Globalisation and National Law: an Unequal Relationship or «a
Fine Balance»?
A Sino-Swiss Workshop
Collection of Abstracts
Fribourg, 21–22 November 2016
University of Fribourg
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Av. Beauregard 1
CH-1700 Fribourg
Phone +41 (0) 26 300 81 25
www.federalism.ch
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Table of Contents
Non Statutory Rule making and the rule of law: modern challenges to the
European Legal sphere ........................................................................................ 1
Reconstruction of the Administrative Accountability by Administrative Law:
Reflection on the castings of Dichotomy of Politics and Administration ............... 2
Transparency Mechanisms: Building Openness in Law Making Process – the case of
Romania.............................................................................................................. 3
Globalization of Chinese firms: is it really that frightening? ................................. 4
Federalism, law making and democratic consolidation in Nigeria, 2000-2015 ...... 5
The five storey house doctrine on the concept of justiciability and direct effect of
norms of international law .................................................................................. 6
‘Intrusive’ decentralisation in Uganda: the case for the recentralisation of the city
of Kampala and the confluence of two global world discourses on development. 7
The reality of law transplantation and the path to development in China ............ 8
Asymmetrical Federalism: Alternative between potential self-determination and
traditional sovereignty notion ............................................................................. 9
Narratives of Resistance: Does Resistance enrich international law or weaken
international law? Three Case Studies ............................................................... 10
Levelling Legislation .......................................................................................... 11
The Bangsamoro peace process and hybrid self-determination: Domestic Law on
Decentralization under Pressure ....................................................................... 12
Legislative Power Sharing in African States: A comparative analysis of the impact
of Globalization on the Nigerian federal and South African quasi-federal State
Systems............................................................................................................. 13
Transparency and public participation in Rulemaking ........................................ 15
Legal Transplantation in the Chinese Hedge Fund Market: From Trust Law to the
Securities Investment Funds Law ....................................................................... 16
Legal transplantation and localization in China .................................................. 17
University of Fribourg
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Av. Beauregard 1
CH-1700 Fribourg
Phone +41 (0) 26 300 81 25
www.federalism.ch
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III
How globalized norms play a role in reshaping domestic regulation .................. 18
Administrative Legislation in China ................................................................... 19
The Difficult Relationship between International Commercial Treaties and
Domestic Law .................................................................................................... 20
Tensions between the Legislative and Judiciary Powers in a fast changing World –
A comparative analysis of the «legislative role» of the Chinese Supreme People’s
Court and the Swiss Federal Tribunal in the field of international commercial
dispute resolution ............................................................................................. 21
Transparency and Democratic Legitimation in Mega‐regional Trade Agreements22
About failed federal states and their measurement in a globalised context: the
Horn of Africa experience .................................................................................. 23
Unitary State, Local State and Central-local Cooperative Legislation: Analysis Based
on the Regulation of Renting Cars from Internet ............................................... 25
University of Fribourg
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Av. Beauregard 1
CH-1700 Fribourg
Phone +41 (0) 26 300 81 25
www.federalism.ch
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Non Statutory Rule making and the rule of law: modern
challenges to the European Legal sphere
Stéphanie De Somer & Cedric Jenart
Short Abstract
The practices of administrative and private rule making is often criticized on the basis of democratic
claims, usually formulated as a lack of oversight or control by Parliament or the political executive.
These phenomena, however, provoke equally interesting and challenging questions from the viewpoint of another constitutional meta value: the rule of law.
This work revolves around some of the modern phenomena related to non-statutory rule making
that pose particular challenges for many European constitutions (e.g. the delegation of rule-making
powers to autonomous public bodies or private entities and the increased use of soft law). It also
distinguishes different rights or guarantees that are typically subsumed under the rule of law (accessability and foreseeability, compatibility with higher norms and judicial protection).
Each of the aforementioned phenomena poses particular challenges to the full and proper realization
of these aspects of the rule of law. This work will identify and document these challenges with examples from multiple European legal systems, from which it also draws inspiration for possible solutions.
About the authors
Dr. Stéphanie De Somer is a Doctor of laws. Her PhD research was funded by the FWO Flanders and
was entitled: The creation of autonomous public bodies from a European comparative legal perspective: international impulse, national restraint and how to reconcile these trends. In 2014, she spent 3
months at University College London (UCL) as a visiting research student. Currently, she is a full time
postdoctoral fellow at the University of Antwerp, Faculty of Law, research group Government & Law.
She is the author of a number of national and international scientific publications. Her main research
interests are in general administrative law, the law of administrative organization, autonomous public bodies, regulatory agencies, regulatory enforcement and urban planning law.
Cedric Jenart holds a LL.B., LL.M. (University of Antwerp) and LL.M (Harvard Law School). His current
PhD research is being funded by the FWO Flanders and is entitled: Constitutional Principles on outsourcing normative powers to non-politically accountable actors in Europe. His main research interests are comparative constitutional law, (controlled) self-regulation, multilevel governance, the rule
of law, democracy, human rights and sports law.
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Reconstruction of the Administrative Accountability by Administrative Law: Reflection on the castings of Dichotomy of Politics and Administration
Song Jinglin
Short Abstract
This contribution explores the relationship between politics and administration. A relationship described by the author as a dichotomy, but also linked together by administrative law. However the
nature of this dichotomy has evolved to a new paradigm and so administrative law which the article
will portray.
About the author
Dr. Song Jinglin holds a PhD from Peking University. Dr. Song Jinglin research interests include constitutional and administrative law as well as criminal procedural law.
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Transparency Mechanisms: Building Openness in Law Making Process – the case of Romania
Ramonia Delia Popescu
Short Abstract
Transparency in law making process is gaining considerable importance especially now in the age of
globalization and technology advancement. Providing transparency should establish trust and public
confidence in public actors, either public authorities or political parties, thus enhancing political participation.
In a relatively young democracy like Romania, political participation plays a crucial role in acculturating democratic norms and values across the population, in generating trust in democratic political
institutions, in promoting a competitive political behavior, in awakening civic conduct of citizens, in
influencing governmental policies according to citizens’ concerns, in exerting real political influence
over the government. Basically, the democratic transformation in the post-Communist countries of
Central and Eastern Europe was made and is still undergoing under EU conditionality, providing for a
much more transparent law-making process.
This work will try to determine if the trend to widespread participation might dissimulate the accountability of public institutions for their activities. This work will also tackle the openness to the
public of the Romanian public institutions involved in law making process.
About the author
Dr. Ramona Delia POPESCU is a Lecturer at the Faculty of Law of University of Bucharest, teaching
constitutional law and political institutions as well as legal methodology. In 2011, she earned her PhD
from the same University with a thesis called The Responsibility of Parliament in public law. She is
also a legal adviser within the Ministry of Justice, the Department for the Endorsement of Normative
Acts. Her main research interests include Elections, Citizens and Parties, Justice and Rule of Law,
Transparency in Decision Making Process, The Accountability of Public Authorities, and Direct Democracy.
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Globalization of Chinese firms: is it really that frightening?
Yuan Ding
Short Abstract
Since China transformed itself into an open market economy in 1978, the country has attracted a
large amount of foreign direct investment. These capital inflows, together with low land and labor
costs and huge market potential, have boosted the economy over the last three decades. Especially
after joining the WTO, China has exported a tremendous amount of «made in China» goods to the
world. However in 2014, the amount of China’s outward investment exceeded the amount of foreign
direct investment, which means China has switched its global role from product exporter to capital
exporter.
This «new normal» of globalization by Chinese firms has several characteristics which the author
developed in his work. The Western world is particularly worried about the motivation behind this
wave of globalization by Chinese firms. However, compared with western companies, the globalization of Chinese firms is not a market-seeking but rather a resource-seeking phenomenon. Specifically,
Chinese firms are still weak in brand image, technology, and organizational capacity, although they
often have a large market potential. These facts imply that the main motivation for Chinese firms to
go global is to upgrade their capability to better compete in their own domestic market.
However, as the author shows in his work, the ambition of Chinese firms abroad has proved to be
difficult to realize so far for various reasons. But the author has identified some areas where the
globalization of Chinese firms can be successful especially by setting a win-win approach and a cautious execution of globalization strategies.
About the author
Dr. Yuan Ding is Vice President, Dean (Cathay Capital Chair) and Professor in Accounting at CEIBS.
Prior to joining CEIBS, he was a tenured faculty member of HEC School of Management, Paris, France.
He is a member of European Accounting Association, French Accounting Association and American
Accounting Association. Dr. Ding has acted as editor and editorial board member for many international academic journals in accounting and auditing. Dr. Ding received his PhD in Accounting from the
Institute of Enterprises Administration at the University Montesquieu Bordeaux IV, France. He also
holds a Master's in Enterprises Administration from the University of Poitiers, France.
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Federalism, law making and democratic consolidation in Nigeria, 2000-2015
Charles A. Obiora
Short Abstract
Nigeria is a country noted for the series of problems constantly thrown up from time to time in the
working of its constitutional democracy as it strives to consolidate its nascent democracy. However,
the efforts to strike a balance between power sharing (federalism) and law making (legislative) efficiency has been problematic. These challenges have frustrated the various efforts made to amend
the federal constitution in 2003, 2007, 2011 and 2015. The paper shall try to examine and ascertain
the impact of federalism on law making in Nigeria between 2000 and 2015. Data shall be sourced
from secondary sources such as textbooks, journals, official documents, newspapers, magazines etc.
The theory of federalism shall be the framework of analysis in this study while the analysis shall be
mainly descriptive. Findings of the study shall assist us in making recommendations on how legislative efficiency can be achieved in a federal state like Nigeria so that she can consolidate her nascent
democracy.
About the author
Charles A. Obiora is a Senior Lecturer and Acting Head of the Department of Political Science,
Chukwuemeka Odumegwu Ojukwu University, Anambra State (Nigeria).
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The five storey house doctrine on the concept of justiciability and direct effect of norms of international law
Thomas Cottier
Short Abstract
The paper addresses the implications of multilevel governance, in particular the author’s five storey
house doctrine on the concept of justiciability and direct effect of norms of international law, and the
doctrine of horizontal and vertical separation of powers and checks and balances. It will discuss the
implications for the judiciary and the traditional separations made between domestic and international affairs. The paper hopes to make a contribution to greater coherence in the protection of the
rule of law.
About the author
Prof. Thomas Cottier is Emeritus Professor of European and International Economic Law at the University of Bern. He’s a former Managing Director of the World Trade Institute and the Institute of
European and International Economic Law of the University of Bern. He was a Visiting Professor of
the Graduate Institute in Geneva and currently teaches at the Europa Institut Saarbrücken (Germany)
and at Wuhan Universit (China). He had a long-standing involvement in GATT/WTO activities (negotiator, chief negotiator for Switzerland, member or chair of several panels). He also held several management positions for the Swiss External Economic Affairs Department and the Swiss Intellectual
Property Office. Prof. Cottier is an associate editor of several journals and has written and publishes
on a wide range of trade and international law issues.
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‘Intrusive’ decentralisation in Uganda: the case for the recentralisation of the city of Kampala and the confluence
of two global world discourses on development
Douglas Singiza
Short Abstract
Uganda went through a constitutional process of decentralization during the nineties. The city of
Kampala was then under the authority of the local government. However, the situation changed in
2005 when the central government took control of the administration of the capital. This work examines the economic reasoning for the recentralisation of the Kampala City together with the evidence of past mismanagement of the city against the backdrop of the two economic narratives. This
contribution will highlight the political undercurrents leading to the change of status Kampala City. In
turn the new status of Kampala city shall be used to explain how both the Swiss federal economic
efficiency model and the Chinese centralised economic model are interlinked in a globalised legal
world.
About the author
Dr. Douglas Singiza is Director of Research at the Judicial Studies Institute (JSI) (the Judiciary of
Uganda), a research and training institution of the Judiciary, focusing on imparting skills on judicial
officers in the areas of adjudication, mediation, human rights, counterterrorism and good governance. His PhD thesis examines the intrusive top-down decentralisation in Uganda and questions its
ability to promote local development, nurture local democracy and accommodation of ethnic diversity. His thesis is in advanced stages of review into a book by the Ashgate publishers, a comprehensive
text book project focusing on district councils in Uganda. His research, teaching and consulting focuses on multilevel government, good governance and human rights in Africa. He has published in the
areas of district council powers, election systems, and political and sexual minority rights in Uganda.
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The reality of law transplantation and the path to development in China
Feng Zixuan & Yang Minghao
Short Abstract
Law transplantation or legal transplant has been a reality in China for the last decades in order to
establish a viable legal system. In some cases, the transplant of foreign laws has been successfully
performed in the Chinese context. In others, the transplant has been more difficult. This contribution
will try to explain the reality of law transplantation in China as well as exploring ways to combine the
influence of extraterritorial law with the particular Chinese legal system.
About the authors
Dr. Feng Zixuan is an Associate Professor of administrative law of the Southwest University of Political Science & Law and also acts as a Deputy Dean of the Department. She holds a PhD from the same
University. Her research interests include administrative law, environmental Law, comparative administrative Law, Chinese Administrative Procedural Law and Government Regulation.
Yang Minghao is a Postgraduate student at the Southwest University of Political Science & Law. He
holds a BA from the China University of Political Science & Law, CCE Law School. His research interests include application law, administrative law.
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Asymmetrical Federalism: Alternative between potential
self-determination and traditional sovereignty notion
Maja Sahadzic
Short Abstract
According to the traditional federal theory, asymmetrical arrangements in multitiered (and multinational) systems are seen as exceptions, rather than commonality. But the subject gained importance
in the scientific literature. Unfortunately, contemporary federal theory is still sufficiently influenced
by traditional federal theory as it is omitting to embed more comprehensive approach to research
contemporary asymmetrical arrangements that are being acknowledged as mechanism for diversity
accommodation in multinational states and highly pluralistic societies.
The first aim of this article is to touch upon consideration of the asymmetries in federal arrangements as an alternative to self-determination claims. Related to the first aim, the second aim is to
trace Swenden’s (2006) argument that asymmetric federalism «raises some normative questions that
are linked to specific conceptions of democracy» especially following Popelier’s (2012) dynamic federalism notion. This will allow to start the discussion following Keating’s (1998) argument that the
question is not whether asymmetry is possible but rather what type of degree of it is tolerable, or
how far asymmetries can go for the system to remain stable and therefore not become, among other, potential for self-determination claims.
About the author
Maha Sahadzic is an Expert legal advisor, Lecturer and Researcher. She is currently a PhD researcher
and PhD student at the Government and Law research group at the Faculty of Law, University of
Antwerp. Her work experience includes earlier academic positions at universities in Bosnia and Herzegovina, Croatia and in the United States of America. She has also worked as a lawyer, journalist, PR
person and program coordinator. She has published over 50 books, book chapters and papers in
journals and conference proceedings, within the field of constitutional law, international law, diplomacy and security. She has participated in numerous scientific research projects. Her primarily areas
of interest are related to constitutional law and international law: asymmetrical federalism, constitutional asymmetries, constitutional systems, comparative constitutional law, and international treaty
law.
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Narratives of Resistance: Does Resistance enrich international law or weaken international law? Three Case
Studies
Rekha Oleschak
Short Abstract
International law is developed by states who agree to comply by these rules even though it may limit
states in their sovereign actions. Yet, international law is not developed without resistance; it takes
years of negotiation between states, especially in multilateral negotiations before agreement is
reached. Once international law in a specific area has been created, states find it hard to adapt their
domestic law to international law either because of domestic pressure or because of changing circumstances in the domestic or international arena. «Third world» international law scholars have
been critical of the creation of international law, especially in the area of international economic law
as being in the interest of economically developed states and being partial to interpretation in favour
of economically developed states.
This paper seeks to answer the question of whether resistance by states in interpreting or implementing or even creating international law enriches international law or whether it weakens international law. This will be done through examining three separate case studies which highlight the dilemma of states to implement domestic policies in the interests of their population at the same time
to comply with (very often) controversial and burdensome international law.
About the author
Dr. Rekha Oleschak is a Senior Research Fellow at the Institute of Federalism, Switzerland. She holds
a Doctorate in law from the University of St.Gallen (2009) and an LL.M. in International Law from the
University of Aberdeen (2001). She completed her LL.B. degree (1999) at the University of Kerala,
India and is admitted to the Bar in India. She was a Visiting Study Fellow at the Refugee Studies Centre in Oxford in 2006. Her areas of interest are constitutional law, human rights, development policy,
migration and international economic law.
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Levelling Legislation
Eva Maria Belser
Short Abstract
The internationalisation of law by international treaties has taken different forms in the various legal
fields: While it has produced uniform and enforceable rules in the field of economic liberalisation, it
has not lead to more than lax harmonisation mechanisms in the field of human rights, democracy
and the rule of law. We can therefore distinguish a body of «hard» international economic law, mainly prohibiting states to have or apply specific rules (negative harmonisation), and a body of «soft»
international human rights law, primarily encouraging state to create and implement specific standards (positive harmonisation). A third body of international law, combining elements of both types, is
currently evolving in the field of international environment and climate law.
Whereas negative harmonisation leads to an alignment of national legal systems by norms and rules
all member states have accepted to give up (e.g. taxes, quotas and other trade barriers), positive
harmonisation aims at creating common norms shared by all member states (e.g. labour standards,
minority rights, transparency rules). The paper describes and illustrates the two forms of legal internationalisation and claims that the current global developments have led to the levelling of legislation: Negative harmonisation, limiting state power in favour of private (global) players, has been
much more effective than positive harmonisation, allowing states to realize state aims such as general welfare, equality of chances or sustainability. While appreciating the positive effects of international law and its (increasing) necessity in numerous fields of law, the paper draws the attention to
the potential risks of the internationalization of law. During the past decades, internationalisation of
law has been a driving force of globalisation and economic liberalisation. International law-makers,
however, have been far less successful in the adaption of common rules necessary to secure a socially and ecologically sustainable economic development. These unequal developments in international
law have profoundly – and unevenly – affected national law where liberalisation, not regulation, has
been the trend. Internationalisation of law, the paper claims, has led to the levelling of legislation
and has been one of the factors leading to the erosion of state power. Before concluding, the paper
outlines two recent trends characterizing a reinvigorated role of states: The tendency to adapt national legislation despite of a liberalised global environment (e.g. in the field of food safety, banking
or migration), and international agreements on common rules adapted to realize common aims (e.g.
in the field of information exchange, reduction of pollution). The paper concludes that national and
international law-making or closely interlinked and that unequal developments can lead to governance gaps.
About the author
Prof. Eva Maria Belser is a Professor of Constitutional and Administrative law at the University of
Fribourg. She is Co-Director of the Institute of Federalism and also Vice Dean of the Faculty of Law at
University of Fribourg. Her main publications and research interests include comparative constitu-
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tional law, international human rights and labour law, trade and development law, links between
human rights protection and economic globalisation, federalism and multi-level states. She has been
involved in federalism projects and human rights activities among others in Sudan, China, Ethiopia
and Palestine.
The Bangsamoro peace process and hybrid selfdetermination: Domestic Law on Decentralization under
Pressure
Armi Beatriz E. Bayot
Short Abstract
After explaining some issues regarding Peace agreements, this contribution will look at The Philippines experience in the Bangsamoro peace process to illustrate the difficulties behind this topic. The
Comprehensive Agreement on the Bangsamoro (CAB) in March 2014, which seeks to end 40 years of
armed conflict between the Philippines government and the Moro Islamic Liberation Front (MILF),
was meant to be implemented through the enactment of the Bangsamoro Basic Law (BBL) – a law
that was drafted with the extensive involvement of the MILF as well. Even before the final stages of
congressional deliberation, it became clear the any version coming out of the Philippines Congress
would not be completely consistent with the CAB’s many innovative provisions on power sharing and
wealth sharing – provisions that sought to broaden the powers of an autonomous political region in
Muslim Mindanao.
On the one hand, Congress exercised its constitutional prerogative to dissect and amend a draft legislative measure as it saw fit. On the other hand, the MILF firmly believed that the CAB, as a negotiated
political settlement, ought to have been fully implemented into law without modification. The MILF
believed that this view is consistent with the emerging norms of lex pacificatoria and hybrid selfdetermination, and felt that amending the BBL was a breach of the peace agreement. Despite these
diametrically opposed views, the fact that Congress has agreed at all to consider a draft law emanating from peace negotiations shows that the CAB, and the peace process that gave birth to it, is not
devoid of normative pull. In any event, the Philippines Congress failed to enact the law before the
national elections and May 2016, and it remains to be seen whether the next elected Philippines
president and his government would be placing the implementation of the CAB high on the national
agenda.
Using the Philippines experience with the CAB and the BBL as a case study, the paper seeks to explore the place of peace agreements in Philippine domestic law and will seek to draw out lessons as
regards the normative pull of negotiated political settlements in domestic legislative systems marked
by rigid procedural and substantive rules. The paper will also discuss whether emergent norms of lex
pacificatoria could be and ought to be used as legal authority in pushing for greater decentralization
in such rigid systems.
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About the author
Armi Beatriz E. Bayot is an Associate Solicitor from the Office of the Solicitor General (OSG). Among
her fields of practice at the OSG are indigenous peoples’ rights law, administrative law, family law,
and criminal appeals. She has been legal counsel to government peace panel in talks with the Moro
Islamic Liberation Front since 2010 and was deeply involved in the drafting and negotiation of the
Comprehensive Agreement on the Bangsamoro, particularly the Annexes on Wealth Sharing and
Power Sharing. She graduated with a degree in Broadcast Communication from the University of the
Philippines College of Mass Communication in 2002. She obtained her Juris Doctor degree from the
University of the Philippines College of Law in 2009. In 2015, she obtained a Master of Laws Degree in
Transnational Law (with Distinction) from King’s College London (KCL) under a Chevening Scholarship.
Legislative Power Sharing in African States: A comparative
analysis of the impact of Globalization on the Nigerian
federal and South African quasi-federal State Systems
Adesoji Adedipe & Kelvin Ashindorbe
Short Abstract
Nigeria and South Africa are two of Africa's states, both originally colonised by the British which share
in common the three orders system of government with parliaments at the three levels. While Nigeria is constitutionally recognised as a federal state, South Africa on the other hand, is best described
as quasi-federal in Schedule 4 and Schedule 5 of the 1996 Constitution. While Nigeria adopted the
American styled presidential system in 1979 with a bicameral federal legislature and unicameral legislatures at the provincial/state level and at the local government/ municipal level. South Africa, on
the other hand, at the end of apartheid in 1994 adopted the parliamentary system to run alongside
its quasi-federal model with a bicameral legislature at the central level, and uni-cameral legislature at
the provincial and municipal level.
Legislative power-sharing as a feature of federal states theoretically should guarantee the ability of
each order of government to adopt legislation and decision-making that is reflective of the local
needs and diversity while safeguarding the broader national level interests of the State; this is not
always the case in reality. The history of the creation of states/province and the local/municipal government in Nigeria instituted a peculiar model where what exist in reality is local administration and
not government with other level of government serving as mere appendages to the central government, this greatly constricts the space where other tiers of government operate. While the justifying
rhetoric for their creation invoke the need for modernisation and spreading development to the
grassroots, the military origin of the different structures of government have continued to undermine their institutional autonomy.
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In the case of South Africa, the centralized dimension to law making has also ensured that despite
the existence of legislatures across the three tiers of government, the legislative institutions at the
provinces and municipalities are barely autonomous. Utilizing a comparative approach, the paper will
be guided by probing questions, such as; what is the nature and history of central- local government
relationship in Nigeria and South Africa? What is the nature of the issues thrown up in the quest to
implement federalist principles in both countries? How are these issues dealt with? The study relies
on secondary data from books and journal articles, adopting a descriptive and narrative style.
About the authors
Adesoji Adedipe holds a Bachelor degree in History and a Master degree in peace and conflict studies
from the University of Ado-Ekiti and University of Ibadan respectively. He also holds a post graduate
diploma in Federalism, Decentralization and Conflict Resolution from the Institute of Federalism,
University of Fribourg Switzerland and a post-graduate diploma in peace research from the University
of Oslo, Norway. Currently, he is a PhD candidate in the Department of Political Science at the University of KwaZulu-Natal South Africa. His areas of academic interest include federalism, ethnicity,
comparative politics, state organization, conflict transformation, and democracy.
Ashindorbe Kelvin holds a Bachelor degree in political science and two master’s degrees in political
science and peace and conflicts studies from the University of Ibadan. He also earned a post graduate
diploma on Federalism, Decentralization and Conflict Resolution from the Institute of Federalism,
University of Fribourg Switzerland and currently at the final stages of a PhD programme at the Institute for Peace and Strategic Studies, University of Ibadan. His areas of academic interests include the
study of political party, democracy, ethnicity and federalism.
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Transparency and public participation in Rulemaking
Cai Le-Wei
Short Abstract
Taking the making of "Interim Measures for the administration of the operation and service of the
rental car" as an example, this article is intended to explore the issues of transparency and public
participation in rulemaking under the background of the Internet. As the article will point out, under
the background of the Internet, rulemaking confronts new demands both on the substantive and
procedural aspects. Transparency and public participation in rulemaking are of great significance,
such as reflecting the needs of the community, improving administrative efficiency, maintaining social stability, and so on. In accordance with the characteristics of the network society, we should try
to broaden the channels of public participation and update its modes. What is more, in order to ensure that public participation does not lose its value, we should improve the effectiveness of public
participation by improving its mechanism. The article includes the following sections: First, the impact of the Internet on rulemaking; Second, the value of transparency and public participation in
rulemaking; Third, the ways of public participation in the context of the Internet; Fourth, how to ensure the effectiveness of public participation.
About the author
Cai Le-Win is an Associate Professor at the China University of Political Sciences and Law, Beijing
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Legal Transplantation in the Chinese Hedge Fund Market:
From Trust Law to the Securities Investment Funds Law
Christopher Hsu
Short Abstract
This paper examines the development of China’s hedge fund market in response to global competition and the increased demand for liquidity in the financial market. Specifically, it investigates how
the regulatory framework for Chinese hedge funds has drawn influence from the West in order to
shape the two main bodies of law that govern the market: the Trust Law and the Securities Investment Funds Law.
The paper adopts a dual legal and economic analysis, drawing comparisons with the EU Alternative
Investment Fund Managers Directive, in order to consider, firstly, whether the current level of investor protection in China is sufficient, and secondly, whether the SIFL 2013 is capable of encouraging
growth and increasing efficiency in the Chinese hedge fund market in the face of global competition
for capital.
About the author
Christopher Hsu is currently funded by the German Foundation of Monetary Stability (Stiftung Geld
und Währung) to complete his Doctorate in the Law and Economics of Money and Finance at Goethe
University in Frankfurt. His Dissertation focuses on the Chinese hedge fund industry, and his most
recent research project was supervised by the Vice President of the University. Previously, he obtained his Master’s in Law and Finance at the University of Oxford (Faculty of Law & Said Business
School), where he was awarded the BNY Mellon Prize. He has also studied Law and Business at UC
Berkeley, Cologne Business School, and National Chengchi University. In addition, he worked for the
Taiwanese government on the Financial Dispute Resolution Mechanism and for the Banking and Capital Market Department at Lee and Li, the largest top-tier commercial law firm in Taiwan. Recently, he
published on the Chinese Trust Industry in European Business Organization Law Review with Springer
International. He has spoken widely on his chosen fields at international conferences and as a guest
lecturer.
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Legal transplantation and localization in China
Luo Zhimin
Short Abstract
In China, there is almost no dispute in the understanding of the concept of legal transplantation. Legal transplantation in China began in the late Qing Dynasty; until now, it is going on. After the founding of People’s Republic of China, the course of legal transplantation in China could actually be divided into two phases with the Cultural Revolution as the demarcation. Before the Cultural Revolution, a
large number of Soviet Union laws have been transplanted in China, and after it, the legal transplantation becomes quite diversified. Legal transplantation and localization are inseparable, especially
when the legal transplantation that is exercised for "prestige" contains the localization process. That
is also reflected in the process of legal transplantation in China. It is stressed in the legislation after
China's reform and opening up that attention be paid to our national conditions in learning successful
experience from foreign countries. Although the general legal transplantation is bound to accompany
the process of localization, it does not mean that the legal transplantation will be successful. The
effective combination of law transplanted and local resources may need a long time; Legal transplantation truly would be a very long period of time, perhaps accompanied by further modification of
laws transplanted or change of the recipient's environment. However, that does not mean we have
reason to be complacent and conservative when we emphasize localization, we should avoid refusing
legal transplantation on the ground of localization. The connection between countries becomes closer with the development of globalization, although each country has its own characteristics, but at
the same time, they face many common problems such as survival and development. The laws of a
country should not only be based on its practice and local resources, but also comply with the world
development. The laws between countries will continue to influence each other, learn from each
other. Legal transplantation is a process of localization and at the same time one of modernization
and internationalization.
About the author
Luo Zhimin , Law School of China University of Political Science and Law, Beijing
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How globalized norms play a role in reshaping domestic regulation
Yun Ma
Short Abstract
Transnational collaboration and rule making, which are necessitated by global problems such as climate change, poverty and peacekeeping, have unavoidably shed light on domestic regulatory
frameworks and processes. Globalized norms have acquired increasing influences over domestic regulatory practices in fields like trade, financial regulation and investment, and more recently, in fields
of environment and public health protection. The penetration of global norms into domestic realms
takes place in diverse sources and paths including not only classic channel of treaties and their associated standard making, but also norms produced by private international governance organizations,
such as ISO. Problems arise as whether enterprises may be exempt of regulation for its compliance
with globalized standards, and whether national regulatory bodies transfer de facto regulatory power
and responsibilities to global governance bodies. A better understanding of the inter-linkages between the evolving body of globalized administrative law and domestic administrative law and the
dynamics of global-national interactions is needed.
Instead of focusing on regulating ‘global administrative bodies’ as global norm makers and regulators, which is traditionally a focus of ‘global administrative law’ literature, this article focuses on the
role played by globalized norms in influencing domestic regulatory process and reshaping the decision-making processes within domestic bureaucracies. The example of environment rule-making and
regulatory practices in China will be adopted as an example to illustrate the identification of this role.
Various others aspects regarding this issue will also be analyzed in this article.
About the author
Dr. Yun Ma holds a Ph.D in law from the Erasmus School of Law and Erasmus China Law Center at the
Erasmus University in Rotterdam (Netherlands). She is currently a lecturer in administrative law at
the Law School of China University of Political Science and Law in Beijing (China).
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Administrative Legislation in China
Zhang Li
Short Abstract
In China, the executive power has always been in a dominant position. Due to the lack of a clear concept of separation of powers, the executive often serves legislative and judicial functions. The conception of Administrative Legislation thereby formed is not only comprehensive in content and variety, but also excluded from judicial review because of a high level in the hierarchy of law. This contribution will therefore analyze the specificity of Chinese Administrative Legislation.
About the author
Prof. Zhang Li, Ph. D from University of Paris I (Panthéon-Sorbonne), is currently professor of public
law in Research Center for Government by Law of China University of Political Science and Law. Specialized in French public law, comparative administrative law, she has published a book in French,
two books in Chinese, and written more than 40 articles in Chinese, in French or in English.
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The Difficult Relationship between International Commercial Treaties and Domestic Law
Peter Hänni
Short Abstract
This contribution is divided in four parts. The first part is the introduction; the second part is devoted
to domestic constitutional law; the third to other domestic law. In the fourth part, four examples will
be addressed, namely the European treaty on Free movement of persons, other Treaties with the EU,
the Sino-Swiss Treaty and WTO-Regulations.
About the author
Prof. Peter Hänni is a Professor for Constitutional and Administrative law at the University of Fribourg and Director of the Institute of Federalism. He is the Director of the Swiss Association for Administrative Organization Law. He’s also an Attorney-at-law and holds a LLM from Yale University. His
publications and main research interests include federalism, the statute of public employees, planning and construction law, and environmental law.
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Tensions between the Legislative and Judiciary Powers in a
fast changing World –
A comparative analysis of the «legislative role» of the
Chinese Supreme People’s Court and the Swiss Federal
Tribunal in the field of international commercial dispute
resolution
Clarisse von Wunschheim & Yves Hu
Short Abstract
Under the PRC Constitution (2004) and the PRC Law on Legislation (2015), the National People’s Congress (NPC) is the legislative organ for law application nationwide. Whilst in a notice issued by the
NPC in June 1981, the NPC entrusted the Supreme People’s Court (SPC) to issue judicial interpretations.
It is undeniable that by exercising such power, the SPC has been playing an important role in the development of Chinese legislation. This is all the more the case considering that there are many circumstances where the SPC interprets the law in a way that is de facto changing the law.
This special role of the SPC has its advantages and disadvantages. Whilst the SPC’s interpretations
may cause conflicts with the laws promulgated by the NPC and therefore undermine the separation
of powers, it is a very effective tool to adapt the law and react to new developments. This is in particular the case in the field of commercial law, where globalization and the thereto relating trade
pressures require quick adjustments of the legal environment.
In this context, the present article pursues a double objective:
It will first illustrate this dichotomy and the challenges and opportunities arising therefrom through
two examples in the field of international commercial dispute resolution, where the intervention of
the SPC created conflicts with laws but at the same time allowed the legal environment to adapt to
the needs of a globalizing economy.
It will then compare the role of the SPC in China with the role played by the Swiss Federal Tribunal in
Switzerland, who focuses on ensuring the uniform application of the laws across the country and has
a very limited power to interpret laws. This comparison will allow us to draw lessons for each side.
About the authors
Dr. Clarisse von Wunschheim is an Attorney-at-law at Hartmann & Dreyer in Fribourg, specialized in
cross-border and cross-cultural dispute resolution with a focus on the European and Chinese market.
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She has obtained her PhD degree from the University of Fribourg on a topic relating to arbitration in
China in 2010. She is a lecturer at the University of Fribourg (Switzerland) and at the University Institute of European Studies of Turin (Italy), where she teaches contract and arbitration law. She is also
author and co-author of several articles on arbitration law, and an occasional speaker at conferences.
Yves Hu holds a LLB and a LLM degree from China University of Political Science and Law. He passed
the PRC Bar examination in the year 2010. He is currently an Attorney-at-law working for the law firm
ASIALLIANS in Beijing as an associate and manager of the PRC Outbound Investment Department,
Africa Desk.
Transparency and Democratic Legitimation in Mega‐regional
Trade Agreements
Charlotte Sieber Gasser
Short Abstract
In the past twenty years, the world has seen unprecedented globalization of markets and production,
along with a more integrated governance of their operations. In the attempt to catch up with economic forces governing the global market and since multilateral negotiations remain difficult, states
turned to free trade agreements (FTAs) as an instrument for governing trade and markets.
While previous trade agreements provided for static liberalizing commitments, the new, so‐called
mega‐regional trade agreements put further emphasize on the balance between transparency, democratic legitimation and market integration.
By taking the case of Switzerland, this contribution thus, firstly discuss to what extent the constitutional rights and obligations suffice to guarantee transparency and democratic legitimation in modern trade negotiations. Secondly, this paper focuses on transparency and democratic legitimation of
subsequent decisions taken by the institutional bodies of trade agreements with a particular focus on
the regulatory challenge of referenda which contradict Switzerland’s obligations under international
law.
About the author
Dr. Charlotte Sieber Gasser holds a PhD in Law from the University of Bern. She is a Visiting Research
Fellow at the Graduate Institute of International and Development Studies in Geneva and a PostDoctoral Fellow at the Faculty of Law, University of Lucerne. She was also a Post-Doctoral Fellow and
Lecturer at the World Trade Institute of the University of Bern. Her research interests include International Trade Regulation, Law and Development, Constitutional Law, Migration and Integration of
Foreigners.
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About failed federal states and their measurement in a
globalised context: the Horn of Africa experience
Maurizio Maggetti
Short Abstract
Globalisation has manifold influences on national law. This is especially true in situations of violent
conflict. Power Sharing arrangements are usually national and are entrenched in a national constitution. However, these solutions are often negotiated with support from foreign actors, who can sit on
the negotiation table, incorporate a role of facilitators or mediators or in an advisory function. The
globalisation has made it even more probable that kinstates, regional actors (as IGAD, European Union) or representatives of the international community (UN) play a role in these negotiations. Such
processes are therefore not elaborated in watertight compartments. It is therefore important to find
a balance between globalisation and the national law, which puts the national actors in the driving
seat in order to achieve ownership, accountability and legitimation.
What is in such a globalised context a successful decentralised or federal state? Scholars have produced a wide range of scientific literature about «success» and «failure» of different Power Sharing
arrangements. The starting points of their academic reflections were often realities of Western democracies. Therefore the lists of compared subjects included mainly institutional set-ups familiar
with a long federal tradition to the European, North American or Australian state. Not surprisingly,
states as the USA, Switzerland, Canada, Australia and Germany were always among the winners in
this undeclared competition. Officially the success story was explained as being entrenched in a ‘long
historical tradition’; unofficially these comparisons lead to a feeling of satisfaction among the Westerners and frustration of the partners in the South and East. During the last years different scholars –
also from Western Europe – started to criticise this approach also because of its shortcomings of
scientific nature and proposed to put the goal of the power sharing arrangement into the centre of
academic inquiry and comparison of success measurement: does the state meet the goals which it
has been created for? Was the state capable to adapt its goals and the fulfilment of the latter during
the evolution of time? As state building processes are never complete, the answers to this question
can always only be temporary. This article will reflect on how different states in the Horn of Africa
and other regions succeed(ed) to meet the goals set in their constitution and how they respond to
the specific circumstances of their creation and development.
About the author
Maurizio Maggetti is the coordinator of the international programmes at the Institute of Federalism.
He has a background in History and Science of Religions of the University of Fribourg and a MAS in
Development and Cooperation from the ETH Zurich. At the Institute he is responsible e.g. for further
education courses (Summer University on Federalism, Decentralisation and Conflict Resolution, Practitioner’s Course on Subnational Governance) as well as a guest researcher programme. He has a
mandate from the Horn of Africa Desk of the Swiss Government to backstop their activities. He has
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worked in Bosnia-Herzegovina and in Sri Lanka in the field of power sharing, democracy and institutional development.
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Unitary State, Local State and Central-local Cooperative Legislation: Analysis Based on the Regulation of Renting
Cars from Internet
Zhang Li
Short Abstract
China is considered as a unitary state for a long time. Since the foundation of the People's Republic of
China (PRC) there have not been many debates on the unitary state principle itself. However it was
very hard to achieve the fine balance between the central and the local then, which in some extent
led to constitutional dysfunction thereafter. The Constitution adopted in 1982 provides that «The
division of functions and powers between the central and local state organs is guided by the principle
of giving full scope to the initiative and enthusiasm of the local authorities under the unified leadership of the central authorities.» According to this principle and the understanding and practice of it,
the local is not an independent legislative body. There are only «local state organs» but «the localities» at the local level. Before the reform and opening-up the central-local power structure had adjusted several times but the status of the local authority was not legalized. There are three reasons
explaining this awkward situation.
The first one is historic. Those local state organs were positioned as tools of the central government
while they were founded. Although the first constitution of PRC acknowledged the system of people’s congress, which meant the local state organs should have made a transition to the arms of locality, it was pitiful that the independence of the local did not come true. Secondly, the constitution
was not taken seriously and the key to balance the relationship of the central and the local were policies. Thirdly, the reality of unified subject under planned economy made no sense to legalize centrallocal relationship. Without merging into a real global market or globalization as we always call, it is
not necessary and possible to make the legalization. During the reform and opening-up local state is
emerging in the relationship between the central and the local gradually with the interest differentiation in society and the building of rule of law, which has been undermining the understanding of the principle above to a large extent. Economic regulation is a typical case. With the
economy’s becoming more and more important in the eyes of central and local government, those
local state organs inclined to reposition themselves. Fiscal constraints were loosen and the regulatory
powers were conferred on the local in fact. Some scholars view these phenomenon as «Chinese Fiscal Federalism» or «De Facto Federalism». While stepping into 21st century «federalism in fact mode»
encounters many difficulties and legalization seems to be a way out. As a response to legalization of
the central-local relationship in the context of globalization, «Legislation Law» was enacted in 2000
and revised in 2015. Not as most people read the revision of «Legislation Law» in 2015 does not enlarge the legislative power of localities. Instead the central is trying to define the central-local power
structure to constrain the movement of local state.
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This article is going to step into the field of regulation of renting cars from internet in China, describe
the practice of central-local legislative cooperation and then analyze the legalization of restructure of
central-local relationship in the context of globalization.
About the author
Dr. Zhang Li is a Lecturer at the School of Law of China University of Political Science and Law. He
holds a PhD in Constitution and Administrative Law from China University of Political Science and
Law. Dr. Zhang specializes in administrative litigation, local government law and comparative administrative law and he is a researcher of Public Law and Governance Research Centre.