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Document Type

Article

Publication Date

Summer 8-1-2021

Publication Citation

28 Indiana J. Global Legal Studies 139 (2021)

Abstract

Growing transnational business activities have resulted in more rapid transnationalization of American laws. In an era of deglobalization, the way the Trump administration moved away from multilateralism has both gravely impacted international law ordering and triggered responsive (or adaptive) law-making in some of the United States' major trade partners, in particular, China. The recently concluded US-China Trade War has driven up the speed of transnational norm-making and hastened incorporation of American legal principles into Chinese domestic laws. As diplomatic tension between the United States and China intensify, Chinese companies are increasingly becoming targets of sanctions and regulatory enforcement actions led by the U.S. government. The strong deterrence effect of these measures has also resulted in stronger self-policing and compliance in Chinese corporations conducting cross-border business transactions, as well as in responsive law-making taken by the Chinese government to intrude on sovereignty and to combat against unintended effects of US law enforcement. Against this backdrop, this article offers an alternative narrative of the formation of legal ordering in transnational trade through passive and active importing of American law as a 'law product," giving rise to new and recursive cycles of lawmaking in China. Quite contrary to what previous studies have suggested that unilateralism often leads to donor-dominated transnational legal processes this article argues that the institutional and political structure of contemporary China makes it more receptive to legal transplantation at times of political tension, generating positive externalities to China's staggering market liberalization and legal reforms. Over time, these processes will lead to normative settlements creating a new equilibrium between the United States and China as well as between the public and private spheres in China. Additionally, adopting transnational law theories by focusing on the settlement of legal norms caused by interactions of state and non-state actors warrants the study of comparative law more generally.

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