American Bar Foundation Research Seminar
September 15, 2021, 12.00-1.30 pm
Speaker: Professor Matthew Erie
More information here.
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.
