Global legal institutions in local contexts: the making of commercial arbitration in China

Thesis

The study to be presented here examines the practical processes and outcomes of commercial arbitration in China. It aims to provide an anthropological account that illustrates and explains how a transnational legal institution such as commercial arbitration is implemented in the contexts of Chinese arbitral organs and local bureaucratic sectors. Specifically, this thesis takes on two tasks. The first is to identify and present some of the Chinese arbitral practices that can be described as “vernacularized” due to their deviance from the “best practices” of international arbitration law. In particular, I am concerned with practices that pertain to aspects of institution-building and dispute-processing. The second is to analyze what may be the “local factors” – in both institutional and sociocultural terms – that contribute to these practical results of vernacularization. Drawing on my twelve-months ethnographic fieldwork in China, I show that opposed to the Euro-American model that it borrows, Chinese commercial arbitration has become highly bureaucratized and mediatory. I argue that these drifts towards state bureaucracy and mediation can be explained by a distinct mode of “reasoning” in which the aspiration to state authority operates as a presumptive constraint on how local actors consider their compliance or other forms of engagement with legal rules. For participants observed, this constraint is not necessarily absolute, but it does have a presumptively decisive force that tends to undermine other competing reasons for engaging with law. By foregrounding the deliberative aspect of transnational legal practices in their local settings, what I attempt to achieve is to better identify and explain its relationship with the broader “sociocultural” conditions with which local actors are entangled. In so doing, it is my hope that this study would not only help better explain China’s frequent deviance from its commitment to the rule of law but also break fresh ground in studying legal phenomena anthropologically in the Chinese society and beyond.

Authors: Huang, KS

• DOI: 10.5287/ora-qoravgekz
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: legal anthropology; Chinese arbitration; commercial arbitration in China
• Subjects: dispute resolution in China