guiding cases seminars tm - china guiding cases project ’s “o pen judiciary ” and “b elt and...

Copyright 2017 by Stanford University

Guiding Cases Seminars

TM

指导性案例研讨会 TM

SEMINAR SUMMARY

CHINA’S “OPEN JUDICIARY” AND “BELT AND ROAD” INITIATIVES:

IMPLICATIONS FOR GOVERNANCE IN CHINA AND BEYOND

PRINCETON UNIVERSITY

FEBRUARY 23, 2017*

* The citation of this piece is: Seminar Summary: China’s “Open Judiciary” and “Belt and Road” Initiatives:

Implications for Governance in China and Beyond, STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT,

Guiding Cases Seminars™, Feb. 23, 2017, https://cgc.law.stanford.edu/event/guiding-cases-seminars-20170221-

and-23/. Dr. Mei Gechlik and Jennifer Ingram presented the same talks summarized herein at World Bank

headquarters in Washington, D.C. on February 21, 2017. This summary was prepared by Jennifer Ingram, Dimitri

Phillips, Eric Wang, Liyi Ye, and Dr. Mei Gechlik. The biographies were prepared by the speakers and Dimitri

Phillips. This publication has been approved by the seminar’s speakers.

Guiding Cases SeminarsTM

feature talks on Guiding Case-related topics with scholars, lawyers,

policymakers, and other experts at venues around the world, disseminated in video and text summary to the global

audience of the China Guiding Cases Project.

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Guiding Cases SeminarTM


I. Overview

On February 23, 2017, the China Guiding Cases Project (“CGCP”; http://cgc.law.stanford.edu) held a Guiding Cases Seminar

TM titled China’s “Open Judiciary”

and “Belt and Road” Initiatives: Implications for Governance in China and Beyond at Princeton University. The seminar featured presentations by Dr. Mei Gechlik, founder and director of the CGCP, and Jennifer Ingram, a Fellow and Co-Managing Editor of the CGCP. The respective talks they presented were “China’s ‘Open Judiciary’ Initiative: Implications for Governance in China and Beyond” and “China’s Belt and Road Initiative: Implications for Governance in China and Beyond”.

The CGCP thanks the sponsors of this event, including the Princeton University U.S. China Coalition, Princeton University’s Program in Law and Public Affairs, the Center on Contemporary China at Princeton University, Stanford University’s Center for East Asian Studies, Alston & Bird LLP, Broad & Bright, and the Fu Tak Iam Foundation Limited for their kind and generous support. The CGCP also thanks the World Bank for their kind and generous support for the event held there.

II. Introduction

Two major initiatives in China are gaining momentum inside and outside the country. Internally, China’s judiciary has been leading an “open judiciary” initiative, culminating in the establishment of the Guiding Cases System, in which judges are instructed to follow Guiding Cases (“GCs”), de facto binding cases, to achieve the goals of transparency, consistency, and impartiality. To date, hundreds of court cases in China have referenced these GCs, as the civil law country that previously focused solely on statutes gradually develops its own version of a case system. Externally, the Chinese leadership has rolled out the “Belt and Road” initiative, flexing its muscles to increase China’s economic leverage in countries along the “Silk Road Economic Belt” and “the 21st Century Maritime Silk Road”. To facilitate the expansion of Chinese investments, fundamental changes to the country’s foreign investment regime are taking place and representative court cases involving parties from “Belt and Road” countries are being released to showcase how these foreign parties’ interests are protected. Seemingly attracted by the opportunities to strengthen their economic and other ties with China, approximately 50 countries have joined the Belt and Road Initiative.

What are the significant implications of these initiatives for governance in China and in countries along the “Belt and Road” routes? Drawing on theoretical and empirical studies, Dr. Mei Gechlik and Jennifer Ingram presented on these issues at the Guiding Cases Seminar

TM summarized below. Their insights contributed to an informative and thought-provoking discussion.

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III. China’s “Open Judiciary” Initiative: Implications for Governance in China and

Beyond

Dr. Mei Gechlik began her talk by drawing on a book chapter she co-authored to explain how the Chinese term for “open government” has developed and created a space in China for discussions surrounding the idea of “open judiciary”. 1 She further explained how the development of “open government” has been seen as the latest development of China’s e-government initiative.2

Dr. Gechlik then moved on to discuss how the development of “open government” might have inspired the development of “open judiciary” in China. Although the term “judicial

openness” (sīfă gōngkāi, 司法公开) rather than “open judiciary” (kāifàng sīfă, 开放司法) is used

in China, the Chinese authorities have gradually expanded the meaning of the former term to cover areas and concepts (i.e., transparency, public participation, and collaboration) that are captured in the latter term. Analyzing the four 5-year court reform plans issued since 1999,3 she explained that the number of tasks related to transparency, public participation, and collaboration has increased incrementally. The Guiding Cases System that has developed over the past six years in China, she said, follows the development of the “open judiciary”, as it likewise concerns these related areas.

Dr. Gechlik highlighted the remarkable steps the Supreme People’s Court (“SPC”) took in developing the Guiding Cases System: the release of the Provisions of the Supreme People’s

Court Concerning Work on Case Guidance in November 2010,4 the adoption of the Detailed

1 See Dr. Mei Gechlik, DAI Di, Jordan Corrente Beck, et al., Open Judiciary in a Closed Society: A Paradox

in China? in ACHIEVING OPEN JUSTICE THROUGH CITIZEN PARTICIPATION AND TRANSPARENCY 56 (IGI Global,

2017), https://law.stanford.edu/publications/open-judiciary-in-a-closed-society-a-paradox-in-china. 2 See MEI GECHLIK ET AL., THE CHINA EGOVERNMENT DEVELOPMENT INDEX REPORT 2013: EXPERIENCES IN

HANGZHOU MUNICIPALITY, ZHEJIANG PROVINCE (Good Governance International, 2013). 3 《人民法院五年改革纲要》(Five-Year Reform Plan of the People’s Court), issued by the Supreme

People’s Court on Oct. 20, 1999, http://www.chinacourt.org/article/detail/2013/04/id/941425.shtml;《人民法院第

二个五年改革纲要（2004－2008）》(The Second Five-Year People’s Court Reform Plan (2004-2008)), issued by

the Supreme People’s Court on and effective as of Oct. 26, 2005,

http://www.chinalaw.gov.cn/article/fgkd/xfg/sfwj/200904/20090400132177.shtml; 《人民法院第三个五年改革纲

要（2009－2013）》(The Third Five-Year People’s Court Reform Plan (2009-2013)), issued by the Supreme

People’s Court on and effective as of Mar. 17, 2009,

http://www.chinalaw.gov.cn/article/fgkd/xfg/sfwj/201012/20101200330558.shtml; 《最高人民法院关于全面深化

人民法院改革的意见人民法院第四个五年改革纲要（2014-2018）》(The Opinion of the Supreme People’s

Court Concerning Comprehensively Deepening the Reform of the People’s CourtThe Fourth Five-Year Reform

Plan of the People’s Court (2014-2018)), issued by the Supreme People’s Court on Feb. 4, 2015,

http://www.court.gov.cn/zixun-xiangqing-13520.html. 4 《最高人民法院关于案例指导工作的规定》 (Provisions of the Supreme People’s Court Concerning

Work on Case Guidance), passed by the Adjudication Committee of the Supreme People’s Court on Nov. 15, 2010,

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Implementing Rules on the “Provisions of the Supreme People’s Court Concerning Work on

Case Guidance” in April 2015,5 and the selection of 77 GCs (as of the date of this Guiding Cases Seminar

TM) covering various areas of law.6 Dr. Gechlik noted that the CGCP has found (in research conduct until the end of 2016) 519 Subsequent Cases (“SCs”) that refer to GCs in their adjudication, compared with 181 SCs found before the end of 2015.7

Dr. Gechlik then presented her research on these SCs. She explained the geographical distribution of the courts across China handling the 519 SCs and the number of days that lapsed between the final judgment of these SCs and their posting online. The data showed that the majority of these cases were posted efficiently, suggesting that the principle of transparency had been respected quite well by the courts across China. She then shared her analysis of 181 SCs found as of the end of 2015 to explain how lawyers and judges use GCs in practice. For example, in some cases, she found that even if the party, as reported in the judgment rendered by the court, mentioned a GC in the party’s arguments, the court failed to mention the GC in the section of the judgment that covers the court’s opinion. In the face of this admittedly troubling statistic, Dr. Gechlik highlighted those deciding courts that took the initiative to refer to a GC in their judgments even when the parties to the case did not do so. Thus, she noted, while there was work to be done with respect to getting judges across China to cite GCs, the fact that some judges took the initiative to cite GCs without being prompted was encouraging.

Dr. Gechlik ended her talk by highlighting the implications of the Guiding Cases System for governance in China and beyond. She said that China’s Guiding Cases System is a wise step taken by the country’s highest court to address problems prevailing in the Chinese legal system amid various political and legal constraints. She concluded that developing an open judiciary in a closed society is possible and the “open” culture in the judiciary may lead to more openness in the political system and society as whole.

issued on and effective as of Nov. 26, 2010, STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English

Guiding Cases Rules, June 12, 2015 Edition, http://cgc.law.stanford.edu/guiding-cases-rules/20101126-english. 5 《〈最高人民法院关于案例指导工作的规定〉实施细则》(Detailed Implementing Rules on the

“Provisions of the Supreme People’s Court Concerning Work on Case Guidance”), passed by the Adjudication

Committee of the Supreme People’s Court on Apr. 27, 2015, issued on and effective as of May 13, 2015, STANFORD

LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Cases Rules, June 12, 2015

Edition, http://cgc.law.stanford.edu/guiding-cases-rules/20150513-english. 6 See Mei Gechlik, China’s Guiding Cases System: Review and Recommendations, STANFORD LAW SCHOOL

CHINA GUIDING CASES PROJECT, Guiding Cases Analytics™, Issue No. 5, August 2016,

http://cgc.law.stanford.edu/guiding-cases-analytics. 7 See Mei Gechlik, Minmin Zhang, and Liyi Ye, Cumulative Analysis of All Subsequent Cases Referring to

Guiding Cases in China (2014 Q1–2015 Q4), STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, Guiding

Cases Surveys™, Issue No. 2, Jan. 2016, http://cgc.law.stanford.edu/guiding-cases-surveys. A new issue covering

the analysis of 519 SCs will be published in the summer of 2017.

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IV. China’s Belt and Road Initiative: Implications for Governance in China and

Beyond

Jennifer Ingram presented her talk by first highlighting the routes of the Silk Road Economic Belt (the “Belt”) and 21st Century Maritime Silk Road (the “Road”) as presented in the official Chinese press. The Belt is a land route that connects China to Europe through central Asia, while the Road is the maritime route originating in China and moving through southeast Asia, the Indian Ocean region, and over to eastern Africa before traveling up to the Mediterranean Sea.

Ms. Ingram explained the rapid development of the Belt and Road Initiative since the idea was introduced by Chinese President Xi Jinping in late 2013 while visiting Kazakhstan. The Silk Road Fund, the BRICS New Development Bank (“NDB”), and the Asian Infrastructure Development Bank (“AIIB”) are playing important roles in the financing of related projects. For instance, Ms. Ingram highlighted the NDB’s plans to extend $2.5 billion in loans in 2017,8 along with the projects the Silk Road Fund has already funded9 and the AIIB’s impressive first year,10 which includes an expansive project across Central Asia to Europe with co-financing from the World Bank.11

Noting the expansive nature of the Belt and Road Initiative, Ms. Ingram then identified some of the associated risks. First, she mentioned that there have been some questions about the projects themselves, including their commercial viability and sustainability, along with concerns about the low credit ratings of some host countries. Additional concerns have arisen from the possible disconnect of some projects from national interests, as well as have political concerns from the collective impact of projects on regional power dynamics. With respect to the legal risks associated with the Belt and Road Initiative, Ms. Ingram noted the importance of increased predictability and transparency, both of which, she said, China is moving towards with not only the Guiding Cases System but other recent developments.

Ms. Ingram noted that far from ignoring these risks and in order to ensure the success of the Belt and Road Initiative, in 2015, the SPC released a document outlining the role of Chinese courts in the initiative.12 A month later, the SPC released eight “Typical Cases” related to the

8 See New Development Bank website, http://ndb.int.

9 See Silk Road Fund website, http://www.silkroadfund.com.cn.

10 See Approved Projects, ASIAN INFRASTRUCTURE INVESTMENT BANK,

https://www.aiib.org/en/projects/approved/index.html. 11

See Azerbaijan: Trans Anatolian Natural Gas Pipeline Project (TANAP) to be co-financed with the World

Bank (WB), ASIAN INFRASTRUCTURE INVESTMENT BANK, https://www.aiib.org/en/projects/approved/2016/trans-

anatolian.html. 12

《最高人民法院关于人民法院为“一带一路”建设提供司法服务和保障的若干意见》 (Several

Opinions of the Supreme People’s Court Concerning Judicial Services and Safeguards Provided by the People’s

Courts for the “Belt and Road” Construction), issued on and effective as of June 16, 2015,

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initiative, which the CGCP publishes as B&R CasesTM.13 These cases show how Chinese courts

have successfully resolved disputes involving not only parties from Belt and Road countries but also different areas of law, including international law. With the foreign party eventually prevailing in all of these Typical Cases, Ms. Ingram argued that their release is likely an attempt by the SPC to assuage foreign parties’ concerns that they will not be treated fairly in Chinese courts, with the goal of inviting foreign courts to accord similar treatment to disputes brought before them by Chinese parties in the context of the Belt and Road Initiative.

Ms. Ingram also noted that China has been signing cooperation agreements with many countries.14 Of the more than 100 cooperation agreements (the CGCP has found to date) signed between China and Belt and Road, one-third concern legal cooperation and two-thirds focus on investment. Many of these agreements actually pre-date the Belt and Road Initiative; however, as Ms. Ingram explained, as more specific projects are proposed and more countries join the initiative, the number of cooperation (and investment) agreements will likely grow more rapidly than before. Moreover, these agreements may themselves prove to be tools that not only businesses but also other parties can use to protect their rights in Belt and Road countries where the national law is evolving or unfavorable.

Ms. Ingram concluded her talk with two takeaways. First, China’s top leaders have demonstrated a strong interest in implementing the Belt and Road Initiative and, thus, they are receptive to reform measures that would facilitate the expansion of the initiative. Second, there is a growing emphasis on cases and legal cooperation agreements with Belt and Road countries. This will ultimately help improve governance inside and outside China.

V. Q&A

Throughout and after their talks, faculty and students from Princeton University asked Dr. Gechlik and Ms. Ingram many questions, some of which, with corresponding responses, are provided below.

One person asked whether there were any factors that would explain the variation across provinces of courts citing GCs. Dr. Gechlik explained that a major factor is the qualification of judges in different provinces. More prosperous regions are usually able to offer better recruitment packages to attract well-qualified judges, who are more likely to follow the SPC’s instructions and refer to GCs.

http://www.chinacourt.org/law/detail/2015/06/id/148302.shtml. The above text is from the English translation the

CGCP has posted on its website as part of its Belt & Road Series, at https://cgc.law.stanford.edu/belt-and-road. 13

The CGCP produces high-quality English translations of these cases as B&R CasesTM

and posts them on its

online knowledge base, at https://cgc.law.stanford.edu/belt-and-road/b-and-r-cases. 14

The CGCP compiles and publishes these agreements as B&R TextsTM

on its online knowledge base, at

https://cgc.law.stanford.edu/belt-and-road/b-and-r-texts.

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Another audience member questioned whether 519 SCs is a cause for optimism, given that Chinese courts handle hundreds of thousands of cases every year. Dr. Gechlik emphasized the importance of using the right baselines for comparison. If one compares the number “519” with 181 SCs a year ago and very few SCs two years ago, the upward trend signals the rapid pace of development in this area.

With respect to China’s release of Typical Cases related to the Belt and Road Initiative, one person asked whether improvements in this area might lead to spillover effects in other areas of the legal system. In response, Dr. Gechlik and Ms. Ingram used China’s entry into the World Trade Organization (“WTO”) as an example to illustrate that China’s interest in international business would motivate the country to improve its legal system so as to facilitate international business. This is reflected in China’s amendment to its intellectual property law in accordance with WTO standards.

Appendix

SPEAKERS

Dr. Mei Gechlik

Dr. Mei Gechlik is Founder and Director of the CGCP. Formerly a tenured professor in Hong Kong, she founded the CGCP in February 2011 in response to the landmark decision of the Supreme People’s Court of China to release certain Chinese court judgments as de facto binding GCs. With support from an international team of nearly 200 members, as well as an advisory board of approximately 50 distinguished experts, including justices from the U.S. Supreme Court and the Supreme People’s Court, the CGCP has quickly become the premier source of translations and analyses of GCs (http://cgc.law.stanford.edu). Identified as an “expertise support group” by the United Nations Development Program, the CGCP has presented at various notable forums, including the World Bank, the Open Government Partnership Global Summit, and a U.S.-China Legal Exchange Conference led by the U.S. Department of Commerce and China’s Ministry of Commerce. From 2001 to 2005, Dr. Gechlik worked for the Carnegie Endowment for International Peace, testifying before the U.S. Congress on various topics about China, and has advised the United Nations and the Chinese government on implementing rule of law programs. Dr. Gechlik received her J.S.D. from Stanford Law School and her M.B.A. in Finance from the Wharton School at the University of Pennsylvania.

Jennifer Ingram

Jennifer Ingram is a Co-Managing Editor and Fellow of the CGCP. Ms. Ingram has lived and worked in Beijing and began working with the CGCP when it was founded, while a student at

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Stanford Law School. She has worked closely with Dr. Gechlik on the management and development of the project, releasing groundbreaking products related to GCs and launching the Belt & Road Series to deepen stakeholders’ understanding of this significant but not yet fully understood development. She also has experience in dispute resolution across diverse jurisdictions, ranging from South Africa and India to the Netherlands and Hungary, and has reviewed large-scale investment projects from a corporate and legal perspective as well as their impact on communities, most recently focusing on Chinese investment projects in Kenya. Ms. Ingram received a B.A. in Literature from Yale College and a J.D. from Stanford Law School.

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