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On the Marginality, Comprehensiveness, and Independence of International Economic Law Discipline

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Abstract

There is no consensus among domestic and foreign law scholars regarding the exact connotation and denotation of the science of international economic law, among which a narrow and broad approach of interpretation can be recognized as relatively popular. This article endeavors to conduct a concise analysis and comment towards such two approaches of interpretation and to demonstrate that international economic law, as an interdisciplinary marginal synthesis, generally refers to all legal norms that adjust international economic relations. It is further discussed in the latter parts of this article that there are close connections as well as clear distinctions in between international economic law and other relative legal departments as public international law, private international law, domestic economic law, and international business practices. Through this article, the author stresses that upright and impartial law scholars in China and other developing countries should carefully learn, independently select, digest, and absorb relating knowledge and experiences from Western powers after simply taking over them, i.e., taking their essence and discarding their dregs. And furthermore, they should have the courage and resolution to create and gradually establish a novel theoretical system of IEL discipline which exactly reflects the common stand of the many Third World countries and takes on Chinese characteristics.

Basic Contents of this Article was first published in An CHEN ed., Basic Jurisprudence of International Economic Law (in Chinese), Law Press, 1991.They were then successively amended and compiled into The Yearbook of International Law China, China Translation and Publishing Corporation, 1995, and Chinese Journal of International Economic Law, Vol. 1, Law Press, 1998. Later they were also compiled into An CHEN ed., International Economic Law, Peking University Press, 1994 – 2013, ed. 1 – 6; and New Comments on International Economic Law, High Education Press, 2007 – 2012, ed. 1 – 3; and Problems of International Economic Law, High Education Press, 2002 – 2007, ed. 1 – 2.

These books have been designated or widely selected as textbooks or reference books for use in Law School/Business School in China’s universities. Meanwhile, this long article hereby presented and other 23 articles written in English and now compiled in this new Springer’s monograph/compilation have generally been deemed an important product of international academic debates, as well as a fundamental and representative part of “the jurisprudence of international economic law with China’s characteristics.”

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Notes

  1. 1.

    In the practice of contemporary international law, nations who are struggling for independence are also recognized as subjects. In comparison to the already independent nations in the international society, these nations are deemed as quasi-states or transitional subjects.

  2. 2.

    For a brief introduction of their respective basic stands of these three scholars, see An CHEN [1]; see also An CHEN [2].

  3. 3.

    There is no consensus upon the definition of Private IL. For the purpose of this article, according to relating interpretation in Encyclopaedia of China – Law, Private IL is understood as “the legal rules to decide which country’s law shall be applied in a foreign-related civil jural relation under the circumstance when there exist conflicts among civil and commercial laws of different countries,” and is also known as Law of Conflict of Laws or Law of Application of Laws. The definitions of IBL and International Trade Law (hereinafter ITL) have not yet been unified either. For their general meaning, see relating entries of “Commercial Law,” “International Trade Law,” and “Economic Law” in Encyclopaedia of China – Law, Encyclopaedia of China Publishing House, 1984, pp. 228, 222, 327, 505; also its revised edition, 2005, pp. 202–203, 279–280, 436.

  4. 4.

    Opinions vary upon the connotation and denotation of the term “Economic Law.” For the purpose of this article, a broad approach of interpretation is adopted, by which this term is understood as to generally refer all legal rules that adjust all kinds of economic relations during the process of production, exchange, distribution, and consumption. It includes not only “vertical” legal rules that adjust economic relations as between unequal subjects but also “horizontal” legal rules that adjust economic relations as between equal subjects. However, after years of debate, it is now commonly accepted that those vertical legal rules shall be counted as Economic Law, while those horizontal legal rules as Civil and Commercial Law. This article occasionally lists Economic Law and Civil and Commercial Law in parallel, to imply the broadest meaning of these terms. See relating entries of “Economic Law,” “Civil Law,” and “Commercial Law” in Encyclopaedia of China – Law, Encyclopaedia of China Publishing House, 1984, pp. 327–330, 412–416, 505–506; also its revised edition, 2005, pp. 279–280, 347–349, 436.

  5. 5.

    For a brief introduction of their respective basic stands of these six scholars, see An CHEN [1]; see also An CHEN [2].

  6. 6.

    See Jiuyong Shi, On the Concept and Coverage of International Economic Law; also Meizhen Yao, International Economic Law as an Independent Legal Department, also Mingyang Wang, International Economic Law as an Independent Discipline; also Xuan Wang, Brief Comments on International Economic Law, all in Chinese Yearbook of International Law (1983), China Translation & Publishing Corporation, 1984, pp. 359–397.

  7. 7.

    See Philip Caryl Jessup [3], pp. 1, 2, 106–107; see also Henry J. Steiner and Detlev F. Vagts [4].

  8. 8.

    See Gengsheng Zhou [5]; also Tieya Wang [6].

  9. 9.

    These political risks are also referred to as noncommercial risks and mainly include scenarios in which the investing company has suffered damage when overseas investment is expropriated or nationalized by host state’s government, or when war breaks out in the host state, or when host state’s government has tightened foreign exchange control and forbidden the remittance of foreign exchanges.

  10. 10.

    See An CHEN [7], pp. 5–6, 10–11, 24, 46–49; see also An CHEN [8], pp. 458, 461, 470–471, 486–488.

  11. 11.

    MIGA is a member of the World Bank Group and is headquartered in Washington, D.C., United States. It was established in 1988 as an investment insurance facility to encourage confident investment in developing countries. China signed relevant Convention on 28 April 1988 and had finished ratification procedure thereafter. There are 154 developing member countries and 25 industrialized member countries as of 20 April 2013, the full list available at http://www.miga.org/whoweare/index.cfm?stid=1789, last accessed on 20 April 2013. MIGA has made many improvements over OPIC in terms of flexibility and binding effect. See An CHEN and Chongli Xu [9].

  12. 12.

    See Art. 1, 11, 13–18 of MIGA Convention, in I. F. Shihata, MIGA and Foreign Investment, 1988, pp. 356–362.

  13. 13.

    There are currently 158 signatory States to the ICSID Convention. Of these, 148 States have also deposited their instruments of ratification, acceptance, or approval of the Convention. China signed this convention in February 1990 and deposited its instrument of ratification in January 1993. The full list of contracting states is available at https://icsid.worldbank.org/ICSID/FrontServlet?requestType=ICSIDDocRH&actionVal=ContractingStates&ReqFrom=Main, last accessed on 20 April 2013.

  14. 14.

    See Art. 42, ICSID Convention, in An CHEN [10].

  15. 15.

    See Philip C. Jessup [11], pp. 2, 12–13, 40–42; see also Gengsheng Zhou [12], pp. 10–12, 25–26, 33–35, 65–71.

  16. 16.

    Andreas F. Lowenfeld [13], Preface, p. vii

  17. 17.

    Ibid., p. 170, footnote (d). As to the details of the case, see An CHEN [14]; see also An CHEN [15], and An CHEN [16].

  18. 18.

    See Andreas F. Lowenfeld [17].

  19. 19.

    Andreas F. Lowenfeld [18]; or its second edition, 2008, pp. 492–493. Emphasis added

    The paragraph is adapted from a paragraph in the Restatement (Third) of Foreign Relations Law, n. 49, §712, Reporters’ Note 1, entitled “Status of International Law on Expropriation.”

  20. 20.

    For example, Hague Conference on Private International Law had consecutively drafted 31 relating conventions of Private IL during 1945 to 1988, only with a few contracting parties. Some Latin-American countries also concluded the Bustamante Code in Havana in 1928, which have come into force in 15 different contracting members.

  21. 21.

    For example, a foreign investor A has purchased a building from a real estate corporation B in city X of China, and dispute arises regarding the property right. The court of city X has determined such dispute as a matter of ownership over the building with foreign-related factors. Art. 144 of General Principles of the Civil Law of PRC stipulates that “the ownership of immovable property shall be bound by the law of the place where it is situated.” According to this conflict rule, the court has affirmed the place where such building (i.e., city X) is situated as the connecting point, in the light of which it has decided to apply relevant legal norms in city X (including its local regulations) in solving such dispute.

  22. 22.

    Opinions vary upon the connotation and denotation of the term “Economic Law.” For the purpose of this article, a broad approach of interpretation is adopted, by which this term is understood as to generally refer all legal rules that adjust all kinds of economic relations during the process of production, exchange, distribution, and consumption. It includes not only “vertical” legal rules that adjust economic relations as between unequal subjects but also “horizontal” legal rules that adjust economic relations as between equal subjects. See related entries of “Economic Law,” “Civil Law,” and “Commercial Law” in Encyclopaedia of China – Law, Encyclopaedia of China Publishing House, 1984, pp. 327–330. See supra note 4.

  23. 23.

    Article 1 of this Law prescribes that it only applies to industrial enterprises owned by the whole people, meaning that it could not apply to other non-state-owned forms of industrial enterprises within China (including industrial enterprises of collective ownership, industrial enterprises of individual ownership, Chinese-foreign joint venture, Chinese-foreign cooperative, or wholly foreign owned enterprise).

  24. 24.

    See An CHEN [19].

  25. 25.

    This act is named after then Senator J. Sherman who proposed the draft legislation and is also referred to as Sherman Antitrust Act.

  26. 26.

    Such as Trading with Enemy Act, International Emergency Economic Powers Act, Export Control Act, Anti-Boycott Laws, and Foreign Sovereign Immunities Act, etc. A relatively new example is the Helms-Burton Act and d’Amato Kennedy Act passed in 1996.

  27. 27.

    See Art. 7–10, Criminal Law of PRC.

  28. 28.

    See Jiansheng Wang [20]; see also Chongli Xu [21].

  29. 29.

    With regard to the status and function of IBPs in the legislative system of various countries, see An CHEN [22]; see also An CHEN [23].

References

  1. An CHEN (Ed.). (1991). Basic Jurisprudence of international economic law (pp. 77–82). China: Law Press.

    Google Scholar 

  2. An CHEN (Ed.). (2007). Problems of international economic law (2nd ed., Vol. 1, pp. 50–54). China: Higher Education Press.

    Google Scholar 

  3. Jessup, P. C. (1956). Transnational law. New Haven: Yale University Press.

    Google Scholar 

  4. Steiner, H. J., & Vagts, D. F. (1986). Transnational legal problems: Materials and text (pp. 19–20). Mineola: Foundation Press.

    Google Scholar 

  5. Gengsheng Zhou. (1983). International law (Vol. 1, p. 217). China: Commercial Press.

    Google Scholar 

  6. Tieya Wang (Ed.). (1995). International law. China: Law Press.

    Google Scholar 

  7. An CHEN. (1985). Legal protection of the United States of America over its overseas investment with typical case-analysis. China: Lujiang Press.

    Google Scholar 

  8. An CHEN. (2005). CHEN’s papers on international economic law. China: Beijing University Press.

    Google Scholar 

  9. An CHEN, & Chongli Xu. (Eds.). (1996). MIGA and China: Commentary of MIGA (pp. 1–50). China: Fujian People’s Press.

    Google Scholar 

  10. An CHEN (Ed.). (2001). International investment arbitration—Research on the mechanism of ICSID (p. 579). China: Fudan University Press.

    Google Scholar 

  11. Jessup, P. C. (1948). A modern law of nations. New York: The Macmillan Company.

    Google Scholar 

  12. Gengsheng Zhou. (1963). Theoretical trend of modern international law in the British and the U.S. China: World Affairs Press.

    Google Scholar 

  13. Lowenfeld, A. F. (1982). International private investment (International economic law 2nd ed., Vol. 2). San Francisco: Mathew Bender.

    Google Scholar 

  14. An CHEN. (2005). CHEN’s papers on international economic law (two volumes) (Vol. 1, pp. 525–531). China: Peking University Press.

    Google Scholar 

  15. An CHEN. (2008). An CHEN on international economic law (five volumes) (Vol. 1, pp. 919–925). China: Fudan University Press.

    Google Scholar 

  16. An CHEN (Ed.). (1986). Cross verbal swords—Five famous cases on international investment disputes (pp. 97–166). Xiamen: Lujiang Press.

    Google Scholar 

  17. Lowenfeld, A. F. (2008). International economic law (2nd ed., p. 491). Oxford: Oxford University Press.

    Google Scholar 

  18. Lowenfeld, A. F. (2002). International economic law (pp. 412–414). Oxford/New York: Oxford University Press.

    Google Scholar 

  19. An CHEN (Ed.). (1991). Basic Jurisprudence of international economic law (pp. 159–173). China: Law Press.

    Google Scholar 

  20. Jiansheng Wang. (1996, October 31). America Pushes Helms—Burton while EU insists on retaliation. People’s Daily Overseas (China), p. 6.

    Google Scholar 

  21. Chongli Xu. (1997, March 1). Brief comments on legislation of the U.S. on extraterritorial economic sanctions. Jurisprudence Daily (China), p. 8.

    Google Scholar 

  22. An CHEN. (1994). On the unity of international customary rules and Pacta Sunt Servanda, (Social Science of China, Vol. 4, pp. 77–89). Beijing: Publishing House of Social Science in China.

    Google Scholar 

  23. An CHEN. (2005). CHEN’s papers on international economic law (Vol. 1, pp. 215–226). Beijing University Press.

    Google Scholar 

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Authors and Affiliations

  1. International Law, Xiamen University Law School, Xiamen, Fujian, 361005, China

    An CHEN (National Eminent & Senior Jurist Professor)

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Annex: Schematic Diagrams of the Mutual Relation as Between International Economic Law and Other Neighboring Legal Departments

Annex: Schematic Diagrams of the Mutual Relation as Between International Economic Law and Other Neighboring Legal Departments

1.1 Integrated Diagram

figure a

1.2 Decomposed Diagrams

figure b

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CHEN, A. (2013). On the Marginality, Comprehensiveness, and Independence of International Economic Law Discipline. In: The Voice from China. Understanding China. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-40817-5_1

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