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Matthew Erie, University of Oxford

  • When: September 15, 2021, 12–1:30 pm
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Does China Have “Law Power”? China, African States, and the New Extraterritoriality

It has long been held that states resort to hard power or soft power to realize their interests in the international system, yet this typology is incomplete; states may also resort to law power. Law power is defined as the state’s use of its domestic law to project its influence and protect its and its corporations’ interests extraterritorially. Law power assumes a number of different forms but can broadly be understood to have both supply and demand dynamics which are not mutually exclusive. Supply-side dimensions include those of legal imperialism, extraterritorial jurisdiction, law and development, legal transplants, and provision of legal services. Demand-side mechanisms include choice of law in commercial contracts, procedural law in litigation or international arbitration, and legal education and judicial training. Law power is a first-order source of norms that may give rise to other forms of power; it requires its own analytical category. The past two global hegemons, the United Kingdom and the United States, have both used law power. A general question is whether all economic superpowers are also legal superpowers? This article focuses on a narrower question: whether China, a late-comer global player, also uses law power? More specifically, how may Chinese law power differ in terms of its formation, operation, and effects from the law power of other capital-exporting countries? To address these questions, this Article makes two original contributions. First, it lays the conceptual groundwork for theorizing law power and, second, it presents an empirical study of Chinese law power through the China-Africa Joint Arbitration Center (CAJAC), the first dispute resolution mechanism that the People’s Republic of China (PRC) has co-established outside of the PRC, and one that, in both process and product, is a unique intra-regional network. Based on a mixed-methods socio-legal approach that incorporates qualitative data (ethnographic observations and extended interviews with 188 stakeholders) with analysis of the applicable rules (e.g., legislative, jurisprudential, and institutional arbitration), this Article finds that law power may operate just as efficaciously through underlying economic dependence than the quality of the law being promoted, and thus greater attention must be paid to law power’s symbolic aspects to more fully understand this form of transnational governance.

Matthew S. Erie (J.D., Ph.D.) is an Associate Professor of Modern Chinese Studies and Associate Research Fellow of the Socio-Legal Studies Centre at the University of Oxford. Professor Erie’s interdisciplinary work combines law and anthropology to expand the theoretical bases and empirical borders of comparative law, with a particular focus on Chinese law, Islamic law, and Asian law, more generally. Specifically, he has written on Chinese domestic law (e.g., property law, constitutional law, and ethnic and religious policy) and international law (e.g., dispute resolution, conflict of laws, anti-corruption law, and investment law). His work has either appeared in or is forthcoming in such journals as the Harvard International Law Journal, Virginia Journal of International Law, American Journal of Comparative Law, Law and Social Inquiry, and American Ethnologist. His first book, China and Islam: The Prophet, the Party, and Law (Cambridge University Press, 2016), is the first ethnographic study of the relationship between sharia and state law in China. His current research project “China, Law and Development,” funded by a European Research Council Starting Grant (€1.5 million), examines China’s approach to building cross-border order through international economic law and the regulatory regimes of developing host states.

Professor Erie previously held academic positions at Princeton University and New York University Law School, and he was a visiting scholar at the National University Singapore Law Faculty. He practiced law at Paul Hastings LLP in New York and Beijing, and is a member of the National Committee on U.S.-China Relations and Co-Chair of the American Society of International Law's Asia-Pacific Interest Group.

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