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Belt & Road: Legal Structure

Peter Kam Fai Cheung SBS

In every legal system, there are principles, rules, processes, institutions and law actors. The Belt & Road development initiative is an open platform covering at least 65 specific countries or regions. Municipal legal systems maintain order, protect rights, resolve disputes and establish standards. At the public international level, there is already value alignment, capacity building and support pledging on the political economic front.

It would be ideal to have a transnational or functional treaty governing Belt & Road's trade and economic activities with uniform principles, rules, processes, institutions to enhance customer-friendly certainty and trustworthiness. Before that happens, there are existing public and private international law principles, rules, processes, institutions and law actors to deploy. Trade and economic risks in a transnational context can be managed upfront and deals can be struck anytime with the help of law actors.

At the public international level, under the World Trade Organization (WTO) framework, there are multilateral agreements governing trade in goods, trade in services and trade-related intellectual property matters. China, Macao, Hong Kong and many other Belt & Road stakeholder countries or regions are among the 164 WTO Members. On the investment front, there are many bilateral investment treaties (BITs). China has 110 BITs in force, Macao two and Hong Kong 18.

At the private international level, there are treaties governing the international sale of goods such as the United Nations Convention on Contracts for the International Sales of Goods (CISG) 1980, in addition to municipal rules on conflict of laws. Whether by design or by default, the rights and obligation of contracting parties are secured, to some extent, by treaties, agreements and municipal interpretation of conflict of laws. The principles, rules, processes and institutions can be deployed by international and municipal law actors to determine rights and obligations and to settle disputes.

The imperfect legal order can be better if China and other stakeholder countries or regions accede to related existing transnational instruments to establish more common standards. For example, as electronic contracts are growing in number, they may wish to consider acceding to the United Nations Convention on the Use of Electronic Communications in International Contracts (New York Convention) 2005. Meanwhile, I believe law actors of municipal legal systems, especially those in the Big Bay, would strive to capture and deliver value in a low-risk and high-performance way to help achieve the Belt & Road vision!

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