Chinese Review of International Law(4-2022)




The Unique Position and Important Role of HKSAR in China’s Foreign-Related Rule of Law: In Commermoration of the 25th Anniversary of the Return of Hong Kong to the Motherland and the Implementation of the Basic Law of HKSAR


Huang Huikang


Abstract: “One Country, Two Systems” and the enactment of the Basic Law of the Special Administrative Region are a great initiative of the socialist rule of law with Chinese characteristics. The rule of law is the foundation of Hong Kong Special Administrative Region (HKSAR). The Constitution of the People’s Republic of China and the Basic Law of HKSAR are the cornerstones of HKSAR’s social prosperity and stability. The foreign-related rule of law in HKSAR must be coordinated with the country’s legal system in an integrated manner. HKSAR can become a testing ground for exploring the convergence of different legal systems and cross-border legal rules within the framework of “one country, two systems and three legal jurisdictions”. HKSAR’s advanced legal profession and legal service industry. HKSAR can become a center for international legal and dispute resolution services in the Asia-Pacific region, contributing to an international, market-oriented and law-based business environment for China. HKSAR and Mainland China together promote global government and international rule of law. HKSAR plays an irreplaceable and increasing role in promoting China’s rule of law in matters involving foreign elements.

Keywords:“One Country, Two Systems”, Hong Kong Special Administrative Region, Rule of Law in Matters Involving Foreign Elements, International Rules of Law, Basic Law of the Special Administrative Region


International Legal Disputes and Solutions Concerning the ROK-Japan Claims Agreement of 1965


Guan Jianqiang and Guan Yue


Abstract:The relation between South Korea and Japan has become increasingly tense as the courts in South Korea have made decisions favouring those forced labourers and so-called “comfort women” who suffered during the Japanese colonisation. The courts ruled against Japan, holding it legally liable, along with the Japanese government and Japanese companies. In response, the Japanese government applied a certain level of economic sanctions against South Korea. The legal dispute occurred due to the difference in understanding over the scope of the waiver of individual claims for Korean nationals under the 1965 Agreement on the Settlement of Problems Concerning Property and Claims and on Economic Co-operation (the ROK-Japan Claims Agreement of 1965), i.e., whether the individual claims of those forced labourer and “comfort women” were “already settled” under the said Agreement between South Korea and Japan. This article explains those human rights violations that enslaved civilians during the Japanese colonial period, with a focus on the illegitimacy of conscription in the colony, the validity of the Agreement, and its literal interpretation. It also discusses the extent to which public power could address the private right of individuals concerning fundamental human rights, and other problems they might face in practice, such as sovereign immunity. Finally, the paper analyses the measures that nationals of South Korea could apply when suing Japan for liability and the difficulties involved therein.

Keywords:ROK-Japan Claims Agreement, Forced Labourer, Comfort Women, Crimes Against Humanity, Jus Cogens, Sovereign Immunity


Review of the Challenges to the International Civil Aviation Organization During the Global Public Health Emergency and China’s Solutions


Ding Chunyu


Abstract:The COVID-19 pandemic has deeply impacted the global air transport. The international air transportation of passengers and cargo was disrupted, the supply chain was blocked, and the world economy was under pressure. No single State can deal alone with the global issue of international air transport effectively, given the nature of trans-border air transport operation and the rapid spread of infectious disease of the pandemic. The International Civil Aviation Organization (ICAO), being one of the specialized agencies of the United Nations, plays a key role in promoting international coordination and cooperation among Member States and stakeholders on international civil aviation matters during the COVID-19 pandemic, yet it still faces the challenge of the limited delegation of authorities from its Member States, the lack of binding force of the Chicago Convention and the Assembly resolutions, the lack of systematic and dedicated public health related international standards and recommended practices, and the low effective global implementation of the relevant international standards. China has gained rich experience in epidemic prevention and control and has taken the lead in its recovery of air transport. The relevant measures were included in the ICAO guidance materials to its Member States. It is recommended that China, together with other Member States and relevant stakeholders, continues the efforts within the multilateral framework of the ICAO, to improve the global air transport recovery guidance and documents, and to consider building consensus and seeking authorization from Member States for compulsory audit on the compliance of Member States to aviation related public health international standards, aiming at improving the capabilities of Member States in dealing with public health emergencies from the civil aviation perspective, recovering international civil aviation, strengthening the resilience of global civil aviation, and further enhancing global civil aviation governance.

Keywords:Global Public Health Emergency, COVID-19, ICAO, Delegation of Authority, International Standards, Audit


Treatment Standards of State-Owned Enterprises as Public or Private Entities Under International Economic Law


Gu Bin and Xu Chengjin


Abstract:The treatment standards of state-owned enterprises (SOEs) as public entities have far-reaching and significant implications against the background of China’s rise and the reform of global economic governance. The relevant standards have been abundantly debated and tested in three areas of international economic law: international financial law, represented by multilateral development bank law; international investment law, represented by law of the ICSID; and international trade law, represented by law of the WTO. After reviewing those areas of international law, the article concludes that a function-based approach has generally been observed in conducting the relevant examination, but some deviations, featuring an ownership-based approach, do exist. This finding is meaningful for the development of future international law, as well as for China’s domestic SOE reform. Broadly, it is instructive on whether and how China’s unique economic system, guided by a strong government, will be accepted by the international community.

Keywords:SOEs, Public Body, AIIB, WTO, Global Governance


State Immunity in International Cultural Property Recovery Suits


Huo Zhengxin and Chen Ruida


Abstract:The choice of position of state immunity constitutes the key to whether an international cultural property dispute with a sovereign state as the party could be brought to suit. In the absence of international treaties or customary international law, it is a general principle that the court holds the position of the forum state at the time of the litigation. For the immunity from jurisdiction, the nature criterion is fundamental to asserting jurisdiction over the conduct of the state involved in the international cultural property recovery suit based on the commercial activity exception; the expropriation exception is on the other hand one of the most frequently invoked exceptions for the recovery of war-looted cultural property. When it comes to the immunity from execution, whether the cultural property can be exempted from constraint measures depends on whether it is used for commercial purpose, while the immunity from seizure to cultural property on loan provides a special protection for foreign cultural property. China should accelerate the recovery of cultural property under the systematic construction of the rule of law in matters involving foreign elements, and enact comprehensive legislation of state immunity that reflects the position of restricted immunity as soon as possible. By doing so, a series of state immunity rules in need for the cultural property recovery shall be systematically developed.

Keywords:International Cultural Property Recovery, State Immunity, Immunity from Jurisdiction, Immunity from Execution, Rule of Law in Matters Involving Foreign Elements


Multi-Tier Resolution to Cross-Border Commercial and Investment Disputes Relating to China: A Focal Examination into Med-Arb


Gu Weixia


Abstract:Med-Arb, as one of the multi-tier dispute resolutions, has been widely used in China. This paper discusses the use of med-arb in international arbitration in China. In particular, it discusses the procedural difficulties and practical challenges brought by the Chinese approach to med-arb, and what China is doing or has done to address procedural concerns in the international arbitration community. The adjudicative and intrusive nature of Chinese-style mediation as well as the different roles of mediators and arbitrators, have led to criticism of due process, trial independence, and information confidentiality, conflict roles of arbitrators and mediators in Med-Arb process. Also, this paper points out that the East and the West have different understandings of Med-Arb Mediators in western countries do not undertake the role of adjudicators, but the “mediation system” with Chinese characteristics is intrusive and adjudicative. This paper discusses these differences of Med-Arb between the East and the West, focuses on its application under China’s “Belt and Road Initiative”, and puts forward suggestions regarding the use of Med-Arb in resolving international commercial and investment disputes related to China. Specifically, it emphasizes that the effective regulation of the neutrality and impartiality of Med-Arb by Chinese judiciary and legislature department, the division of information and adjudicators between the arbitration and mediation procedures, and the incorporation of international standards in the Chinese arbitration rules will benefit the promotion and improvement of Med-Arb system.

Keywords:Med-Arb, Multi-Tier Dispute Resolution, Belt and Road Initiative, Cross-Border, Commercial Arbitration, Investment Arbitration



Frontiers of Private International LawAround the World:An Annual Review (2020-2021)


Du Tao


Abstract:The COVID-19 pandemic, which continues to ravage the world, has brought unprecedented challenges to cross-border civil and commercial transaction. The United States and other western countries pursue unilateral trade policies, expand the extraterritorial jurisdiction, promulgate various economic sanctions and forcibly apply them extraterritorially, creating obstacles to traditional private international law. Western countries want to seize the legislative high ground in the field of artificial intelligence and big data, and try to realize their value-based foreign policies by pursuing social responsibility of multinational corporations. The Sepah Bank case of ECJ clarified the impact of EU economic sanctions regulations on foreigners’ claims. The US Supreme Court’s decision in the Nestlé case completely blocked the possibility of victims suing foreign natural persons under the Alien Tort Act. International organizations such as the Hague Conference on Private International Law continue to lead the process of unification of private international law in areas such as jurisdiction. For the first time, the U.S. Federal Court allowed the Trade Secrets Law to be applied extraterritorially, which will have a significant impact on Chinese companies. The politicization of private international law emerged rapidly. Law competition between countries has been intensifying.

Keywords:Private International Law, Annual Survey, Conflict of Laws, Extraterritorial Jurisdiction, Extraterritorial Application, Extraterritorial Effect, Corporate Social Responsibility