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Beijing Consensus and Development Legitimacy: The Evolution of China’s Foreign Direct Investment (FDI) Regime from a Law & Development Perspective

  • Wenwei GUAN (a1)
Abstract
Abstract

The evolution of China’s trade and investment regime since the late 1970s has been a process of constant liberalization of FDI control with a special focus on national development and self-determination. This so-called Beijing Consensus presents a sharp contrast with the neo-liberalist Washington Consensus. A theoretical analysis of this contrast from the law and development critique reveals that, while setting forth itself as the development model and excluding other development alternatives, the legitimacy deficit of the Washington Consensus stems from a self-sufficient ontological myth of legal voluntarism. The Beijing Consensus, with its attention to local conditions and emphasis on self-determination, gains its legitimacy through the dynamic process of selective adaptation of limit-transgression through which it challenges and at the same time enriches international development legitimacy. This article suggests that the Beijing Consensus’ roots in the African Continent’s Agenda 2063 and its First Ten-year Implementation Plan offer positive future prospects.

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LL.B. (Zhongshan University), LL.M. (Peking University), M.A./Ph.D. (University of British Columbia). Assistant Professor at the School of Law, City University of Hong Kong. This article was supported by a School Strategic Research Grant from the School of Law, City University of Hong Kong. The author is very grateful for the generous support. The author also would like to thank the anonymous reviewers for the insightful comments on an earlier draft of the article.

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1. Zuliu F Hu and Mohsin S Khan, ‘Why Is China Growing So Fast?’ (1997) 44(1) International Monetary Fund (IMF) Staff Papers 103-131, 127.

2. ibid 128.

3. LinJustin Yifu, ‘China and the Global Economy,’ (San Francisco Federal Reserve Bank Conference on Asia’s Role in the Post-Crisis Global Economy, San Francisco, 29 November 2011), 5 .

4. ibid. For Lin’s further discussion of the ‘latecomer advantage’, see Justin Yifu Lin, Demystifying the Chinese Economy (Cambridge University Press 2012), 129-131.

5. Lin, ‘China and the Global Economy’ (n 3). See also Lin, Demystifying the Chinese Economy (n 4) 154.

6. WilliamsonJohn, ‘The Washington Consensus Revisited,’ in Louis Emmerij (ed), Economic and Social Development into the XXI Century (Inter-American Development Bank 1997), 48-59 . According to Lin, however, China’s development has clearly differentiated itself from the Washington Consensus model. See Lin, Demystifying the Chinese Economy (n 4) 271-277.

7. RamoJoshua C, The Beijing Consensus (The Foreign Policy Centre 2004).

8. ibid 5.

9. HalperStefan, The Beijing Consensus: How China’s Authoritarian Model Will Dominate the Twenty-First Century (Basic Books 2010), 134 .

10. For China’s integration with the WTO as presenting both conformity and challenge to the legitimacy of the international trading system, see Wenwei Guan, Intellectual Property Theory and Practice: A Critical Examination of China’s TRIPS Compliance and Beyond (Springer 2014), 146-149.

11. Lin, ‘China and the Global Economy’ (n 3) 1.

12. ibid.

13. World Trade Organization (WTO), ‘International Trade Statistic 2012’ (WTO 2012).

14. ibid.

15. UNCTAD, ‘Global Investment Trends Monitor, No 15’ (UNCTAD/WEB/DIAE/IA/2014/1, UNCTAD 2014).

16. UNCTAD, ‘Global Investment Trends Monitor, No 18’ (UNCTAD/WEB/DIAE/IA/2015/1, UNCTAD 2015).

17. The China (Shanghai) Pilot Free Trade Zone (SPFTZ) came into operation in September 2013, and the Guangdong, Fujian and Tianjin FTZs in March 2015. For more details, see discussion in section I.C below.

18. Helen Wong, ‘China’s free trade zones will accelerate reform’ The Australian Business Review (Sydney, 3 April 2015) <www.theaustralian.com.au/business/business-spectator/chinas-free-trade-zones-will-accelerate-reform/news-story/ef5e52067b99bd3ec10dc2098425f59b> accessed 23 November 2015.

19. WTO Secretariat, ‘China Trade Policy Review Report 2006’ (WT/TPR/S/161/Rev 1, WTO 26 June 2006), 1.

20. ibid 18.

21. WTO Secretariat, ‘China Trade Policy Review Report 2014’ (WT/TPR/S/300/Rev 1, WTO 7 October 2014), 19.

22. For example, the People’s Republic of China (PRC) State Council issued guidelines on ‘Encouraging, Supporting, and Guiding the Development of Non-Public Sector of the Economy’ and laid down measures to improve the operation environment for private enterprises. See Guowuyuan Guanyu Guli Zhichi he Yindao Getisiying deng Feigongyoujingji Fazhan de Ruogan Yijian (国务院关于鼓励支持和引导个体私营等非公有制经济发展的若干意见) [Several Opinions of the State Council on Encouraging, Supporting, and Guiding the Development of Non-Public Sector of the Economy including Individual and Private Sectors of the Economy] (promulgated by the State Council on 19 February 2005, effective on 19 February 2005) Order No 3.

23. WTO Secretariat, ‘China Trade Policy Review Report 2008’ (WT/TPR/S/199/Rev 1, WTO 12 August 2008), 19.

24. MorrisonWayne M, China’s Economic Rise: History, Trends, Challenges, and Implications for the United States (US Congressional Research Service 2015), 13 .

25. Hu and Khan (n 1) 115-116.

26. ibid 117-119. According to Hu and Khan, the other two direct factors are the ‘reallocation of labor from agriculture to the industry and service sectors’ and the rise of the non-state sector.

27. ibid 116-117.

28. Alexander Hamilton, ‘The Utility of the Union in Respect to Commercial Relations and a Navy’ in Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (first published 1787, Oxford University Press 2008).

29. Zhonghuarenmingongheguo Zhongwai Hezi Jingying Qiye Fa (中华人民共和国中外合资经营企业法) [PRC Law on Chinese-Foreign Equity Joint Ventures (EJV Law)] (adopted by the National People’s Congress (NPC) on 1 July 1979, effective on 8 July 1979, amended by the NPC Standing Committee (NPCSC) on 4 April 1990, 15 March 2001, and 3 September 2016) Order No 7.

30. NaughtonBarry, The Chinese Economy: Transitions and Growth (MIT Press 2007), 27-28 .

31. ibid 409.

32. ibid.

33. ibid 410.

34. Zhonghuarenmingongheguo Waizi Qiye Fa (中华人民共和国外资企业法) [PRC Law on Wholly Foreign-Owned Enterprises (WFOE Law)] (adopted by the NPC on 12 April 1986, effective on the same day, amended by the NPCSC on 31 October 2000 and 3 September 2016) Order No 39.

35. Zhonghuarenmingongheguo Zhongwai Hezuo Jingying Qiye Fa (中华人民共和国中外合作经营企业法) [PRC Law on Chinese-Foreign Contractual Joint Ventures (CJV Law)] (adopted by the NPC on 13 April 1988, effective upon promulgation on the same day, amended by the NPCSC on 31 October 2000 and 3 September 2016) Order No 4.

36. Arts 1, 4(1), and 4(3), the EJV Law.

37. Arts 1 and 2, the CJV Law.

38. Arts 1 and 2, the WFOE Law.

39. Art 5(1), the EJV Law; Art 3(1), the WFOE Law; and Art 4, the CJV Law.

40. Hu and Khan (n 1) 118-119.

41. Naughton (n 30) 412.

42. Zhidao Waishang Touzi Fangxiang Zanxing Guiding (指导外商投资方向暂行规定) [Provisional Rules on Guiding Foreign Investment Orientation (1995 Provisional Rules)] (approved by the State Council on 7 June 1995, promulgated jointly by the State Planning Commission, the State Economy and Trade Commission, and the Ministry of Foreign Trade and Economic Cooperation on 20 June 1995, effective on 20 June 1995) Order No 5.

43. Zhidao Waishang Touzi Fangxiang Guiding (指导外商投资方向规定) [Rules on Guiding Foreign Investment Orientation (2002 Rules)] (promulgated by the State Council on 11 February 2002, effective and superseded the 1995 Provisional Rules on 1 April 2002) Order 346.

44. The 1995 Guiding Catalogue was then subsequently amended seven times in 1997, 2000, 2002, 2004, 2007, 2011, and 2015 respectively

45. Arts 2 and 3, the 2002 Rules.

46. Arts 4 and 12, the 2002 Rules.

47. Art 4, the 2002 Rules.

48. Art 6, the 2002 Rules.

49. Art 9, the 2002 Rules.

50. Waishang Touzi Chanye Zhidao Mulu (外商投资产业指导目录(2007修订)) [The Guiding Catalogue of Industries for Foreign Investment 2007 (2007 Guiding Catalogue)] (promulgated jointly by the National Development and Reform Commission (NDRC) and the Ministry of Commerce (MOFCOM) on 31 October 2007, effective and superseded the 2004 Guiding Catalogue as of 1 December 2007) Order No 57.

51. Waishang Touzi Chanye Zhidao Mulu (外商投资产业指导目录(2011修订)) [The Guiding Catalogue of Industries for Foreign Investment 2011 (2011 Guiding Catalogue)] (promulgated jointly by the NDRC and the MOFCOM on 24 December 2011, effective and superseded the 2007 Guiding Catalogue as of 30 January 2012) Order No 12.

52. Waishang Touzi Chanye Zhidao Mulu (外商投资产业指导目录(2015修订)) [The Guiding Catalogue of Industries for Foreign Investment 2015 (2015 Guiding Catalogue)] (promulgated jointly by the NDRC and the MOFCOM on 10 March 2015, effective and superseded the 2011 Guiding Catalogue as of 10 April 2015) Order No 22.

53. The MOFCOM issued the Foreign Investment Law (draft) for public consultation on 19 January 2015. For more details, see discussion in section I.C below.

54. Guowuyuan Guanyu Touzi Tizhi Gaige de Jueding (国务院关于投资体制改革的决定) [Decision of the State Council on Reforming the Investment System] (promulgated by the State Council on 16 July 2004, effective on 16 July 2004) Order No 20.

55. Art 2.1, State Council 2004 Decision.

56. Zhengfu Hezhun de Touzi Xiangmu Mulu (政府核准的投资项目目录(2004年本)) [2004 Catalogue of Investment Projects Subject to Government Verification] (promulgated by the State Council on 16 July 2004 as an attachment to the “Decision of the State Council on Reforming the Investment System”, effective on 16 July 2004).

57. Guowuyuan Guanyu Fabu Zhengfu Hezhun de Touzi Xiangmu Mulu de Tongzhi (国务院关于发布政府核准的投资项目目录(2013年本)的通知) [State Council Circular on Issuing 2013 Catalogue of Investment Projects Subject to Government Verification] (promulgated by the State Council on 2 December 2013, effective and superseded the 2004 Catalogue on 2 December 2013. This was then superseded by 2014 Catalogue via Order No 53 on 31 October 2014, and eventually by 2016 Catalogue via Order No. 72 on 12 December 2016) Order No 47.

58. Waishang Touzi Xiangmu Hezhun he Beian Guanli Banfa (外商投资项目核准和备案管理办法) [Administration Measures on the Verification and Registration of Foreign Direct Investment Projects] (promulgated by the NDRC on 17 May 2014, effective on 17 June 2014) Order No 12.

59. For China’s terms on WTO entry, see ‘Protocol on the Accession of the People’s Republic of China’ (WT/L/432, WTO 23 November 2001).

60. It is generally considered that China had a three-year grace period to ensure its full conformity to WTO requirements. China’s commitment on the liberalization of the right to trade for example, see para. 5.1, China’s WTO Accession Protocol (n 59).

61. Art 1, the Main Text of the CEPA as concluded in June 2003. Legal text available at ‘Mainland and Hong Kong Closer Economic Partnership Arrangement (CEPA)’ (Trade and Industry Department, The Government of the Hong Kong Special Administrative Region 2012) <www.tid.gov.hk/english/cepa/index.html> accessed 3 December 2015.

62. Legal text available at ‘Business Opportunities Provided by CEPA’ (Macao Special Administrative Region Economic Services 2008) <http://www.cepa.gov.mo/cepaweb/front/eng/index_main.htm> accessed 3 December 2015 (2014 Guangdong Agreement).

63. Article XXIV(4), General Agreement on Tariffs and Trade 1994.

64. The 2015 Agreement is available at ‘Agreement on Trade in Services (signed on 27 November 2015)’ (Trade and Industry Department, The Government of the Hong Kong Special Administrative Region 2012) <www.tid.gov.hk/english/cepa/legaltext/cepa13.html> accessed 3 December 2015.

65. Annex 1 to the 2015 Agreement.

66. Guowuyuan Guanyu Yinfa Zhongguo (Shanghai) Ziyou Maoyi Shiyanqu Zongti Fangan de Tongzhi (国务院关于印发中国(上海)自由贸易试验区总体方案的通知 [The Circular of the State Council on the Framework Plan for the China (Shanghai) Pilot Free Trade Zone] (promulgated by the State Council on 18 September 2013, effective on 1 October 2013) Order No 38.

67. ibid para 1.

68. ibid para 2.

69. Guanyu Shouquan Guowuyuan zai Zhongguo (Shanghai) Ziyou Maoyi Shiyanqu Zhanshi Tiaozheng Youguan Falu Guiding de Xingzheng Shenpi de Jueding (关于授权国务院在中国(上海)自由贸易试验区暂时调整有关法律规定的行政审批的决定) [The Decision on Authorizing the State Council to Temporarily Adjust the Administrative Examination and Approval of Relevant Laws in China (Shanghai) Pilot Free Trade Zone] (promulgated by the NPCSC on 30 August 2013, effective on 1 October 2013. This was then incorporated into and superseded by the Quanguo Rendachangweihui Guanyu Xiugai (Zhonghuarenmingongheguo Waizi Qiye Fa) Deng Sibu Falu de Jueding (全国人大常委会关于修改《中华人民共和国外资企业法》等四部法律的决定) [NPCSC Decision on Amending Four Laws including PRC Law on Wholly Foreign-Owned Enterprises] (promulgated on 3 September 2016, effective on 1 October 2016) Order No 51.

70. Guanyu Shouquan Guowuyuan zai Zhongguo (Guangdong) Ziyou Maoyi Shiyanqu, Zhongguo (Tianjin) Ziyou Maoyi Shiyanqu, Zhongguo (Fujian) Ziyou Maoyi Shiyanqu yiji Zhongguo (Shanghai) Ziyou Maoyi Shiyanqu Kuozhanqu Zhanshi Tiaozheng Youguan Falu Guiding de Xingzheng Shenpi de Jueding (关于授权国务院在中国(广东)自由贸易试验区、中国(天津)自由贸易试验区、中国(福建)自由贸易试验区以及中国(上海)自由贸易试验区扩展区暂时调整有关法律规定的行政审批的决定) [The Decision on Authorizing the State Council to Temporarily Adjust the Administrative Examination and Approval of Relevant Laws in China (Guangdong), China (Tianjin), China (Fujian) Pilot Free Trade Zones and China (Shanghai) Pilot Free Trade Zone Extended Areas] (promulgated by the NPCSC on 28 December 2014, effective on 1 March 2015. This was then incorporated into and superseded by the ‘NPCSC Decision on Amending Four Laws including PRC Law on Wholly Foreign-Owned Enterprises’ (n 69)).

71. Guowuyuan Bangongting Guanyu Yinfa Ziyou Maoyi Shiyanqu Waishang Touzi Zhunru Tebie Guanli Cuoshi (Fumian Qingdan) de Tongzhi (国务院办公厅关于印发自由贸易试验区外商投资准入特别管理措施(负面清单)的通知) [The Circular of the General Office of the State Council on Issuing FTZs Special Administrative Measures (Negative List) of Market Access for Foreign Investors] (promulgated on 8 April 2015, effective on 8 May 2015) Order No 23.

72. The PRC Foreign Investment Law (draft for public opinions) and the Explanatory Note released on 19 January 2015 available at the MOFCOM site. Shangwubu jiu ‘Zhonghuarenmingongheguo Waiguo Touzifa’ (Caoan Zhengqiu Yijiangao) Gongkai Zhengqiu Yijian (商务部就《中华人民共和国外国投资法(草案征求意见稿)》公开征求意见) [An Open Call for Opinions on the Ministry of Commerce’s Draft PRC Foreign Investment Law] (Ministry of Commerce of the People’s Republic of China Department of Treaty and Law 19 January 2015) <http://tfs.mofcom.gov.cn/article/as/201501/20150100871010.shtml> accessed 3 December 2015.

73. Art 170, PRC Foreign Investment Law (draft).

74. The other two purposes are streamlining the institutional structure of FDI and incorporation of the national security review system into the FDI administration regime. See MOFCOM, Explanatory Note of the PRC Foreign Investment Law (draft) (n 72) 1-2.

75. Arts 20-47, Market Access Administration, PRC Foreign Investment Law (draft) (n 72).

76. Arts 20-23, PRC Foreign Investment Law (draft) (n 72).

77. Arts 24-26, PRC Foreign Investment Law (draft) (n 72).

78. Guowuyuan Guanyu Shixing Shichangzhunru Fumian Qingdan Zhidu de Yijian (国务院关于实行市场准入负面清单制度的意见) [The Opinions of the State Council on Implementing the Negative List System for Market Access] (promulgated by the State Council on 19 October 2015, effective on 1 December 2015) Order No 55.

79. ibid para 11.1.

80. ibid paras 6 and 8.

81. Lin, Demystifying the Chinese Economy (n 4) xv-xvi.

82. Williamson (n 6) 58.

83. Joseph E Stiglitz, ‘Is there a Post-Washington Consensus Consensus?’ in Narcis Serra and Joseph E Stiglitz (eds), The Washington Consensus Reconsidered: Towards a New Global Governance (Oxford University Press 2008) 48-49. However, John Williamson disagreed. According to Williamson, the collapse of the Argentine economy in 2001 ‘was highly likely because of the fundamental ways in which the country had strayed from two of the most basic precepts of [the Washington Consensus]’, and Argentine’s reforms following the Washington Consensus only ‘have the slightest bearing on the crisis.’ See John Williamson, ‘A Short History of the Washington Consensus,’ in The Washington Consensus Reconsidered, ibid, 20-21.

84. Riordan Roett and Guadalupe Paz, ‘Introduction: Assessing the Implications of China’s Growing Presence in the Western Hemisphere,’ in R Roett and G Paz (eds), China’s Expansion into the Western Hemisphere: Implications for Latin America and the United States (Brookings Institution Press 2008) 10.

85. Ramo, The Beijing Consensus (n 7) 4.

86. John Williamson, ‘Is the ‘Beijing Consensus’ Now Dominant?’ (2012) 13 Asia Policy 1, 6-7.

87. Ramo (n 7) 11-12.

88. Scott Kennedy, ‘The Myth of the Beijing Consensus,’ (2010) 19(65) Journal of Contemporary China 461, 462.

89. ibid 469.

90. ibid 470-472.

91. Stiglitz (n 83) 41.

92. ibid 42.

93. ibid 53-54.

94. The Agenda was jointly issued by 28 economists in Barcelona, including Williamson and Stiglitz, in September 2004 on considering the prospects for growth and development around the world. See Narcis Serra and Joseph Stiglitz, ‘The Barcelona Development Agenda’, in The Washington Consensus Reconsidered (n 83) 57-60.

95. For details, see discussion in section I.C above.

96. See section I.C above for the details of the introduction of China’s nation-wide Negative List System.

97. The author would like to thank an anonymous reviewer for suggesting this interpretation.

98. The Agenda 2063, vision and ideas of which were laid down at African Union’s 50th Anniversary Solemn Declaration at the 21st ordinary session of the African Summit on 26 May 2013, was adopted at the 24th AU Summit, 30-31 January 2015.

99. African Union, ‘What is Agenda 2063’ (The African Union Commission) <https://au.int/agenda2063> accessed 6 February 2017.

100. There are seven aspirations under Agenda 2063. The rest of the six are: 2) An integrated continent, politically united and based on the ideals of Pan-Africanism and the vision of Africa’s Renaissance; 3) An Africa of good governance, democracy, respect for human rights, justice and the rule of law; 4) A peaceful and secure Africa; 5) An Africa with a strong cultural identity, common heritage, shared values and ethics; 6) An Africa whose development is people-driven, relying on the potential of African people, especially its women and youth, and caring for children; and 7) Africa as a strong, united and influential global player and partner.

101. Adopted at the 24th AU Summit, 30-31 January 2015.

102. African Union, ‘Report of the Commission on the African Union Agenda 2063: The Africa We Want in 2063’ (Assembly/AU/5(XXIV)A, Assembly of the Union 30-31 January 2015), 12 <http://www.fasngo.org/assets/files/25 GIMAC/Final docs/Report of the Commission.pdf> accessed 6 February 2017. Accordingly, the Ten-year Plan seeks to:

‘identify priority areas, their associated targets / expected outcomes and indicative strategies to stakeholders; highlight the fast track programmes/ projects that will bring quick wins and generate and sustain the interest of the African Citizenry in the African Agenda; assign responsibilities and accountabilities to all stakeholders in the implementation, monitoring and evaluation of the plan and outline the strategies required to ensure resource and capacity availability and sustained citizen’s engagement for plan execution.’

See The African Union Commission, ‘First Ten-year Implementation Plan 2014-2023’ (September 2015), 14 <www.un.org/en/africa/osaa/pdf/au/agenda2063-first10yearimplementation.pdf> accessed 6 February 2017.

103. Xinhua, ‘China, Africa map out strategic vision for win-win cooperation with practical action plan’ Xinhua News Agency (China, 7 December 2015) <http://en.people.cn/n/2015/1207/c90000-8986455.html> accessed 10 December 2015.

104. ibid.

105. ibid. Under this framework, China’s support ‘comprises 5 billion (US) dollars of grant and interest-free loans, 35 billion dollars of preferential loans and export credit, 5 billion dollars of additional capital for the China-Africa Development Fund and the Special Loan for the Development of African SMEs each, and a China-Africa production capacity cooperation fund with the initial capital of 10 billion dollars.’

106. In a speech to the Arab League in Cairo during his Middle East trip in January 2016, China’s president Xi Jinping announced the USD 55 billion deal. This deal includes a 15 billion special loan to Egypt for industrial projects in the Middle East, plus 10 billion commercial loans and equivalent amount of preferential loans to boost energy sector cooperation, and 20 billion to establish a common investment fund for the UAE and Qatar. ‘China inks $55bn Middle East deals’ The National (UAE, 21 January 2016) <www.thenational.ae/world/east-asia/china-inks-55bn-middle-east-deals> accessed 28 January 2016.

107. ibid.

108. Ramo (n 7) 4-5.

109. ibid 5.

110. Halper (n 9) 134.

111. Williamson, ‘Is the ‘Beijing Consensus’ Now Dominant?’ (n 86) 7.

112. Arturo Escobar, Encountering Development: The Making and Unmaking of the Third World (Princeton University Press 1995), 3; Ruth E Gordon and Jon H Sylvester, ‘Deconstructing Development,’ (2004) 22(1) Wisconsin International Law Journal 1, 9-10.

113. Escobar, ibid 29-49. See also, Deepak Nayyar, ‘Globalization and Development Strategies,’ in John Toye (ed), Trade and Development: Directions for the 21st Century (Edward Elgar 2003), 36-38.

114. Wenwei Guan, ‘Development Deficit and Modern Law’s Myth of Origin,’ (2008) 8(1) Global Jurist (Advances), Article 2 (ISSN (Online) 1934-2640, DOI: 10.2202/1934-2640.1248), 4-5.

115. ibid 8-9.

116. Vincent Tucker, ‘The Myth of Development: A Critique of a Eurocentric Discourse,’ in Ronald Munck and Dennis O’Hearn (eds), Critical Development Theory: Contributions to A New Paradigm (Zed Books 1999), 2-5. Tucker argues that the myth of development is the ‘founding myth of the West,’ and it is a totalizing theory that by its nature ‘colonize[s] and subsume[s] other histories and existence rationalities.’ ibid 10-11.

117. ibid 8, 21.

118. ibid 5-6, Tucker argues that:

The cultural discourse provides both the motivating force for and legitimization of the relationship between those nations that saw themselves as ‘advanced,’ ‘civilized,’ and ‘modern’ and others whom they labeled ‘backward,’ ‘primitive’ and ‘traditional.’ The Other in each case is reduced to an object to be appropriated to the consciousness of the subjects of history and progress. Others were denied a history of their own apart from the history of ‘civilization’ and ‘progress.’

119. ibid 1.

120. ibid 2.

121. Emmanuel Lévinas, Totality and Infinity: An Essay on Exteriority (Duquesne University Press 1969), 43.

122. Anthony Carty, ‘From the Right to Economic Self-Determination to the Right to Development: A Crisis in Legal Theory’ (1984) Third World Legal Studies 73, 76. For more details on the intertwining relationship between circular construction of the contractarian legitimacy and the self-sufficient legal voluntarism, see discussion in section II.C below.

123. ibid 80-81.

124. Anthony Carty, ‘Introduction: Post-modern Law,’ in A Carty (ed), Post-modern Law: Enlightenment, Revolution and the Death of Man (Edinburgh University Press 1990), 23.

125. As to consent’s significance to contractarian legitimacy, see discussion in section II.C below.

126. For modern law in general or the development paradigm in particular as an oppressive force of assimilation, see Guan (n 114) 20-22.

127. Tucker (n 116) 10-11.

128. Serra and Stiglitz, ‘The Barcelona Development Agenda’ (n 94) 58-59.

129. Ramo (n 7) 4.

130. ibid 5.

131. Upon WTO accession in 2001, China committed (para 5.1, China’s WTO Accession Protocol (n 59)):

Without prejudice to China’s right to regulate trade in a manner consistent with the WTO Agreement, China shall progressively liberalize the availability and scope of the right to trade, so that, within three years after accession, all enterprises in China shall have the right to trade in all goods throughout the customs territory of China, except for those goods listed in Annex 2A [subject to state trading] …

132. WTO Appellate Body, ‘China — Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (China – Publications and Audiovisual Products)’ (WT/DS363/AB/R, WTO 21 December 2009), para 218.

133. ibid, para 222.

134. Kennedy (n 88) 470.

135. Jerome A Cohen, ‘China’s Legal Reform at the Crossroads,’ (2006) Far Eastern Economic Review 23, 23-27; Stanley B Lubman, Bird in a Cage: Legal Reform in China after Mao (Stanford University Press 1999); Randall Peerenboom, China’s Long March toward Rule of Law (Cambridge University Press 2002); Pitman B Potter, The Chinese Legal System: Globalization and Local Legal Culture (Routledge 2001).

136. Lubman (n 135) 317-318.

137. Donald C Clarke, ‘China’s Legal System and the WTO: Prospects for Compliance’ (2003) 2 Washington University Global Studies Law Review 27, 97-98, 118.

138. Peerenboom (n 135) 558.

139. Jean-Marc Coicaud, Legitimacy and Politics: A Contribution to the Study of Political Right and Political Responsibility (David A Curtis trans, Cambridge University Press 2002), 18; José G Merquior, Rousseau and Weber: Two Studies in the Theory of Legitimacy (Routledge & Kegan Paul 1980), 2.

140. Merquior (n 139) 2.

141. ibid 3-4.

142. According to Merquior, ibid, 3, the concept of deriving governmental legitimacy from consent is due to William of Occam from the first half of the 14th century, which was based on a medieval maxim, quod omnes tangit ab omnibus approbari debet, meaning what touches all must be approved by all.

143. Jost Delbrück, ‘Exercising Public Authority beyond the State: Transnational Democracy and/or Alternative Legitimation Strategies?’ (2003) 10(29) Indiana Journal of Global Legal Studies 29, 32. See also, Louis Henkin, Constitutionalism, Democracy, and Foreign Affairs (Columbia University Press 1990), 5. Henkin suggests:

A legitimate political society is based on the consent of the people, reflected in a social contract among the people to institute a government. The Social Contract generally takes the form of a constitution, which also establishes a framework of government and a blueprint for its institutions.

144. Carty (n 124) 7.

145. ibid.

146. Peter Fitzpatrick, The Mythology of Modern Law (Routledge 1992), 51. Fitzpatrick argues that ‘Enlightenment replaces God with nature.’

147. Rousseau’s social contract theory, for example, offers a solution for free individuals who are looking for a collective association under which each individual, ‘while uniting himself with the others, obeys no one but himself, and remains as free as before.’ See Jean-Jacques Rousseau, The Social Contract (first published 1762, Penguin Books 1968), 60.

148. For a critique of the Enlightenment, see Max Horkheimer and Theodor W Adorno, Dialectic of Enlightenment: Philosophical Fragments (Edmund Jephcott trans, Stanford University Press 2002). According to Horkheimer and Adorno, ibid, 1-5, Enlightenment as a project ‘liberating human beings from fear and installing them as masters’ was meant to ‘dispel myths, to overthrow fantasy with knowledge.’ However, the Enlightenment has failed in defeating myths and become totalitarian, and in fact ‘the myths which fell victim to the Enlightenment were themselves its products.’ See also, Carty (n 124) 2, who argues that ‘the Enlightenment appears to have failed in its own terms.’

149. Michel Foucault, ‘What Is Enlightenment?’ in Paul Rabinow (ed), The Foucault Reader (Pantheon Books 1984), 34-37.

150. According to Foucault, ibid 42-47, modernity, rather than being a period of history, is an attitude:

the ‘will to ‘heroize’ the present,’ an ironical heroization, a form of relationship to the present and with oneself. Therefore, we connect with the Enlightenment only in the constant reactivation of a ‘philosophical ethos,’ a ‘permanent critique of our historical era.’ On the one hand, this philosophical ethos implies a refusal of the ‘blackmail of the Enlightenment,’ but on the other hand as a ‘limit-attitude’ it is a practical critique that ‘takes form of a possible transgression,’ and a ‘work carried out by ourselves upon ourselves as free beings.’

151. Potter (n 135) 2-3.

* LL.B. (Zhongshan University), LL.M. (Peking University), M.A./Ph.D. (University of British Columbia). Assistant Professor at the School of Law, City University of Hong Kong. This article was supported by a School Strategic Research Grant from the School of Law, City University of Hong Kong. The author is very grateful for the generous support. The author also would like to thank the anonymous reviewers for the insightful comments on an earlier draft of the article.

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Asian Journal of Comparative Law
  • ISSN: 2194-6078
  • EISSN: 1932-0205
  • URL: /core/journals/asian-journal-of-comparative-law
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