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Nanying Tao Mcgill University Faculty of Law August 2019 CHINA’S ATTITUDE TOWARDS INTERNATIONAL ADJUDICATION: A TRANSCIVILIZATIONAL PROCESS PERSPECTIVE Nanying Tao McGill University Faculty of Law August 2019 A thesis submitted to McGill University in partial fulfillment of the requirements of the degree of Doctor of Civil Law (D.C.L) © Nanying Tao, 2019 ACKNOWLEDGEMENTS Completion of this doctoral dissertation was possible with the support of several people. I would like to express my sincere gratitude to all of them. First, I am extremely grateful to my doctoral supervisor, Professor Andrea Kay Bjorklund, for her valuable guidance, scholarly inputs and the consistent encouragement I received throughout the research work. This feat was possible only because of the unconditional support provided by Prof. Bjorklund. She has always made herself available to answer my questions and clarify my thoughts despite her busy schedule and I consider it as a privilege to have completed my doctoral degree under her guidance and to have learned from her research expertise. I would also like to thank the members of my Thesis Advisory Committee: I am grateful to Professor Catherine Walsh for her very specific and invaluable advice on my drafts and her assistance with keeping my writing progress on schedule; I also thank Professor Armand de Mestral for his recommendation of Professor Onuma Yasuaki’s transcivilizational theory. Many professors have been very kind in extending help at various phases of this research. I acknowledge Professor Cliff Manjiao Chi for inspiring me to research China’s attitude towards international adjudication and consistently sharing his research expertise throughout my work. I thank Professor Fabien Gélinas, Professor Frédéric Mégret and Professor Richard Gold for their support and the facilities provided to carry out the research work at McGill. I would also like to thank Dr. Oonagh Fitzgerald, Mr. Hugo Perezcano Díaz and other people from the Centre for International Governance and Innovation (CIGI) for their constructive comments on my research during my residence i at CIGI in 2017 as a doctoral scholar. This thesis was funded by the McGill Faculty of Law, McGill University, the CIGI International Law Research Program, the L. Yves Fortier Chair in International Arbitration and International Commercial Law, the Private Justice and the Rule of Law Research Group and the Norton Rose Fulbright Faculty Scholarship. I am grateful to these institutions for their generous support. I would also like to express my appreciation to Mr. Alexander Nachaj and Dr. Eliza Bateman for editing my dissertation, and Ms. Sarah Bardaxoglou for her French translation of the Abstract. I would also like to extend many thanks to the friends I made before and during my doctoral study. I am very grateful to my close friends Dr. Jinging Li and Mr. Qinglong Wang for sharing my happiness and sadness along this journey. Through personal and scholarly interactions, I also gained a lot from Ms. Can Cui, Ms. Jing Zhu, Ms. Jingsi Lv, Ms. Danni Cai, Ms. Laura Dehaibi, Ms.Wanshu Cong, Dr. Tanya Krupiy, Dr. Cassandra Steer, the members of the McGill Peer Writing Group and my colleagues in room 602 of New Chancellor Day Hall. Lastly, I would also like to thank my parents, who know neither English nor international law but continue to staunchly support their daughter. Their love and trust is pretty much the only thing makes me endure the bitter Montreal winters as well as the 6-year-long doctoral life which is sometimes even more bitter than the winters. ii ABSTRACT This thesis observes the evolution of China’s attitude towards international adjudication. Unlike the conventional rule-oriented approach which studies Chinese attitudes merely through China’s acceptance of international adjudication or its compliance with international rules and principles, this thesis—applying a transcivilizational decision-making process perspective—profiles how the Chinese feel, think, say and behave in past, present and future contexts when they interact with international courts and tribunals. Given the long period of intervention and imperialism by Western powers and the significance of Sino-Western cultural differences, China has traditionally characterized international adjudication as a Western-made tool for power politics and has therefore adopted an ambivalent position on international courts or tribunals such as the PCA, PCIJ, and ICJ. The “reform and opening-up” that started in 1978 provided China with momentum to change its attitude towards international adjudication. Recent decades have demonstrated how China, through observing, learning and practicing in WTO adjudication and investment arbitration, has accustomed itself to the international legal regime and has come to realize the value of international adjudication. With its growing power and improved legal capacity, a new tendency seems to be emerging in China’s future attitude towards international adjudication. Previously, China was “asked” to participate in international adjudication and to abide by many Western-dominated norms. However, this dissertation predicts that, in the future, China will show more interest in reinterpreting, or even remaking, rules of international adjudication with a salient Chinese character, iii a Chinese feature and a Chinese vision. While presenting the evolution of China’s attitude, this thesis also tries to deconstruct, reproduce and rethink the image of China in international adjudication with a legal-sociological perspective: it explores how traditional Chinese culture, Western culture and their interactions have shaped modern China and its approach to the international adjudicatory regime. iv RÉSUMÉ Cette thèse s’intéresse à l’évolution de l’attitude de la Chine à l’égard de l’arbitrage international. Contrairement à l’approche conventionnelle axée sur la règle qui étudie l’attitude de la Chine à travers son adhérence à l’arbitrage international ou encore sa conformité aux normes et principes internationaux, cette thèse adopte une perspective transcivilisationnelle du processus de prise de décision afin d’esquisser le portrait des interactions de la Chine avec les cours et les tribunaux internationaux, ce qu’elle ressent, pense, dit et comment elle se conduit – dans le passé, le présent et le futur. Compte tenu de la période d’intervention, de l’impérialisme des puissances occidentales et des différences culturelles sino-occidentales, la Chine a longtemps considéré l’arbitrage international comme un outil de pouvoir politique occidental, et ainsi adopté une position ambivalente par rapport aux cours et tribunaux internationaux, tels que la Cour permanente d’arbitrage, la Cour permanente de justice international et Cour internationale de justice. La réforme et l’ouverture initiées en 1978 ont marqué l’élan du changement d’attitude de la Chine. Les pratiques, observations et leçons en matière d’arbitrage et d’arbitrage relatif aux traités d’investissement de l’OMC tirées par la Chine au cours de cette dernière décennie témoignent de son accoutumance au régime juridique international et des bénéfices que lui offre l’arbitrage international. Par un pouvoir croissant et une capacité juridique accrue, une nouvelle tendance semble émerger dans l’attitude future de la Chine à l’égard de l’arbitrage international. La Chine était en effet auparavant ‘invitée’ à participer à l’arbitrage international. Dans le v futur, il appert que la Chine s’intéressera davantage à la réinterprétation, voire à la modification des règles d’arbitrage international, qui seront alors marquées par l’emprunte singulière de la Chine dans leur caractéristique, leur fonction et leur vision. S’appuyant sur une perspective culturelle et sociojuridique, cette thèse tente de déconstruire, reproduire et repenser l’image de la Chine en arbitrage international. En plus des règles internationales ‘noires ou blanches’, cette étude explore également comment la culture traditionnelle chinoise, la culture occidentale et leurs interactions façonnent la Chine moderne et l’approche du régime de l’arbitrage international. vi Contents ABBREVIATIONS AND ACRONYMS .............................................................................. 5 INTRODUCTION ................................................................................................................... 7 PART I THEORETICAL AND METHODOLOGICAL FRAMEWORK .................. 17 CHAPTER 1 CHINA’S ATTITUDE TOWARDS INTERNATIONAL ADJUDICATION AS A TRANSCIVILIZATIONAL DECISION-MAKING PROCESS ................................................... 17 1.1 Literature Review and the Problem of Perspective ...................................................... 17 1.1.1 The Positivist Perspective: Discovering China in Rules ................................................ 17 1.1.2 The Western-centric Perspective: Discovering China in the West ................................ 21 1.2 Discovering China in Transcivilizational Decision-Making Processes ....................... 26 1.2.1 Starting Point: International Adjudication as a Decision-Making Process .................... 27 1.2.2 Attitude as the Pursuit of Values .................................................................................... 35 1.2.3 The Chinese Value Cluster as a Product of Sino-Western Transcivilizational Interaction 42 1.3 Methodological Framework ........................................................................................... 50 1.3.1 Historical Study of China’s Attitude .............................................................................
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