Commercial Law

How Functional Will the New Foreign-Related Civil Procedure Rules of China Be: A Perspective Based on Concerns by SEP Stakeholders

Abstract: Current legislation in China regarding substantive consolidation in group insolvency cases is fraught with deficiencies, and the insolvency laws are not only lagging but also rife with contentious provisions. On one hand, the substantive criteria for application are muddled and the underlying meanings of these standards are rather ambiguous. On the other hand, there is a lack of procedural systematization, with a diversity of application subjects that lack consensus, a variety of application modes that require standardization, and jurisdictional rules that are full of gaps and in dire need of refinement. From a comparative law perspective, international legislation on corporate group insolvency exerts a multifaceted influence on China. The EU emphasizes procedural coordination but has limited application, the US has significantly developed the principle of substantive consolidation, and Germany's creditor protection provisions offer valuable lessons. In light of this...

BAI Bing

Articles | 17 Tsinghua China L. Rev. (2024)

Data Law

The Right to Erasure of Personal Information in Large Language Models: Challenges and Responses

The “Right to Erasure of Personal Information” (right to erasure), which grants individuals the opportunity to delete their personal information from the internet, has become a necessity in the information age. Academic discourse on the right to erasure has centered on the example of search engines as personal information processor and has been set against the backdrop of the internet age. However, the new era of Generative Artificial Intelligence (Generative AI) has given rise to new formidable problems with the protection of the right to erasure, especially in the case of Large Language Models (LLMs) that are trained on large amounts of data containing personal information. This paradigm shift, therefore, raises a host of questions as to how to protect this legal right properly in the age of Generative AI. Against the backdrop of Generative AI, this paper argues how the Personal Information Protection Law (PIPL) should be applied to govern the protection of the right to erasure in...

MO Yunfan

Articles | 17 Tsinghua China L. Rev. (2024)

Commercial Law

Reconciling Dual Loyalties: Director Duties in “State-Invested Companies” under China’s 2023 Company Law

The ratification of significant amendments to the Company Law of the People’s Republic of China in December 2023 heralded comprehensive changes to China’s corporate governance regime. Under this reform, directors’ duties are outlined with greater clarity and specificity than before, and textually appear reminiscent of those imposed in various other jurisdictions. At the same time, questions arise as to the duties of directors in “State-Invested Companies”. In practice, there is no doubt that under the Chinese system directors of such companies will generally owe and act upon duties—legal, political, or otherwise—to both company and state. The question, therefore, is not if but how the legal basis of these duties is reconciled under the 2023a law. This article posits that this reconciliation ought not be approached through western common law fiduciary principles alone. Rather, it posits that when read with an understanding of the Chinese legal-political context there are three...

Ben Hines

Article | 17 Tsinghua China L. Rev. (2024)

Procedural Law

How Functional Will the New Foreign-Related Civil Procedure Rules of China Be: A Perspective Based on Concerns by SEP Stakeholders

In the prevailing trend of parallel litigation regarding standard essential patents (SEPs), the amendment to the foreign-related provisions of the P.R.C. Civil Procedure Rules in 2023 aims to expand the jurisdiction of the People’s Courts over foreign-related cases to safeguard national sovereignty, security, and development interests. This study estimates the international impact of the new rules on foreign SEP stakeholders, based on a survey among them. Its findings suggest that China’s civil procedure system with the 2023 Amendment has enormous potential, even though it still cannot completely alleviate the concerns of international comity and procedural fairness of foreign SEP stakeholders. To effectively stimulate this potential, the next move in developing foreign-related civil procedure rules should continuously strengthen the transparency of judgments and external publicity. People’s Courts and judges should adopt a conservative and prudent attitude in implementing...

Runhua WANG

Articles | 17 Tsinghua China L. Rev. (2024)