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Evolving Disputes, Expanding Options
Edited by Truong T. Tran, John B. Welfield and Thuy T. Le
John B. Welfield and Le Thuy Trang
Interstate conflict, in the view of one-third of the global decision-makers and experts assembled to compile the World Economic Forum 2015 Global Risks Report, was the most probable serious danger facing the East Asia-Pacific region over the coming decade.1 A Pew Research Center global opinion poll conducted in the spring of 2014 found that people in eight of the 11 Asian countries surveyed expressed fears about possible military conflict over territorial disputes involving the People’s Republic of China and its neighbors. In China itself, more than six in every ten citizens expressed similar concerns. Two-thirds of Americans in 2014 also feared that intensifying territorial disputes between China and its neighbors could spark an armed conflict.2 Although the World Economic Forum 2017 Global Risks Report considered such conflict as a decreasing risk in terms of likelihood and impact,3 majorities in China, Japan and several other East Asian nations remained concerned about territorial tensions and the strategic drama being played out between the United States and China on land and at sea across the region had begun to fuel fears that the “Pacific century” might be shattered by a new Pacific war.4 For better or for worse, Southeast Asia, the region which has given birth to the most vigorous efforts to construct a regional security architecture designed to ensure long-term peace and stability in Asia and the wider Pacific Basin, is today confronted by a series of intractable problems that may well constitute the greatest tests it has faced since the end of the Cold War. Much has been said about the significance of the South China Sea for the security and development of the Indo-Pacific. This sea offers the shortest route from the Pacific Ocean to the Indian Ocean. About half of the world’s commerce, half of global liquefied natural gas and a third of global crude oil transit through this body of water each year.5 Two-fifths of the world’s tuna are born in the South China Sea, contributing to a multibillion-dollar fisheries industry.6 These statistics, oft-cited, are just a few indicators of the South China Sea’s importance to the region and the world at large. A durable regional security system that can deliver lasting stability and prosperity for the Indo-Pacific cannot be constructed in the absence of a smoothly functioning regional maritime order in this critical area. Yet this body of water, blessed with so many valuable resources and crisscrossed by a network of vital sea-lanes, has become the home to some of the most intractable territorial disputes in Asia and a stage for intensifying great power strategic competition. The longstanding territorial and maritime disputes simmering in the South China Sea and the machinations of great powers have been slowing down the momentum for regional cooperation and frustrating attempts to forge a robust and mutually beneficial security architecture. There is also another troubling dimension of very great significance. While the tempo of regional cooperation has slackened, the rate at which the South China Sea marine environment is deteriorating has accelerated. Forty percent of the South China Sea’s fish stocks have already been exhausted and, according to the United Nations Food and Agriculture Organization, most fish resources in the western part of the South China Sea have been exploited or overexploited.7 Meanwhile, 70 percent of the South China Sea’s coral reefs are reported to be in poor or only fair condition.8 Put simply, while the challenges to the South China Sea marine environment are growing, the capacity of regional mechanisms to effectively address those challenges has been undermined or severely constrained.
Stefan E. Weishaar and Ruohong Chen
Market-based instruments such as emissions trading systems put a price on carbon emissions as a way of addressing climate change. Increasing production costs have led to fears of carbon leakage and have generated increased interest in WTO law, in particular in the area of border tax adjustments and subsidies. Research in the area of carbon labels was more in vogue several years ago, but owing to the recent developments in WTO case law regarding Technical Barriers to Trade (TBT), and in light of the proliferation of Emissions Trading Systems around the globe, it is high time to re-examine carbon labels and how they are to be assessed from a law and economics perspective. This chapter explores the legal risks and regulatory opportunities of carbon labels under WTO law, and whether WTO law follows law and economic insights.
Roy A. Partain and Michael G. Faure
China has announced plans to reduce its greenhouse gas emissions and part of that plan is to develop carbon capture and storage (CCS) facilities. This chapter examines the regulatory challenges facing China as it undertakes this plan, and provides a menu of robust options for policy makers. In pursuit of this plan, China faces two material challenges in implementing its CCS strategy. The first is a lack of suitable onshore sites in the southern areas close to the industrial centers of Hong Kong, Shenzhen, and Shanghai. Their local geography and geology favors the use of offshore CCS; there are large suitable basins off the shore of most of southeastern China. Thus China needs to consider the inclusion of offshore CCS options. Second, China has announced its intent to leverage the finance options afforded under the Clean Development Mechanism (CDM) of the Kyoto Protocol. CCS, and offshore CCS, are permissible technologies allowed under the CDM, but there are regulatory requirements spelt out in Decision 10/CMP.7, which would need to be satisfied in advance to qualify an offshore CCS project for CDM-based support. Thus China needs to be able to rapidly progress its regulatory framework addressing CCS operations. This chapter explores the efficient pathways available to Chinese policy makers to rapidly develop a regulatory approach that would satisfy the regulatory requirements of Decision 10/CMP.7, whilst providing options to best match the regulatory and governing institutions of China. The chapter explores the literature of law and economics on regulatory theory to explain when certain options might be robust and when other options might be robust.
Binwei Gui, Michael G. Faure and Guangdong Xu
In this chapter we test the applicability of the environmental Kuznets curve (EKC) to China and find that, at least for certain pollution indicators such as industrial waste gas and SO2, there is indeed an inverted U-shaped trend that conforms to the prediction of the EKC. In addition, we explore the role of institutions in shaping the connection between income and pollution in China, and find that institutional variables to a large extent account for the heterogeneity in EKC patterns in China’s different regions. Finally, we examine the channels through which institutions may influence pollution control and environmental quality, and find that institutional indicators affect the pollution level through the operational outcomes of pollution abatement measures rather than by affecting structural transformation or the volume of pollution abatement facilities.
This chapter reviews the empirical revolution in law and economics. Its growing reliance on natural or quasi-experimental research designs has increased the credibility and usefulness of scholarly work in this discipline. This evolution also offers great possibilities for China to overcome methodological deficiencies of law and economics research by drawing upon its well-functioning bureaucracy, large population and numerous jurisdictional units. By basing its regulatory reform on randomized field experiments, China is uniquely suited to systematically test its regulations and policies and provides important and robust lessons for other countries and jurisdictional units.
This chapter discusses one of the main areas of EU competition law: State aid. Like other areas of EU competition law, such as abuse of dominance and merger control, there is a clear shift towards a ‘more economic approach’ and a stronger focus on efficiency. However, this stronger focus on efficiency with regard to a politically sensitive area such as State aid is not self-evident, and also raises the question why other jurisdictions do not have a similar control over market intervention by States (US) or provinces (China). It also raises the question whether controlling the efficiency of government spending should be a task of the EU rather than Member States. The aim of this chapter is therefore to critically assess the changing goals of EU State aid policy, from market integration and equity to efficiency and fiscal discipline. Possible implications for China are also discussed.
In this chapter we look at the regulation of the commercial banking sector in China, which has been heavily relied on to meet the needs of domestic firms. Due to significant government ownership of banks, the role of the market is still rather limited as far as domestic banking is concerned. Against the background of a recent attempt of the central government to liberalize its banking sector, we analyse and propose a systematic reform plan to solve the incompatibility between the current regulatory framework and ‘normal’ business practices. First, the comprehensive management of commercial banks raises new challenges and no longer fits with the separate regulation of different financial sectors. In addition, there are significant conflicts between market incentives and national industrial policy when commercial banks extend their loans to companies with a high share of state ownership. Public regulators often make business decisions for commercial banks, and this should be restrained. Finally, the implicit governmental guarantee for deposits in banks generates a moral hazard problem for domestic banks. We recommend that commercial deposit insurance should be established.