International Economic Law Response to National Security: Taking Huawei v. Sweden Arbitration Case as an Example

Du Ming

Abstract:This article seeks to provide a preliminary assessment of how international economic law responds to the trend of securitization of international economic relations. Taking a closer look at the landmark arbitration dispute between Chinese tech giant Huawei and the Swedish Government, it submits that the normalization of international economic disputes related to national security presents a triple challenge to international economic law: it is increasingly difficult to reach consensus on national security issues through self-restraint and diplomatic negotiations; unrestricted unilateral judgement on national security puts the liberal international economic order at grave risk; and frequent rulings on sensitive national security issues jeopardize the legitimacy of international dispute settlement institutions. A sophisticated international judicial body normally avoids taking positions on the most sensitive political aspects of the dispute. Instead, it leverages various legal techniques to balance the conflicting interests between respecting national security decisions and maintaining the stability and predictability of the international economic system. However, the space for using legal techniques to reconcile political conflicts is rapidly shrinking in the era of great power competition.

Keywords:National Security, Huawei, International Investment Law, WTO, CFIUS, International Economic Law, De-Risking

On the Restrictive Immunity System of China’s Foreign State Immunity Law

Li Qingming

Abstract:The foreign state immunity system is an intersecting field involving politics and law, diplomacy and justice. “The Law of the People’s Republic of China on Foreign State Immunity” (hereinafter referred to as the “Foreign State Immunity Law”) has achieved the shift from absolute immunity policy to restrictive immunity system, and China’s foreign state immunity system has transformed from diplomacy centrism to judicial-centrism. Although the Foreign State Immunity Law as a whole is a procedural law enforced by the courts, the certifying documents issued by the Ministry of Foreign Affairs on factual issues related to acts of state shall be accepted by the courts, and the Ministry of Foreign Affairs may provide an opinion for the court’s reference when it believes that the case involves major national interests. The Foreign State Immunity Law presumes that a foreign state enjoys jurisdictional immunity and provides for seven widely recognized exceptions, including waiver of jurisdictional immunity by a foreign state; proceedings arising out of a foreign state engaging in a commercial activity in the territory of China or a commercial activity outside the territory of China but causing a direct effect in the territory of China; proceedings arising out of a foreign state performing labor or service contracts in whole or in part in the territory of China; proceedings arising out of tort compensation caused by a foreign state in the territory of China; proceedings arising out of the ownership, possession, and use of property matters by a foreign state; proceedings arising out of matters such as intellectual property ownership and infringement in the territory of China involving a foreign state; and proceedings arising out of matters such as arbitration agreements, arbitral awards, and other reviews of arbitration involving a foreign state. The Foreign State Immunity Law provides for three exceptions to immunity from compulsory judicial measures, which means the property of a foreign state shall nearly enjoy absolute immunity from compulsory judicial measures.

Keywords:Absolute Immunity, Restrictive Immunity, Jurisdictional Immunity, Immunity from Compulsory Judicial Measures, Acts of State, Foreign State Immunity Law

On the Perception of Rules of “International Law-Based International Order”

Li Jiang

Abstract:The “International Law-Based International Order” (ILBIO) and “Rules-Based International Order” (RBIO) have sparked debates on the normative foundation of current international order. The perception of rules for international order is a nation’s understanding and stance on the legitimacy of the rules governing international relations. It points to the commitments regarding “how the world is organized”, and therefore it is holistic in form and fundamental in contents. The perception of rules and their contest unfold in the hierarchical structure of international law, and “rules of order” and “rules of recognition” are the focuses of arguments on perception of rules. ILBIO requires that the states conform to the decentralization and equalization of legitimate power, contribute to shared interests of the international community, and restrict the unlawful employment of unilateral measures. By adopting different presumptions toward the prospects of international order, ILBIO and RBIO present opposite views on the normative objectives, methods of developing international order as well as their value orientation. Under its nominal meaning, RBIO shows arbitrariness of power and strong liberal ideology. ILBIO leads to the rule of international law characterized by consensus, formal rule of law, and substantive development.

Keywords:IInternational Law-Based International Order, Rules-Based International Order, Perception of Rules, International Law, Rule of International Law

The Consistent Interpretation of Domestic Maritime Law and International Maritime Treaties

Sun Siqi and Zheng Rui

Abstract:Maritime law is a part of private law and should be interpreted in accordance with the interpretive method of private law. However, the domestic maritime law of modern countries has a deep root of legal transplantation, especially the transplantation of international maritime treaties, which causes the interpretation of maritime law to present part of the special characteristics that are different form the general civil law. The consistent interpretation of domestic maritime law and international maritime treaties is mainly a problem arising from legal transplantation, mostly due to the linguistic inaccuracy of the legislative language adopted by domestic maritime law and even international maritime treaties themselves. There are difficulties in the application of current general rule of consistent interpretation of domestic laws and international treaties in the field of maritime law. First, in terms of the pre-conditions of application, domestic maritime law may not have two or more possible reasonable interpretations, and China may not be a party to the relevant international maritime treaties. Second, in terms of the purpose of application, the general rules aim to implement the principle that the treaties must be honored, while in the field of maritime law, the rules aim to maintain the international unity of maritime law. The consistent interpretation of domestic maritime law and international maritime treaties is a purpose rather than means, and its realization still needs to be accomplished by using the interpretation methods of law, including the statutory interpretation methods in their narrow sense and methods for legal gap-filling. However, the interpretive methods cannot solve all the problems of consistent interpretation of domestic maritime law and international maritime treaties, i. e., there are indeed some legislative defects formed in the process of legal transplantation, which are difficult to be overcome by subsequent legal interpretation but can only be solved through the revision of the law.

Keywords：Domestic Maritime Law, International Maritime Treaties, Consistent Interpretation, Legal Transplantation, Statutory Interpretation, Methods for Legal Gap-Filling

Global Minimum Tax Reform’s Influences on China’s Tax Incentives Regime and Response Measures

Chen Jingxian

Abstract:Under the new development paradigm, China has formulated a series of general, industrial and regional enterprise income tax incentives, in order to promote the development of innovation-driven development strategy and the construction of Hainan Free Trade Port and the Guangdong-Hong Kong-Macao Greater Bay Area. However, the global minimum tax reform will influence China’s tax incentives regime, bringing challenges to both China’s taxing right and tax competitiveness. According to the degrees of influence of the global minimum tax reform, China’s current tax incentives can be divided into highrisk, medium-risk and low-risk. At present, at least 50 tax jurisdictions in the world have responded to the global minimum tax reform through public consultation, fiscal budget or legislative draft. On the one hand, these tax jurisdictions have introduced the qualified domestic minimum top-up tax to safeguard their taxing right. On the other hand, they optimize their tax incentives regime to maintain tax competitiveness. Based on its national conditions and drawing on international experience, China should follow the principles of effectiveness, tax legalism and economic substance to improve the tax incentives regime. China can introduce the qualified domestic minimum top-up tax as a short term response to the global minimum tax reform, and optimize fiscal and tax incentives measures in the medium and long term.

Keywords：Global Minimum Tax Reform, Tax Competition, Tax Incentives, Taxing Right, Tax Competitiveness, Qualified Domestic Minimum Top-Up Tax

Choice of Law for Property Division in Divorce Cases Involving Foreign Elements

Wang Yibo

Abstract:Chinese private international law heavily employs the same legal concepts as the country’s civil law and usually interprets the corresponding private international law concepts in accordance with the civil law. This is also true in the context of divorce, where Chinese courts tend to characterize the property division as a divorce issue. However, because of the independence of the concept of private international law, the concept of private international law can actually be understood differently from the concept of civil law. Under the framework of the Law of the People’s Republic of China on Choice of Law for Civil Relationships Involving Foreign Elements, only the lex fori applies to divorce by litigation, and this legislative model results in the characterization of divorce property division involving foreign elements as a divorce issue. However, it is not the best characterization solution. From the nature of property division and the common practice of countries with civil law tradition, it is more appropriate to characterize it as an issue of marital property regime. There are certain legislative flaws in Article 24 regarding the conflicts rules on marital property relations, which fortunately do not negatively affect the legal application of property division. However, it should be clear that when the property relationship between a spouse and the third party involves the division of divorce property, the effect of the autonomy of Article 24 cannot be applied to that third party from the perspective of protecting the interests of the third party and the safety of the transaction.

Keywords：Property Division, Divorce, Marital Property Regime, Characterization, Party Autonomy, Lex Fori

Frontiers of Private International Law Around the World: An Annual Review (2021 - 2022)

Du Tao, Zhu Depei and Ye Ziwen

Abstract:Digital technologies give rise to a wide influence on private international law (PIL), especially on determination of jurisdiction, choice of law in the field of property, tort and contract, as well as international judicial assistance. European Union has paid much more attention to the legislation in field of artificial intelligence. The United States has also continued to strengthen its long-arm jurisdiction by promulgating new laws and amending old laws to compete for global digital governance. On those new issues of PIL, many states adopted methods of unilateralism. Substantive laws in new fields such as governance of digital market, protection of personal information, social responsibilities of multinational corporations normally could be applied extraterritorially. The trend towards unilateralism also affected rules of traditional PIL. The draft of French PIL Code partly gives no priority on traditional methods of bilateralism. International organizations such as the Hague Conference on Private International Law and the International Institute for the Unification of Private Law actively contributed to the analysis of new rules of PIL, committed to the construction of uniformed and coordinated rules of jurisdiction and choice of law, for the protection of “conflict justices” of PIL. In the meantime, however, values gain a growing importance effect on PIL, which leads to divisions between developed and developing countries, as well as an escalated “legal competition” in the field of PIL.

Keywords：Private International Law, Unilateralism, Artificial Intelligence, Digital Market Act, Digital Service Act, Standard Contract Clauses, Digital Assets