Chinese Review of International Law(1-2023)




The Original Contribution of Xi Jinping’s Important Theories of International Rule of Law to the Reform of International Rule of Law


Li Shouping and Liu Caikuan


Abstract:The world today is in a situation of "great change not seen in a century". Global crises are constantly emerging, while the international rule of law as a governance tool has failed at the global level. The international community urgently needs to propose new solutions to solve the dilemma of global governance. Xi Jinping’s important theories of international rule of law has been continuously improved and developed in the context of the failure of the current global governance system to achieve the common interests of mankind and respond to global crises. Those theories advocate the concept of a community with a shared future for mankind to guide the reform of international rule of law. It insists on promoting domestic rule of law and foreign-related rule of law as the path of international rule of law reform, taking international rules jointly written by all countries as the principle of international law making, and implementing the purposes and principles of the UN Charter as the basic rule of international law implementation. Xi Jinping’s important theories of international rule of law is an important contribution of China to the reform of international rule of law. Formed in the era of “unprecedented changes in a century”, it provides a Chinese solution to the dispute over international rules, provides the ideological guidance and rule clarification for the international community to promote the reform of international rule of law, and provides the path guidance for international law making.

Keywords:International Rule of Law, Global Governance, Original Contribution, A Community with a Shared Future for Mankind, Charter of the United Nations


The Implementation of “Due Regard” between Mining Activities and Submarine Cables in the International Seabed Area


Dong Shijie


Abstract:With the development of mining activities in the International Seabed Area (hereinafter referred to as “the Area”) and the increasing number of submarine cables, it is likely to raise conflicts between mining activities and submarine cables. The United Nations Convention on the Law of the Sea (hereinafter referred to as “UNCLOS”) provides reciprocal “due regard” between mining activities and submarine cables. However, there is no provision for the implementation of it. At present, there are two approaches to implement “due regard”: one is physical separation, the other is conflicts coordination. The advantage of physical separation lies in the convenience of the operators and contractors to implement “due regard” so as to obtain certainty for both activities. But the difficulty of physical separation lies in how to establish separation distances or submarine protection zones in contract areas where contractors are reluctant to make concession. The advantage of conflicts coordination is flexibility arising from case-by-case solution. However, conflicts coordination may not facilitate operators and contractors to agree on practical measures in concrete cases, which would empty the obligation of “due regard” in the end. Moreover, the “due regard” among mining activities and submarine cables cannot be realized only by Exploitation Regulations, but also the dialogue between two industries as well as domestic measures of States.

Keywords:International Seabed Area, Mining Activities, Laying Submarine Cables, Due Regard, Regulations for Exploitation of Mineral Resources in the Area


The Process of International Maritime Organization's Legal Regulation on Maritime Autonomous Surface Ships and China's Response


Yuan Xue and Yu Bo


Abstract:The technical and commercial development of Maritime Autonomous Surface Ships (MASS) is gradually taking shape under the full attention of the international community. IMO has called for the development of the MASS Code for this purpose, and its rulemaking is being carried out in three phases, with the aim of taking the lead in establishing uniform MASS rules at the international level. National classification societies, led by IMO, actively constructing a system of MASS domestic classification society code guidelines. Countries have also responded to the new developments in the MASS international code with the views expressed in IMO committee meetings and changes in their domestic legislation. The content structure of MASS rules is gradually becoming clear, but there are still problems such as the ambiguity of the autonomy hierarchy. In this regard, China should choose the following legislative paths: China should maintain active interaction with the development of international MASS Code at the international level. At the domestic level, China should carry out a review of maritime related laws and regulations, but the introduction of MASS and the application of its legal relations should be carefully considered in the process of amending the Maritime Law. At present, policy documents of the government and technical rules of China Classification Society should still guide and regulate the design, construction, trials, operation and management of MASS to promote the development of smart shipping and smart ships. After the issue of the instrument of the MASS Code of the IMO, the domestic legislation work should be carried out orderly according to the preliminary regulatory review of domestic laws and regulations.

Keywords:Maritime Autonomous Surface Ship, Levels of Autonomy, MASS Code, Classification Society, Legislative Response


U.S. Cross-Border Subsidy Countervailing System: Historical Evolution, WTO Compliance and China’s Response


Hu Jianguo and Chen Yujing


Abstract: In the context of insufficient multilateral legal regulation of transnational subsidies and China’s implementation of the Belt and Road Initiative, the United States and European Union have prepared or are preparing to regulate the potential negative effects of transnational subsidies through unilateral measures in recent years. Historically, the United States is the largest donor of foreign aid. In principle, the countervailing provisions of the Tariff Act of 1930 are not applicable to transnational subsidies; international consortia and upstream subsidies are excluded, but the scope and practices of both exceptions are very limited. America COMPETES Act of 2022 proposes to establish a cross-border subsidy countervailing system applicable to subsidies which are provided to international consortia or multinational companies, transnational subsidies (narrow sense) and cross-border upstream subsidies. The cross-border subsidy countervailing system may not be totally consistent with the SCM Agreement on key issues such as the location of the subsidy recipient, the attribution of state behaviour, the determination of specificity, and the transfer of interests. If the cross-border subsidy countervailing system is fully implemented, it will have a huge negative impact on the export of intermediate products originating in China as well as overseas Chinese funded enterprises, which will further affect the “going out” of Chinese enterprises and slow down the implementation process of the Belt and Road Initiative. Its implementation may also lead other countries or regions to follow suit and disrupt the global supply chain. Given the legitimacy and necessity of the anti-subsidy measures against transnational subsidies, the future multilateral anti-subsidy rules on transnational subsidies shall be fair and reasonable, and avoid the discriminatory application to particular countries.

Keywords:Cross-Border Subsidies, Transnational Subsidies, Anti-Subsidy, WTO, the Belt and Road Initiative


Research on Benefit Principle in Allocation of International Tax Jurisdictiont


Mao Yan


Abstract:The allocation of international tax jurisdiction faces a double dilemma from both the rules and theoretical perspectives, attributed to increasingly complex technical rules and the weak economic allegiance theory. The benefit principle has attempted to move from domestic tax law into international tax law. However, it has never been able to escape the challenge of quid pro quo and quantification. By comparing with the principle of ability-to-pay and value creation, the benefit principle need not be obsessed with quantifying the benefits that taxpayers receive from tax jurisdictions, instead, it uses the standard of taxation determined by the majority under a public law contract. Interpreting its constitutive elements systematically and using the public-commercial contract as its analytical framework, the benefit principle provides a systematic theoretical basis for resident countries, source countries, and even market countries to claim taxing rights. In terms of specific rule design, the benefit principle not only provides the rationale for current international tax reform, guides the rules of tax base determination, revenue sourcing, and nexus, but gives theoretical support to the location-specific advantages and contributes Chinese wisdom to the improvement of the international tax jurisdiction system.

Keywords:Benefit Principle, Digital Economy Taxation, International Tax Jurisdiction, Two-Pillar Solution, Value Creation


An Empirical Study on the Effects of Amicus Briefs on Investor-State Arbitration Awards: Based on ICSID Cases


Shan Juming


Abstract:The effects of Amicus briefs on arbitration awards reflect the Non-disputing Parties’ complicated relationship with the tribunals, even with the Disputing Parties in international investment arbitration. The value of the empirical research is to help us understand how Amicus Curiae influences the arbitration awards through its “language of submission”. The research found that Amicus Briefs have a degree of “substantive” influence on ICSID arbitration awards. However, because Amicus briefs are not adopted by arbitral tribunals in most cases, such influence is often “less than positive”. It links the effectiveness of this impact with the referential nature of the Amicus briefs supporting the award and the discretionary nature of the arbitral tribunal. In addition, the extent to which Amicus briefs affect the decision may be influenced by some “non-legal factors” such as the social status of the Amicus Curiae, the experience of participation, the manner in which the opinion is submitted and the form of its content. With the improvement of the rules on Amicus Curiae participation in investment arbitration, the accumulation of the experience of Amicus Curiae participation and the pursuit of the legitimacy of the arbitral award, more and more Amicus briefs will have a more substantial impact on the award. The basic idea of balancing the impact of Amicus Curiae is to follow the principle of “lenient in, strict out” principle in design and discretion.

Keywords:Investor-State Arbitration, Amicus Briefs, Substantial Effects, Non-Legal Factors, Discretion



A Study on the Problems in the Application of CISG in China’s Judicial Practice and Suggested Solutions: From the Perspective of Parties’ Choice of Chinese Law


Lian Junya


Abstract:Article 6 of the United Nations Convention on Contracts for the International Sale of Goods (hereinafter referred to as CISG) allows parties to exclude its application, which makes its final application in China uncertain. In China’s judicial practice, there are a lot of cases in which CISG is wrongly excluded from applying to the international sale of goods contracts which CISG was intended to apply, or the article 6 of CISG concerning respecting parties’ autonomy is not correctly complied with, typically in those cases which parties choose Chinese law by the agreement in their contract or in the litigation process but did not explicitly exclude CISG at the same time. The main reasons lie in the reluctance to ascertain the parties having places of business in different CISG contracting states, the lack of cognition of CISG or its article 6, and the wrong understanding of preemptive application of CISG and the applicable conditions and contents of article 6. In order to correctly deal with the relationship of CISG and parties’ choice of law, it is advised to enhance the judges’ ability in the ascertainment of CISG contracting states, improve their understanding of article 6 of CISG, unify the judicial application of article 6 of CISG by publishing guiding cases and building a systematic CISG case database, and improve the legal provisions concerning application of CISG in China.

Keywords:Contracts for the International Sale of Goods, CISG, Party Autonomy, Chinese Law, Application Exclusion



Solution to Absence of Rules in the Implementation of the Arrangement on Recognition and Enforcement of Judgments in Matrimonial and Family Cases Between Mainland and Hong Kong


Zhang Shudian


Abstract:Arrangement on Recognition and Enforcement of Judgments in Matrimonial and Family Cases between Mainland and Hong Kong has constituted a unified statutory regime for the recognition and enforcement of judgments in Matrimonial and Family cases between Mainland and Hong Kong. However, there are still some problems, such as the restriction on the scope of application, uncertainty on applicable procedures for reference, and transformation of the rules of recognition and enforcement, lack of explicit rules for uncovered issues. In Hong Kong, Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance(hereinafter referred to as “the Ordinance”),and Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Rules (hereinafter referred to as “the Rules”)have been enacted to apply the Arrangement. The Ordinance and the Rules have made supplementary provisions on the scope of application, procedural rules, registration and registration cancellation procedures, coordination between statutory law and common law. To better implement the Arrangement and avoid the fragmentation and inconsistent ruling of the mechanism of the recognition and enforcement of judgments in matrimonial and family cases between the Mainland and Hong Kong, the Supreme People’s Court of the People’s Republic of China should make a complementary judicial interpretation to enable the reference provision to apply to all the judgments in matrimonial and family cases, to construct an independent and a more convenient recognition procedure for divorce agreements, to clarify the rules of uncovered issues and to specify the content of judicial cooperation.

Keywords:Arrangement on Recognition and Enforcement of Judgments in Matrimonial and Family Cases Between Mainland and Hong Kong, Hong Kong, Judgments in Matrimonial and Family Cases, Recognition, Enforcement, Interregional Judicial Assistance, Interregional Conflict of Laws