretionary use.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxaa026","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60799779","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

A New Multilateralism? A Case Study of the Belt and Road Initiative 新多边主义？“一带一路”倡议建设案例研究

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Chinese Journal of Comparative Law Pub Date : 2020-09-01 DOI: 10.1093/cjcl/cxaa022

Jingyuan Zhou

{"title":"A New Multilateralism? A Case Study of the Belt and Road Initiative","authors":"Jingyuan Zhou","doi":"10.1093/cjcl/cxaa022","DOIUrl":"https://doi.org/10.1093/cjcl/cxaa022","url":null,"abstract":"\u0000 The first five years (the first stage) of the Belt and Road Initiative (BRI) have drawn international attention and provoked scepticism and debate. This article explores questions about the nature of the BRI and its impact on multilateralism, which is increasingly fragile and under attack. After summarizing past practices employed in BRI investments, it analyses the characteristics of the BRI and assesses the results and implications. This article studies in depth one of the two primary BRI economic activities—special economic zones. The article introduces and compares the Asian Infrastructure Investment Bank and Chinese domestic banks in their respective financing practices and compares state-owned enterprises and privately owned enterprises in BRI practices. The article observes three characteristics from past BRI practices and analyzes their respective implications on the transformation of international trade governance. The first characteristic is the unconventional ‘infrastructure development first, institution next’ approach. The second is the plurilateral- and multilateral-focused method in international rule-setting processes. The third characteristic is innovation in the dispute settlement mechanism. Through a cautious examination, the article argues that experiences gained from BRI inform China’s international rule-making efforts and further its domestic trade liberalization reform agenda, which will likely contribute to the convergence of rule-making in international trade.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxaa022","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49045634","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 6

The Treaty as to Commercial Relations of 1903: China and Extraterritoriality 1903年商业关系条约：中国与治外法权

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Chinese Journal of Comparative Law Pub Date : 2020-09-01 DOI: 10.1093/cjcl/cxaa005

Raphaëlle P Soffe

{"title":"The Treaty as to Commercial Relations of 1903: China and Extraterritoriality","authors":"Raphaëlle P Soffe","doi":"10.1093/cjcl/cxaa005","DOIUrl":"https://doi.org/10.1093/cjcl/cxaa005","url":null,"abstract":"\u0000 The history of United States and Chinese intellectual property relations formally began with the signing of the Treaty as to Commercial Relations in 1903. The next three years saw the Chinese government frequently present revised versions of the 1903 Treaty’s implementation terms, with the 1905 Shangpu Draft responding to foreign merchant requests by removing its commitment to extraterritoriality—a regime whereby Western citizens in China were subject solely to the laws of their own country and not to Chinese laws. In this article, I document the intellectual property violations by Americans and Europeans in China, and how the legal case made by China for the removal of extraterritoriality, specifically for intellectual property violations, was a sign in itself that China was increasingly attentive to the mechanisms and constraints involved in legal reform. The collapse of the negotiations in 1906 would serve as a critical juncture in the commitment and interest of China to pursue intellectual property reform, with the US and China not signing another treaty concerning copyright until 1946. The refusal by the US to compromise on extraterritoriality contributed, in part, to the ‘four decades of inaction’ in intellectual property affairs.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxaa005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45665654","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Labour Protections for Overseas Chinese Workers: Legal Framework and Judicial Practice 海外华工劳动保护:法律框架与司法实践

IF 1.2

Chinese Journal of Comparative Law Pub Date : 2020-09-01 DOI: 10.1093/cjcl/cxaa024

Aaron Halegua, Xiaohui Ban

{"title":"Labour Protections for Overseas Chinese Workers: Legal Framework and Judicial Practice","authors":"Aaron Halegua, Xiaohui Ban","doi":"10.1093/cjcl/cxaa024","DOIUrl":"https://doi.org/10.1093/cjcl/cxaa024","url":null,"abstract":"\u0000 The launch of China’s Belt and Road Initiative has brought attention to the dispatch of Chinese workers overseas. These vulnerable migrants are often charged high fees in China only to suffer wage abuses and work injuries abroad, where obtaining relief is often impossible. But what laws or regulations within China protect these workers, and how effective are they? This study takes an initial step towards answering those unexplored questions by analysing over 100 Chinese court decisions. While, for much of the China’s history, overseas workers were primarily seconded abroad by Chinese employers, a clear preference has emerged for sending workers through intermediary agencies that can charge fees and execute ‘service’ contracts. Nonetheless, the courts generally provide some relief to aggrieved workers who are dispatched through formal channels. However, a large number of workers go abroad through informal brokers. When disputes arise in these cases, judicial practice becomes very inconsistent. Ironically, workers sometimes fare better because the courts adopt a ‘strict liability’ approach that punishes the unregistered broker, ordering them to pay all compensation or refund all fees. But some judges punish the worker who entrusted an unregistered broker or worked abroad on a tourist visa. And other courts simply treat the matter as a contract or tort dispute. While aggrieved overseas workers who litigate in court face mixed results, this article also discusses why many workers never make it to the courthouse door. The conclusion offers proposals to enhance protections for overseas workers and discusses why it is important that China do so.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxaa024","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43665378","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 3

The Prospect of Regulatory Alignment for an Interconnected Capital Market between the United Kingdom and China: A Takeover Law Perspective 从收购法视角看英国与中国互联资本市场的监管协调前景

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Chinese Journal of Comparative Law Pub Date : 2020-09-01 DOI: 10.1093/cjcl/cxaa020

Joseph Lee, Yonghui Bao

{"title":"The Prospect of Regulatory Alignment for an Interconnected Capital Market between the United Kingdom and China: A Takeover Law Perspective","authors":"Joseph Lee, Yonghui Bao","doi":"10.1093/cjcl/cxaa020","DOIUrl":"https://doi.org/10.1093/cjcl/cxaa020","url":null,"abstract":"\u0000 The United Kingdom (UK) and China have launched the London–Shanghai Stock Connect Scheme to achieve an integrated capital market. In this article, the takeover market is used as an example to examine the extent to which regulatory alignment between the UK and China is possible. The focus is on the role of financial intermediaries in the two markets and how they may influence the governance model of the transfer of corporate control by an open offer to the shareholders of the target company (a takeover bid). This article argues that without regulatory alignment such an integrated market is unlikely to be realized. There are differences between the UK and China in the economic model, ownership structure, and institutional arrangements, which have been reflected in the differences in interests served by takeover law in the two regimes. The design of the framework for takeover law in the UK empowers financial market participants, so as to attract capital to the London markets. In contrast, China’s takeover law is mainly aimed at facilitating industrial restructuring and creating globally competitive national companies (national champions). Hence, the UK’s shareholder-centred takeover model, with a strong focus on financial intermediaries and international investors, would not be easily replicated in China. However, the UK model could provide lessons for China to develop its takeover market—that is, further its market structure reform, develop independent financial intermediaries, and also attract an increasing number of investors.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxaa020","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42634095","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

Editorial 编辑

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Chinese Journal of Comparative Law Pub Date : 2020-09-01 DOI: 10.1093/cjcl/cxaa027

Jiangyun Wang

引用次数: 0

Introduction to the Symposium on Legal Dimensions of Chinese Globalization: China and Global Health Governance 中国全球化的法律维度研讨会简介：中国与全球卫生治理

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Chinese Journal of Comparative Law Pub Date : 2020-09-01 DOI: 10.1093/cjcl/cxaa029

M. Erie

{"title":"Introduction to the Symposium on Legal Dimensions of Chinese Globalization: China and Global Health Governance","authors":"M. Erie","doi":"10.1093/cjcl/cxaa029","DOIUrl":"https://doi.org/10.1093/cjcl/cxaa029","url":null,"abstract":"Abstract China has emerged as a champion of economic globalization, particularly through building global supply chains, financing overseas infrastructure and energy projects, and exporting labour to developing countries throughout the world. The Belt and Road Initiative (BRI), announced in 2013, is a keystone in China’s economic globalization. The BRI emphasizes connectivity: policy, infrastructure, trade, financial, and ‘people-to-people’. Despite the broad significance of Chinese economic globalization, its legal dimensions are still poorly understood. China, Law and Development (CLD) is an international and multi-disciplinary research project that aims to study the legal and regulatory aspects of this stage of globalization. This symposium is comprised of articles by CLD research associates who investigate various questions, including labour rights, skilled migration facilitation, investment review, multilateralism, and patronage and clientelism. This article introduces the symposium, and it does so through the example of China’s role in global health governance. The outbreak of the novel coronavirus (Covid-19) epidemic in late 2019 in China, which has since become a worldwide pandemic, has obstructed BRI connectivity through delinking global supply chains, blocking labour migration, freezing markets, and exacerbating Sinophobia. In response, China has sought to lead an effort in improving global health governance through participation in international organizations and strengthening its bilateral ties through health aid and technology export. The coronavirus pandemic may offer the Chinese an opportunity to lead a more circumscribed re-globalization, although China faces significant challenges.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxaa029","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47817565","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 3

China’s Belt and Road Initiative: Patron-Client and Capture in Cambodia 中国的“一带一路”倡议:柬埔寨的主顾与俘虏

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Chinese Journal of Comparative Law Pub Date : 2020-07-21 DOI: 10.1093/cjcl/cxaa025

Sokphea Young

{"title":"China’s Belt and Road Initiative: Patron-Client and Capture in Cambodia","authors":"Sokphea Young","doi":"10.1093/cjcl/cxaa025","DOIUrl":"https://doi.org/10.1093/cjcl/cxaa025","url":null,"abstract":"\u0000 The launch of China’s Belt and Road Initiative (BRI) has sparked scholarly interest in understanding how global Chinese capital has entered and faced the unique challenges often associated with the business and regulatory environments of developing economies. Drawing on the case of Cambodia, this article seeks to understand: (i) how the new generation of overseas Chinese investors and companies, in the era of BRI, acquire licences and secure business operation in developing economies and (ii) how these investments cope with the host country’s regulatory institutions, including grassroots communities and civil society organizations. The article argues that, while the BRI’s Chinese investors have played a crucial role in the Cambodian economy, this injection of capital has co-opted and exacerbated the ambiguity of Cambodia’s regulatory environment. These Chinese investors have perpetuated the host country’s socio-political culture of patron-client networks, partly entrenched by the Sino-Cambodian elites. These networks are necessary to tap into secure investment operations, and they duly capture (and influence) regulatory institutions at the expense of marginalized communities and civil society organizations. Drawing on Cambodia’s case, the article contributes to the understanding of patron-client relations and regulatory capture in the context of socio-legal studies and the political economy of China’s global capitalism.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-07-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxaa025","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47675508","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 15

The Rise of Majorities and Emerging Existential Threats to India and China 大国崛起与印度和中国面临的生存威胁

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Chinese Journal of Comparative Law Pub Date : 2020-06-30 DOI: 10.1093/cjcl/cxaa018

J. Castellino

{"title":"The Rise of Majorities and Emerging Existential Threats to India and China","authors":"J. Castellino","doi":"10.1093/cjcl/cxaa018","DOIUrl":"https://doi.org/10.1093/cjcl/cxaa018","url":null,"abstract":"China and India are comparable in size, complexity, and their relatively recent State-building histories Commencing in 1947 and 1949 respectively, the relatively recent foundations of India and China highlighted a ‘unity in diversity’ message The significance of this lay as much in ideology as in a pragmatism that was both central and relatively successful in bringing what could be argued as many civilizations into singular modern States While the messages about diversity have always been contested in some quarters by rival ethno-nationalists, they remained significant in laying the foundations for a strong ‘national’ identity To the majority populations, Hindu in India and Han in China this called for restraint to any triumphalism or chauvinism;to the minorities, they called for unshakeable loyalty in return for full citizenship rights In both cases, these messages were backed by constructive affirmative action measures that, irrespective of their efficacy, served to emphasize the ‘unity in diversity’ message, sowing a degree of fealty towards the State over what may have been more prominent and compelling ethno-religious or ethno-linguistic cleavages In recent years, however, this message has been significantly altered, as political majoritarianism has begun to oust legally or administratively determined minority protections This article seeks to offer an assessment of the potential impact on this phenomenon on each country, arguing that it has contributed to instability, sowing seeds for the rise of opposing sub-national identities that the founding parents of each State actively sought to counter in their statecraft","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxaa018","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46167457","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 2

Rule-Making, Rule-Taking or Rule-Rejecting under the Belt and Road Initiative: A Central Asian Perspective “一带一路”倡议下的规则制定、规则接受或规则拒绝:一个中亚视角

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Chinese Journal of Comparative Law Pub Date : 2020-06-01 DOI: 10.1093/cjcl/cxaa006

Roza Nurgozhayeva

{"title":"Rule-Making, Rule-Taking or Rule-Rejecting under the Belt and Road Initiative: A Central Asian Perspective","authors":"Roza Nurgozhayeva","doi":"10.1093/cjcl/cxaa006","DOIUrl":"https://doi.org/10.1093/cjcl/cxaa006","url":null,"abstract":"\u0000 Since the Belt and Road Initiative (BRI) was announced in 2013, China’s expanding economic, geopolitical, and business presence demonstrates its eagerness to play a more significant role in the systems of international governance and law. The BRI’s scale and influence have captured immense attention among politicians, policymakers, experts, and academics. They offer numerous interpretations of the BRI’s global and regional impact. If China claims to be a stakeholder in the international system, what are the implications for the legal systems of the BRI countries and their governance systems? To what extent does the BRI lead to the expansion of China’s institutions and legal norms? How can the BRI countries ensure that their interests in BRI projects are adequately protected? This article analyses the Central Asian perspective on the BRI. Central Asia and Kazakhstan, in particular, have strategic relevance to the BRI. Remarkably, the BRI was launched during the visit of President Xi Jinping to Kazakhstan, which means that Kazakhstan plays a critical transit role as China’s pivot to Europe. Although the BRI is an ambitious global strategy, it has provoked much criticism, especially in liberal countries. Despite China’s efforts to promote the BRI as a win–win endeavour, China’s increased economic and political influence has already led to heightened scrutiny of its role in shaping ideology, economic development, and the legal and institutional landscapes. While many academic publications address different perspectives of the BRI, the context behind BRI projects requires further attention. This article contributes to the literature by studying BRI projects in Kazakhstan and their legal framework and governance.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxaa006","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44747882","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 7