Consent does not translate easily across borders. Firms often export consent screens and accountability devices across jurisdictions and treat shared procedures as evidence of equivalent protection. Yet adequacy assessments, cross-border recognition of court judgments and regulatory measures, and contract-based transfer arrangements all depend on whether similar-looking tools generate comparable rights, duties, remedies, and enforcement powers. This article argues that legal comparability turns on consequences rather than procedural form. Its principal contribution is the Consequence-Equivalence Test (CET), a structured comparative method that encompasses eight factors: consent's legal role, validity and withdrawal, burdens of proof, remedies, enforcement powers, exceptions, review, and transfer tools. The article operationalizes the CET through a jurisdictional comparison of the European Union, the United States, and South Korea, identifying three distinct consent types and demonstrating how each system allocates decision-making power among individuals, firms, courts, and regulators. It then examines whether impact assessments, certification, and transfer clauses can carry those consequences across borders. The result is not a single mechanical score, but a context-sensitive inquiry: transfer tools can substitute for local protection only where they preserve the legal role of consent and deliver consequence-equivalence in proof burdens, enforceability, and access to redress. The three central jurisdictional references are therefore used to demonstrate the method, not to claim exhaustive coverage of regional diversity. The implication is that regulators, courts, and contracting parties should treat consequence-equivalence, not procedural resemblance, as the threshold condition for cross-border recognition of consent.
The European Union's Carbon Border Adjustment Mechanism (CBAM) represents a significant development at the intersection of trade regulation and climate policy. Beyond its environmental objectives, CBAM has rapidly become a focal point of legal scrutiny, both within the European Union and at the World Trade Organization. This article examines CBAM through the lens of ongoing litigation, analyzing how legal challenges illuminate the conditions under which border carbon adjustments (BCAs) may be lawfully designed and assessed. Rather than treating CBAM as a settled regulatory model, the article approaches CBAM litigation as a site of legal contestation that sheds light on the scope and constraints relevant to the lawful design of BCAs. It examines how issues raised in WTO and EU proceedings - relating to non-discrimination, justification, proportionality, and regulatory flexibility - inform the legal context in which climate-related trade measures operate. In doing so, the analysis focuses on legal considerations relevant to regulatory risk and compliance expectations in the design and application of such measures. The article further situates CBAM litigation within the broader context of Asia-Pacific trade. Many economies in the region are directly affected as exporters of CBAM-covered goods, while developing domestic carbon pricing frameworks and considering their own approaches to carbon-related trade measures. In this dual capacity, Asia-Pacific economies emerge as de facto stakeholders in CBAM litigation. Understanding the legal dynamics of CBAM litigation is therefore essential not only for assessing immediate market access implications, but also for informing future regulatory choices in the evolving trade-climate landscape.
This article examines the evolution of, and controversies surrounding, China's outbound data transfer regime. Taking the Measures for Security Assessment of Data Exports and the Provisions on Promoting and Regulating Cross-Border Data Flows as key inflection points, it traces the regime through three stages. Before the Measures took effect, Chinese law established the architecture for security assessment but provided limited operational detail, while China pursued cross-border data governance through agreements and initiatives. After the Measures were issued, three compliance pathways-security assessment, standard contractual clauses, and certification-were operationalised. However, practical frictions emerged, including a low trigger threshold for security assessment and uncertainty over certain mechanisms' applicability. With the Provisions' entry into force, filing requirements were eased, exempted scenarios were clarified, and pilot free trade zones were authorised to formulate negative lists. The 2025 Measures for Certification of Personal Information Export further consolidated the toolkit and signalled institutional maturation. Nevertheless, uncertainties remain. These include the indeterminate scope of important data and slow catalogue compilation; overlap and divergence among free trade zone negative lists in sectoral coverage and threshold design; difficulties in aligning domestic rules with digital trade frameworks such as the CPTPP and DEPA; and, in international cooperation, the need to navigate fragmented rulemaking and foreign restrictions on data flows. The article argues that China's regime is best understood not as a static set of rules, but as a tiered toolkit dynamically calibrated amid tensions between security, development, and openness, while facing challenges of legal certainty, coordination, and interoperability.
This article contends that China's advanced compensation system for securities infringement is distinctively characterized by its practice-preceding-legislation trajectory. Taking 2019 as a pivotal juncture - marked by the enactment of the revised Securities Law - cases of advance compensation before and after this legislative milestone reveal both 'family-resembling' continuities and 'mutative' divergences, owing to the system's nascent institutional framework. Through case analysis, the analysis identifies critical operational challenges: persistent ambiguities concerning the identification of compensation obligors, unpredictable parameters for compensation scope and quantum, procedural inequities in the formulation of compensation agreements, and systemic barriers to subsequent recourse for compensators. The study underscores the inadequacy of the current regulatory architecture in balancing efficiency with fairness, particularly in cases involving intermediary institutions. By interrogating these issues against evolving judicial interpretations and comparative models, the article calls for targeted reforms to enhance procedural equity, standardize compensation metrics, and institutionalize recourse mechanisms. Such refinements, it argues, are imperative to align China's advance compensation regime with global securities governance paradigms.
China's courts sit at the centre of how the Party-state turns political priorities into legal outcomes, yet their role in this process remains widely misunderstood. Existing scholarship assumes that Party control necessarily suppresses judicial autonomy. Drawing on original surveys and interviews with Chinese judges, this article uncovers a mechanism of autonomy via control, through which the judiciary leverages party control to assert professional authority. The key is that Party directives do not enter adjudication directly, they must first be filtered and processed within the courts, giving judges room to translate political commands into sources of judicial legitimacy and authority. Distinctly, ideological instructions are widely circulated to secure political loyalty and reinforce subordination, but remain legally non-binding and detached from adjudication. Directives regarding substantive judicial issues, by contrast, must undergo a legalisation process through which courts assert professional judgment by converting Party policies into binding judicial documents before they can guide and justify case outcomes. Through this dual-track mechanism, the judiciary reserves autonomy on professional issues and strengthens its authority in routine adjudication. Indeed, by implementing Party policies through judicial channels, courts leverage political resources as a source of legitimacy, thereby reducing the interference of peer entities and combating judicial corruption. These findings recast the Party-court relationship in China and provide an instructive case in non-democratic regimes where the judiciary fosters autonomy, capacity, and public credibility not by resisting political supremacy, but by working through it.
The principle of public participation has been integrated into the field of international investment law as a significant indicator of democratic governance. The EU-China Comprehensive Agreement on Investment (CAI) has introduced a progressive public participation mechanism that could significantly shape future formats of international investment agreements and the relationship between the two countries. This research contends that the public participation mechanism in the CAI has the potential to improve public oversight, legitimacy, state cooperation, and capacity-building by analyzing its provisions on transparency, sustainable development, and amicus curiae. The extent of public participation may be clarified, and the dispute settlement system may be enhanced in relation to sustainable development issues, despite these opportunities. The CAI's implementation of a public participation mechanism can be interpreted as a strategy to strengthen its legitimacy in international investment regulations. However, it continues to encounter structural constraints, including procedural constraints and unbalanced institutional domination.
As China has evolved from a pure capital-importing state to a hybrid state of both capital importer and exporter, a paradigm shift has taken place in its bilateral investment treaties (BITs). China has entered into two sets of BITs with multiple states; however, the ambiguity of transitional clauses in China's new-generation BITs concerning the succession of these two sets of BITs has given rise to an arbitration gap. Consequently, investors are caught in a jurisdictional vacuum and cannot obtain remedies through international investment arbitration pursuant to the new BITs. This article conducts an in-depth analysis of the interpretation and application of transitional clauses by investment arbitration tribunals, as well as the retroactivity of such transitional clauses.
In response to perceptions that the People's Republic of China constitutes a hegemonic rival, both the United States Federal and individual U.S. state governments have enacted measures to defend against a myriad of alleged national security threats arising from the strategic competition. While Federal measures have garnered significant attention, a distinct and under-analysed phenomenon is the surge of individual U.S. states establishing measures designed to counter perceived threats to their citizens' data, critical infrastructure, and economic well-being. However, the new state activism encroaches on policy-making that is often associated with national security and foreign affairs, which are considered 'Federal territory'. In the past, state measures impacting foreign commerce and policy have raised the classic question of how to balance Federal power with individual state rights and have triggered 'foreign affairs exceptionalism' long understood as limiting state power when foreign affairs are involved. Prior litigation over state measures within the context of state overreach into foreign affairs generally focused on the dormant foreign commerce clause and preemption. State measures related to China present similar questions regarding potentially impermissible encroachment on foreign affairs. Yet traditional notions of foreign affairs exceptionalism are perhaps outdated given a rapidly changing international environment. The new geostrategic context and a dynamic re-conceptualization of national security (and state security) suggest that courts should re-examine the Constitutional battlegrounds in light of three unique factors: the expansion in conceptualizing security; China's unique political-economic governance model; and distinguishing between 'offensive' and 'defensive' deployments of state power.
Expropriation of the listed companies via loan guarantees was a key concern for the securities market in China. However, the actions taken by the authorities in recent years appear to be effective in curbing such misconduct. Following the self-enforcing governance norms proposed by Kraakman and Black, this article uses the misconduct of loan guarantees provided by listed companies in China as a case study to explore a feasible path for an effective regulatory framework to improve market integrity. It shows that China has developed a self-enforcing law model, featuring a collective liability mechanism to constrain various parties involved in such guarantees. This article argues that such a self-enforcing regulatory regime can push related parties involved to carry out their monitoring duties and curb the guarantee of misconduct provided by the listed companies.
After 80 years of development, the Chicago Convention legal framework has created a uniform and resilient safety net for international air transport through its safety-oriented legal spirit and technical-based instruments. This framework builds public trust in air travel and facilitates the sustainable prosperity of the airline industry. Local aviation authorities, such as the Civil Aviation Administration of China (CAAC), proactively develop, update, and reform national aviation regulations to maintain a consistent safety level and ensure the stability and development of the air service trade both within and across borders. Airline workers, as key stakeholders in air transport, have received increased protection through this evolving legal framework. For example, the Safety Management System (SMS) and scientifically revised duty limitations for pilots have naturally diverged from those of general labour law, overriding the original mandates in local labour laws. Since these provisions are the byproducts of aviation law reform, the technical-centric approach to codification creates unique challenges when airline workers exercise their regular labour rights. This article reviews the last three years (2021.10-2024.10) of judicial decisions to explore the causes and impacts of this divergence in China's aviation market - the world's second largest - where scholars have noted an increasing gap between aviation and labour law. Our findings indicate that the divergence has significant impacts on airline workers, with the drawbacks of aviation law in labour matters outweighing its advantages. Despite making patches with supplementary instruments, China has seen limited improvement. This article proposes a standalone China's aviation labour law to address loopholes and divergences.
