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Current Issue: VOLUME 10, NUMBER 1
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Preface
By ZHANG Zhaohan and FU Shuning
The Fall 2017 Issue of the Tsinghua China Law Review provides readers with a variety of perspectives on the past, present and future of China’s law, legal economy, and society. The authors contributing to this issue represent diverse academic backgrounds, and have abundant insights to share. [read more...]
 
 
Preface | 10 Tsinghua China L. Rev. (2017)
Sustaining the Status Quo: The Use of Conditions in Chinese Merger Clearance
By Deborah Healey, ZHANG Chenying, Jack Coles
This article investigates the role of conditions or remedies in Chinese merger approvals, drawing conclusions about their use and suitability. It reviews the operation of the Anti-Monopoly Law and the more recent merger remedy guidelines in the context of the changing approach to merger remedies by competition regulators in other major jurisdictions such as the EU, US and Australia. An examination of representative MOFCOM merger approvals with conditions indicates that MOFCOM prefers behavioral conditions which sometimes appear disproportionate or unrelated to the anticompetitive effects of a merger, and tend to maintain the status quo. The article emphasizes how potential reforms to MOFCOM’s merger remedy guidelines and the conditions imposed by the regulator might better facilitate proportionate merger remedies, and the efficiencies sought by mergers. It considers these issues in a case study of a hypothetical bank merger scenario, set against the background of a socialist market economy and the competitive dynamics of the Chinese banking sector. [read more...]
 
 
Article | 10 Tsinghua China L. Rev. 1 (2017)
China as a Global Arbitration Player? Recent Developments of Chinese Arbitration System and Directions for Further Changes
By Monika Prusinowska
The impressive magnitude of cross-border transactions in the world dictates the continuous work on providing the corresponding efficient dispute resolution mechanisms. International commercial arbitration, although not free from problems, has proved to be the preferred model for such scenarios. In response to the needs of arbitration users, the leading jurisdictions and arbitration institutions regularly update their rules of the game. The Chinese arbitration system also develops continuously. Despite fierce competition, especially in the Asia region, China is never willing to give up its share. This article describes the series of improvements that have recently been introduced to the Chinese arbitration system, points out some important flaws in the system, and offers a few recommendations to help boost the image of China as an ideal place for arbitration. [read more...]
 
 
Article | 10 Tsinghua China L. Rev. 33 (2017)
Do Auctions Matter? Assessing the Chinese Auction Promotion Institution of Takeover Law
By Charlie Xiaochuan Weng
Takeovers generally have a value adding effect, but need to be regulated in order to curb excesses. Auction promotion rules are efficient in maximizing social wealth and reducing non-value maximizing takeover deals when shareholders are confronted with a coercive offer. However, the application of such rules in China is far from satisfaction. Not only are the rules ineffective in terms of its application ratio, but they also reinforce controlling shareholders’ powers, making minority shareholders more vulnerable. This research conducts an empirical study on Chinese shareholder distribution in listed firms, and analyzes the utilities of different types of controlling shareholders from an agency problem perspective. It concludes that the current rules are inefficient in light of the common Chinese ownership structure, and suggests an ex ante announcement institution to compensate for the flaws. Finally, this paper introduces an opt-in legislation mode for minority companies with dispersed shareholder distributions. [read more...]
    
Article | 10 Tsinghua China L. Rev. 49 (2017)
Is a Rape Shield Law Desirable for China?
By WU Huimin
Due to conservative social views and the private nature of the offense, rape remains a rarely reported crime with a high “dark figure” of unreported cases in China. Social biases as well as insufficient legal regulation contributed to this problem. Once faced with a similar situation, the U.S. established a rape-shield law that helped reduce sexual assaults and fight social biases. Though China and the U.S. have different legal mechanisms, China has the necessity and possibility of building a similar law. A rape shield law would help protect victims’ privacy, encourage reporting, regulate judicial proceedings and raise social awareness. Such a law generally forbids the use of victim’s sexual history in rape cases, but allows prior sexual history between the victim and defendant, and non-sexual character evidence to be beneficial at the present stage. With better protection, it can also encourage more victims to testify in court, promoting defendants’ right to confrontation. [read more...]
 
 
Article | 10 Tsinghua China L. Rev. 85 (2017)
Why Late Qing Constitutional Reform Failed: An Examination from the Comparative Institutional Perspective
By CHENG Jie
Takeovers generally have a value adding effect, but need to be regulated in order to curb excesses. Auction promotion rules are efficient in maximizing social wealth and reducing non-value maximizing takeover deals when shareholders are confronted with a coercive offer. However, the application of such rules in China is far from satisfaction. Not only are the rules ineffective in terms of its application ratio, but they also reinforce controlling shareholders’ powers, making minority shareholders more vulnerable. This research conducts an empirical study on Chinese shareholder distribution in listed firms, and analyzes the utilities of different types of controlling shareholders from an agency problem perspective. It concludes that the current rules are inefficient in light of the common Chinese ownership structure, and suggests an ex ante announcement institution to compensate for the flaws. Finally, this paper introduces an opt-in legislation mode for minority companies with dispersed shareholder distributions. [read more...]
    
Article | 10 Tsinghua China L. Rev. 107 (2017)


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