规范性文件冲突及其在中国的治理

Regulatory instruments in the form of normative documents has been used as a way to modernize Chinese society since the late 1970s. However, the conflict between laws undermines the effectiveness of such efforts. This article aims to answer the following questions in the process of law-making: How serious is the conflict of normative documents in China? Why there exists the conflict of normative documents? How the Legislation Law approaches the conflict of normative documents? What to be done to prevent the conflict of normative documents?     

习近平法治思想中的全球治理观

中国始终是世界和平的建设者、全球发展的贡献者、国际秩序的维护者,在"百年未有之大变局"中,中国前所未有地靠近世界舞台中心.习近平总书记在新的历史起点上,准确把握国际国内两个大局,针对全球治理这一重大课题,提出了以"构建人类命运共同体"理念为指引,以"走和平发展道路"和"中国走向世界,以负责任大国参与国际事务""构建以合...     

The “state-led-economy” issue in the BIT negotiations and its policy implications for China

The state-led-economy provisions in the U.S. model BIT, which was released in April 2012, aims to impose strict regulations on the SOEs and exert great influence on state-led economy model. China and the U.S. are now in the midst of negotiating a BIT, and the U.S. government insists on negotiating on the basis of its 2012 model BIT. If China is to accept the 2012 U.S. model for the proposed BIT between the two nations, unprecedented international obligations will be placed in the field of international investment. In this context, in order to provide a reference for the BIT negotiation, the author will analyze, from the perspective of normative jurisprudence, which economic activities are included in the scope of state-led economy provisions, whether China should accept the clauses and the possible impact of accepting it. China’s economy has indivisible relationship with State-owned enterprises (SOEs). At present, most of these SOEs have clustered in those sectors that play crucial roles in the national economy such as energy, telecommunication and finances. Despite several rounds of reform on the SOEs aiming at a separation of governmental functions from corporate management, and a modern market-oriented governance structure, Chinese SOEs remain monopolies or de facto monopolies with exclusive access to many important industries relevant to national economy and people’s livelihood. Further, SOEs can enjoy a lot of privileges in their operation, some even have certain regulatory authority which is supposed to be exercised by the government. This kind of economic model is called State-led economy. The 2012 U.S. model for bilateral investment treaties (BIT) is characterized by the inclusion of the state-led economy provisions, which means that there are more restrictive regulations governing SOEs and their special treatment, and countervailing their competition implication in the host country and their home country. Apart from creating a fair and impartial environment for the investors, this international investment regime, represented by 2012 U.S. BIT model, is in some way, intended to alter the host country’s economic governance regime. In accordance with the decision of the 5th round of the U.S.–China Strategic and Economic Dialogue, both parties are dedicated to proceeding the BIT negotiations (The 5th Round of the U.S.–China Strategic and Economic Dialogue: broad consensus achieved and positive progress made, People’s Daily, p 3, 2013). The U.S. government has insisted that they would base its 2012 model as a blueprint of BIT text negotiation. Seemingly to illustrate, the 6th round of the U.S.–China Strategic and Economic Dialogue has reached a consensus that an earlier launch of negotiation on the negative list will be expected in 2015 (The 6th Round of the U.S.–China Strategic and Economic Dialogue: broad consensus achieved and positive progress made, People’s Daily, p 3, 2014; Ministry of Commerce of the People’s Republic of China, The 14th Round of the U.S.–China Investment Treaty Negotiation is Held in Washington, D.C., 2014). If China is to accept the new BIT model, it will bring China a bundle of increasing obligations under this system and an unprecedented impact on China’s mode for economic development. As a contracting party, China will have to carry out a comprehensively economic reform to comply with the disciplines specified in the BIT. It is also understandable that the incorporation of the state-led economy provision in the China–U.S. BIT will in turn accelerate the domestic economic reforms. In this context, research on the issue of state-led economy in the BIT negotiation will be of significance to China’s dealing with the core issue in the BIT, China’s fulfillment of treaty obligations and its promotion of domestic economic reform via BIT negotiations. In order to provide a reference for the BIT negotiation, the author will identify from the perspective of normative jurisprudence, the economic activities that fall within the scope of state-led economy provisions, project the possible impact of state-led economy provisions and how China should handle negotiation surrounding the state-led economy issue.

     

A generalization of the obligation to prevent: From genocide convention to racial discrimination convention

The decision of the International Court of Justice in the case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”) highlights states’ obligations under the Convention, especially the obligation to prevent. When it comes to the case concerning the International Convention on Elimination of All Forms of Racial Discrimination (“Racial Discrimination Convention”), the decision of the Court indicating provisional measures seemingly purported to generalize its jurisprudence in the Genocide Case. By elaborating this kind of new jurisprudence, the Court echoed to the responsibility to protect, as well as to Article 48 and Article 54 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (“Draft Articles of State Responsibility”). It appears that each State Party should have an obligation to intervene in the coming genocide incidence, perhaps as well as in the coming racial discrimination cases. Nevertheless it is unclear in what manner a state could implement it effectively.     

论跨国公司对华技术转让中的知识产权战略及其对策

在对华技术转让中,跨国公司除了凭借其技术、品牌优势,构筑高技术壁垒,抢先制定行业标准从而控制技术外,它们之间还结成专利联盟,共同维护垄断地位.对此现象,我国必须从立法完善、制定政府战略、改进企业技术引进战略等方面加以规制.