Can the West Learn from the Rest?\u27 The Chinese Legal Order\u27s Hybrid Modernity

I am asked to present on the shortcomings of the Western model of legality based on a professionalized, individualistic and highly formalistic approach to justice as a way to understanding if the West can develop today a form of legality which is relational rather than based on litigation as a zero sum game, learning from face to face social organizations in which individuals understand the law - presumably in the context of the imperial and modem Chinese legal systems which I know best as a scholar and have lived for many years as a resident of the modem identity of the center of the Chinese world, the People\u27s Republic of China ( PRC ). The task is difficult, if only because of the collection of assumptions and stereotypes embedded in the question offered to our panel, and which must be challenged: For instance, is there a unified Western model of legality? Is there a unified Chinese world (or Asian or Confucian ) model of legality? Is the Western model truly characterized by any of a professionalized, individualistic or highly formalistic approach to the (unelaborated and deeply seductive notion of) justice? Is that part of the Rest which is the Chinese world not professionalized, individualistic or formalistic (and if not, to what degree)? Is the Chinese-world model in its modern iteration in any real sense relational or based on face-toface social organizations, etc.? Are any of these characterizations about evidently dynamic systems so static that they can be proclaimed and examined in detail as if a butterfly captured under a jar

China\u27s Acquistions Abroad - Global Ambitions, Domestic Effects

The following essay is based on a talk delivered to the Law School\u27s International Law Workshop on October 17, 2005. In the past year or so, the world has observed with seeming trepidation what appears to be a new phenomenon - China\u27s stepping out into the world economy. This move, labeled the Going Out Strategy by Chinese policy makers, sees China acting in the world not just as a trader of commodities and raw materials, or trhe provider of inexpensively-produced consumer goods for every corner of the globe, but as a driven and sophisticated acquirer of foreign assets and the equity interests in the legal entities that control such assets

Fiduciary Principles in Chinese Law

This chapter examines the principles of fiduciary doctrine that are found in Chinese law, with a particular focus on developments in law and regulation in the People’s Republic of China (PRC) after the early 1980s. It also considers the advent and elaboration of what the Anglo-American legal system calls “corporate fiduciary duties,” including partnership fiduciary duties. The chapter first provides an overview of basic conceptions of corporate fiduciary duties that entered Chinese law and practice through at least three separate tracks: academic, regulatory, and jurisprudential. It then explores corporate and partnership fiduciary duties after 2006, placing emphasis on corporate law and the law on partnerships, before discussing how corporate fiduciary duties are understood and applied by state institutions and private parties. More specifically, it explains how the Chinese courts have engaged with the idea of corporate and partnership fiduciary duties in the period after 2006, and how these doctrines have been formalized in law. The chapter shows how a particular set of legal doctrines originating in a distinct legal, political, and economic system have been given life in large part by private actors, namely, domestic PRC investors, managers, and state institutions, rather than the demands of foreign investors

\u27Quack Corporate Governance\u27 as Traditional Chinese Medicine – The Securities Regulation Cannibalization of China\u27s Corporate Law and a State Regulator\u27s Battle Against Party State Political Economic Power

From the start of the People’s Republic of China’s (PRC) “corporatization ” project in the late 1980s, a Chinese corporate governance regime subject to increasingly enabling legal norms has been determined by mandatory regulations imposed by the PRC securities regulator, the China Securities Regulatory Commission (CSRC). Indeed, the Chinese corporate law system has been cannibalized by all - encompassing securities regulation directed at corporate governance, at least for companies with listed stock. This Article traces the path of that sustained intervention and makes a case — wholly contrary to the “quack corporate governance” critique much aired in the United States — that for the PRC this phenomenon is necessary, appropriate, and benign. That analysis, in turn, reveals a great deal about the following: the development of Chinese law and legal institutions after 1979; China’s contemporary political economy; the true identity of the firm under the PRC “corporatization without privatization” program; the normative character and function of corporate law across increasingly globalized capital markets; and the ways in which state intervention may protect against state abuse of power and enable greater private autonomy. For analysts of China’s contemporary political system, this Article uncovers a new identity of the Chinese party state’s horizontally oriented “fragmented authoritarianism,” where a central government agency has instituted pre-enforcement designs that systemically constrain the economic and directorial power of the PRC’s most powerful, formally non-governmental, political economic actors

Enforcement Without Foundation? Insider Trading and China\u27s Administrative Law Crisis

China\u27s securities regulator enforces insider trading prohibitions pursuant to non-legal and non-regulatory internal guidance. Reported agency decisions indicate that enforcement against insider trading is often possible only pursuant to this guidance, as the behavior identified is far outside of the scope of insider trading liability provided for in statute or regulation. I argue that the agency guidance is itself unlawful and unenforceable, because: (i) the guidance is not the regulatory norm required by the statutory delegation of power; and (ii) the guidance is ultra vires because (a) it addresses something substantively different from what is authorized under the statutory delegation, and (b) because the guidance radically transforms the underlying basis for the breach of insider trading under Chinese law-from a modified classical Ifiduciary duty plus misappropriation theory to an extremely robust equal access I mere possession of inside information theory. I then outline potential Chinese law challenges to the norms and their enforcement, and analyze why there is such marked tolerance to plainly illegal rule-making and enforcement by what is commonly understood to be one of China\u27s best administrative agencies. The infirmity underlying the basis for well-governed and investor- attracting capital markets identified here has implications not only for China\u27s securities regulation regime and healthy market development, but also for the entirety of China\u27s legal and administrative law system in the reform era

Amending China\u27s Insider Trading Prohibition - An Immodest Proposal

Presented in China in conjunction with the proposed amendment of the People\u27s Republic of China (PRC) Securities Law 2006, this paper critiques the form and application of the PRC\u27s current insider trading prohibition and its misconceived fealty to Rule 10b-5-limiting U.S. Supreme Court-derived doctrines of fiduciary duty and misappropriation, and urges that China\u27s amended statute and enforcement system look to the broader doctrinal formulations employed in the United Kingdom and the European Union, ironically already used by China\u27s securities regulator pursuant to internal (and likely illegal) administrative guidance norms

Review of Trial of Modernity: Judicial Reform in Early Twentieth Century China, 1901-37, by Xiaoqun Xu

Observing these significant legal-political debates in the Chinese press and academy in the first decade of the twenty-first century, we might think they concern battles started only in the last decade and a half of Reform-era China. Now Professor Xu Xiaoqun reminds us that these struggles have a much longer pedigree, stretching back to the end of the nineteenth century and China\u27s first fraught encounter with the West and one idea of modernity

China\u27s Acquisitions Abroad - Global Ambitions, Domestic Effects

In the past year or so, the world has observed with seeming trepidation what appears to be a new phenomenon-China\u27s stepping out into the world economy. The move, labeled the Going Out Strategy by Chinese policy makers, sees China acting in the world not just as a trader of commodities and raw materials, or the provider of inexpensively-produced consumer goods for every corner of the globe, but as a driven and sophisticated acquirer of foreign assets and the equity interests in the legal entities that control such assets. The New Yorker magazine, ever topical and appropriately humorous, highlighted this attention with a cartoon in its October 17,2005 edition. That drawing shows two prosperous and no doubt Upper East Side-dwelling matrons holding cocktails before a fireplace. Above the fireplace hangs the formal portrait of a balding, well-fed, elderly, man. Looking at the portrait, one lady says matter-of-factly to the other: That\u27s Karl, before he was purchased by the Chinese

Can the West Learn from the Rest?\u27 The Chinese Legal Order\u27s Hybrid Modernity

I am asked to present on the shortcomings of the Western model of legality based on a professionalized, individualistic and highly formalistic approach to justice as a way to understanding if the West can develop today a form of legality which is relational rather than based on litigation as a zero sum game, learning from face to face social organizations in which individuals understand the law - presumably in the context of the imperial and modem Chinese legal systems which I know best as a scholar and have lived for many years as a resident of the modem identity of the center of the Chinese world, the People\u27s Republic of China ( PRC ). The task is difficult, if only because of the collection of assumptions and stereotypes embedded in the question offered to our panel, and which must be challenged: For instance, is there a unified Western model of legality? Is there a unified Chinese world (or Asian or Confucian ) model of legality? Is the Western model truly characterized by any of a professionalized, individualistic or highly formalistic approach to the (unelaborated and deeply seductive notion of) justice? Is that part of the Rest which is the Chinese world not professionalized, individualistic or formalistic (and if not, to what degree)? Is the Chinese-world model in its modern iteration in any real sense relational or based on face-toface social organizations, etc.? Are any of these characterizations about evidently dynamic systems so static that they can be proclaimed and examined in detail as if a butterfly captured under a jar