On Friday, March 2, Professor Mark Wu from Harvard Law School visited Duke for the Mellon Sawyer Seminar on The Corporation and International Law. In addition to teaching and researching international trade law as a law professor, Wu is also involved in various international organizations, including the World Trade Organization, the World Economic Forum, and the World Bank. Before joining Harvard, he worked in technology and trade in different capacities, including as a consultant at McKinsey & Co., an operations officer for the World Bank in China, and the Director for Intellectual Property at the Office of the U.S. Trade Representative.
Wu presented on a paper that he published in 2016 titled “The ‘China, Inc.’ Challenge to Global Trade Governance,” in which he condensed a nuanced portrayal of state control of private enterprises in China and its implications for the existing global trade order within merely 60 pages. To help the audience better understand the unique character of what he calls China, Inc., he provided thought experiments that seek to replicate China, Inc. and illustrate the difficulty of applying existing international legal and political rules to it. (From a student’s perspective, these thought experiments made the process of writing response papers an enjoyable and creative adventure.) His opening remarks encouraged the audience to further consider the normative implications of these difficulties. “Much of the international law and ideology is the product of the Cold War,” he reminded us. Most of the modern Western discourse focuses on “how should we get China to play by the rules,” but maybe it is “the rules”—the post-Cold War liberal economic order—, rather than China, Inc., that is a historical anomaly.
Over 40 people attended the seminar, including students enrolled in the course and others from the Duke community. The discussion was enriched by the diverse perspectives that the audience brought. Many of us are interested in different regions of the world and different areas of the law, and the China, Inc. phenomenon is very different from the common-law traditions we are familiar with. The range of questions nicely embody the “past, present, and future” aspect of the Sawyer seminar. Many concerned ways that existing international rules and the global order can respond to the rise of China, Inc.; others had to do with the Party’s awareness and response to China, Inc.; still others with the future of China, Inc.—both as a matter of domestic policy and in terms of its implications for international order.
In engaging with these questions, Professor Wu further emphasized the not-so-obvious ambiguity of the normative question. Many criticisms against China focus on what China should do, but few question the legitimacy of the rules themselves. A discourse focused on “bringing China to the West’s standards” to the neglect of what the West can do to engage China is unpersuasive and rests a questionable normative standing. He also emphasized the hyper self-awareness of the Party-State. The networks are “informal” in that they do not resort to legal institutions or procedures to effect transactions, but their informality does not mean they escape the state’s control. The State is “hyper self-aware” of the operation of this privatization of sovereign power and its implications for its perceived legitimacy, and it responds accordingly.
Professor Wu’s presentation adds an extra layer of complexity to the continued discussion of the definition, role, and function of corporations in international law that we have been exploring through the Sawyer seminar. Throughout history, sovereign power and private interests are often intertwined, although the precise model of interaction varies. China, Inc. represents a unique variation. While many cases we have analyzed involve corporate usurpation of sovereign power to achieve private interests, China, Inc. represents a model through which the state achieves its interests through private forms.
As Wu points out, China, Inc. is hyper-aware of the international implications of this model and proceeds in a “hyper-cautious” manner. Currently, it only allows tensions to arise in areas where the U.S. has set precedents, and the future of China, Inc. remains to be seen.