I Introduction
How does law travel in Inter-Asia? This chapter focuses on traveling law as an empirical event, but it also reflects on prevailing theories in comparative law that explain how law moves from one jurisdiction to another. These include inter alia colonialism and imperialism, law and development, regional integration, and regulatory competition and convergence. Perhaps the dominant paradigm in comparative law for traveling law is the legal transplant, a concept that has generated a sprawling literature.Footnote 1 The point of this chapter is not to say that Inter-Asia is aberrational, for to do so is to commit another act of legal orientalism; instead, the perspective is to use the Inter-Asian Law (IAL) material, and specifically the fraught movements of Chinese law in Inter-Asia, to critically reflect on comparative law conventions.
The approach I take in this chapter is to bring the comparative law theories into conversation with the literature on Inter-Asia and related inquiries from diverse fields including legal history, anthropology, and socio-legal studies. These studies suggest that, first, Inter-Asia is a space marked particularly by a long history of mobility, and one that continues to animate contemporary international commerce.Footnote 2 Mobility may refer to remits, commodities, religions, philosophies, technologies, and pathogens; it may equally apply to law.Footnote 3 Further, whereas Inter-Asia is embedded – historically and contemporaneously – within global trade and migration routes, it has also been populated by outsiders – whether pirates or jihadis – whose participation within those circuits creates contrast and distance, elements that are prerequisites to critical reflection on norms.Footnote 4 Chinese law may also be such an outsider that permits reflecting on taken-for-granted paths.Footnote 5
By bringing together comparative law theories and Inter-Asian concepts, this chapter suggests two corrections to previous ways of thinking about how or why law moves from one jurisdiction to another, and the legal transplant in particular. First, to speak of transplants is to abstract a process from its origins in human labor. Transplants have become fetishized in the comparative law literature in Marx’s original sense as appearing to have a disembodied “objective” character instead of a “social” one, rooted in the intellectual work of people as members of national, regional, or transnational societies.Footnote 6 Second, transplants have come to be conceptualized, for the most part, as the unilateral movement of one state’s law to a recipient, who exists in a dyadic relationship. Such a conceptualization is a stylized ideal, like transplants’ objectification, and removed from reality.
The Chinese law experience in Inter-Asia shows less a hegemon exporting its law and more host states weighing options to be adapted into their legal system, many of which are themselves accretions of laws from multiple systems, including laws originally from Western or colonial powers and Asian neighbors. For its part, the Party-State makes its standards, laws, and institutions available to nondemocratic regimes against the backdrop of their economic dependence on the People’s Republic of China (China or PRC).Footnote 7 Hence, there are both “push” and “pull” factors which shape law’s movements. In short, the corrections to transplants suggest, one, mobility happens because of people and, two, those people engage in law shopping, as an expression of both the diversity of options and their own agency.
Recentering human agency helps shed light on motives of moving law and may explain why and how traveling law reaches its destination or fails to do so. More broadly, Inter-Asia may have its own distinct features, including alt-colonial histories, diaspora, megaregional integration (e.g., the “ASEAN way” and the Belt and Road Initiative’s “win–win”), “legal cooperation,” transnational networks, and law-in-policy diffusion. This chapter endeavors to strike a balance between observing continuities in the methods and mechanisms of traveling law between different legal donors (Anglo-American, Western European, Japanese, etc.) and the particularities, novelties, and autochthonous development patterns of China’s current moment, that is, between commonalities (if not universals) and differences.
A number of secondary questions follow: One, does Chinese law need to travel in Inter-Asia, instead of Chinese businesses relying on, for example, English or American law? If it does, then why, how, and to where? What are the arguments for and against Chinese law’s travels? Two, does the movement of Chinese law in Inter-Asia require a rethinking of established theories of comparative law? Three, what are the implications for Chinese law and for host jurisdictions?
To preview the findings and evidence of this chapter, Chinese law is moving (albeit slowly and hesitantly) to other jurisdictions, and the way it does so both evinces long-standing theories but also requires some degree of re-tooling. There are a range of factors that determine why Chinese law travels and whether it does so smoothly: who does the work of moving Chinese law, why and how; the relationship between the PRC and the recipient state (i.e., historical, commercial, and cultural ties); the needs and interests of both donor and host; and the inter-systemic compatibility between the two sides (i.e., legal systems, economic systems, political systems). This chapter applies this range to several case studies: Cambodia, Uzbekistan, and Vietnam. The case studies draw on the emerging literature of “Chinese, Law and Development,” including original fieldwork and studies to date, as well as related literatures, to take stock of the field.
The picture that emerges from these case studies is that the PRC, a non-traditional donor, provides normative resources for developing states, especially in emerging areas of law where the PRC may have a first-comer advantage. Yet despite the centrality of “development” (fazhan) and the notion of “Chinese-style modernization” (Zhongguoshi xiandaihua), in the Party-State’s foreign policy, China may be less a whole model of and for development and more an assemblage of laws, policies, and practices that may be borrowed, repurposed, and adapted. To be clear, law is only one aspect of China’s normative appeal, and regulatory regimes, political campaigns, and technical and digital standards may have more “pull” than law in the long run.Footnote 8 Ultimately, Chinese law may be fragile and uncertain in its extraterritorial travels, and a focus on the transnational networks that support the movement of law demonstrates its contingency.
II China as Non-Traditional Legal Donor
Whereas the PRC has emerged as one regional power in Asia, a threshold question is whether the Party-State needs or wants its law to travel to other jurisdictions. The argument for traveling Chinese law is that such movement may confer commercial, geostrategic, and symbolic advantages. Commercially, in addition to the increasing use of PRC law in international business transactions as well as PRC courts and arbitration to resolve disputes that arise in the course thereof, Chinese companies (and their lawyers) may have greater familiarity with such sources and institutions of law.
Further, to the extent that the Party-State can supply the raw materials for legal development in developing countries, such accomplishments are a “win” for the PRC and give some credence to its promotion of its own conception of development overseas. Geostrategically, whether China can truly become a legal hub for resolving commercial disputes, a center for legal education, and a jurisdiction for addressing not just national, but also intra-regional, and transnational legal problems would significantly boost the country’s economic, diplomatic, and potentially military relations with other states.
In addition to material benefits and facilitation of foreign policy, building a market for one’s law can raise the profile of a donor state on the world stage and communicate its sophistication and attractiveness to global audiences. Hence, there are signaling effects to China’s would-be law exportation.
The argument against exporting Chinese law is that China is not a legal superpower in the sense of the United States (US) or the United Kingdom (UK) and does not need to be. It can rely on preexisting legal infrastructures (e.g., English law as governing law of its contracts or International Criminal Court (ICC) arbitration for dispute resolution), rather than establish its own alternatives. While there is merit to the con argument, that argument has largely been abandoned in the age of Chinese hyper-nationalism, wherein the promotion of Chinese law overseas has become a building block of foreign policy.Footnote 9 This is particularly so under the current “foreign-related ‘rule of law’” (shewai fazhi) campaign.Footnote 10
Another threshold question, beyond the subjective aims of Chinese nationalism, is whether Chinese law is objectively different from the law of other jurisdictions. While there are numerous examples of China borrowing from other legal systems, for example, Chinese company law has increasingly assumed features familiar to US corporate law scholars and Chinese criminal law borrows from German law,Footnote 11 demonstrating the palimpsestic nature of Chinese law,Footnote 12 there are undoubtedly distinct features of the Chinese legal system that warrant attention. A few of the more noteworthy ones include: its role in encoding aspects of the Chinese “socialist market” economy,Footnote 13 the centrality of the administrative state (and corresponding inversion of norms between, on the one hand, the non-justiciable PRC Constitution and, on the other hand, local administrative regulations having considerable influence in the everyday lives of PRC citizens),Footnote 14 and, perhaps most glaringly, the predominant position of the Chinese Communist Party (CCP) as either formally reflected in the law or as occupying a status above the law.Footnote 15
For most of its modern history, China has been a recipient of traveling law from other jurisdictions, and while such trajectories continue to this day, China has in recent years started showcasing its own laws, policies, and regulations to countries in the Global South. Historically, the centers of European civil law, namely, France, Germany, and the common law metropoles, the UK and the US, actively engaged in different types of law promotion beyond their borders. These types run the gamut from colonialism, the most violent imposition of foreign law, to a range of projects born out of the foreign policy needs of advanced economies (e.g., law and development, legal development assistance, “rule of law” advocacy, etc.) to more potentially innocuous versions pursuant to the emergence of regional and megaregional regulations, as well as international law.Footnote 16 China has experienced most all of these law exports as a recipient country; it is only recently, however, that it has begun initiatives to offer its own experience in law and development for audiences outside of China, and principally, Inter-Asia.
As with Japan’s approach to providing legal development assistance mainly to its own former colonial possessions in Southeast Asia, China’s entry into the legal donation market is relatively “light-touch” compared to the European or Anglo-American versions. Whereas Western promoters of law and development have sought to introduce constitutional, legislative, and regulatory reform in host states, including designing new legal institutions, whether courts or law schools, the Chinese approach is much more muted. On the supply side, and pursuant to the “foreign-related ‘rule of law’ campaign,” the main institutions involved in what in the Chinese lexicon is called “legal cooperation” (falü hezuo or falü jiaoliu) are the Supreme People’s Court, Ministry of Justice, All China Lawyers’ Association, China Law Society, law schools, law firms, arbitration commissions, and other members of the legal industry. These legal and judicial experts build platforms for learning and exchange with counterparts from other countries in Asia and beyond. Often such platforms take the form of international conferences or symposia organized around themes like “risk mitigation for foreign investment” or “commercial dispute resolution.” These platforms further build transnational networks that continue legal exchanges.
At the same time, China has sought to bring more foreign lawyers, judges, and arbitrators from host states to China for training, workshops, and continuing education. The main goals from the Chinese perspective are both practical and geostrategic. As to the former, the Chinese judiciary is concerned about the enforceability of PRC courts’ judgments overseas and so is actively working with judiciaries in host states to agree to mechanisms, including soft and hard law, to address that concern. As to the latter, the CCP and the legal and judicial organs of the state have an interest in “good-telling the story of Chinese rule of law” (jianghao Zhongguo fazhi gushi),Footnote 17 to increase the understanding of the Chinese legal system to foreign lawyers, judges, and arbitrators to suggest that Chinese law has generated solutions to socioeconomic problems that other developing states can consult for their own developmental needs. Throughout its engagement with other states, Chinese representatives are mindful to avoid ethnocentric positions and statements, and while they may not always be successful in practice, their cultural sensitivity (at least at the elite level) suggests an awareness that may not have characterized past legal donors.Footnote 18
In addition to its bilateral and multilateral efforts vis-à-vis host states, China has become an active member of international law organizations as part of its broader effort to shape international law. On the public international law side, China is a vocal participant in the UN system and has sought to introduce its own definitions of human rights, including the “right to development” into UN resolutions. On the private international law side, including trade and investment, China has embraced a number of international organizations, including the World Trade Organization and the United Nations Commission on International Trade Law as well as the United Nations Conference on Trade and Development. China has sought to master the procedural rules of these organizations and to promote its developmental approach through them. Whereas in many cases, the Party-State was not one of the original designers of these organizations, it has studied them as an insider and is thus positioned to shape norms from within.Footnote 19 In summary, China has adapted tools of sending law and policy used by previous legal donors and has also innovated in its outreach to host states and international organizations.
III Chinese Law as a Mirror to Comparative Law Theory
Does the movement of Chinese law require rethinking conventional comparative law theories and the categories they employ? There are grounds to suggest that given the nature of China’s relationships with other states in Inter-Asia and the international legal order, some aspects of China’s legal interactions require new or at least partially revised explanatory models. First and foremost, while the idealized “tributary system”Footnote 20 has since undergone revision by historians, and it is generally agreed that imperial China exercised military domination in border zones, Chinese rulers did not engage in the kind of the colonization of distant territories that characterized the age of imperialism.Footnote 21
Second and subsequently, contemporary China is not a (neo)colonial and military power as traditionally understood, at least based on the familiar examples of Euro-American empires, although based on imperial China’s long interactions with bordering states, such relationships are contentious and may touch on sensitive issues involving territorial and judicial sovereignty. As a result, China’s relationships with recipient states may present a different paradigm. The PRC may be closer to what historians have called “informal empire”Footnote 22 through its trade imbalances and lending practices. The implications for traveling Chinese law are that its movements are perhaps bargained for but they are not forced, that is, the home state cannot coerce the recipient to adopt its law at least through traditional military force. To date, the Party-State couples the building of regional and global frameworks (e.g., Shanghai Cooperation Organization (SCO), Belt and Road Initiative, Asian Infrastructure and Investment Bank, Global Development Initiative, Global Security Initiative, etc.) with government-to-government relations that sometimes show severe asymmetries.
Hence, different types of Chinese actors, whether governmental, corporate, private, or semi-private, are engaged in different types of Chinese law promotion. Multilaterally, within its new frameworks, the Party-State may supply its own laws and standards for novel legal infrastructures. Consensus (or its appearance) may be the chief aim of such efforts. Bilaterally, through international investment agreements and diplomacy, the Party-State may bring its weight as investor-lender to bear on transactional issues. State-owned enterprises (SOEs) may, in particular, benefit from the Party-State’s resources. These relationships are characterized by economic coercion. At a more granular level, counterparties may be attracted to the Chinese approach to development, including questions of law and policy, as it presents an “alternative” to familiar ones, including those of the International Monetary Fund (IMF) and World Bank. Such interactions are characterized by inducement. While the Party-State may not be the originator of these strategies for law promotion, it deploys them in ways that differ from Anglo-American predecessors.
While recognizing that China – as the donor – may exercise pressure on its trade partners, its “softer” strategies to date to promote its law, including legal and judicial education, training, and networks, open the door to balancing the Party-State’s incentives and aims with those of its partners. “Law’s Crossings” will provide a series of examples where Chinese law or regulation traveled to another jurisdiction with varying degrees of success. In particular, the analysis points to transnational networks that may function to migrate law from China to host states, but not always unproblematically.
IV Law’s Crossings
Instances of the mobility of Chinese law are not common. The reasons for this have to do with both China’s foreign policies (which, historically, were “non-interventionist” although China’s commitment to non-intervention appears to be eroding in the course of its increasing economic integration in host states) and inherent qualities of the law (i.e., Chinese law may not offer optimal modeling, although, depending on the area of law, Chinese law may offer host states relatively low-cost solutions to emerging problems). Nonetheless, there have been a number of cases where Chinese law has traveled, to varying degrees, in Inter-Asia, including to Cambodia, Uzbekistan, and Vietnam. For each case, I explain how and why Chinese law was adopted by another jurisdiction, with particular attention to law shopping and the movers of law and suggest reasons as to why outcomes differ.
A. Cambodia
Among the countries that are the most economically dependent on China, Cambodia stands out. That was not always the case. In the early 1990s, Cambodia was the poster child for post-conflict state building. The United Nations Transitional Authority in Cambodia helped the country write its 1993 Constitution, considered “one of the most extraordinary chapters in the efforts of the international community to promote democratic transitions in the post-Cold War era.”Footnote 23 However, contrary to expectations, the government, led by Hun Sen’s Cambodian People’s Party (CPP), did not promote democratization. Instead, the CPP cracked down on opposition parties starting in 2013 and ushered in a period of democratic decline. As a result, Western aid and investment in the country plummeted. While Cambodia still looks to France, its former colonizer for law, that relationship has thinned. Since these changes, China has emerged as the dominant trade and investment partner of the country.Footnote 24
There is, of course, a long history between China and Cambodia meditated by diaspora, much of it from southern China. Cambodian families up and down the class spectrum have deep ties to China. Many Cambodians speak Chinese, and sometimes as well as Khmer. Transactional life in Cambodia shares affinities, as well, with Chinese preferences for doing business. This old diaspora is encountering a newer Chinese diaspora. The new diaspora is both geographically more diffuse than the old one (i.e., it is not necessarily limited to southern China) and more diverse socioeconomically. The new diaspora includes both high-net-worth individuals who find ways to purchase real estate in Cambodia (by law, non-Cambodians are prohibited from doing so) and also members of the criminal underworld, who have caused high rates of crime in the country.Footnote 25 As a result, there are different views in Cambodia about the increasing Chinese presence, so while the China–Cambodian relationship cannot be called uniform, it is certainly robust.
Against this backdrop of economic coupling and social ties, it is perhaps little wonder that the government-to-government, or, more specifically, party-to-party relationship is as strong as it is.Footnote 26 Cambodian judges, political elite, and, especially, members of the CPP are active participants in China-led networks, some of which are bilateral and others multilateral.Footnote 27 As a result of this back-and-forth, ideas on law and governance also travel between the two countries. Benjamin Lawrence has identified two examples of ideas migrating from China to Cambodia through such elite networks including constitutional reform and representative politics.Footnote 28 As to the former, Lawrence noted the strong similarity between Article 49 of the Cambodian Constitution, as amended in 2018, and Article 54 of the Chinese Constitution.Footnote 29 Specifically, Article 49 has been amended to read: “Every Khmer citizen shall put the national interest first and shall not perform any activities, either directly or indirectly, which would affect the interests of the Kingdom of Cambodia and Khmer citizens.”Footnote 30 Article 54 of the Chinese Constitution reads, “Citizens of the People’s Republic of China shall have the obligation to safeguard the security, honor and interests of the motherland; they must not behave in any way that endangers the motherland’s security, honor or interests.”Footnote 31
As a result of the amendment, Cambodia joins China as one of only two countries in the world to include a specific prohibition against actions by citizens that can be construed as having a negative impact on the interests of the state. Lawrence is cautious in his conclusion about direct causation, stating, “while it is difficult to empirically demonstrate that this convergence resulted from an intentional act of borrowing from China, such convergence between the two articles is indicative of a concerted act of borrowing by Cambodia, particularly given the context of the increasingly close relationship between the two countries.”Footnote 32 However, the probability of a direct borrowing becomes more likely in the second congruence observed by Lawrence.
In addition to the constitutional amendment, another change introduced in 2018 was the Supreme Council for Consultation and Recommendation (SCCR). Prime Minister Hun Sen created the SCCR by way of royal decree to establish a body to represent members of opposition political parties. As a consultative body, the SCCR convenes twice a year and submits reports to the prime minister on pressing issues requiring legislative attention, including land disputes, corruption, and environmental pollution. By 2019, the SCCR had thirty members representing fifteen political parties.Footnote 33 While the SCCR provides an appearance of multi-party representation, critics have argued that it is largely illusory as Hun Sen dominates the mandate of the SCCR.Footnote 34 Further, Hun Sen had disbanded the major opposition party and thereby denied formal opposition in the National Assembly, the main legislative body. Lawrence notes that the SCCR is the functional equivalent to China’s People’s Political Consultative Conference (CPPCC), also a consultative body that purports to represent those from political parties other than the CCP including religious and ethnic minority leaders.Footnote 35 The CPPCC, like the SCCR, provides recommendations for legislative and policy attention. However, critics have attacked the CPPCC as nothing more than an ornament of the ruling party.Footnote 36
In terms of the issue of causality, members of the SCCR have made the explicit comparison between their representative body and the CPPCC. In particular, two leading members of the SCCR made the connection explicit in interviews with Lawrence in 2019.Footnote 37 Additionally, Chinese state media quoted a SCCR delegate who stated, “the CPPCC and the SCCR have similar roles,” and further represented that the SCCR Secretariat Chhim Phal Virun embraced any cooperation with the CPPCC, stating that the SCCR “want[s] to learn about the CPPCC’s contributions to supporting China’s anti-corruption drive.”Footnote 38 While statements about functional equivalence or even of intent of one body to emulate another are not dispositive, circumstantial evidence suggests an ongoing back-and-forth between CPP and CCP leaders on questions of squaring representative politics with authoritarian rule.
It is important to underscore that Cambodia, like many developing states, is eclectic and non-discriminatory in its borrowing of law from other states. Cambodia, for example, has adapted law from France, Japan, Singapore, Thailand, and elsewhere. China, thus, is far from being the sole inspiration. Reflecting some of the insight from the literature on Inter-Asia, mobility is usually not unidirectional but, rather, has multiple origins and trajectories. Cambodia’s recent incorporation of Chinese law and institutions into its own framework occurs in this context of competing legal donors. While it is true at a general level that the star of France, as the former colonial power in Cambodia, is waning, and that China’s profile is rising, this is not necessarily an inevitable or linear process.
B. Uzbekistan
Uzbekistan, like other lower-middle-income countries, seeks ties with multiple trade and security partners, rather than becoming dependent on any one country; still, China’s influence in the country – as it is in the Central Asian region, more generally – is growing.Footnote 39 Given the history of the region, the dominant influence on legal development in the region has been Russia.Footnote 40 Nonetheless, just as Uzbekistan has looked to China as a counterweight to overreliance on Russia and has sought out economic cooperation with the PRC since 1991, so too is it starting to esteem the PRC legal system as a source for legal development, particularly in emerging areas such as data governance and cyber security. In this regard, Chinese law has traveled to Uzbekistan through China’s own brand of “legal cooperation.” In turn, and evincing some of the recursivity of Inter-Asian mobility, Uzbekistan has been an active member of the Chinese-led SCO, which is proposing an alternate body of international law.Footnote 41
Uzbekistan, like its neighbors, has sought to cultivate positive relationships with China as a counterweight to overdependence on Russia. This strategy is reflected both in Uzbekistan’s bilateral and multilateral relationships with the PRC. During the presidency of Islam Karimov, the first President of the Republic of Uzbekistan, from 1991 to 2016, the country sought a cautious opening to Chinese trade, while limiting the inflow of Chinese laborers and migrants. The focus during that period was more on Uzbekistan’s domestic economic modernization than anything else.Footnote 42 Starting in 2001, with the establishment of the SCO, Uzbekistan’s role became more diversified as the region sought cooperation on, first, security, and, subsequently, economic integration. The second most resource-rich country in the region after Kazakhstan, Uzbekistan’s role in the SCO was important to Chinese policymakers, and the composition of the SCO, given the country’s rich reserves of oil and gas.Footnote 43 As an example of China and its allies, including Uzbekistan, working to shape international law, in 2011, the SCO, plus Uzbekistan, Russia, and Tajikistan submitted a draft International Code of Conduct for Information Security to the United Nations to formalize new cyber governance rules. Whereas the proposal failed, in 2015, those same countries, joined by Kazakhstan and Kyrgyzstan proposed a revised version that the UN approved in the form of a cybercrime resolution entitled “Countering the Use of Information and Communication Technologies for Criminal Purposes.”Footnote 44
In 2019, the PRC hosted officials from thirty-six countries along the BRI for large-scale training and seminars on cyberspace, big data, and media management. Later that year, Uzbekistan introduced its Data Protection Law and a set of executive bylaws such as Presidential decrees 4452 on IT control and protection, and 117 on development of IT communication technologies. Whereas Uzbekistan relies on several foreign partners for legal assistance on cybersecurity law, the Ministry of Justice has highlighted the role of legal cooperation with China on cyber issues as one of its most effective partnerships.Footnote 45 Although very little is written in Uzbek, Russian, Chinese, or English on the topic of Sino-Uzbek legal cooperation in cyber, interviews with Uzbek legal practitioners and scholars suggest that Uzbekistan’s special inter-ministerial working groups, created for legislative drafting, indeed borrow explicitly from China’s relevant laws for their conceptual frameworks.Footnote 46
Data governance law is one area where China has a first-cover advantage, an advantage that has not gone unnoticed by China’s international business partners. China’s growing body of law on data governance, including its 2017 Cybersecurity Law, 2021 Data Security Law, and 2021 Personal Information Protection Law, are generally deemed to be more comprehensive than any analogous legislation in the US, for example, and a regime that may provide an alternative to the European Union (EU)’s General Data Protection Regulation. Generally, experts view three competing regimes, that of China, the US, and the EU, each providing a different model of data governance, even if there is overlap and borrowing between the regimes.Footnote 47 China’s version of “data sovereignty” is particularly attractive to middle-income countries that are shopping for legal material, yet the relationship is less one of direct transplantation than receptivity to underlying data governance principles of governmental and territorial control over data that materialize in highly different and context-dependent domestic data laws.Footnote 48 Like the CPP members in the first example, the Uzbek officials look to the Chinese laws not out of a kind of obeyance, but rather because they want to optimize their own digital development. The networks that facilitate such exchange are also not unilateral as some of those ties overlap with those of the SCO, meaning that multiple inputs generate legal and regulatory changes for both the multilateral organization and its member states.
C. Vietnam
A complex set of historical, foreign policy, and geo-economic factors shape Vietnam’s relationship with China, a relationship that, in turn, affects the movement of law between the two economies. On the one hand, Vietnam and China share a long history of mutual exchange given their geographic, cultural, and commercial proximity. In addition to their both belonging to, broadly speaking, the greater Sinosphere and the long interpenetration of their markets, they both adopted versions of socialism in the second half of the twentieth century. As a result of these commonalities, Vietnam has a long history of borrowing legal ideas from China. On the other hand, due to both imperial China’s wars with Vietnam and more recent border conflicts, Vietnamese appreciation for Chinese cultural innovation is tempered by distrust and even periodic animosity toward Chinese. The relationship is multifaceted and defies simple characterizations. Hence, the adoption of Chinese law is not frictionless and has occasionally been thwarted by widely held beliefs that deepened engagement with China may erode Vietnam’s sovereignty. In short, Vietnam likes to keep China close, but not too close, and this affects the movement of law.
Vietnam and its relationship with China shows some of the complexity in using conventional categories of “empire” and “colonialism” to describe China’s engagement with neighboring countries. The Sino-Vietnamese relationship is, first, noteworthy for its duration and the extent of the thick exchange between the countries through trade and cross-border commerce. This exchange has included the sharing of ideas about law, justice, and order. Scholars, officials, and traders brought Neo-Confucian ideas about law and legality from China to Vietnam as early as the fifteenth century.Footnote 49 Fast forwarding to the planned economy era in the mid twentieth century, the Union of Soviet Socialist Republics (USSR) and not China was the main model for modern Vietnam’s legal development.Footnote 50 Specifically, the Democratic Republic of Vietnam (DRV) and later the Socialist Republic of Vietnam (SRV) looked to the USSR for structuring its public law.Footnote 51 Yet even during this time, the PRC played a role as an intermediary or source of “second-order” legal borrowing as evinced by the DRV’s 1953 Law on Land Reforms, which was written with the instruction of Chinese advisors.Footnote 52 Hence, even during this formative period, the DRV looked to different models for optimal sources of legal design.
The long history of “looking over the border” at the other country’s legal and political reforms serves as precedent to two more recent examples of Chinese law and policy traveling from China to Vietnam: the 2018 Special Economic Zone (SEZ) bill and the 2018 Cybersecurity Law.Footnote 53 These examples show that the adaptation of Chinese law and policy to Vietnam is complicated by a range of factors, including popular distrust of China in Vietnam and the SRV’s efforts to build its own models that diverge from China’s. The outcomes of the two examples differ: The SEZ bill eventually failed, and the Cybersecurity Law passed but in such a way that demonstrates both congruence with but also differentiation from Chinese law. A constant in studying these two examples (a constant that may be applied to the study of China’s legal exchanges more generally) is that data on these law crossings are extremely hard to collect as information is generally not made public and insiders for the most part are not willing to share information with researchers.
The first example stems from emulation of China’s industrial policy of establishing SEZs to concentrate capital and boost domestic growth. Although China did not invent the SEZ, China’s SEZs, most famously, Shenzhen, have become the exemplar of such pro-business sub-national jurisdictions, throughout the world.Footnote 54 China began assisting other developing countries build their own SEZs in the 2000s, and today there are an untold number of SEZs, as well as free trade zones, industrial parks, and other variants, that the Chinese have built throughout Southeast Asia, Africa, and elsewhere.Footnote 55 Along with the Chinese-invested hard infrastructure of the zones and parks, there is also the soft infrastructure of the regulatory framework for such areas. This soft infrastructure includes the legislative and regulatory design for tariffs, customs, tax, corporate, labor rules, and other trade and investment rules that facilitate the entry of foreign direct investment and outbound capital.Footnote 56 China is perhaps less well known for this soft infrastructure, and yet it has also caught the attention of other states and been the source for emulation.
The SRV had floated the idea of SEZs since at least the late 1990s but only gained full backing from the Politburo, the nerve center of the Communist Party of Vietnam (CPV), from 2012 to 2013.Footnote 57 As a result, the government started drafting the SEZ Bill in 2014 and it was forwarded to the National Assembly for deliberation in 2017. The drafters studied examples from a number of other jurisdictions but learned in particular from the example of China.Footnote 58 Furthermore, Chinese experts from the China Centre for Special Economic Zones Research, based at Shenzhen University, provide technical advice and consultation. This took the form of several events including multi-day visits, fieldwork activities, two-week training programs, workshops, and at least one international conference.Footnote 59 The Chinese provided technical assistance, including on the legal framework for the Vietnamese SEZs, with Chinese experts from multiple institutions providing different types and levels of support throughout the process of drafting the legislation.Footnote 60
The SEZ Bill, however, generated a tempest of criticism in the public sphere in Vietnam. Although the criticisms varied and were voiced by different constituencies, an underlying concern was that the SEZ Bill gave preferential treatment to Chinese investors, threatened Vietnam’s national security, and provided “negative lessons” from China to Vietnam across a range of important policy areas, from labor to land use management.Footnote 61 Objections spilled out of legislative halls to the streets and there were public demonstrations aimed against Chinese investors and their influence.Footnote 62 The SEZ Bill thus fell afoul of latent anti-Chinese sentiment in the Vietnamese public, and the cascading protest ultimately sank the bill.Footnote 63
Whereas the SEZ Bill shows how traveling Chinese law and policy may not always reach its destination, the 2018 Cybersecurity Law, which also borrowed from the Chinese template, shows more success. As mentioned in the case of Uzbekistan, China has developed its own framework for data governance laws and cybersecurity laws and one that is viewed broadly as an alternative to those of the US and EU. This framework has attracted the attention of other nondemocratic regimes, including the CPV. Vietnam enjoys an advanced ecosystem of digital infrastructure including 5G and a high penetration of both internet and mobile phone use throughout the population. The Vietnamese Government argued that the Cybersecurity Law was essential to safeguard “national security, social order and safety, or the lawful rights and interests of agencies, organizations, and individuals.”Footnote 64 As shown by Bui Ngoc Son and Jye-An Lee, the Cybersecurity Law was controversial; however, as critics believed, it essentially copied China’s Cybersecurity Law and would infringe individual freedom and commercial confidentiality.Footnote 65 Ultimately, the law was passed over objections.
To begin with the differences between the Vietnamese and Chinese digital ecosystems, whereas both the Vietnamese and Chinese governments tightly regulate the Internet, social media platforms, and e-commerce in their respective jurisdictions, there is nonetheless generally a higher level of user freedom in Vietnam. Vietnam, for instance, does not (yet) feature a “great firewall” as does China.Footnote 66 Perhaps more fundamentally, as Bui and Lee argue, the Chinese regulatory regime valorizes cyber sovereignty and which has transmorphed into “data sovereignty” in its most recent legislation, whereas the Vietnamese cyber authorities privilege a much more universalist understanding of data control that does not prioritize data sovereignty over integration into a global network.Footnote 67 Consequently, the two laws show convergence, and likely Vietnamese borrowing across a set of important issues, including the regulation of banned acts, network operators, critical infrastructure, data localization, and personal data.Footnote 68 However, the two laws differ in terms of both their technological architecture and their privileging data sovereignty versus more open versions of data management.Footnote 69
Importantly, the doers of law’s movement in the case of the Chinese Cybersecurity Law’s influence on the Vietnamese Cybersecurity Law are difficult to identify with any degree of certainty. This is perhaps not surprising given that the Cybersecurity Law directly involves national security in a way that the SEZ bill may not. The most exhaustive comparative study of the two laws to date, written by Bui and Lee, does not address this point. There are some impressions available via public petitions. Vietnamese bloggers for example have claimed that “the Vietnamese cybersecurity police are trained in China … We cannot rule out that China has helped Vietnam to design and equip its cybersecurity infrastructure.”Footnote 70 Still, without more authoritative sources, it is hard to distinguish facts from conspiracy theories. Nonetheless, in part fueled by concerns of Chinese influence, protests against the Cybersecurity Law dovetailed with those against the SEZ Bill, and in fact, protestors rallied against the two proposed pieces of legislation together. Ultimately, the Cybersecurity Law was passed – overwhelmingly so – despite the protests, unlike the SEZ Bill. The diverging result is perhaps explained by the fact that the Vietnamese government regards the Internet and social media as, simply, too important and could not make concessions.Footnote 71
V Conclusion: Explaining Outcomes
The Party-State is building transnational networks of legal experts, lawyers, and consultants throughout Inter-Asia. Chinese law, as a result, is becoming integrated into the domestic and transnational law of the region. China is both sending its legal technicians out to recipient countries to provide advice on legislative drafting and institutional design and judicial and legal elites from host states to attend trainings and workshops in China to study Chinese legislation and associated regulations. The Party-State did not invent transnational networks; the Americans, British, French, German, and Japanese, have all been building their own versions for decades. These networks consist of law schools and continuing legal education, inter-judicial dialogue, international law firms, trainings led by judicial officials and civil society members, alumni organizations, and other platforms. The Chinese approach borrows from these preceding ones; for example, Chinese law schools recruit overseas students. Notably, at least up until the COVID-19 pandemic, such programs saw an increase in the proportion of foreign students from developing countries throughout Asia, Africa, and even Latin American relative to students from the West, a reflection of the geopolitics of education.
Nonetheless, there are historical and structural reasons that suggest that the Chinese approach to developing transnational networks through “legal cooperation” is different. Notably, China lacks the military power that was formative of colonial relationships and which has undergirded much of the modern geography of transnational mobility, whether in the fields of education, industry, or trade. Rather, China’s attraction lies in its economic model. China has, at times, struggled to tell the story of Chinese law in its economic development. The current emphasis on “foreign-related ‘rule of law’,” part of which mandates the “good-telling the story of Chinese rule of law” is meant to address this gap, although time will tell whether it can gain traction with foreign audiences.Footnote 72
Along these lines, Chinese law may be significantly modified in transit or not always reach its destination altogether. The above cases of Cambodia, Uzbekistan, and Vietnam have different outcomes which require explanation. The Cambodian government has begun looking to China for constitutional law reform and legal institutions without noticeable problems. Yet doing so is more a reflection of Cambodia’s utilitarianism and ecumenism than any Chinese hegemony. Weak states in Inter-Asia attempt to balance the interests of competing powers, including legal donors.Footnote 73 Such optionality benefits their legal development as they may reap the rewards of a competitive market in traveling laws, although optionality may not always lead to optimality.
Cambodia is perhaps the best example of this. A (French) civil law system, Cambodia has also borrowed heavily from both Anglo-American common law and Japanese civil law. It further looks to Singapore, Thailand, and other Southeast Asian states. Chinese law is the most recent entrant to its legal eclecticism. Political and legal elites in Cambodia are content shopping around for laws including those of the PRC. Popular views toward China vary, and yet concerns are, to date, insufficient to thwart Chinese-inspired law-making.
Likewise, Uzbekistan, a country with a stronger economy than Cambodia, also seeks to straddle the Russia–China divide, borrowing the most optimal attributes from both systems. Under the current Uzbek leadership, China’s approach to data governance benefits the regime and, as with Cambodia, civil society cannot provide a check to governmental action, especially in the field of cybersecurity. Uzbekistan may continue to absorb Russian law for certain legal fields and look to China as an innovator in others. While doing so, it will endeavor not to appear too close to either, although China still lags Russia in its influence in Central Asia.
For Vietnam, a country with a booming export-led economy, it must balance its ties to China with its strategic links with the US and, as such, walks a fine line between its economic interdependence with China and popular perceptions that it is ceding Vietnamese sovereignty toward the Chinese. The SEZ Bill and Cybersecurity Law fall on opposite sides of this divide, the former failing to pass through popular and formal vetting and the latter ultimately attaining passage. The public’s concerns about Chinese influence were enough to thwart the SEZ Bill, but given that governing cyberspace is an existential concern for the regime, the government would brook no challenge to the law’s passing. It is conceivable that the government gave up the SEZ Bill, as a concession, to get the Cybersecurity Law through the National Assembly.
The three cases afford an opportunity to reasses some of the conventional thinking about how and why law moves from one jurisdiction to another. Specifically, the Chinese preference for or tendency toward networks spotlights the human actors who push and pull law. In all three cases, politicians, lawyers, and judges travel to China to study Chinese experience in law and development. In the Vietnam case, not only is training held in China, but also Chinese legal technicians travel to Vietnam to provide onsite consultation. It is possible that Chinese experts have also traveled to Cambodia and Uzbekistan, as well. Amid this traveling to and from, legal and judicial elite are not just transporting ideas about legal reform and innovation, but they are molding them to their respective agendas, ideologies, and cognitive frames. Traveling is, after all, motion, and motion is synonymous with change. As legal precepts, constitutional provisions, grounding principles, and representative institutions travel, they are also being modified and tailored to individual contexts through the specific lenses of laws’ travelers. More focus on the aspirations, motives, and incentives of the doers of traveling law, perhaps through micro-histories or ethnographies, may explain how and why adaptations happen and under what conditions they work or fail to do so, or, in other words, why transplants fail.Footnote 74
In terms of the study of China-beyond-China, the case studies suggest that Inter-Asia features several crisscrossing legal circuits that inform any number of law’s movements, whether for legal development assistance or international commerce, collective security, and related questions of regional importance. China does not act on a blank slate. Proponents of Chinese law’s popularization abroad must grapple with not only domestic legal environments of host states but also regional and even global dynamics, and both the domestic and regional are shaped, in part, by other competing legal traditions.Footnote 75 Inter-Asia is not necessarily unique in the matrices of competing legal traditions that shape domestic and regional legal reforms.Footnote 76 Yet, given its colonial and imperial legacies, informal and formal empires, and rising economic superpowers, Inter-Asia may be a site of particularly intense legal interaction. Whether it’s leave-no-stone-unturned Cambodian law, Uzbek law at the Eurasian cross-roads of Russian and Chinese law, or Vietnamese law, with its equal parts French civil law and Soviet law, and which must respond to US–China tensions, host countries are simultaneously constrained by and potentially enabled developmentally by the multiple legal influences in which they are embedded.
The multiple sourcing of law by low-income and middle-income states in Inter-Asia has further implications for political developments in the region. The fact that China supplies legal and regulatory tools that nondemocratic states can adopt into their own frameworks suggests that such offerings may embolden such regimes leading to further repression of the population. The nature of China’s offerings, whether personal data law, cybersecurity, or constitutional provisions, which prohibit alleged “anti-state” acts, all point to such an outcome. Such possibilities have generated concerns about “authoritarian international law” or China’s “making the world safe for autocracy.”Footnote 77 These are valid concerns, yet such thinking occasionally elides the fact that Chinese law can be a poor traveler and miss its landing. The SEZ Bill in Vietnam is one such casualty.Footnote 78 There is real fragility in Chinese law’s portability into other states, both on the China side and the host state side. Most recently, the November 2022 “white paper” protests led by Chinese college students clamoring for “fazhi” (rule of law) and “minzhu“ (democracy) illustrate the former, although the regime’s ability to clamp down on such protests suggests the opposite – its resilience. Similarly, contentious politics in would-be host states evince uncertainty on that side. While the spread of Chinese law calls for diligence, it equally requires calibrated analysis.
Further, enhancing repression in host states and those states’ being beholden to China are two different outcomes and should not be conflated. While China may be deepening the economic dependencies of weaker states throughout Inter-Asia, such states may also continue to source law from other donor states, including China’s competitors. One traveling Chinese law does not a tributary state make. Nonetheless, the fact that China has entered the competitive field of law and development should make the more traditional donors, including the US, take notice. While China may borrow from previous approaches, its methods and ends may also show degrees of difference, even novelty. While these may struggle in the short term, and their viability depends on a number of variables, including the extent to which China can remain attractive as an exemplar of development to other states in the region, it is plausible they will gain in popularity in the long term, particularly in Inter-Asia.
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