February 16, 2023
Columbia Journal of Transnational Law, Volume 61.
Available here and online here.
Abstract
Previous major capital-exporting nations have attained hegemony through a combination of coercion, currency, and contracts. In particular, the United Kingdom and the United States developed globe-spanning navies and modern militaries, and their denominations are amongst the strongest in the world with the U.S. 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 global 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, especially those based on the English or American experiences, are incomplete. As China’s hard power is partial compared to previous capital exporters, it has sought to boost its soft power. Chinese law is part of this story: It sustains China’s partial hard power (through the PRC’s economic relations with host states, which may have coercive elements), but it has also gained particular utility as an expression of soft power—that is, a tool to align the interests of host states with China’s.
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 the first dispute resolution institution, the PRC has co-created outside of the PRC: the China-Africa Joint Arbitration Center (CAJAC). Qualitative data collected from both China and partner states in Africa demonstrate how CAJAC exemplifies the exercise of Chinese law as soft power, reveals 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 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 that 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.
