Chinese Review of International Law(6-2021)




The China-EU Comprehensive Agreement on Investment and the Right to Regulate: Opportunities and Challenges


Ye Bin


Abstract:The Comprehensive Agreement on Investment (CAI) concluded in principle in December 2020 is a significant achievement for international economic governance underpinned by China and the EU in the era of uncertainty and in the climate of rising anti-globalization sentiment. The CAI demonstrates not only China’s commitments to the new generation of international investment rules, which require to restrict the right to regulate and provide more market access, but also its ability to reserve appropriate policy space for its own development. In terms of investment liberalization, level playing field and sustainable development, the CAI approaches and even exceeds the high standards of the CPTPP or that of the EU-Japan EPA. If the CAI can be duly ratified and come into force, as for China, it will launch, with new opportunities and risks, a second round of international rules integration and high-level opening up after China’s accession to the WTO, which entails to deepen the reforms for Chinese state-owned enterprises, to introduce greater transparency of public authority and subsidy, and to improve protection on labour rights and environments at a higher level. However, the EU’s recent autonomous legislative initiatives, especially the proposed Regulation on Foreign Subsidy, being designed to address the so called foreign state-driven investments within the internal market, would make Chinese investments in the EU face external risks and uncertainties in the might-be era of post-CAI.

Keywords:China-EU Comprehensive Agreement on Investment, CAI, the Right to Regulate, Competitive Neutrality, State-owned Enterprise, Sustainable Development


A Study of the Dissemination and Development of International Law in China:From the Translation of “Public Law”


Wu Guanzheng and Wang Chuanli


Abstract::The beginning of the formal introduction of western international law into China was the Elements of International Law which translated by William Martin, who found the common term between two different world orders and knowledge systems of China and the West——“public law”. On the one hand, from the perspective of natural law, he described “public law”(international law)as a transcendent axioms and a just law universally observed by all countries. On the other hand, he claimed that the international law originated from ancient China Public law, this theory had played an important role in the acceptance and dissemination of international law in China. Although time changed, the concept of “public law” and its doctrines have always influenced the naming and the development of international law in China. Today, China still emphasizes the fairness or moral values of international law in practice and theory. To analyze its nature from the start of the history, international law in essence is the international expansion of domestic contract laws, which are private laws, not pubic laws in the domestic law system. However, after years of development, the number of “public laws” in international law has increased, especially the laws continuously made by international organizations, which enhanced the “public” feature of international law. China can take advantage of its profound public law tradition in culture, to provide Chinese solutions and wisdoms and contribute to the “public law” development in international law.

Keywords:Elements of International Law, Public Law, Chinese Source of Public Law, International Law, International Organization Law-making


On Inter-State Communication in International Human Rights Treaties


Dai Ruijun


Abstract:Inter-state communication is an important monitoring mechanism of international human rights law. It is widely stipulated in the global and regional human rights conventions. Generally speaking, inter-state communications are procedures with the characteristics of mandatory or optional, legal or political, reciprocal and non-reciprocal, public beneficial and self-interest. Compared with other monitoring procedures under international human rights law, inter-state communication has its unique advantages and values in terms of procedural convenience, breadth of applicable situation and normative nature of allegation. However, in view of the insurmountable politicization of the procedure,due to the consideration of state sovereignty and maintenance of international relations, this procedure has rarely been used. In 2018, the United Nations Committee on the elimination of racial discrimination received the first three inter-state communications. The institutional elements of the procedure on UN level, such as the subject, the applicable cause and the admissibility condition, have experienced the practical test for the first time. The divergence on the priority between erga omnes nature of international human rights law and the principle of state consent triggered by the communication State of Palestine v. Israel calls for more standardized usage of inter-state communications.

Keywords:Inter-state Communication, International Human Rights Mechanism, Treaty Body, Racial Discrimination, Obligations Erga Omnes


Review of the Moon Agreement and China’s Considerations Under the Prospect of Space Resources Exploitation


Yang Kuan


Abstract:In recent years, the technology and commercialization for space resources exploration have achieved rapid development. The new changes of the legal environment for space resource exploration highlighted the need to review and activate the Moon Agreement, which has not yet been accepted by the majority of space-faring countries due to reasons including the disagreement over the concept of the “common heritage of mankind”. The Moon Agreement has advantages in establishing a unified international mechanism for the exploration of space resources. China should consider promoting the review of the Moon Agreement in the framework of the UN, and take it as an opportunity to construct an international legal mechanism for space resources exploration and use. It is a good opportunity for China to actively participate in and even lead the international legislation on the exploration of space resources, and to limit the unilateral commercial exploration of space resources by the US. China should take into consideration the progress of the review, the attitude of major space countries and the level of development of China’s space resources exploration technology.

Keywords:Outer Space Resources, Outer Space Resources Exploitation, Moon Agreement, Common Heritage of Mankind, Commercialization of Outer Space


U.S. and European Strategic Positions on Data Competition and the Response of China:From the Perspective of Domestic Legislations and Negotiations of Trade and Investment Agreements


Hong Yanqing


Abstract:Interstate competitive dynamics for data are increasingly taking shape. The United States has de facto established its enterprises as the carriers of U.S. national interests in cyberspace, and its legal and policy tools for data security and governance have gone global with U.S. enterprises, enabling them to hold and control as much global data as possible. The EU, on the other hand, has removed barriers to data access and control in the region for European companies along the lines of the digital single market and technological sovereignty, significantly raising the threshold for foreign companies to operate within its borders, and “projecting” its data governance order beyond its borders through extraterritorial jurisdiction and control of cross-border data flows to facilitate the globalization of its companies operations and thus gain greater control over global data. In the World Trade Organization negotiations on e-commerce rules, the United States and the European Union have each proposed provisions to solidify their domestic data security and governance order. The legislations passed by China recently are more about setting up the framework, process, and tools for data security and governance, and lack a substantive position on data competition, which leads to the largely absence of Chinese positions in the negotiations of trade and investment agreements. China needs to reverse this situation as soon as possible and provide a rule base for Chinese enterprises to participate in global competition.

Keywords:Data Mastery, Data Control, Inter-state Competition, Negotiations of Trade and Investment Agreements, Internal and External Integration


A Study on the Limits to Extraterritorial Jurisdiction in the United States: From the Perspective of the Comparation of the Restatements (Third & Fourth) of the Foreign Relations Law


Guo Yujun and Wang Yan


Abstract:On the basis of the Restatement (Third) of the Foreign Relations Law (1987), the American Law Institute published the Fourth Restatement in 2018. The Fourth Restatement continues the Third Restatement’s distinction of jurisdiction into prescriptive, adjudicative, and enforcement jurisdictions, and restates the corresponding limiting factors. Based on the restatement of the international law, the Third Restatement treated the reasonableness as the main limit to extraterritorial jurisdiction. On the contrast, the Fourth Restatement is based on the restatement of the domestic law and judicial practices of the United States, and the international comity becomes the core limit to extraterritorial jurisdiction of this edition. From reasonableness to international comity, from the restatement of international law to the one of domestic law, the huge change shows the rise and potential fall of foreign affairs exceptionalism, and the different importance of the international law in the United States. When it comes to China, on the issue of extraterritorial jurisdiction, China should resolutely oppose the contempt for international law like the United States, and insist on the respect for the international law. Besides, China should unify the pursuit of its national interests with the maintenance of international harmonization and stability, carry out self-restraint of the exercise of extraterritorial jurisdiction, and guard against the exorbitant extraterritorial jurisdiction. The exercise of extraterritorial prescriptive jurisdiction should not violate the principle of reasonableness, the resolution of extraterritorial adjudicative jurisdictional conflicts should adhere to the principle of international comity, and the exercise of extraterritorial enforcement jurisdiction should follow the principle of international cooperation.

Keywords:Restatement of the Foreign Relations Law, Extraterritorial Jurisdiction, Reasonableness, International Comity, Principles of Statutory Interpretation



On Recognition and Enforcement of Foreign Punitive Damages Judgments:From the Perspective of Judicial Practices in Civil Law Countries


Wu Yong


Abstract:It is quite controversial that to what extent that the punitive damages judgments rendered by foreign countries could be recognized and enforced by the required country. According to the judicial practices in the main civil law countries, the punitive damages judgments are likely to be characterized as the civil nature instead of the penalty nature. On the other hand, the foreign punitive damages judgment is not, per se, contrary to public policy in France and Italy while be deemed in Germany and Japan. The foreign punitive damages judgments are refused to be enforced due to its breach of the fundamental public policy or it does not conform to the doctrine of proportionality. It is argued that the punitive damages judgments should be distinguished to compensative and punitive parts which the former part could be enforced by the required country to the extent that it would be rendered according to its domestic law. China may basically take the division approach to enforce the punitive damage judgments to the extent which belongs to the actual loss or harm suffered and to take the doctrine of proportionality to assess the interest balance of the excessive punitive damages.

Keywords:Punitive Damages, Public Policy, Doctrine of Proportionality, Recognition and Enforcement of Foreign Judgments, Civil Law Countries



Revision of Arbitration Law from the Perspective of Empirical Legal Research: Consensus and Differences


Mao Xiaofei


Abstract:At a time when the Arbitration Law of the People’s Republic of China undergoes major amendments, the Institute of International Law of the Chinese Academy of Social Sciences, the Legislative Studies Society of the Beijing Law Society, and China Academy of Arbitration Law jointly launched the first “Survey of Arbitration Experts Opinions” in June 2020, with 102 responses from domestic arbitration experts, and 6 responses from international arbitration experts. The survey shows that a significant expert consensus (over two-thirds absolute majority) has emerged on several key issues for legislative amendments, including the introduction of the concept of the seat of arbitration and the establishment of competence-competence principle, as well as forward-looking legislation such as online hearings and electronic services. It is noteworthy that the majority opinion of domestic experts differs significantly from that of foreign experts on the scope of arbitration and the legalization of ad hoc arbitration, indicating that the legislative work needs to strike a proper balance between the internationalization and indigenization of the Chinese arbitral system with reasonable arrangements. Compared with the Arbitration Law of the People’s Republic of China (Draft for Comments) published by the Ministry of Justice on July 30, 2021, most of the amendments are in line with the consensus of the experts reflected in the questionnaire, but there are still differences in the electronic arbitration agreement, the qualifications of arbitrators, and the arbitral immunity.

Keywords:Arbitration Law, Arbitration Law (Draft for Comments), Seat of Arbitration, “Double-track System” of ad hoc Arbitration, Electronic Arbitration Agreement, Doctrine of Arbitral Immunity