New Book: Constitutional Courts in Asia: A Comparative Perspective (Albert Chen and Andrew Harding)

Constitutional Courts in Asia: A Comparative Perspective
Edited by Albert Chen and Andrew Harding
Cambridge University Press
September 2018, 365 pp.

Description: The founding of a constitutional court is often an indication of a chosen path of constitutionalism and democracy. It is no coincidence that most of the constitutional courts in East and Southeast Asia were established at the same time as the transition of the countries concerned from authoritarianism to liberal constitutional democracy. This book is the first to provide systematic narratives and analysis of Asian experiences of constitutional courts and related developments, and to introduce comparative, historical and theoretical perspectives on these experiences, as well as debates on the relevant issues in countries that do not as yet have constitutional courts. This volume makes a significant contribution to the systematic and comparative study of constitutional courts, constitutional adjudication and constitutional developments in East and Southeast Asia and beyond.

• Provides systematic narratives and analysis of Asian experiences of constitutional courts and related developments
• Introduces a comparative, historical and analytical perspective that shows the international significance of the development of constitutional and legal institutions and their improvement over time
• Discusses the importance of constitutional adjudication in Asia

Reviews and Endorsement:

'We live in an age of constitutional courts. Yet courts around the world differ markedly in their approach to upholding democracy and human rights. This volume provides a timely and fascinating study of how these differences play out in Asia: from the super-strong judicial review practiced in Thailand, to the weak review found in Japan, it explores the social and political context for these differences, and the extent to which they are likely to remain stable over time. Theoretically and factually rich, it draws on insights from scholars around the world who are experts in Asia. It also combines canonical and new cases to provide a wide-ranging exploration of the variation we now find in 'Asian constitutionalism'.' Rosalind Dixon, University of New South Wales, Australia

'This is an excellent book that discusses the design and operation of constitutional review in East and Southeast Asia. It aptly combines a systematic presentation of the seven constitutional courts existing in the region with theoretical and comparative analysis of the problem. Undoubtedly, the book will serve as an essential reference for academic research as well as for debates on constitutional reform in other countries.' Lech Garlicki, University of Warsaw, Judge of the Constitutional Court of Poland (1993–2001) and of the European Court of Human Rights (2002–12)

'For comparative legal scholars and social scientists, this is a rare and precious book: a conceptually sophisticated and empirically rich collection of case studies and comparative reflections on constitutional courts in Asia. The volume directs attention to the variation that matters most - why have some constitutional courts succeeded in transforming their political environments, creating new forms of constitutional law and politics, while others have failed? Everyone engaged in the study of Asian law and politics needs to read this book.' Alec Stone Sweet, Saw Swee Hock Professor of Law, National University of Singapore

Albert Chen on Constitutional Courts in Asia: Western Origins and Asian Practice (new book chapter)

"Constitutional courts in Asia: Western origins and Asian practice"
Albert Chen
in Albert Chen & Andrew Harding (eds), Constitutional Courts in Asia: A Comparative Perspective (Cambridge University Press, September 2018), pp. 1-31

Introduction: Whereas law and courts, and to some extent, ideas of the rule of law, have existed in human history for millennia, written constitutions of states only have a history of approximately two centuries, and the earliest constitutional courts were established less than one century ago. The concept and institution of a constitutional court are, thus, relatively new inventions in the legal history of humankind. Yet, in the early twenty-first century, constitutional courts exist and operate in all corners of the world. They are a global phenomenon that deserves scholarly investigation from legal doctrinal, theoretical and comparative perspectives.
     In this chapter, we will first trace the origins and evolution of constitutional courts in the Western world and examine the transplantation of this legal or judicial institution to other continents and cultures (Section I of this chapter). The nature, functions and operation of constitutional courts will then be discussed (Section II). Next, we will focus on constitutional courts in East Asia and consider the history, experience and performance of the seven constitutional courts in this part of the world (Section III). Comparative observations on various features of these courts will be made (Section IV). Finally (Section V), we conclude by reflecting on the lessons and implications of the existence and operation of Asian constitutional courts.

Rebecca Lee on The Evolution of the Modern International Trust: Developments and Challenges (Iowa Law Review)

"The Evolution of the Modern International Trust: Developments and Challenges"
Rebecca Lee

Iowa Law Review
July 2018, Vol. 103, Issue 5, pp. 2069-2095

Abstract: As the first generation of wealthy entrepreneurs in Hong Kong begin to age, the issue of how best to transfer their family fortunes to the next generation has emerged. This Article first discusses the recent trends in financial planning for high-net-worth individuals in Hong Kong. It then addresses the growing use and evolution of trusts in wealth transfers from two perspectives, namely, (i) the innovative features of the modern international trust that render the use of a trust more palatable to Hong Kong settlors and (ii) the challenges posed by those features for both the validity of the trust and integrity of the trust concept. As the discussions show, the Hong Kong experience is indeed shared by most trust jurisdictions worldwide and provides the latter useful reference in confronting the controversies arising from the evolution of the trust.

Hualing Fu & Han Zhu on After the July 9 (709) Crackdown: The Future of Human Rights Lawyering (Fordham ILJ)

"After the July 9 (709) Crackdown: The Future of Human Rights Lawyering"
Hualing Fu & Han Zhu (PhD 2016)
Fordham International Law Journal
2018, Volume 41, Issue 5, pp. 1135-1164

Introduction:  Eighteen months after the 709 crackdown on human rights lawyers, a debate took place within China’s human rights lawyers’ communities. It is a brief, yet passionate and provocative debate focusing on some of the fundamental questions about law’s limits in seeking justice and protecting rights in an authoritarian state and the limited role of lawyers in their endeavour. Having grown for about twenty years since the mid-1990s, human rights lawyers have engaged in social-legal activism in wide policy areas including consumer protection, anti-discrimination, rights in the criminal process, and the freedom of religion and speech. The growth of legal rights and their enhanced protection in China in the past two decades are inextricably tied to China’s growing legal profession, especially a small group of lawyers who variously called themselves weiquan lawyers, die-hard lawyers, or human rights lawyers—lawyers who are public interest minded, legal rights-focused, and politically motivated in their battles against arbitrary powers. Yet, those are the lawyers who have received severe crackdown, and the repression has naturally provoked some of them to reflect on the vulnerability of the legal profession in the authoritarian state and the future prospect of socio-legal activism in bringing meaningful changes in society. The debate involved two issues: one specific and the other one general. The specific, pointed question that they have raised is this: is the traditional case-focused and law-centred legal mobilization, moderate or aggressive, still a feasible approach to take to bring structural changes to the political system, incremental or otherwise? In the aftermath of the crackdown, estranged lawyers started to reflect on their past success and failure, to cast doubts about their potential of their own profession in catalysing political transformation, and to express their deeply felt anxiety, frustration, and confusion about law, courts, and human rights lawyering.  A more general question touches on a more sensitive issue relating to the politics of lawyering. For the rights lawyers who have experienced or witnessed the crackdown, the Party has revealed its true nature and whatever hope that lawyers may have on law’s potential to tame the Party must have proven false.  For them, what matters in the Chinese political-legal system is Article 1 of the Constitution that states clearly that China is a democratic dictatorship. The occasional success in a few legal battles, they admit, may have blinded their eyes on the true nature of the Party state. Some of them, they admit, may just have forgotten that, in Svolik’s terms, repression is the “original sin” of authoritarianism. If that were the case, human rights lawyers should step out of the shadow of law, call a spade a spade and confront the Party head-on. Human rights lawyers need to be openly political. Before the 2015 crackdown, China had experienced waves of social-legal activism since the mid-1990s in which right discourses are translated into rights practices. As it happens, human rights lawyers and other activists have been situated at the forefront in the tireless efforts to expanding the sphere of rights and freedom and in constraining the arbitrary exercise of state power.  Together with media, especially social media and domestic Non-governmental organizations (“NGOs”) working in different sectors, human rights lawyers form a strategic “legal complex” in China in protecting legal rights and freedom and in the process hold the Party state accountable to its own legal rhetoric. Supported and sometimes aided by foreign donors, the legal complex used law as an entry point to engage in social-legal activism in shaping public opinions and influencing court decisions. For what they have done in leading and organizing those movements, lawyers and other activists have paid heavy prices and, one may argue, the prices that they pay are precisely indicative of their significance and impact. During the crackdown, leading human rights lawyers were placed under lengthy and secretive detention; many were humiliated and forced to confess their sins in state controlled or arranged media outlets, some were sentenced to lengthy imprisonment terms for subverting state power, and all were placed under tight control. The post-crackdown era also witnessed enhanced professional regulation by the government regulators—the Ministry of Justice (“MoJ”) and its provincial and local counterparts. With the appointment of Fu Zhenghua as the Minister of Justice, the Party seems to be determined to disappear human rights lawyering in China once for all. Ultimately all the challenging questions boil down to this: is there a future for human rights lawyering in China as we know it? After examining the debate on the future of rights lawyering among human rights lawyers, this article proposes three overlapping alternatives for human rights lawyers in the post-crackdown era: a triviality thesis, a co-optation thesis, and a resilience thesis. While the authoritarian system can be suffocating for its enemies, human rights lawyers can struggle to create their own breathing space.

New Book: Law, Obligation and Community (Dan Matthews and Scott Veitch)

Law, Obligation and Community
Edited by Daniel Matthews and Scott Veitch
Routledge: Taylor and Francis Group
June 2018, 272 pp.

Description: Against an ever-expanding and diversifying ‘rights talk’, this book re-opens the question of obligation from not only legal but also ethical, sociological and political perspectives. Its premise is that obligation has a primacy ahead of rights, because rights attach to practices and modes of being that are already saturated with obligations. Obligations thus lie at the core not just of law but of community. Yet the distinctive meanings, range and situations of obligation have tended to remain under-theorised in legal scholarship. In response, this book examines the sense in which we are multiply ‘bound beings’, to law and legal institutions, as much as we are to place, community, memory and the various social institutions that give shape to collective life. Sharing this set of concerns, each of the international group of scholars contributing to this volume traces the specificity of the binding force of obligations, their techniques and modes of expression, as well as their centrally important role in giving form to lawful relations. Together they provide an innovative and challenging contribution to legal scholarship: one that will also be of relevance to those working in politics, philosophy and social theory.

Scott Veitch on Duty Free (new book chapter)

"Duty Free" 

Scott Veitch

in Daniel Matthews & Scott Veitch (eds), Law, Obligation, Community (Routledge, June 2018), Chapter 5

Introduction: The Panama Papers exposé went some way to revealing the mechanisms and magnitude of global asset distribution as a way of circumventing state accountability techniques (Obermayer & Obermaier 2016). Two things stand out about this: one is the exposure to publicity of that which had hitherto been secret, and the other, that despite such secrecy much of what was exposed was legal. In the following, I attempt to understand the interplay of legal concepts and practices that make people, assets and obligations disappear from the radar of state and public accountability. I argue that the work of obligations and regulation is, ironically, key to this. I then consider how this ‘duty free’ scenario reveals the asymmetrical treatment of property rights and social rights, the conceptual labour that underpins this and some implications with respect to austerity and free riders.

Stacy Douglas & Dan Matthews on Sovereignty, Affect and Being-Bound (new book chapter)

"Sovereignty, affect and being-bound"

Stacy Douglas &  Daniel Matthews

in Daniel Matthews & Scott Veitch (eds), Law, Obligation, Community (Routledge, June 2018), Chapter 7, 22 pages

Introduction: If ever it left us, sovereignty has returned. The protectionist and nativist instincts that helped propel Donald Trump into office have been felt throughout the Western world as new nationalisms have forced themselves into the political mainstream. The promise of post-national identities, global flows of people and capital, and the weakening of the ‘bright lines’ of state control have been met by a forceful resistance that foregrounds local interests and concerns, often depends on ethnically defined notions of identity and clings fervently to nationalistic histories and modes of belonging. Whilst we might dismiss some of these movements as being motivated by atavistic fears of difference, there is a powerful sense that the events of 2016 represent the high watermark for the form of turbo-charged globalisation let loose as the Berlin Wall fell and the ‘new world order’ took hold in the early 1990s. As Kyle McGee argues, the West is suffering from a loss of both ‘place’ and ‘land’ as the dual forces of globalisation and global warming put extant forms of attachment to locale and community under erasure (McGee 2017). In such conditions, the allure of sovereignty with its promise to ‘take back control’, as the Brexit campaign had it, is quite understandable. If ‘waning sovereignty’ (Brown 2014) has accompanied these ‘twin vertigoes of placelessness and landlessness’ (McGee 2017, p. 128), its recent revival offers – some would believe – a line of defence against the forces of globalisation and the increasing precarity this brings. Against this background we engage with the theme of obligation in two ways.

     First, we explore the ways in which juridically enforceable obligations installed and defended by modern constitutional sovereignty are crucial to giving shape to the affective life of a community. We approach sovereignty through the sentiments that it produces – or claims to produce – and the particular effect that it has in enframing the world and giving scope to a sense of our political attachments and modes of belonging. We dwell on the sensibilities associated with sovereignty and on how the mobilisation of the rights and duties associated with the protection of sovereignty affectively enframes the way a political community attaches to place, past and an imagined future. 

     Second, continuing our emphasis on the register of affect, we explore a sense of ‘being-bound’ that both precedes and exceeds juridically defined obligations. The binding quality of obligations – evidenced in the root word ligare, which we find in ligature, ligament, allegiance and religion – limited notion of an obligation at law. It is this more expansive sense of ‘being-bound’ that we explore in what follows, underscoring the affective, political and existential dimensions to the bonds that give form to collective life. Ultimately, we are interested in unsettling the affective life of sovereignty, in revealing and attuning our selves to a sense of ‘being-bound’ that challenges sovereignty’s power to recentre an autonomous legal subject, and its attendant national community, within an anthropocentric horizon. Such a horizon is today increasingly compromised. In particular, the ‘twin vertigoes’ of globalisation and climatic change ought to attune us to a set of relations that transcend the assumed bifurcation between human and non-human life, ushering in a sensitivity to the bonds that sustain habitability beyond the limited set of relations honoured by modern sovereignty. 

     We find possibilities for such an unsettling of sovereignty’s affective force in artistic practices coming out of South Africa, namely in the work of J. M. Coetzee and Nandipha Mntambo, and explore the implications of their work for rethinking what it means to ‘be-bound’ beyond the juridical proscriptions associated with sovereignty. The complex challenges associated with the constitutional settlement in South Africa is not our central concern. Rather, by attending to the practices of two artists working within this context we hope to shed light on a broader problematic. The oldest questions of legal and political theory – the nature of the body politic, the territorial limits of political power and the aspirations of the common good – are today being reposed with a renewed urgency. It is our contention that turning to art and literature helps unseat the predominant affective disposition installed by contemporary juridico-political techniques. We think that the South African case, as it has been tumultuously unfolding for the past nearly 25 years, can offer some important insights here, especially as it demonstrates how the affective force of sovereignty reaffirms a deeply held anthropocentricism that we must today begin to challenge if we are to avoid an eternal return of well-worn scripts that equate constitutional sovereignty with justice. We begin by unpacking our approach to affect before moving to discuss sovereignty, South Africa, Coetzee and Mntambo.

Marcelo Thompson on the Biographical Core of Law: Privacy, Personhood, and the Bounds of Obligation (new book chapter)

"The biographical core of law: privacy, personhood, and the bounds of obligation"

Marcelo Thompson

in Daniel Matthews & Scott Veitch (eds), Law, Obligation, Community (Routledge, June 2018), Chapter 9, 34 pages

Introduction: What is the origin of the force of privacy obligations? That privacy obligations are legal obligations and obligations endowed with a certain force is indisputable. The daily news appears intent on convincing us of the contrary, so insistent and pervasive are the privacy violations it portrays. There is also a great deal of normative indeterminacy in the expectations on which privacy rests. Yet it is clear that, in a vast number of circumstances, people can expect others to be bound by an obligation to respect their privacy. For all their seeming fragility, these expectations are immensely powerful. So much so that the whole edifice of the law rests on them. The visible face of privacy expectations may be that of their pervasive disappointment. Much more prevalent, however, are those less visible situations where the boundaries of access obtain, where privacy is preserved and, with it, the spaces for the development of human subjectivity. It is only through the discreet workings of such boundaries that law can exist – that law can pass – as a normative order. For law, thus, protecting privacy is an existential affair. Privacy, human subjectivity, and the law hold, in other words, a relationship of reciprocal necessitation; a relationship so profound it might be said that, like space, time, and the universe, none of these ideas would be able to exist without the others. Together, they form a biographical core of legal normativity. Understanding how they intertwine has important implications for how we approach each of them as a concept. Pursuing such an understanding is the chief aim of the pages that follow. There are immediate theoretical reasons for pursuing this inquiry. On privacy, it provides an answer to the question at the beginning of this paper, enabling us to observe how the origin of the force of privacy is bound with that of law itself. On law, it not only addresses contemporary social theories that see law emerging in non-human realms, but also highlights how law and morality are intertwined, before any interpretive enterprise, at the very genesis of the interpreter. On human subjectivity, it invites us to revisit theories according to which law exists to address certain normative defects or perform certain functions, but which refrain from fully acknowledging the human dimension of such tasks. Beyond situated theoretical gains, however, carrying out this inquiry is, I believe, an existential task for jurisprudence. It is so as it highlights how pursuing and institutionalizing the best normative interpretation of human subjectivity and its boundaries might, in the end, be the central task of any legal system, and a task on which the very existence of law depends. One could think here of an allegory in which, through the looking glass, law seeks to interpret human subjectivity, while human subjectivity conducts the same interpretive survey regarding the law. But that could raise the question of whether the relationship between law and human subjectivity is then purely one of mutual reflexivity and interaction between beings that display episodic curiosity about but otherwise remain external to each other. A better illustration would be M. C. Escher’s lithograph of two hands drawing each other in a strange loop. Law and human subjectivity, in effect, constitute each other. Their origin and their boundaries, their fate and their force are intrinsically and reciprocally intertwined. Privacy is the quintessential realm where this relationship takes place. It is here that law probes the reasonableness of the boundaries between human subjects, and between these and the world around them, institutionally recognizing such boundaries, and lending thus some fixity to them. Those are also the boundaries from within which human subjectivity, like the hand in Escher’s drawing, emerges to further constitute the law. Yet human subjectivity does not arise casually. It calls for institutional membership in the community of legal beings. It needs recognition from the law before it can, in turn, shape the law. Such a recognition is given, and queried in each raise of hands, through personhood. Personhood, the institutional face of human subjectivity, defines membership within the law. This membership comes with certain capacities, which in turn are differentiated on the grounds of certain statuses. But all these are laid out in fairly general and non-negotiable terms, attaching to whoever falls into a certain legal position. Privacy, instead, contains as much objectivity as subjectivity; it follows, traces, and further enables the development of human subjectivity as it unfolds. In doing so, it extends and individuates the institutional contours of human personhood, in the light of expectations that are recognized as reasonable in the law. Law exists through these expectations, as they enable the rational exercise of the capacities, faculties, and powers – whilst addressing the shortcomings and vicissitudes – of the beings on whose existence law depends; that is, human beings, beings through and for the sake of whom law exists. Before we take this exploration further, a note is due on the usefulness of our inquiry. It may seem obvious to affirm that law cannot exist without the recognition of human subjectivity and the consequent enablement of the conditions for its development. Indeed, if human flourishing is not seen as an end of the law, to what end, then, does law provide people with reasons for action; to what end does law mediate ‘between people and the right reasons that apply to them’? For however maligned the very thought of what ‘right reasons’ might be, there would be something profoundly inconsistent, delirious even, in denying that the value of human subjectivity is one such reason. The recognition of human subjectivity and its boundaries is, at the same time, end and condition of the very idea of normativity – or at least of forms of normativity whose reflective, central-case viewpoint is that of human beings. And the institutional order of the law is one such form.

Johannes Chan and Wing Kay Po on the Applicability of the Chinese Constitution in Hong Kong (SCMP)

"How China's constitution ensured that the Basic Law remains pre-eminent in Hong Kong"

Johannes Chan and Wing Kay Po

South China Morning Post

6 August 2018

In recent years, there seems to be a tendency for mainland Chinese officials to omit or avoid references to the Sino-British Joint Declaration in any discussion about “one country, two systems”, as if the Joint Declaration were non-existent or wholly irrelevant. It is an undeniable historical fact that for about 150 years between 1842 and 1997, Hong Kong was under British jurisdiction. The British government introduced to Hong Kong, among other things, the common law system and a free capitalist economy. By the end of the last century, Hong Kong enjoyed a legal, social, political and economic system and lifestyle that were quite different from that on the mainland.

     It was precisely because of this historical fact that the British and the Chinese governments entered into what turned out to be two years of negotiation on the future of Hong Kong in 1982, resulting in the signing of the Joint Declaration in 1984. Under the Joint Declaration, the British government relinquished any sovereignty claim over Hong Kong in 1997, in return for a promise from the Chinese government to preserve the previous systems and lifestyle in Hong Kong and not to apply the socialist system and policies of the mainland to Hong Kong after its resumption of sovereignty over Hong Kong... Click here to read the full article.

Amanda Whitfort Interviewed on Wildlife Crime on New Radio Programme, Legally Speaking (RTHK)

Associate Professor Amanda Whitfort was interviewed by Annalie Chow on RTHK Radio 3 last Saturday (28 July) concerning Hong Kong's major role in the illegal trade in endangered species in Asia. Whitfort is currently researching legislative methods to improve protection for endangered species smuggled into and through HK, particularly for use in traditional Chinese medicine. 

     Utilising a KE Impact project grant to work with the Kadoorie Farm and Botanical Garden, and a larger grant from the Research Grants Council, Whitfort has prepared 33 victim impact statements for use in wildlife crime prosecutions. The statements describe the effects of crime on the most commonly smuggled animals routed into and through Hong Kong, and may be used by judges to inform sentencing decisions in our courts. She is also preparing a report calling for legislative changes in Hong Kong to better protect endangered species. Her full report will be released to the government and the public in early 2019.  The radio programme can be heard here.

Douglas Arner Interviewed on How Central Banks Can Capitalise on Regtech (Central Banking)

"Capitalising on regtech"
Joel Clark
Central Banking
30 July 2018

If one were to imagine the ideal financial supervision system of the future, it would probably look very different from what we have today. Financial institutions would report details of transactions to a central utility, from which regulators would be able to extract information in real time. They might monitor markets through multiple screens in futuristic control rooms, picking up systemic risks with the help of flashing lights and heat maps.

     Data reporting requirements have increased dramatically since the 2007–2008 financial crisis, but central banks and regulators admit they cannot yet use this data to build an accurate picture of risk in the financial system. The evolution of regulatory technology, or regtech, might help deal with this problem – and some central banks are actively exploring opportunities – but there is a long way to go.

...

   “New regulations over the past decade have created a massive new pool of data that didn’t previously exist, so there is a major opportunity for central banks to use this data to obtain better insights and achieve better regulatory outcomes,” says Douglas Arner, professor of law at the University of Hong Kong.

     Enthusiasm for exploring regtech varies across the central bank community, with some institutions already surveying and testing new approaches while others wait to see how the technology evolves. But the data challenge shows little sign of diminishing, with the likelihood of further reporting requirements being layered on top of existing ones... Click here to read the full article.

Martin Kwan Warns Practitioners on the Precedential Value of Unreported Judgments on the Interpretation of Standard Contract Terms (Business L Rev)

"The Precedential Value of Unreported Judgment on the Interpretation of Standard Contract Terms: A Warning for Practitioners"

Martin YC Kwan (PCLL candidate)

Business Law Review

2018, Vol. 39, Issue 4, pp. 136-8

Abstract: In the recent Court of Appeal decision Allianz Insurance Plc v. Tonicstar Limited [2018] EWCA Civ 434, the Court did not follow the previous interpretation of a standard contract term made by an unreported High Court judgment in 2000. Whilst the Court could lawfully not follow the unreported judgment given (1) the contractual interpretation was just a non-binding finding of fact and (2) the unreported judgment was made by a lower court, a critical reason why the Court did not follow it was because the Court considered the unreported status meant the interpretation was not well known. The meaning of the contract term thus has not been settled by the previous inconspicuous interpretation, which meant it was amenable to reinterpretation. This note suggests that practitioners should be mindful when relying on unreported judgments on contractual interpretation. Although the Court did not expressly and generally devalue any unreported judgment, the Court’s reasoning may be understood to have diminished its precedential value on the interpretation of standard contract terms. It will also be argued that there would be more certainty if the Court had not made such a distinction based on the status of being reported and unreported when considering whether a clause has been given a settled meaning by a previous judgment.

Weixia Gu on Issues of Extraterritorial Arbitration in Non-Foreign-Related Disputes (PKU LJ)

"Issues of Extraterritorial Arbitration in Non-Foreign-Related Disputes"
Weixia Gu
Peking University Law Journal （中外法学）
2018, Vol. 30, No. 3, pp. 651-670

Abstract: As China further liberalises and marketises, a new type of dispute has emerged. This type of dispute is domestic and has no foreign-related elements, but is submitted for arbitration outside China. The orthodox standard for determining whether a dispute is foreign-related — The Theory of “Three Essentials of Legal Relations” — is too simplistic and rigid. The addition of "catch-all provisions" in the evolution of laws and regulations demonstrates that China normatively foresees cases with unorthodox foreign-related elements. Specifically on the determination of foreign-related elements in arbitration, existing arbitration laws and rules in China have not expressly precluded disputes without foreign-related elements to be submitted to arbitration outside China. Despite this, judicial practice and judicial rationality tends to dismiss the validity of such arbitrations. 2015 was a watershed moment for the judicial attitude towards the issue. At the end of 2015, the Shanghai Golden Landmark case removed the restrictions to determination method of foreign-related elements that has been in place for decades, a breakthrough in recognising unorthodox foreign-related elements. From the perspective of interactivity between law and economic development, the arbitration system in China needs to open up further in the context of the Belt and Road Initiative and Free Trade Zones development, and the breakthrough in recognising new forms of foreign-elements has great implications on Chinese arbitration market.  Click here to download the paper in Chinese.