I’ve just posted the above-titled paper to SSRN. Here’s the abstract:
How should American courts understand China’s legal system? How do they understand it, and are they doing a good job? These questions have become important as economic and social ties between China and the United States have mushroomed since China’s days of Maoist isolation. The answers have implications not just for China-related cases, but for way U.S. courts treat authoritarian and illiberal legal systems more generally.
This Article presents the first attempt to answer these questions empirically through an intensive study of all cases in which parties either sought dismissal to China on forum non conveniens grounds or sought enforcement of a Chinese judgment. Both types of cases require courts to assess China’s legal system. Because it attempts both to collect all relevant cases and to read all the relevant underlying party filings and interlocutory as well as final judgments, this Article presents the most complete picture to date of what U.S. courts and litigation parties are actually doing—certainly in China-related cases, and likely to some degree in other transnational cases.
The Article finds that by and large courts do not get good information and often reach questionable conclusions. It finds that the adversarial system is not functioning well, with the strength of party arguments bearing no correlation to outcomes. Moreover, the bad results tend to get baked into the system through their citation in subsequent cases. This has serious implications for the delivery of justice. The Article concludes by offering some paths to a solution.
A shorter version of this Article is forthcoming in the University of Pennsylvania Journal of International Law.
2 thoughts on “Judging China: The Chinese Legal System in U.S. Courts”
Couple observations / questions about your study:
1. Am I right to observe that the quality of the lawyering in the cases you describe is very shoddy? No expert witness; little if any reference to supporting literature. How much of this is a problem of judging and much is a problem of lawyering. Seems to me the latter is more significant than the former given my reading of your descriptions.
2. Again as best a I could infer from your description, all of your case except one or two (Armadillo is probably one) seem to involve small to medium enterprises. Could this be why the lawyering isn’t particularly competent? I.e., couldn’t afford good attorney?
But more to the point, why do such issues not seem to arise in dealings between Chinese firms and multinational firms? In these kinds of disputes, one would expect better lawyering — but as best as I can glean from your paper they don’t arise. Any idea as to why not?
Sorry for the delay! I didn’t check the Pending Comments section in the blog for a while.
1. Yes, you are right to infer that. I think it goes beyond the quality of lawyering, since I tried to correlate outcomes with quality of case presentation (scored subjectively by me) and could find no correlation. (I mention this somewhere in the paper.) Small sample size, subjective scoring, so not very robust. But still… I don’t want to say it’s a problem of judging, because that sounds like I’m blaming the judges for not being able to do something they really don’t have the capacity to do. But in some cases it really does seem like they are holding their hands over their ears and saying, “I can’t hear you!” when defendants make arguments critiquing the Chinese legal system.
2. Yes, the cases do seem to involve SMEs, not big MNEs. Not sure why. I haven’t thought about that issue but probably should.
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