China’s ambitious Belt and Road Initiative (BRI) is perhaps the modern equivalent of the Marshall Plan and will hopefully provide the aggregate demand lost due to the global financial crisis. At the moment, much of the financing has come from the government and financial institutions. If more private sector financing is needed for the BRI, this could involve, perhaps, having established ways of project finance that we have seen with the large infrastructural projects of the past as well as modern methods of asset securitization. Lawyers and financiers would be needed, and the West has traditionally held a comparative advantage in these entities, whereas China’s advantage is in building and making things. Singapore, perhaps, is now well placed to offer its services in a way that brings the East and the West together and that would hopefully provide a balanced approach that distributes benefits to all involved in the BRI. Its experiences are far from perfect, but it has learned painful lessons to position itself as a financial centre supporting the real economy that can now hopefully begin to rival New York, London, and Hong Kong. The areas examined in this article include Singapore’s development of property and infrastructural trusts, its bond and derivatives markets, its restructuring regime, and its legal expertise in project finance.
{"title":"Financing the Belt and Road Initiative: Can Singapore Help in Securitizing It?","authors":"Hans Tjio","doi":"10.1093/cjcl/cxaa004","DOIUrl":"https://doi.org/10.1093/cjcl/cxaa004","url":null,"abstract":"\u0000 China’s ambitious Belt and Road Initiative (BRI) is perhaps the modern equivalent of the Marshall Plan and will hopefully provide the aggregate demand lost due to the global financial crisis. At the moment, much of the financing has come from the government and financial institutions. If more private sector financing is needed for the BRI, this could involve, perhaps, having established ways of project finance that we have seen with the large infrastructural projects of the past as well as modern methods of asset securitization. Lawyers and financiers would be needed, and the West has traditionally held a comparative advantage in these entities, whereas China’s advantage is in building and making things. Singapore, perhaps, is now well placed to offer its services in a way that brings the East and the West together and that would hopefully provide a balanced approach that distributes benefits to all involved in the BRI. Its experiences are far from perfect, but it has learned painful lessons to position itself as a financial centre supporting the real economy that can now hopefully begin to rival New York, London, and Hong Kong. The areas examined in this article include Singapore’s development of property and infrastructural trusts, its bond and derivatives markets, its restructuring regime, and its legal expertise in project finance.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxaa004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43363251","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}
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.
{"title":"Innovation and Development of the China International Commercial Court","authors":"L. Fei","doi":"10.1093/cjcl/cxaa014","DOIUrl":"https://doi.org/10.1093/cjcl/cxaa014","url":null,"abstract":"\u0000 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. ","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxaa014","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49476252","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}
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.
{"title":"Dispute Settlement in the Belt and Road Initiative: Lessons from the Singapore Experience","authors":"Justice Steven Chong","doi":"10.1093/cjcl/cxaa013","DOIUrl":"https://doi.org/10.1093/cjcl/cxaa013","url":null,"abstract":"\u0000 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.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxaa013","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42865146","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}
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.
{"title":"Global PPPs and the Choice of Law Challenge","authors":"Yock Lin Tan","doi":"10.1093/cjcl/cxaa011","DOIUrl":"https://doi.org/10.1093/cjcl/cxaa011","url":null,"abstract":"\u0000 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.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxaa011","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46019692","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}
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.
{"title":"Chinese Investment Treaties in the Belt and Road Initiative Area","authors":"M. Sornarajah","doi":"10.1093/cjcl/cxaa008","DOIUrl":"https://doi.org/10.1093/cjcl/cxaa008","url":null,"abstract":"\u0000 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.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxaa008","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46551067","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}
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.
{"title":"The Belt and Road Initiative, China’s Cross-Border Insolvency Law, and the UNCITRAL Model Law on Cross-Border Insolvency","authors":"Meng Seng Wee","doi":"10.1093/cjcl/cxaa012","DOIUrl":"https://doi.org/10.1093/cjcl/cxaa012","url":null,"abstract":"\u0000 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.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxaa012","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48447540","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}
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.
{"title":"Developing Cross-Border Blockchain Financial Transactions under the Belt and Road Initiative","authors":"Yaolin Zhang","doi":"10.1093/cjcl/cxaa010","DOIUrl":"https://doi.org/10.1093/cjcl/cxaa010","url":null,"abstract":"\u0000 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.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxaa010","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47980073","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}
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.
{"title":"Tension and Rivalry: The ‘Belt and Road’ Initiative, Global Governance, and International Law","authors":"Jianfu Chen","doi":"10.1093/cjcl/cxaa009","DOIUrl":"https://doi.org/10.1093/cjcl/cxaa009","url":null,"abstract":"\u0000 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.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxaa009","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42343528","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}
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.
{"title":"Hong Kong’s Role in the BRI Dispute Resolution: Limits of Law and Power of Politics","authors":"Linag Feng","doi":"10.1093/cjcl/cxaa007","DOIUrl":"https://doi.org/10.1093/cjcl/cxaa007","url":null,"abstract":"\u0000 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.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxaa007","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44797853","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}
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.
{"title":"Dispute Settlement in the Belt and Road Initiative: Progress, Issues, and Future Research Agenda","authors":"Jiangyu Wang","doi":"10.1093/cjcl/cxaa016","DOIUrl":"https://doi.org/10.1093/cjcl/cxaa016","url":null,"abstract":"\u0000 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.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxaa016","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45656851","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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