Award Winners

To answer these questions, it is necessary to have a thorough study of the current arbitration law and practice in China in the global context, and to look beyond the discipline of law and examine the arbitration development in the context of the changing economic, social and legal structure in Chinese society. This thesis gives the readers a unique insight into real arbitration practice in China, based on a combination of theoretical analysis and practical considerations. It explains the contemporary arbitration in China from an interdisciplinary perspective and with a comparative approach.  
First, the thesis presents to the readers an objective picture of the current law and practice of arbitration in China through empirical evidence. As part of the empirical study, the author conducted a research trip together with Prof. Gabrielle Kaufmann-Kholer in China (including Hong Kong, Beijing and Wuhan) between March and April 2007, in order to test the results of the preparatory research. During the research trip, a series of interviews were conducted with Chinese arbitration specialists, including academics, lawyers acting as counsel, arbitrators, judges and heads and staff of government service in charge of preparing legal reforms, and heads and staff of arbitration institutions. This first-hand information can reliably tell us how arbitration operates in China. It reveals the existing problems in the current regime, as opposed to what is officially reported by the institutions and generally described in literature.
Second, this thesis improves existing literature on arbitration in China by comparing the Chinese practice with transnational standards, which may shed lights on the uniqueness of the Chinese system, and may also illustrate the role of China, as a new economic player, in the formation of transnational arbitration.  
Finally, this thesis addresses a broader theoretical question on the interactions between legal system and legal culture. Through the lens of the transplantation of arbitration in China, the thesis demonstrates that tradition and culture do play a very significant role in accepting and reshaping a borrowed legal institution, despite the general trend that modernization of law is an inevitable trend of development. Analyzing the current legal system from the cultural and historical perspective will help the readers to understand traditional influence on the contemporary practice, to assess where the legal obstacles to modern arbitration arise, and to predict what the future trend might be.  Given the sustained theoretical interest in understanding the workings of legal transplantation and increasing importance of transnational arbitration, the topic of the thesis is significant in the sense that it deals with issues that are important not only for China, but also for other countries.

This thesis suggests that a simultaneous comparative investigation of the level of African engagement across the three core areas of negotiations, regular committee work and, dispute settlement provide uniquely valuable insights into the behaviour of African WTO Members and bring to the fore the most critical variables that explain their participation.   Although this research takes an empirical approach, it is legally grounded as its main focus is on participation in the World Trade Organization – a rules-based system grounded on legal Agreements binding on every Member.  The value and systemic importance of participation rests on the fact that multilateral trade rules serve an important domestic political-economic function.  Increasingly they form part of national strategies of external liberalization.  Binding reciprocal commitments engender the necessary locking in of policy, forestalling domestic policy reversals and uncertainty and unpredictability of national trade policy.  It is therefore important to participate in the shaping of trade rules that will ultimately require domestic implementation. 

Building on previous research, this thesis argues that, since the establishment of the WTO, across the three core areas of work, the minimal participation of African countries, is explained by the continuing inertia of a “special and differential exemption orientation (1)”; misalignment in coordinating capital-driven domestic trade policy and economic reforms with the African WTO "Geneva frontline"; the psychological propensities of individual African negotiators, inconsistent with the substantive character of work in the rules-based system; misallocation of negotiators across the core areas of work; a small trade share; and, to a lesser extent, specialized capacity handicaps.  Furthermore, the analysis of African participation suggests that negotiators from municipal systems unaccustomed to the rule of law, with fragile democracies and weak governance structures, have been hugely inactive, inconsistent in participation and ineffectual in WTO engagement.  Within this overarching explanatory framework, specific variables have intervened in different combinations in the three areas of work to influence the levels of engagement.  For instance, the thesis argues that low levels of trade shares (ipso facto low level of commercial interest) suggest explanations for low levels of engagement in MFN market access negotiations and dispute settlement participation, while "high competitiveness rankings" (2) for individual African countries, suggest why their level of engagement across the three areas studied compares to the most active in any region, regardless of the level of trade shares and GDP. 

The thesis concludes with recommendations for the improvement of Africa's participation at the WTO.  These revolve around the principal African actors, the process and substance of participation, emergent best practices, the linkages between trade policy, domestic reform, the rule of law and governance, and, technical assistance.   

Key words: WTO African Members; WTO African Group; WTO Coalitions; level of African WTO participation/engagement; three core areas of WTO work; Africa in WTO committee work; Africa in WTO dispute settlement; Africa in the Doha Round; WTO African technical assistance; Psychology of negotiators.

[1] For clarity, Special and differential treatment encompasses and is larger than the narrower concept of preferences, the latter specifically applying to market access.

[2] The World Economic Forum: Global Competitiveness Index 2010-2011 was used for this study