Thoughts on the theories and practice of chinese private international law

“The parties can only choose facultative legal norms,” “the parties of all foreign-related civil and commercial cases may agree to choose Chinese law as the applicable law governing their legal relationship,” and “the applicable law to the contract chosen by the parties shall not avoid the mandatory provisions of Chinese law” —such viewpoints that have substantial influence among the theorists and in the judicial practices of Chinese private international law are actually based on misunderstandings of Chinese private international law. It is a task of the private international law community of China to eliminate such misunderstandings, hence facilitating the healthy development of Chinese private international law.     

Management of legal information in an international context: A conundrum of challenges and opportunities

Evolving technologies have created many exciting opportunities to increase the availability of legal information, and to facilitate the organization and publication of this information. With the globalization of almost all legal issues, increased access to primary and secondary resources in electronic format across jurisdictional lines has been a welcomed development by academics, lawyers, international business entities, and others. However, the myriad of legal systems and approaches to maintaining legislative and judicial records has led to a host of challenges in regard to coherent and efficient management of legal information. Focusing on development of legal information systems in China and the United States, this paper will open with a summary of the exciting current and emerging technological advances in legal research methodologies and in the electronic publication of cases, statutes, regulations and other critical resources. The paper will then analyze corresponding challenges, including authenticity, accuracy, currency and consistency. The analysis will include discussion of the varying quality of legal information resources proliferating in the Internet, as well as the host of issues surrounding electronic publishing of legal information by government entities and commercial enterprises. The paper will conclude with a prospective analysis of the manner in which emerging technologies can enhance knowledge management of legal information and strengthen legal systems in both common law and civil law jurisdictions.     

竞争政策区域合作机制探析

Regional economic cooperation and multilateral cooperation of competition policies are regarded as two of the most important topics in international communities, both of which have a very close relationship, i.e., the former is an important path to the latter, and the latter is usually a critical topic of the former. Among the existing regional cooperation mechanism of competition policies are the three most typical modes, i.e., APEC’s open cooperation, NAFTA’s procedural law cooperation and EU’s substantive law cooperation. While taking initiatives to participate in multilateral cooperation of competition policies, China shall grasp the situation of current multilateral cooperation of competition policies, and follow the orderliness of its development, i.e., a step-by-step process of cooperation from nonbinding to binding, from domestic law to international law, and from fundamental to procedural law and to substantive law. Qi Tong, Ph.D, was once a visiting scholar in the Amsterdam Center of International Law (ACIL) (2006–2007). Now, he is an associate professor at the Department of International Economic Law of Wuhan University. His research interests focus on international trade law, international investment law, international financial law, international competition policy. His main publications include Regulatory constraint on transnational mergers & acquisitions (2006), Antitrust legislation on foreign M&A investments: Analysis on the antitrust rules in the Interim Provisions for Foreign Investors to Merge Domestic Enterprises (2004), Evolution of the pluralistic market regulation mechanism and its legislation (2005), On the positive comity of international antitrust cooperation (2005), International regulation mechanism and the new views of international economic law (2005), A legal perspective on the development of loan securitization in China (2006), A review on the case of Chinese measures affecting financial information services and foreign financial information supplier (2008).     

Exploring the offshore interface

The connections between economic development, corruption, and the increasingly globalised financial system are not yet fully understood. This article examines the offshore interface — tax havens and offshore finance centres — that lies between the developed countries and Less Developed Countries (LDCs), part of the international financial system where legitimacy meets corruption. The central argument is that the existence of the offshore interface facilitates and can even encourage onshore corruption. New technology, in combination with strict bank secrecy in the private banking offshore networks of major banks, allows rapid international flows of funds, illustrating an increasing synergy between the offshore interface, globalisation and onshore corruption.An earlier version of this paper was read at the Development Studies Annual Conference in Dublin, 7–9 September 1995.     

Power,National Security and Transparency: Judicial Decision Making and Social Architecture in the Federal Courts

Even in a democratic society, the need for transparency must be balanced with an important countervailing interest: the occasional, legitimate need for government secrecy. This article, based on an examination of opinions in federal cases dealing with national security and transparency, explores how judges identified the main legal issues presented by a case and the legal factors or mode of legal interpretation used to reach or justify their conclusions. The article concludes that many of these opinions are as much about judges’ attempts to balance the judicial branch's power with the powers of the executive and legislative branches as they are about national security and transparency. Furthermore, the article contends these opinions have created an “architecture of power” that determines how national security information is controlled. The final section also suggests that judges should be mindful of the original architecture of power established by the Constitution and the First Amendment when writing their opinions.     

论复合法域条件下的中国对外刑事司法合作关系

对于中国的刑事司法合作问题的研究 ,目前主要着眼于中国的对外刑事司法合作以及中国国内的区际刑事司法合作两个方面 ,而对于复合法域条件下的中国国家及其各个法域的对外刑事司法合作及其相互关系问题却几乎无人问津。本文在分析了中国对外刑事司法合作的现状 ,以及“一国两制三法系四法域”局面的形成给中国的对外刑事司法合作带来的影响的基础上 ,就复合法域条件下 ,中国应当如何处理国家及其各个法域同有关国际条约和国际组织的关系、同外国的引渡关系等问题进行了探讨 ,并就中国国家及其各个法域在对外刑事司法合作中的身份定位、活动方式、行为准则以及相互关系等问题阐述了一些见解和主张。     

Application of private international law conventions in hong kong of china

The conflict of laws of Hong Kong has predominately preserved traditional common law rules of pre-England conflict of laws. It is considered as the legal basis of the harmonization of law conflicts between different legal units, which mainly include three parts: jurisdiction, choice of law, judicial assistance in civil and commercial matters. As far as the legal source of the conflict of laws of Hong Kong is concerned, convention is an important part of international law sources. Currently, there are ten special conventions related to private international law, one of which is the New York Convention on the Recognition and Enforcement of Arbitral Awards, and the other nine are the conventions consulted by the Hague Conference on Private International Law (“HCCH”), including the Statute of the Hague Conference. Also, there exist non-special conventions relating to private international law, which play an important role in Hong Kong. These conventions have brought tremendous benefits to Hong Kong. More attention needs to be paid to the conventions of private international law to assist Hong Kong in cooperation with other more jurisdictions.     

Manx Law: A Contribution from the Isle of Man*

This article provides a rare insight into the legal system and jurisprudence of the Isle of Man by the island's Second Deemster.

The author describes, inter alia, the judicial structure, sentencing and impact of international jurisprudence on the work of the judiciary of the Isle of Man, before outlining the island's constitutional position with the United Kingdom and with England and Wales.

The author argues against intellectual and judicial insularity: ‘Laws should be developed and problems solved by reaching out for knowledge and solutions that may be provided by approaches from jurisdictions beyond our local frontiers’. However, in reaching out to foreign jurisdictions, it is emphasised that account must be taken of local history, traditions, laws and needs.     

国际反腐败法律制度与我国刑事司法改革——以《联合国反腐败公约》为中心的分析

经过近几十年的发展变化,国际反腐败法律制度表现出立法的综合化、机构设置的专门化、职权的广泛化和国际合作的多样化等显著特征。而我国反腐败刑事司法制度与国际反腐败司法制度尚存在较大差距,必须对我国反腐败刑事司法制度进行改革。应采取全方位综合性立法的思路,制订反腐败法或修订刑事诉讼法,加强反腐败专门机构建设,提高反贪污贿赂局的法律地位,建立专门审判机构,赋予反腐败机构具有秘密侦查权等更广泛的职能,并参与国际追赃机制,扩大反腐败国际合作和交流。     

论法律监督与控、辩、审的关系

The purpose to set up public prosecution power is to restrict the investigation and judicial power. Public prosecution power is an organic combination of prosecution and trial supervision. The procurator’s supervision in the court does not infringe on the defendants’ procedural right. The procuratorial organ’s supervision on the matters of the court at the same level is only a power to start the correction procedure, however, the substantive power to make the final decision of whether to admit the mistake and how to make remedies belongs to the court. Therefore, the public prosecution’s status is much higher than that of the defense and the interferences with independent judicial power of courts by legal supervision do not exist in China. Gao Jingfeng is a senior procurator of the Supreme Procuratorate of China, National Research Specialist in procuratorial theory. His over ten major works include The Report on Judicial Reform—the procuratorate and courts in China, Chinese Procuratorial Practice, Outline of Chinese procuratorial system, Research on Office Crimes. His over thirty academic articles were released by the journals, such as Jurists, Legal Procedure and Judicial Systems, Procuratorial Daily, People’s Procuratorial, Legal Daily.     

联合国反腐败公约与跨国商业贿赂犯罪的法律控制

《联合国反腐败公约》是联合国历史上第一部关于指导国际反腐败斗争的法律文件,它以联合国公约的形式规定了预防、禁止和惩治腐败行为的定罪、刑事司法程序和国际合作,虽然贿赂外国公职人员犯罪只是作为腐败犯罪其中的一种予以规定,但是,探讨《联合国反腐败公约》有关控制腐败的规定,对于完善跨国商业贿赂犯罪的法律控制是极其必要的,也有利于中国进一步健全和完善相关的法律机制。     

论中国和平发展与国际法的交互影响和作用

A peaceful and harmonious world is an important social basis for China’s peaceful development, and international law lays a legal foundation and guarantee for building such a world. In the “village of globe” with co-existence and economic globalization, international law provides China a peaceful development with legal certainty in external environment of peace and security, fair and equal international competitive order, and international cooperation; and on the other hand, it puts on an increasing legal restraint on the internal and external strategies of China’s peaceful development. At the same time, the peaceful development of China deems to make a great contribution to the world, which are the main subject of international law in peace and development, as well as to human rights, rule of law and democracy, which are the universal values pursued by international law. Zeng Lingliang, Ph.D of law, is presently a dean and professor in the Faculty of Law in University of Macau. He is an awardee of the Cheung Kong Scholars Award Program and Jean Monnet Chair of European Union Law in Wuhan University, and one of the first three individuals nominated by the China government on the list of panelists in the WTO. He has published many articles on WTO issues, EU law and international law, and his influenced monographs are European Communities and Modern International Law (1992) and its revised edition—European Union and Modern International Law (1994), Law of World Trade Organization (1996), International Law and China in the Early 21 ^st Century (2005) and the Essentials of EU Law—in the New Perspective of the Treaty on the Constitution for Europe (2007).     

Fit and proper

The current trend of regulation in international financial mattersof service providers and trustees is an inevitable consequenceof trustees of international trusts being remote from the settlorand the beneficiaries. The ‘fit and proper’ persons'requirement for international trust companies, and others, properlyaddresses the need for international investors’ assetsto be in the hands of those properly experienced and qualified.The success depends upon how this ‘fit and proper’criteria is defined and monitored by the regulator in each jurisdiction. In most international jurisdictions,     

Law, autonomy and advance directives

The principle of autonomy underpins legal regulation of advance directives that refuse life-sustaining medical treatment. The primacy of autonomy in this domain is recognised expressly in the case law, through judicial pronouncement, and implicitly in most Australian jurisdictions, through enactment into statute of the right to make an advance directive. This article seeks to justify autonomy as an appropriate principle for regulating advance directives and relies on three arguments: the necessity of autonomy in a liberal democracy; the primacy of autonomy in medical ethics discourse; and the uncontested importance of autonomy in the law on contemporaneous refusal of medical treatment. This article also responds to key criticisms that autonomy is not an appropriate organising principle to underpin legal regulation of advance directives.     

Green crime and the role of environmental courts

Environmental issues continue to capture international headlines and remain the subject of intense intellectual, political and public debate. As a result, environmental law is widely recognised as the fastest growing area of international jurisprudence. This, combined with the rapid expansion of environmental agreements and policies, has created a burgeoning landscape of administrative, regulatory and judicial regimes. Emerging from these developments are increases in environmental offences, and more recently environmental crimes. The judicial processing of environmental or ‘green’ crimes is rapidly developing across many jurisdictions. Since 1979, Australia has played a lead role in criminal justice processing of environment offences through the New South Wales Land and Environment Court (NSW LEC). This article draws on case data, observations and interviews with court personnel, to examine the ways in which environmental justice is now administered through the existing court structures, and how it has changed since the Court’s inception.     

Corporate Liability for International Crimes under Canada's Crimes Against Humanity and War Crimes Act

Given that the Rome Statute does not provide jurisdiction totry corporations for breaches of international criminal law,it has been suggested that national jurisdictions might be usedto fill this impunity gap. The author presents several arguments.First, the international criminal law system, including theRome Statute — and particularly the principles of universaljurisdiction and complementarity — provides the theoreticalgrounding for states to assert jurisdiction over internationalcrimes wider than the International Criminal Court (ICC). Second,Canada, owing to interactions between its domestic legislationimplementing the ICC Statute and existing national criminallaw, is now able to prosecute corporations for breaches of internationalcriminal law. Finally, this increased jurisdiction of Canadiancourts is consistent with the current status of corporationsunder international criminal law. What is really interestingabout Canada's approach, however, is not so much that it hascreated a new legal principle, but rather that it is one ofthe first countries to establish jurisdiction over internationalcrimes committed by corporate entities which were previouslycommitted with impunity.

By stating that I could not guaranteethat the army is not using forced labour, I certainly implythat they might, (and they might) but I am saying that we donot have to monitor the army's behaviour: we have our responsibilities;they have their responsibilities; and we refuse to be pushedin to assuming more than what we can really guarantee. Aboutforced labour used by troops assigned to provide security onour pipeline project, let us admit between Unocal and Totalthat we might be in a grey zone.¹

     

Foreign lawyers practising national law: temporary counsel in small jurisdictions

Temporary licensing of foreign counsel is not necessarily limited to small jurisdictions, but it is an important, and contested, part of the legal landscape in many small jurisdictions. Small jurisdictions, with small national Bars, face particular problems concerning capacity to practise national law. As this paper shows, small national Bars may simply be running at capacity, or beyond, when a case comes along, the small size meaning a relatively small spike of demand can exhaust spare capacity. Alternatively, perhaps particularly if the national legal profession is a unified one, individual legal practitioners may experience a similar problem of capacity, with none prepared to take on a case which will dominate their working life to the detriment of other cases and other clients. On a different point, dealing with conflicts of interest within a small professional community is an ongoing problem for small jurisdictions. Finally, a small Bar may be too small to support specialist counsel with particular expertise in a particular field of national law.

This article explores the issue of temporary counsel in small jurisdictions through an in-depth case study of licensing in one small jurisdiction, that of the Isle of Man. The topic is approached through a range of methods. Doctrinal legal analysis, drawing particularly on relevant Manx statute, regulation and case-law, is supplemented by historical archival analysis; a detailed analysis of the 468 licences granted in the Isle of Man; and qualitative interviews with a selection of key actors. This study shows a pattern of acclimatisation to the licensing of foreign counsel in the Isle of Man since 1969, the juridification of the process of licensing since 1995, the development of an offshore Manx Bar, and the challenges the licensing system poses to the Manxness of Manx legal proceedings.

Moving beyond the Isle of Man, the paper argues that the national Bar of a small jurisdiction has constitutional significance, and that the impact of a substantially employed licensing scheme can be important in determining the shape of this national Bar. It concludes with a call for a comparative study of temporary counsel in small jurisdictions, taking into account the transnational legal context; and for a fuller consideration of a possible offshore offshore Bar as contributing to a continued relationship between common law jurisdictions in a post-colonial context.     

Challenging Corporate 'Humanity': Legal Disembodiment, Embodiment and Human Rights

This article interrogates the corporate use of human rightsdiscourse. It does so in light of concern surrounding corporatedistortion of the Universal Declaration of Human Rights (UDHR)paradigm,¹ and in light of the fact that corporations can claimshelter under human rights documents, particularly—asrecently discussed by Emberland²—the European Conventionof Human Rights and Fundamental Freedoms (ECHR). The authoroffers a critical exploration of corporate human rights claims(and some arguments advanced in their favour), and identifiesthe phenomenon of legal disembodiment (or ‘quasi-disembodiment’),linking it to both a genealogical account of human rights andthe nature of liberal legal personality. This reading of humanrights genealogy invites the reader to focus on a series ofparadoxes surrounding human rights, including their nature asa form of sacral construct, and locates human rights at an entrenchedand challenging interface between historical and contemporarypatterns of inclusion and exclusion. Quasi-disembodiment emergesfrom the analysis as a key conceptual conduit for the legalreception of corporate human rights claims. Linking the ECHRto the liberal human rights tradition, the author suggests thatnotwithstanding judicial protection of corporations as beneficiariesof ECHR protection, it remains essential to engage in a normativecritique of the very notion of corporate human rights. Beneathhuman rights law (and the related closures of legal discourse)it is possible to trace a human rights-oriented critique thatadopts human embodiment (and its quintessential link with humanvulnerability) as the ethical foundation of human rights.³ Emphasisingembodied vulnerability as the foundation of human rights yieldsa significant and ethically relevant distinction between corporationsand human beings—a distinction with intriguing possibilitiesfor the future theorisation of human rights—and one thatarguably problematises the corporate use of human rights discourse.     

我国离岸金融市场监管法律问题探究

离岸金融市场是金融自由化、国际化的产物，虽然它仅有不到一百年的历史，但其发展迅猛，已经成为现代金融的重要组成部分，在国际金融市场上发挥着重要的作用。与此同时，离岸金融市场也存在消极作用，它加剧了金融风险，加大了金融控制的难度。因此，离岸金融市场的建立和发展有赖于相关法律制度的健全和保障。我们应深入探究离岸金融市场监管法律问题的独特性，根据我国离岸金融市场的现状特点，找出我国离岸金融市场法制建设所面临的问题,并就如何建立和完善我国离岸金触市场法制建设进行研究。     

Foundations--a new vehicle for Jersey

The recent adoption of the ‘Foundations (Jersey) Law 200’—buildsupon Jersey's ability to provide offshore financial services.Alongside existing vehicles, such as companies, trusts and limitedpartnerships, the new law will introduce the concept of foundations.Long a part of the civil law system, it is anticipated thatfoundations will particularly