China and the (Not Very Positive) Future of International Adjudication

by Julian Ku

While I am at it, I might as well flog my most recent piece on China’s relationship with international tribunals and international adjudication more generally.  This study, which attempts to document all of China’s treaties that include compulsory dispute resolution clauses (excepting bilateral investment treaties), concludes that China is unlikely to become a strong supporter and participant in mechanisms of international adjudication.  Like the United States, China is consistently wary and cautious about such international mechanisms. The abstract is below:

Traditionally, the People’s Republic of China (PRC) has shunned participation in international adjudication, preferring to settle all disputes through direct negotiations. But in the past two decades, this wholly negative approach to international courts and arbitration tribunals has begun to shift. In addition to the acceptance and active participation in the Dispute Settlement Body of the World Trade Organization, the PRC has also accepted limited jurisdiction for arbitration under the International Center for the Settlement of Investment Disputes (ICSID) and the International Tribunal for the Law of the Sea. Despite this shift, the PRC still follows a policy of strictly limiting its exposure to international adjudicatory mechanisms. This strategy, which is similar to that practiced by the United States, suggests that international adjudication faces difficult prospects in the long term.

http://opiniojuris.org/2012/08/21/china-and-the-not-very-positive-future-of-international-adjudication/

2 Responses

  1. The Chinese have read professor Tai-Heng Cheng’s new book and now they think as follows:

    “We should follow formal, positive international law most of time, except when we shouldn’t. In those cases, we should find a way to do the right thing without undermining the overall international legal system, which has an inherent moral value in maintaining minimum world order.”

    And international adjudication would prevent China from realizing this in practice.

  2. Julian,

    I look forward to reading your piece. I wrote a post on EJIL:Talk! about this issue a couple of years ago 
    http://www.ejiltalk.org/is-china-changing-its-view-of-international-tribunals/

    At the time what struck me was that China had recently taken part in oral proceedings at both the ICJ and ITLOS. Those were the first oral proceedings that China had been involved in since WWII. It seemed to me that there was a discernible shift in policy. Do you think that shift in policy is of any significance?

    Dapo

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