The SNIS congratulates both ex aequo laureates of the 2011 SNIS Award, Dr. Kun Fan and Dr. Joan Apecu Laker for their outstanding achievement. The Jury was unanimously convinced by the excellent interdisciplinary research of both PhD thesis and the conclusions that reach out beyond academia to policy makers at various levels.
Dr. Kun Fan
The law practice of international commercial arbitration in China measured by transnational standards. A legal, cultural, sociological, economic and political analysis
April 2011, University of Geneva, under the direction of Professor Gabrielle Kaufmann-Kohler and Professor Song Lu (China Foreign Affairs University).
Ms. Kun Fan is currently Assistant Professor at the Faculty of Law at the Chinese University of Hong Kong. She teaches and researches in the area of international commercial arbitration, alternative dispute resolution, and cultural study of law. Prof. Fan is admitted to practice in the state of New York. She is a member of the Chartered Institute of Arbitrators and a Domain Names Panelist of the Hong Kong International Arbitration Center. She has studied and practiced in China, Singapore, U.S.A., Switzerland, France and Hong Kong, and speaks Chinese, English and French. Before joining the faculty, Prof. Fan worked as a Deputy Counsel at the ICC International Court of Arbitration in Paris, during which she has overseen hundreds of international arbitration cases pending under the ICC Rules spanning numerous industry and regions. Prior to that, she worked with Prof. Gabrielle Kaufmann-Kohler at the Geneva University Law School for a research project on International Arbitration in China, funded by the Swiss National Science Foundation. Before moving to Europe, she worked as a Foreign Legal Advisor at a leading law firm in Singapore, where she advised clients on China-related matters in the areas of foreign investment, mergers & acquisition, and intellectual property.
Abstract:
In the context of globalization, there is a strong movement towards harmonization of law and practice of modern arbitration, a constant development towards clearly identifiable points of convergence. In this context of transnational arbitration, to what extent are Western and Chinese legal traditions still influential on their modern arbitration practice? Contrary to the Western legal tradition which is significantly based on private law such as jus civile in ancient Roman law and the law merchant in Europe, the Chinese approach to dispute resolution is influenced, to a great extent, by Confucian philosophy that emphasizes harmony and conflict avoidance. Now that China’s legal system has evolved, to what extend is this non-confrontational culture still influential on the law and practice of arbitration in modern China? Furthermore, in the new era of globalization, non-Western countries are playing an increasingly important role in international commercial and financial markets. An important question to ask in the study of transnational arbitration is how the new economic players will react to this movement of harmonization. Will they follow and adapt to the movement? Or will they attempt to shape transnational arbitration, to suit their economic requirements and legal background? China again, serves as a good example in this regard, as one of the main new economic players which increasingly interact with global commerce. Is China showing signs of adaptation to the current trend of transnational arbitration? On the other hand, will the Chinese legal culture influence the practice of arbitration in the rest of the world?
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.
Dr. Joan Apecu Laker
African participation at the World Trade OrganizationLegal and Institutional Aspects1995 to 2010
December 2011, Graduate Institute of International and Development Studies, Geneva, under the supervision of Professor Joost Pauwelyn.
Ms Apecu is currently an Economic Affairs Officer in the Council and Trade Negotiations Committee Division of the World Trade Organization. Prior to that, she served in several capacities in the Uganda Law Reform Commission, including as a Senior Legal Officer in charge of Law Reform and Research, where she undertook law reform projects in several branches of the law. Ms Apecu has also served in the Permanent Mission of Uganda to the United Nations and Other International Organisations in Geneva Switzerland.
This study investigates the "level of engagement and participation" of individual and collective African Members' participation in the World Trade Organization (WTO), from 1995 to 2010. Why has their individual and collective participation in the WTO, in the three core areas of regular committee work, dispute settlement and negotiations, been nominal, minimal and largely ineffective, in relation to the Group's size, compared to non-African Members, and even on their own identified priorities? Has the existence of the WTO African Group made any difference in African participation? How did African WTO Members use issue-specific and coalitional behaviour to compensate for their individual participatory weaknesses? Although limited specialized capacity and experience were argued as critical factors at the establishment of the WTO in 1995, why is the "level of engagement and participation" still largely low 15 years later?
There has been a considerable volume of valuable foundation research regarding developing-country participation in the trading system. They reflect a wide range of dependent variables. These studies have tended to singular focus on the areas of either dispute settlement, or regular work or negotiations. Furthermore, there has been a pattern to extrapolate from broader developing country participation, conclusions and findings and generalize these to African participation. Current research has made useful contributions in suggesting explanations for developing country participatory strengths and weaknesses. These have revolved around a range of factors such as a baseline of passivity, low technical capacity, cost limitations, disinterest with the original GATT agenda perceived as developed-country oriented and initial developing country attraction to UNCTAD in preference to the GATT/WTO. This study builds on earlier research and seeks to go further. It contributes by analysing more recent evidence and over a longer period – 1995 to 2010 – in changed circumstances, and extends analysis simultaneously across the three core areas of regular committee work, dispute settlement and negotiations. The primary focus is on African WTO membership.
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
