Harbour Lecture – The Rule of Law with Chinese Characteristics: Impact on the Belt and Road
Reporter: Dominic Afzali (Harbour Litigation Funding, London)
The Harbour Lecture continues to be a showpiece of the Hong Kong Arbitration Week. Following the insightful lectures by Neil Kaplan CBE QC SBS and Gavan Griffith QC in the previous two years, Meg Utterback (partner at King & Wood Mallesons) delivered the third annual Harbour Lecture on 30 October 2018 on the topic of “The Rule of Law with Chinese Characteristics: Impact on the Belt and Road”. The purpose of the Harbour Lecture is to provoke thought and to challenge the audience, and Meg’s lecture did not disappoint. Meg delivered the lecture to an (over)capacity crowd. Indeed, extra rows of chairs had to be brought in to accommodate the overflow of attendees.
Meg began her lecture by expounding upon the rule of law in the Greco-Roman and Anglo-Saxon tradition. Meg traced its development from the Roman Emperor Marcus Aurelius, to the Magna Carta, to the judiciary under Henry III’s willingness to subject the king to law, and to Professor Dicey. She brought it closer to more modern times by elaborating on the eight essential elements to the rule of law identified by the American legal philosopher, Professor Lon Fuller. These elements include that law must exist, be published, be written with reasonable clarity, and be prospective in its application. At its core, Meg summarised that, in the Western tradition, the rule of law provides parties with predictability. That is, when the law is applied in a way that is fair and impartial, it is possible to predict how a case is going to come out.
Meg then turned to the rule of law in China. She emphasised that Western lawyers should not be insisting that China adopt the rule of law as it is known in the West. Rather, Western lawyers need to be open-minded and willing to adapt to the Chinese way of thinking about rule of law, or, as she put it, “rule of law with Chinese characteristics”. These characteristics place value on social harmony and focus on coming to a solution. This explains why Chinese courts may be willing to rewrite contracts on the basis of equity. It also explains why mediation has been promoted so highly as a form of ADR. Indeed, Meg noted that Med-Arb is widely considered to be the best means to resolve commercial disputes in China.
Nevertheless, Meg observed that there are some indicia that Western characteristics of the rule of law are migrating into China, albeit with a Chinese angle. She pointed to ongoing judicial reforms, and she suggested that these reforms should ensure that judges be: (1) credible, i.e., have adequate legal credentials and experience; and (2) autonomous; and (3) able to decide cases.
Meg finished the lecture by making several predictions about future trends related to the rule of law in China. She predicted that mediation and Med-Arb would increasingly be used to resolve commercial disputes, and that there would be less reliance on Western adversarial methods such as cross-examination. She suggested that the increasing use of mobile phone apps such as WeChat to conduct business (and indeed to seek legal advice) would possibly erode attorney-client privilege. In light of China’s Belt and Road Initiative, she considered that international contracts (and disputes under them) would increasingly be governed by PRC law. She concluded wryly that, whichever the governing law and however it is applied to disputes, third party funders will continue to adapt to meet the parties’ needs.