Chinese Review of International Law(1-2022)




The Practice and Perspective of the Communist Party of China on Treaties: A Centennial Overview


Shi Xiaobin and Zhao Yanrui


Abstract:The year of 2021 marked the centenary of the Communist Party of China (CPC). The CPC had many interactions with treaties in the past century. Although the CPC is not the subject of treaties in international law, it has influenced and shaped China’s treaty practice. Before the founding of the People’s Republic of China (PRC), the CPC advocated abolishing unequal treaties. Since the founding of the PRC, the CPC has directly led the treaty practice with different priorities at different stages, so as to jointly serves the great rejuvenation of the Chinese nation. The CPC’s perspective on treaties adheres to the Party’s governing theories as its guiding thoughts, sovereign equality as its core, peaceful development as its value proposition, unity of national interests, individual interests and the common interests of humankind as its pursued interests, implementation of and compliance with treaty obligations in good faith as the basis. In the future, the treaty work under the leadership of the CPC can be further improved from three aspects: to make a more balanced layout in the geographical and structural perspectives of treaties, to lead the international law-making process progressively, and to improve the domestic legislation regarding treaties with perseverance.

Keywords:Communist Party of China, Treaties, Unequal Treaties, Sovereign Equality, Peaceful Development, Common Interests of Humankind, pacta sunt servanda


Transnational Judicial Dialogue in the Rise of China: How Chinese Judiciary Enhances the Belt and Road Initiative


Cai Congyan and Wang Yifei


Abstract:Transnational judicial dialogue initially treated by Anne-Marie Slaughter as a separate theoretical issue reveals one of a State’s engagements of growing importance with other states in the globalization. Given the longstanding judicial philosophy, Chinese judiciary devotes itself to enhancing the Belt and Road Initiative (BRI), for the purpose of engaging the globalization and rising as a leading world power, shortly after that Initiative was established. Transnational judicial dialogue may help improve the understanding of the delivery justice in China and exhibit Chinese judicial wisdom to other BRI countries, thereby increasing the confidence on Chinese judiciary system and enhancing judicial cooperation between China and other BRI countries. It may also help other BRI countries better understand China’s national development and foreign policies. Chinese transnational judicial dialogue has its own characteristics, which especially refers to face-to-face programs research and study or “yanxiu” provided for foreign judges. This article indicates the diversity and significance of transnational judicial dialogue in the globalization. In particular, it demonstrates that China,which judicial system is different from that of the West, may also become a major player of transnational judicial dialogue and benefit other states at least on some aspects. Chinese transnational judicial dialogue sheds light weakness of Slaughter’s theory.

Keywords:Transnational Judicial Dialogue, the BRI, Chinese Judiciary System, Chinese Courts, Research and Study of Judges


Essays on the Choice of State Immunity Policy of Contemporary China


Ye Yan


Abstract:State immunity is a principle of customary international law recognized by the international community. It has the dual unity of opposites of both domestic law and international law, law and politics/diplomacy. Restricted by the principle of reciprocity, in formulating their own state immunity policies, countries should consider their national conditions and consider their domestic and foreign political/diplomacy environments comprehensively and choose policies which can maximize their own interests in the “game of state immunity” of the international community. China’s long-term judicial and legislative practice has proved that, except for the voluntary acceptance of jurisdiction and the application of the principle of reciprocity, China insists that the state enjoys absolute immunity in the courts of other countries and state-owned enterprises generally do not enjoy immunity. This practice and policy is also referred to as “Restricted Absolute Immunity”. As a part of China’s overall foreign policy, China’s state immunity policy should conform to the basic principles of China’s contemporary foreign policy. In analyzing China’s state immunity policy, it is found that “Restrictive Immunity”, on the one hand, only has very small theoretical and symbolic meaning to China in protecting quite few private entities’ litigation rights and maintaining China’s fair market economy, while on the other hand, can barely meet China’s basic needs in its contemporary international political and economic environment. “Restrictive Immunity” not only will make China lose its international political discourse and legal bases to assert state immunity abroad, but also will bring unnecessary diplomatic disputes to China, affect China’s “Belt and Road Initiative”, damage China’s national dignity and national political security and bring major challenges to China’s current judicial system. On the contrary, it is found that neither following other countries’ practice, maintaining China’s international image of opening-ups, nor the situation that China has signed the United Nations Convention on Jurisdictional Immunities of States and Their Property can constitute reasonable grounds for contemporary China’s choosing of “Restrictive Immunity”. Generally, “Restrictive Immunity” is China’s poor choice in the “game of state immunity” in international community while China’s long-standing practice of “Restricted Absolute Immunity” is the best choice for contemporary China. At present, the changes of China’s diplomatic environment make China’s state immunity legislation highly necessary and urgent. China should confirm its “Restricted Absolute Immunity” policy through legislation as soon as possible while, through corresponding system design, make best use of its advantages and bypass its disadvantages, to better serve China’s overall diplomatic situation.

Keywords:State Immunity, Restricted Absolute Immunity, Restricted Immunity, Foreign Policy, Principle of Reciprocity, Malicious Litigation


China’s Participation in Global Health Governance: Legal Basis, Overall Effectiveness and the Improvement Path: A Perspective on Public Health Emergency Response


Zhang Chaohan and Feng Qilun


Abstract:Public health emergency brings challenges to the global health governance system, making the international community aware of the practicality and urgency of strengthening cooperation in prevention and control. China has gradually expanded the breadth and depth of its participation in public health emergencies by continuously improving domestic legislation, strengthening international cooperation, and carrying out foreign health assistance. Its global health strategic arrangement has been gradually improved, its domestic response mechanism has played a significant role, the influence of international cooperation has been significantly enhanced, and foreign health assistance has been fruitful. Guided by the concept of “a community of shared future for mankind”, China should participate in the response of public health emergencies more deeply, build its global health strategic framework, clarify its strategic objectives, strategic positioning and implementation path, strengthen the discourse power, contribution ratio and scientific research ability of participating in epidemic response cooperation, re-examine the proportion and influence of foreign aid funds, and innovate foreign health aid bodies in order to better play the role of a big country, safeguard the core interests of the country, and improve the global health governance system.

Keywords:Global Health Governance, Public Health Emergency, International Cooperation Mechanism, A Community with a Shared Future for Mankind, Strategy of Health


Foreign Experiences of the Foreign Agents Law and Its Implications


Jiang Hui


Abstract: In order to prevent foreign forces from engaging in domestic political activities in a covert way and to maintain the political security, there has been a global trend of enacting foreign agents law alongside the anti-spy law. Foreign agents law requires foreign agents who represent foreign forces to influence domestic political activities to undertake the obligation of identity disclosure and continuous information disclosure. These laws also have harsh legal responsibilities. Due to the stigmatizing effect of the label “foreign agent” and the additional cost of information disclosure set by the foreign agents law, these laws have an effect of prohibiting and restricting foreign agents from engaging in political activities. As a result, it has been used by governments of various countries as a tool for foreign struggles. In recent years, there has been a tendency to use these laws to regulate the media. China has not had a similar law yet, and the Law of the People’s Republic of China on the Administration of Activities of Overseas Non-Governmental Organizations within the Territory of China cannot achieve the similar functions and effects. Therefore, from the perspective of improving the foreign-related legal system and maintaining national security, it is necessary to establish a similar system promptly. If such a law is enacted, the relationship between individual rights protection and supervision needs shall be handled cautiously.

Keywords:Foreign Agents Law, Foreign Agents, Foreign Forces, Stigmatization, Information Disclosure, Overseas NGOs


Evolution of Trade Barrier Legislation in EU and Its Enlightenment


Chen Yongmei


Abstract:In July 2020, EU appointed its first Chief Trade Enforcement Officer (CTEO) to supervise the enforcement of EU trade policy. One of the functions of the CTEO is to manage investigation based on Trade Barrier Regulation (TBR). There are two approaches to legislations concerning the trade barrier investigation in EU. One is article 113/133 of Treaty of EU as primary legislation, while the other is TBR as secondary legislation. On the one hand, since article 113/133 of Treaty of EU has been evolved into article 207 of Treaty of Lisbon, which extends the scope of EU common commercial policy, accordingly, extends the scope of trade barrier investigation. On the other hand, the TBR has set strict procedure to investigate trade barriers, which facilitates EU enterprises to apply for investigation to barriers set by third countries outside EU. The impact on EU enterprises by the two level legislations concerning trade barrier investigation in EU shows that the two approaches have advantages and disadvantages respectively. While China tries hard to find ways to the creative construction of the One Belt One Road, China should learn from EU’s strong points and at the same time close its loophole, developing transparency in trade barrier investigation, establishing online service for potential applicants and working out more normative and reliable regulations to protect the oversea rights of Chinese enterprises and providing a foreseeable legal environment for them.

Keywords:Treaty Establishing the EEC, Treaty of Nice, Treaty of Lisbon, Treaty of EU, TBR



Return to the Certainty of Conflicts Law?——Comments on the Draft Restatement (Third) of Conflict of Laws


Xu Qingkun


Abstract:The American Law Institute initiated drafting of the Restatement (Third) of Conflict of Laws in 2014. The drafts of several chapters have been approved until now. The new restatement adopts the “two-step model” based on the Professor Currie’s “governmental interest analysis” and mainly aims to systemically generalize the new rules developed in judicial practices since the beginning of conflicts “revolution”. In contrast to the choice-of-law rules of the Restatement (Second) of Conflict of Laws, the new rules differentiate issues and become more concrete and particular; the escape clause no longer frequently follows the specific rules in order to enhance the certainty; the choice of law endeavors to select the most appropriate law rather the state with which the dispute has the most significant relationship. However, the new restatement provides at least two approaches for users to depart from the specific choice-of-law rules. One is the general escape clause. The other is the choice-of-law model. The two approaches inject some flexibility to specific rules and help courts to achieve individual justice. If the new restatement obtains the “golden mean” between certainty and flexibility, the answer will appear in the final draft and its practices.

Keywords:American Law Institute, Conflicts Law, Restatement, Certainty, Contracts, Torts



A Commentary on Article 16 of the UNCITRAL Expedited Arbitration Rules


Sun Wei


Abstract:The UNCITRAL Expedited Arbitration Rules, which were promulgated by the United Nations Commission on International Trade Law provide a model text for expedited rules in international arbitration. Article 16 of the UNCITRAL Expedited Arbitration Rules, which addresses the period of time for rendering the award and what happens when the award could not be rendered within such time period, is the core provision as well as one of the most complex provisions of the entire rules. The Article is structured in a progressive manner: it first sets forth a time limit for rendering the expedited arbitration award; then authorizes the arbitral tribunal to unilaterally extend the time limit; and further provides that if there is a risk that the award cannot be made within the already extended time limit, the tribunal can only decide for a final extension if expressly agreed by all parties to the arbitration (otherwise any party may request that the Expedited Rules no longer apply to the arbitration). Efficiency is the core value of expedited arbitration, but efficiency cannot be achieved without regard to the autonomy of the parties, the practical needs of the arbitral tribunal, the enforceability of the arbitral award and other factors. How to maintain a balance among the values of efficiency, equity and enforceability is a challenge that must be addressed in the process of the establishment of expedited arbitration rules. The provisions of Article 16 on the time limit of rendering award are a prominent example of checks and balances among these three values and could be used as a reference by Chinese arbitral institutions when revising their arbitration rules.

Keywords:UNCITRAL, Expedited Arbitration Rules, Time Limit for Rendering the Award, Efficiency, Equity, Enforceability