China's Path to Modernization and Legal Pluralism: Transplants and the Belt and Road Initiative
Authors
Davide Giacomo Zoppolato & Paolo Davide Farah
Keywords
Belt and Road Initiative
legal transplants
global governance
legal development
legal pluralism
China
In examining the role of law in China, legal scholars have explored the influence of
traditional culture, legal history, and ideology on the relationship between citizens and the
state (Li, 1996 ; Bell, 2010 ). Other studies, grounded in ancient China and traditional Chinese
law, demonstrate how cultural aspects like hierarchy, conservativism, and patriarchal
approach have informed legal developments in the country (Katz, 2008 ; Simon, 2013 ).
Historical developments from the communist period have been extensively examined in
the literature, with studies exploring and situating Chinese law within a longer trajectory
of reforms and development. Leng draws a parallel between the dual legal framework of
traditional Chinese law and its evolution into the legal landscape of modern China. In
traditional Chinese society,Fa(positive law) represented formal, codified laws and
regulations enforced by the state, whileLi(moral code) embodied informal societal norms,
ethics, and customs, often rooted in Confucian philosophy (Leng, 1977 ). Together,FaandLi
complemented each other to create a balanced system for maintaining social order and
regulating behaviour. Leng argues that this duality persists in modern China, even as the
country has adopted a more formal legal system in line with contemporary state
governance. During the Mao era, for instance, formal legal codes were often downplayed in
favour of societal models rooted in moral and ideological values, such as collectivism and
loyalty to the Communist Party. Similarly, contemporary China exhibits a coexistence of
legal and societal models, which include cultural norms, moral principles, and informal
mechanisms of dispute resolution.
This highlights a distinctive feature of China’s legal tradition: the mix of formal legal
mechanisms with broader moral and social frameworks to achieve governance and
harmony. Leng’s observation underscores how the legacy of traditional Chinese law
continues to influence the dynamics of legal and societal interactions in China today.
However, the Maoist period is mostly treated as a rupture in this tradition, marked by
legal nihilism and the predominance of informalism over formalism, with law having little
to no impact on the advancement of Chinese society, and following the rule of man rather
than the rule of law (Lo, 1995 ; Keith, 2013 ; Leese and Engman, 2018 ). Despite this,
significant legal developments during this period informed China’s legal system (Liebman
and Milhaupt, 2016 ; Clarke, 2022 ) and supported the subsequent opening-up reforms,
where Deng Xiaoping and the CPC found in“law”an important ally for the construction
and regulation of the socialist market economy (Lubman, 1999 ). Comparative legal
scholars have shown that China employs laws and regulations as tools of governance
primarily to legitimize and strengthen CPC power (Shue and Thornton, 2017 ), rather than
to promote and protect directly liberal values (Minzner, 2011 ; Liebman, 2014 ). Others like
Seppanen found how social stability and economic development replaced, during the post-
reform period, the ideological dogmatism of Marxism-Leninism and Mao Zedong thought
as sources of legitimization for the CPC (Seppanen, 2016 , p. 25), thereby requiring a robust
legal framework. From the 1980s, China also stepped up international cooperation with
Global North countries to improve and reform its legal system.
Throughout its history, China always ensured that foreign legal knowledge and
institutions seamlessly integrated into its domestic legal system, creating a tailored
framework that bolstered its state-controlled market economy and centralized political
structure. Supporters of legal transplants from the Global North often point to their
practical benefits for Global South countries, such as accelerating legal development,
fostering international compatibility, and providing a foundation for economic
modernization and governance. Critics, however, underscore the challenges of adapting
foreign legal concepts to local cultural, political, and social contexts, arguing that such
transplants may not fully integrate or function effectively in their new environment.
The concept of legal transplant has been predominantly discussed in the context of
Western legal institutions, often used as a powerful metaphor for explaining the historical
evolution and globalization of legal systems. This metaphor underscores the influence of
Western legal traditions, such as civil law and common law, on shaping modern legal
frameworks in non-Western countries. In China’s case, adopting foreign legal elements has
been part of its broader strategy to integrate into the global economy and international
legal order while balancing its unique legal traditions and political priorities. China’s
experience with legal transplants has garnered considerable attention in the literature,
with scholars in comparative law exploring how the country has adopted and adapted
foreign legal models to suit its domestic needs. With China’s deeper integration into the
international community, scholars of comparative law began to examine how its
commitments under international, economic, and WTO law influenced its domestic legal
system and reforms. The comparative law perspective focused primarily on comparing
foreign legal systems with Chinese law without considering how China’s international
commitments shaped its legal framework. Conversely, those who focused on China’s
obligations under international law, or under WTO law, tended to neglect how these
commitments were integrated into the Chinese legal system and the role of foreign legal
transplants in shaping China’s implementation of these international responsibilities.
These two dimensions—China’s adaptation of foreign legal models and its obligations
under international law—highlight distinct yet interconnected perspectives in under-
standing the evolution of, in general, a country’s legal framework and specifically China’s
legal framework (Farah, 2016 ). Scholars in comparative law have increasingly recognized
the value of examining both dimensions, an approach that has been brought together
under the umbrella of“comparative international law”(Roberts et al., 2015 ; Siems, 2023 ).
This approach effectively illustrates that legal transplants are not simply the adoption
of foreign laws for the sake of imitation; rather, they encompass an international
dimension, where a country’s legal framework both influences and is influenced by its
global standing and its need to fulfil its international obligations. This integration occurs
not in isolation but through the adaptation of foreign legal norms that align with the
country’s broader economic, political, and social priorities. For example, China’s accession
to the WTO required significant legal reforms, particularly in areas like intellectual
property protection, dispute resolution mechanisms, and trade-related legal practices
(Farah, 2006 ; Farah and Cima, 2010 ; Shaffer and Gao, 2018 ; Hillman, 2023 ). In these areas,
China selectively adapted legal norms from Western legal systems while modifying them
to suit its domestic context. These legal transplants were not mere adoptions but rather
adjusted to comply with China’s economic model and its need to maintain control over key
sectors while fulfilling its international obligations under WTO rules.
Furthermore, China’s engagement with international environmental law, particularly
in the context of the Paris Agreement (Farah, 2016 ; Farah and Cima, 2016 ), has also
demonstrated the influence of foreign legal models (Beyer, 2006 ; Yang and Percival, 2009 ;
Jia, 2019 ). In implementing climate change commitments, China has drawn on
international frameworks and legal principles from other countries to craft domestic
policies that balance global environmental goals with China’s unique political and
economic conditions (Deng and Farah, 2020 ; Deng, Farah and Wang, 2015 ). For instance, the
country has implemented aspects of market-driven environmental regulation, such as
carbon trading systems, inspired by practices in the EU, while maintaining a strong state
role in environmental governance. This selective adaptation reflects China’s approach to
legal transplants, where foreign norms are not only absorbed but also reshaped to fit the
domestic context, ensuring the country’s international commitments are met while
retaining its sovereignty over economic and political decisions.
In these ways, legal transplants, through the lenses of both international and
comparative law, play a crucial role in shaping China’s approach to fulfilling its
international obligations, allowing the country to maintain its legal and economic
priorities while engaging with global legal standards. This process of selective adaptation
demonstrates how legal transplants are not static imports but dynamic tools through
which countries navigate the complexities of globalization and legal cooperation. This
dynamic is evident in studies like Erie and Do (2021), who examine the case of Special
Economic Zones (SEZs) in Vietnam, highlighting how China’s legal transplants remain in
their early stages of development. As they note,“Chinese law has not gained traction as a
source of legal transplant in recipient states, but it may do so in the future”“(Erie and Do,
2021 ). Despite this limited influence to date, we argue in the remainder of this article that
China’s legal transplants are emerging as a crucial yet underexplored area of research. Like
other countries in the Global South, China’s approach to exporting and promoting its legal
models often involves promoting alternatives to Western-centric legal norms, offering a
blend of formal legal structures and flexible, pragmatic practices that align with the
specific needs and contexts of partner nations without direct references to human rights
or ecological considerations (Zoppolato and Jiang, 2023 ).
China’s legal influence is now increasingly visible in areas such as commercial law,
arbitration practices, intellectual property regimes, and regulatory frameworks, reflecting
a broader strategy of fostering legal and economic partnerships with other countries,
particularly in the Global South. It is important to highlight how China’s legal influence is
not about replicating its domestic legal system. Instead, it involves a selective adaptation
of legal norms and practices that resonate with shared developmental challenges and
geopolitical interests, carefully tailored to meet the specific needs and contexts of partner
countries. This selective approach underscores a duality in China’s legal engagement:
while it remains an active recipient of global legal influences, it simultaneously acts as an
exporter of its own legal models. Interestingly, this process of legal transplant mirrors
what China itself has done as a recipient of transplants, but with substantial differences,
which we are going to examine. When exporting its legal models to countries in the Global
South, China employs a similar strategy of pre-emptive and anticipatory adaptation. The
legal transplants it offers are pre-framed and selectively adjusted to better suit the socio-
economic realities and governance challenges of the recipient countries. This“reverse
coin”phenomenon highlights how China’s outward legal engagement mirrors the inward
processes it has used to absorb and reshape foreign legal ideas. This anticipatory
adaptation reduces the burden on recipient nations to undertake extensive modifications,
potentially making these transplants more accessible and appealing to their legal systems.
However, this raises an important question: will recipient countries accept these
Chinese-transplanted legal frameworks as they are, or will they seek to modify them even
further? The answer may depend on the relative strength of these nations in navigating
their relationships with China. Historically, China, as a strong economic and geopolitical
player, adapted foreign legal transplants to its own system without significant fear of
external repercussions from the US, Europe, Japan, Russia, or other countries. Its economic
independence and political leverage afforded it the autonomy to selectively integrate and
reinterpret foreign laws without undue external pressure.
In contrast, the recipient nations in the Global South often rely heavily on Chinese
investments, partnerships under the BRI, and institutional frameworks involving Chinese
state-owned enterprises. This economic dependence could limit their ability to modify the
Chinese legal transplants extensively, as they may fear jeopardizing their strategic
relationships with China. Unlike China’s position in the global order when it was the
recipient, these nations might face constraints that influence how far they can tailor the
provided legal frameworks to meet their specific needs.
This dynamic underscores a potential asymmetry in the transplantation process. While
China’s earlier adaptations were driven by its ability to assert control and autonomy, the
recipient nations may find themselves in a more constrained position—raising important
questions about agency, sovereignty, new forms of imperialism in the South–South
relations and the balance of power in legal globalization. Exploring how recipient
countries navigate and engage with China’s legal influence is key to understanding the
broader implications of China’s dual role as both a recipient and provider of legal
transplants and its impact on the evolving global legal order.
Legal transplant, since its first formulation in the 1970s by Alan Watson, a legal historian
specializing in Roman law, has captured significant attention in academia, particularly in
the field of comparative law (Watson, 1993 ). Watson approaches the concept from a legal
history perspective where:
legal rules do not develop directly from the particular circumstances of the state in
question which relate to the rules but are borrowed from elsewhere, and that often
factors other than the high quality of the legal rules themselves or their precise
fitness for the borrowing state decide the choice (Watson, 2001 , p. 127).
criticisms, the notion of legal transplant played a crucial role in sparking important
debates on the need to understand the circulation of laws and institutions globally, as well
as the relationships between different legal systems.
Over time, scholars have revisited and expanded upon the idea of legal transplants to
address its initial shortcomings, advocating for a more nuanced and context-sensitive
understanding of the phenomenon. This includes recognizing that legal norms and
institutions are not simply“imported”or“exported”in a uniform manner but are instead
adapted, negotiated, and transformed within local settings. The interaction between
transplanted laws and indigenous legal traditions often creates hybrid systems that reflect
the complexities of globalization and the diversity of socio-political contexts. This
evolution has led to the emergence of concepts such as“legal pluralism”and“comparative
international law,”which highlight the coexistence of multiple legal systems and the
interplay between global and local forces in shaping legal development (Berman, 2009 ;
Roberts et al., 2015 ). It also led comparative scholars like Sacco ( 2007 ) to explore how legal
norms are shaped not only by written laws but also by cultural beliefs, social expectations,
and everyday practices—giving rise to concepts rooted in legal anthropology.
Rather than treating transplanted norms as static or uniformly applied, legal
anthropology explores how legal transplants interact with indigenous customs, beliefs,
and power structures, shedding light on the processes of adaptation, resistance, and
transformation. Through the lens of legal anthropology, the hybrid systems that emerge
from legal transplants are not viewed merely as anomalies or imperfect copies but as
expressions of local agency and creativity in the face of global influences (Carvalho, 2019 ).
This perspective emphasizes that law is not a static or universal construct but a fluid and
evolving phenomenon shaped by the lived realities of communities. By bridging the gap
between legal pluralism and socio-cultural analysis, legal anthropology enriches our
understanding of how law functions as both an instrument of change and a site of
negotiation within diverse and interconnected societies. For example, the rejection of legal
concepts and instruments originating from international law or the legal systems of other
countries, as examined through the lens of comparative law, often stems from deeply
rooted anthropological underpinnings. This phenomenon highlights how the cultural,
social, and historical foundations of a society shape its legal identity and determine the
acceptance or rejection of foreign legal norms. Legal anthropology plays a critical role in
understanding these dynamics, as it explores how law is intrinsically tied to a society’s
values, traditions, and lived experiences (Nafziger, 2017 ). The refusal to adopt external
legal frameworks may arise from perceived incompatibilities with indigenous legal
traditions or from a desire to preserve cultural sovereignty in the face of globalization and
legal imperialism. This process underscores the importance of viewing law not merely as a
set of abstract rules but as a culturally embedded institution that evolves in response to
specific socio-political contexts.
As a tool of comparative law, legal transplant is both historically contingent and
context-specific, yet it reflects broader political and economic patterns that characterize
international relations. Law has often been employed as a mechanism to promote
economic integration and align Global South countries with the core principles of the
neoliberal international economic order. Over time, the process of legal transplantation
has served not only as a conduit for economic reforms but also as a means of exerting
ideological influence (Whitman, 2009 ). As we explore in the remainder of this section, legal
cooperation and reforms have consistently been shaped by, and closely tied to, the various
stages and phases of economic globalization, reflecting the shifting dynamics of power,
trade, and governance on a global scale.
Following the Second World War, the international community’s primary objective was
to use multilateralism as a means to prevent conflicts and foster cooperation, culminating
in the establishment of the Bretton Woods System. This period saw the creation of key
international organizations aimed at driving economic reconstruction and building a
rules-based international order that could mitigate conflicts and promote collaboration,
even among nations with divergent economic and political models (Acharya, 2017 ; Bordo,
2017 ; Igwe, 2018 ). During this time, legal transplants and reforms were predominantly
implemented at the multilateral level through global governance institutions. These
institutions viewed law as a neutral and technical instrument capable of constraining
authoritarian power while simultaneously promoting economic development. This
perspective was particularly evident in the work undertaken under the General
Agreement on Tariffs and Trade (GATT), which aimed to reduce trade barriers and lower
transaction costs to facilitate global economic integration (Baldwin, 2016 , p. 69). By
positioning legal frameworks as instruments of liberalization, international organizations
aimed to create a level playing field that could encourage market-driven growth and
discourage protectionist policies. In this context, legal transplants, often from the West,
were seen as essential for embedding the principles of free trade, market competition, and
transparency into the legal and regulatory systems of developing countries. These legal
reforms, while grounded in a globalized vision of economic progress, also served to
reinforce the broader political objective of stabilizing the post-war international system,
where law was viewed not only as a tool for facilitating economic cooperation but also as a
means to promote peace and political stability through predictable and fair legal
frameworks.
In parallel with multilateral efforts focused on consensus-building and cooperation,
which led to the ratification of major international treaties, US leadership promoted a
more unilateral and less neutral use of legal reforms, linking them directly to economic
development. During the early stages of the Law and Development movement in the 1960s,
law was viewed as a tool to create a conducive environment for economic growth,
particularly in recently decolonized countries (Rose, 1998 ; Davis and Trebilcock, 2008 ).
Legal reforms and the establishment of legal institutions were seen as urgent not to
promote a common consensus but to align Global South countries with the legal and
political vision of the US, which prioritized the protection of property rights, laws serving
the economy, and professionalization. This vision of liberal legalism was based on the
assumption that postcolonial states would naturally adopt the US model due to its
perceived efficiency and capacity to stimulate economic growth. Implemented through
state-affiliated programmes and funding from donor organizations, legal transplants often
overlooked cultural specificities and were instrumental in preserving the power and
extractive practices of the West (Mattei and Nader, 2008 ; Kayaoglu, 2010 ). These
transplants frequently imposed legal reforms on countries, rather than allowing them to
be adopted organically as part of a longer term, context-sensitive process. An example of
this imposition can be seen in the introduction of the civil law systems in many countries
in Latin America and Africa during the post-colonial period (Joireman, 2001 ; Davis and
Trebilcock, 2008 ). In addition, during the 1980s and 1990s, many African nations adopted
Western-style legal frameworks as part of structural adjustment programmes, pushed by
international financial institutions such as the World Bank and the International Monetary
Fund. These reforms, often aimed at creating more market-friendly environments, did not
account for the complex local legal traditions, leading to a disconnection between the
imposed laws and the lived experiences of local populations (Miller, 2003 ). The result was a
legal system that, in many instances, lacked legitimacy or practical effectiveness, as it
failed to align with the socio-political realities of the countries in question.
In the earlier period, private corporations were not the major drivers of legal reforms
and changes. However, from the 1980s onwards, the internationalization of Global North
companies, coupled with the influence of neoliberal economic policies such as
deregulation, privatization of state assets in the Global South, and a shift in focus from
trade to investments, changed this dynamic. These changes necessitated extensive legal
reforms, primarily aimed at safeguarding the property rights of Global North corporations
(Gill, 1995 ). As a result, countries, particularly those recently decolonized and the ones in
the Global South, embarked on sweeping reforms of their national legal systems.
These reforms sought to attract foreign corporations, improve economic and human
rights rankings, and meet conditions increasingly tied to receiving aid and technical
cooperation in the development field. Such alignment is evident in the creation of
rankings designed to strengthen the legal frameworks of Global South countries, aligning
them with neoliberal and Western values and rhetoric, such as free trade and the rule of
law (Doshi, Kelley and Simmons, 2019 ). Many legal assistance and capacity-building
projects have focused on corporate law, funded by multilateral and regional organizations
as well as the national governments of Global North countries. This resulted in what has
been referred to as a“new era of codification”(Zimmermann and Reimann, 2006 , p. 256).
Alongside state-funded initiatives, multinational corporations also played an increasingly
prominent role in legal transplants during this period. Driven by the need to establish
uniform codes of conduct and operational standards in developing countries, these
corporations exerted significant influence over the imposition of legal reforms.
Prioritizing corporate interests and the protection of property rights, multinational
corporations contributed to the“non-political creation of law,”shaping legal frameworks
to better align with their business objectives and ensuring legal structures that facilitated
their operations across borders (Galgano, 1995 , p. 109).
Similarly, the drive for alignment and harmonization with a single legal model, albeit in
a more collaborative and region-focused manner, was evident in Europe during the early
stages of EU integration. In this context, law was viewed as a critical tool for establishing a
cohesive and unified economic space, and later, a political one. Legal transplants played a
key role in harmonizing laws across EU member states, helping to create a common legal
framework that facilitated economic cooperation and political integration (Augenstein,
2012 ). This process, while involving more collaboration than the top-down models seen in
the Global South, still reflected an effort to standardize and align diverse legal systems
under a single overarching legal order. But the contentious elements of legal transplants
have also appeared between the US and the EU. For example, as regards the role of legal
transplants in harmonizing laws across EU member states, the implementation of EU’s
Competition Law, particularly Articles 101 and 102 of the Treaty on the Functioning of the
European Union (TFEU), prohibits anti-competitive agreements and abuses of dominant
positions. These laws were transplanted from the US antitrust model, which had its own
unique context based on the economic and political conditions in the US (Beltrametti,
2015 ). Some critics argue that the application of these laws in EU member states is
problematic, as the economic and industrial landscapes in Europe are quite different from
those in the US (Kalintiri, 2025 ). For example, the EU’s more extensive state intervention
and the importance of social welfare policies are not fully compatible with the more
market-oriented US approach to competition law. This has led to debates over whether EU
competition law is too rigid and overly influenced by an American model that may not
always align with European priorities of social cohesion and industrial policy. Another
example of contentious legal transplants involves the adoption of corporate governance
rules within EU member states, especially the introduction of the “Anglo-Saxon”
shareholder primacy model of corporate governance in the early 2000s (Cabrelli and
Siems, 2015 ). This model, which prioritizes shareholder value maximization, was heavily
influenced by US practices and was seen by many as an imposition on the European
corporate landscape. Critics argue that this approach clashes with the traditionally more
stakeholder-oriented corporate governance models found in countries like Germany and
France, where employee interests, social responsibility, and long-term stability have
historically played a more significant role (Mélon, 2019 ). The push for a uniform model of
corporate governance across the EU has sparked debates on whether such legal
transplants may undermine national economic traditions and lead to a loss of diverse
approaches to corporate regulation in Europe. These examples highlight how legal
transplants can sometimes lead to tensions and disagreements within the EU and even
between the EU and the US, two industrialized countries and both in the Global North,
particularly when transplanted laws do not fully align with local traditions, economic
realities, or political priorities.
More recently, a shift has occurred, often referred to as the“Brussels effect,”in which
the regulatory influence of the EU has extended beyond its borders, impacting countries
like the US. (Bradford, 2020 ). While technically not a legal transplant, this phenomenon
suggests that EU regulatory activism is forcing—or at least strongly influencing—external
actors, including the US, to align with its legal frameworks. The EU’s influence has been
particularly prominent in areas such as data protection, artificial intelligence, and
mandatory sustainability reporting requirements for corporations. These developments
suggest that while legal transplants flowed from the US to the EU, particularly since the
1990s, the tide may be turning, with the EU now playing a leading role in shaping global
regulatory standards.
Alongside the EU’s increasingly prominent role in global legal developments, the rise of
South–South cooperation marked a reorientation in perspective on the significance of
Western legal reforms and the circulation of legal models in the Global South, as many
countries began prioritizing regionally tailored approaches and shared developmental
goals. These nations are now approaching Western-style legal reforms with greater
caution, learning from the mistakes of their Western counterparts, who often imposed
reforms without considering the sovereignty and unique legal and political contexts of the
host countries. As the world transitions from a unipolar system dominated by the
Washington Consensus to a multipolar one, no single country can impose its economic,
legal, and political vision on others (Barnett and Duvall, 2004 ). This transition towards
multipolarity in the 21st century highlights the need for diverse, context-sensitive
approaches to development and legal reforms. A prime example of this change is the
China-led BRI.
On 7 September 2013, Chinese President Xi Jinping, in a speech at Nazarbayev
University, Astana, Kazakhstan, called for the creation of a Silk Road Economic Belt with
the specific objective of enhancing and deepening economic, political, and security ties
between China and Central Asia. The idea of re-establishing the Silk Road is not new and
did not start under Xi Jinping: it can be traced back to references made by both Jiang Zemin
in 2001 and Hu Jintao with the concept of peripheral diplomacy (Zheng, 2010 ).
The BRI can be seen as an extension and culmination of economic, political, and cultural
policies that have defined China’s opening to the international community. As we argue in
this article, by focusing on connectivity, the BRI serves as a platform through which
Chinese legal models and institutions can be more widely disseminated and promoted.
Under the BRI, we are increasingly witnessing interactions between different legal models,
fostering an environment where multiple sources of law coexist, interact, evolve, and
adapt to the national conditions of host countries, making the BRI an excellent example of
legal pluralism (Tamanaha, 2004 ; Berman, 2009 ; Melissaris, 2016 ). China achieves this by
drawing on its experiences with legal transplants and creating a space within the BRI
where not only Global North but also Chinese legal models can circulate. To understand
legal transplants under the BRI, we will now review two cases—free trade and the rule of
law—that illustrate how China has engaged with legal transplants from the Global North.
By examining these two cases, we can gain insights into how these experiences are shaping
the ways in which China promotes legal reforms and cooperation under the BRI.
Free trade and legal reforms: the neoliberal agenda
Free trade has been the defining feature of much of the work done on legal reforms since
the end of the Second World War. The second half of the 20th century was marked by a
significant consensus—both theoretical and practical—on advancing free trade, largely
due to its perceived connection with personal freedom and democracy. Austrian
economist Friedrich Hayek, a key figure in the formation of neoliberalism, famously
argued that:“The system of private property is the most important guarantee of freedom,
not only for those who own property, but scarcely less for those who do not”(Hayek, 2014 ).
His ideas emphasized that the free market, protected by strong property rights, was the
most effective way to safeguard individual freedoms and promote democratic governance.
Hayek’s views, along with those of other economists like Milton Friedman, became
central to the shaping of economic policies in the post-war era. The rise of neoliberalism,
especially during the 1970s and 1980s, ushered in a paradigm where free markets were
seen not only as the most efficient method of economic organization but also as the
foundation for a more just and democratic society. Neoliberal policies advocated for
deregulation, privatization, and a diminished role for the state in economic affairs, a
transformation that profoundly influenced both national and international legal
frameworks. In the realm of policy and law, several neoliberal experts played a significant
role in promoting these ideas, particularly through their influence on global institutions
such as the World Bank and the International Monetary Fund (IMF).
The influence of neoliberal economic thought, particularly as expressed by the Chicago
School of Economics, which advocates for privatization, trade liberalization, and
deregulation as prerequisites for economic growth, became prominent during the mid-
1970s. This ideology played a key role in shaping the economic policies of the Global North
and, by extension, significantly influenced the development agendas of newly independent
nations in the Global South. Legal reforms were often seen as a necessary and key
complement to these policies (Glinavos, 2008 ; Krever, 2016 ). In the 1980s and 1990s,
numerous countries in the Global South were encouraged—often under pressure from
international financial institutions—to adopt legal frameworks that promoted free market
principles. These legal reforms, which included protections for property rights, the
removal of trade barriers, and the restructuring of state-owned enterprises, are a clear
example of legal transplants driven by external economic and political agendas originating
in the Global North.
4.1.1. Legal reforms in the global south
Experts from the Global North, particularly those affiliated with international
organizations like the World Bank, the IMF, and various UN agencies, were directly
involved in drafting civil codes for newly independent states in the Global South. Legal
reforms emerged as a central strategy among postcolonial states seeking to assert sovreign
modernity, enhance their attractiveness to international capital, and catalyze domestic
economic development. However, the legal frameworks they adopted were heavily
influenced by Western models, which were thought to be more conducive to promoting
free trade and economic growth (DeLisle, 1999 ; Murillo, 2001 )—often with little regard for
local legal traditions or institutional realities.
In many cases, the adoption of these legal codes was framed as part of a broader effort
to ensure that newly independent states could participate in the global market. These legal
reforms were seen as necessary to align local legal systems with the requirements of
international trade, investment, and commerce. For example, the creation of modern
contract law, the protection of intellectual property rights, and the implementation of
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transparent regulatory frameworks were all seen as essential for integrating these
countries into the global economy.
In some cases, this process was led by Global North external experts, who were tasked
with helping draft civil codes that would reflect neoliberal principles. These experts often
advocated for legal systems that would ensure the primacy of private property, enforce
contracts, and provide legal certainty for investors. This emphasis on legal certainty and
the protection of private property was seen as a means of creating an environment
conducive to foreign investment and free trade.
The Third World Approaches to International Law (TWAIL) perspective offers a critical
lens through which to view these legal reforms and transplants (Okafor, 2005 ; Eslava and
Pahuja, 2011 ). From this perspective, the imposition of legal systems aligned with
neoliberal principles is often seen as a form of legal imperialism (Chimni, 2006 ). These
efforts are criticized for prioritizing the interests of the Global North, multinational
corporations, and foreign investors over the specific socio-economic, cultural, and
environmental needs of newly independent states in the Global South. By focusing on
property rights, free trade, and investor protections, these reforms often neglected or
actively undermined the rights of indigenous peoples, traditional knowledge systems
(Farah and Tremolada, 2015 ), and the complex relationships between communities and
their natural environment.
One glaring critique from TWAIL scholars is that these legal transplants frequently
failed to account for the importance of indigenous traditions and customary laws (Fukurai,
2018 ). For example, the focus on protecting intellectual property rights often clashes with
the communal ownership of traditional knowledge and genetic resources practised by
many indigenous communities. The emphasis on private property and individualism
disrupts long-standing communal land tenure systems, marginalizing indigenous groups
and threatening their cultural heritage. Such practices are seen as part of a broader
pattern of exploitation, where the natural resources and knowledge of the Global South are
commodified and appropriated by actors in the Global North.
A clear example of these tensions is the long-delayed adoption of the World Intellectual
Property Organization (WIPO) Treaty on the Intellectual Property, Genetic Resources and
Associated Traditional Knowledge, which was finally adopted after more than 25 years of
negotiations in 2024. This treaty aims to safeguard the rights of indigenous peoples and
local communities by addressing the misappropriation and exploitation of their
knowledge and resources. The protracted timeline and resistance to adopting this treaty
underscore the inconsistencies and reluctance of many Global North countries to
recognize and adapt to the legal and cultural particularities of the Global South. This delay
also reflects broader power imbalances in international legal systems, where the priorities
of wealthier nations often overshadow the needs and rights of developing countries.
Similarly, the protection of farmers’rights has emerged as another contentious issue.
Global intellectual property regimes, such as those advocated under the Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS), prioritize the rights of seed
companies and biotech corporations, often to the detriment of small farmers in the Global
South (Farah and Prityi, 2022 ). These regimes restrict traditional seed-saving practices and
push farmers towards dependence on patented seeds and agricultural inputs, exacerbating
economic inequities and threatening food sovereignty. TWAIL scholars argue that these
legal frameworks fail to consider the unique socio-economic realities of farming
communities in the Global South (and often also in regions of the Global North), where
agriculture and the environment are deeply intertwined with cultural traditions and
community livelihoods (Humby, 2016 ).
Moreover, the broader emphasis on integrating the Global South into the global market
often sidelines alternative development models rooted in sustainability and community
well-being. Legal reforms focused on facilitating free trade and investment frequently
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undermine environmental protections, local governance structures, and holistic
approaches to development. For instance, many of these reforms prioritize extractive
industries over the preservation of ecosystems and community-based resource
management, perpetuating a cycle of environmental degradation and socio-economic
marginalization.
By privileging the interests of the Global North and multinational corporations, these
systems often perpetuate inequalities and undermine the agency of Global South
countries. In response, new forms of South–South legal cooperation and solidarity have
begun to emerge, challenging dominant Global North legal paradigms and proposing
alternative frameworks. The adoption in 2024 of theTreaty on the Intellectual Property,
Genetic Resources and Associated Traditional Knowledge, along with ongoing debates over
farmers’ rights, traditional knowledge (Farah and Tremolada, 2014 ), and more just
approaches to development, exemplify efforts for a more inclusive and equitable
international legal framework, one that respects the diversity and particularities of the
Global South while addressing the historical legacies of imperialism and exploitation.
4.1.2. China’s role in the neoliberal global order
Since the opening-up reforms initiated by Deng Xiaoping in the late 1970s, numerous
external projects and initiatives have aimed to promote free trade within the national
economy as a preliminary step to align China with Western liberal values. In the early
stages of its economic transformation, China implemented a series of legal and policy
reforms designed to attract foreign investment and integrate the country into the global
market. These reforms included the establishment of SEZs that offered favourable
conditions for foreign investors and the introduction of market-oriented policies
(Chaisse, 2019 ).
International experts played a significant role in advising on the legal frameworks
necessary to support this transformation. The legal system underwent substantial
changes, with new laws governing foreign trade, intellectual property, and commercial
contracts, even more following China’s accession and integration into the WTO (Farah,
2006 ; Farah and Cima, 2010 ). These reforms were intended not only to facilitate China’s
integration into the global economy but also to demonstrate its commitment to the
principles of free trade and market liberalism. While China’s approach to legal reforms and
trade liberalization has diverged from the strict neoliberal model in some respects,
particularly with regard to state involvement in strategic sectors of the economy, the
influence of neoliberalism can still be seen in the country’s legal and economic policies.
The term与国际接轨(yu guoji jiegui) literally translates to“aligning with international
practices”or“connecting with international standards.”It is commonly used in China to
refer to efforts to harmonize domestic systems, policies, and practices with globally
recognized norms, rules, and standards, particularly in areas such as trade, law,
governance, and industry.
This idea of aligning the country with international practices and rules, particularly in
the context of the global economy, has been a central feature of Chinese policy since Deng
Xiaoping’s leadership.
This alignment, especially during the first decade of reforms, was widely supported by
the US political and business establishment, which hoped to encourage China’s deeper
integration into the global economic system (Coker, 2015 , pp. 37–38).
The effort to align with international practices and rules can also be interpreted as an
instance of the theoretical acceptance of legal transplants within the Chinese economic
realm. The term与国际接轨(yu guoji jiegui) first appeared in the人民日报(People’s
Daily) in a 1992 editorial, which described the reforms undertaken in the Pudong area and
the opening of the first foreign trading enterprise in the Shanghai Waigaoqiao Free Trade
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Zone (上海外高桥保税区). Throughout the decade from 1990 to 2000, this concept of
aligning with international practices appeared numerous times in People’s Daily,
highlighting the country’s progress in advancing its economic sector. The term was
often associated with the development of specific industries such as construction, energy,
and manufacturing. These references served to underscore China’s commitment to
aligning its domestic industries with global standards and practices, reflecting its broader
intention to become fully integrated within the global economy. This alignment was not
only a marker of economic modernization but also a signal to international partners of
China’s readiness to participate as a significant player in the global market. The term itself
carries the connotation of modernization and integration, emphasizing a desire to meet
international expectations and facilitate cooperation with the global community. By
adopting elements of international legal and economic frameworks, China sought to
modernize its legal systems and enhance its ability to engage in global trade and
investment. This selective adaptation reflects both a pragmatic approach to achieving
economic development and a broader strategy for navigating the complexities of global
governance.
As Seppanen notes,“progressive mainstream position in this debate was to endorse the
notion of legal transplants as a theoretically sound concept, and to argue that transplants
from capitalist societies were a necessary and valuable part of China’s modernization
process”(Seppanen, 2016 , p. 20).
However, the process of “aligning with international practices” is not without
challenges. Critics have pointed out that aligning with international standards can
sometimes conflict with domestic interests or cultural practices. Additionally, there is
ongoing debate about whether such alignment benefits all stakeholders equally or if it
primarily serves the interests of elites and multinational corporations.
Building on these challenges, the TWAIL perspective, as briefly described above, offers a
critical lens on the process of“aligning with international practices”and its implications
for China and other countries in the Global South. TWAIL scholars argue that the
alignment with international standards, particularly those rooted in neoliberal economic
frameworks, often reinforces the power dynamics that favour the Global North,
multinational corporations, and international institutions. From this perspective, the
adoption of international legal norms can marginalize local practices and traditions,
leading to a form of legal and cultural imperialism.
For China, this issue is particularly salient in areas such as traditional knowledge and
Chinese traditional medicine (Bodeker, 2003 ). While there is an international push for the
protection of intellectual property, including the promotion of patents and copyrights, this
approach can conflict with China’s long-standing practices of communal knowledge-
sharing, particularly in indigenous medicine and agricultural practices. Chinese traditional
medicine, which is based on centuries-old knowledge passed down through generations,
often lacks formal recognition under international intellectual property laws, which are
designed around Western models of individual ownership. The increasing influence of
global intellectual property regimes has led to concerns about the misappropriation of
Chinese traditional knowledge by foreign corporations without fair compensation or
respect for the cultural significance of such knowledge (Huang and Shen, 2021 ).
Moreover, the broader process of aligning with international standards has
implications for other areas of the Global South, where local practices and systems of
governance often clash with externally imposed legal frameworks. In many cases, the
harmonization of local laws with international norms ignores the specific socio-cultural
and anthropological contexts and needs of these countries, reinforcing a system where the
values and priorities of the Global North are upheld at the expense of the Global South.
This dynamic exacerbates existing inequalities and undermines the autonomy of countries
in the Global South to shape their legal systems according to their unique cultural,
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economic, and social realities. From a TWAIL perspective, the ongoing struggle over the
protection of traditional knowledge, the regulation of natural resources, and the
recognition of indigenous rights are emblematic of the broader issues of legal transplants
and their impact on the sovereignty and cultural integrity of Global South nations.
Wide-ranging legal transplants were implemented in the 1990s, including the creation
and strengthening of intellectual property rights, enhancements in transparency and
customs regulations, reforms in foreign investment laws, and the overall modernization of
business law. The decade-long negotiations for China’s accession to the WTO played a key
role in driving these reforms, with countries from the Global North mandating adherence
to several legal changes. There is no doubt that China significantly improved the
environment for foreign enterprises, both qualitatively and quantitatively (Farah, 2006 ;
Mavroidis and Janow, 2017 ; Shaffer and Gao, 2018 ). However, what is particularly
interesting to analyse is how these legal transplants were consistently mediated by
national conditions, often leading to contradictory outcomes.
An example of these contradictory outcomes is the reform process of state-owned
enterprises (SOEs). Although the WTO addresses state interference in the market under
both the GATT and other agreements such as the SCM, SOEs remain a central component of
China’s political system and are clearly under the direction of the CPC. While SOEs have
been restructured under corporate law and, to varying degrees, have been treated on an
equal footing with private enterprises, state control and direction have actually increased
in recent years, rather than gradually reducing in line with free trade principles (Lardy,
2018 ; Farah and Zoppolato, 2022 ). Public ownership has never been questioned internally,
even though the CPC champions free trade and globalization externally. As recently
emphasized by CPC’s General Secretary Xi Jinping, “The dominant position of public
ownership and the leading role of the state-owned economy cannot be faltered. This is an
institutional guarantee to ensure that the people of all ethnic groups in our country share
the fruits of development. It is also an important guarantee for consolidating the party’s
ruling position and adhering to my country’s socialist system”(Xi, 2015 ). Xi Jinping’s
statement highlights the enduring importance of public ownership and state control in
China’s economic and political framework. By emphasizing that public ownership should
remain dominant and the state-owned economy should continue to play a leading role, Xi
reinforces the idea that the government, rather than private corporations or market
forces, should guide the country’s economic direction. This perspective contrasts with the
neoliberal economic model championed by many Western nations, where market forces
and private ownership are seen as central to prosperity.
The phrase“institutional guarantee”suggests that public ownership and the state’s
leadership in the economy are not just policy choices but fundamental components of
China’s political system. Xi argues that these principles are necessary for ensuring that
economic development benefits all Chinese citizens, particularly across the country’s
diverse ethnic groups. In this context, public ownership is framed as a mechanism for
equitable development, ensuring that wealth and resources are more widely distributed,
rather than being concentrated in the hands of a few private owners or multinational
corporations.
At the same time, Xi’s remarks point to the political significance of maintaining state
control. The“leading role of the state-owned economy”is also an“important guarantee
for consolidating the party’s ruling position.” This means that economic power is
intertwined with political power. By controlling key sectors of the economy, such as
energy, banking, and telecommunications, the CPC can maintain its authority and
influence over the country’s governance. The control of these vital industries helps secure
the party’s legitimacy and ability to shape the direction of national policy.
For example, the state’s control over critical industries such as energy and
transportation allows the CPC to maintain stability and manage the economy in a way
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that aligns with its long-term strategic goals. In contrast to the free-market approach in
capitalist economies, where private companies can dominate key sectors, China’s approach
ensures that SOEs serve both economic and political purposes.
Xi’s statement also reinforces China’s commitment to its socialist roots, contrasting
with the market-oriented policies promoted by international organizations like the IMF
and World Bank. While China has engaged in global economic reforms and legal
transplants to align with international standards, Xi’s emphasis on public ownership
signals that these reforms will be adapted to fit China’s political and economic system,
rather than fully embracing a Western-style capitalist model.
This focus on public ownership and state control has profound implications for China’s
global role. For example, while China has embraced foreign investment and trade, it
remains cautious about opening up its most strategic sectors to private or foreign
ownership even with evident or possible violations of the WTO agreements and principles.
This can be seen in industries like telecommunications, where large SOEs dominate the
market, and in efforts to protect China’s technological infrastructure from foreign
competition. These policies reflect a broader vision of economic development where state
intervention is crucial for ensuring both political stability and equitable economic growth,
reinforcing the idea that economic liberalization does not necessarily entail abandoning
the principles of socialism and state control.
While alignment with foreign institutions could be seen in several pieces of legislation,
the national legal framework has not been disrupted or fully altered by this reception.
Instead, it has been selective, formal, and limited to areas necessary for boosting economic
and social development. Their transplanting of free trade principles did not diminish the
role of the CPC, which continues to control key aspects of the economy. WTO obligations
have been implemented, but primarily through selective adaptation to improve the
national system, rather than a wholehearted embrace of free trade (Farah, 2006 , p. 304).
Legal transplants have not produced the expected effects (Clarke, 2006 ). Rather than being
excluded from the multilateral trading regime, China has adhered to the system while
simultaneously challenging core assumptions of the WTO. It has used the system to
advance interests that might appear to fall outside the scope of free trade in its neoliberal
sense (Gao, 2011 ). This experience highlights China’s nuanced approach to adopting free
trade principles, ensuring full participation in the global economy while strategically
leveraging legal transplants to support its internal policies and avoiding the wholesale
imposition of external models.
First, China integrated aspects of Western free trade practices—emphasizing the power
of market forces to drive economic growth—into its own unique system, which prioritizes
state oversight and control over the economy’s trajectory. This blend underscores the
importance China places on maintaining public ownership as a cornerstone of its socialist
framework, even within a market-oriented global environment.
Second, China’s approach to market liberalization has been pragmatic and gradual,
selectively opening sectors that align with its developmental goals while retaining strict
control over strategic industries such as energy, telecommunications, and media. These
sectors are managed by the state apparatus, reflecting their importance for national
security and broader economic stability. This selective liberalization enables China to
participate in global trade while safeguarding its sovereignty and long-term interests.
Third, China’s perspective on free trade differs fundamentally from that of Western
legal systems, which often emphasize the creation of immutable rights that prioritize
individual freedoms. In contrast, China treats free trade as a policy tool to serve collective
interests, emphasizing societal and national benefits over individual rights. This
divergence highlights the distinction between law and policy in China’s governance,
where legal frameworks are adapted to support overarching state objectives rather than
constraining them.
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Through this approach, China demonstrates how legal transplants and free trade
principles can be selectively and strategically applied to advance national development
while maintaining control over critical elements of governance and economic planning.
Socialist rule of law with Chinese characteristics
The second example to examine China’s experience with legal transplants is the concept of
the rule of law. The widely discussed amendment to the Chinese legal framework in 1999,
driven by major organizations and Global North countries, incorporated the concept of the
rule of law. Article 5 of theChinese Constitutionwas amended to state:“The People’s
Republic of China governs the country according to law and makes it a socialist country
under rule of law.”
The translation of the term“rule of law”in Chinese,法治(fazhi), or as it appears in the
Constitution依法治国(yifazhiguo), is open to various interpretations, ranging from“rule
of law”“rule by law”to“rule the country according to the law.”Legal scholars have
described the rule of law in China as implementing a thin or formal version of the concept,
primarily as a means of formally complying with the requests of the international
community (Backer, 2006 ; Minzner, 2011 ). Chinese scholars, on the other hand,
consistently discuss the concept within the framework of“socialist rule of law with
Chinese characteristics”—a Sinicized version of the rule of law distinct from the
international concept (Wang and Li, 2007 ; Xu, 2019 ).
When examining the rule of law as a form of legal transplant, it is crucial to highlight
China’s functional and pragmatic approach to this concept, which is now widely employed
to reinforce the leadership of the CPC (Liebman, 2014 ; Fu, 2017 ).
As emphasized by Jiang Zemin prior to the enshrinement of the concept in the
constitution, the implementation of the rule of law“means that the broad masses of the
people are under the leadership of the party and governed in accordance with the
Constitution and laws”(Speech at the End of the Lecture on Legal System by Central Leading
Comrades Held by the Central Committee of the Communist Party of China, 1996 ).
This broader goal was upheld throughout subsequent leadership transitions, which not
only continued to emphasize the rule of law but also adapted it to better align with China’s
unique context. During the 2014 Fourth Plenary Session, the CPC Central Committee issued
the“Decision Concerning Some Major Questions in Comprehensively Advancing the Rule
of law.” In China’s interpretation, the rule of law emphasizes accountability and
transparency (Li, 2018 ). While these two components are central to the international
concept of the rule of law, they were specifically chosen because they can be effectively
integrated into China’s governance model. The rule of law in this context has been utilized
as a tool to strengthen the CPC’s leadership and control over its members, rather than as a
mechanism to steer the country towards a liberal form of governance—something the CPC
has never intended, even when incorporating the concept into the Constitution. This
emphasis on control is rooted in the necessity for new mechanisms of accountability
within the party itself. As Liebman noted, this enhanced control serves as“a strategy for
pre-empting the development of vertical accountability, particularly by non-state actors,
which could lead to broader democratic challenges”(Liebman, 2011 ).
In terms of accountability, the concept has primarily been implemented through
administrative remedies and anticorruption campaigns targeting lower levels of
bureaucracy (Ma and Wang, 2018 ). The CPC’s history is marked by periodic changes in
party organization and supervision, a trend that has continued under Xi Jinping’s
leadership. Since the Fourth Plenary Session of the Eighteenth CPC Central Committee in
2012, the idea of a“socialist rule of law with Chinese characteristics”has become central to
the nation’s governance framework.
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The concept of the“socialist rule of law with Chinese characteristics”is not merely a
theoretical framework; it is actively implemented through a range of practical and legal
measures designed to support the CPC governance priorities. One of the most prominent
manifestations of the socialist rule of law is the CPC’s anti-corruption campaigns,
particularly under Xi Jinping’s leadership. These campaigns target officials at all levels,
from high-ranking “tigers” to low-level “flies.” For example, the investigation and
prosecution of high-profile figures such as Zhou Yongkang, a former member of the
Politburo Standing Committee, demonstrated the use of legal mechanisms to discipline
party officials while reinforcing internal accountability within the party (Feng, 2016 ).
Additionally, the 2015 China’s Administrative Litigation Law allows citizens to sue
government agencies for specific violations, but these cases are carefully controlled to
ensure they do not challenge the broader authority of the state. For instance, citizens may
file lawsuits over land use or environmental violations, but the outcomes are often
designed to address specific grievances without undermining the CPC’s overall governance
(Haibo, 2010 ). Another example is the social credit system, a nationwide initiative, which
reflects the application of the rule of law with Chinese characteristics by combining legal,
administrative, and technological tools to enforce societal norms. This system tracks
individual and corporate behaviour, rewarding compliance with laws and regulations
while punishing violations through restrictions on travel, business operations, or credit
access.
Moreover, the CPC has prioritized legal education campaigns to promote awareness of
laws and regulations among the public. However, these campaigns also emphasize the role
of the law in supporting socialist values and the leadership of the CPC. For instance, the
annual“Constitution Day”celebrations often include speeches and activities that highlight
the integration of the rule of law with socialism.
It is extremely important that the phrase“socialist rule of law”was also included in the
Chinese Constitution, particularly in Article 5, which provides a legal foundation for this
concept. The Constitution states that“the People’s Republic of China governs the country
according to law and makes it a socialist country under the rule of law,”explicitly tying
legal governance to socialist principles (The State Council of the People’s Republic of
China, 2018 ).
Expanding the powers of the National Supervisory Commission, a state body
responsible for overseeing anti-corruption efforts, this law integrated party disciplinary
mechanisms with state institutions, exemplifying how legal structures are designed to
enhance CPC control and accountability. The2014 Environmental Protection Law of the People’s
Republic of Chinastrengthened mechanisms for holding local governments and businesses
accountable for environmental violations. However, the law also reinforced the state’s
control over environmental activism by regulating the activities of non-governmental
organizations and limiting their ability to challenge government policies. The 2017
Cybersecurity Law of the People’s Republic of Chinaimposed strict regulations on internet
usage, requiring companies to store data domestically and censor content deemed harmful
to social stability. While framed as a legal measure to protect national security and social
order, it also serves to consolidate state control over information and suppress dissent,
aligning with the CPC’s priorities. In the field of judicial reforms, pilot programmes have
been held, such as the introduction of circuit courts and judicial accountability systems,
which have aimed to improve efficiency and reduce corruption within the judiciary.
However, these reforms are implemented under the premise that the judiciary remains
subordinate to the party’s leadership, ensuring that courts function as tools of governance
rather than independent arbiters.
China has made impressive strides in transparency in making laws and case law publicly
accessible—arguably surpassing some major Global North countries in openness and ease
of access. Since 2009, judicial transparency has been significantly advanced through efforts
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by the Supreme People’s Court, which has made millions of cases available to the public via
user-friendly platforms. This digitization and widespread availability of court judgements
have the potential to greatly enhance transparency and provide valuable insights into
Chinese law and practices. However, effectively analysing and interpreting this wealth of
information requires the development of novel computational research methods like Text
as Data techniques (Liebman et al., 2020 ; Stern et al., 2020 ). Transparency in China is not
limited to case law; it also extends to politically sensitive areas such as party regulations,
which have traditionally been hidden from scrutiny (Seppanen, 2019 ). The emphasis on the
rule of law has resulted in a significant increase in published data, making notable
progress. In some respects, this openness even exceeds that of many democracies, where
the internal workings of political parties remain opaque, and accountability is frequently
more formal than substantive.
One notable example of increased transparency is the publication of the2015 Regulations
on the Work of the Central Committees of the Communist Party of China. These regulations
outline the principles, responsibilities, and procedures governing the activities of the
central committees, providing clearer guidance on intra-party governance. By making
these documents publicly accessible, the CPC has allowed scholars, practitioners, and the
general public to better understand the mechanisms and decision-making processes
within the party.
Another significant step is the publication of the2018 Regulations of the Communist Party of
China on Disciplinary Actions,which detail the standards of conduct expected from party
members and the disciplinary measures for violations. Previously, such regulations were
largely confidential and implemented without external scrutiny. Now, their availability
has increased accountability by enabling both party members and external observers to
track the enforcement of these rules and the consistency of disciplinary actions.
The2019 Regulations on Strengthening Supervision of Leading Cadres provide another
example. These regulations focus on curbing abuses of power by senior officials and
ensuring that they adhere to party policies and ethical standards. By publishing these
rules, the CPC aims to strengthen its internal governance and address corruption concerns.
Public access to these regulations has also enhanced transparency and allowed for broader
discussions about their implementation.
Lastly, the2020 United Front Work Regulations of the Communist Party of China,which govern
the party’s engagement with non-communist groups and organizations, have also been
made public. These regulations clarify the scope and boundaries of the party’s influence
over civil society, addressing concerns about overreach. Their publication marks a
transition towards a more structured and transparent approach to managing relations
with external stakeholders.
This growing openness in party regulations underscores a significant change in China’s
governance model. While the primary objective remains strengthening the party’s control,
the publication of these documents reflects a broader commitment to rule-based
governance and improved accountability, setting a notable example in the realm of
political transparency.
China’s version of the rule of law has not only shaped its domestic legal landscape but is
also increasingly influencing how the country interacts with the legal and regulatory
frameworks of other nations. Central to this approach is the strategic use of law to govern
conduct, maintain control, and guide society in the direction defined by the state. By
adapting and integrating legal transplants to fit its specific socio-political and cultural
characteristics, the concept of the rule of law has become a cornerstone for understanding
China’s legal system. This adaptation demonstrates that, while the socialist rule of law
with Chinese characteristics may initially seem highly country- and context-specific, its
application extends far beyond ideological confines. On the one hand, it offers positive
implications, such as increased accountability for officials managingres publicaand a focus
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on collective well-being. On the other hand, it raises concerns over the centralization of
power and the potential erosion of individual human rights.
China’s model showcases a pragmatic approach where legal norms are tailored to
support governance priorities. For instance, laws governing corporate governance and
environmental regulation have been introduced with an emphasis on compliance and
alignment with state goals, influencing global regulatory practices in trade and
investment. However, this model also reflects a prioritization of state stability over
individual liberties, a dynamic that has drawn international criticism. Ultimately, China’s
interpretation of the rule of law underscores its dual function: as a tool for internal
governance and as an instrument for projecting influence in the global legal order. This
duality raises important questions about the balance between state control and individual
freedoms, as well as the evolving role of law in a multipolar world.
China’s experience with legal transplants in the context of the rule of law mirrors its
approach to free trade, revealing notable patterns. First, China has selectively integrated
specific elements of the international rule of law into its legal system while ensuring these
aspects remain subordinated to the overarching objectives of the CPC. Second, the
modifications to its legal framework are implemented on a voluntary and pragmatic basis,
with a focus on reinforcing party supremacy rather than introducing liberal values. Third,
the socialist rule of law with Chinese characteristics serves as a dynamic policy framework,
guiding legal developments and reforms in line with shifting priorities. While varying
levels of implementation of the rule of law exist across different areas of positive law,
China’s legal system is inherently flexible. Laws are not rigid but are designed to adapt to
policy demands rather than dictate them. For example, the accountability of party officials
is not uniformly applied but varies according to political priorities. High-profile cases such
as those of former Politburo members Bo Xilai and Sun Zhengcai illustrate this selective
enforcement. Both individuals, perceived as misaligned with Xi Jinping’s leadership, faced
targeted investigations, whereas others in similar positions did not undergo scrutiny. This
flexibility underscores the instrumental nature of law in China, where legal frameworks
are shaped to serve state objectives rather than adhere to universal principles. In
Section 5 , we identify three critical factors that illustrate how China’s approach to legal
transplants is influencing its broader legal reforms and shaping its engagement with
the BRI.
As observed in Section 4 , central to the incorporation of foreign institutions and legal
transplants in China has been the emphasis on preserving and asserting core Chinese
characteristics. From the outset, foreign legal concepts have been reinterpreted through
the lens of China’s unique cultural and social factors, avoiding the imposition or uncritical
adoption of external legal models. This deliberate approach reflects a broader strategy to
adapt and localize foreign knowledge while safeguarding national identity and governance
priorities. China’s reworking of Western legal institutions has also allowed it to sidestep
some of the challenges faced by the Global North that have often promoted a universal and
standardized view of law. By refraining from imposing or externally dictating legal
reforms, China underscores the importance of contextualized legal development. Under
the BRI, this approach has evolved into a broader narrative: China positions its socio-
economic and cultural development model as a credible alternative for other countries to
consider and potentially emulate. This strategy emphasizes partnership and respect for
local circumstances rather than top-down prescriptions, thereby enhancing the appeal of
China’s legal and developmental frameworks on the global stage. The BRI represents a
broader effort by China to offer an alternative framework for international development
and modernity, showcasing that the country’s unique path can be followed or emulated.
Although not explicitly stated, this initiative implicitly advocates for a vision of the law
distinct from the neoliberal and Global North legal model. Legal transplants under the BRI
not only reflect China’s distinctive approach but also serve to promote its underlying
values and principles. In the remainder of this section, we explore three core
characteristics that shape legal transplants within the BRI, which are closely tied to
China’s domestic experience with adapting foreign legal concepts.
“Combining Chinese and Western practices”
Since at least the Wuxu reform, China has extensively relied on foreign expertise to
enhance its highly bureaucratic and centralized system of governance with the aim of
modernizing the nation. A popular slogan from the late Qing empire encapsulated this
approach:“keep the Chinese foundations while using Western knowledge”(中体西用—
zhongti xiyong). However, the adoption and adaptation of“barbarian”legal institutions
were carefully mediated by the unique circumstances of national development. As Sun
Zhongshan famously remarked,“Our youths are constantly trying to learn everything the
West has to teach, but what is newest in the West has existed in China for thousands of
years”(Sun, 2011 , p. 36).
Under his“Program of National Reconstruction: The Three Stages of Revolution”(1918),
Sun Zhongshan envisioned a constitutional form of governance (宪政) as the final stage of
the revolution, preceded by stratocracy (军政) and a period of political tutelage (训政).
The period of political tutelage, formalized by theProvisional Constitution for the Period of
Political Tutelage of the Republic of China(中华民国训政时期约法) in 1931, established key
features that significantly influenced the subsequent constitutional development of the
country. These features included the Three Principles, the Five-Power constitutional idea,
the one-party dictatorship (Article 72), bureaucratic capitalism over strategic resources
(官僚资本) (Article 33), and judicial review controlled by the leading party (Article 85).
These elements reflect a selective adaptation of foreign legal models, implemented in
China as part of its exposure and engagement with external systems while maintaining its
distinctive political and ideological characteristics.
To preserve Chinese foundations—today represented by thecore socialist values(社会主
义核心价值观–shehui zhuhi gaixin jiazhiguan)—the process of legal transplantation itself
has been subject to scrutiny and redefinition (Sun, 2013 ; Liu, 2014 ; Gow, 2016 ). Rather than
a straightforward transplantation or adaptation, what occurred in China was a complex
and often fragmented mimesis of external experiences, aimed at crafting new institutions.
In this process, there is neither a clear donor nor recipient within the legal system.
Notably, even during the Republican period, legal institutions were implemented from a
diverse and inconsistent array of sources.
Legal influences ranged from the Soviet Union and Japan to continental Europe models
(notably Italy, France, and Switzerland) to even the US. This eclectic approach to
structuring the national legal system underscores the rapid circulation of legal ideas and
demonstrates that“the history of a legal system is largely a history of legal materials
borrowed from other legal systems” (Monateri, 2008 ). Such historical experiences
highlight the dynamic and non-linear nature of legal development in China, where
external influences are constantly reinterpreted to align with domestic priorities and
cultural values.
While certain legal materials are adopted through transplantation, others are deemed
incompatible withcore socialist valuesand remain off-limits. This selective borrowing
suggests that to understand the factors shaping the adaptation of the legal transplants, it is
essential to examine the key tenets of liberalism. China has undergone numerous, and at
times seemingly contradictory, reforms touching every aspect of state organization and
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the relationship between citizens and the ruling party. The enduring tension between the
rule of man(unconstrained power) and therule of law(institutional constraints on power)
has been a defining feature of the modernization of China’s legal system and remains
highly relevant today (Zhang, 2014 ). Since the reform and opening-up period, the
international community has consistently exerted pressure to promote liberal values in
China. However, many of the legal transplants introduced with this aim have failed to
achieve the desired outcomes. Understanding the factors driving legal changes in China
can provide valuable insights into why these transplants have not functioned as
anticipated by external observers. This analysis also sheds light on the broader dynamics
of legal reform, where domestic priorities often outweigh external expectations, leading to
outcomes that reflect China’s unique socio-political context.
Legal institutions, particularly in the past, were often circulated as instruments of
power or as mechanisms to safeguard the rights of invaders unfamiliar with local laws and
cultural practices. In this context, the extraterritorial clauses established in post-Opium
War institutions in China offer valuable insights into the actors driving legal transplants.
These actors primarily included nation-states and the legal elites within those states. The
purpose of such transplants was not to foster mutual understanding or adaptation but to
ensure the supremacy and dominance of the donor state over the recipient. The legal
frameworks imposed during this period served to entrench the power of foreign actors,
often at the expense of local sovereignty and legal traditions. As mentioned before, this
dynamic underscores the asymmetrical nature of historical legal transplants, which were
tools of imperialism and control rather than genuine legal exchange.
Reflecting on the Westernization process, particularly during the brief Republican
period, legal transplants often proved to be devoid of substantive meaning for Chinese
citizens (Ruskola, 2013 , p. 66). Extraterritoriality emerged as the preferred mechanism
employed by foreign governments to ensure special treatment for foreigners and to pre-
empt potential conflicts between Chinese nationals and non-Chinese individuals.
Interestingly, even when China found itself in the role of a“colonizer,”it relied heavily
on local laws and regulations to reinforce formal adherence and compliance. Legal equality
was only marginally enforced, reflecting a strategic use of existing legal frameworks rather
than a wholesale imposition of new systems (Heuschert, 1998 ). This selective engagement
with local legal traditions highlights the nuanced and pragmatic approach China has
historically taken towards the use and adaptation of legal institutions.
Similarly, significant differences in the application of laws within China have
historically depended on one’s ethnicity. This duality also stemmed from the fact that
Western legal culture, which played a key role in fostering the rapprochement between
China and the West (Zhang, 2014 ), was always filtered through the lens of China’s national
development. This pragmatism can be observed in the way China has tailored foreign legal
frameworks, laws, and regulations to align with its socio-political realities and
developmental priorities.
During the late Qing Dynasty, China faced increasing pressure to modernize its legal
system. Influenced by the German Civil Code and Japanese legal reforms, the Qing
government embarked on codification projects, including theDa Qing Lü Li(大清律例).
However, while borrowing structural elements and legal categories from these foreign
systems, the Qing maintained a Confucian moral foundation (Farah, 2008 ), ensuring that
imported concepts such as individual rights were balanced with communal obligations.
This combination reflected a pragmatic adaptation that prioritized societal harmony over
the individualistic tendencies of Western models. The codification process was not a
wholesale import but a selective integration aimed at maintaining stability and
governance within a Confucian societal framework.
Under the Republic of China and the Civil Code of 1929–30, legal reformers drew from
multiple sources, including the German Civil Code, the Swiss Civil Code, and Japanese law,
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to create a modern civil code. This code introduced concepts like property rights and
contract law but adapted them to fit China’s agrarian economy and traditional societal
structures. For instance, familial property arrangements and customary practices were
integrated into the framework, ensuring broader acceptability among the population. The
reformers recognized the importance of maintaining continuity with existing practices
while modernizing the legal system to support economic and social transitions.
During the 1950s, land reform laws were implemented to redistribute land from
landlords to peasants. This initiative was based on socialist principles but adapted to the
specific conditions of rural China. For example, rather than imposing a uniform national
framework, local revolutionary committees had significant discretion in implementing
policies. This allowed them to account for regional variations in land ownership patterns
and social dynamics. The approach balanced ideological goals with the practical realities of
China’s vast and diverse rural landscape, ensuring smoother implementation and reducing
resistance.
China’s legal reforms during the reform and opening-up period showcase pragmatism
on a larger scale. For instance, the establishment of SEZs like Shenzhen introduced laws
that deviated from the national framework to attract foreign investment. The SEZs
adopted international standards in trade, taxation, and dispute resolution, while still
operating under the overarching socialist framework. The SEZs allowed China to
experiment with capitalist principles in localized areas, mitigating risks while gradually
integrating successful practices into the broader economy (Zheng et al., 2016 ).
In recent decades, China has incorporated aspects of international environmental law
into its domestic framework, such as the Environmental Protection Law. While aligning
with global norms like the precautionary principle, the law retains a strong focus on
centralized enforcement and the role of state-led initiatives, reflecting China’s governance
model. Programmes such as the National Emissions Trading System (ETS) combine market
mechanisms with state oversight to address environmental challenges. The integration of
international norms with domestic enforcement strategies ensures that reforms are
feasible within China’s political and institutional structure.
Under the BRI and China’s new period of transnational legal engagement, it has signed
numerous bilateral agreements and memoranda of understanding that incorporate
international arbitration norms. However, China often emphasizes“soft law”mechanisms
and non-binding agreements, reflecting a preference for flexibility and consensus-
building. For instance, Chinese investment contracts often incorporate both local laws and
clauses for arbitration under international frameworks like UNCITRAL. This dual approach
ensures adaptability to different legal systems while protecting China’s strategic interests
in its international engagements.
China’s pragmatic approach to legal adaptation involves tailoring foreign frameworks
to align with its unique socio-political and cultural context. Whether by selectively
incorporating elements of foreign legal codes, experimenting with localized reforms, or
blending international norms with domestic governance priorities, China demonstrates a
nuanced strategy that balances modernization with stability. This approach underscores
China’s capacity to absorb external influences without losing sight of its foundational
values and developmental objectives.
Under the BRI, a similar pattern emerges, where Western knowledge is integrated with
Chinese approaches, resulting in the creation of new institutions that draw from both
systems. A notable example is the establishment of the China International Commercial
Court (CICC). Created by the Supreme People’s Court in 2018, the CICC represents a
significant step in China’s institutional evolution, marking the first time the country has
developed a mechanism specifically targeting external actors. The CICC provides a forum
for resolving international disputes, reflecting China’s efforts to protect legal influence
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and address issues with profound geopolitical implications (Cai and Godwin, 2019 ; Erie,
2019 ; Chaisse and Qian, 2021 ).
Regarding its scope, theProvisions of the Supreme People’s Court on Several Issues Regarding
the Establishment of the International Commercial Court 2018specify that the CICC accepts first-
instance major international commercial cases involving disputes exceeding over 300
million yuan, cases of significant national impact, arbitration-related matters (Art 2), and
disputes involving foreign parties, foreign locations, or cross-border issues (Art 3). Despite
its international orientation, Article 4 mandates that the court’s eight judges must be
Chinese nationals, with the qualifications of extensive experience in international law and
proficiency in both Chinese and English.
A particularly notable provision for the scope of this discussion is how the CICC
integrates Western and Chinese practices under its terms of reference. Article 11
establishes a“one-stop”international commercial dispute resolution mechanism that
combines mediation, arbitration, and litigation within a unified framework. While Western
courts often encourage these methods, they typically treat them as distinct processes with
separate procedural mechanisms. In contrast, the CICC merges and integrates these steps,
offering a streamlined approach. As Shan and Feng have noted, this reflects China’s specific
vision of the law, deeply rooted in its national conditions. The CICC embodies an
innovative“Chinese approach”to international commercial dispute resolution, represent-
ing a unique blend of global practices and domestic legal principles (Bell, 2010 ; Shan and
Feng, 2022 ). Mediation and the pursuit of amicable solutions have been highlighted as key
distinctions between Western legal systems, which are often more judgement-focused, and
China, as well as the broader East, which tends to emphasize mediation and dispute
avoidance—a tradition deeply rooted in Confucianism (Bell, 2010 ). The integration of
different procedural phases within the CICC reflects this cultural and legal philosophy,
allowing both parties and judges to rely on mediation throughout the proceedings. This
emphasis is further reinforced by the CICC’s explicit authority to issue a conciliation
statement based on a mediation agreement, which, once signed by the parties, carries the
same legal effect as a judgement. In contrast, Western courts typically require mediation
agreements to undergo court approval before they are enforceable as judgements. The
CICC’s streamlined approach eliminates this step, enhancing efficiency and aligning with
its broader objectives. As Erie observes, the CICC, though designed as a fast, business
oriented, and digitally advanced resolution mechanism for companies operating under the
BRI, ultimately functions as a“court of limited jurisdiction built within the existing
hierarchy of PRC courts”(Erie, 2019 ). This duality underscores its pragmatic design: while
globally oriented, it remains firmly grounded in China’s domestic legal framework and
traditions.
While there is typically a tendency to bypass court proceedings in large-scale cross-
border trade and investment, favouring arbitration mechanisms, the combination of
Chinese and Western practices within the CICC has resulted in a legal innovation that holds
promise for enhancing transparency, democratic control, and accountability in large
commercial disputes. However, the anticipated improvements in these areas have been
somewhat underwhelming. As of this writing, the court’s website has published only seven
arbitration awards, two judgements, and zero mediation awards or projects. Furthermore,
the use of the CICC has been limited, partly due to the hesitancy of foreign enterprises to
move away from arbitration, which is often associated with greater confidentiality. More
broadly, when it comes to legal transplants, the fusion of Western and Chinese practices,
along with their underlying perspectives, is likely to be a significant feature of growing
legal pluralism, particularly in the Global South. Rather than focusing on conflicts between
legal models or the often-insurmountable challenges of reconciling foundational
differences, this blend could foster greater diversity in legal reforms. However, the
combination of radically different legal models may also undermine consistency and
certainty in the law, potentially leading to a negative outcome. The risk of unduly
broadening the legal framework due to selective adoption—what is often termed“cherry-
picking”—as well as the interference of politics within the legal system, could further
complicate the legal landscape. This is further explored in Section5.2.
Voluntariness
The second characteristic that informs legal transplants under the BRI is directly
connected to China’s experience with legal transplants. The imposition of transplants from
developed countries, which was particularly prevalent during the colonial period, appears
to have diminished for several reasons, not only in developing countries but also within
the legal systems of the donor countries themselves. Economic globalization has led to an
evolution in the actors responsible for legal transplants, moving from state to non-state
actors. This shift reflects broader changes in the relationships among national states and
the growing interconnections driven by economic globalization. On one hand, global
governance institutions have promoted a vision of the world focused on increasing
profitability, often at the expense of the traditional power dynamics rooted in the
Westphalian model of state sovereignty.
In this context, transplanting legal institutions like the rule of law and private property
often serves to reinforce neoliberal economic priorities and uphold the ideological
dominance of the Global North. Regardless of cultural or national origins, what matters
under this framework is adherence to the key tenets of neoliberalism, which prioritize
profit-making for Global North countries and the protection of their investments. This
approach exemplifies what Miller describes as an “externally dictated transplant,”
wherein“a foreign individual, entity, or government mandates the adoption of a foreign
legal model as a precondition for conducting business or granting a measure of political
autonomy to the dominated country”(Miller, 2003 , p. 847). While less overtly violent than
the imposition of the colonial period, this method still reflects an underlying presumption
of the superiority of the Western legal culture over that of the host country. In contrast,
China’s approach to legal transplants diverges significantly from such coercive practices.
Instead, China emphasizes building external relations based on the Five Principles of
Peaceful Coexistence (和平共处五项原则), which prioritize mutual respect for sover-
eignty, non-aggression, non-interference, equality, mutual benefit, and peaceful
coexistence (Ma and Thakur, 2004 ; Zhang, 2018 ). Non-interventionism, a cornerstone of
the Five Principles of Peaceful Coexistence, has been central to China’s approach to law,
except in cases where its sovereignty is perceived to be under threat, such as territorial
claims.
Under the BRI, non-interventionism shapes the framework for legal transplants,
emphasizing voluntariness rather than imposition as a defining characteristic. Chinese
scholars argue that China’s modernization path is deeply rooted in its unique
circumstances, evolving in ways that are“appropriate for China’s national conditions,
adapting to different development stages, and making full use of the superiority of the
socialist system”(Hu et al., 2021 , p. 30). For the CPC, imposing China’s legal model on other
countries with vastly different national conditions is neither desirable nor strategically
advantageous. Such impositions would infringe upon the sovereignty of other nations and
risk fostering a negative perception of China as a neo-imperial power, contradicting its
self-image as a non-interventionist actor. Compared to the US and the EU, this deliberate
non-imposition has significant implications for legal pluralism under the BRI. Unlike
Western models, which often accompany economic and political engagement with
prescriptive legal frameworks, China’s legal transplants under the BRI are voluntary,
fostering a more collaborative and non-coercive approach to legal integration. The
transplant involves specific features or characteristics of an institution rather than the
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institution or its overarching ideology. This approach allows the borrowing country to
selectively adopt only those elements that align with its unique circumstances, avoiding
any imposition of ideology. Such flexibility expands the geographical reach of the
transplant, minimizes disruptions to existing systems, and reduces the risk of rejection.
Even countries that do not share the same values as the PRC can still benefit by integrating
innovations from the Chinese legal system or adopting specific tools to manage or guide
citizen behaviour. However, as with the combination of Western and Chinese practices, the
voluntary nature of this approach may pose challenges to legal certainty and consistency.
By encouraging selective adoption, the process risks further fragmenting an already
diverse legal landscape. The cherry-picking nature of these transplants can result in
uneven application and enforcement of laws, creating a patchwork of legal standards. Such
inconsistency could lead to varying outcomes depending on the jurisdiction or the entities
involved, undermining the predictability and reliability of the legal system in countries
that voluntarily implement elements of China’s legal institutions. This issue is further
compounded by the potential disconnect between the stated goal of promoting
connectivity and the actual implementation, which may amount to little more than
rhetorical commitments. As explored in the context of the final characteristic informing
transplants—where policy is often prioritized over law—this inconsistency could have
even more serious implications for the legal framework.
Policy ahead of the law
China’s legal system has long been characterized by the use of law as a tool of governance,
underpinned by the principle that policy precedes law. This foundational approach reflects
a key distinction from Western legal traditions, where law often functions as an
independent framework for regulating society. A pivotal moment in this ideological
divergence can be traced back to 1978, with Deng Xiaoping’s landmark speech,“Emancipate
the Mind, Seek Truth from Facts and Unite as One in Looking to the Future.”Deng emphasized the
critical role of strengthening the legal system, stating,“In order to protect the people’s
democracy, the legal system must be strengthened”(为了保障人民民主，必须加强法制).
Rather than focusing on law as an end in itself, Deng articulated a vision where legal
reforms were inherently tied to achieving broader policy objectives. This integration of
law and policy reflects the Chinese governance model, where the legal system is designed
to align with and facilitate overarching socio-economic and political goals, rather than
striving for an abstract notion of legal perfection (Zhen and Li, 2003 ; Lin, 2012 ; Yang, 2022 ).
This approach has continued to shape the evolution of China’s legal framework,
distinguishing it from systems where law functions autonomously from policy
considerations.
The ultimate aim of the reform in this context is the strengthening of the legal system,
with positive laws (法律) and local regulations (法规) serving as tools to address the gaps
within an incomplete or imperfect system (不完备). Keith highlights the changes in
Chinese politics following Deng Xiaoping’s leadership and the Tiananmen incident, noting
that“Party policy was not only a priori to law, but, in the absence of law, policy acquired
the role and status of law.”(Keith, 1991 , p. 110). This distinction between policy (政策) and
law (法律) is a fundamental characteristic of legal transplants under the BRI.
The Chinese understanding of the law is deeply influenced by Marxist theories,
particularly Lenin’s perspectives on the role of law. Within this framework, law is seen as a
tool to achieve policy objectives, which serve as thecore(核心) andsoul(灵魂) of the legal
system. Policies are designed to fulfil the collective interests of society, but their
articulation and implementation are ultimately determined by the CPC. Unlike in Western
legal systems, where laws often operate autonomously and independently of policy, in
China, policies are highly standardized, authoritative, and regulated. Instances of deviation
or non-compliance tend to occur more frequently with laws rather than with the
overarching goals encapsulated in policies. In this context, policies are seen as guiding
instruments with clear objectives, while laws function as flexible mechanisms to
operationalize and achieve these aims. This dynamic has significant implications for the
adoption and adaptation of Chinese legal principles in other jurisdictions under the BRI
framework.
Chinese scholars identify two major attributes of policy that distinguish it from law:
timeliness (时效性) and correctness (正误). Timeliness refers to the contingent and
situational nature of policy. Policies are designed to address specific material problems,
such as regulating foreign relations or managing economic challenges. They are enacted
for a defined period and may be adjusted or replaced based on appraisal and evaluation by
the authority that implemented them. This flexibility allows policies to adapt dynamically
to changing circumstances and priorities, making them responsive tools for governance.
Correctness is the second defining attribute of Chinese policy. Unlike the legal positivist
tradition, where the moral or practical value of a law is considered irrelevant to its
validity, Chinese policy operates on the assumption that its enactment is inherently
correct, given the historical conditions at the time. This perspective assumes that policies
are formulated based on careful analysis of current realities and collective needs,
rendering them fundamentally aligned with the interests of society.
These two attributes of timeliness and correctness highlight the pragmatic and goal-
oriented nature of policy in the Chinese context, distinguishing it sharply from the static
and value-neutral principles often associated with law. This distinction plays a critical role
in understanding the relationship between policy and law within China’s governance
model, particularly in contexts such as the BRI, where policies often guide the
implementation and adaptation of legal frameworks.
In addition to timeliness and correctness, it is relevant to mention the importance of
expressiveness (表述性) that refers to how policies are expressed or articulated, possibly
highlighting their communicative function or transparency. While timeliness and
correctness focus on the practical and ideological aspects of policy, expressiveness refers
to how policies are articulated and communicated by the authorities. Unlike laws, which
are codified and designed to provide clear, general, and lasting rules, policies emphasize
the articulation of specific goals and directives in response to immediate needs or
objectives. The expressiveness (表述性) of the policy highlights its role as a vehicle for
conveying the intentions and priorities of the governing body, particularly the CPC.
Policies are crafted in a way that ensures their goals and purposes are understood not only
by government officials but also by the general population and stakeholders. This
characteristic underscores the dynamic and goal-oriented nature of policy, where clarity
of intent is prioritized over rigid legal formalism. In contrast to law, which often requires
interpretation by judicial systems, policy relies on its ability to directly communicate
actionable objectives and guide behaviour in specific contexts.
By combining expressiveness, timeliness, and correctness, Chinese policy serves as a
flexible and pragmatic governance tool that adapts to changing circumstances while
maintaining alignment with the overarching objectives of the CPC. This unique interplay
between policy and law reflects the Chinese legal system’s focus on governance and
collective objectives, as opposed to the legal positivist tradition predominant in Western
systems.
Policy changes in China are rarely abrupt; instead, they are gradual and contingent
upon the assessment and evaluation of specific circumstances. Even in instances of strong
criticism of a prior policy—such as the Great Cultural Revolution—the critique focused
not on the inherent correctness of the policy itself but on a misrepresentation of reality by
the CPC at that time. As the 1981Resolution on Certain Questions in the History of Our Party
since the Founding of the People’s Republic of Chinastates, the errors of that period“represent
an entirely erroneous appraisal of the prevailing class relations and political situation in
the Party and state. [:::] In the last analysis, from a long-term historical point of view the
mistakes and setbacks of our Party were only temporary”(Guanyu jianguo yilai dang de
ruogan lishi wenti de jueyi [Resolution on certain questions in the history of our Party since the
founding of the People’s Republic of China], 1981 ). This highlights the Party’s enduring
emphasis on the correctness of its policies as a fundamental principle of its work. An
illustrative example can be found in the context of the COVID-19 containment policy. Both
the CPC leadership and state media, such as theRenmin Ribao(People’s Daily), consistently
underscored the policy’s alignment with the principles of being“correct, scientific and
effective”(正确的、科学的、有效的). The framing of policy in these terms reinforces the
idea that its correctness is not only a guiding tenet but also a tool to legitimize governance
decisions, even in the face of challenges or evolving circumstances (Zhongguo de fangkong
zhengce kexue youxiao [China’s prevention and control policies are scientific and effective], 2023 ).
Under the BRI, the preference for policy as the soul of the law becomes evident, often
taking precedence over strictly legal considerations. Beyond the physical construction
projects commonly referred to in Chinese as建设(“construction”), the policy planning
and vision behind the initiative are of paramount importance. Although first proposed in
2013, the BRI gained specific content and prominence both within the CPC leadership and
the international community in 2015 with the release of the“Vision and Actions on Jointly
Building Silk Road Economic Belt and 21st-Century Maritime Silk Road” (Vision). The
involvement of key ministries—Commerce, Foreign Affairs, and the National
Development and Reform Commission—in drafting the Vision reflects a shift in
perspective regarding the BRI’s role, priorities and nature. This policy document
identified three core components as its backbone: foreign relations, trade and investment,
and development. The BRI is a clear continuation of China’s integration into the global
economy, representing both the global projection of China’s developmental model and the
culmination of the economic reforms initiated by Deng Xiaoping (Vogel, 2011 ). From a
conceptual standpoint, the BRI reflects China’s broader approach of combining long-term
policy vision with flexible implementation to achieve strategic objectives on a global scale.
Rather than prioritizing legal cooperation, one of the five key goals of the BRI ispolicy
coordination, described as“an important guarantee for implementing the Initiative.”This
concept underscores the importance of collaborative efforts, where“countries along the
Belt and Road may fully coordinate their economic development strategies and policies,
develop plans and measures for regional cooperation, negotiate to resolve cooperation-
related issues, and jointly provide policy support for implementing practical cooperation
and large-scale projects”(Vision, § IV). The emphasis on policy coordination over legal
cooperation and reform has significant implications for legal transplants under the BRI. By
prioritizing policy harmonization, the framework encourages flexibility and adaptability,
but it may also result in inconsistencies in the adoption and enforcement of legal
standards. This approach reflects the broader Chinese governance philosophy, where
policies serve as the foundation for achieving strategic goals, while legal reforms are
secondary to the overarching objectives outlined in policy frameworks. To achieve policy
coordination, China has extensively relied on Memoranda of Understanding (MOUs) and
other non-binding agreements, which are instrumental in advancing this goal. Wang
examines the BRI from a legal perspective and highlights how the use of soft law
instruments, such as MOUs and performance agreements, leads to what he describes as
“minimal legalization,”resulting in a lack of overall effectiveness (Wang, 2021 ). Within the
BRI framework, policy coordination is pursued through multilevel and multilateral
dialogues at the regional level while negotiating bilaterally for the concrete
implementation of projects (Farah and Rossi, 2011 ). In both instances, legal dimensions
are deprioritized in favour of political and policy-driven approaches.
Examples of regional policy coordination include the Forum on China-Africa
Cooperation (FOCAC) with Africa (Shelton, 2016 ; Omolo, 2022 ), the China-CEEC (Central
and Eastern European Countries) Cooperation with Eastern Europe (Auer and Stiegler,
2017 ; Zuokui, 2017 ), and initiatives involving MENA countries (Zoppolato and Jiang, 2023 ).
These regional meetings often serve as platforms for China to outline its commitments in
broad terms. For instance, the 2018 Beijing Declaration, adopted during a FOCAC summit,
introduced eight major initiatives and included a pledge of $60 billion from China to
bolster Sino-African cooperation. However, the declaration lacked details regarding the
allocation of funds across initiatives, the role of other China-led institutions in financing,
and the establishment of monitoring or transparency mechanisms.
Substantive policy coordination, however, tends to occur not at the regional level but
bilaterally and on a project-specific basis, with a political rather than legal orientation. The
enforceable legal dimensions are typically confined to performance contracts between
Chinese companies—whether state-owned or private entities—and host-country entities.
These contracts are often confidential, as they involve private commercial arrangements.
Despite the creation of institutions like the CICC to handle disputes, most contracts avoid
resolution through such institutions. Instead, they adhere to international contract
practices, with arbitration commonly conducted in globally recognized tribunals. Second,
within the framework of the BRI, the instrumentalization of law often manifests as the
subordination of legal frameworks and reforms to specific policy objectives, rather than a
commitment to upholding fundamental legal principles. The approach enables laws to be
adapted and interpreted to align with shifting circumstances and the power dynamics
involved, effectively prioritizing political and economic goals over the rule of law. Such an
approach can have significant consequences, particularly in the context of legal
transplants from China, where legal standards may be circumvented to facilitate
economic projects, potentially undermining legal protections.
The prioritization of political and economic considerations is particularly pronounced
when Chinese legal transplants are involved. While adopting Chinese legal standards and
practices can expedite project completion, it often comes at the expense of legal
safeguards. This is evident in the frequent relaxation of environmental and labour
protections—practices reminiscent of the extractive and neocolonial operations
historically associated with Global North corporations in the Global South. However, a
unique aspect of China’s approach is the exceptional treatment afforded to Chinese
enterprises operating abroad, which can place them outside the standard rule of law. For
instance, to achieve ambitious policy objectives, such as the construction of a massive dam
involving multiple stakeholders, China’s pragmatic view of law may encourage host
countries to bypass their systems of legal guarantees. This enables them to secure Chinese
funding and meet policy goals, even if doing so compromises established legal standards.
Such practices illustrate the tension between China’s policy-driven legal framework and
the broader global expectations for transparency, accountability, and adherence to the
rule of law. Third, even when host countries are neither compelled nor coerced into
adopting China’s legal practices, this prioritization of the political over the juridical in the
BRI framework can inadvertently lead to the replication of some of China’s authoritarian
practices. While in China these practices are partially balanced by the country’s unique
political framework—including intraparty competition, accountability mechanisms for
CPC members, ideological constraints, and international scrutiny—the same checks and
balances are often absent when host countries adopt elements of the Chinese model of
governance. This dynamic has raised concerns about democratic backsliding in countries
engaging closely with China. For instance, in the context of Pakistan, Hasan Karrar
highlights how Chinese involvement has contributed to the weakening of normative legal
and administrative structures, exacerbating governance challenges and undermining
democratic principles (Karrar, 2022 ).
Chinese involvement in shaping the legal regulatory frameworks of host countries differs
significantly from initiatives such as the US with the Law and Development Movement or
the EU’s promotion of rule of law through technical cooperation projects. Unlike these
more direct approaches, China’s engagement is shaped by its own experiences as a
recipient of legal transplants and reflects a more pragmatic and adaptive strategy.
To understand how China’s practices under the BRI are informed by its history with
legal transplants, this article highlights three core characteristics of its approach.
The first characteristic is the need to move beyond the narrow perspective that law is a
singular phenomenon rooted exclusively in Western traditions. China has long embraced
the integration of foreign knowledge and practices into its legal and political systems.
Historically, it has drawn extensively on“foreign”experiences from the West, applying a
system of cross-contamination across various domains, including the legal field. This
synthesis of Western and indigenous practices has fostered a form of legal pluralism that
allows diverse legal models to co-exist within China. While this pluralism enables
flexibility and innovation, it also carries potential drawbacks. The blending of
fundamentally different legal traditions may undermine the consistency and predictability
of the legal system, as well as the effectiveness of the institutions it creates. While this
hybrid approach has served China’s domestic needs, its export under the BRI raises
questions about its applicability and implications for host countries, particularly regarding
the adaptability and coherence of transplanted legal frameworks.
The second characteristic of China’s approach to legal transplants is its emphasis on
voluntariness, allowing host countries to decide independently whether and how to adopt
legal frameworks. Drawing from its own experience as a recipient of legal transplants,
China prioritizes non-interference with the legal systems of host countries, offering
significant flexibility in how they choose to adapt or reject China’s legal models. This
mirrors China’s own selective adaptation of Western legal concepts, reflecting a pragmatic
approach to legal integration. However, under the BRI, such voluntariness is mediated by
two critical factors. First, the presence of uneven power dynamics means that while
transplants are not overtly imposed, they are often subtly encouraged or“nudged”
through economic and political incentives. Second, the selective nature of these legal
transplants can result in inconsistent application and enforcement of laws. This cherry-
picking approach may lead to a fragmented legal landscape, where similar issues are
resolved differently across jurisdictions or stakeholders, undermining the predictability
and uniformity of legal standards. Such variability poses challenges for governance,
institutional coherence, and the effectiveness of legal frameworks in the host countries.
The third key characteristic is the prioritization of policy over law, where legal
transplants are designed to achieve specific policy objectives rather than uphold
autonomous legal principles. In contrast to the Western tradition, which, under the
influence of legal positivism, often seeks to separate politics from law, China’s approach
inherently combines the two. Within the BRI framework, this prioritization can, even
unintentionally, promote the politicization of law, potentially leading to the replication of
certain authoritarian practices from China’s governance model in host countries.
However, it is essential to recognize that the BRI also creates a unique space for legal
and institutional interaction. Unlike the unilateral imposition of Global North legal
models, China’s approach under the BRI embraces legal pluralism. Legal institutions and
frameworks are not simply transplanted but are adapted to the national conditions and
contexts of host countries. This fosters a dynamic exchange where multiple and diverse
legal traditions can coexist, interact, and evolve. Such diversity offers a counterpoint to
the homogenization often associated with the imposition of neoliberal legal frameworks,
contributing to a richer and more inclusive global legal landscape.
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