Wednesday, February 28, 2007

China and Its Securities Markets

The question of the hierarchy of power has served as a central concern of the Chinese Communist Party since the successful conclusion of its Revolution and Civil Wart in 1949. Officially, the political community has been accorded primacy in the power hierarchies of China, and within that community, the Chinese Communist Party has served as the superior institution of power over the apparatus of state power, the National People’s Congress and its institutions. Economic power has always been deemed a dependent source of authority. Indeed, the imperatives of Marxist-Leninist-MaoZedong Theory make clear that economic power is not merely subordinate but is an instrumental expression of political power. Even as China moved to a market economy with socialist characteristics from the time of the leadership of Deng Xiao Ping, the ruling ideology made clear that economic power was personal, private, incidental and instrumental—a means for the development of the nation as a whole as it moved forward through the stages of the dictatorship of the proletariat to an advanced stage of socialist development. Though the theory has some peculiar echoes to the economic theories of American conservatives like Ronald Reagan (the rising tide lifts all boats theory of economic development), the basis of Chinese economic theory in the imperatives and value of a command economy framework continues to distinguish it from most other economies in the West.

It should come as something of a surprise, and not a pleasant one for the Chinese Communist Party and its state apparatus, that economic power in China has assumed an autonomy and power great enough, even at this stage of its development, to publicly, effectively and quickly affect state policy. On February 27, 2007, the “benchmark Shanghai Composite Index fell nearly 9%, its worst daily performance since February 1997.” Share Sale Knock Chinese Market, BBC News (Feb. 27, 2007) There were many causes for the drop. For my purposes, the most interesting were those tied to rumors of certain government action: the imposition of a capital gains tax to siphon off the wealth generated through trading, the dismissal of a senior management official at the Shanghai Exchange, and “rumours of a crackdown on illegal share offerings and trading, as well as fears about accelerating inflation.” Id.

By the 28th of February, the Western press was reporting that the Chinese government had issued a notice on the front pages of important news sources that it had no intention of taxing gains, the Shanghai stock exchange official appeared not to be leaving his post, official was forced to report, and that there would be no crackdown on markets. The government had little choice it seems: “The BBC's Quentin Sommerville in Shanghai said investing in shares had become increasingly popular at all levels of Chinese society and the government was worried that it would be blamed should the market suffer a prolonged slump.” Id.

What ought to worry the political authorities more is that this expression of power is not necessarily coordinated or controlled. It is popular power—in a sense the economic equivalent of a local riot. The Chinese authorities were wise to quickly correct the “misperceptions” that led to the sell off. It would be even wiser to coop the emerging leaders of the economic sectors. From the Communist Party’s perspective, the wisdom of Jiang Zemin’s Three Represents theory becomes even more evident now. Among its elements was the notion that Party Membership ought to be open to members of the market sector. See Larry Catá Backer, The Rule of Law, the Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the 'Three Represents'), Socialist Rule of Law, and Modern Chinese Constitutionalism, Journal of Transnational Law and Contemporary Problems, Vol. 16, No. 1, 2006 and my prior post on the Three Represents. Opening the membership of the Party to the leaders of the economic sector, effectively giving them a voice within important Party circles, in return for conformity to the basic political and social norms represented by the Party might be the best way to handle the problem. The greater the distance between the Party and the economic sector, the more difficult it will be for power to be effectively bounded within the institution of the Party. From Western perspectives this would be a good thing. From the perspective of stability in China, as it continues to undergo a very uneven development, the results, at this stage of its development, might not be so good.

Thus, the great moral of the Shanghai Market drop—Incorporate the economic elements!

Monday, February 26, 2007

China: Law, Economy and Foreign Relations—A Symposium Introduction

The promise and challenges of Chinese law, economy, and foreign relations is nicely framed within the Chinese Constitution (XIAN FA (1982)(P.R.C.)). Article One of the Constitution provides that “The People's Republic of China is a socialist state under the people's democratic dictatorship.” Id. This foundation of state organization is elaborated in Paragraph Seven of the Preamble, which provides that:
Under the leadership of the Communist Party of China and the guidance of Marxism-Leninism, Mao Zedong Thought and Deng Xiaoping Theory, the Chinese people of all nationalities will continue to adhere to the people's democratic dictatorship, follow the socialist road, persist in reform and opening-up, steadily improve socialist institutions, develop a socialist market economy, advance socialist democracy, improve the socialist legal system and work hard and self-reliantly to modernize industry, agriculture, national defense and science and technology step by step, promote the coordinated development of the material, political and spiritual civilizations, to turn China into a powerful and prosperous socialist country with a high level of culture and democracy. Id.

Equally powerful is the cultivation of an irredentism with Chinese characteristics. The Preamble to the Constitution provides that “Taiwan is part of the sacred territory of the People's Republic of China. It is the lofty duty of the entire Chinese people, including our compatriots in Taiwan, to accomplish the great task of reunifying the motherland.” Id.

These Constitutional passages set forth all of the elements of Chinese political organization: democratic dictatorship under the leadership of the Chinese Communist Party (CCP) (Structure of the State: The Party in Power), the central role of political ideology as a constraint on and blueprint for the leadership asserted by the CCP, the focus on the material and cultural development of the nation, and the elimination of the last vestiges of colonialism through the expansion of the territory of the State to its greatest extent during the period of Imperial organization.

The passages also reveal the conflations of Chinese approaches to ideology that befuddle the West: democratic dictatorship and democracy, Marxism-Leninism as a foundational guiding ideology, and modernization in the context of a free-market system of globalization, strong support of self-determination of ethnic peoples, and fierce Taiwanese irredentism. Many of the difficulties and challenges of Chinese development in law, economy, and foreign relations are problems of ideology.

Current political theorizing, a product of and reaction to the ideological and political upheavals of the Cultural Revolution, forms part of a growing and complex system of political and governance principles with profound effects on Chinese law, economics and politics. The foundations of this system can be traced back to the late 1970s and the triumph of Deng Xiaoping. Deng set the country on the path to attainment of four modernizations—China's industry, agriculture, national defense, and science and technology—by an ideological and political adherence to the Four Cardinal Principles. Deng identified these as “1. We must keep to the socialist road. 2. We must uphold the dictatorship of the proletariat. 3. We must uphold the leadership of the Communist Party. 4. We must uphold Marxism-Leninism and Mao Zedong Thought.” Deng Xiaoping, Uphold the Four Cardinal Principles, Remarks at a forum on the principles for the Party's theoretical work (Mar. 30, 1979). From out of these ideological beginnings, China has begun to build a rich matrix of governance.

But this matrix is in its infancy. And so it should come as no surprise that the ideological journey of the People’s Republic of China has not been smooth, nor is it anywhere near complete. This is no revelation to the leaders of the party in power in China—the Chinese Communist Party. Deng understood that China in the 1970s started “from a weak base” (Id.) with “a large population but not enough arable land.” (Id.) The Preamble to the Constitution of the Communist Party of China declares that: “China is at the primary stage of socialism and will remain so for a long period of time. This is a historical stage which cannot be skipped in socialist modernization in China that is backward economically and culturally. It will last for over a hundred years.” (Constitution of the Communist Party of China, amended and adopted at the 16th CPC National Congress on November 14, 2002, Preamble,)

Deng’s approach to finding an answer to those problems has set the stage for the development of Chinese political theory ever since: “We can surely find ways of solving these problems. But I am not going to discuss them today. What I want to talk about now is ideological and political questions.” (Deng, Uphold the Four Cardinal Principles). We have been talking about ideological and political questions in China ever since.

During the last months of 2005, Chinese President Hu Jintao added an additional element in the construction of a post Mao Zedong ideological theory that has been reshaping the normative foundations of the People’s Republic of China. This layer is known in the West as the Three Harmonies or “he-ping, he-jie and he-xie. This ‘triple he [harmony]’ can be rendered as ‘seeking peace in the world, reconciliation with Taiwan, and harmony in Chinese society.’” (Willy Lam, Hu Jintao’s Theory of the “Three Harmonies,” 6 CHINA BRIEF (Jan. 3, 2006)) The Three Harmonies are complex and ambiguous. On the one hand, they might be read as the announcement of a new active principle of Chinese engagement—with its own citizens through law, with the global community through peaceful relations based perhaps on current patterns of economic globalization, and with estranged members of the Chinese political community in Taiwan. (Id.).

But the Three Harmonies can be read in another way as well. Journalist—lexicographer Victor Chen points out that, like so many complex Chinese ideographs, the Three Harmonies are subject to other interpretations:
The three harmonies should be read in the passive voice. China does not actively “seek peace in the world”. China wants the world to regard her as a peaceful world power. Nor is China at present “actively seeking” a non-peaceful resolution to the Taiwan problem but “waiting” for a peaceful resolution. Most importantly to the Beijing authorities, “social harmony” means controlled conformity against social and ideological liberalization. (Sol Sanders, Reading the Chinese Tea Leaves and Coming Up Worried, WORLD TRIBUNE.COM, Feb. 2, 2006)
The Three Harmonies thus serves as an excellent example of the form of Chinese political discourse, its significant practical effects, and its ambiguities. Chinese ideological and political systems ultimately shape the social, political, and economic culture of the People’s Republic of China. In a state that takes political theory very seriously (at least officially) but in which development is still not at an advanced stage, theory and practice, aspiration, and reality serve as critical sites for study.

It is only fitting, then, that the University of Iowa’s College of Law should sponsor a symposium, China: Law, Finance and Security, on February 10, 2006 (University of Iowa Center for International Finance and Development, China: Law, Finance & Security Conference, Feb. 10, 2006). The program was sponsored by the University of Iowa College of Law, the University of Iowa Center for International Finance & Development, the University of Iowa Center for Asian and Pacific Studies, Transnational Law & Contemporary Problems, the University of Iowa’s International Programs, the International Law Society at the College of Law, and the University of Iowa Student Government. (Id.) Professor Enrique Carrasco said, “China was chosen as a topic because it is becoming such a significant player in the world economy. The Chinese economy has been growing at a rate exceeding 8 percent a year and its GDP is now the fourth largest in the world.” (Leach Discusses China Economy, Taiwan Relations In Law School Address, THE UNIVERSITY OF IOWA NEWS SERVICE, Feb. 13, 2006, (quoting Enrique Carrasco, a professor of law and director of the UI Center for International Finance and Development, a program co-sponsor), available at [hereinafter Leach Discusses China]).

The Three Harmonies touch on the most significant challenges to the modern Chinese state: its law, its economic organization, and its foreign relations. The Conference focused on the difficulties and opportunities for China in each of these three areas. (Conference Program, University of Iowa Center for International Finance and Development, China: Law, Finance & Security, (Feb. 10, 2006)). The symposium began with welcoming remarks by Professor Eric Andersen, Associate Dean for Academic Affairs, University of Iowa College of Law, followed by an Introduction to the Program delivered by Professor Enrique Carrasco, the Director of the University of Iowa Center for International Finance and Development. U.S. Representative Jim Leach delivered the Opening Remarks. Representative Leach’s remarks were followed by three panels. The first focused on rule of law issues in China. The second examined issues of finance and the development of the Chinese financial sector. The last panel focused on the issue of Taiwan. Closing remarks were delivered by Helen Yu, Erin Peterson, and David Pendergast, the principal student organizers and creators of the conference program.

Representative Leach’s opening remarks focused on an assessment of Chinese reforms over the last thirty years. He started from the assumption that the rule of law and democracy are inseparable. From this assumption, it was difficult to conclude that current Chinese attempts at developing a rule-of-law state would be successful in the absence of the reconstitution of the Chinese Communist Party. As long as the CCP remained the party in power, prospects for democracy—and therefore prospects for an effective rule-of-law society—would be diminished. But Representative Leach believes that change in China is inevitable, and that change will propel China towards greater democratization on a Western model. This may be helped along by the great push toward engagement with the global economy and the economic prosperity it is producing. On the other hand, Representative Leach urged caution on the part of those in Taiwan who sought independence for the Island. While Representative Leach was comfortable with the current ambiguous formal status of Taiwan, he suggested that any move either to force unification with China or to declare formal independence would be terribly destabilizing and produce little by way of any positive effect.

Panel I; The Rule of Law.

The first panel of the day addressed the development of the rule of law in China. The Conference Program set the context of the presentations nicely:

While the term “rule of law” may not have definitive meaning even in the legal systems of developed countries, this same term, as used in China today, can be characterized as an under-defined expression of a state-led effort to modernize a developing society, as well as a slow process of solid legal reforms that can eventually serve the interests of many Chinese citizens. It is therefore very important to discuss what the idea of “rule of law” may entail in China, how it suits and reconciles the demands of a market economy, the government’s current thinking on social stability, and the people’s increasing awareness of the need for a fair system of dispute resolution. (Conference Program)

The panelists included myself, presenting “Chinese Constitutionalism, Sange Daibiao (The ‘Three Represents’) and the Rule of Law,” Professor John Ohnesorge, University of Wisconsin, Assistant Director, East Asian Legal Studies Center, presenting “China’s Developing Administrative Law,” and Mr. Xiaoping Chen, Editor-in-Chief, China Law Digest, SJD Student University of Wisconsin, presenting “Chinese Rule of Law: From the Perspective of the Rights Advocacy Movement.” Professor John C. Reitz, Associate Dean of International and Comparative Law Programs of the University of Iowa College of Law, moderated.

I examined Chinese rule-of-law constitutionalism through the framework of the ideological campaigns that have been developed since the leadership of Deng Xiaoping. He suggested that Western criticism of an absence of substantive (that is normative) constitutionalism in China “misses an important recent development in Chinese constitutionalism—the growing importance of writing specific ideological frameworks into the Constitution. This may suggest a greater willingness to advance the implementation of ideology, and the substantive structure it represents, through state power grounded in law.” (Larry Catá Backer, Chinese Constitutionalism, Sange Daibiao (The “Three Represents”), and the Rule of Law, Abstract at The University of Iowa Center for International Finance and Development, China: Law, Finance & Security Conference (Feb. 10, 2006)) The recent Sange Daibiao (Three Represents) campaign suggests the possible parameters and utility of ideology for building a substantive rule of law constitutionalism in China. I argued that a rule-of-law constitutionalism is possible in China only if the identity between State and Party is recognized and serves as a basis for the construction of a legal framework for the implementation of a rule based state: “More Party Less State,” rather than “Less Party, More State,” ought to be the basis for substantive constitutionalism in China.

Professor Ohnesorge focused on the relationship of law to bureaucracy. He suggested that though “China has had legally organized bureaucracy for two thousand years, it is only recently that the country has sought to constrain that bureaucracy though administrative law in the modern sense, enforced by the courts.” (John Ohnesorge, China’s Developing Administrative Law, Abstract at The University of Iowa Center for International Finance and Development, China: Law, Finance & Security Conference (Feb. 10, 2006) He then outlined “China's administrative law reforms to date, looking both at the forces behind these reforms, and at other institutions of Chinese governance that serve related functions.”

Mr. Chen focused on the recent Rights Advocacy movement in China and its “implication to the rule of law.” (Xiaoping Chen, Chinese Rule of Law: From the Perspective of the Rights Advocacy Movement, Abstract at The University of Iowa Center for International Finance and Development, China: Law, Finance & Security Conference (Feb. 10, 2006), ) He raised four major points. First, that the “rights advocacy movement is an interaction among various players including the CCP new leadership, liberal rights advocates, and victims of human rights abuse.” (Id.) Second, he suggested that as a result of the manner in which the rights advocacy movement tested rule of law principles sin China, “ordinary people have realized that the law, not all the time, but most of time, could not protect their rights and interests. The confidence in law is fading.” (Id.) Third, he suggested that “[v]ictims of human rights abuse take rights advocacy as an instrument to seek justice, the liberal rights advocates take it as a law-oriented reform movement in nature, and the CCP leadership takes it as a process to establish legitimacy.” (Id.) Lastly, he concluded that the experience of the rights advocacy movement does not suggest the development of as deeper rule of law environment in China. (Id.)

Panel II: Developments in China’s Financial Sector

The second panel focused on issues of economics and the regulation of China’s financial sector. The Conference Program described the focus of this panel:
Continued success of the Chinese economy will hinge upon the development of its banking sector and financial markets. Even a country pursuing an export-led growth strategy will eventually need robust domestic demand to facilitate sustainable long-term growth. Currently, the Chinese banking sector, burdened by over $200 billion in non-performing loans, is far from being in a position to spur domestic demand and may actually be dampening growth. Top Government officials have repeatedly spoken of the need for immediate banking reform. In addition to decreasing non-performing loans, regulators must improve corporate governance and institute a more thorough risk management system. And effectively regulated and efficient equity and bond markets will afford investors a wider range of investment opportunities, create alternate sources of funding for businesses, and provide much-needed competition for the banks. (General Program)
The two panelists were Dr. Jason Li, Visiting Professorial Fellow, Southern Methodist University Institute of International Finance, Commerce & Technology, Assistant Professor of Financial Law, Head of International Development, Shanghai University of Finance and Economics, presenting remarks on “China’s Securities Markets: Progress, Problems, and Possible Solutions,” and Mr. Ting Zhong, Research Fellow, Southern Methodist University Institute of International Finance, Commerce & Technology, presenting a paper entitled “China (PRC) and Its ‘Long March’ Toward a Modern Banking System,” by Professor Joseph Norton.

Dr. Li spoke of the development of the financial markets in China, with a particular focus on the market in Shanghai. (James Jianwei Li, China's Securities Markets: Progress, Problems, and Possible Solutions, Abstract at The University of Iowa Center for International Finance and Development, China: Law, Finance & Security Conference (Feb. 10, 2006), ) Dr. Li explained the regulatory framework within which the financial markets have begun to grow in China since the re-establishment of the Shanghai market in 1990: the Company Law (which I note was revised again in 2006), the Securities Law and the Securities Investment Fund Law as its pillars. Overseeing this regulatory regime is the China Securities Regulatory Commission (CSRC). Under the current regulatory framework, the financial markets in China have grown significantly: as of “Dec. 31, 2005, there [were] 1378 listed companies, 1464 listed securities, 112 securities companies (including 6 joint ventures), 2 Stock Exchanges, 3 Futures Exchanges, 186 futures brokerage companies, 73.93 million investors. Total market capitalization [was] 4,245.8 billion RMB.” (Id.) Dr. Li then examined the challenges to continued growth of the financial markets. Among the most serious that he noted were the loss of investor confidence in a market in which “85 percent of the investors lost their money” (Id.), and many of the listed companies were in serious financial difficulty. (Id.) Dr. Li identified the principal causes of these problems: “lack of proper legislation system, poor law enforcement, poor regulation, unsound corporate governance, poor investor protection, poor accounting and auditing services, and poor information disclosure. Compared with the United States and Japan, China’s Securities Markets still have a very long way to go.” (Id.) Dr. Li ended with proposals for reform. These included developing a sound system of legislation and enforcement, a good regulatory framework, a focus on the quality of listed companies, increased protection for shareholders, and increased quality of financial intermediaries. (Id.)

Professor Norton’s presentation focused on the attempts by China to create a modern banking system compatible with the emerging standards and expectations of global banking in the Twenty-First Century. (Joseph Norton, China (PRC) and Its ‘Long March’ Toward a Modern Banking System, Abstract at The University of Iowa Center for International Finance and Development, China: Law, Finance & Security Conference (Feb. 10, 2006), He started by explaining that “A modern international banking system requires substantial compliance with evolving and heightened international prudential, operational, and anti-money laundering/terrorism financial standards, along with the liberalization/openness engendered by the move toward a more market-oriented economy and the embrace of the WTO/GATS requirements.” (Id.) He explained that
[i]n the old Chinese socialist banking system, the banking industry was monopolized by the state. All banks were just tools for the implementation of centrally-planned economic purposes. So there is no differentiation between the central bank and commercial banks. The market-oriented reform in the banking sector after 1978 came to include the reconstruction of a central bank, the gradual encouragement of banks in all kinds of ownership, and the opening of the banking sector to foreign competitors. Joseph Norton, China (PRC) and Its ‘Long March’ Toward a Modern Banking System, Abstract at The University of Iowa Center for International Finance and Development, China: Law, Finance & Security
Conference (Feb. 10, 2006),
Professor Norton explained that “A modern international banking system requires substantial compliance with evolving and heightened international prudential, operational, and anti-money laundering/terrorism financial standards, along with the liberalization/openness engendered by the move toward a more market-oriented economy and the embrace of the WTO/GATS requirements.”). (Id.)

Modern Chinese banking then, involved restructuring the big four Chinese state banks: the Industrial and Commercial Bank of China, Agricultural Bank of China, Bank of China, and China Construction Bank “to a flexible share holding system.” (Id.) Professor Norton explained how that restructuring is taking place, within the context of the current legal framework. “Two of them have already been restructured to the share-holding company and international strategic investors have gradually been introduced to share the stake. Last October, China Construction Bank Share-Holding Corporation successfully got listed on the Hong Kong Stock Exchange and took the lead[] in ownership transition.” (Id.) Professor Norton then explained the challenges that still face the banking sector.

One challenge is the high ratio of NPLs [a] problem [that] impairs Chinese banks’ international competitiveness and endangers the national financial stability. A second challenge is the lack of a modern deposit insurance system. . . . Further, with the comprehensive opening of the banking sector at the end of 2006, one of the commitments at the time of China’s WTO accession, China’s banking market will gradually turn to be a more international and competitive environment with a rise in foreign banking. . . . Also, the effective regulation and supervision of the market may pose another challenge for China’s banking regulators. (Id.)

Professor Norton’s paper concluded by suggesting that though the “seeds for a modern banking system have been planted and are beginning to bear fruit” (Id.) the paper concluded that “great challenges also lie in front of the Chinese reformers. China will need another ‘long march’ toward a competitive and healthy modern banking system.” (Id.)

Panel III: China’s Relations with Taiwan

The final panel of the conference addressed “the Taiwan question,” described in the Conference Program as “one of the most perplexing and difficult issues currently existing in international law.” (Conference Program)
The problem was created by ambiguities in treaties made at the end of World War
II and by the split of Chinese sovereignty that occurred at the end of the Chinese civil war. The People’s Republic of China claims that Taiwan is a renegade province that has been a part of the mainland since ancient times and vociferously opposes third-nation intervention in a matter that the PRC considers to be entirely internal. Taiwan points to its vibrant democracy and complete autonomy in political decision-making as evidence that it is an independent political entity, if not an independent nation. Concerned nations are caught between, on the one hand, interacting economically and politically with the PRC on the condition that they not support Taiwanese independence and, on the other hand, assisting the Taiwanese people’s struggle for democratic self-government. As the PRC’s stature on the global economic and political stages rises, the need for a peaceful solution to the “Taiwan question” is increasingly important. (Conference Program)
The two participants in this panel presented provocative remarks on both sides of the issue of the status of Taiwan. Professor Lung Chu Chen, Professor of Law, New York Law School, Founder and President, New Century Institute, presented “Taiwan: The Case for Independence.” Professor Zhengyuan Fu, former Professor, University of California, Irvine, presented “China's Perspective of the Taiwan Issue.” The questions that followed from the participants were lively and well informed. Professor Marcella David of the University of Iowa College of Law moderated the panel.

Professor Chen’s presentation was based on his well-known article, Taiwan’s Current International Legal Status. (Lung-chu Chen, Taiwan’s Current International Legal Status, 32 NEW ENG. L. REV. 675 (1998)). Professor Chen makes the case for Taiwanese independence on the basis of an application of principles of international law to the factual context of the transfer of sovereignty of Taiwan from Imperial Chinese, to Imperial Japanese, to its military occupation by forces from the defunct Republic of China after 1949. (Lung-chu Chen, Taiwan’s Current International Legal Status, Abstract at The University of Iowa Center for International Finance and Development, China: Law, Finance & Security Conference (Feb. 10, 2006), He makes a critical ethnically based distinction between Chinese and Taiwanese people. This ethnic distinction also serves as an important basis for asserting Taiwanese independence. (Id.) He concludes by suggesting that these aggregate differences ought to deepen the case for independence of Taiwan. If Taiwan is not Chinese, then a one China policy can be satisfied without the inclusion of non-Chinese peoples, like those of Taiwan.

Thanks to the continuing and industrious efforts of the Taiwanese people, Taiwan has evolved and existed as a sovereign, independent state in every sense of the word. But under the shadow of China, the controversy concerning Taiwan's international legal status has not disappeared. After the return of Hong Kong to China, a great deal of attention has been focused on Taiwan. Taiwan differs fundamentally from Hong Kong in international legal status. (Id.)
He ends with a plea for Taiwanese independence. (Id.)
Professor Fu made the case for the absorption of Taiwan into China. (Zhengyuan Fu, China’s Perspectives on the Taiwan Issue, Abstract at The University of Iowa Center for International Finance and Development, China: Law, Finance & Security Conference (Feb. 10, 2006), His remarks were based on insights developed from his well known case for reunification, published in 1996. (Id.) He explained that the “format of my talk will be similar to my article which appeared in UCLA Journal of International and Foreign Affairs, but updated to include recent changes in China and Sino-US relations.” (Id., citing to Zhengyuan Fu, China’s Perspective of the Taiwan Issue, 1 UCLA J. INT'L L. & FOREIGN AFF. 321, 322-25 (1996)). Professor Fu started with a review of the historical and cultural roots of the Chinese perceptions of Taiwan’s place within an ethnically related but diverse “China.” (Id.) He then described the evolution of the P.R.C. policy toward Taiwan, as it evolved from a policy of military confrontation to one of patient waiting for eventual unification, bounded only by a willingness to tolerate autonomy but not any move toward de jure independence. (Id., 325-27) Professor Fu then described Beijing’s current policy—“One Country-Two Systems”—and its potential for resolving the issue of the status of Taiwan. (Id., 328-33) This policy, of course, was complicated by the Chinese government’s response to the demonstrations in Tiananmen Square. (Id. at 330-333). Lastly, Professor Fu described the phenomenon of “taidu,” a movement that seeks, at its extreme a much closer connection with Japan, socially, culturally, and politically. (Id., 333-334). Professor Fu notes that this movement is quite emotional, touching on all kinds of social, political, and ethnic sensibilities.
[T]he taidu depict the Japanese colonial rule as benign, disregarding the many acts of brutal suppression inflicted against the Taiwanese by Japanese militarists. While professing their affinity for Japanese rule, some extreme taidu even refuse to acknowledge that they are Chinese—although their language, ethnic and cultural roots are Chinese. (Id.)
While this movement elicits strong negative reaction, that reaction tends, ironically, to serve to strengthen Professor Chen’s arguments about the ethnic divide between China and Taiwan. Professor Fu notes that “[s]ome Taiwanese activists for independence identify themselves more as Japanese than as Chinese. They openly express their nostalgic longing for Japanese colonialism. Though they are few numerically, they have had a significant impact.” (Id., 333, 334-335). Professor Fu ended his remarks with a discussion of the implications of the “One Country-Two Systems” policy for both Taiwan and the United States from an international relations perspective and in the context of modern economic globalization. (Id., 341-48) Professor Fu concludes that the ultimate success of the absorption of Hong Kong will have a great effect on the prospects for Taiwanese reunification. (Id., 350)

Elaborating Conference Themes: Interrogating Law, Economy, and Foreign Relations in Modern China.

The great themes and insights drawn from the Conference were elaborated in the articles invited for publication in this Symposium issue. Together, the contributions suggest both the complexities and contradictions of Chinese modernization and reform efforts in the political, economic, and international relations sectors. They also evidence the ways in which reform efforts in each of these sectors are connected, and how all of these efforts are ultimately connected to the development of a normative foundation of the post Mao Zedong Chinese state. Taken together, the contributions to this Symposium provide a window on perceptions of China from the outside in.

My purpose, in the portion of this essay that follows, is to briefly describe each contribution in the broader context of the complex process of translating ideology into action within a unique institutionalist framework. These descriptions and the discussion that follows are not meant to serve as a substitute for careful study of the symposium essays, but instead are meant to enrich the study of any of the essays that follow. The Chinese are still living through the age of the founding generation of the modern state. There are great parallels that can be made between China in 2006 and the United States at the close of the War of 1812. The founding generation in each state then was dying out, but the ideological framework of the state was not yet set in stone. In both states the efforts to develop a binding consensus of the framework within which the state would develop was intense, and non linear. It was sometimes violent, and most importantly, perhaps, it was hardly understood outside their respective borders. For these reasons, if for no others, the symposium contributions, taken together, serve as an important marker of developments within China, a marker that points in important ways to Chinese developments in the future.

I start with the insights of an important and well respected political actor in the United States, who has played a critical role in the development of U.S. China relations. (Leach Discusses China, supra.) Iowa’s Representative Jim Leach for a long time has been at the heart of the development of U.S.-Chinese relations. His perspective and expertise provide a valuable political context to any discussion of China in the United States. Representative Leach’s great insight is the connection he makes between classical American political ideology and what he extracts from pre-Revolutionary Chinese socio-political ideology. Like the current Chinese political elites, Representative Leach believs that ideology matters, and is critical for the sound development of a state as a legitimate embodiment of the people which it seeks to serve. He suggests that American political ideology is more consistent with traditional Chinese values than the Marxist Leninist theory that serves as the political foundation of the Chinese state. (Id.) Representative Leach explains: “just as Americans would be wise to learn from older elements of Chinese civilization . . . the Chinese might want to view the possibility that the decentralized American model of democratic government fits their society better than it fits more homogonous countries including many in Europe.” (Id.) In contrast, Marxist-Leninist theories can serve as nothing more than a prescription for oppression, because they deny the masses any further stake in perfecting the state. (Id.) Representative Leach characterized Marxism-Leninism as an ideology that calls “for change from the top and then deny accountability and the right to precipitate further change become rationalizations for oppression rather than emancipation.” (Id.)

Ideology makes a great deal of difference for state legitimacy as well as for the effectiveness of the state apparatus. Represenative Leach suggested that it was in the context of legitimacy and efficiency that traditional Chinese values, as ideology, might provide a better basis for state organization that the current grounding in Marxist Leninist, Mao Zedong Thought, Deng Xiaoping theory and the important thought of the Three Represents.

The differences in the effectiveness of the two systems can be seen in the way in which corruption is dealt with in each.

Current examples of corruption and financial irregularities in politics underscore the need for reform, particularly campaign reform in this country. But they also illustrate that separation and decentralization of power in America has by and large kept government accountable to the people and allowed an incentive market system to operate with fewer conflicts of interest than non-democratic societies. (Id.)

The crucible of this insight was provided by the Tiananmen Square demonstrations in 1989 and their aftermath. Representative Leach emphasized an important ideological lesson from that time: he related that when one of the demonstrators was asked for a definition of democracy, he responded, “‘no more corruption.’ He didn’t define democracy as the right to vote, or the freedom of speech, instead he defined its’ effect--—the power of people to constrain corruption.” (Id.)

Corruption is difficult to minimize in systems that remain closed, and the ideology of democratic dictatorship, and the monopoly of power held by the CCP makes democratic accountability impossible and the ability of the state to become the honest broker of private interests impossible. Representative Leach suggests this presents the fundamental contradiction of Chinese efforts to construct a true rule of law state. The solution might be a decentralized democracy. (Id.) There is an irony to this suggestion. The strong centralizing trends in the United States, where the Commerce Clause has extended direct federal power to virtually every corner of possible economic regulatory endeavor (U.S. v. Lopez, 514 U.S. 549 (1995); Reno v. Condon, 528 U.S. 141 (2000); City of Philadelphia v. New Jersey, 437 U.S. 617 (1978)), and the taxing and spending powers extend that power beyond those limits (South Dakota v. Dole, 483 U.S. 203 (1987)), suggests that democratic centralism is as strong a part of American as it is of Chinese ideologies of state construction.

Legitimacy and ideology of a different sort play out in the Taiwan context. It suggests, as Representative Leach correctly intuited, the limits of ideology and thus, the situation in Taiwan, for Representative Leach, reduces itself to a playing out of realpolitik. China is big and strong and presents plausible political claims buttressed by ideological frameworks. The Americans are also big and strong and embrace a set of plausible political claims advanced by sectors of the Taiwanese and American political elites. Taiwan is economically strong, but politically and militarily in a precarious situation . Theory, in this context, must give way to an induced unreality—to preserve the peace. Time, in this case, and the passing of generations, might better serve the debate about Taiwan, than any particular action.

In my contribution, I suggest that the question Representative Leach posed in his remarks might be more complicated, and a definitive answer more elusive. (Backer, supra). Since the middle of the last century, the ideal of constitutional legitimacy has been grounded on the foundation of the concept of the rule of law. The rule of law is usually understood in two senses: first, as embracing firm limits on an arbitrary use of power, that is, of the use of the state power when not grounded in law (process aspect); and second, as vesting the state with a critical role as guardian of a set of foundational communally embraced substantive norms that are to be protected and furthered through the use of state power grounded in law (substantive aspect). The Chinese Constitution of 1982 has, as a formal matter, embraced the idea of the rule of law in its process aspect. However, it is more difficult to discern even a formal adoption of the rule of law in its substantive aspect. As a consequence, outsiders have questioned the fidelity of the Chinese state to the rule of law because of the control by the Chinese Communist Party (CCP) of the apparatus of law making in China. In one sense these arguments can be reduced to a criticism of Chinese constitutionalism as illegitimate because it lacks a basis in moral and ethical norms outside of the personal desires of the leaders of the CCP.

I suggest that traditional criticism misperceives the fundamental nature of Chinese Constitutionalism as it attempts to fashion its own distinct “socialist rule of law” constitutionalism. (Id). Fundamental to this socialist rule of law is the core premise the connection between the apparatus of the state (its institutions) and that of the Chinese Communist Party (as the Party in power). The normative basis of this socialist rule of law has been advanced through the use of increasingly sophisticated and complex specific ideological frameworks into the Constitution. However, because the norm structures of Chinese ideology articulated through the CCP remain either alien or antithetical to their usual Western counterparts, they remain opaque outside of China. Yet for all that the West would like to will the CCP into irrelevance, as a mere political faction, it remains of critical importance in the development of a substantive rule of law structure through its ideological campaigns. The centrality of the CCP to substantive rule of law and the structure of the state itself was made clear by the incorporation of Jiang Zemin’s sange daibiao (the “‘Three Represents”) into the governance structures of the CCP after 2000 and the Chinese Constitution after 2004. (Id.) Like the earlier constitutional assimilation of Deng Xiaoping Theory, the adoption of sange daibiao may serve, at least as a formal matter, to further incorporate substantive rule of law elements into Chinese constitutionalism. Sange daibiao, and its elaboration in later ideological campaigns, illustrates the way in which China is seeking to construct socialist rule of law through a commitment to an institutional structure of the state in which the CCP serves not as a mere Western- style political party but as an integral organ of state power. The focus is on the reality of the CCP within the state. The question of rule of law in Chinese terms, then, must center on the CCP, and not on the state apparatus the CCP controls.

There is a natural progression from this theoretical perspective to a collection of related articles that focus on rule-of-law issues on the ground—the problem of rule of law as applied. In these essays the problems of traditionalism, ideology, the CCP and the state apparatus become clear. Two contributors focus on administrative law issues. As I read them, I was reminded of a speech that Deng Xioaping gave in 1957 (Deng Xiaoping, The Communist Party Must Accept Supervision, in I SELECTED WORKS OF DENG XIAOPING, 1938-1965 (People’s Daily On-Line ed.), ), on the eve of the start of a tumultuous twenty-year period in Chinese social, political, and ideological history. This speech reminds us that issues now understood as the basics of administrative law in its rule-of-law sense, were as important in the ordering of both the CCP and the state apparatus in the early period of Communist rule as it is today, as China enters another potentially tumultuous period of development. The basic issue, which Deng identified as bureaucratism, continues to plague Chinese administrative law.

For Deng, the issue was how to best appease the masses and avoid the problem of “big democracy.” Deng explained:

The suggestions of the masses fall into the following categories: Some are reasonable and should be accepted and put into practice; it would be wrong to ignore them, which would be bureaucratic. Others may be basically reasonable, in which case the reasonable part should be put into effect and explanations offered concerning the part that cannot be put into effect. Still others may be totally unreasonable, in which case we should explain to the masses why. In brief, the masses should have plenty of opportunity to air their views, offer suggestions and give vent to their anger—at people's congresses, political consultative conferences, workers' congresses, students' congresses, and so forth. Greater democracy can be avoided if there is lesser democracy. Nobody would demand greater democracy and no workers or students would go on strike once the masses have vented their anger and every effort has been made to solve their problems.

Deng did not expect perfection, just a pragmatic balancing of the realities of human nature and the needs of a satisfactorily running state. Deng noted that: “However, since there will always be people guilty of gross bureaucratism, occasional disturbances are unavoidable. This still is no cause for alarm; in such situations we should just stay calm and try to face the masses, rely on them and explain things to them painstakingly. Then, disturbances will subside.” (Id.)

Like Deng, the Symposium’s contributors look to Chinese Administrative law and practice with an eye both to the theoretical and practical realities of life and culture in China now and in the attainable future. John Ohnesorge’s contribution nicely brings out some of the macro issues in administrative law. (John Ohnesorge, Chinese Administrative Law in the Northeast Asian Mirror, 16 TRANSNAT’L L. & CONTEMP. PROBS. – (2006).) He considers Chinese administrative law reform “today in light of how administrative law developed in China’s Northeast Asian neighbors.” (Id.) But he does this right—not by looking at China’s neighbors’ current systems, increasingly harmonized to globalized composite Western standards, but to those systems “in the “developmental state” era in Northeast Asia, the period from approximately 1950 to 1990.” (Id.) Professor Ohnesorge, though, is not an advocate, necessarily, of the inevitable integration school of harmonization. For example, he suggests that “While it seems likely is that Northeast Asian administrative law will become much more understandable to Americans, there is reason to doubt that there will be a fundamental convergence to the “pluralist,” or any other model.” (Id.) Professor Ohnesorge draws a number of important lessons from his comparative review of the development of administrative law systems in Northeast Asia. For example, Professor Ohnesorge explains that

First, it seems clear that Northeast Asian societies were ready for administrative law reform; that there was pent-up demand . . . [and] democratization has also freed the courts to take a much more central role in shaping the path of legal doctrine. . . . It is clear, also, that people in the region are using the opportunities created by the new administrative law statutes. (Id.)

As a consequence, Professor Ohnesorge concluded that “It seems unlikely that the ommitments of traditional political culture are going to play any obvious role from this point out, with future developments depending more on political agendas and the specific cultures of Northeast Asia’s judiciaries.” (Id.)

Using this as his template, Professor Ohnesorge argues that “China is creating a system that in many ways mirrors the administrative law of the developmental states, but that also contains elements that were only introduced in Northeast Asia more recently.” (Id.) China has begun the process of establishing a hierarchy of law (Id., Enactment of Law on Legislation (2000)), a civil service act (Id., notes 136-39), enshrined laws on compensation for state abuses and takings Id., notes 143-60, based in part on the Administrative Procedure Law of 1989 and the dministrative Review Law of 1999), and tolerated informal systems of dispute resolution. (Id., notes 165-66). But Professor Ohnesorge believes that these efforts are incomplete as a formal matter (Id., 166-76), and as applied. (Id., 177-81). Professor Ohnesorge, quite rightly, ultimately returns to theology in the construction of state systems as the key to the problem of administrative law in China. If the independence of Chinese courts as an independent source of administrative law is the key, then fundamental political change is necessary. But this change must be of a particular sort. “A change to the political right, for example, would likely not lead to such a role for the courts. Absent a fundamental political change towards a liberal-pluralist regime, no government of China will allow the courts to take on this role of their own accord.” (Id.)

And Professor Ohnesorge points out the greatest problem of the application of Chinese state ideology as expressed in its administrative law—it can no longer evolve in isolation. China’s engagement with the world, especially through the consolidating and harmonizing forces of economic globalization through international institutions like the WTO, will make it increasingly difficult for China to avoid modifications of its governing ideology to conform at least to the framework of institutional expectation in all areas of governance, perhaps starting with its administrative law. The review of China’s administrative law in light of the actions of its neighbors’ actions ought to provide China with both a sample of the future and a warning about the pragmatic difficulties of insisting on the value of following its own singular path.

Michael Palmer’s contribution then focuses on the relationship between ideology and the practice of state supervision in a focused manner, examining that relationship through the lens of the conflict between judicial and mediation models of administrative supervision of the state in its relationship with individuals. (Michael Palmer, Controlling the State?: Mediation in Administrative Litigation in the People’s Republic of China, 16 TRANSNAT’L L. & CONTEMP. PROBS. – (2006)). Professor Palmer examines the way in which the CCP has sought to use a post Cultural Revolution reconstructed judiciary to control the State and its apparatus, without necessarily controlling the CCP itself as the party in power. (Id.) “As law and state institutions re-emerged in China’s socialist system, so the Party saw the possibility that the law might be used to control the exercise of power by the state and its agencies.” (Id.) He explains “Such control, especially through independent courts, is of course a key feature of most conceptualizations of the ‘rule of law’, a value that in China was more of less formally incorporated by the Constitution of the People’s Republic of China.” (Id.)

Indeed, Professor Palmer correctly notes the genesis of these efforts in the push by the CCP, during the 1980s and early 1990s to more clearly separate the apparatus of the CCP from that of the State, as an antidote to the failed ideology of the Cultural Revolution. “Deng Xiaoping, had initiated such re-thinking in the late 1970s when he called for Party leadership to be confined to ‘political leadership’, and not intrude directly into the state sphere so that it served as a replacement for the government and other administrative bodies.” (Id.) But, by the late 1990s, that push for separation had moderated substantially, and indeed, had to some extent been reversed by Deng’s successors through ideological campaigns such as that of Sange Daibiao. (Id.)

But, of course, that is the problem. Judicial independence, even in matters of supervising the State (but not the Party), becomes more difficult as the identity between State and Party becomes stronger, even in a system conceptualized as advantageous to the CCP. (Id.) As Professor Palmer notes, the new judicial supervision system was meant to facilitate “continued but indirect Party dominance of the State” (Id.), an increasingly important objective as the CCP sought to move to a model of indirect control of the State and its apparatus. (Id.) In this context, Professor Palmer examines the development of judicial review in the handling of administrative cases and the tentative revival of the use of mediation. For example, Professor Palmer explains that

For in the practice of adjudication, in a large number of cases the plaintiff and the defendant silently approve (moxu) or even actively encourage (dongyuan) an outcome of ‘xietiao’ (‘compromise’). . . . The high rate of withdrawal in administrative suits in China is thus explainable in large part as informal covert judicial mediation. (Id.)

The focus is the Administrative Litigation Law of 1989 and its aftermath as applied de facto and de jure. (Id., note 88) It is in the policy debates realized through the Differences between the law on the books and the law as applied provide a starting point from which Professor Palmer can draw significant insights for the future of Chinese Administrative law and, more generally, rule of law in China. He persuades the reader to think that the Chinese case of judicial mediation of administrative cases is rather more than "law on the books" versus "law in practice." The peculiar development of judicial mediation might better serve as State (or more accurately Party) encouragement of disregard of a powerful legal norm that at one stage was symbolic of a growing commitment to the rule of law, so that a completely different "normative framework" (developed from Party policy and judicial practice) now structures access to administrative justice through the courts. So, politics remains in command, even in the rule of law socialist State.

Thus the move to reverse the separation of State and Party has produced tangible effects in the dispute resolution area, and Hu Jintao’s emphasis on the creation of a harmonious society as part of the Three Harmonies campaign, appears to have given mediation a renewed impetus. (Id.) Under “the conservative leadership of Hu Jintao, the developmental goal of a “harmonious society” has been put in place in which mediation is once more stressed as a decision-making process, and increasingly tolerated in the system of judicial review” (Id.)

The elaboration of an ideology of the identity of State and Party working within a harmonious social framework that values stability thus appears to have substantially increased the viability of mediation that may find reflection in the New “Administrative Litigation Procedures Law” (Xingzheng Susong Chengxu Fa”). (Id.) “These efforts to infuse judicial review with mediation are consistent with and encouraged by the new leitmotif of the Hu Jintao-led regime namely, the need for China to develop a xiehe shehui or “harmonious society”. Id. Professor Palmer describes Hu’s vision as privileging Party, harmony and stability. “Hu offers a vision of socialist China under the firm leadership of the Communist Party in which the interests of different social groups are more or less in balance, conflicts are avoided or contained, and its citizens enjoy political stability.” (Id.)

The consequences are more than symbolic (the erosion of a potentially independent source of dispute resolution), they remind us rule of law developments outside the CCP’s framework continue to rest on a weak foundation. This weakness of foundation might extend from the judicial system to include the entire state apparatus. As Professor Palmer explains: “The growing acceptance in judicial practice and legal theory of a positive role for mediation in administrative proceedings reflects the political reality in China that law and legal development remain very much open to Communist Party policy and institutional dominance.” (Id.) Deng Xiaoping’s call for the supervision of the Communist Party, becomes clearer in this context, such supervision is not to come from the courts or other systems of administrative law from from the CCP apparatus itself. Standing alone, this may not be a good thing.

Helen Yu provides a detailed examination of the issues raised by Professors Ohnesorge and Palmer in her examination of the challenges of securing just compensation for state takings in China. (Helen Yu, Just Compensation: Ideal or Compromise? A Comparison of the Implementation of the Just Compensation Clause and Forced Urban Evictions in China and South Korea, 16 TRANSNAT’L L. & CONTEMP. PROBS. – (2006)). Like Professor Ohnesorge, Ms. Yu applies a comparative-law analysis, looking at state compensation systems in South Korea. Using this comparative framework, she first examines the theoretical framework of each statutory regime. (Id.) Ms. Yu grounds this discussion in Western notions of fairness and legitimacy, both of which ultimately implicate democratic political theory in the West, but not necessarily the same result in other places. Chinese authoritarianism and South Korean traditional collective governance might shade the application of these theoretical underpinnings in interesting ways. That, essentially, is what Ms. Yu details in her examination of the rules of compensation as applied. (Id.)

She then examines the legal framework of each system, describing the interesting differences and similarities between the two legal frameworks for compensation and the deficiencies of each of the formal systems (Id.). She further examines the tensions between law, policy, and economic factors as contributing agents to the underutilization of the rights protected under compensation law. (Id., note 96) She ends with a look at the effectiveness of political responses to the deficiencies in the implementation of the compensation systems, focusing on the “Housing Rights Movement.” (Id.) Perhaps surprisingly, Ms. Yu finds that social action can have effects in both South Korea and China. (Id.) It seems that authoritarian states, like democratic states, must maintain legitimacy and stability. The manner in which they achieve these goals is different, but neither can long afford to ignore mass action.

Ms. Yu concludes that both the South Korean and Chinese models share significant deficiencies. Ideology, in this case, tends to shape the nature of the deficiencies but not their extent. She concludes by suggesting that were “the South Korean experience . . . a reference for China, it should be clear to the Chinese government that forced eviction can jeopardize its legitimacy, no matter how economically profitable or socially desirable it is to promote urban development.” (Id.) She suggests that “the Chinese government will have to go further than recognizing private property rights in its Constitution.” (Id.)

Xiaoping Chen adds significant insights to the last point raised in Ms. Yu’s contribution—the potential and limitations of action “from the bottom up” by considering the effect of the Rights Advocacy movement in China. (Xiaoping Chen, The Difficult Road for Rights Advocacy: Unpredictable Future for the Development of Rule of Law in China, 16 TRANSNAT’L L. & CONTEMP. PROBS. – (2006).) At the same time, Mr. Chen evidences the value of Professor Palmer’s approach in a related context. Again, there is irony in the discussion—a sense that no good deed goes unpunished in the context of building a deep rule-of-law state in China. Mr. Chen argues that: “despite initial enthusiasm about the rights advocacy movement, it may have a negative effect on the development of the rule of law in China—what I call a law-discrediting tendency.” (Id.) Mr. Chen, in the context of the rights advocacy movement’s triumphs and challenges amplifies an insight repeatedly stressed in these contributions: “Only when rights advocacy succeeds in challenging the legitimacy or constitutionality of concrete laws will it further the development of the rule of law in China.” (Id.)

Mr. Chen starts with an examination of the rights advocacy movement at a moment in time remarkable for the felicitous conflation of ideological movements. Rights advocacy appeared a natural outgrowth of the special emphasis on the importance of the Constitution under the leadership of Hu Jintao. (Id., notes 20-26). For example, Mr. Chen quotes Hu in a 2003 meeting as emphasizing that “safeguarding the supremacy of the Constitution and ensuring the proper enforcement of the Constitution are the sacred duties of the Chinese Communist Party, and the sacred duties of the other democratic parties.” (Id., note 24; citing Hu Jintao zhuchi Zhonggong zhongyang zhaokai dangwei renshi zuotanhui [Hu Jintao Presides at a Conference with the Democratic Parties]), PEOPLE’S DAILY, Oct. 17, 2003). This was perceived by some as superseding and undoing, perhaps, Jiang Zemin’s more esoteric Three Represents campaign. (Id., note 23).

The rights advocacy movement also owed its existence to the rise of a lawyer class able to take seriously the opportunities available under new formal law. (Id.) Mr. Chen rightly identifies this phenomenon as the rise of “cause lawyers,” defined as “lawyers who use their legal skills to challenge the prevailing distributions of political, social, economic, and legal values and resources—what one may understand in the United States as a public interest or civil rights lawyer.” (Id., note 27) Mr. Chen lists the range of their activities as including “scholarly legal research, factual documentation, reporting of abuses, teaching, community legal education, litigation for individual clients’ claims, test cases, class action litigation, and lobbying and media campaigns regarding various laws and cases.” (Id.) This more nuanced understanding helps explain the impetus behind the reform of the petition law and the reason “China’s top leaders ordered that the number of petitions be kept to a minimum as quickly as possible.” (Id., note 43)

But misperceiving the ideological framework, and acting on that misperception, can have serious consequences in China. Mr. Chen describes both the misperception and the resulting consequences. First, a fundamental right to petition, which Mr. Chen suggests can be inferred from the Chinese Constitution, was severely curtailed by the Petitioning Regulation of 2005. (Id., notes 34-38). Mr. Chen rightly describes the measure as directed toward the curtailing of direct supervision of the government by the people through the legislative apparatus of the state. (Id. at n.36). This makes sense only if Hu, like Jiang before him, continued to favor a system in which there is an identity between the State and the Party. Under such a framework, the work of cause lawyers would be tolerable only if undertaken within the umbrella of the CCP, and not as individual actors on behalf of the masses. To tolerate cause lawyers among independent agents might be to question the primacy of the CCP as the vanguard party under the Constitution. If this is so, then it might require a complex understanding of Hu’s embrace of rule of law Constitutionalism of the sort quoted by Mr. Chen. But it might also provide a better basis for understanding the tension in the relationship between Party (not State) and private cause lawyers, a tension Mr. Chen astutely describes, quoting Gong Xiaobing, the director-general of the Department of Judicial Assistance and Foreign Affairs of the Ministry of Justice of China, who has noted that “due to a misunderstanding of the nature and function of lawyers . . . some leaders even regard lawyers as a dissident force.” Id. note 65).

This fundamental right to petition is a subject Mr. Chen examines in the ironic context of the law’s use against Chinese lawyers for their involvement in the rights advocacy movement. This relationship between the ideology of law, the substance of legal rights private lawyers, and the state apparatus serves as the basis for Mr. Chen’s insights about the potential negative effects of a freewheeling rights advocacy movement in present day China—its production of potentially law-discrediting results. (Id., note 53-69). The irony is deep here: the Chinese authorities deployed the traditionalism praised by Representative Leach and a formalist rule of law now happily embedded in the legitimating documents of the state apparatus against private rule of law advocates in a way that served to disregard, as Professor Palmer discussed, a powerful legal norm that was symbolic of a growing commitment to rule of law, to redirect change from the “bottom up” to the CCP. (Id., notes 48-52). The repercussions fell on petitioners as well as on their lawyers. Mr. Chen notes that “On July 15, 2005 nineteen people from Changchun and other cities in Northeast who were petitioning in China were arrested for staging an illegal protest.” (Id. note 47).

There are a number of reasons for this result. The first goes to the extra-legal character of rights advocacy, with its strong connections to qingtian—appeals beyond law. (Id., notes 54-55). Thus, Mr. Chen explains:

When ordinary people who seek justice have lost all hope in the legal system, their last resort is to appeal to the qingtian. For example, peasant Xiong Deming asked Premier Wen Jiabao for help to recover her husband’s 2,000 RMB in back wages. To her surprise, she received the back salary within six hours, thus earning the title of a “Xiong Deming phenomenon” or “Xiong Deming speed.” (Id., note 55)

This has the effect of discrediting law and legitimating direct appeals to administrative clemency, thus deepening the sort of administrative authoritarianism that rule of law was meant to control. (Id., notes 54-64). Law and politics are never widely separated in China. For Mr. Chen, this makes rule of law, traditionally applied, much more difficult.

Due to the supremacy of the party, the laws and courts have become simple instruments of party rule. Supreme loyalty rests with the party, not with the laws or the courts. Furthermore, loyalty to the party ultimately rests on the party secretary. Such a structure based on loyalty allows no space at all for the law. (Id., note 69).

Mr. Chen acknowledges this most intimate of connections in his review of the current discussions on the politicization of rights advocacy. (Id., notes 70-72) Mr. Chen suggests that the rights advocacy movement is at a crossroads. Having been thwarted effectively in its ability to use law to supervise the State (and the Party, indirectly, at least), Mr. Chen suggests that the rights advocacy movement might itself move from advocating the rights of individuals and the changes within the current political framework, to becoming the focus of more politically overt and revolutionary movements. (Id., note 75). Mr. Chen notes: “Even though most rights advocates are not seeking to change current laws and institutions, the movement can still challenge the structure of the regime because rights advocacy implies a need for a more powerful people’s congress, an independent judiciary, and even a functioning constitutional review system.” (Id.) He explains: “There is no doubt that as the legitimacy and constitutionality of the law continue to be challenged, the rights advocacy movement will gradually shake the base of the regime. Thus, it may well be that the conservative rights advocacy movement will bring about a revolutionary result.” (Id.)

He concludes by suggesting some tentative next steps. Mr. Chen suggests a three prong action plan. “First, there is a need for a mass rights advocacy movement, represented by disadvantaged workers, peasants, laid-off employees, and victims of human rights abuses, as the major social base and power of the movement.” (Id., note 79) He then suggests a program, “based on the current limited legal bases to challenge the constitutionality and legality of the law, and to launch more applications for constitutional reviews.” (Id.) Finally, the lawyers themselves must band together in a vanguard capacity. (Id.)

With the contribution of Professor Zhengyuan Fu we return to the issue of the status of Taiwan. (Zhengyuan Fu, The Taiwan Issue and Sino-U.S. Relations, 16 TRANSNAT’L L. & CONTEMP. PROBS. – (2006)) Just as ideology stands at the center of Chinese constitutional and legal discourse, so does the issue of Taiwan stand at the center of Chinese foreign relations. And in that context, the relationship between the U.S. and China is, to a great extent, determined by the actions of both with respect to Taiwan. But again, ideology, and in particular the ideological foundations of Hu Jintao’s Three Harmonies, lurks in the background of Chinese approaches to the issue. Thus, for example, early in his analysis, Professor Fu explains: “A stable and cooperative relation between the two countries will be a cornerstone for a more harmonious world. However, the corrosion of this relation will have tremendous harmful consequences . . . and detrimental effects on the rest of the world.” (Id.) Professor Fu examines the history of Taiwan, with special attention to the transfer of its control from China to Japan, and then back again at the end of the Second World War. (Id., notes 1-7) That history serves as the backdrop against which U.S. China relations ought to be understood. (Id., notes 8-18) Professor Fu then examines the changing policy of China to reunification, from one based on force to one based on patient waiting—reflecting a shift in interpretation of the governing ideology of the CCP from that of international revolutionary inevitability to one that stresses, in line with the Three Harmonies campaign of President Hu Jintao, reunification in the context of stability and harmonious relations. (Id., notes 19-20) Professor Fu underscores the practical effects of this policy as it moved to center stage—a significant movement toward de facto integration, as investment from Taiwan to China expanded tremendously over the course of the last decade especially. (Id., notes 21-24, 38-42). Professor Fu notes that by the mid 1990’s, “Mainland China became Taiwan's largest market and destination for investment capital.” (Id.).

In this context, Professor Fu closely examines the development of a Taiwanese independence movement. (Id., notes 25-37). Professor Fu argues that

The interaction of the people across the strait shows that blood is thicker than water. There is no inherent bad feeling towards each other. Many mainland and Taiwan people intermarry and there are hundred of thousands of such couples. After all, people from both sides of the strait share the same ethnicity, language and culture. They are one people despite all the demagoguery from the politician. (Id.)

These moves are viewed as aberrational and disruptive. Professor Fu concludes that though reunification ought to be inevitable, the path to reunification may not be straightforward. He notes the similarities between the political systems of Taiwan in the 1970s and the People’s Republic of China after Deng Xiaoping. He suggests that reunification will be easier should China abandon its authoritarianism along the lines followed by Taiwan. (Id., note 119) For the Taiwanese, Professor Fu counsels restraint, and for the United States, he counsels patience. (Id.)

Taken together, these articles paint a picture of a sophisticated state in substantial transition. This is not a criticism, but an acknowledgment of power. States in decline tend to appear stable. But that sort of stability masks institutional and ideological decay. Ideological dynamism can suggest weakness. But that sort of weakness evidences the strength of the foundational norms that secure the legitimacy of the state. Norms that capture the spirit of a nation, that are still powerful enough to animate the nation’s elites, contribute to the legitimacy of governance systems, and the authority of the governance apparatus of the state. Both the United States and China remain ideologically dynamic in this latter sense. Their conversations, both internal and between them, will have tremendous effects. These effects will touch not only on the state of global norm making, but also the way in which the United States and China each comes to understand the other, and themselves. In those conversations, Americans may begin to understand the importance of ideology (and especially of ideologies other than their own) in the construction of deep normative rule of law constitutionalism. They might not like what they hear, but the framework-broadening of that exercise might serve to increase the power of American leadership in the exposition and development of the most advanced normative constitutionalism much more effectively than by other means. The Chinese may come to understand that ideology is critical, but still only potential.

Ideology alone does not build a rule-of-law state, either under democratic or democratic-centralist principles. The Chinese must dig deeper into their Marxist-Leninist Mao Zedong-Deng Xiaoping foundations to embrace the praxis elements of that thought. They will not like the result or the process. It will require conforming behavior to theory. Yet their own theory requires nothing less from both State and Party. The Constitution of the Communist Party of China reminds its members that “The general starting point and criterion for judging all our work should be how it benefits the development of the productive forces in our socialist society, adds to the overall strength of our socialist country and improves the people's living standards.” (Constitution of the Communist Party of China, Preamble). A failure to institutionalize conformity of behavior to theory in a meaningful way will destroy the legitimacy of the theory and leave both State and Party apparatus ripe for challenge and change.

The Chinese Communist Party has proudly declared that: “The Party must practice democratic and scientific decision-making; formulate and implement the correct line, principles and policies; do its organizational, publicity and educational work well and make sure that all Party members play an exemplary and vanguard role. The Party must conduct its activities within the framework of the Constitution and other laws. It must see to it that the legislative, judicial and administrative organs of the state and the economic, cultural and people's organizations work with initiative and independent responsibility and in harmony.” (Id.) Many of the contributions to the Symposium and the Conference have suggested the ways in which the Party, and the Party through the State, has not practiced what it has imposed on itself. Whether the aspirational statements in the Constitution of the Chinese Communist Party are to be realized through either the Party or the State remains the great question of this century. As law, economy or foreign relations, the Chinese experience will have repercussions well beyond the borders of the People’s Republic. I hope that the materials presented here help further the conversations in each state.

Friday, February 16, 2007

Odious Debt and “Vulture Funds”: Making a Case for Repudiation of Sovereign Debt

The International financial community has long profited from the current framework of sovereign lending. It may engage in lending to any recognized regime, it may make such loans without any obligation to engage in any due diligence, other than that thought prudent for the protection of their investment. Such loans are negotiated with the agents of the state, but remain the primary obligation of the people. In the best of all worlds, this system works well enough. Citizens ought to be responsible for the actions of their agents. However, where loans are made to non-democratically elected governments, or made for the benefit of the agent responsible for arranging the loan, it is harder to connect the citizens of the state with the agents who arranged the loans. And indeed, in those contexts, the lender, rather then the citizenry, are in the best position to exercise any diligence on the state agents.

However, the global lending system has resisted any effort to unbundled the agents of a state from the state itself. Global debt markets value consistency, predictability and simplicity. More importantly, perhaps, global lending markets are dependant on the protection of its secondary markets for debt. Debts that are not easily negotiated—and especially debts with respect to which defenses follow purchase—are debts whose liquidity, and value, shrink considerably. In a world in which a robust global debt market, a market made up of private and sovereign debt, is essential for the promotion of global trade, any effort to add complexity to any component of the rules for markets in secondary debt, would be resisted.

Yet, at least in the context of sovereign lending, the analysis is a bit more complicated. Like corporate debtors, sovereign debtors are juridical persons. Both operate for the benefit of their stakeholders. Both impose monitoring obligations on stakeholders over the conduct of their agents—agents to whom authority to act on behalf of the entity has been granted. And both ought to be responsible for their obligations. But the public character of a state affects both the character of state debt and the nature of the effects of such debt. Sovereign debt, its servicing and repayment reduces the ability of a state to invest in the economic development of its people. Where the right to development is deemed an important consideration in the structure of the normative relations among states, sovereign debt becomes a political issue. In a world in which it becomes important to facilitate the development of states (and especially poor states) to increase the prosperity of citizens generally and avoid political and social instability that can lead to, among other things, crime, violence, instability and migration, the connection between sovereign debt and benefits to the people on whose behalf they were incurred becomes critically important.

The consequence is difficult to avoid: global political actors and global economic actors work towards irreconcilability different ends in the construction and preservation of stable and wealth maximizing systems of lending and repayment. What is important to one system becomes a critical weakness for the functioning of the other. States, individually, collectively, and through their financial organs, thus seek to tighten control over the validity of debts to sovereigns. To this end they engage in periodic attempts to forgive or reschedule such debt, and conflate political aims (anti-corruption, furtherance of democratic governance, anti-terrorism campaigns, and the like) with lending. They seek to shift burdens of lending from the political actors to the creditors (sometimes private and sometimes public actors). Creditors seek a seamless stability in markets for debts and a normative framework that shifts all burdens to debtors and their principals for illegitimate debt. In a perfect world for global lending, all purchasers of debt would be holders in due course.

And so it comes as no surprise that global economic and political actors have again clashed over the collection of sovereign debts validly incurred, from the perspective of creditors and obtained illegitimately on behalf of the state (and thus ultra vires) by the state’s agents in collusion with creditors (under either a knowing or reckless standard) from the perspective of the collective community of nations seeking to maximize the development opportunities of poor states. This time a string interest in the protection of the integrity of markets for secondary debt clashed with the long-term project of foreign debt forgiveness for the purpose of development implemented by a host of states.

This time, the battle pits Zambia against British Virgin Islands-based Donegal International, a global speculator in debt instruments tied to U.S. based financial corporate entities. (Zambia loses 'vulture fund' case: A High Court judge has ruled that Zambia must pay a substantial sum to a so-called "vulture fund,” BBC News, Feb. 15, 2007 (accessed Feb. 16, 2007). According to the BBC News Report:

In 1979, the Romanian government lent Zambia money to buy Romanian tractors. Zambia was unable to keep up the payments and in 1999, Romania and Zambia negotiated to liquidate the debt for $3m. But before the deal could be finalised, Donegal International, which is part owned by US-based Debt Advisory International (DAI) stepped in and bought the debt from Romania for less than $4m. Id.
Thus, an inter-governmental transfer transaction that might not have been characterized as debt in the hands of the original creditor state (see Anna Gelpern, Odious, Not Debt, 70 JOURNAL OF LAW & CONTEMPORARY PROBLEMS – (forthcoming 2007) (the “debt” is as easily characterized as a subsidy for the purchase of tractors and thus a direct payment from Romania to the Romanian entities supplying tractors to Zambia)), when negotiated to a private party, assumes all the characteristics of debt. But this was a debt that the Zambians intimated was tinged with corruption—that is, the deal for Romanian tractors, financed by Romania, appeared to have benefited individuals on both sides of that transaction, perhaps more than Zambia (The BBC News report quoted Zambian sources as suggesting that “The fight against Donegal's claim had been "entirely vindicated and [marked] a significant milestone in the efforts of [the Zambian government] to fight corruption and maintain a stable economic course" Id.). Indeed, a Zambian presidential advisor, “Mr Kalunga-Banda added that while the repayment might be legal, it arose from debts accrued when the country was under "an undemocratic system". Id. Thus, the debt, as to the people of Zambia, might well have been illegitimate, because incurred by its agents, government functionaries, for their own, rather than for the benefit of Zambia.

This debt, whatever its origins, character and legitimacy defects, now in the hands of a holder in due course, the transaction between Zambia and Romania becomes debt, and fully collectable through a judicial action in a state where Zambia might have wealth against which a judgment could be levied. And that is precisely what happened here. Donegal International sued in English courts, sought a freeze on Zambian assets and a judgment of $ 42 million (principle plus accumulated interest and charges), a nice return on an investment of about one tenth of that amount. Id.

After hearing on the matter, the court split the baby. Again, according to the BBC News report:

The judge ruled against Zambia's application to dismiss Donegal's claim, but at the same time proposed to end a freeze of Zambian assets secured by the fund. Donegal, however, will have a chance to argue the case for a continued freeze of Zambian assets. According to BBC economics reporter Andrew Walker, people familiar with the case believe that the judge will order Zambia to pay Donegal between $10m and $20m, less than half what Donegal sought. Id.
Lawyers for Zambia claimed victory, of sorts. “Janet Legrand of DLA Piper called the ruling "fantastic news for both the government of Zambia and its people". Id. Vindication, however, is counted oddly—a $4 million inter-governmental transfer has morphed into a likely obligation to pay a third party creditor anywhere from about $10 to $20. The return for Donegal International on its initial investment is still great—and it is still possible that Zambian assets will be frozen pending payment. From the perspective of financial markets, this was also a great victory, of sorts.

The political community had a very different view of the affair. Since 2002 Gordon Brown, the likely successor to Tony Blair as leader of the U.K. Labour Party has characterized speculators in public debt in secondary capital markets as “perverse and immoral.” Id. In an ironic twist, Mr. Brown suggested that such secondary market speculators ought to have some sort of obligation to act in the interests of the state. “We particularly condemn the perversity where vulture funds purchase debt at a reduced price and make a profit from suing the debtor country to recover the full amount owed - a morally outrageous outcome." Id. But this makes little sense. The U.K. would hardly argue that Donegal International ought to act in the interests of stakeholders other than those with an interest in the entity. Donegal International is not a state actor. Still, as the spokesperson for a debt relief NGO suggested, "Profiteering doesn't get any more cynical than this." Id.

This was a view shared by other elements of the NGO human rights and development community not associated with civil society elements supporting the development and integrity of private capital markets. The problem with these action by private entities pursuing their own economic interests is precisely that—that they are private entities pursuing their own private interests. This is bad, especially where such actions interfere with the foreign policy objectives of government. Thus, for example, the BBC News report noted that “Jubilee Debt campaigner Caroline Pearce said that vulture funds "made a mockery" of the work done by governments to write off the debts of the poorest - a key theme of 2005's Live8 concert.” Id.
Indeed, powerful elements of global civil society went to some pains to suggest the bad faith of Donegal International and its agents. Oxfam International posted the following press release to its web site on the eve of the High Court decision:

By extraordinary coincidence, the amount claimed is almost exactly the sum which Zambia is due to receive this year as a result of the Gleneagles debt deal and is equivalent to six months of Zambia's health budget - something Michael Sheehan is likely to be aware of through his long experience of working as a debt advisor in poor countries. Indeed Donegal is closely connected to a company called Debt Advisory International of Washington DC. Oxfam, Oxfam and Jubilee Call for Action as Vulture swoops on Zambia's Cash (15 February 2007).
And indeed, the effect of this episode severely impacts both Zambia’s ability to deploy its wealth for the betterment of its people, and the international communities efforts to subsidize those activities through programs of targeted debt forgiveness programs. The effective result is that the international community subsidizes payments into the secondary creditor markets. What might annoy the U.K. the most, then, is that its debt forgiveness program has resulted in payments from the U.K. to Donegal International. Indeed, the BBC News story reported Martin Kalunga-Banda as saying that the $42m initially sought by Donegal International “was equal to all the debt relief it received last year.” Thus, according to Jubilee Debt campaigner Caroline Pearce, “’Zambia has been planning to spend the money released from debt cancellation on much-needed nurses, teachers and infrastructure. This is what debt cancellation is intended for, not to line the pockets of businessmen based in rich countries.’” Id.

But what can be expected when multiple systems of law and legal norms, one private and economic and the other public and political, function simultaneously on different aspects of a complicated transaction? An unintended consequence of globalization—in its aspect as privatization of economic transactions and public support of free movement of capital within stable capital markets—is to limit the effectiveness of interventionist state economic policies. It is precisely this development of global capital markets, and specifically robust markets for debt, that makes it possible for states to leverage their wealth for the good of their people, or squander it. Once in the debt markets, states become, to a certain extent, market participant like any other juridical person. But states are not quite like any other juridical person—at least not just yet. And thus is presented a great tension. The global capital markets tend to flatten formal hierarchy—all debtors are the same for the purposes of protecting the integrity of the market. The public and political nature of states suggests a vertical hierarchy to which capital markets ought to be subject. Those elements of civil society seeking to defend Zambia rely principally on this second conception. That is the only way it is possible to understand Oxfam’s Director of Campaigns, Adrian Lovett’s, statement: “It defies belief that commercial creditors are able to bypass poor countries’ debt cancellation schemes for their own gain. Zambia desperately needs investment in nurses, doctors and teachers. This is an outrageous injustice which could and should be addressed by the international community.” Oxfam, Oxfam Press Release, Oxfam and Jubilee call for action as Vulture swoops on Zambia’s cash, (14 February 2007).

Yet, this is precisely the sort of transaction with respect to which the emerging doctrine of odious debt might be particularly useful. I have written how the doctrine as developed in the academic literature and as supported by global elements of civil society, though not yet widely accepted among public entities, would distinguish between legitimate and illegitimate state debt on the basis of the purpose for which it was incurred. Debt incurred for the benefit of the nation, whether or not well used, would remain the obligation of the state. Debt incurred for the benefit of the agents of a state, whether as a consequence of corruption or for some other illegitimate purpose, would be deemed to be the personal debt of the agent, against whom the creditors could proceed. Creditors making loans to a state would have the obligation of satisfying themselves of the legitimacy of the loan before it is incurred. See Larry Catá Backer, Odious Debt Wears Two Faces: Systemic Illegitimacy, Problems and Opportunities in Traditional Odious Debt Conceptions in Globalized Economic Regimes, 70 DUKE JOURNAL OF LAW & CONTEMPORARY PROBLEMS – (forthcoming 2007).

As a consequence, the application of the odious debt doctrine in this way can continue to support the integrity of the secondary capital markets—the Zambian debt can still be collected. But it also furthers international public economic policy—the Zambian state is relieved of the obligation for the debt, repayment falls to the party actually responsible for its incurrence, that is the officials who acting for their own interests purported to incur a debt for Zambia. Donegal International ought to be able to seek repayment of the debt—but only from the agents of the state for whose benefit the loans were made, and not against the Zambian state itself. In the future, Donegal International will assess the value of secondary market transactions with this in mind.

The story, as it has thus made the rounds of media and civil society land, is almost too good to be true. And it is. Were this the end of the story, one might be tempted to congratulate oneself on the construction of what could be viewed as a fairly elegant advocacy of the application of a form of the odious debt doctrine now percolating in the academic community and among global elements of civil society. But a review of the 137 page opinion of Mr. Justice Andrew Smith for the High Court of Justice Queen’s Bench Division, Commercial Court, in Donegal International Ltd. v. Republic of Zambia, Case 2005-190, [2007] EWHC 197 (Comm.) [hereafter “DIL v. Zambia”], organized in 548 paragraphs, reveals a more complicated picture. I highlight here some of those complications and their ramifications for odious debt doctrine in the context of a multi-jurisdictional analysis of sovereign lending.

1. Settling Sovereign Debt and Sovereign Immunity. A careful reading of the case reveals that the equities might not entirely rest with Zambia, whatever the rest of the world believes Zambia’s duty to its own people. This is not quite a case of vultures swooping down to buy “worthless” national debt and then seeking to compel payment from a nation unable to deal with the debt. It is true enough that the debt started off in 1979 as an obligation between sovereigns (Romania and Zambia) incurred to finance Zambian purchases of Romanian farm machinery. And it is also true that this obligation, now a debt, was assigned by Romania to Donegal International in 1999. It is also important to note that though international convention required debtor states to consent to assignment of state to state debt, and that such a consent at the time of its purported assignment might not have been forthcoming, “it is not suggested that there is any legal restraint that prevented the assignment of the debt without Zambia’s consent.” (DIL v. Zambia at ¶ 240). In any case, Zambia almost immediately acknowledged the assignment (id., at ¶ 241). Yet, neither the original debt nor its assignment, the history of which takes up the greater portion of the opinion in DIL v. Zambia, that ultimately is at issue!

The problem here was that “In April 2003 Donegal and Mr Kasonde executed the Settlement Agreement which set out an agreement about the discharge of the debt.” (DIL v. Zambia at ¶ 6). According to the High Court, “Mr Emmanuel Kasonde, . . . was then the Zambian Minister of Finance.” (DIL v. Zambia at ¶ 1). That Settlement Agreement, rather than the Romanian Debt previously assigned to Donegal International, now superceded, was the basis of the action for recovery.

I add that the fact that Zambia do not have immunity in respect of Donegal’s rights under the Settlement Agreement but would have been able to assert a claim to immunity in respect of the assigned debt is not simply a procedural matter removed from the nature of their substantial obligations but is an incident of the fact that previously their obligations were in respect of the assigned debt whereas Zambia’s obligations now arise under the Settlement Agreement. Because of this, the rights in respect of which Donegal now claim are not rights which were originally owed between states and which were therefore subject to state immunity even though relating to commercial transactions and even though assigned to Donegal. They are new and distinct. These new rights were never owed between states, and it appears to me strongly arguable that they relate to commercial transactions. If so, regardless of any waiver, they would not attract state immunity. Donegal would have been able to argue that Zambia could not claim state immunity in respect of Donegal’s claim because new rights arise under the Settlement Agreement even in the absence of the waiver in clause 12. DIL v.Zambia at ¶ 522.
Indeed, the High Court suggested that Zambia might have been better off, at least before U.K. courts, had it not entered into the Settlement Agreement, but merely defaulted on its now assigned Romanian debt.

Donegal accepted before me that before the Settlement Agreement Zambia would have had state immunity in respect of the assigned debt. They do so because, even assuming that the debt was of a commercial nature, before assignment it was a debt between states and Zambia would have had state immunity in respect of it. Donegal accept that, since the debt was assigned, in the conventional phrase, “subject to equities”, it would have continued to attract immunity after assignment. The point having been conceded by Donegal, I did not hear argument about this from Zambia. It seems to me right as a matter of general principle that the assignment of a debt should not adversely affect the creditor’s position in any way, but I confess that, as far as English law is concerned, I do not find it easy to find this in the wording of the State Immunity Act 1978 (see section 2(3): “This section [which provides that a State is not immune as respects commercial transactions entered into by the State] does not apply if the parties to that dispute are States...”. However, the assigned debt was not governed by English law and there had been no agreement that claims to recover it were subject to English jurisdiction, and in these circumstances I must proceed on the basis that Donegal’s concession was rightly made. (DIL v. Zambia at ¶ 20).
This case, then, had little to do with assignment. Or the protection of secondary markets in debt, or with markets in general. It essentially reduced itself to a direct commercial transaction between a sovereign and a private entity, with respect to which there was no sovereign immunity, and as to which the circumstances and capacities of the government at the time of the settlement, rather than those circumstances and capacities at the time of the incurrence of the original debt, control. This serves as a great lesson for sovereigns contemplating the repudiation of debt that is arguably illegitimate or otherwise odious. Any acknowledgment or settlement of such debt appears to “clean” it—or in the language of corporate law, to ratify the original incurrence—and make it substantially more difficult to avoid it. Settlement extinguishes the taint of the original debt.

2. Layers of Corruption and Debt Illegitimacy The Zambians suggested that virtually the entire series of transactions from 1998 through the completion of the Settlement Agreement were tinged with corruption. Zambia sought to show Donegal International was an eager party to some of that corruption at the time of the assignment of the debt to it by Romania. See DIL v. Zambia at ¶ 115-189). Zambia also sought to show that acknowledgement of the assignment was also tainted by corruption (DIL v. Zambia at ¶ 275-277). Zambia also suggested bribery in the context of the Settlement Agreement. (DIL v. Zambia at ¶ 490). Taken together, the various allegations of improper, corrupt and otherwise illegitimate conduct, Zambia argued, ought to have made the Settlement Agreement unenforceable “because it would be contrary to public policy to do so or because their claim arises ex turpi causa” (DIL v. Zambia at ¶ 472). This point is important to the development of an Odious Debt doctrine. If applied by the courts, it might suggest that debt tainted by illegality or corruption might be unenforceable. Applied to sovereign debt, it could serve as a major step toward the adoption of a “void for illegality argument.” And the High Court appeared to take a big step in that direction:

This does not, however, mean that the question whether illegality defeats a claim can be answered simply by an examination of the claimant’s pleadings. The test of whether a claim is founded on an unlawful or immoral act is less mechanical than that. However, a claim will not be regarded as founded on an unlawful or immoral act because there is some remote causative connection between the claim and an unlawful or immoral act on the part of the claimant. It is not enough to show that Donegal would not have been able to make their claim but for improper conduct on their part. . . . 65. The court will disregard unlawful or immoral conduct if the illegality or immorality is collateral to the facts relied upon in support of the claim LJ. (DIL v. Zambia at ¶486).
But this step has substantial limitations arising from its origins in equity. There must be a direct tie between the claimant and the bad acts. Thus a creditor that directly facilitated corruption or illegal conduct in the course of inducing official to incur debt may relieve the state from an obligation to pay that creditor. But it may not relieve a good faith purchased and holder in due course. Thus, the focus of the exception is the conduct of the claimant and not the effect on the state. This approach does not portend well for an expansive odious debt doctrine grounded in the condition of the debtor.

3. The problem of authority. Zambia sought to challenge the legitimacy of the debt, at virtually every step of its evolution toward the Settlement Agreement on the grounds that those who purported to negotiate of and bind Zambia had no authority to do so. An example discussed by the High Court, for instance, touches on the authority of Mr. Kasonde to execute the Settlement Agreement on Zambia’s behalf. (DIL v. Zambia at ¶ 431-456). Odious debt doctrine as being developed would likely provide incentives for state’s to attempt to disavow the actions of their agents and thus raise the costs of recovering debt. On the other hand, it might also require the development of a global consensus, at least among creditors of the diligence, covenants and undertakings necessary to give rise to strong presumptions that signatories had authority.

4. Freezing Sovereign Assets Abroad. The High Court suggested that asset freezing will not be automatic in cases of sovereign debt. Applying equitable principles, the High Court determined that Donegal International had to some extent misled the court. (DIL v. Zambia at ¶ 544). The irony was that the misleading had been unnecessary. Id. But having been found out, there are consequences:

If there has been material non-disclosure or material misrepresentation, the court will be astute to ensure that the applicant gains no advantage from is breach of duty. In assessing whether the breach is such as to justify or require the discharge of any order obtained and whether it is such as to preclude the applicant from further relief, it is relevant to consider the importance of the matter that was not disclosed or misrepresented, and also to consider whether the breach of duty was innocent in the sense that the deponent and applicant were unaware of the error or omission, or unaware in the case of non-disclosure of the relevance of what was not disclosed. Id., at ¶ 545.

But the High Court’s bark was worse than its bite. The High Court would dissolve the freeze order but permit Donegal International to reapply for a freeze. Id., at ¶ 546. “It will be for argument whether, if Donegal do apply for a new freezing order, I should take into account this history and if so what weight I should give it. I add that I shall not discharge the order presently in force until Donegal have had a reasonable chance to make such an application.” Id. This may be cold comfort for a state seeking to avoid an asset freeze, and provide a simple (if powerfully imparted) lesson for creditors seeking a freeze.

5. Penalty Provisions in Settlement Agreements. One bit of good news for Zambia, the High Court read the penalty provision rules of English law to find that the default provisions of the Settlement agreement were likely penal in character, and thus unenforceable as written. (DIL v. Zambia at ¶¶ 502-524). It was on this basis that the press suggested a reduction of the likely collection to about half the amount sought in the litigation.

The case, thus appears both more and less important than the press and those who have sought to characterize it from the perspectives of global civil society have made out. The High Court failed to address any of the political issues stressed by Jubilee and Oxfam. It never acknowledged tensions between global political strategies for development of poor states and the network of contracts supporting an integrated market in debt. The focus of the High Court were the contracts leading to the single contract to be enforced—the Settlement Agreement. In that context, any advances for an odious debt doctrine were incidental. But perhaps that was all one could hope for as long as the focus of law is on the contract and the creditor. Still, to the extent that issues of legitimacy and corruption play a greater role in the validity of debt contracts and to the extent that courts take seriously the separability of a state from its officials (and thus apply more vigorously an ultra vires rule) courts will begin to apply some of the great insights of modern odious debt doctrine. And that is a step in the right direction.