China-EU Law Journal

This article analyzes the consequences of the Dispute Settlement Body decision from February 22, 2012 in the WTO Raw Materials case approving the WTO Panel Report of July 2011 as modified by the Appellate Body Report of January 30, 2012 for future raw materials policies. It will be examined whether the indefinite rules of WTO law in the interpretation of the underlying principles of the Panel Report and the Appellate Body Report provide a basis to oppose export restrictions effectively. The initial reaction is that China will have to revise its export policy concerning certain raw materials as a consequence of the 2012 DSB decision. However, the Reports and its remarks provide justifications and suggest that PRC export restrictions are consistent with WTO law, which could give rise for a reconsideration of export policy in Europe. It will be shown that the European Commodity and Raw Materials Strategy 2011 could serve as an appropriate starting point.

This paper deals with a topic of common concern to China, Europe and the United States: the negative effects of bankruptcy stigma on the second chance (fresh start) policy encouraging restructuring of businesses as an alternative to their liquidation. In most Continental European civil law systems, for example, business restructurings are still only aspirations rather than reality. This is to a great extent due to the ubiquity of intense bankruptcy stigma as a consequence of what, for example, creditors as well as the directors and officers of the bankrupt debtor avoid participating in restructuring proceedings. The resulting dominance of liquidations is perceived as a competitive disadvantage both for China and Europe compared to the United States that possesses the top model enshrined in Chapter 11 of the US Bankruptcy Code. It was for these practical reasons that the second chance policy was given clear priority by the European Union as best expressed in the Commission Recommendation of 12 March 2014 on a New Approach to Business Failure and Insolvency. Similar policy shift characterizes the 2007 Enterprise Insolvency Law of the People’s Republic of China as visible from Chapter 8 on reorganisation and Chapter 9 on compositions (workouts). While bankruptcy stigma is present also in the United States, its effects are the least “biting” in this country and are an issue primarily in the context of consumer-bankruptcies. In light of the above, this article’s main claim is that without proper understanding and acknowledging the impact of bankruptcy stigma, hardly could lawmakers’ efforts aimed at forging a legal environment that would incentivize restructurings of financially distressed businesses yield success. Although some research on the topic is available, it tends to be focused on consumer bankruptcies only. A comprehensive, empirically based, inter-disciplinary scrutiny of the impact of stigma on business reorganisations is still lacking just like a “handbook” for combating the bankruptcy stigma. This article attempts to open the doors to this new inter-disciplinary area of law with the tools of comparative law. Besides canvassing the pertaining scholarship’s hereinbefore achievements, the paper extends also to such so far neglected niches of the globe as China and the post-socialist countries of Central and Eastern Europe.

As a special administrative region of China, Macao preserves a previous continental European civil law system with a transition into a Chinese constitutional and legal framework, embedded in a mixture of Chinese and Portuguese legal culture. Since its return to China in 1999, Macao has seen a rapid economic growth in the past 20 years with a drastic social and economic change. To respond to the increasing number of civil and commercial disputes, Macao adopted a new arbitration law at the end of 2019 to facilitate and promote the use of arbitration as an alternative to the court litigation in settling civil and commercial disputes. With a comparison of the content of Macao’s former Law on Voluntary Arbitration (29/96/M) of 1996 and the New Arbitration Law in light of the region’s civil procedure system, this article will provide an overview and preliminary analysis on Macao’s New Arbitration Law of 2019, with a focus on the scope of application of the New Arbitration Law, provisional and interim measures, and recognition and enforcement of arbitral awards.

Extensive rural land expropriation has been a source of social deprivation and contention in contemporary China. This article provides a comprehensive state-of-art analysis of the Chinese law of rural land expropriation and demonstrates the multiple problems it faces now. It first reveals the definitional, structural and procedural challenges embedded within the existing legal framework to the constitutional public interest prerequisite enshrined in Article 10 of the 1982 PRC Constitution. It shows that not only is the prerequisite itself legislatively and judicially under-defined, it is also in effect made structurally redundant by the relevant constitutional and statutory prescriptions. The second part moves on to explain the current legal standard of compensation for rural land expropriation and the critique against its unfairness, both substantively and procedurally. It shows that the existing statutory standard of compensation is unfair not because it falls under the “true” value of the peasants’ use-rights over rural land but because it denies them any share in the increased land value as a result of expropriation. The peasants have no institutionalized channel to challenge the standards either. The third part turns to a series of proposals made in the existing literature on reforming the Chinese rural land expropriation law, all of which intend to boost the capacity of the law to check the state’s takings power and protecting land rights. The concluding part briefly discusses the socio-political reasons why these reform proposals have yet to roll out in China, despite the lengthy groundswell of support for an overhaul of the law in this field, and why a broader reform is needed.

The history of Chinese modern legal development—and of the knowledge of this process by foreigners—is also a history of issues of inter-lingual communications. Today, in a world of growing legal contaminations, a higher level of attention and care should be devoted to these issues. This paper will start exploring such issues focusing on rules on liability for environmental pollution provided for in the 2009 Tort law. These rules offer interesting perspectives of observation on this matter, belonging to one of the most ground-breaking law sectors in global law and, at the same time, being deeply interwoven into the taxonomy and the basic legal concepts of the private and procedural law systems that, since the last century, China has been framing on the basis of Western legal tradition models. Problems in legal translations of law provisions and in interpretations of the general categories and principles referred to by statutory rules will be raised and analysed.

This paper is focused on the “cultural innovative enterprises”, introduced into italian law by Decree Law 179/2012 on “Further urgent measures for Italy’s economic growth”, converted into Law 221/2012. It is about new innovative enterprises that deal to develop, manufacture and distribuite innovative goods and services of high technological value, operating exclusively in the fields of cultural heritage promotion and cultural services provision. These companies can contribute to reduce the Italian youth employment emergency thanks on one hand to the reduced entry barriers related to the technology developments needed to “begin doing business” and on the other hand to the widespread territorial distribution of the italian cultural heritage to which services and processes will be applied. Furthermore, the increase of the GDP in regions undergoing a state of economic difficulty is a goal at hand. From a more general point of view, the cultural innovative start ups are an important element in stimulating new forms of collaboration between public entities responsible for the protection of the artistic heritage and private companies involved in its promotion. This type of partnership can contribute to the promotion and dissemination of new essential skills within the public administration aimed at a virtuous evolution of the way the overall economic system works.

Statutory dominant firms, different from dominant firms that have gained their market power through competition on the merits, have derived their market position from choices made by the state. From an economic perspective, tying by this kind of firm typically generates significant anti-competitive effects that are likely to outweigh the possible pro-competitive effects. Both in China and the EU, such tying practices have frequently taken place. Nevertheless, the economic findings have not been fully reflected in competition provisions and competition practice in these two jurisdictions. This may lead to error costs and enforcement costs, which is detrimental to consumer welfare. It is thus important for competition authorities and courts to carefully consider the economic findings, while taking into account also the principles of proportionality and legal certainty. To enhance the effectiveness of competition law, this study proposes potential ways of applying a differentiated (stricter) scrutiny of tying by statutory dominant firms to reduce error costs and enforcement costs.