"Law and Development Minus Legal Transplants: The Example of China in Vietnam"

April 29, 2021

Asian Journal of Law and Society, First View, pp1-30.

DOI: https://doi.org/10.1017/als.2020.46.

 

This article is published in a special issue on “Legal Transplants in Asia” which explores the relevance of legal transplant to and among Asian countries and follows from a panel organized by Prof. Setsuo Miyazawa (UC Hastings Law School) at the 2019 Asian Law & Society Association annual meeting in Osaka, Japan (December 12-15, 2019).

Abstract

Legal transplants are broadly recognized as one of the main mechanisms by which donor states influence the legal development of recipient states. The experience of China, however, challenges convention. While, in recent years, China has been one of the largest capital-exporting countries in the world and has mobilized law to protect its investment in high-risk recipient states, legal transplants have, to date, not played a major role in China’s approach to law and development. This article examines this puzzle through the case of China’s participation in formulating Vietnam’s 2018 SEZ Bill. In doing so, this article sets forth a number of hypotheses as to why Chinese law has thus far not assumed the form of legal transplant. The example of the SEZ Bill demonstrates how Chinese legal transplants depend as much on the “pull” of recipient states as they do on the “push” of the donor. The case-study of the SEZ Bill raises important questions not only for Chinese law and development, but also, more generally, for the viability of “second-order” legal transplants: those from an Asian donor to an Asian recipient.