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Rule-Making, Rule-Taking or Rule-Rejecting under the Belt and Road Initiative: A Central Asian Perspective “一带一路”倡议下的规则制定、规则接受或规则拒绝:一个中亚视角
IF 1.2 Q3 LAW Pub Date : 2020-06-01 DOI: 10.1093/cjcl/cxaa006
Roza Nurgozhayeva
Since the Belt and Road Initiative (BRI) was announced in 2013, China’s expanding economic, geopolitical, and business presence demonstrates its eagerness to play a more significant role in the systems of international governance and law. The BRI’s scale and influence have captured immense attention among politicians, policymakers, experts, and academics. They offer numerous interpretations of the BRI’s global and regional impact. If China claims to be a stakeholder in the international system, what are the implications for the legal systems of the BRI countries and their governance systems? To what extent does the BRI lead to the expansion of China’s institutions and legal norms? How can the BRI countries ensure that their interests in BRI projects are adequately protected? This article analyses the Central Asian perspective on the BRI. Central Asia and Kazakhstan, in particular, have strategic relevance to the BRI. Remarkably, the BRI was launched during the visit of President Xi Jinping to Kazakhstan, which means that Kazakhstan plays a critical transit role as China’s pivot to Europe. Although the BRI is an ambitious global strategy, it has provoked much criticism, especially in liberal countries. Despite China’s efforts to promote the BRI as a win–win endeavour, China’s increased economic and political influence has already led to heightened scrutiny of its role in shaping ideology, economic development, and the legal and institutional landscapes. While many academic publications address different perspectives of the BRI, the context behind BRI projects requires further attention. This article contributes to the literature by studying BRI projects in Kazakhstan and their legal framework and governance.
自2013年“一带一路”倡议提出以来,中国不断扩大的经济、地缘政治和商业存在表明,中国渴望在国际治理和法律体系中发挥更重要的作用。“一带一路”倡议的规模和影响引起了政治家、政策制定者、专家和学者的广泛关注。它们对“一带一路”倡议的全球和地区影响提供了多种解读。如果中国声称自己是国际体系的利益相关者,这对“一带一路”沿线国家的法律体系和治理体系有何影响?“一带一路”倡议在多大程度上推动了中国制度和法律规范的扩张?沿线国家如何确保自身在“一带一路”项目中的利益得到充分保护?本文分析了中亚对“一带一路”倡议的看法。特别是中亚和哈萨克斯坦对“一带一路”具有战略意义。尽管“一带一路”是一项雄心勃勃的全球战略,但它引发了很多批评,尤其是在自由主义国家。尽管中国努力将“一带一路”倡议推广为双赢的努力,但中国日益增长的经济和政治影响力已经导致其在塑造意识形态、经济发展以及法律和制度格局方面的作用受到了更严格的审查。虽然许多学术出版物从不同角度阐述了“一带一路”倡议,但“一带一路”项目背后的背景需要进一步关注。本文通过研究哈萨克斯坦的“一带一路”项目及其法律框架和治理,为文献做出了贡献。
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引用次数: 7
Innovation and Development of the China International Commercial Court 中国国际商事法院的创新与发展
IF 1.2 Q3 LAW Pub Date : 2020-06-01 DOI: 10.1093/cjcl/cxaa014
L. Fei
This article introduces several innovative features of the China International Commercial Court, including a composition of only senior judges, the International Commercial Expert Committee, first-instance-as-final jurisdiction, a ‘one-stop’ dispute resolution platform, flexibility in finding foreign laws, and the use of cutting-edge information technology. 
本文介绍了中国国际商事法院的几个创新特点,包括仅由高级法官组成、国际商事专家委员会、一审终审、“一站式”争议解决平台、灵活查找外国法律以及使用尖端信息技术。
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引用次数: 2
Dispute Settlement in the Belt and Road Initiative: Lessons from the Singapore Experience “一带一路”倡议争端解决:新加坡经验教训
IF 1.2 Q3 LAW Pub Date : 2020-06-01 DOI: 10.1093/cjcl/cxaa013
Justice Steven Chong
Historically, Singapore has played an important role in the growth and success of the old maritime Silk Road. Today, Singapore remains an important stop on the Belt and Road, though its advantages now also lie in its position as a trusted, neutral forum for the efficient resolution of disputes as well as a platform for the sharing of ideas for the development of a legal framework for dispute resolution in the Belt and Road Initiative. Three initiatives have been taken by Singapore to strengthen its new position, including the Asian Business Law Institute, the Singapore International Commercial Court, and the Singapore–China Annual Legal and Judicial Roundtable.
从历史上看,新加坡在旧海上丝绸之路的发展和成功中发挥了重要作用。今天,新加坡仍然是一带一路的重要一站,尽管它现在的优势也在于它作为一个可信赖的、中立的有效解决争端论坛以及一个分享“一带一路”倡议争端解决法律框架发展理念的平台的地位。新加坡采取了三项举措来加强其新地位,包括亚洲商法研究所、新加坡国际商事法院和新加坡-中国年度法律和司法圆桌会议。
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引用次数: 4
Global PPPs and the Choice of Law Challenge 全球购买力平价与法律选择挑战
IF 1.2 Q3 LAW Pub Date : 2020-06-01 DOI: 10.1093/cjcl/cxaa011
Yock Lin Tan
Positing the public-private partnership as an important optional legal structure in the delivery of infrastructural services in the Belt and Road Initiative (BRI), this exploratory article discusses the crucial, but formidable, problems of risks in management or governance. It considers whether traditional common law conflict of laws as applied in Singapore courts can contribute principles that recognize shared expectations and commitment or foster solidarity, mutuality, and trust—values regarded as essential to their effective resolution. Arguing that traditional conflicts distinctions between State and non-State law as well as between public and private law are unhelpful in this respect, it concludes that modern critical developments contain promising prospects for developing such principles. These principles will predicate a role for foreign State substantive public policies and, if there is relevant ‘relational distance’, implement them in BRI choice-of-law disputes, thereby reconciling private efficiency and public accountability beyond borders.
本文将公私伙伴关系定位为“一带一路”倡议基础设施服务提供中的一个重要可选法律结构,探讨了管理或治理中关键但艰巨的风险问题。它考虑了新加坡法院适用的传统普通法法律冲突是否可以促进承认共同期望和承诺的原则,或促进团结、相互依存和信任——这些价值观被视为有效解决冲突的关键。它认为,国家法与非国家法以及公法与私法之间的传统冲突区别在这方面是无益的,并得出结论认为,现代的关键发展为制定这些原则提供了光明的前景。这些原则将规定外国实质性公共政策的作用,如果存在相关的“关系距离”,则在“一带一路”倡议的法律纠纷中实施这些原则,从而协调私人效率和跨境公共问责。
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引用次数: 1
The Belt and Road Initiative, China’s Cross-Border Insolvency Law, and the UNCITRAL Model Law on Cross-Border Insolvency “一带一路”倡议倡议、中国跨国破产法和联合国贸易法委员会跨国破产示范法
IF 1.2 Q3 LAW Pub Date : 2020-06-01 DOI: 10.1093/cjcl/cxaa012
Meng Seng Wee
By examining the special features of cross-border insolvency affecting the Belt and Road Initiative (BRI), this article explains that it is crucial for China to ensure that its cross-border insolvency law is fit for the purposes of the BRI. The current law is unsatisfactory, as may be seen in Hanjin Shipping’s decision not to seek recognition of its Korean restructuring proceeding in China. China wants to cooperate more in cross-border insolvency, but it is concerned that recognizing foreign insolvency proceedings will prejudice China’s interests. This article explains that the logic and limits of the United Nations Commission on International Trade Law’s Model Law on Cross-Border Insolvency is enlightened self-interest, which leads to recognition being very limited and distinguished from relief and relief being based on domestic law. Thus, it argues that the adoption of the Model Law will not prejudice China’s interests.
通过研究影响“一带一路”倡议的跨境破产的特点,本文解释了中国确保其跨境破产法适合“一带一路”的目的至关重要。从韩进海运决定不向中国申请结构调整的事例中可以看出,现行法律并不令人满意。中国希望在跨境破产方面加强合作,但担心承认外国破产程序会损害中国的利益。本文解释了联合国国际贸易法委员会《跨国界破产示范法》的逻辑和局限性是启蒙的利己主义,这导致承认非常有限,并区别于救济和基于国内法的救济。因此,中国认为《示范法》的通过不会损害中国的利益。
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引用次数: 0
Developing Cross-Border Blockchain Financial Transactions under the Belt and Road Initiative “一带一路”倡议背景下发展跨订单区块链金融交易
IF 1.2 Q3 LAW Pub Date : 2020-06-01 DOI: 10.1093/cjcl/cxaa010
Yaolin Zhang
This article sets out a regulatory framework that facilitates blockchain cross-border financial transactions and examines how this framework can be implemented in the context of the Belt and Road Initiative (BRI). With increasing globalization and international trade, cross-border financial transactions are set to grow rapidly, especially across the Eurasian region.1 There are currently many challenges facing such transactions, from slow payment systems and different technical standards to varying legal and compliance systems.2 These challenges may be redressed by blockchain, which offers an efficient solution to the current mechanisms adopted in cross-border financial transactions. Currently, there are many experimental initiatives that seek to implement this technology to multiple fields, including remittances, clearance, and settlements.3 However, few researchers have considered in detail how this technology should be regulated in the BRI context. This article will be one of the first in-depth analyses of how laws and regulations can be applied to facilitate cross-border blockchain payments in the BRI context.
本文提出了一个促进区块链跨境金融交易的监管框架,并探讨了如何在“一带一路”倡议倡议的背景下实施该框架。随着全球化和国际贸易的不断发展,跨境金融交易将迅速增长,尤其是在整个欧亚地区。1目前,此类交易面临着许多挑战,从缓慢的支付系统和不同的技术标准到不同的法律和合规系统。2区块链可能会解决这些挑战,这为目前跨境金融交易中采用的机制提供了一个有效的解决方案。目前,有许多实验性举措试图将这项技术应用于多个领域,包括汇款、清关和结算。3然而,很少有研究人员详细考虑在“一带一路”倡议背景下应如何监管这项技术。本文将是第一篇深入分析如何在“一带一路”背景下应用法律法规促进跨境区块链支付的文章之一。
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引用次数: 7
Chinese Investment Treaties in the Belt and Road Initiative Area 中国在“一带一路”地区的投资协定
IF 1.2 Q3 LAW Pub Date : 2020-06-01 DOI: 10.1093/cjcl/cxaa008
M. Sornarajah
This article examines whether Chinese practice towards the making of investment treaties with developing countries in the Belt and Road Initiative region will be different from the treaties that it makes with developed States. Though there is a shift towards the making of hard treaties with the developed States of Europe, it is suggested that treaties made with developing States will be more nuanced. The article shows that there are political motives behind investment treaties, as the study of US practice shows. Political considerations will induce China to make different types of treaties with different types of treaty partners in the future. A comparison is made with recent Indian practice.
本文考察了中国与“一带一路”沿线发展中国家签订投资协定的做法是否会与与发达国家签订投资协定有所不同。虽然有向与欧洲发达国家订立硬性条约的转变,但有人建议,与发展中国家订立的条约将更加细致入微。这篇文章表明,正如对美国实践的研究所显示的那样,投资条约背后存在政治动机。出于政治考虑,未来中国将与不同类型的条约伙伴签订不同类型的条约。与印度最近的做法进行了比较。
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引用次数: 1
Tension and Rivalry: The ‘Belt and Road’ Initiative, Global Governance, and International Law 紧张与竞争:“一带一路”倡议、全球治理与国际法
IF 1.2 Q3 LAW Pub Date : 2020-06-01 DOI: 10.1093/cjcl/cxaa009
Jianfu Chen
This article attempts to establish a context in which the controversies of the Belt and Road Initiative (BRI) and its practice can be better understood. It is argued that, earlier, the background to the birth of the BRI had effectively determined the initial perception of the initiative as a geopolitical move and that this perception has increasingly led to a view that the initiative is a Chinese geo-economic strategy. While there is no universally agreed meaning of the notion ‘geo-economics’, this notion, more often than not, conjures images of winners and losers in geopolitical manoeuvring. As such, China needs to convince the world that the BRI is indeed a ‘win-win’ scenario in international cooperation. To do so, China needs to engage much more closely with international law and talk less about China’s own model of global governance.
本文试图建立一个背景,以便更好地理解“一带一路”倡议及其实践的争议。有人认为,早些时候,“一带一路”倡议诞生的背景有效地决定了该倡议最初被视为地缘政治举措的看法,这种看法越来越多地导致人们认为该倡议是中国的地缘经济战略。虽然“地缘经济”这个概念没有普遍认可的含义,但这个概念往往会让人联想到地缘政治操纵中的赢家和输家。因此,中国需要让世界相信,“一带一路”倡议确实是国际合作的“双赢”方案。要做到这一点,中国需要更密切地接触国际法,少谈中国自己的全球治理模式。
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引用次数: 6
Hong Kong’s Role in the BRI Dispute Resolution: Limits of Law and Power of Politics 香港在“一带一路”倡议争端解决中的作用:法律的局限与政治的力量
IF 1.2 Q3 LAW Pub Date : 2020-06-01 DOI: 10.1093/cjcl/cxaa007
Linag Feng
The Hong Kong government has aimed to make Hong Kong an international dispute resolution hub for decades. After China’s launch of the Belt and Road Initiative (BRI), Hong Kong has striven to make itself such a hub under the BRI. This article chooses arbitration as an example to examine Hong Kong’s role in the dispute resolution under the BRI from three perspectives, that is, its legal infrastructure, central and local governmental policy support, and challenges faced by Hong Kong. Detailed review reveals that Hong Kong’s legal infrastructure is well suited to resolve any disputes arising under the BRI and that there is also strong policy support from both the Chinese central government and the Hong Kong government. After examining challenges from Mainland Chinese arbitration institutions and self-contradiction within national policy documents, international and foreign arbitration institutions, and Hong Kong’s political instability and conflicts with the Mainland, the article suggests that the primary reason why Hong Kong has not been successful in getting its share of dispute resolution business under the BRI is its political instability and bad relationship with Mainland China. It argues that Hong Kong’s political skills in convincing both the Chinese central government and State-owned enterprises to choose Hong Kong as the forum for resolving disputes under the BRI are more important and will determine whether Hong Kong can get a fair share of the dispute resolution business under the BRI. In addition, the Hong Kong government and the relevant stakeholders in Hong Kong should also change their mentality from thinking only about Hong Kong’s interests to putting themselves in the shoes of the Guangdong, Hong Kong, and Macau (GHM) Greater Bay Area and come up with a collaborative strategy to develop dispute resolution mechanisms in the GHM Greater Bay Area together. Only in so doing will Hong Kong be able to get its share of dispute resolution business from projects under the BRI.
几十年来,香港政府一直致力于使香港成为国际争端解决中心。自中国提出“一带一路”倡议以来,香港一直在努力成为“一带一路”的中心。本文以仲裁为例,从法律基础设施、中央和地方政府的政策支持以及香港面临的挑战三个方面考察香港在“一带一路”下的争议解决中的作用。详细审查表明,香港的法律基础设施非常适合解决“一带一路”引发的任何争议,而且中国中央政府和香港政府也有强有力的政策支持。在分析了中国内地仲裁机构的挑战和国家政策文件、国际和外国仲裁机构的自相矛盾,以及香港的政治不稳定和与内地的冲突后,本文认为香港未能在“一带一路”下成功获得争议解决业务的主要原因是其政治不稳定和与中国内地的不良关系。报告认为,香港在说服中国中央政府和国有企业选择香港作为解决“一带一路”下争议的论坛方面的政治技巧更为重要,并将决定香港是否能在“一带一路”下获得公平的争议解决业务份额。此外,香港政府和香港的利益相关方也应改变只考虑香港利益的思维方式,站在粤港澳大湾区的角度考虑问题,共同制定粤港澳大湾区争端解决机制的合作战略。只有这样,香港才能从“一带一路”项目的争议解决业务中分得一杯羹。
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引用次数: 0
Dispute Settlement in the Belt and Road Initiative: Progress, Issues, and Future Research Agenda “一带一路”倡议中的争端解决:进展、问题和未来研究议程
IF 1.2 Q3 LAW Pub Date : 2020-06-01 DOI: 10.1093/cjcl/cxaa016
Jiangyu Wang
Policy-makers in China for the Belt and Road Initiative (BRI) initially did not consider dispute settlement very seriously, but they have realized in recent years that this is an issue that might have to form a critical part of BRI transactions and projects. This introduction gives an overview of the types of disputes emerging out of the BRI deals and critically examines China’s efforts to build institutions and rules for resolving BRI disputes. In this context, it introduces the articles contained in this special issue and presents a future research agenda for moving the study of BRI dispute settlement to the next level.
中国的“一带一路”政策制定者最初并没有非常认真地考虑争端解决问题,但近年来他们已经意识到,这可能是一个必须形成“一带一路”交易和项目的关键部分的问题。本导言概述了“一带一路”协议中出现的争端类型,并批判性地审视了中国为解决“一带一路”争端建立制度和规则的努力。在此背景下,它介绍了本期特刊中包含的文章,并提出了将“一带一路”争端解决研究推向下一个层次的未来研究议程。
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引用次数: 3
期刊
Chinese Journal of Comparative Law
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