From the Supreme People's Court Monitor Site: Susan Finder "Why & How the Supreme People’s Court is Providing Services and Safeguards for the Unified Market Policy" (15 August 2022).

 

 

Over at the "Supreme People's Court Monitor," Susan Finder has written a quite valuable essay on the Supreme Peoples' Court contribution to the New Era united markets policy: Why & How the Supreme People’s Court is Providing Services and Safeguards for the Unified Market Policy (15 August 2022).

China's dual circulation policy, initially a defensive position developed in the wake of what at the time appeared to be a trade war with the United States and (what people thought was the transitory tantrum of the Trump Administration)  has now evolved into the foundation of New Era macroeconomic policy.  That policy is grounded in three key principles.  The first is the principle of the permanence of detachment in global production; that is that the great era of global convergence undertaken under the leadership of the United States and its victorious allies after 1945 has come to an end. The second is the principle of economic bifurcation--that in order to preserve the integrity of the economic system and the Marxist Leninist objectives which is the source of the legitimacy f the vanguard, it is necessary to (again) develop a protected internal space (as a showpiece moving toward the ultimate attainment of the establishment of a communist society) and to operate an external space in which it is possible to deal with foreigners and those who represent different or oppositional visions of socio-political life. To that end it is necessary to protect the heartland and to develop advantageous (win-win) relationships with well disposed collectives abroad through which it is possible to develop global systems of production chain control, and safer modalities of commercial dealings with opponents. The third principle touches on the construction of New Era communist internationalism.  It it necessary to build a system of hegemony that challenges the current markets driven liberal democratic systems.  By developing such a system of security and prosperity along Leninist lines, it might be possible to serve not merely as a model for imitation, but also as the center for the administration of global interaction based on socialist principles and socialist sensibilities.  

To all three ends, the judiciary plays an important role.  But like the dual circulation policy, that role must be bifurcated.  It requires first contribution to the construction of an tightly coordinated and efficient internal system of rule by law. But it also requires the development of mechanisms through which dispute resolution throughout the external circulation economy might be brought within the orbit of the Chinese juridical and non judicial state based mechanisms for dispute resolution. The way that the Supreme People's Court now understands and seeks to elaborate both roles is quite instructive.  And for those more interested in international trade rather than in dispute resolution of issues connected to portion of global production that winds in or through China, there is much here that merits greater study. For those interested in the internationalization of the human rights and sustainability project through law; for those interested in the further development of the Belt & Road Initiative; and for those especially in developing states considering the complexities of managing three systems within their territories (a national system, a liberal democratic markets driven system, and a Leninist system groudned in state directed objectives there is a lot here to consider.

The Introduction follows below.  The full essay may be accessed on the Supreme People's Court Monitor site HERE. 

Why & How the Supreme People’s Court is Providing Services and Safeguards for the Unified Market Policy

August 15, 2022 Supreme People's Court Monitor Leave a comment

In the middle of July (2022), the Supreme People’s Court (SPC) issued another document providing “judicial services and safeguards” to another major government policy initiative, this one on the work to create a unified market, entitled Opinions on Providing Judicial Services and Safeguards for Accelerating the Construction of a Unified National Market (SPC Unified Market Opinion 最高人民法院关于为加快建设全国统一大市场提供司法服务和保障的意见). (See bilingual version here). It implements the April 2022 Communist Party Center and State Council Opinions on Accelerating the Construction of a Unified National Market.  The SPC also released ten   typical/model/exemplary cases.  These cases provide guidance to the lower courts through specific examples phrased in current political language.   The document and cases are a shining example of the long series of “judicial services and safeguards opinions” that the SPC has issued since 2015. The SPC issued the first one with that title in the Xi Jinping New Era to anticipate legal issues created by the then-new (or relatively new) Belt & Road Strategy.

The SPC Unified Market Opinion reveals a great deal about what is on the agenda of the SPC as well as deeper trends in the development of the Chinese courts in the New Era.  A  summary of what the SPC’s Unified Market Opinion covers and reveals follows, with some comments on what it says about larger trends.

I.  What Does the SPC’s Unified Market Opinion Cover?

The SPC Unified Market Opinion covers many aspects of the work of the courts. only some of which are discussed in this overly long blogpost.  Therefore the SPC’s Research Office took the lead in drafting it, along with the #2 Civil Division, focusing on domestic commercial matters and the #3 Civil Division, focusing on intellectual property matters. For that reason, representatives from those offices spoke at the press conference, along with Justice Yang Wanming, who must have been the SPC leader responsible.  However, it is clear from the document that many other entities within the SPC contributed to the drafting, particularly the #4 Civil Division, which focuses on cross-border commercial matters, including arbitration, maritime, trade and investment issues.  The International Cooperation Bureau, which has substantive responsibilities in addition to its duties under China’s foreign affairs system clearly contributed to it as well.

It is consistent with other judicial services and safeguards opinions for the document to serve as a “package” for judicial measures, broadly understood. Many of the measures are not new to the regular reader of SPC documents, indicating that the problem is important and the related issue has not gone away.

In the SPC’s bureaucratic language contained in the SPC’s press release, the document “coordinates the precise efforts in all areas of the judiciary” (统筹司法各领域精准发力” ). In plain language, it means that measures across all relevant areas of law for which the SPC is involved are incorporated. It also means that different types of measures are included in the package, including relevant administrative matters.

The function of coordinating with Party and state institutions, about which I wrote last year is described in the press release as “coordinating all forces to implement comprehensive policies 统筹各方力量综合施策.”  Oddly enough, at least one well-known Chinese scholar who has written about the Chinese courts doubted that this is a judicial function.  From these points, it can be seen that this document is a multifunctional tool.

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