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China and the Wto : A Long March Towards the Rule of Law - Esther Lam

China and the Wto

A Long March Towards the Rule of Law


Published: 8th October 2009
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Joining the World Trade Organization (WTO) enables China to reform its legal order and to move towards a system incorporating major principles of the rule of law. The WTO also serves as an external impetus that guides contemporary Chinese legal reform and orients it in ways that domestic forces alone could not achieve and sustain. Much discussion on the WTO and the Chinese legal system has focused on the issue of compliance A D whether the Chinese legal system has the capacity to fulfill China AZs WTO accession commitments. The focus of this work is less concerned with compliance issues per se, but rather with the extent to which the WTO AZs requirements vis-A A -vis China actually affect the Chinese legal system. The fine difference between the two lies in the fact that efforts by the Chinese government to meet its WTO obligations necessarily impact the Chinese legal order and its way of functioning, even if their end results may or may not lead to full compliance with what is required of it by the WTO. This timely work exposes many behind-the-scene dealings and relies on valuable information that is not publicly available. Not only does it preserve for the historical record important details of the Chinese WTO accession, it also sheds light on the travaux prA A|paratoires of China AZs accession agreement and the negotiation history of important issues, some of which remain relevant and highly contentious today. As expressed by WTO Director-General Pascal Lamy in his foreword to the book, (R)Through this work, Esther Lam succeeds in demonstrating how WTO membership can benefit both the acceding country and the wider WTO family of nations. AZ

List of Abbreviationsp. xiii
Foreword by WTO Director-General Pascal Lamyp. xv
Acknowledgementsp. xvii
Introductionp. xix
Understanding the Chinese Legal Orderp. 1
Burden or Assets? Chinese Legal History at a Glancep. 3
The Ancient Chinese Legal Systemp. 3
Core Norms and Origins: Legalism and Confucianismp. 4
The Confucianization Processp. 5
Key Confucian Teachings Incorporated into Chinese Lawp. 6
Family and Kinship Systemp. 6
Social Hierarchy and Stratificationp. 7
Law and Moralityp. 8
Basic Features of the Traditional Chinese Legal Systemp. 9
A Secondary Role of Law in Societyp. 9
Law: Merely a Means to an Endp. 10
Inequality before the Lawp. 11
Insignificant Individual Rightsp. 11
A Non-litigious Societyp. 12
No Separation of Powersp. 13
The Legal Reforms of the Early Twentieth Centuryp. 13
Late Qing Reform Measuresp. 14
Towards Criminal and Civil Law Codesp. 15
Resistance to Legal Reformp. 16
Lessons from the Reform Effortsp. 17
The Theoretical Deficit of Chinese Lawp. 18
Concluding Remarksp. 19
The Pre-WTO Chinese Legal System after 1949p. 21
Communist Influence: Mao and Cultural Revolutionp. 21
An Overview of the Law under Maop. 22
The Significance of Mao's Rule to China's Legal Developmentp. 23
Economic and Legal Reform under Deng Xiaoping's Rulep. 24
The Changing Role of Lawp. 25
The Legal Regime of Pre-WTO Chinap. 26
The CPC and the Government under Chinese Lawp. 26
‘A Socialist Market Economy’p. 27
An Economics-Driven Legal Reformp. 29
Legal Reformp. 30
The CPC and the PRC Constitutionp. 30
Legislative Aspectp. 32
Judicial Aspectp. 33
Law Enforcementp. 35
Constraints in Legal Reformp. 36
Regionalismp. 37
Arbitrary Administrative Powerp. 39
Weak Law Enforcement and Institutionsp. 40
Lack of Transparency and Predictabilityp. 42
Corruption and Weak Due Processp. 42
Blurred Party and Government Powerp. 43
Concluding Remarksp. 43
China's Long March to the WTO: Motivations, Process and Challengesp. 45
Motivationsp. 47
Trade and Economic Considerationsp. 48
Non-trade Considerationsp. 49
Regaining Central Controlp. 49
Consolidating Reform Policy towards a Market Economyp. 52
Countering Domestic Political Oppositionp. 53
Overcoming Reform Bottlenecksp. 55
Advancing Stalled Legal Reformp. 56
Foreign Policy and External Concernsp. 57
China's WTO Accession Processp. 59
The WTO Accession Mechanismp. 59
An Unusual Journey: China as a Special Casep. 64
Accession Chronologyp. 64
The GATT Stagep. 65
The WTO Stagep. 66
Why Did It Take So Long? Major Stumbling Blocksp. 67
Uncertain Legal Status: Resumption of Membership or Accession?p. 67
Hiatus after the Tiananmen Square Eventsp. 69
Tough Bilateral Negotiationsp. 71
The United Statesp. 72
The European Unionp. 74
Multilateral Bargainingp. 75
Foreign Exchange and IMF Interventionp. 76
Systemic Guaranteesp. 78
The Transitional Review Mechanismp. 80
Holding Out until the Last Momentp. 81
An Unorthodox Ratification Arrangementp. 82
Accession Commitments and Systemic Requestsp. 85
The Implementation of WTO Rules in the Chinese Legal Systemp. 85
Debates over Direct Applicabilityp. 86
Dualist or Monist Approachp. 87
Judicial Interpretationsp. 88
Limited Relevant Case Lawp. 90
WTO Challenges to the Chinese Legal Systemp. 92
Deciphering the Accession Packagep. 92
Uniformity in Administration of China's Trade and Legal Regimep. 95
WTO Requirements and China's Commitmentsp. 95
Concrete Chinese Actions and Their Significancep. 97
Transparency and Predictabilityp. 100
WTO Requirements and China's Commitmentsp. 100
Concrete Chinese Actions and Their Significancep. 102
Non-Discriminationp. 104
WTO Requirements and China's Commitmentsp. 104
Concrete Chinese Actions and Their Significancep. 106
Judicial Review by Impartial and Independent Tribunalsp. 108
WTO Requirements and China's Commitmentsp. 109
Concrete Chinese Actions and Their Significancep. 111
Concluding Remarksp. 114
The Impact of China's WTO Membership on the Chinese Legal Systemp. 117
Changing Relationship between Legal Authority and Political Powerp. 119
Redefining the Role between the Market and the Governmentp. 120
The Foreign Trade Law: A Legally Guaranteed Right to Tradep. 121
The Administrative Licensing Law: A Paradigm Shiftp. 123
A Stronger Role of Law in Policy-makingp. 126
The Foreign Investment Regimep. 128
Provisions on Guiding Foreign Investment Directionp. 129
Catalogue for the Guidance of Foreign Investment Industriesp. 130
A Direct Transplant of WTO Rulesp. 132
Anti-dumping Regulationsp. 133
Safeguards Regulationsp. 136
Intellectual Property Rights Lawp. 139
Legislative Effortsp. 140
Judicial Process and Efforts to Improve Intellectual Property Rights Adjudicationp. 142
WTO Focus of Concern: Enforcement Deficiencyp. 145
Concluding Remarksp. 149
Incorporating Major Rule of Law Principles into the Chinese Legal Systemp. 151
Key Relevant Rule of Law Principlesp. 153
Globalization: Converging International and Domestic Lawsp. 154
Globalization Definedp. 155
Globalizing WTO Rulesp. 156
Applicability in the Chinese Contextp. 157
A Pragmatic Approachp. 158
Four WTO-Induced Principlesp. 160
Assessment of Four Rule of Law Principles in Chinap. 161
Due Process and Procedural Fairnessp. 161
Legislative Changesp. 162
Relevant Cases and Executive Actionp. 163
Transparencyp. 164
Legislative Changesp. 165
Relevant Cases and Executive Actionp. 167
Equalityp. 169
Growing Disparitiesp. 172
Relevant Casesp. 173
Justiciability of Government Actionsp. 174
Legality Review Mechanisms in Chinap. 175
Relevant Casesp. 176
Concluding Remarksp. 178
Challenges Ahead: Opportunities and Risksp. 181
Opportunities for Positive Developmentp. 181
Clearer Framework for Reform: Lessons from the Property Lawp. 182
Legality Crucial for Regime Legitimacyp. 185
A Boost in Public Reliance on Law and the Legal Systemp. 190
Risks and Challengesp. 193
Weak Implementation Risks Disillusionp. 194
Uncertain Legal Status of the CPCp. 195
Response to Social Conflicts: Rules-Based Approach or Power Politics?p. 198
Conclusion: China's Long March Forwardp. 200
Appendixp. 205
Bibliographyp. 219
Indexp. 235
Table of Contents provided by Ingram. All Rights Reserved.

ISBN: 9789041131447
ISBN-10: 9041131442
Series: Global Trade Law
Audience: General
Format: Paperback
Language: English
Number Of Pages: 239
Published: 8th October 2009
Country of Publication: US
Dimensions (cm): 24.64 x 15.75  x 1.78
Weight (kg): 0.54