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)

Procedural Law

The annulment of international arbitral awards in the revision of Chinese arbitration law

China's Arbitration Law is undergoing dynamic reform, with the 2021 Draft for Comments prioritizing alignment with international standards, while the 2024 Draft Revision represents a notable retreat, featuring relatively limited adjustments. The Draft for Comments introduced significant revisions to the provisions on setting aside international arbitral awards, emphasizing alignment with the UNCITRAL Model Law to enhance their recognition and enforcement. However, these reforms were largely omitted in the final Draft Revision. This analysis traces the reform trajectory concerning the annulment of international arbitral awards, addressing key changes such as the unification of annulment grounds with domestic awards, procedural fairness enhancements, and alignment with international standards regarding annulment grounds, competent authorities, and time limits. Additionally, the essay evaluates the legality and rationality of these revisions from comparative legal perspectives...

YANG Shiyu

China Law Update | 17 Tsinghua China L. Rev. (2024)

Data Law

Exemption Rules in China’s New Regulation on Cross-border Transfer of personal information

China’s newly issued Provisions on Promoting and Regulating Cross-border Data Flow clarifies under which circumstances can the data processor be exempted from the preconditions stipulated in Article 38 of Personal Information Protection Law. The scope and extent of the exemption rules reflect China’s data outflow attitude and the justifications behind the rules need to be explored and constructed. Justifications behind the exemptions rules differ: while data transit is justified both on the low risk of transit itself and the data classification and grading policy, exemptions under specific situations can find the counterparts in General Data Protection Regulation and transcend the relatively conservative regulation patterns.

NIU Zhiheng

China Law Update | 17 Tsinghua China L. Rev. (2024)

Administrative Law

Autonomous Vehicles Regulation in Beijing

Beijing has experienced rapid development in autonomous driving industry, yet lacks supporting local legislation. Examining Beijing's policy framework in autonomous driving since 2015 reveals its pioneering role in policy implementation, promoting cross-regional collaboration, developing multi-scenario deployments, and emphasizing data security. While national legislation remains premature, local legislative pilots can accumulate valuable experience to inform national lawmaking. Additionally, local legislation can mediate the tension between technological advancement and legal stability, fostering autonomous vehicle industry development through regulatory competition. Analysis of existing local legislative models nationwide reveals three patterns: special economic zone legislation, promotional legislation, and local traffic law amendments, all addressing access requirements, entity responsibilities, data governance, and application scenarios...

YU Lingyun; ZHU Qin; ZHENG Lin

China Law Update | 17 Tsinghua China L. Rev. (2024)

Legal History

The Disputes between Orthodoxy and Technical Nobility: Reinterpretation of Yaodian

Yaodian recorded several disputes and games between Yao and the technical nobles who were controlling the governance power. It also accounted the new strategies and policies which were used to fight against the technical nobles since Shun took Yao’s place. These kinds of struggles was a miniature of the political status in the era of Five Di. It was a time of governance without regime in Three Huang’s era. And as Huangdi created Tianxia through the use of force to conquer, it entered into a time of both the Regime and Governance coexist and struggle. Tianzi who held the regime gained the legitimacy by monopolizing the order of Heaven. This pattern was created by Zhuanxu by disconnection of Heaven from Earth. The technical nobles who held the governance acquired the social influence and prestige by taking control of social governance.

LI Ping

China Law Update 17 Tsinghua China L. Rev. (2024)

Civil Law

New Regulations on Receivables Financing in the Context of Supply Chain Finance

In the past, due to the lack of specialized legislation for the supply chain finance industry and the fact that receivables financing is a new type of financing model, there may be a lack of clear and reasonable solutions for receivables financing disputes. The Civil Code, which takes note of this situation and focuses on responding to the relevant issues, is the latest development in the civil legal regulation of supply chain finance. The Supreme People's Court issued the Interpretation of the Relevant Guarantee System and the Interpretation of the General Provisions of Book Contracts. On the basis of summarizing the trial practice experience in recent years, the Supreme People's Court issued the Conference Minutes (draft) of the National Courts’ Financial Trial Work. These legal updates, as the basis for trials in judicial practice, set new norms for receivables financing transactions and refined the relevant rules. These legal updates have responded well to the problems of multiple

Feng Shun

China Law Update 16 Tsinghua China L. Rev. 157 (2023)

Securities Law

Key Step towards a Fair, Market-based Capital Market: The Unprecedented Private Investment Fund Regulation

The implementation of Private Investment Funds Regulation marks a significant stride toward establishing a fair and market-based capital market. This regulation encompasses comprehensive protection throughout the fundraising, investment, management, and exit stages, embodying an "all-round protection" framework. Notably, the Regulation strengthens the registration and disclosure requirements for fund managers, and also, clarifies the consequences for the violation of their legal obligations, protecting investors from both ex-ante and post-ante perspectives. On top of this, the inclusion of a special chapter for VC funds demonstrates the efforts of the authority to explore a differentiated approach to private fund regulatory framework. However, excluding VC funds, the Regulation maintains uniform regulatory requirements to other types of private funds. Indeed, there are common characteristics among private funds. Most of these funds target high-risk investments, emphasizing the qualifi

Xu Changle

China Law Update 16 Tsinghua China L. Rev. 139 (2023)

Securities Law

Analysis on New Regulations and Future Road of Independent Director in China

Based on the history of independent directors system in China, this article mainly reviews the major changes made by the China Securities Regulatory Commission (CSRC) in Measures for the Administration of Independent Directors of Listed Companies issued on August 1, 2023 compared with the Rules for Independent Directors of Listed Companies issued previously, and analyzes the progress and shortcomings of this revision from the perspective of comparative law compared with the UK. Furthermore, in view of the historical experience of the UK, this article puts forward the suggestion on clarifying the role of independent directors and focusing more on capacity as well as management function rather than the independence character and supervisory duty.

Ma Kehui

China Law Update 16 Tsinghua China L. Rev. 125 (2023)

Procedural Law

Development of Parallel Litigation Regulation in China’s Amended Civil Procedure Law

The Amended Civil Procedure Law of the People’s Republic of China in September 2023 (“the Amended CPL”) emerged in response to perceived deficiencies within the existing domestic legal framework and the escalating challenges encountered in cross-border scenarios. The Amended CPL has strategically addressed this predicament by expanding the jurisdictional ambit and exclusive authority of Chinese courts, precisely defining their competence in adjudicating parallel litigation cases. It has also introduced crucial principles such as the rule of prior in tempore and the doctrine of forum non conveniens to facilitate the harmonization between international proceedings. This essay is a comprehensive analysis of these legislative changes, delving into their intricacies and implications. In doing so, it aims to unravel the balance that the legislator sought to strike between two conflicting values: judicial sovereignty and international comity.

Pan Yan

China Law Update 16 Tsinghua China L. Rev. 109 (2023)

Civil Law

Whether Personal Credit Information is Sensitive Personal Information?

This essay tries to reconstruct the position of personal credit information in PIPL based on a comparative look and a theoretical reanalysis. Part 2 looks at extraterritorial theory and practice to demonstrate the necessity to balance personal credit information protection and financing facilitation. Part 3 argues that the definition in Article 28(1) of PIPL is unreasonable and the protection of personal credit information as sensitive personal information is neither socially beneficial nor, in fact, conducive to personal information protection. Part 4 denies personal credit information as sensitive personal information by a stricter interpretation of Article 28(1).

Yin Shanghong

China Law Update 15 Tsinghua China L. Rev. (2023)

Intellecutal Property Law

Distribution or Information Network Dissemination: A Prospect for the Legal Characterization of NFT Digital Work Transaction

Part 1 of this article will first highlight the core issue of the debate by identifying the stages in the NFT digital work transaction. A theoretical comparison of distribution and information network dissemination will be depicted in Part 2. Part 3 will therefore illustrate that the sale of NFT digital works is more appropriate to be deemed as an act of distribution instead of information network dissemination. Part 4 will further focus on the flaws of the judgment of China’s first NFT case. Finally, Part 5 will conclude the article and prospect the future of China’s copyright law legislation or interpretation.

Hao Xinchang

China Law Update 15 Tsinghua China L. Rev. (2023)

Civil Law

Identification of Parentage in the Context of Surrogacy

How to provide a relatively foreseeable system for the identification of parent-child relationship under the problem of surrogacy, and at the same time protect the interests of the parties, especially for the children involved in the cases has become an urgent problem to be solved. Based on the judicial judgment of Shanghai First Intermediate Court in 2015 and several latest judicial judgments of courts in China after that typical case, the article tries to analyze the possible influencing factors considered in different decisions and looks forward for future progress.

Chen Qingyang

China Law Update 15 Tsinghua China L. Rev. (2023)

Civil Law

More Accessible Protection for Domestic Violence Victims: New Developments in Personal Safety Protection Order

Except for the Introduction and the Conclusion, this note is divided into the following four sections: the first section analyzes the new standard of proof applicable to the issuance of personal safety protection orders, which is a lower one than the general one for Chinese civil litigations; the second section introduces how the new updates on protection orders expand the scope of “domestic violence”; the third section discusses how the new legal instruments contribute to the establishment of a more comprehensive enforcement mechanism for the protection orders; the last section proposes that China may establish a temporary protection order system soon. The author’s suggestions and comments on the new updates are incorporated in the relevant sections.

Zhou Shizun

China Law Update 15 Tsinghua China L. Rev. 161 (2022)

Anti-monopoly Law

The Ammended Anti-monopoly Law: Key Changes Under the Competition Policy

Except for the Introduction and the Conclusion, this note is divided into the following four sections: the first section analyzes the new standard of proof applicable to the issuance of personal safety protection orders, which is a lower one than the general one for Chinese civil litigations; the second section introduces how the new updates on protection orders expand the scope of “domestic violence”; the third section discusses how the new legal instruments contribute to the establishment of a more comprehensive enforcement mechanism for the protection orders; the last section proposes that China may establish a temporary protection order system soon. The author’s suggestions and comments on the new updates are incorporated in the relevant sections.

Cristina Zhang

China Law Update 15 Tsinghua China L. Rev. 179 (2022)

Constitutional Law

A New Stage of Legislative Experimentation of China in Hainan

China enacted the Hainan Free Trade Port Law (the "Hainan FTP Law") in June 2021. It is the first free trade port law in China, as well as the first law for a provincial area passed by National People's Congress and its Standing Committee. This note finds the enactment of the Hainan FTP Law a brand new legislative experimentation regarding the reform and opening-up in China, the experimental characters of which are revealed from the liberalization, devolution, and list approach applied during the lawmaking process of the Hainan FTP Law. This legislative experimentation will be of good value for future legislation accompanying the reform and opening-up.

Cao Wenjiao

China Law Update 13 Tsinghua China L. Rev. 363 (2020)