The Forms and Architects of China's International Legal Order

22 Pages Posted: 18 Feb 2021

See all articles by Matthew S. Erie

Matthew S. Erie

University of Oxford; University of Oxford - Centre for Socio-Legal Studies

Sida Liu

University of Toronto; American Bar Foundation

Date Written: February 9, 2021

Abstract

Conflict of laws, including choice of law, is conventionally understood as judges or lawyers choosing the governing law in a multijurisdictional matter. In this Article, we turn this notion on its head to ask whether the rules may also choose the legal experts. Drawing on legal anthropology and sociology, we argue that the legal forms of Chinese outbound investment, namely, the heterogeneous nature of contracts and different jurisdictions for Chinese capital, generate a specific ecology of legal expertise. In particular, the legal form is generated by rules from both the home state (i.e., China) and the host states of Chinese capital. While choice of law is often subject to parties’ bargaining, and China, as capital-exporter, may occupy a dominant bargaining position vis-à-vis the host state, the territorial sovereignty and mandatory norms of the latter frequently require local law. Consequently, whereas the legal form produces an ecology of legal professionals, including lawyers in Chinese law firms, regional financial centers, U.K. and U.S. law firms, and local firms, it is often the local lawyers who play a pivotal role in generating and sustaining China’s cross-border deals. This Article, a concept piece that lays a foundation for further empirical research, suggests that China’s “rise” may not reproduce familiar forms of law and globalization—at least not initially. From the perspective of private international law, China itself appears unlikely to overturn the existing international legal order, even if that order is currently undergoing a severe test and China may wish to reform the order to occupy a central role. Rather, our analysis suggests that top-down perspectives on international legal orders must be mirrored and contested by bottom-up ones; such a holistic view spotlights the highly contingent nature of Chinese outbound capital.

Keywords: legal form, ecology, conflict of law, choice of law, lawyers, globalization, deglobalization, China

JEL Classification: K33

Suggested Citation

Erie, Matthew Steven and Liu, Sida, The Forms and Architects of China's International Legal Order (February 9, 2021). Yale Journal of International Law, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3782784

Matthew Steven Erie (Contact Author)

University of Oxford ( email )

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Oxford, Oxfordshire OX2 6LU
United Kingdom

HOME PAGE: http://www.orinst.ox.ac.uk/staff/ch/erie.html

University of Oxford - Centre for Socio-Legal Studies ( email )

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Oxford, OX1 2JD
United Kingdom

HOME PAGE: http://https://www.law.ox.ac.uk/people/matthew-erie

Sida Liu

University of Toronto ( email )

725 Spadina Avenue
Toronto, Ontario M5S 2J4
Canada

HOME PAGE: http://sidaliu.net

American Bar Foundation ( email )

750 N. Lake Shore Drive
Chicago, IL 60611
United States

HOME PAGE: http://sidaliu.net

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