Some Thoughts and Suggestions for Stepping Up Legislation in Foreign-Related Fields

Liu Jingdong

Abstract:Stepping up legislation in foreign-related fields is the basis and premise for advancing the rule of law in domestic and foreign-related affairs in a coordinated manner. Over the past 40 years of reform and opening up, China’s foreign-related legal system has grown from establishment to maturity, and legislation in foreign-related fields has always maintained distinct Chinese characteristics in different times. Current foreign-related legislation focuses on national security, aims to serve high level opening up to the world, continuously strengthens the connection between domestic law and international law, and promotes the extraterritorial application of Chinese law. Nevertheless, there are still problems in China’s foreign related legislation, such as the unclear status of international treaties in the legal system, the relatively conservative extraterritorial jurisdiction of domestic law, simple legal responsibilities in foreignrelated laws, etc. In order to better respond to the needs of building a community with a shared future for mankind, and to enhance China’s discourse power in the international rule of law, China should speed up the promulgation of the Foreign Relations Law, further improve the legislation in key areas of national security, strengthen anti-anctions and anti-interference legislation, actively adopt new high-standard international trade and investment rules in the legislation, and improve jurisdiction system and international commercial dispute settlement system.

Keywords:Report to the 20th National Congress of the Communist Party of China, Legislation in Foreign-Related Fields, Foreign-Related Legal System, Rule of Law in Foreign-Related Affairs, Rule of Law in Domestic Affairs

UNCLOS and the Incorporations of “Other Rules of International Law”: An Analysis on the Negotiated Texts of UNCLOS and Case Law

Song Ke

Abstract:The evolution of UNCLOS is intertwined with the process of lively interactions between UNCLOS and “other rules of international law”. From a perspective of textual analysis, rules of reference are broadly embedded within UNCLOS, fostering the direct interactions between the text of UNCLOS and “other rules of international law”. Open-textured UNCLOS provisions established informal links between UNCLOS negotiated texts and “other rules of international law”. As a matter of effect, negotiated texts of UNCLOS have provided the normative foundation for the judicial incorporations of “other rules of international law”. Thus, UNCLOS dispute settlement procedures could stimulate the incorporations of “other rules of international law” and achieve the judicial development of UNCLOS through the accumulation of case law On the one hand, as the stimulus of the evolution and development of UNCLOS, UNCLOS dispute settlement procedures have employed a set of techniques that serve as the tunnel of incorporating “other rules of international law”, namely, rules of reference, applicable law, teleological and evolutionary interpretation, as well as systemic integration. These have stimulated the dynamic evolution of UNCLOS and made it adapt to the practical needs of ocean governance. On the other hand, UNCLOS dispute settlement procedures are expected to ensure the predictability and acceptability of jurisprudence, in order to effectively guide interpretation and application of UNCLOS. Nevertheless, a comprehensive study on the case law pertaining to the judicial incorporation of “other rules of international law” has revealed the expansion of jurisdiction ratione materiae and constantly fragmented jurisprudence. It signals the urgent task of conducting dynamic balance exercise between safeguarding the principle of state consent and achieving the objective of adjudicatory efficiency. Crafting cogent judicial reasoning and coherent jurisprudence would be essential to buttress the legitimacy of UNCLOS dispute settlement procedures.

Keywords:UNCLOS, Other Rules of International Law, Jurisdiction Ratione Materiae, Judicial Law-Making, Judicial Expansionism, Judicial Fragmentation

The Early Development of Modes of Individual Criminal Responsibility in International Law: Theoretical Origins and the Jurisprudence of International Military Tribunal for the Far East

Leng Xinyu

Abstract:The application and development of modes of individual criminal responsibility by the International Military Tribunal for the Far East （IMTFE） is an important contribution to the substantive rules of International Criminal Law. Covering almost all modes of liability under international criminal law, the jurisprudence of IMTFE became the cradle of these liability model theories. The important modes of responsibility, upon which Tribunal relies, include conspiracy, co-perpetrator, other forms of complicity, and command responsibility, the reasoning of which has become the theoretical sources of the United Nations ad hoc Tribunals. The modes of responsibility applied by the Tokyo Tribunal derived from customary law both enshrined and confirmed by the Versailles Treaty and subsequent Leipzig Trial, as well as general principle of law. The Tokyo Tribunal also absorbed the doctrines of the Soviet Criminal Law. What is of particular concern is that the Tokyo Tribunal creatively used the doctrine of conspiracy on the one hand as a count of inchoate crime, and on the other hand as a manifestation of co-perpetrator. The Tokyo Tribunal’s expanded form of the notion of co-perpetrator, established a firm foundation for the UN ad hoc Tribunals. The Tokyo Tribunal elaborated almost all forms of complicities. In addition, the Tokyo Tribunal is also a critical step confirming command responsibility of customary nature by international criminal justice.

Keywords:International Military Tribunal for the Far East, Mode of Liability, Conspiracy, Co-Perpetrator, Command Responsibility

Analysis on Liability for Fault of the Owner of Non-Spilling Ship in Case of Collision：Some Thoughts on the Retrial Judgments of the Vessel “CMA CGM Florida” Oil Pollution Case

Yu Xiaohan

Abstract:In the oil pollution accident caused by ship collision, the imputation on the part of the owner of non-spilling colliding ship involves the scopes and orders of application among the different international treaties, international treaties and domestic laws, special laws and general laws, substantive laws and procedural laws, which need to be clarified By analyzing from all the aspects, two conclusions have been reached. Firstly, the relevant conventions are silent as to the issue, namely, International Convention on Civil Liability for Oil Pollution Damage, 1992 (referred to as 1992 CLC) and International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 (referred to as the Bunker Convention) only stipulate the liability of the owner of the spilling ship, but do not stipulate the liability of the third party at fault for the ship pollution. Secondly, the doctrine of fault liability under the domestic laws is applicable in due course, namely, the victims suffering from oil pollution are entitled to request the owner of non-spilling colliding ship in the collision to bear the liability for oil pollution damage according to the proportion of its fault in accordance with article 1233 of the Civil Code of PRC（the equivalent of article 68 of the Law of Tort Liability of PRC). The cause of action shall only be defined as a dispute over the liability for pollution damage of ships, when the victims suffering from oil pollution bring lawsuit against the owners of two colliding ships together or separately. Item 2 of article 208 of the Maritime Code of PRC is only a norm concerning limitation of liability and may not be cited as a legal basis of imputation. In principle, for the pollution damage under the 1992 CLC and the Bunker Convention, the claim brought by the victims against the owners of non-spilling colliding ship should be regarded as a maritime claim which may be limited under chapter 11 of the Maritime Code of PRC subject to the certain exclusions otherwise provided.

Keywords：Collision of Ships, Oil Pollution Damage, Non-Spilling Colliding Ship, Imputation, Limitation of Liability, the Vessel “CMA CGM Florida” Oil Pollution Case

Analysis and Reflection on CPTPP Non-commercial Assistance Rules and China’s Response

Ren Hongda

Abstract:As a special subsidy rule regarding to the state-owned enterprises, the CPTPP non-commercial assistance (NCA) rules inherit and develop the Agreement on Subsidies and Countervailing Measures (SCM Agreement). The composition of NCA includes five elements: subject, assistance, specificity review, de facto benefit grant review, and scope of application. For NCA that causes adverse effects or injury, the parties to the dispute may resort to the CPTPP’s dispute settlement mechanism, but its procedure of information collection has changed significantly compared to SCM Agreement, which may weaken the discretion of the panel. The NCA rules expand the scope of subsidies to service trade and investment, lowering the threshold for subsidy identification. But at the same time, NCA rules also enumerate in an exhaustive manner a limited number of subsidy types that are bound, while the remaining subsidy types should be considered non-actionable. In addition, each party tried its best to exclude the application of NCA rules to its own country, creating a huge number of exceptions, and lacking the responsibility to lead by example, thus makes it difficult for NCA rules themselves to persuade and guide the reform of state-owned enterprises in various countries. In view of this, China should advance the rule of law in domestic and foreign-related affairs in a coordinated manner, and participate constructively in the future development of the NCA system.

Keywords：Non-Commercial Assistance, CPTPP, State-Owned Enterprises, Subsidy, Anti-Subsidy, SCM Agreement

From Single to Multiple: Reflection and Reconstruction of the Legal Application System of Cross-Border Infringement of Personality Rights on the Internet

Xu Weigong and Zhang Yajun

Abstract:In the judicial practice of the law of cross-border infringement of personality rights in China, Chinese courts usually apply the provisions of Article 44 of the Law Application Act and ignore the provisions of Article 46. Such practice not only contradicts to the principle that special rules are superior to general rules, but also deviates from the original intention of the legislation to emphasize the principle of protecting the interests of the weak by stipulating the conflict rules of cross-border infringement of personality rights on the Internet separately, which leads to doubts about the legitimacy of the expanded application of Article 44. At the same time, it also reflects the legislative limitations of Article 46, such as vagueness, latency and inconformity with the purpose of legislation. In the future, the application system of the tort law of personality rights can be perfected through the design of the hierarchical selective conflict rules, the introduction of the principle of limited autonomy, the reasonable application of the principle of the most signification relationship, and the adjustment of the applicable scope of the tort law of personality rights. At present, Chinese courts should clarify the boundary of the application of Article 46 and Article 44, and strengthen the implementation of the judgment thinking of conflict law.

Keywords：Internet，Cross-Border Infringement of Personality Rights，Application of Law，Conflict of Laws，Protection of Rights of the Wea

The Developments of Antisuit Injunctions in the United States and Their Implications for China

Gan Yong and Jiang Yuxuan

Abstract:As a remedy, antisuit injunctions, having originated from the United Kingdom, have come to be widely adopted in international civil litigations in courts of other countries. The United States courts led the world’s trend by issuing antisuit injunctions in standard essential patent cases with salient characteristics. Being a particular type of injunction, American antisuit injunctions are regulated not only by the principles and rules governing injunctions, but also by a peculiar governing framework that consists of statutes dedicated to the limitation of antisuit injunctions and various standards adopted by different courts and divergent approaches of applying those standards. Special standards for antisuit injunctions, composed of threshold requirements and elements conducive and adverse to the issuance of antisuit injunctions, have formed during practice that are different from the standard for injunctions in general. These principles and rules are fully embodied in the standard essential patent cases involving antisuit injunctions. Chinese courts borrowed much from the United States practice in awarding antisuit injunctions in standard essential patent cases, against which criticisms were leveled unjustified. Based on comparisons with the American antisuit injunctions, antisuit injunctions in China can be improved in the substantive standards, issuing procedure and concrete terms.

Keywords：Antisuit Injunction, Injunction, General Standards, Special Standards, International Comity, Act Preservation, Worldwide Antisuit Injunction, Standard Essential Patent

Improvement of the Implementation Mechanism of International Commercial Mediation Agreements in the Context of the Singapore Convention on Mediation

Feng Dongdong

Abstract:The Singapore Convention on Mediation (hereinafter referred to as the Convention) establishes a transnational implementation mechanism for international commercial mediation agreements. The Convention is likely to provide relatively consistent international standards for the cross-border implementation of international commercial mediation agreements, and provide legal protection for the settlement of foreign commercial disputes in China. At present, it has attracted the attention of legal scholars on commercial mediation in China. International commercial mediation agreements can be converted into court decisions, arbitral awards or enforceable legal documents for implementation, but these paths have certain defects. The direct implementation mechanism of international commercial mediation agreements established by the Convention represents the future development trend. Under the framework of the Convention, merchant autonomy is the cornerstone of the implementation mechanism of international commercial mediation agreements. Procedural justice is the necessary guarantee of the implementation mechanism of international commercial mediation agreements. Maintaining harmonious relations and improving efficiency are the advantages of the implementation mechanism of international commercial mediation agreements. International commercial mediation agreements in China are not enforceable. Besides, there is a lack of special legal rules for commercial mediation, and there is a lack of a complete code of conduct for mediators. Those barriers make it difficult for China to accede to the Convention. China should improve the implementation system of international commercial mediation agreements from three aspects in the future: establishing a direct implementation mechanism of international commercial mediation agreements in due time, improving the legal system and rules of commercial mediation, and formulating a code of conduct for mediators

Keywords：Singapore Convention on Mediation, International Commercial Mediation Agreements, Implementation, Merchant Autonomy, Commercial Mediation, Mediator