Book Review: ‘China and the International E-commerce and Digital Trade Law’– David Markus

This is a review of Dr. Jie (Jeanne) Huang’s China and the International E-commerce and Digital Trade Law: the case of the Comprehensive and Progressive Trans-Pacific Partnership (University of International Business and Trade Press, August 2022, Beijing China, ISBN: 9787566323989, 262,000 words). Dr Huang is an Associate Professor at the University of Sydney Law School, specializing in conflict of laws and digital trade. She is the Co-chair of the American Society of International Law Private International Law Interest Group and Co-Director of the Centre for Asian and Pacific Law at the Sydney Law School. 

Dr Huang’s book, ‘China and the International E-commerce and Digital Trade Law: the case of the Comprehensive and Progressive Trans-Pacific Partnership’ is invaluable to stakeholders who are interested in E-commerce and Digital Trade (EDT) with China.  It is also a very useful resource for diplomats and delegations involved in free trade negotiations as it simplifies the four key areas where the PRC has provided simplification of its national and provincial frameworks to assist in navigating complex rules. 

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Regulating cross-border information flow: the proposed Chinese Personal Information Protection Law – Jeanne Huang

An examination of the People’s Republic of China draft Personal Information Protection Law published for consultation on 30 April 2021 reveals that its regulation of cross-border data transfer will have important consequences for individuals, businesses and judicial assistance.

To better protect personal information and develop the digital economy, China is taking action to enact its Personal Information Protection Law. On 30 April 2021, the second deliberation draft of the Personal Information Protection Law (hereinafter ‘Proposed Chinese Personal Information Protection Law’) was published by the Standing Committee of the National People’s Congress for public opinion (official version and unofficial English translation available). Regulating cross-border information flow is a highlight of the Proposed Chinese Personal Information Protection Law. Five important issues deserve attention.

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The two managing bodies of China’s social credit system have proposed reforms to the policy scheme – but is their report a toothless monster? – Katie Jones

This piece explores the extra-legal basis of China’s social credit system and the recent proposals to reform the scheme through a progressive vision of legality, consistency and clarity. However, the proposed developments struggle to substantiate how such ideals will be achieved in practice without any legislative mandate. 

Introduction 

China’s social credit system (SCS) collates public credit data with the objective of increasing social, corporate and government trustworthiness by administering a range of incentives and penalties that motivate compliance with the law. The administration of the SCS varies regionally, as provincial governments enforce a localised criterion upon which public credit data is assessed. Notably, the SCS does not currently operate under a legislation mandate, but as a national policy scheme dually managed by the National Development and Reform Commission and the People’s Bank of China. 

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Australian Antarctic Law and Policy through the Lens of Chinese Academics – Nengye Liu

In her book “Is International Law International?”, Anthea Roberts raises the concept of “comparative international law”. Roberts illustrates the different national and regional approaches towards understanding, interpretation and application of international law. She points out that national approaches to international law plays an important part in “a transnational field that aspires to develop common rules to facilitate inter-state coexistence and cooperation”. Furthermore, academics play an influential role in a State’s international law practice, through their scholarship and practice.

The approach of comparative international law is useful in the Polar Regions. In recent years, China has been significantly expanding its presence in Antarctica. For example, China now operates three research stations in the Australian Antarctic Territory (AAT), including Kunlun Station at Dome A – the highest point of the Antarctic ice sheet, and since 2013, China has been proposing to establish an Antarctic Specially Managed Area around Kunlun Station to the Antarctic Treaty Consultative Meetings. Furthermore, China is now building its fifth Antarctic station on Inexpressible Island in the Terra Nova Bay of the Ross Sea.

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Reciprocal Recognition and Enforcement of Foreign Judgments in China: Breakthrough and Trend – Associate Professor Jeanne Huang

Chinese Civil Procedure Law (CPL) provides that foreign judgments can be recognised and enforced according to reciprocity if no treaty is applicable. However, although Chinese judgments have been recognised and enforced in many countries without a treaty, China had never reciprocated before 2016.[1]Since 2016, Chinese courts unprecedentedly recognised and enforced foreign monetary judgments based on de facto reciprocity. This spurs rich literature with mixed views about the future direction of reciprocity-based judicial recognition and enforcement (JRE) in China.[2] This post aims to add to the current debate from two aspects. First, it tries to answer the doubts in contemporary literature about whether the two foreign judgments recognised and enforced in 2016 and 2017 are fortuitous. Second, it addresses the question of what the trend of the Chinese reciprocity-based JRE law might be.

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International jurisprudence, great powers and the UN – Andrew Blackie

On 7 July 2016, during a visit to Beijing, United Nations (“UN”) the then Secretary-General Ban Ki-moon met with Chinese President Xi Jinping and Foreign Minister Wang Yi. The timing was unfortunate, owing to the imminent ruling of the United Nations Convention on the Law of the Sea (“UNCLOS”) Arbitral Tribunal on the South China Sea, handed down less than a week later. 

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The Implications of Trump Denouncing the Trans-Pacific Partnership Agreement – Leon Trakman

President- elect Donald Trump’s announcement on Tuesday 22 November 2016 that the US will not ratify the Trans-Pacific Partnership Agreement (TPP) is not a surprise.  He had stated that he would do as such throughout the presidential campaign, as had his democratic rival, Hillary Clinton.

His formal announcement is that the state parties to the TPP, including Australia, will revert to the position they had been in before the TPP was negotiated, seven years ago.

For now, there is no doubt that the TPP’s demise will disappoint the expectations of some TPP states, such as Japan, itself a late party that has strongly endorsed it.  Developing countries like Vietnam that stood to benefit disproportionately from its ratification will also be disappointed.

However, President-elect Trump’s announcement is unlikely to throw transpacific economies into turmoil, not only because his position was fully expected, but because the perceived benefit of the TPP for regional trade has been hotly debated and denounced by various labour, environmental, health and consumer lobby groups, among others, from its inception.

President-elect Trump’s announcement nevertheless has strategic importance, particularly in asserting that the US will negotiate bilateral trade agreements that best suit US interests in place of the TPP.  This statement is vague at best and wholly unsubstantiated.  First, it amounts to little more than a broad aspiration in the absence of verification.  Second, it does not stem from prior strategic planning by key US authorities.  In fact, President-elect Trump has opined as much before appointing a Secretary of Commerce or a US Trade Representative.  It is difficult to conceive of how replacing the world’s largest regional trade agreement with a series of bilateral trade agreements could be seriously contemplated without the serious consideration of such trade authorities. Third, as a practical matter, negotiating bilateral agreements take time, as Britain is likely to learn post-Brexit; and until they are negotiated, trade barriers are likely to continue.  Fourth, there is no assurance that the US will do better in negotiating bilateral trade agreements than under a ratified TPP.  States may run for cover from such bilateralism fearing that a pro-US trade deal will be too expensive to sustain, even though the US remains the world’s largest trade importer.  Fifth, the US already has bilateral trade agreements with a number of transpacific countries, including its 2004 US-Australia Free Trade Agreement.  Therefore, in many cases, no new bilateral treaties will eventuate in the absence of real economic impetus to negotiate them.

Importantly, the US withdrawal from the TPP, which excludes China, may provide China with even greater opportunity to conclude regional trade partnerships that exclude the US, such as the Regional Comprehensive Economic Partnership (RCEP) to which Australia is also a party.

Trump’s rejection of the TPP nevertheless has important economic consequences.  The TPP is particularly attractive to member states as a prototype treaty directed at reducing and then eliminating trade barriers, including costly import and export duties.  In contrast, the RCEP does not replicate that resolve, making it less attractive economically to countries like Australia seeking access to foreign markets.

If the US is to remain the primary player in defining global trade, the result of Trump’s assertion is likely to be a reluctance of states to reduce or eliminate trade barriers in bilateral trade agreements.

If President-elect Trump’s declaration against the TPP has legs to stand on, it is likely to undermine trade liberalisation more generally; and that result, feared by macro-economists, is potentially the most troubling.

Professor Trakman is a Barrister, Professor of Law and Former Dean at the University of New South Wales

Upcoming Event – ILS China Breakfast Seminar

WHAT’S NEW IN CHINA’S LEGAL LANDSCAPE

The Law Council of Australia’s International Law Section will host a China Law breakfast on Wednesday 26 October at King & Wood Mallesons in Sydney. Judge Judith Gibson of the District Court of New South Wales will chair a panel of six experts in Chinese law to discuss contemporary legal issues facing the country today.

TOPICS

  • ‘One Belt One Road’ and Chinese investment policy;
  • IP and Trade Mark legislative changes;
  • Consumer legal protection in the era of M-commerce;
  • The Guiding Case system; and
  • Court use of social media and legal writing issues.

SPEAKERS

  • Professor Vivienne Bath, University of Sydney
  • Scott Gardiner, King & Wood Mallesons
  • Mary Ip, University of New South Wales
  • Professor Vai Io Lo, Bond University
  • Belinda Melocco, King & Wood Mallesons
  • Professor Natalie Stoianoff, King & Wood Mallesons
  • Judge Judith Gibson, NSW District Court (Chair)

For details on the cost of a ticket and the registration form, please click here.