Kicking off the celebrations for its 10th anniversary, Peking University School of Transnational Law (STL) hosted an academic symposium on “China, The U.S. and Comparative Law Today“. The event took place on the 23rd and 24th of November and brought together leading scholars, from China and abroad, to explore the concept of legal orientalism by considering how interactions across borders and legal systems have shaped law in both China and the US. Speakers also grappled with the implications of legal orientalism for the field of comparative law and legal reform projects.
On November 23rd, STL Associate Clinical Professor Nicholas Frayn chaired the main public session, during which Professor Teemu Ruskola at Emory University School of Law, the author of Legal Orientalism: China, The United States, and Modern Law, discussed his book. In his book, he argues that the US conception of its own legal system was in part formulated through its interactions with Chinese law and its understanding of the Chinese legal system. Legal orientalism suggests that the conventional ways that legal practitioners, scholars, and government officials engage across legal systems can prevent meaningful understanding of the “other” system. Thus, Ruskola’s account challenges the very enterprise of comparative law and suggests comparative law tells us more about the practitioner’s own legal system, than about the one she claims to study.
Engaging in this comparative discussion between Chinese and Western legal cultures, Liang Zhiping, Professor at Chinese National Academy of Arts, presented his own views on the challenges faced by China. He argued that, since China did not experience changes akin to the Western model of reform, China had to find a new base that weaved in elements of its own traditions. Finally, the session concluded with Zheng Ge, Professor at Shanghai Jiao Tong University KoGuan Law School, offering his perspective on the matter by analyzing contemporary Chinese law through the lens of his prior teaching experiences in Hong Kong. He examines Ruskola’s account of Chinese Law, especially Chinese traditional law, as compared to that depicted by other Chinese scholars.
The following day was divided into four workshops. The first was titled “Comparative Law And The Problem of Legal Orientalism: What’s Next?”, the second was titled “The United States and the Legacy of Legal Orientalism”, while the third was titled “Historical Origins and Impacts of Legal Orientalism” and finally the fourth, “ Comparative Law and Chinese Legal Reform.”
These workshops further investigated the concept of legal orientalism from several angles. Some speakers interrogated the very existence of the phenomenon, challenging some of the claims of legal orientalism, while considering the implications for comparative law or of any study across legal systems. Other speakers considered how the phenomenon of legal orientalism has shaped legal development in the US while others considered how orientalizing notions of Chinese law may influence legal reform in China.
The workshops were moderated by STL’s faculty while speakers included professors from Peking University, Tsinghua University, Shanghai Jiao Tong University, Emory University, and Hong Kong University.
During Fall 2017, three STL students and one graduate undertook prestigious judicial externships in the United States. LI Mengshi (class of 2017), LI Yidan and ZHENG Xinjia (class of 2018), and ZHANG Xi (class of 2019) share their experiences.
LI Mengshi: Clerk for Chief Justice Ralph Gants, Massachusetts Supreme Judicial Court (Boston, Massachusetts)
During my internship at the Massachusetts Supreme Judicial Court (SJC), I performed tasks typically assigned to legal interns from U.S. law schools. My daily assignments included legal research and writing on cases pending oral argument, as well as analyses of cases seeking direct appellate review. Guided by the Chief Justice and his clerks, I drafted an opinion regarding a defendant who was seeking further appellate review of his murder conviction.
To help current and future STL students get a better picture of the daily life at the SJC, I lay out a high-level itinerary below:
|Sep 5-Nov 16
||Drafted 15 Direct Appellate Review Summaries.
||To explore the possibility of a dissent, researched on whether certain type of Sexual Offender Registration Board (SORB) classification would infringe upon liberty interests that is a per se miscarriage of justice warranting retrial.
||To prepare the court before oral arguments, researched on the appropriateness of certain probate conditions imposed on individuals with drug addictions, and what might be the legitimate court-initiated measures (detention or involuntary inpatient treatment).
||Researched on the applicability of collateral estoppel in a parallel civil action when the underlying criminal appeal is pending; and then researched where the doctrine of abatement ab initio applied to the underlying criminal appeal (meaning once a defendant is dead, the criminal case is invalid from the beginning), whether and how would collateral estoppel apply.
|Oct 23-Nov 9
||Helped to draft a speech on the intersection between behavioral health and criminal justice reform based on Judge Minehan’s draft; discussed the topic with Judge Coffey and forensic scientist Stephanie; coordinated with organizers of the Event; attended the Event.
||Drafted a Single Justice Opinion on gatekeeper petition.
||Attended the Justice for All 2017 Working Group Summit.
|Sep 5-Nov 10
- Sat in oral arguments at the SJC. Participated in discussions with the CA team after the Justices’ consultations.
- Sat in oral arguments at trial court level, including the Land Court Department, the BLS, and mental health court as a specialty court.
|Sep 5-Sep 19
||Attended the Clerk/Intern Orientation Program of the 2017-2018 Court Year spanning standards of appellate review, finality of judgments, and preparing an opinion ready for the editing process.
|Sep 5-Nov 16
||Attended lectures and social law events, featuring:
- a talk by Harold Koh on the development of international criminal law after the Nuremberg Trial,
- the State of the Judiciary event summing up the achievements and future plan of Massachusetts, and
- the 325th Anniversary of the SJC chaired by 4 Chief Justices
In addition to formal trainings and works at the SJC, I also enjoyed many fun events. Ranking first are meals with the Chief Justice and the Chief’s Cohort, led by our beloved Carina. To this day, I always think of moments like strolling from Mike’s Pastry to the Bill Russell statute with the Chief after dining at the North End, warm and relaxing after-work café breaks with Carina, and a hilarious bus ride to New York with Angelica (another intern for the Chief). I highly recommend any STL student loving the law to apply for such a court internship. It will be tremendously rewarding!
LI Yidan: Clerk for Chief Judge Patti Saris, United States District Court for the District of Massachusetts (Boston, Massachusetts)
The responsibilities of interns include assisting and observing court proceedings, conducting research/writing bench memo/drafting order regarding any assigned case, proofreading and cite-checking as requested by the law clerks. As is true in any professional law office, the work done by interns is the foundation. Judicial interns need to clearly identify the legal issues, lay out the legal standards in the particular jurisdiction, and thoroughly engage with the evidence on the docket. The key is to be as patient and thorough as one can. When I was working, I did as much research as I could and wrote as succinctly as I could.
In addition, communication was another import aspect of this job. The assignments would come from law clerks or the Chief Judge herself. The first step was to know what I was expected to do with each assignment. Sometimes they would tell me their initial assessment and ask me to confirm it. Sometimes they would tell me to “do whatever is necessary” with the case, which means I need to exercise my best judgment to advise the Judge on what she needs to do with regard to either a motion or a hearing. Once I developed my own understanding of the assignment, I would quickly touch base with the law clerks to exchange ideas. A quick talk like this would reduce the risks of misunderstanding and increase efficiency.
This job also required me to work under pressure. Anything can happen in court, including emergency cases or motions that require quick reactions. It makes a difference under these stressful circumstances if you are able to spot issues with surgical precision and efficiently research and analyse the issues. I always reminded myself to stay level-headed and to think logically. I would highly recommend this internship to STL students who not only want to experience authentic American legal practice, but also have the drive to meet new challenges on a constant basis.
ZHENG Xinjia: Clerk for Chief Judge Geoffrey Crawford, United States District Court for the District of Vermont (Rutland, Vermont)
My daily responsibilities included attending court hearings, reviewing submissions from counsel, conducting legal research, drafting legal memos, and checking citations for final judgments. I worked on cases involving the defense of entrapment by estoppel and negation of intent, the validity of arbitration agreements, disputes over jurisdiction, and claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), the Fair Debt Collection Practice Act (“FDCPA”), criminal law, contract law and the U.S. Constitution.
During my internship, I went to the Second Circuit in New York where Judge Crawford was invited to serve as a guest judge. In the Second Circuit, I observed and appreciated the very high level performance of elite litigators. I also got chances to meet with state court judges, state prosecutors, lawyers, law school professors and law students in Vermont. We also were honorably invited to visit the Vermont Bar Association and participate in their Annual Meetings.
This internship broadened my horizons. It upgraded my understanding of the U.S. judicial system and served as valuable legal professional training, as well as a wonderful cultural exchange experience.
I am really grateful for the training I received from STL, including but not limited to STL’s dual-degree curriculum, moot court opportunities and law review, all of which enabled me to successfully complete my judicial internship. The skills I learned in STL allowed me to comfortably adjust to new conditions, use my problem solving skills to analyzing new legal problems and present my legal analysis confidently in front of Judge Crawford and colleagues.
Meanwhile, this experience also reminded me of my mission and dedication as a law school student who has received nearly eight-year legal training in both Chinese law and American law. Being able to understand the differences in legal regimes, judicial practice, professional environments as well as social and cultural traditions, I was obliged to confidently represent our deeply loved country in cross-border legal communications and gracefully mitigate the gaps in transnational law practice.
“Not everything that can be counted counts; not everything that counts can be counted.” A brief quote in memory of my unforgettable internship in the District Court of Vermont.
ZHANG Xi: Clerk for Chief Judge Geoffrey Crawford, United States District Court for the District of Vermont (Rutland, Vermont)
During this externship, I conducted in-depth legal research to support court orders and opinions, and I attended drug court every two weeks. Judge Crawford was very kind to let us audit every hearing, even the routine ones. Observing hearings was one of the favorite parts of my externship.
I learned a lot from this incredible externship, including refining my research and advocacy skills. I have heard that the first supervisor/mentor in one’s career can have an influence over the course of your career. I feel so lucky and honored that I started my career with Judge Crawford and the U.S. District Court of Vermont. Judge Crawford’s commitment to his work and his kindness toward colleagues left a deep impression, which will empower my career constantly.
A new book on current developments in the law of the sea has been published by Brill, co-edited by STL Assistant Professor Stephen Minas. “Stress Testing the Law of the Sea: Dispute Resolution, Disasters & Emerging Challenges” is jointly edited by Professor Minas and H. Jordan Diamond, who is Co-Director of the Law of the Sea Institute at the University of California, Berkeley. The book examines key developments that are placing pressure on the current legal framework, which is centered on the United Nations Convention on the Law of the Sea. Part I of the book explores changing norms of marine dispute resolution in an era when the lines between private and public governance are continually shifting, while Part II explores emerging issues including climate change, disasters, and expanding energy exploration.
Professor Minas summarized the contribution of the book: “The combined effect of increasing competition for resources in the high seas, new technologies to exploit the ocean’s natural wealth and climate change are placing our ocean’s ecosystems under increasing strain. In this book, leading scholars and practitioners explore the application and adaptation of the law of the sea, including its substantive and dispute resolution elements, to meet these intensifying challenges.”
STL Professor Sang Yop Kang, scholar of corporate law and corporate governance, was invited to lead discussion at a workshop on “Business Transactions and Corporate Governance in Asia,” jointly held by National University of Singapore and Stanford Law School. Professor Kang presented and discussed on the Vanke-Baoneng takeover case and the hostile takeover regime in China.
A small number of leading scholars discussed a variety of corporate governance issues in Asia. Other participants include Professors from Stanford Law School, University of California Berkeley and University of Tokyo.
The potential for a new treaty to protect high seas biodiversity was on the agenda at the Ocean Law and Governance International Symposium on “Marine Scientific Research and the Law of the Sea”, which was held in Hangzhou during 26-27 October with participation from STL. The symposium was jointly organized by the Centre for Ocean Law and Governance/Guanghua Law School, Zhejiang University, and the National Collaborative Centre for South China Sea Studies, Nanjing University.
STL Assistant Professor Stephen Minas participated in the session on “Emerging Challenges to the Freedom of Marine Scientific Research”, with a presentation on the topic on marine technology transfer in a new international legally binding agreement on the protection of biodiversity in areas of the sea beyond national jurisdiction (BBNJ), which is currently being negotiated. Professor Minas discussed options for technology transfer through the new agreement, building on lessons learned from the technology programs of the UN Framework Convention on Climate Change, the Paris Agreement and the Convention on Biological Diversity. Professor Minas’ presentation drew on his recently article published in AJIL Unbound. Other speakers in the same session included Erik Franckx, Professor of International Law at Vrije Universiteit Brussel (VUB), QIN Tianbao, Professor at Wuhan University Institute of International Law, and Anastasia Telesetsky, Professor at University of Idaho College of Law.
The symposium was held as United Nations talks to establish a BBNJ agreement enter an important phase. An international preparatory committee on the new agreement delivered its report in mid-2017. Following this, an intergovernmental conference was convened to negotiate the new agreement, and held its first session in September 2018. Further negotiating sessions will be held in 2019 and 2020.
Professor Ray Campbell was one of the leading scholars to be invited to speak at the LexTech 2018 Conference, October 26 in Kuala Lumpur. Professor Campbell participated in a panel on “AI & BIG DATA: AI – POCALYPSE OR A NEW ERA,” and spoke on “AI Judges: The Minority Report or Jarvis?”. He focused on the use of AI in courts and mediation. Professor Campbell has written extensively about the changing dynamics of the legal profession and the role of innovation and regulation in the delivery of legal services.
LexTech 2018 aimed to drive legal technology adoption in the region and strengthen the regional legal technology community. This year’s event drew out the largest audience yet with over 15 sessions covering cutting-edge topics. The event created a unique opportunity for attendees to hear from, and meet with, industry leaders who are shaping the future of this legal field.
On October 14, 12 alumni representatives from different classes assembled in Shenzhen for STL’s first Alumni Advisory Board meeting. Established last year, the Alumni Advisory Board is an important advisory forum that represents the interest of alumni, and connects STL and alumni with STL’s progress. Dean Philip McConnaughay and STL’s senior administrative team made presentations and responded to questions and suggestions during the meeting.
STL’s administration provided detailed reports on developments and achievements in admissions and student recruiting, J.M. and J.D. curriculum development, faculty appointments, career placement, communications, international programs and exchanges, fund-raising, the creation of new opportunities for STL graduates access to U.S. bar examinations and admission to practice, and the recognition of STL’s 10th Anniversary.
The Advisory Board weighed in with many valuable suggestions regarding all of these matters, and with specific commitments to help – and enlist other alumni to help – with all law school objectives. The Board and STL administration are planning a major 10th Anniversary celebration weekend for Spring Semester 2019.
STL hosted 2018 Admissions Open House for prospective law students all over China on October 13. The Open House offered interested students a unique opportunity to experience STL’s cutting-edge dual degree J.D./J.M. program of education.
The full day program included the welcome ceremony by Dean Philip McConnaughay and the J.D. class. Students also participated a lecture on Challenges and Benefits of Learning Common Law and Civil Law Simultaneously by J.M faculty and a discussion panel with current STL students.
For more information on the admission process or future Open Houses at STL, please follow us on Wechat or contact email@example.com.
On September 16-17, Professor Mark Feldman was invited to attend the 2018 China Arbitration Summit in Beijing. The Summit was co-organized by the Supreme People’s Court of China, the United Nations Commission on International Trade Law (UNCITRAL), the China Council for the Promotion of International Trade, as well as the China International Economic and Trade Arbitration Commission (CIETAC). It is one of the most influential gatherings in the field of international commercial arbitration.
In celebrating the New York Convention’s 60th anniversary, the Summit aimed to reflect on the legacy of international dispute resolution mechanisms of enforcement available hitherto. Moreover, it sought to examine the prospect of diversifying and internationalizing dispute resolution mechanisms and exploring the ways in which the integration of different legal cultures has impacted dispute resolution.
Professor Feldman participated in a panel entitled Retrospect and Prospect: 60th Anniversary of New York Convention. The Panel was moderated by Anna Joubin-Bret, Secretary of UNCITRAL. Other panelists included Shen Hongyu, Presiding Judge of Supreme People’s Court of China, Kap-You (Kevin) Kim, Vice President of ICC International Court of Arbitration, Leng Sun Chan, Deputy Chairman of Singapore International Arbitration Center, Roman Zykov, Secretary General of Russian Arbitration Association, Emmanuel Jacomy, Partner of Shearman & Sterling LLP, and Matthew Richardson, Partner of Alston & Bird LLP.
In his talk, Professor Feldman addressed the question of whether there have been any major developments with regards to international dispute resolution and enforceability over the past ten years, since the 50th anniversary of the New York Convention. He concentrated on two significant developments, namely, (1) the entry into force of the Hague Convention on Choice of Court Agreements in 2015, and (2) the shifts towards greater institutionalization as demonstrated by the EU’s establishment of an Investment Court System as well as the launch of international commercial courts in jurisdictions including Dubai, Abu Dhabi, Singapore, and China. Professor Feldman observed that for states pursuing greater institutionalization to resolve international disputes, there currently are two options available with respect to enforceability: first, testing the outer limits of the New York Convention, and second, seeking to advance the existing regime for enforcement of foreign judgments. Professor Feldman concluded that China and Singapore, by pursuing “option two” with respect to their recently-launched international commercial courts (seeking to advance enforceability of foreign judgments), ultimately are supporting the New York Convention by not testing its outer limits.
Professor Feldman is a leading scholar of international investment law and investment arbitration. Recently, he has been appointed by the Geneva Center for International Dispute Settlement (CIDS) to serve as a member of the CIDS Academic Forum on Investor-State Dispute Settlement.
Sang Yop Kang, Professor of Law at STL, was invited to present on his work at an international conference, “Pioneering a Trans-Pacific Vision in Corporate Law and Capital Market Law,” held at Seoul National University School of Law.
Professor Kang’s presentation was titled “Hostile Takeovers in China.” It was based on his draft on the Vanke case and the Chinese takeover mechanisms. In his presentation, Professor Kang discussed the episode of Baoneng Group’s hostile takeover attempt of Vanke and delved into several corporate governance issues in relation to the Vanke-Baoneng case. First, Professor Kang analyzed the relationship between ownership structures and hostile takeover attempts. He also considered, in the Chinese context, the (in)efficiency of the market for corporate control as well as the role of a white-knight. In addition, he examined the significance of the insurance industry and companies in the Chinese M&A market and the suspension of stock trading as a defensive tactic. Furthermore, Professor Kang elaborated on the comparative analysis of the issuance of new shares and a poison pill strategy. Also, he evaluated the financial regulatory system in China and explored a variety of political implications that the Vanke case and Chinese takeovers may bring.
Professor Kang teaches and researches in the areas of corporate governance, corporate law, law and economics, capital markets and financial market regulations.