Lancashire Law School. University of Central Lancashire 13 May 2015, Preston, UK. Lancashire Law School

Transcription

1 The Official Launch of the Institute for International and Comparative Law & International Conference on Rule of Law and Chinese Legal Reforms: Developments and Prospects in Collaboration with the Confucius Institute University of Central Lancashire 13 May 2015, Preston, UK

2 Conference Programme 13 May 2015 (Wednesday) 09:30-10:00 Registration 10:00-10:40 Welcome Session Chair: Professor Keyuan Zou, Harris Professor of International Law, Lancashire Law School, UCLan, Preston, UK Panelists: Ms. Jane Anthony, Dean,, UCLan, Preston, UK Professor Gang Sui, Co-Director, Confucius Institute, UCLan, Preston, UK Professor Michael Salter, Professor of Law,, UCLan, Preston, UK 10:40-11:00 Photo Session and Coffee break 11:00-12:30 Panel I: Public Dimensions Moderator: Ms. Jane Anthony Speakers: Professor Keyuan Zou, Harris Professor of International Law,, UCLan, Preston, UK Towards Rule of Law in China: Recent Developments Dr. Ming Du, Reader, Law School, Lancaster University, Lancaster, UK Conceptualizing Chinese State-owned Enterprises (SOEs) Ms. Chunfang Qi, Judge, People s Court of Gaoyang County, Hebei, China & PhD Candidate,, UCLan, Preston, UK Judicial Reform in China: Analyzing from the Hugjiltu Case Discussant: Ms. Feixia Yu, Director, Confucius Institute, UCLan, Preston, UK

3 12:30-13:30 Lunch 13:30-15:00 Panel II: Business Dimensions Moderator: Professor Michael Salter Speakers: Dr Xiaohong Wen, Associate Professor, School of Law, Beijing International Studies University, Beijing, China Reforming the Trial System for Intellectual Property Cases in China Dr Lu Xu, Senior Lecturer, Law School, Lancaster University, Lancaster, UK Land Registration and Property Law in China Dr Jia Chen, Associate Professor, School of Law, Hebei University, Baoding, China Numerus Clausus and China s Legal System Reform of Rural Land: Reflections on China s from Pilot to Legislation Model Discussant: Dr Yanying Su, Associate Professor, School of Law, Hebei University, Baoding, China 15:00-15:15 Coffee/Tea Break 15:15 16:45 Panel III: International Dimensions Moderator: Professor Keyuan Zou Speakers: Professor Michael Salter, Professor of Law,, UCLan, Preston, UK The Rule of Law as a Critical Yardstick within the International Context: Implications for China Dr Qianlan Wu, Assistant Professor, School of Contemporary Chinese Studies, University of Nottingham, UK Economic Security and Competition Law: EU and China s Experiences Dr Henrik Andersen, Lecturer,, UCLan, Preston, UK China and the WTO Appellate Body s Rule of Law Discussant:

4 Ms. Yinan Yin, PhD Candidate and Associate Lecturer,, UCLan, Preston, UK 16:45 17:00 Wrap-up and Concluding Remarks Professor Michael Salter Professor Keyuan Zou 18:00 Dinner (For chairs, speakers, discussants and invitees only) End of the Conference

5 Speakers Bios and Abstracts Henrik Andersen, Lecturer,, UCLan, Preston, UK Dr Henrik Andersen is currently Lecturer,, UCLan and also Visiting Lecturer, Copenhagen Business School, Law Department since He obtained his PhD from the Copenhagen Business School in His research areas include WTO law; International Economic Law; International Rule of Law; Western and Asian Legal Cultures; Dispute Settlement; and Legal Fragmentation and Constitutional Pluralism, including values in international law. His latest publications are Protection of Non-Trade Values in WTO Appellate Body Jurisprudence: Exceptions, Economic Arguments, and Eluding Questions, 18 (2) Journal of International Economic Law, 2015 (forthcoming); Core Workers Rights as Constitutional Principles in the WTO? in Festskrift - Liber Amicarum et Amicorum in Honour of Ruth Nielsen, Christina Tvarnø, Ulla Neergaard, Jens Fejø, and Grith Ølykke (eds.) 2013, DJØF Forlag; and EU Safeguards Applications and WTO Law, in Liberalizing Trade: Comparing the Experiences of the EU and the WTO, Sanford Gaines, Birgitte Egelund Olsen, and Karsten Engsig Sørensen (eds.) 2012, Cambridge University Press. He is working on a monograph: An International Rule of Law in the Context of WTO Appellate Body Jurisprudence. He was a visiting scholar in various universities including University of Westminster, City University of Hong Kong, and European University Institute. He is a Reviewer for European Law Journal, Modern Law Review, and Journal of Economics and International Finance. China and the WTO Appellate Body s Rule of Law The World Trade Organization is no longer just seen with intergovernmental lenses. Rule of law is part of the vocabulary of the WTO and is developed by the Appellate Body. However, the concept of rule of law is a hazy concept with several normative challenges and it is often associated with Western ways of thinking. This article addresses how China approaches a rule of law at WTO level as rule of law in a Chinese context has specific Chinese traits which may not fit into a WTO rule of law and China has a strong intergovernmental approach to international law. The article claims that China recognizes a rule of law at WTO level and accepts the methodological approach by the Appellate Body. However, a WTO rule of law has not been challenged with human rights issues and it needs further refinement but so far it has served Chinese interests which might be a reason behind the Chinese approach.

6 Jia Chen, Associate Professor, School of Law, Hebei University, Baoding, China Dr Jia Chen is currently Associate Professor and LLM Postgraduate Supervisor in Civil and Commercial Law at the Law Department of the College of Political Science and Law, Hebei University, China. She works as a specially invited expert for the Legislative Affairs Office of the People s Government of Hebei Province, and Secretary-General and Executive Director of the Hebei Association for Legal Education. She specializes in Chinese real property law and contract law. Her publications have appeared in Chinese leading academic journals including Law and Social Development, Studies on Case Interpretation, China Radio & TV Academic Journal (Analysis on Infringements in Radio Programs), and Hebei Academic Journal. Numerus Clausus and China s Legal System Reform of Rural Land: Reflections on China s from Pilot to Legislation Model In the past thirty years, the basic mode of Chinese legal system reform of rural land is to allow or default some administrative areas to attempt legislation and system innovation. Small social risks and low cost of system compatibility are the advantages of this mode. But sometimes it is in conflict with the numerus clausus according to Article 5 of the Real Right Law of the People s Republic of China. By suspending the implementation of laws, the decisions made by the 12 th Session of the 13 th Meeting of the National People s Congress Standing Committee authorized the State Council to adjust temporarily the relevant administrative laws and regulations in 33 pilot counties (city, district) such as Daxing District, Beijing Municipality. These pilot projects give us some insights on the solution to this problem. But further efforts are still needed in system improving and law implementation.

7 Ming Du, Reader, Law School, Lancaster University, Lancaster, UK Dr Ming Du is a Reader in Law at Lancaster University School of Law. He holds a DPhil in law from the University of Oxford, an LL.M from Harvard Law School, and a bachelor of law from Tsinghua University in Beijing, China. Prior to moving to the UK in 2013, he taught corporate law and international economic law in Hong Kong and practised corporate law in New York. His recent publications include: M. Du (2015), Explaining China s Tripartite Strategy towards the Trans-Pacific Partnership (TPP) Agreement, forthcoming in 18 (2) Journal of International Economic Law; M. Du (2014), When China s National Champions Go Global: Nothing to Fear but Fear itself, 48 (6) Journal of World Trade, ; and M. Du (2014), China s State Capitalism and World Trade Law, 63 (2) International and Comparative Law Quarterly, Conceptualizing Chinese State-owned Enterprises (SOEs) State-controlled investment entities, such as state-owned enterprises (SOEs), development banks, sovereign wealth funds, among many other vehicles of governmental capital, have taken centre stage in the global economy in recent years. The recent global financial crisis seems to have further enhanced the appeal of state capital in contrast to the liberal market model. However, the rise of state capital has presented a host of challenging questions. How should we conceptualize Chinese SOEs after their extensive re-structuring and reforms over the past thirty years: are they part of the government apparatus, or should they be treated the same as independent private enterprises? A series of recent cases have clearly shown that there are no straightforward answers to these questions. There is a general lack of understanding of the nature of SOEs and an ambivalent attitude towards how to deal with state capital. This presentation will reflect the nature of modern Chinese SOEs and the problems that they encountered in the business law context.

8 Chunfang Qi, Judge, People s Court of Gaoyang County, Hebei, China & PhD Candidate,, UCLan, Preston, UK Chunfang Qi, who got LLM from Peking University, has been working as a grade 1 judge since 2006 in Gaoyang People s Court, Hebei Province, China. In 2013, she came to England to become a PhD student at, UCLan, but her judgeship has been still reserved with the Gaoyang People s Court. Judicial Reform in China: Analyzing from the Hugjiltu Case This paper will analyse the judicial reform in China under the background of the reform of the death penalty. This paper will discuss the judicial reform in two aspects. First, it will focus on the macro perspective. Since the decision in the 3 rd Session of the 18 th Congress of the Central Committee of the Chinese Communist Party (CCP) prescribes that in order to construct a perfect legal system in China, it is necessary to deepen the reform of judicial system through which a just, efficient and authoritative socialist judicial system can be built. The paper will discuss to what extent this system construction can be achieved. Second, this paper will analyse the judicial reform from micro empirical perspective. It will study a concrete case- Hugjiltu s case to find the reason why the wrongful case has generated at that particular time and what the debates have been going over the judicial reform in respect of death penalty in China. It will discuss the old judicial reform before the media exposure of this case and analyse on how the judicial reform has made progress after this wrong case was corrected. From this analysis, the paper will try to discuss what the possible tendency of the judicial reform in relation to death penalty in China will be in future.

9 Michael Salter, Professor of Law,, UCLan, United Kingdom Professor Salter's most recent research has involved developing a model of regionalism appropriate to the changing geopolitics of an international order dominated by regional power-blows or Grossraum, whose de facto sovereignty exceeds the formal state borders of their leading states' borders, and which require the recognition of different levels of analysis including intra-grossraum relations and inter-grossraum relations. These recent projects have included collaborative articles with Yinan Yin in the Chinese Journal of International Law 2015 (1), on the Shanghai Cooperation Organisation as a Grossraum, and a forthcoming study on the African Union. These studies will soon be supplemented and gathered together into a research monograph with Ashgate publishers. The Rule of Law as a Critical Yardstick within the International Context: Implications for China This paper will outline debates over whether the prevailing liberal mode of the rule of law, as classically formulated, provides a contextually appropriate standard for critically assessing developments over governance within China. It argues that there are serious difficulties in identifying a viable understanding of the meaning, scope and rationale for this principle both generally and with respect to legal and political systems that have not arisen from the historically specific context of Western Europe, and its ideological offshoots - such as the USA. It will also consider whether only - at most - a substantially modified version of this rule of law model is applicable to the specifics of the Chinese context: one that takes into account the very different cultural and legal traditions that prevail in this country, its different constitutional and political systems and political culture, which in any event will influence the meaning Chinese judges and other constitutional interpreters give to this principle. It suggests that we considers changing the ideologically-loaded question of "what does the rule of law doctrine mean for the governance of China" with an equally polemical question of "how can our understandings of the rule of law be redefined in the light of the practicalities of securing governance within China and other states outside the ambit of Western liberalism and neo-liberalism? Can alternative values internal to the legal and constitutional thinking indigenous to these cultural traditions, including regional self-determination, the non-intervention of spatially alien powers and distinctive models of democratisation, be recognised as rivals to the ideological values associated with the Western model of the rule of law. If so then the rule of law would continue to operate as a critical yardstick of evaluation but in ways not beholden to the type of human rights imperialism that overgeneralises European values with those of "humanity as such."

10 Xiaohong Wen, Associate Professor, Beijing International Studies University, Beijing, China Dr Wen is currently Associate Professor at the School of Law and Politics, Beijing International Studies University, China. She received her B.A. from Inner Mongolia University of Technology and PhD from Communication University of China. She was a Visiting Scholar at the McGeorge School of Law, University of Pacific, and School of Law, University of California, Davis. Her research interest lies in communications law and policy, intellectual property law, and especially the issue of Internet copyright. Reforming the Trial System for Intellectual Property Cases in China Starting in November 2014, significant reforms took place for the trial system of intellectual property cases in China. Beijing, Shanghai, and Guangzhou have set up specialized courts for intellectual property cases. Civil and administrative cases relating to intellectual property will be tried in these courts. Relevant provisions regarding the jurisdiction of the courts are conducive to the unification of the standards for justice. The judgments in the "Qiong Yao v. Yu Zheng" and "Ni Xueli v. CCTV" cases indicate that China has taken unprecedented measures to improve the judicial protection of intellectual property. However, there are so many intellectual property cases on the one hand, and there is the lack of legal professionalism for some judges on the other. In such circumstances, China is facing many challenges as how to implement the reform of the trial system of intellectual property effectively in future.

11 Qianlan Wu, Assistant Professor, School of Contemporary Chinese Studies, University of Nottingham, UK Dr. Qianlan Wu is an assistant professor in Law in the school of Contemporary Chinese studies, University of Nottingham. Her main research area is on international competition laws and China. Dr. Wu is the author of the book on Competition Laws, Globalization and Legal Pluralism: China s Experiences published by Hart Publishing, Oxford in Dr. Wu holds a LLM from the University of Edinburgh and PhD in law from the LSE. Economic Security and Competition Law: EU and China s Experiences The EU played an influential role in shaping the design of China s Antimonopoly Law (AML) and continues to function as one main reference framework for Chinese competition authorities in the AML enforcement. However, in recent years, China has become more assertive in its merger regulation and is building up its own conceptual framework for competition regulation. This can be observed in the fact that the AML is expected to be used as a legal instrument to curb China s economic security, as one integral part of China s national security. The paper aims to compare EU Commission merger decisions on China national Blustar, PetroChina, and DMS/Sinochem, where Chinese state owned enterprise were parties to the proposed merger on the one hand, and Chinese Ministry of Commerce decision to prohibit Network shipping alliance between Maersk Line, Mediterranean Shipping Company and CMA-CGM on the ground of economic security in 2014 on the other hand. It aims to compare the understanding of economic security and its application in competition regulation in EU and China. It then attempts to assess to what extent China has developed its own conceptual framework for its AML enforcement, by developing the Chinese economic security rationale for the AML, in the context of global competition laws.

12 Lu Xu, Senior Lecturer, Law School, Lancaster University, Lancaster, UK Dr Lu Xu is currently a Senior Lecturer in Property Law at Lancaster University. Prior to that, he was Lecturer in Property Law at University of East Anglia between 2007 and He graduated from Shanghai Foreign Language School before coming to the United Kingdom. He attained BA (Hons) Law 1st Class from Robert Gordon University, LLM in Property Law with Distinction from University of Aberdeen, and PhD in law from University of Strathclyde. His PhD thesis was on the comparative studies of English and Scottish apartment ownership law. He has the Legal Profession Qualification Certificate from China, through passing the National Judicial Examination. His main research interests are in property law, including land registration, subsidiary interests, and apartment ownership. Land Registration and Property Law in China The Interim Regulation on Real Property Registration, issued by the State Council of the People s Republic of China, came into force on March 1st This Regulation should be an important milestone in establishing a national system of real property registration. Nevertheless the high-profile political move is still lacking in terms of details and rules (which is still in public consultation stage until 25th April 2015). More importantly there is no clear direction as to the role of property law in relation to the apparently imminent structure of real property registration. The key question, namely whether parties can rely on the register in their decisions and transactions involving real property, remains unanswered. The absence of legal principle in this regard will have serious implications when registration becomes an integral part of the law and practice of real property. Where comparative knowledge could help with formulating rules in a new system, this paper reflects on the approaches to the issue by different jurisdictions with a particular focus on the recently reformed Scottish system, and the English system in the midst of heated debate of fundamental principles. Whatever approach the Chinese system develops in the end, it is more helpful to have careful consideration and principled discussion now rather than leaving key questions unanswered before venturing into uncharted waters.

13 Keyuan Zou, Harris Professor of International Law,, UCLan, United Kingdom Keyuan Zou is Harris Professor of International Law at the of the University of Central Lancashire (UCLan), United Kingdom. He specializes in international law, in particular law of the sea and international environmental law. Before joining UCLan, he worked at Dalhousie University (Canada), Peking University (China), University of Hannover (Germany) and National University of Singapore. He has published over 60 refereed English papers in more than 30 international journals. His single-authored books include Law of the Sea in East Asia: Issues and Prospects (London/New York: Routledge, 2005), China s Marine Legal System and the Law of the Sea (Leiden/Boston: Martinus Nijhoff, 2005), China s Legal Reform: Towards the Rule of Law (Leiden/Boston: Martinus Nijhoff, 2006), and China-ASEAN Relations and International Law (Oxford: Chandos, 2009). His recent co-edited volumes include International Law in East Asia (Ashgate, 2011), and Conflict Management and Dispute Settlement in East Asia (Ashgate, 2011). He is member of Editorial Boards of the International Journal of Marine and Coastal Law (Martinus Nijhoff), Ocean Development and International Law (Taylor & Francis), Journal of International Wildlife Law and Policy (Taylor & Francis), Journal of Territorial and Maritime Studies (Northeast History Foundation), Copenhagen Journal of Asian Studies (Copenhagen Business School), and Chinese Journal of International Law (Oxford University Press), and Advisory Boards of the Chinese Oceans Law Review (Hong Kong: China Review Culture Limited), Global Journal of Comparative Law (Brill) and Korean Journal of International & Comparative Law (Brill). Towards Rule of Law in China: New Developments and Prospects Rule of Law has become a popular jargon in the Chinese society particularly since the adoption of the Third Amendment to the Chinese Constitution in There are several reasons to explain why China has determined to carry out legal reforms towards rule of law. First, since the economic reform and open-door policy in 1978, the Chinese society has experienced a fundamental change either in economic developments or in the reconstruction of the legal system. As China has been marching towards establishing a market economy, law is indispensable for the development of the Chinese market-oriented economy. It is commonly said that a market economy is a rule of law economy. Second, the requirements from the World Trade Organization (WTO) constitute another main factor for the change of China s legal environment and law

14 enforcement mentality and methods. As a WTO member, China has to bring its relevant laws and regulations in line with those of the WTO. Those administrative rules and regulations which are in conflict with WTO rules have to be revised and/or abolished. The WTO effect is fundamental to the change of Chinese laws at present and in the years to come. Finally, the change of the Chinese leadership may have some impact on the furtherance of the legal reform and the enhancing of the legal awareness within the Chinese society. It is recalled that Hu Jintao, before he took over all the top posts from Jiang Zemin, emphasized the importance of abiding by the Constitution and called for all the cadres to respect its legal authority on the occasion of commemorating the implementation of the 1982 Constitution for twenty years in December The current Chinese leader Xi Jinping has called for the construction of a rule of law country in China. It is clear that legal reforms towards rule of law are one of the primary missions for the current Chinese leadership.