Pub Date : 2019-03-31DOI: 10.14330/CWR.2019.5.1.06
Jiahui Shi
In Germany, the notion of corporate criminal liability has attracted the attention of lawyers, scholars, and recently of politics. At present, legal persons are not criminally responsible but may only receive administrative fines under Section 30 of the Regulatory Offences Law. In light of recent scandals involving large business enterprises, efforts are under way to expand the liability of legal persons for misconduct, possibly leading to the introduction of criminal sanctions. In China, corporate criminal responsibility for certain offenses (unit crimes) were adopted in 1997 and has been practiced ever since. Here, both the unit and its responsible members are punished if a unit crime has occurred. In addition, administrative agencies may impose administrative sanctions and measures on the unit. Since the practical and legal problems appear similarly in the German and Chinese systems, a brief review of the Chinese experience may be helpful for the German reform process.
{"title":"Crimes Committed by Legal Persons: A Comparative Sino-German perspective","authors":"Jiahui Shi","doi":"10.14330/CWR.2019.5.1.06","DOIUrl":"https://doi.org/10.14330/CWR.2019.5.1.06","url":null,"abstract":"In Germany, the notion of corporate criminal liability has attracted the attention of lawyers, scholars, and recently of politics. At present, legal persons are not criminally responsible but may only receive administrative fines under Section 30 of the Regulatory Offences Law. In light of recent scandals involving large business enterprises, efforts are under way to expand the liability of legal persons for misconduct, possibly leading to the introduction of criminal sanctions. In China, corporate criminal responsibility for certain offenses (unit crimes) were adopted in 1997 and has been practiced ever since. Here, both the unit and its responsible members are punished if a unit crime has occurred. In addition, administrative agencies may impose administrative sanctions and measures on the unit. Since the practical and legal problems appear similarly in the German and Chinese systems, a brief review of the Chinese experience may be helpful for the German reform process.","PeriodicalId":40992,"journal":{"name":"China and WTO Review","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41604368","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-03-31DOI: 10.14330/CWR.2019.5.1.07
B. Malkawi
Millions of people worldwide use the Internet. One of the many uses derived from the Internet is the development of digital trade. Digital trade thus lends itself to distinctive issues. The WTO members recognized the benefits digital trade offers and have developed a work program to facilitate the digital trade. However, their efforts have stalled, slowing down the anticipated progress. The author will try to address how the WTO supports and deals with digital trade. This essay briefly discusses the historical advancement of the Internet; defines the concept of digital trade and its development in the international market; analyzes how existing WTO agreements have dealt with digital trade; and then addresses recent trade agreements particularly the USMCA. The USMCA was chosen because it involves the largest economy in the world and the US could use its provisions as template for future trade agreements
{"title":"Digitalization of Trade in Free Trade Agreements with Reference to the WTO and the USMCA: A Closer Look","authors":"B. Malkawi","doi":"10.14330/CWR.2019.5.1.07","DOIUrl":"https://doi.org/10.14330/CWR.2019.5.1.07","url":null,"abstract":"Millions of people worldwide use the Internet. One of the many uses derived from the Internet is the development of digital trade. Digital trade thus lends itself to distinctive issues. The WTO members recognized the benefits digital trade offers and have developed a work program to facilitate the digital trade. However, their efforts have stalled, slowing down the anticipated progress. The author will try to address how the WTO supports and deals with digital trade. This essay briefly discusses the historical advancement of the Internet; defines the concept of digital trade and its development in the international market; analyzes how existing WTO agreements have dealt with digital trade; and then addresses recent trade agreements particularly the USMCA. The USMCA was chosen because it involves the largest economy in the world and the US could use its provisions as template for future trade agreements","PeriodicalId":40992,"journal":{"name":"China and WTO Review","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43848405","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-02-28DOI: 10.14330/CWR.2019.5.1.09
Stuart S. Malawer
This article discusses American Institute for International Steel v. the United States, which is pending in the little-known United States Court of International Trade in New York. It involves an attempt to declare that the US legislation delegating authority to the president to impose trade restrictions is an unconstitutional delegation of legislative authority. A loss would legally curtail the president’s discretionary power to use national security as a reason to impose punitive measures against trading partners. The article identifies legal trends, where this case fits into the trade policy debates, and why it is so important. The article concludes that domestic U.S. litigation in 2019 may well have a tremendous impact on U.S. law and the global trading system. Many in the domestic and international trading communities (as well as those in the foreign policy and national security communities) are waiting for the results of this little-known steel litigation.
{"title":"Pending Section 232 Litigation and Broader Trade Trends: Will the US Courts Restrict Presidential Authority from Relying upon “National Security”?","authors":"Stuart S. Malawer","doi":"10.14330/CWR.2019.5.1.09","DOIUrl":"https://doi.org/10.14330/CWR.2019.5.1.09","url":null,"abstract":"This article discusses American Institute for International Steel v. the United States, which is pending in the little-known United States Court of International Trade in New York. It involves an attempt to declare that the US legislation delegating authority to the president to impose trade restrictions is an unconstitutional delegation of legislative authority. A loss would legally curtail the president’s discretionary power to use national security as a reason to impose punitive measures against trading partners. The article identifies legal trends, where this case fits into the trade policy debates, and why it is so important. The article concludes that domestic U.S. litigation in 2019 may well have a tremendous impact on U.S. law and the global trading system. Many in the domestic and international trading communities (as well as those in the foreign policy and national security communities) are waiting for the results of this little-known steel litigation.","PeriodicalId":40992,"journal":{"name":"China and WTO Review","volume":"1 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2019-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41351166","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-30DOI: 10.14330/cwr.2018.4.2.05
E. Petersmann
In their recent article titled Pluralism or Cosmopolitanism? Reflections on Petersmann’s International Economic Law Constitutionalism in the Context of China, Tao Li and Zuoli Jiang have criticized the alleged ‘paradox’ that my publications “stress ‘legal pluralism’ on the one hand, while calling for a cosmopolitan conception of IEL on the other hand.” This short comment aims not only at clarifying conceptual misunderstandings due to our different “constitutional law perspectives,” but also explaining why China should embrace a ‘dialogical’ rather than “exclusive legal perspectivism” by continuing to implement its international legal obligations (e.g., under the UN/WTO law) in good faith and assuming more leadership for the global public good of the rules-based world trading system, with due respect for its underlying ‘legal pluralism’ and often indeterminate ‘basic principles.’ My Chinese critics’ emphasis on the reality of authoritarian Chinese “top-down conceptions” of law and governance neglects China’s obligations under international law and China’s compliance with the WTO, investment and commercial adjudication.
{"title":"Legal, Constitutional and Cosmopolitan Pluralism: A Paradox? A Short Reply to My Chinese Critics","authors":"E. Petersmann","doi":"10.14330/cwr.2018.4.2.05","DOIUrl":"https://doi.org/10.14330/cwr.2018.4.2.05","url":null,"abstract":"In their recent article titled Pluralism or Cosmopolitanism? Reflections on Petersmann’s International Economic Law Constitutionalism in the Context of China, Tao Li and Zuoli Jiang have criticized the alleged ‘paradox’ that my publications “stress ‘legal pluralism’ on the one hand, while calling for a cosmopolitan conception of IEL on the other hand.” This short comment aims not only at clarifying conceptual misunderstandings due to our different “constitutional law perspectives,” but also explaining why China should embrace a ‘dialogical’ rather than “exclusive legal perspectivism” by continuing to implement its international legal obligations (e.g., under the UN/WTO law) in good faith and assuming more leadership for the global public good of the rules-based world trading system, with due respect for its underlying ‘legal pluralism’ and often indeterminate ‘basic principles.’ My Chinese critics’ emphasis on the reality of authoritarian Chinese “top-down conceptions” of law and governance neglects China’s obligations under international law and China’s compliance with the WTO, investment and commercial adjudication.","PeriodicalId":40992,"journal":{"name":"China and WTO Review","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2018-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48380858","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-30DOI: 10.14330/CWR.2018.4.2.02
Yayun Chen
Genetically modified food gave rise to several controversies since it came into being. The clash of international GMF legislation is rooted in the divergence of the EU and the US legislation, which leads to the divergence of the WTO and Cartagena Protocol on Biosafety and indirectly influences the legislative choice of developing countries. Like other developing countries, China also faces lots of challenges including lag in genetically modified organism technology, disadvantage caused by invisible private standard, technical control of GMO companies in developed countries and low level of involvement of the public. In recent years, China adopts its own policy on GMO by developing GM technology cautiously. The legislative situation in China fall far behind domestic research and commercial production necessity. China has revised several existing legislations. Although there is far from perfect, it makes great progress. In the future, China is expected to be more active, positive and open towards GMO.
{"title":"Conflict and Reconciliation of International Genetically Modified Food Safety Legislation: China's Latest Development and Dilemma","authors":"Yayun Chen","doi":"10.14330/CWR.2018.4.2.02","DOIUrl":"https://doi.org/10.14330/CWR.2018.4.2.02","url":null,"abstract":"Genetically modified food gave rise to several controversies since it came into being. The clash of international GMF legislation is rooted in the divergence of the EU and the US legislation, which leads to the divergence of the WTO and Cartagena Protocol on Biosafety and indirectly influences the legislative choice of developing countries. Like other developing countries, China also faces lots of challenges including lag in genetically modified organism technology, disadvantage caused by invisible private standard, technical control of GMO companies in developed countries and low level of involvement of the public. In recent years, China adopts its own policy on GMO by developing GM technology cautiously. The legislative situation in China fall far behind domestic research and commercial production necessity. China has revised several existing legislations. Although there is far from perfect, it makes great progress. In the future, China is expected to be more active, positive and open towards GMO.","PeriodicalId":40992,"journal":{"name":"China and WTO Review","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2018-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44432307","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-30DOI: 10.14330/cwr.2018.4.2.09
L. Paul
{"title":"Ukraine’s Way for Economic Rehabilitation through the Belt and Road Initiative","authors":"L. Paul","doi":"10.14330/cwr.2018.4.2.09","DOIUrl":"https://doi.org/10.14330/cwr.2018.4.2.09","url":null,"abstract":"","PeriodicalId":40992,"journal":{"name":"China and WTO Review","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2018-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43597516","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-30DOI: 10.14330/CWR.2018.4.2.03
F. Li
{"title":"Trump’s Steel and Aluminum Tariffs, National Security, and WTO Law","authors":"F. Li","doi":"10.14330/CWR.2018.4.2.03","DOIUrl":"https://doi.org/10.14330/CWR.2018.4.2.03","url":null,"abstract":"","PeriodicalId":40992,"journal":{"name":"China and WTO Review","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2018-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49581140","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-30DOI: 10.14330/CWR.2018.4.2.06
Yingying Wu, Law. Ll.M.
Since 2012, China has made investments in Papua New Guinea (“PNG”), including Rim Nickel Mine, Laicheng Port Project, International Conference Center and Highland Highway Project In particular, the Agreement on Construction of Infrastructure, concluded between China and PNG on November 20, 2017, launched the highlands economic corridor development program, with USD 330 million from China for roads, agricultural parks, and other infrastructure. In June 2018, PNG and China signed a memorandum on the construction under the framework of the “Belt and Road” initiative. The Chinese government began to build a public road and repair the airport expressway in PNG in June 2018. The PNG National Power Grid Power Transmission and Transformation Project, the first energy cooperation project between China and PNG, was initiated Latest Chinese Investments in the South Pacific Area
{"title":"Latest Chinese Investments in the South Pacific Area","authors":"Yingying Wu, Law. Ll.M.","doi":"10.14330/CWR.2018.4.2.06","DOIUrl":"https://doi.org/10.14330/CWR.2018.4.2.06","url":null,"abstract":"Since 2012, China has made investments in Papua New Guinea (“PNG”), including Rim Nickel Mine, Laicheng Port Project, International Conference Center and Highland Highway Project In particular, the Agreement on Construction of Infrastructure, concluded between China and PNG on November 20, 2017, launched the highlands economic corridor development program, with USD 330 million from China for roads, agricultural parks, and other infrastructure. In June 2018, PNG and China signed a memorandum on the construction under the framework of the “Belt and Road” initiative. The Chinese government began to build a public road and repair the airport expressway in PNG in June 2018. The PNG National Power Grid Power Transmission and Transformation Project, the first energy cooperation project between China and PNG, was initiated Latest Chinese Investments in the South Pacific Area","PeriodicalId":40992,"journal":{"name":"China and WTO Review","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2018-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43211241","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-30DOI: 10.14330/cwr.2018.4.2.08
H. Mukhtar
Pakistan and China have a long history of friendly diplomatic as well as economic relations. Both countries are bounded in a number of bilateral treaties including China-Pakistan Bilateral Investment Treaty (“CPBIT”) and China-Pakistan Free Trade Agreement (“CPFTA”). Recently, both countries are undertaking a joint project namely China Pakistan Economic Corridor (“CPEC”), which is an important part of the Belt and Road Initiative (“BRI”). CPFTA was signed in November 2006 and entered into force in July 2007. Moreover, the two countries signed the Agreement on Trade in Service of the CPFTA in 2009 which came into effect in the same year. Trade and investment volume between Pakistan and China has been increasing as the result of mentioned agreements. Presently, Pakistan has become the second largest trading partner of China in South Asian region. However, CPFTA has been more favorable for China. Chinese exports to Pakistan have increased to an alarming situation, while Pakistani exports to China have not been increased significantly. Therefore, Pakistan’s trade deficit with China has gained the shocking situation. Pakistani producers complain that the CPFTA 2006 was only favoring China. Currently, both countries are re-negotiating the CPFTA in order to create a balanced situation of bilateral trade and investment. The renegotiations are aimed at overcoming the imbalance of trade that exists between
{"title":"Undergoing Re-negotiations between Pakistan and China for Free Trade Agreement","authors":"H. Mukhtar","doi":"10.14330/cwr.2018.4.2.08","DOIUrl":"https://doi.org/10.14330/cwr.2018.4.2.08","url":null,"abstract":"Pakistan and China have a long history of friendly diplomatic as well as economic relations. Both countries are bounded in a number of bilateral treaties including China-Pakistan Bilateral Investment Treaty (“CPBIT”) and China-Pakistan Free Trade Agreement (“CPFTA”). Recently, both countries are undertaking a joint project namely China Pakistan Economic Corridor (“CPEC”), which is an important part of the Belt and Road Initiative (“BRI”). CPFTA was signed in November 2006 and entered into force in July 2007. Moreover, the two countries signed the Agreement on Trade in Service of the CPFTA in 2009 which came into effect in the same year. Trade and investment volume between Pakistan and China has been increasing as the result of mentioned agreements. Presently, Pakistan has become the second largest trading partner of China in South Asian region. However, CPFTA has been more favorable for China. Chinese exports to Pakistan have increased to an alarming situation, while Pakistani exports to China have not been increased significantly. Therefore, Pakistan’s trade deficit with China has gained the shocking situation. Pakistani producers complain that the CPFTA 2006 was only favoring China. Currently, both countries are re-negotiating the CPFTA in order to create a balanced situation of bilateral trade and investment. The renegotiations are aimed at overcoming the imbalance of trade that exists between","PeriodicalId":40992,"journal":{"name":"China and WTO Review","volume":"1 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2018-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42610261","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-30DOI: 10.14330/CWR.2018.4.2.04
Xintong Li, Ll.M. . Law
From the perspective of ‘Archangelos Gabriel’ salvage case, this article probes into the application of party autonomy by Chinese courts in cases with foreign elements. The case, finally decided by the SPC, shows many judicial innovations and draw great concerns in both the Chinese judicial community and academia. However, it also shows a common judicial phenomenon that the improper timing of choice by parties and wrong choice-of-law rule invoked by the courts lead to the uncertainty of the applicable law and the judges could not deal with the implied choice cases properly. This gives rise to an urgent choice-of-law problem that the principle of party autonomy just empowers parties to choose the state of applicable law but not a particular law of a state. It is inconsistent with the nature of party autonomy and may further turn the party autonomy to a rule with the same nature of “choice of jurisdiction.”
{"title":"Party Autonomy in Chinese Courts: With Special References to the Archangelos Gabriel Salvage Case","authors":"Xintong Li, Ll.M. . Law","doi":"10.14330/CWR.2018.4.2.04","DOIUrl":"https://doi.org/10.14330/CWR.2018.4.2.04","url":null,"abstract":"From the perspective of ‘Archangelos Gabriel’ salvage case, this article probes into the application of party autonomy by Chinese courts in cases with foreign elements. The case, finally decided by the SPC, shows many judicial innovations and draw great concerns in both the Chinese judicial community and academia. However, it also shows a common judicial phenomenon that the improper timing of choice by parties and wrong choice-of-law rule invoked by the courts lead to the uncertainty of the applicable law and the judges could not deal with the implied choice cases properly. This gives rise to an urgent choice-of-law problem that the principle of party autonomy just empowers parties to choose the state of applicable law but not a particular law of a state. It is inconsistent with the nature of party autonomy and may further turn the party autonomy to a rule with the same nature of “choice of jurisdiction.”","PeriodicalId":40992,"journal":{"name":"China and WTO Review","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2018-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47902036","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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