From PhD Thesis to Monograph

This essay provides a personal and reflective account of the process of adapting a PhD thesis, which was written for a panel of examiners to demonstrate academic competence, to a monograph, which in simple terms is written for a wide audience including students and academics with the aim of communicating ideas. It is hoped that this article provides insight to postdoctoral researchers who may be thinking about submitting a proposal to a publisher for adaptation of their PhD thesis to a monograph. Keywords: thesis adaptation; monograph; academic publishers.

Proving Chinese Law in the Courts of the United States

The volume of disputes heard by United States (US) courts containing a China element continues to be robust even against a backdrop of political rhetoric concerning an economic ‘de-coupling’ of the US and China. These cross-border disputes often involve Chinese parties and special issues, some of which concern Chinese business culture, but many of which involve interpreting questions of Chinese law. How is proving Chinese law accomplished in these cases and how have US courts performed in interpreting Chinese law? This article first discusses the approach to proving Chinese law in US courts. While expert testimony is often submitted and can be valuable to a US court, the applicable US rule offers no standards by which these opinions are to be judged. And, in the China context, without specific guidance, it can be challenging for a judge, unaccustomed with China or the Chinese legal system to determine which version of the law to believe. Moreover, under the applicable rule, the US court can simply ignore competing Chinese law opinions and conduct its own Chinese law legal research, presumably using English language sources. This can lead to interesting interpretations of Chinese law to say the least. The article anchors its discussion in an examination of those recent cases which have interpreted Article 277 of the Civil Procedure Law of the People’s Republic of China. This is the legal provision of Chinese law that can be implicated in certain situations involving cross-border discovery, and there are now numerous Article 277 cases among the reported US decisions. The article analyses Article 277 by placing it within the larger context of Chinese civil procedure and argues that the language used in the provision has a special meaning within Chinese evidence law that has been obscured in those US case decisions interpreting it, leading to erroneous results. The article concludes by offering judges and practitioners some suggestions for interpreting Chinese law in future US cases. Keywords: Chinese law; US courts; Article 277; deposition; cross-border discovery; Hague Evidence Convention; Chinese civil procedure.

Human Rights, China and the UN

Keywords: human rights; Universal Periodic Review; China; Xinjiang; Hong Kong.

Miscarriages of Justice and the Construction of Criminality in the People’s Republic of China

Another high-profile miscarriage of justice was reported recently by the media in China, highlighting widespread issues concerning torture and other police malpractices within the Chinese criminal justice system. Drawing from analysis in my book on the Construction of Guilt in China, this Note outlines the key drawbacks of the Chinese criminal process which contribute to wrongful convictions, namely that none of the legal institutions exhibits the autonomy to check the credibility of the evidence impartially. Alongside the problems caused by miscarriages of justice, they are also indicative of the symptoms of a weak criminal justice system, thereby opening up opportunities for future reforms. Keywords: miscarriages of justice; China; criminal justice; case construction.

Mediation

This article examines the place of mediation both internally and externally to the civil justice system. The growth of alternative dispute resolution (ADR) and the culture of settlement within formal justice has somewhat absorbed mediation as a process by which to resolve disputes at the door of the court. Yet, it can be argued that its origins lie within the community setting where social norms have a distinct role to play and where collective as well as individual interests have a significant impact. This paper considers the application of mediation in a much wider sense than simply as a tool for settlement. It explores the concept of mediation as an educative process that supports the generation and advocation of social norms. Mediation can be understood as a form of self-regulation which relies on perceptions of fairness, justice and trust. In so doing, it can be argued that it provides a means of informal justice amounting to dispute prevention as far as its relationship to the justice system is concerned. Viewed in this way, mediation provides a genuine first choice as a means to address and resolve conflict rather than an alternative method by which to settle disputes. Keywords: mediation; dispute resolution; dispute prevention; community norms; formal justice; informal justice; process pluralism; alternative; first choice.