The Soft Power of Chinese Law

Abstract

Previous major capital-exporting nations have attained hegemony through a combination of coercion, currency, and contracts. In particular, the UK and the US developed globe-spanning navies and modern militaries and their denominations are amongst the strongest in the world with the US dollar serving as global world currency. Anglo-American common law has been a core legal infrastructure for global capitalism. China marks an exception. The People’s Republic of China (PRC) is mainly an economic superpower, one that (as of yet) lacks military predominance or financialization. More centrally, Chinese law has been mostly peripheral to China’s rise, both in terms of choice of law issues and as a resource for overseas legal development. Nonetheless, while Chinese parties may opt for English law or Delaware law just as often as Chinese law, China is starting to promote its law overseas as a resource for the legal development of other states. Pre-existing models to understand how China is doing so, mainly, those based on the English or American experiences, mostly miss the mark. Rather than underwriting hard power, law in the Chinese case functions to boost China’s soft power: its ability to align the interests of host states with its own.

This Article conceptualizes the role of law in China’s world-wide soft power. It does so by taking a deep dive into the first legal institution, and specifically, dispute resolution institution, the PRC has co-created outside of the PRC: the China-Africa Joint Arbitration Center (CAJAC). Based on qualitative data collected from both China and partner states in Africa, CAJAC provides an example of the exercise of Chinese law as soft power, its aims, and also provides a basis for analyzing some of its potential effects. Specifically, as with other soft power initiatives through international training and public diplomacy, law operates through international networks that promote “legal cooperation,” and is aimed at securing China’s economic and geostrategic interests. Rather than, in this case, PRC arbitration law operating as a “legal transplant,” CAJAC shows how networks function to diffuse the technical institutional rules of arbitration commissions into African states. Yet, there is a gap between the discourses surrounding “legal cooperation” and its actual practice, including the presence of Chinese law in the institutions such cooperation begets. Consequently, institutions like CAJAC demonstrate some problems of Chinese domestic law, which I have called elsewhere “legal surrealism.” Chinese law as soft power is thus an ambivalent source of transnational ordering: whereas it may have “hard edges” that secure Chinese trade and investment, it also demonstrates some of the shortcomings of domestic Chinese law, shortcomings which are amplified when Chinese law as soft power is deployed overseas.

Keywords: Chinese law, soft power, international commercial arbitration, investor-state dispute settlement, law and capitalism, networks, legal surrealism, China-Africa

JEL Classification: K10