Chinese Review of International Law(1-2021)

Source: | 2021.01.22  




Xi Jinping Thought on the Rule of Law in Relation to the International Rule of Law: Series of Important Theories and Its Practical, Historical and Theoretical Logics


Huang Huikang


Abstract:Xi Jinping Thought on the Rule of Law in Relation to the International Rule of Law (Xi’s thought) is an important component part of Xi Jinping Thought on the Rule of Law. It is an inevitable requirement of building a great country under the rule of law by persisting in overall planning and promoting both domestic and foreign related rule of law, and actively participating in international law based global governance. It is a solid guarantee for building a community with a shared future for mankind. Xi’s thought is born as the times require in the context of the emergence of a huge global changes not seen in a century and China’s major country diplomacy entering a new era, presenting a strong characteristics of the times and practical direction. It is also a timely and progressive development of theory and practice of law-based global governance with Chinese characteristic, which has a high degree of continuity, stability and authority, and has its clear-cut, advanced and innovative nature. Xi’s thought is rooted in the fertile soil of Chinese traditional culture and legal civilization, absorbing the essence of both eastern and western legal civilization, with a view to achieving the latest development of Sinicization of Marxist theory of rule of law, and to providing a Chinese solution for the democratization and legalization of international relations. These are practical, historical and theoretical logics of Xi’s thought on the international rule of law. Xi’s thought is of far-reaching significance to further promote the international rule of law.

Keywords:Xi Jinping Thought on the Rule of Law, Domestic Rule of Law and International Rule of Law, Community with a Shared Future for Mankind, Practical Logic, Historical Logic, Theoretical Logic


Diplomatic and Consular Law in relation to China’s Covid-19 Prevention and Control Measures and US Closure of China’s Consular Post


Jia Guide


Abstract:Since the COVID-19 outbreak, the Chinese government have adopted various prevention and control measures which are also applicable to the diplomatic and consular officers accredited to China. In the light of plain meaning of the rules of international law concerning diplomatic and consular privileges and immunities, their codification history, and related international practices, those measures taken by the Chinese government strike a balance between the privileges and immunities on the one hand, and related public health considerations on the other hand. The measures are thus reasonable and lawful. On July 21th 2020, US abruptly forced China to close its Consulate General in Houston on a short notice of 72 hours. Pursuant to the rules and widespread state practices on diplomatic and consular law, the arbitrary and unreasonable short notice of US demand to close the consulate, the denial of privileges and immunities of the consulate even within the reasonable time after closure, and the taking into custody by US of the premises of the consulate with no regard to the will of China are all grave violations of international law. Chinese side has more than ample legal grounds to take reciprocal countermeasures.

Keywords:Diplomatic and Consular Privileges and Immunities, COVID-19 Pandemic, Prevention and Control Measures, Closure of Consular Post, Principle of Reciprocity


The US Currency Subsidy Rules: Evaluation and Possible Reaction


Liao Fan


Abstract:The US Department of Commerce made major amendments to its anti-subsidies rules on 4 February 2020, officially designating currency undervaluation as a countervailable subsidy. The new rules came into force on April 6, 2020. Essentially, the currency subsidy rules (“the Rules”) provide that import and export enterprises may constitute a “group” of enterprises for the purpose of determining the “specificity” of a given subsidy. Meanwhile, they provide for the judging criteria and calculation method for the “benefit” granted through the currency subsidy. As to the “specificity”, the Rules are mainly targeted at domestic subsidies, without excluding the possibility of also covering export subsidy. As to the “benefit”, the Rules use the so-called “equilibrium REER” as the benchmark of determination and calculation. The Rules are not only in violation of the GATT and the WTO Anti-subsidies Agreement, but also inconsistent with the past practices of the US Department of Commerce and the relevant provisions of the exchange rate chapter of the China-US Phase One Economic and Trade Agreement. Given that the Rules have been first applied in the twist ties CVD investigation against China, this article endeavors to challenge such rules from the perspectives of multilateral trade and economic rules, the US domestic law, and the Phase One Economic and Trade Agreement.

Keywords:Currency Subsidy, Currency Undervaluation, Currency Dispute, Financial Contribution, Specificity, Benefit


Essentials on the Influence of Chinese Civil Code on the Revision of Chinese Maritime Code


Sun Siqi and Hu Zhengliang


Abstract:The influence of Chinese Civil Code on Chinese Maritime Code can be divided into two parts, value ideas and specific rules. The influence of value ideas is mainly reflected in the shift of the legislative concept of arbitrary norms, which requires the revision of Chinese Maritime Code to attach importance to the operability of typical contract legal regimes based on arbitrary norms. The influence of specific rules requires that the revision of Chinese Maritime Code should stipulate that the shipping custom has the status of the source of maritime law, and the special limitation of action of personal injury and the interruption of the limitation of action. The transfer of mortgaged ships should still be prohibited in principle. The legal control of terms and conditions of carriage of passengers by sea should be strengthened, and the return rules of advance freight and special provisions for the modification of contracts of carriage of passengers by sea should be added. A legal regime governing compensation for marine pollution from ships should be established.

Keywords:Chinese Maritime Code, Chinese Civil Code, Limitation of Action, Ship Mortgage, Arbitrary Norms


State Consent to Humanitarian Assistance in Armed Conflict: Interpretative Controversies, Developing Trends and Their Inspirations


Liang Zhuo


Abstract:State consent has been one of the most contentious legal issues in the realm of humanitarian assistance. From a positivist perspective, discussions of State consent to humanitarian assistance in armed conflict involve aspects such as the interpretative controversies and developing trends of relevant rules, and their inspirations to China. The conduct of humanitarian assistance must be subject to the consent of States concerned, irrespective of the nature of the armed conflict. Except for the situation of occupation, States concerned are not obliged in general to consent to humanitarian assistance. In recent years, the development of the issue of State consent to humanitarian assistance in armed conflict has exhibited a general trend of balancing the protection of the sovereignty of the recipient State and the assurance of the survival of the civilian population. Specifically, while the necessity of State consent is affirmed, the right of States to withhold consent to humanitarian assistance has been restricted; the Security Council has also been taking more coercive measures to carry out assistance. Accordingly, China may defend from a legal angle the role of sovereignty and State consent in this legal regime, elucidate its impugned positions in consideration of the balance between sovereign interests and humanitarian spirit, and enhance domestic law and academic research.

Keywords:Humanitarian Assistance, State Consent, Armed Conflict, International Committee of the Red Cross, Security Council


Reconfiguration on Territoriality in Transnational Recognition and Enforcement of Intellectual Property Judgments


Fan Jing


Abstract:The principle of territoriality was one of the main controversial disputes concerning IP rights in the negotiations of the HCCH Judgment Project. Special concerns have been caused by the territorial principle in cross-border recognition and enforcement of judgments concerning IP rights compared to other private rights. One comes from the effects of recognition and enforcement of foreign IP judgment contrary to the principle of territoriality or not. Other ones come from the jurisdiction and choice-of-law issues, in which territorial principle also has comprehensive implications, contributing to judgments with complex situations that need special considerations in the recognition and enforcement. It is claimed that the territorial principle should not become obstacles of recognition and enforcement of judgments on IP rights theoretically. Due to the territorial principle, the outcome of recognition of foreign IP judgment neither means IP rights are effective in the requested states, nor foreign IP rights laws have extraterritorial effects in the requested states, the only effect is confirming the validity issues in its own state. Figuring out those confusions, we come to the conclude that besides some limitations on validity issues of registered IP rights, recognition and enforcement of foreign IP judgment is not contrary to the territoriality principle, no matter concerning validity issues or infringement or contract issues.

Keywords:Territoriality Principle of IP Rights, Recognition and Enforcement of Foreign Judgments, Indirect Jurisdiction, Public Policy, Extraterritorial Effects


A Study on the Setting Aside of Foreign-related Arbitral Awards Beyond the Legal Basis


Zhang Chunliang and Guan Longqing


Abstract:The setting aside mechanism of arbitral awards is the most stringent arrangement for judicial review of arbitration. The grounds for setting aside of arbitral awards which is the core of the setting aside mechanism, deserves a strict and reasonable consideration. The setting aside system of foreign-related arbitration awards is established in the Article 274 of Civil Procedure Law of the People’s Republic of China (2017), which adopts a statutory, closed, procedure-based “Exhaustive List” model and stipulates five grounds for setting aside of arbitral awards. However, in judicial practice, there are situations in which the courts set aside the arbitral awards beyond the legal grounds. The opinions of some cases violate the legal provisions, but they are embodied with reasonability. Responding keenly to practical needs and transforming practical wisdom in order to improve setting aside mechanism of foreign-related arbitral awards, is an opportune move to take advantage of the momentum of Arbitration Law of the People’s Republic of China revision, under the new situation that the credibility of arbitration needs to be improved urgently and the autonomy of arbitration will seek to be deepened. The list of the legal basis for setting aside arbitral award should be established, combing due process, party autonomy with public interest, to balance closeness and openness, legality and autonomy, substantive and procedural, and to harmonize multi-values of public, legal and private interests

Keywords:Foreign-related Arbitration, Arbitral Awards, Grounds for Setting Aside of Arbitral Awards, Party Autonomy, Due Process, Public Interest