Monday, April 9, at 2:00pm in T-345: We will be hosting Prof. Eva Pils, of the Chinese University of Hong Kong (http://www.law.cuhk.edu.hk/people/pils-eva.php). Prof. Pils will be discussing Contending conceptions of ownership and property in urbanizing China. For more info, please read the blurb I have included in the bottom of this message) (she will also be participating in Prof. deLisle’s afternoon seminar on China Human Rights).

Tuesday, April 10, at 12:00pm NOON in S-240B: We are co-sponsoring ILO’s event entitled, What’s Next for China? The Effect of the Leadership Transition for Chinese Politics, Economics, Foreign Policy, and U.S.-China Relations. The talk will feature Yuhua Wang (featured at the EALR symposium earlier this spring), Avery Goldstein (Penn Dep’t of Poli-Sci), William Burke-White, and will be moderated by Jacques deLisle. [N.B.: lunch will be provided, courtesy of GAPSA!] (Again, please read the blurb included below, prepared by ILO).

In addition, registration for Wednesday’s lunch with justices from China’s Supreme People’s Ct. and provincial higher people’s courts is now closed as all available seats have filled up. Look forward to seeing those who replied at the lunch.

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Monday, April 9, at 2:00pm in T-345:

Contending conceptions of ownership and property in urbanizing China

By: Eva Pils, Faculty of Law, The Chinese University of Hong Kong

Abstract: In the wake of China’s great urbanisation process, many of the tens of millions of Chinese rural and urban citizens affected by evictions and expropriations have engaged in complaints, protest and resistance. This paper analyses citizen conceptions of ownership and property rights pertaining to land and buildings opposed to the conception of public socialist land ownership expressed in State laws, regulations and actions. It argues that as evictee protesters challenge the legal property regime of the State, they also articulate a vision of wider political changes that would have to happen to allow for better protection of their rights.

Even though the number of persons engaged in protest and resistance against expropriations and evictions represents a mere fraction of those affected by such measures, right activism against evictions and expropriations has become one of the major causes of State-citizen contention and civil unrest in China. There is an ongoing discussion of how the law of property and land administration could be improved to address these factors of social instability. The Party-State leadership has to some extent sought to strengthen rights protection mechanisms. But it has thus far ruled out the privatisation of land ownership as a reform option, considering its control of land through mechanisms of ‘socialist public ownership’ as constitutive of the current political system and power structure; and its measures taken against protesting citizens in the name of ‘social stability’ have tended to increase social tensions in recent years.

As a consequence, popular and state views of the rights and wrongs of urbanisation processes clash in increasingly obvious ways. From the State’s perspective, control over real estate is not burdened by historical claims, due to the 1950s land reforms and 1980s constitutional stipulation of ‘socialist public’ land ownership. From this perspective, it is now for the State to allocate private control over land in accordance with its welfare-utilitarian and authoritarian conception of political legitimacy; and the legal regime of private urban land use rights and private building ownership is based on decisions to take land and buildings away from citizens who never really owned them.   From the perspective of protesting evictees, by contrast, many evictions and expropriations are wrongful. The State’s actions, from this perspective, lack justification because they violate the rules of State laws and regulations, and perhaps even more because it violates what is in a loose, non-positivistic sense perceived as historical entitlements to property, as well as conditions of legitimate exercise of political power. Increasingly, citizens see the State as predatory and corrupt. Their protest, articulated in creative, sophisticated and more and more effective ways, suggests the continued relevance of a justifying connection between property rights and political obligation.

Bio: Eva Pils is an associate professor at the Faculty of Law of the Chinese University of Hong Kong. She studied law, philosophy and Chinese studies in Heidelberg (Germany), London and Beijing, and holds a PhD in law from the University of London. She previously taught at Cornell Law School and at University College London. Her scholarship focuses on human rights and China, with publications addressing the role and situation of Chinese human rights defenders, property law and land rights in China, the status of migrant workers, the Chinese petitioning system and conceptions of justice in China. Eva is currently the director of the CUHK Centre for Rights and Justice <http://www.law.cuhk.edu.hk/research/crj/> , a member of the CUHK Centre for Civil Society Studies <http://www.cuhk.edu.hk/hkiaps/research/civil.html>  and a Nonresident Senior Research Fellow at NYU’s U.S.-Asia Law Institute <http://www.usasialaw.org/> .

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Tuesday, April 10, at 12:00pm NOON in S-240B:

What’s Next for China?  The Effect of the Leadership Transition for Chinese Politics, Economics, Foreign Policy, and US-China Relations

a panel featuring: 

• Prof. Yuhua Wang, University of Pennsylvania Dept. of Political Science
• Prof. Avery Goldstein, University of Pennsylvania Dept. of Political Science
• Prof. Jacques deLisle, University of Pennsylvania Law School
• Prof. William Burke-White, University of Pennsylvania Law School

Details:

• Tuesday, April 10, 12 noon
• Silverman 240B
• Lunch Served

Event Description:

In Autumn 2012, the Chinese Communist Party (CCP) will hold its 18th National People’s Congress.  The Chinese president, Hu Jintao, prime minister, Wen Jiabao, and the other seven members of the Politburo Standing Committee, China’s highest decision-making body, will all transfer power.  This once-in-a-decade event signifies a change at the upper echelons of China’s political hierarchy from the old to the new. 

Prof. Wang will examine the potential impact that the rise of the princelings will have for China’s political economy, especially state-business relations.  Prof. deLisle considers the implications of the leadership change for legal reform in China and for China’s stance on international law issues.  Prof. Goldstein examines the prospects for continuity and change in China’s foreign policy following the transition to the “Fifth Generation”, and also considers several key foreign policy areas where the new leaders will face challenges.  Prof. Burke-White will discuss the United States, China, and the international system.

Funding provided by GAPSA.

Speaker Bios:

Yuhua Wang is an Assistant Professor of Political Science at University of Pennsylvania. Yuhua’s research combines
Comparative Politics with a specialty in China and American Politics. His research is motivated by one question: “Under what
conditions are politicians with discretionary power willing to abide by rules of the game?” As an attempt to address this
question, Yuhua’s research examines the rise of rule of law in authoritarian regimes, especially China and the politics of judicial
review in the United States.

Avery Goldstein is the David M. Knott Professor of Global Politics and International Relations in the Political Science
Department, Director of the Center for the Study of Contemporary China, and Associate Director of the Christopher H.
Browne Center for International Politics at the University of Pennsylvania. His research focuses on international relations,
security studies, and Chinese politics. He is the author of Rising to the Challenge: China’s Grand Strategy and International Security
(Stanford University Press, 2005).

Jacques deLisle is the Stephen A. Cozen Professor of Law, Professor of Political Science, Director of the Center for East
Asian Studies and Faculty Associate Director of the Center for the Study of Contemporary China at Penn. His scholarship
focuses on legal reform and its relationship to economic reform and development and political change in contemporary China,
the international status of Taiwan and cross-Strait relations, China’s engagement with the international order, and U.S.-China
relations.

William Burke-White is Deputy Dean and Professor of Law at the University of Pennsylvania Law School. Burke-White is a
leading expert on international law, international institutions, and global governance. From 2009-2011 he served in the Obama
Administration on Secretary of State Clinton’s Policy Planning Staff, providing the Secretary direct policy advice on
multilateral affairs, international institutions, and the Russian Federation. He was Principal Drafter of the Quadrennial
Diplomacy and Development Review (QDDR), Secretary Clinton’s hallmark effort to reform the Department of State and
reshape US foreign policy. Burke-White helped lead the implementation of the QDDR and oversaw numerous elements of
institutional reform.

Professor Peerenboom’s message referred to an article by Keith Hand, Associate Professor of Law at UC Hastings, published this spring in our very own East Asia Law Review, titled “Resolving Constitutional Disputes in Contemporary China.”  (Download PDF here.)  In this groundbreaking article, Professor Hand reflects on China’s emerging popular constitutionalism and the resolution of constitutional disputes in the absence of a formal constitutional adjudication mechanism.   He proposes that grand mediation—a model applied by China’s “Party-state” with in some sensitive collective disputes at the local level—could be viewed as an “indigenous” Chinese dispute resolution mechanism with the potential to provide an outlet for numerous simmering constitutional disputes that the legal system is currently challenged to meaningfully address.  In light of restrictions on constitutional adjudication introduced in recent years by the Chinese government (perhaps as part of a phenomenon described by Professor Carl Minzner as China’s “turn against law”), Professor Hand sheds light on embers of constitutional reform that survive through hybrid methods that include elements of bargaining, consultation, and mediation.  Professor Hand’s article suggests that developing meaningful constitutional reform in China requires understanding the Party-state’s political consultation method and applying that consultative framework of mediation to constitutional dispute resolution.

Professor Peerenboom’s initial email set off sparks on the Listserv, prompting thoughtful replies from numerous denizens of the ChinaLaw list, many of them authorities on China studies in their own right. Some questioned whether grand mediation could even be considered an institutional for constitutional dispute resolution. Others contemplated whether it could be adopted as a formal institution or whether it was destined to remain just one more ad hoc method for resolving disputes, among others. Professor Hand himself contributed to the discussion, noting that the current ad hoc nature of grand mediation means it has not yet been institutionalized, but that it will likely continue to evolve as a method of dispute resolution. Some Listserv participants also discussed the relative  enforcement power possessed by the People’s Congresses versus China’s judiciary branch.

The “buzz” about Professor Hand’s article jumped from the Listserv’s relatively refined and scholarly discourse to online social media.  On Twitter, the National Committee on U.S.-Chinese Relations tweeted about Hand’s article.  The tweet included a link to download the article. With all this online buzz about the article and discussion about prospects for political reform, the Year of the Dragon promises to be an interesting one for China.  Professor Hand’s article suggests that, while continuing to appreciate the degree to which China has turned away from movements towards “judicialization” in the 1990s and early 2000s, we ought nevertheless to continue paying close attention to existing Chinese systems and mechanisms for dealing with constitutional disputes, as these could ultimately lead to the organic reform of China’s political-legal system from within.

We’d like once again to thank Amy Gadsden, Associate Dean and Executive Director of International Programs at the University of Pennsylvania Law School, who provided opening remarks for our event, and Jacques deLisle, Stephen A. Cozen Professor of Law, who moderated the panel discussion, and above all our distinguished panelists themselves, for coming out to Penn Law and for making this event possible. We are happy to dedicate this blog post to them.

Keynote Speech by Ms. Laurie Sherman: Corruption in Asia: Challenges and Progress

Our keynote speaker was Ms. Laura B. Sherman, Senior Legal Advisor at Transparency International-USA, a non-profit organization which devotes its efforts to combating corruption internationally and promoting transparency and integrity in government, business and development assistance. Her speech provided a macro perspective on corruption in Asia, relying on TI’s global indices. Ms. Sherman observed, “Asia runs the gamut in perceived corruption,” that Singapore and Japan are ranked at top while Vietnam and Indonesia are close to the bottom of the list. However, she explained also that Asian countries have reached a shared consensus on the importance of combating corruption and have jointly undertaken significant international obligations in this direction.  Besides current international conventions and APEC agendas, Ms. Sherman pointed out that Trans-Pacific Partnership (TPP), a multilateral trade agreement—if it turns out to be successful—can be anticipated to play a significant role in setting high-level enforceable obligations. More detailed information on corruption can be found in the following Transparency International publications:

• Corruption Perception Index 
• Bribe Payers Index 
• Anti-Corruption Plain Language Guide
• Global Corruption Barometer 

Panel Discussion, Moderated by Professor deLisle

Innocents Abroad: Culture, Corruption and Compliance Challenges in East Asia

Roger Magnuson, the head of the National Strategic Litigation Group and Partner in the Trial group at Dorsey & Whitney LLP, addressed key trends and issues in anti-bribery enforcement, focusing on penalties, provisions and prosecutors.

Penalties for violations of anti-bribery provisions are severe (and in some cases, extreme). For example, under the Foreign Corrupt Practices Act (FCPA), in a criminal prosecution individuals can face fines of up to $100,000 per violation and/or up to 5 years in prison. Business entities face fines of up to $2 million per violation. In a civil action under the FCPA, the penalty can be up to $10,000 per violation. Moreover, in SEC enforcement actions, courts may impose an additional fine not to exceed the greater of the gross amount of gain, or from $5,000 to $50,000 in the case of an individual and from $50,000 to $500,000 in the case of a company.

The bribery provisions are expansive. Generally, FCPA anti-bribery provisions prohibit issuers and U.S. domestic concerns and organizations and individuals acting for them from offering or bribing foreign government officials in order to obtain or retain business.  Under the current provisions, there is no need to prove actual knowledge as long as knowledge is proved circumstantially.

Additionally, as Mr. Magnusson explained, prosecutors are “excited.” The government created the SEC FCPA Specialized Unit, staffed by 21 attorneys, 8 assistant directors (over half of whom are in regional offices). New surveillance techniques adopted by Department of Justice are used to detect and discover FCPA violations. Another provision incentivizing the discovery of bribery is the Dodd-Frank whistleblower provision. The provision provides strong financial incentives for anyone who voluntarily provides the SEC with original information that leads to a successful enforcement action resulting in monetary sanctions in excess of $1 million.

The Moral Imperative for Nonstate Actors to Refrain from Corrupt Acts

Professor Philip M. Nichols is an Associate Professor of Legal Studies at the Wharton School of the University of Pennsylvania. Prof. Nichols’s talk focused on the moral component of corruption in emerging economies. For instance, he argued that engaging in corruption does not yield the best outcome for a business. Most well-managed businesses understand that idea at an intuitive level and would prefer to avoid corruptive behavior. However, in many contexts, particularly in Southeast Asia, a business that does not engage in corrupt actions is vulnerable to businesses that do; in the absence of some form of assurance that other businesses are not cheating then a business faces a dilemma:  cheat and face the definite consequence of performing sub-optimally or do not cheat and face the equal possibilities of performing better or of being destroyed.

Prof. Nichols has written extensively on corruption in new economies, including on the experience in East Asia and Southeast Asia. A list of his relevant publications can be accessed here.

Who bribes authoritarian rulers and why—evidence from China

Yuhua Wang, an Assistant Professor at the Department of Political Science at the University of Pennsylvania, shared his research on who bribes authoritarian rulers in China and why. Professor Wang noted that Chinese domestic private firms are more likely than foreign invested firms to bribe.  He also theorized that investors in weak rule-of-law regimes must bribe to build political connections as a substitute for the protections that would otherwise be afforded for property rights-protective institutions. Prof. Wang summarized empirical findings on this subject which he is publishing in a forthcoming article.

The article tests his theory about the incentives to bribe using firm-level survey data from China. The paper creatively proposes—in a field where hard numbers can be very hard to come by—to use entertainment and travel costs (ETC) as a proxy for estimating graft by China firms. Based on his analysis of these numbers and his qualitative interviews, Prof. Wang argues that firms’ bribing behavior can be predicted by internal and external incentive structures of the firm. Internally, firms with stricter internal auditing rules spend less on ETC (and presumably, to bribe officials). Externally, firms operating in jurisdictions with relatively-weak property rights can be shown to spend more on ETC. This may generate a strong inference that firms operating in weak property rights regimes must rely on political connections as a substitute for formal legal protections.

Prof. Wang’s research can be accessed here.

The “Production” of Corruption in China’s Courts and Its Broader Implications

Dr. Ling Li is Senior Research Fellow at the U.S.-Asia Institute of New York University School of Law. Dr. Li addressed judicial corruption in China, arguing that it is an institutionalized activity which is systematically inherent in the particular decision-making mechanism which is guided by the Chinese Communist Party’s instrumental “rule-by-law” ideal.

Dr. Li shed light on the decision-making process in Chinese courts. The judge who sits and hears a case first drafts a judgment. The judgment cannot be issued, however, unless it receives the approval by the head of the division where the judge sits. This system grants the supervising judge, who has not heard the case, discretionary decision-making power. Moreover, the approval process is formalistic with little emphasis on the legal grounds or procedural rights.

See a discussion on how these issues in China’s judicial decision-making mechanism are deeply-rooted in the country’s legal infrastructure here.

Financial Journalism—Conflicts of Interest and Ethics

Dr. Damian Tambini, Senior Lecturer in the Department of Media and Communications at the London School of Economics, joined our discussion via Skype (see an image of Dr. Tambini addressing the audience here). Dr. Tambini talked about the key role that journalists and media play in the phenomenon of corruption. His talk was based on research he conducted in Hong Kong to better understand the role of the legal framework versus self-regulation and internal codes of conduct in the realm of business journalism (including interviews with professional journalists, editors and other experts in the region). Dr. Tambini argued that Chinese media played sort of propaganda role for the government, instead of the role of the supervisory watchdog which we might expect. Moreover, he pointed out that corruption exists within journalists themselves.

Please see more of Dr. Tambini’s research here. A video prepared by Dr. Tambini in advance of the symposium is available here.

Ms. Hom framed her discussion by identifying five problems she sees in the U.S.’s engagement strategy with China.  First, she discussed concessions that foreign governments, corporations, media and international NGOs make in order to maintain access to China.  Foreign actors often remain complacent with, rather than challenge, Chinese government policies for fear they will be kicked out of the country.   Second, she discussed policymakers’ emphasis on either/or paradigms for China (such as bilateral vs. multilateral strategies, pressure vs. cooperation, and human rights vs. trade advocacy).  She argued that these either/or paradigms emphasize the wrong questions and present false choices for policymakers.  Instead, she suggested that Americans ask themselves what interests are at stake, who benefits from a specific strategy, and who should decide — and consider ways to incorporate different methods and strategies to achieve their goals.

Third, Ms. Hom described how “frog at the bottom of the well” thinking limits U.S. engagement efforts.  Referring to the classical Chinese aphorism, Chairman Mao once said, “We think too small, like the frog at the bottom of the well.  He thinks the sky is only as big as the top of the well.  If he surfaced, he would have an entirely different view.”  Ms. Hom applied this metaphor to modern-day Chinese and American policymakers, who view market-driven reforms as delivering real, concrete benefits to millions of Chinese, but may fail to grasp the totality of the situation in China.  Fourth, Ms. Hom disclaimed the idea that merely exposing human rights violations in China will solve such problems.  And fifth, she disagreed with the “trickle-down with Chinese characteristics” notion, that market liberalization and wealth will trickle down to create a strong middle class that will push for political liberalization and respect for human rights.  Her decades’ worth of experience in China leaves her skeptical but recent developments in China do raise the possibility of a more activist middle class.

Ms. Hom also discussed HRIC’s technology and human rights initiative, focusing on Internet freedom and censorship.  Ms. Hom explained how China’s state-of-the arts censorship, surveillance, and monitoring technology (a.k.a “the Great Firewall”), the current legal framework, and China’s security apparatus create a chilling climate of fear and self-censorship.  But despite the government’s efforts, the Internet and social media platforms have expanded rapidly in China over the past decade, with netizens increasingly voicing their grievances and raising key social issues, such as corruption, environment, workers rights, tainted consumer products, and abuses by authorities and extra-legal forces.  As part of its strategy of engaging diverse constituencies, HRIC was also one of the founding NGOs of the Global Network Initiative, a multi-stakeholder group dedicated to advancing and protecting freedom of expression and privacy in the ICT sector.  Ms. Hom also introduced two new video series produced by HRIC on its Youtube channel.

Ms. Hom came to Penn Law as part of a colloquium featuring distinguished Chinese human rights scholars and activists.  Past speakers include Bob Fu, founder and president of China Aid, and Amy Gadsden, former special advisor to the State Department on Chinese NGOs and Penn Law’s current dean of international programs.  The colloquium meets every Monday during the spring semester, in Silverman 240B at 4:30pm, and is open to the public.

Bob Fu is the founder and President of ChinaAid, a non-profit organization that focuses on religious persecution in China, especially on unofficial “house churches” in China. Mr. Fu was the pastor of a house church and, along with his wife, imprisoned for “illegal evangelism.” He has written on religious persecution and human rights in China and testified before the House International Relations Committee, the U.S. Commission on International Religious Freedom, the U.S. Congressional-Executive Commission on China and the UN Commission on Human Rights.