Chinese Review of International Law(2-2021)

Source: | 2021.03.30  




Study on Application of Law in Cases of State Immunity: Discussion in the Compound Context of Judicature and Foreign Affairs


Sun Ang


Abstract:The principle of state immunity in international law shows the reality of coexistence of absolute immunity doctrine and restricted immunity doctrine. The applicable law, i.e. the criteria to determine state immunity, thus become one of the key issues in dealing with state immunity lawsuits. At diplomatic level, the defendant state and the state of forum will express their respective positions of public international law, whilst at judicial level, the court will apply the law of the forum in accordance with its rules of private international law. If sued in a state which adopted the doctrine of restricted immunity, court will apply that doctrine when deciding the case, even if the defendant state holds the doctrine of absolute immunity. This has been the case in all the lawsuits of state immunity that China has faced in the US courts since the reform and opening up. In this regard, China has the right to lodge diplomatic representations with U.S. based on the doctrine of absolute immunity, convey its position of absolute immunity to the audience in public relation campaigns, and claim absolute immunity in U.S. court if choosing to appear in court, as well as make best use of U.S. statute and case law, to support immunity claims. When there are gaps in U.S. law, it is necessary to study the legal consciousness and the foreign policy, including general policy and country-specific ones, which may be employed by judges and U.S. government respectively in their interpretation of law.

Keywords:State Immunity, Foreign Sovereign Immunities Act, Application of Law, Judicial Lawmaking, Foreign Policy


On the Subject Matter of Chinese Blocking Rules


Liao Shiping


Abstract:The Rules on Counteracting Unjustified Extraterritorial Application of Foreign Legislation and Other Measures, the purpose of which is to make compensation for the losses, arising out of unjustified extraterritorial application of domestic law other than China, of Chinese entities in international business transaction, is a vital component of the Chinese legal system on extraterritoriality. Article 2 of the Rules, as the basis for the understanding of the other texts, is a subject matter clause. People share different views on the connotation of this clause. Textural interpretation, leads to the conclusion that the secondary sanction and the primary sanction with the equivalent effect of secondary sanction are both fallen into the subject matter of the article 2, which seems to be more or less contradictory with that from the perspective of intentional interpretation. However, the gap can be filled when introducing the objective and purpose approach and the holistic interpretation.

Keywords:The Blocking Statute, the Subject Matter, Extraterritorial Application, Secondary Sanction, Primary Sanction, Violation of International Law


Challenges and Keys to China’s Extraterritorial Regulatory System: Also a Commentary on Rules on Counteracting Unjustified Extraterritorial Application of Foreign Legislation and Other Measures


Shang Shu


Abstract:Facing new challenges brought about by global regulatory competition and power transition in the United States, it is necessary to evaluate and analyze the applicability of Rules on Counteracting Unjustified Extra-territorial Application of Foreign Legislation and Other Measures and possible industrial responses. Given the decline of U.S. judicial extraterritoriality and the expansion of executive extraterritorial enforcement, this article argues that China’s new extraterritoriality needs to be constructed by balancing legislative, executive, judicial, and governance needs. First, the development of civil and commercial rule of law should lead to further selection of China as a dispute resolution venue; second, the maturity of the domestic market should serve the basis of China’s effective extraterritorial regulatory regime; third, the rise of intellectual property rights of technology companies should improve China’s export regulatory system; everything then needs to be supplemented by training a group of legal talents familiarize with foreign-related legal practices. Eventually, China’s voice in the global governance system will be enhanced. At the same time, it is necessary to avoid biased perspectives in academic and practical legal research by “substituting foreign policy thinking for international legal principles” in this field.

Keywords:Blocking Statutes, Extraterritorial Regulation, Regulatory Competition, Sanctions, Extraterritoriality, Foreign-related Rule of Law


Path to Practice and Strategy for Sustainability of Participation in Global Governance by Chinese Judiciary


Wu Ka


Abstract:By means of The Belt and Road judicial practices, Chinese courts have now become an increasingly important and unique force in China’s engagement with global governance. Chinese courts participate in global governance primarily through a procedure of hearing foreign-related cases, allocating global judicial governance authorities, determining rights and duties of the parties to the cases, and generating global governance effects.Since Chinese courts’ participation in global governance will be a long-term process, it is necessary to form a sustainable creative practice system containing resource supply, ability improvement, interaction under the rule of law, interests co-ordination, and multiple guarantees, as well as an inter-constructive supporting theory model including participation practice, identity transformation, and international rule of law.When participating in global governance as a new global regulator, Chinese courts need to uphold the new Thought of Community with a Shared Future for Mankind and relevant new ideas, and to apply them to the hearing of foreign-related cases, especially to the whole process of their ability improvement of international dispute settlement, and their interaction with international law.

Keywords:Chinese Judiciary, State Governance, Global Governance, Foreign-related Rule of Law, International Rule of Law


On the Jurisprudence of Individual Responsibility in International Law: Legal Origin and Value Relations


Li Jiang


Abstract:In recent years, some western countries attempted to conceal war crimes committed by their military staff or intelligence officers, and tried to resist or hinder the process of criminal accountability, which has aroused widespread concerns around the globe. Contrary to the general perception, individual responsibility in international law and modern state responsibility share a common legal origin. With the evolution of international law since late 19th century, international norms differentiated in terms of gradation and legal effect. To establish legal sanctions that were adequate to implement these new-emerging international obligations, individual responsibility was introduced through the de-collectivization of traditional international responsibility by employing the theories of abstract entities, individual duties and legal stipulation. Individual responsibility inherited and developed the legalism tradition, and through the expansion of its anticipated goals, it has formed a pluralistic theoretical structure composed of the normative, functional and order dimensions. Meanwhile, there are clashes among the triple intrinsic values of individual responsibility, and the inconsistency between theoretical rationality and empirical limitation can be observed. It concludes that political manipulation, double standards, and power politics in punishing international crimes should be resolutely opposed, and the authority of international law should be firmly upheld.

Keywords:International Responsibility, Collectivity, Individual Responsibility, Legal Structure, Intrinsic Value


Inter-regional Private Law among Mainland China, Hong Kong and Macau after the Handovers: Achievements, Reflections and Prospects


Tu Guangjian


Abstract:Since the handovers of Hong Kong and Macau in 1997 and 1999 respectively, China has become a country with multiple legal systems, following which the problem of inter-regional conflict of laws comes to surface. Compared with others, the Chinese problem of inter-regional conflict of laws has its own distinctive features, due to the unique political structure resulting from the policy of “One Country, Two Systems”.In the past two decades or so, China has made great achievements for its inter-regional conflict of laws in the field of judicial co-operations despite shortcomings and further improvements needing to be made. Looking to the future, with a sound legal basis, deeper integration of conflict of laws including jurisdiction and choice of law, even substantive private laws among the three regions should/could be achieved in a trilateral way.

Keywords:Inter-regional Private Law,Judicial Assistance, Arrangement, Mainland China, Hong Kong, Macau