This article critically reviews the establishment and operation of the China International Commercial Court (CICC) from an insider’s perspective. It offers a detailed introduction to a few of the innovative measures of the CICC, including the International Commercial Expert Committee, the ‘one-stop’ forum for a dispute settlement mechanism integrating litigation, mediation, and arbitration, more convenient litigation procedures, and the use of advanced technology in dispute resolution. More importantly, it candidly discusses the challenges facing the CICC and makes several recommendations for its improvement towards more professionalism and internationalization.
{"title":"A Chinese Approach to International Commercial Dispute Resolution: The China International Commercial Court","authors":"Xiangzhuang Sun","doi":"10.1093/cjcl/cxaa015","DOIUrl":"https://doi.org/10.1093/cjcl/cxaa015","url":null,"abstract":"\u0000 This article critically reviews the establishment and operation of the China International Commercial Court (CICC) from an insider’s perspective. It offers a detailed introduction to a few of the innovative measures of the CICC, including the International Commercial Expert Committee, the ‘one-stop’ forum for a dispute settlement mechanism integrating litigation, mediation, and arbitration, more convenient litigation procedures, and the use of advanced technology in dispute resolution. More importantly, it candidly discusses the challenges facing the CICC and makes several recommendations for its improvement towards more professionalism and internationalization.","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/cxaa015","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47927843","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}
Abstract This comment highlights the major civil or commercial (mostly contract) law provisions in 24 judicial documents newly released by the Supreme People’s Court or High People’s Courts in China in response to the outbreak of COVID-19 and assesses the significance of key changes to the pre-pandemic law. It concludes by noting the increased role of the doctrine of the change of circumstances and the ‘contract purpose’ test, the emphasis placed on consensual solutions (by way of mediation and contract renegotiation), and the flexibility and relatively clearer guidance afforded to lower courts in their adjudication of disputes arising in connection with COVID-19.
{"title":"COVID-19 in Civil or Commercial Disputes: First Responses from Chinese Courts","authors":"Qiao Liu","doi":"10.1093/cjcl/cxaa023","DOIUrl":"https://doi.org/10.1093/cjcl/cxaa023","url":null,"abstract":"Abstract This comment highlights the major civil or commercial (mostly contract) law provisions in 24 judicial documents newly released by the Supreme People’s Court or High People’s Courts in China in response to the outbreak of COVID-19 and assesses the significance of key changes to the pre-pandemic law. It concludes by noting the increased role of the doctrine of the change of circumstances and the ‘contract purpose’ test, the emphasis placed on consensual solutions (by way of mediation and contract renegotiation), and the flexibility and relatively clearer guidance afforded to lower courts in their adjudication of disputes arising in connection with COVID-19.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2020-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxaa023","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42198577","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}
Although an increasing number of bilateral investment treaties (BITs) now incorporate the concept of sustainable development, direct reference to human rights is still rare and remains embryonic. A close look at the positions held by some representative groups and countries, including the European Union (EU), the USA, China, India, South Africa, and Mercosur, reveals that the reference to human rights features divergence. The divided positions held by these groups or countries reveal the difficulties of operationalizing human rights obligations into international investment rule making. Even among developed countries or economies, a consistent approach to human rights is yet to be found. Based on these observations, this article proposes a number of pragmatic solutions to bridge the gap between these divided positions. In order to synergize international investment treaty regimes on human rights, internal engagement, including the reform of BIT dispute settlement regimes, and external engagement, including dialogues among stakeholders, should be made.
{"title":"Human Rights and International Investment Agreements: How to Bridge the Gap?","authors":"Sheng Zhang","doi":"10.1093/cjcl/cxz019","DOIUrl":"https://doi.org/10.1093/cjcl/cxz019","url":null,"abstract":"\u0000 Although an increasing number of bilateral investment treaties (BITs) now incorporate the concept of sustainable development, direct reference to human rights is still rare and remains embryonic. A close look at the positions held by some representative groups and countries, including the European Union (EU), the USA, China, India, South Africa, and Mercosur, reveals that the reference to human rights features divergence. The divided positions held by these groups or countries reveal the difficulties of operationalizing human rights obligations into international investment rule making. Even among developed countries or economies, a consistent approach to human rights is yet to be found. Based on these observations, this article proposes a number of pragmatic solutions to bridge the gap between these divided positions. In order to synergize international investment treaty regimes on human rights, internal engagement, including the reform of BIT dispute settlement regimes, and external engagement, including dialogues among stakeholders, should be made.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxz019","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48512179","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}
Artificial intelligence (AI) can do many things that were not thought of some years ago and that are unimaginable for non-AI experts even today. In contrast, it is relatively easy to understand that AI can be used to compare contents and structures of laws and legal documents. In fact, the comparative abilities of AI are the reason why AI is now playing an increasing role—for example, in due diligence exercises where contracts, documents as well as other materials and legal data of target companies are benchmarked against standard patterns. If the ‘ability to compare’ is one of the core features of AI it is only natural to assume that AI is an ideal tool to conduct comparative law work. This article explores if this assumption is correct. This article first highlights key features of the comparative law work process, which, for some strange reason, is hardly ever discussed in the legal literature. This article describes and analyses the different stages and investigates which parts can (or cannot) be conducted by AI. It also asks if AI will—within the scope of its comparative abilities—in fact, ‘take over’ from human comparatists. On the basis of the findings, this article concludes that it is more likely than not that comparative law work will, in the future, be AI based.
{"title":"Artificial Intelligence ante portas: The End of Comparative Law?","authors":"Lutz-Christian Wolff","doi":"10.1093/cjcl/cxz020","DOIUrl":"https://doi.org/10.1093/cjcl/cxz020","url":null,"abstract":"\u0000 Artificial intelligence (AI) can do many things that were not thought of some years ago and that are unimaginable for non-AI experts even today. In contrast, it is relatively easy to understand that AI can be used to compare contents and structures of laws and legal documents. In fact, the comparative abilities of AI are the reason why AI is now playing an increasing role—for example, in due diligence exercises where contracts, documents as well as other materials and legal data of target companies are benchmarked against standard patterns. If the ‘ability to compare’ is one of the core features of AI it is only natural to assume that AI is an ideal tool to conduct comparative law work. This article explores if this assumption is correct. This article first highlights key features of the comparative law work process, which, for some strange reason, is hardly ever discussed in the legal literature. This article describes and analyses the different stages and investigates which parts can (or cannot) be conducted by AI. It also asks if AI will—within the scope of its comparative abilities—in fact, ‘take over’ from human comparatists. On the basis of the findings, this article concludes that it is more likely than not that comparative law work will, in the future, be AI based.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxz020","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47499201","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}
Hong Kong’s system of administrative law has drawn strength and durability from its English counterpart, on which it was heavily modelled. Too often, however, there is a slavish acceptance of the pre-eminence of English law and a tendency to conservativism and a lack of innovation. This article argues that Hong Kong courts and legislators must dare to diverge from English law where an alternative path would prove more credible or appropriate. Three prisms are deployed through which to argue that a misplaced emulation of English law can result in a poor legal framework. First, it is shown that a failure to properly conceptualize error of law as a ground of judicial review has resulted in a ground that, locally, is in a state of incoherence and disarray and that the admission or non-admission of a distinction between jurisdictional and non-jurisdictional errors urgently requires clarification from the Court of Final Appeal. Second, it is proposed that the English-inspired incorporation of a specific time limit in the rules for applying for judicial review should be abolished in the interests of access to justice and legal certainty, drawing on the experience of jurisdictions such as New Zealand, Canada, and Scotland. Finally, it is explained why the antiquated system of administrative tribunals in Hong Kong, redolent of the unreformed English tribunal system of decades past, needs comprehensive structural and procedural redesign. Courts and legislators must dare to diverge in these areas, with Hong Kong’s administrative law standing on its own two feet, where minds are focused on a genuine, locally crafted improvement of standards prevailing in administrative law and public administration.
{"title":"Dare to Diverge: Time for Administrative Law in Hong Kong to Stand on Its Own Two Feet","authors":"Stephen Thomson","doi":"10.1093/cjcl/cxaa002","DOIUrl":"https://doi.org/10.1093/cjcl/cxaa002","url":null,"abstract":"\u0000 Hong Kong’s system of administrative law has drawn strength and durability from its English counterpart, on which it was heavily modelled. Too often, however, there is a slavish acceptance of the pre-eminence of English law and a tendency to conservativism and a lack of innovation. This article argues that Hong Kong courts and legislators must dare to diverge from English law where an alternative path would prove more credible or appropriate. Three prisms are deployed through which to argue that a misplaced emulation of English law can result in a poor legal framework. First, it is shown that a failure to properly conceptualize error of law as a ground of judicial review has resulted in a ground that, locally, is in a state of incoherence and disarray and that the admission or non-admission of a distinction between jurisdictional and non-jurisdictional errors urgently requires clarification from the Court of Final Appeal. Second, it is proposed that the English-inspired incorporation of a specific time limit in the rules for applying for judicial review should be abolished in the interests of access to justice and legal certainty, drawing on the experience of jurisdictions such as New Zealand, Canada, and Scotland. Finally, it is explained why the antiquated system of administrative tribunals in Hong Kong, redolent of the unreformed English tribunal system of decades past, needs comprehensive structural and procedural redesign. Courts and legislators must dare to diverge in these areas, with Hong Kong’s administrative law standing on its own two feet, where minds are focused on a genuine, locally crafted improvement of standards prevailing in administrative law and public administration.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxaa002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46917870","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 unprecedented dissolution of the Hong Kong National Party, a localist political party advocating the independence of Hong Kong from China, has given rise to a constitutional dispute over the competing principles of protecting national security and upholding freedom of association. This article first analyses the theory of ‘militant democracy’, which refers to a form of constitutional democracy authorized to protect civil and political freedom by pre-emptively restricting the exercise of such freedoms, as applied in the case law of the European Court of Human Rights. It argues that a pre-emptive ban on a party can be justified by a government if the party pursues undemocratic aims or employs violence or incitement to violence to achieve its political goals. This article then assesses the constitutionality of the dissolution of the Hong Kong National Party in light of the theory of ‘militant democracy’ and submits that such a theory should equally apply to Hong Kong, allowing the government to act in a militant manner to dissolve any political parties such as the Hong Kong National Party if they have incited or resorted to violence to pursue their political agenda.
{"title":"The Dissolution of the Hong Kong National Party: Constitutionality under the ‘Militant Democracy’ Theory","authors":"Qin Jing, Zhou Qingfeng","doi":"10.1093/cjcl/cxz016","DOIUrl":"https://doi.org/10.1093/cjcl/cxz016","url":null,"abstract":"\u0000 The unprecedented dissolution of the Hong Kong National Party, a localist political party advocating the independence of Hong Kong from China, has given rise to a constitutional dispute over the competing principles of protecting national security and upholding freedom of association. This article first analyses the theory of ‘militant democracy’, which refers to a form of constitutional democracy authorized to protect civil and political freedom by pre-emptively restricting the exercise of such freedoms, as applied in the case law of the European Court of Human Rights. It argues that a pre-emptive ban on a party can be justified by a government if the party pursues undemocratic aims or employs violence or incitement to violence to achieve its political goals. This article then assesses the constitutionality of the dissolution of the Hong Kong National Party in light of the theory of ‘militant democracy’ and submits that such a theory should equally apply to Hong Kong, allowing the government to act in a militant manner to dissolve any political parties such as the Hong Kong National Party if they have incited or resorted to violence to pursue their political agenda.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxz016","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43903222","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 presenting a case study of local judicial activism in medical negligence law reform in recent China, this article examines the active engagement of Chinese provincial courts in bottom-up reform of national laws. Contrary to conventional wisdom that law-making is the least important function of local courts, it finds that provincial courts in China, like the Supreme People’s Court, are actively engaging in law-making, which is an essential part of their functions. It also reveals that the national judiciary is more susceptible to political pressure while the provincial judiciary tends to be less vulnerable to political pressure and more responsive to populist pressure when exercising its law-making power. Therefore, provincial courts may be in a better position to reform national laws in response to urgent social needs, in contrast to the Supreme People’s Court, which encounters political obstacles in pursing top-down law reform. By exploring the dynamic national–local judiciary relationship in the law-making landscape, this article argues that judicial activism of provincial courts in national law reform opens an alternative channel through which populist views can effectively move up to become part of national laws despite China being a non-democratic country.
{"title":"Judicial Activism of Provincial Courts in China: Medical Negligence Law as a Case Study","authors":"C. Ding","doi":"10.1093/cjcl/cxaa001","DOIUrl":"https://doi.org/10.1093/cjcl/cxaa001","url":null,"abstract":"\u0000 By presenting a case study of local judicial activism in medical negligence law reform in recent China, this article examines the active engagement of Chinese provincial courts in bottom-up reform of national laws. Contrary to conventional wisdom that law-making is the least important function of local courts, it finds that provincial courts in China, like the Supreme People’s Court, are actively engaging in law-making, which is an essential part of their functions. It also reveals that the national judiciary is more susceptible to political pressure while the provincial judiciary tends to be less vulnerable to political pressure and more responsive to populist pressure when exercising its law-making power. Therefore, provincial courts may be in a better position to reform national laws in response to urgent social needs, in contrast to the Supreme People’s Court, which encounters political obstacles in pursing top-down law reform. By exploring the dynamic national–local judiciary relationship in the law-making landscape, this article argues that judicial activism of provincial courts in national law reform opens an alternative channel through which populist views can effectively move up to become part of national laws despite China being a non-democratic country.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxaa001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41826026","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 is concerned with an important feature of English law that distinguishes it sharply from civilian systems of law and, to a lesser extent, from other common law systems—namely, its eschewal of an imposed duty of good faith and fair dealing. It will be shown that English law is receptive to such a standard in particular cases but that much of the ground that may be thought to be covered by good faith and fair dealing is covered instead by controls on the exercise of contractual discretion by reference to an implied contractual term that the discretion not be exercised in a way that is capricious, arbitrary, or irrational. This body of law has grown up in the last 30 years or so and has been influenced to a degree by public law considerations.
{"title":"Limits on Contractual Freedom","authors":"M. Bridge","doi":"10.1093/cjcl/cxz017","DOIUrl":"https://doi.org/10.1093/cjcl/cxz017","url":null,"abstract":"\u0000 This article is concerned with an important feature of English law that distinguishes it sharply from civilian systems of law and, to a lesser extent, from other common law systems—namely, its eschewal of an imposed duty of good faith and fair dealing. It will be shown that English law is receptive to such a standard in particular cases but that much of the ground that may be thought to be covered by good faith and fair dealing is covered instead by controls on the exercise of contractual discretion by reference to an implied contractual term that the discretion not be exercised in a way that is capricious, arbitrary, or irrational. This body of law has grown up in the last 30 years or so and has been influenced to a degree by public law considerations.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxz017","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48831163","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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