Pitman Benjamin Potter

Professor

Relevant Degree Programs

 

Graduate Student Supervision

Doctoral Student Supervision (Jan 2008 - May 2019)
Arbitration and the public policy exception in Mexico : local exceptions to global standards (2018)

This dissertation examines the tension between globalization and local legal contexts by reference to the interpretation in Mexico of the public policy exception in the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Globalization has promoted convergence of legal norms and institutions that materialize in international conventions and organizations to facilitate trade. This has forced states to adopt global standards and reform their legal systems to effectively participate in the global trade arena. However, the effects of these dynamics on local legal systems are often disregarded or not considered. This dissertation demonstrates that the interpretation and implementation in Mexico of the public policy exception under the New York Convention reflect the impact of local legal arrangements on globalized standards. Additionally, it reveals that a pluralistic approach to this exception advances a more inclusive perspective for the implementation of globalized standards while at the same time offering certainty. A pluralistic approach to the public policy exception creates a space to acknowledge and honor the diversity of legal systems coexisting globally and legitimizes local approaches to public policy. Accordingly, local legal systems do not need to import foreign definitions but can define their interpretation of public policy from within by using their local elements.Using historical, doctrinal, documentary, and qualitative analyses, this study examines the development of international standards, by reference to the public policy exception, and Mexico as an example of a local legal context. For examining local contexts, this study suggests the use of four factors –language, legal tradition, legal context, and legal culture– to understand the local approach to public policy in combination with relevant local elements. In the case of Mexico, the relevant elements examined are legislation, scholarship, court precedents, cases, and the perspective of local legal actors. These factors and elements are used to suggest components to establish a guideline for the interpretation and implementation of the public policy exception in Mexico.

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Autonomy of Chinese judges : dynamics of people's courts, the CCP and the public in contemporary judicial reform (2017)

This dissertation is the outcome of author’s observations and empirical research on judicial reform in China from the 1980s to 2015. Focusing on judicial decision making process of judges in Chinese courts, it attempts to answer the following questions: How do the Chinese Communist Party (CCP), the public, and the internal administrative power—three factors essential to Chinese judges’ judicial decision making process— influence the adjudication of individual cases in various periods of judicial reform? How do the increasingly professionalized judges respond to these institutionalized challenges? Moreover, how do the dynamics generated from the interactions among courts, the CCP, and the public shape the norms and institutional building of judges and courts, and affect judicial reform policies in China? This dissertation adopts historical analysis, documentary analysis, and qualitative analysis to seek answers to these questions. It finds that, first, direct influence of the CCP and the public to the judicial behaviours of individual judges is less evident than indirect influence through the administrative oversight in courts’ internal bureaucracy. Second, the relationships between courts, the CCP, and the public are more dynamic in fragmented China. The norms of Chinese judges’ autonomy and institutional changes in courts are constantly shaped by the expectations and compromise of powers of the CCP, the public, and courts. Finally, building independent and professional judges in dependent courts without insulation from the external influences is not achievable by current Chinese judicial reform agenda.

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Governing China’s domestic carbon market (2017)

In March 2011, the Chinese government unveiled a plan to establish a domestic cap-and-trade carbon market. In line with this policy, the NDRC designated five cities (Beijing, Chongqing, Shanghai, Tianjin and Shenzhen) and two provinces (Guangdong and Hubei) as pilot regions for emissions trading. Collectively accounting for 27.4% of China’s national GDP and 18.4% of its population, the seven pilot cap-and-trade markets are already in operation and are in the process of testing a potential future nationwide cap-and-trade market. This thesis examines the Chinese government’s decision to adopt domestic cap-and-trade as the process through which to lead China towards its goal of regulating GHG emissions. It explores the challenges that lie ahead and the adjustments that would be needed for the successful governance of the nascent cap-and-trade markets. Among the complex array of issues related to developing a cap-and-trade system, this thesis focuses primarily on the regulatory and oversight regimes, and employs an analytical framework based on the “good governance” criteria of accountability, cost-effectiveness, rule of law, transparency, and participation. The thesis proceeds as follows: The first chapter is the Introduction. It provides background with respect to the study, a review of the literature, and defines the primary research questions and methodology. Chapter Two describes the different types of carbon markets. Chapter Three investigates the evolution of China’s climate policy and the reason China adopts domestic carbon trading. Chapter Four provides a preliminary assessment of the current implementation policies of the cap-and-trade pilots, suggesting that major improvements and developments are needed to ensure the success of governing the carbon markets. Chapter Five analyzes the critical issues and potential obstacles involved in governing China’s cap-and-trade market by drawing on lessons from international practices as well as previous environmental regulatory experiments that have been implemented in China over the past 20 years. Chapter Six discusses the implications of governing China’s carbon market for China’s environmental protection practice. The last chapter presents some conclusions.

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Legal culture of migrant construction workers in China (2017)

In the past more than three decades, migrant workers have become an increasingly significant force in promoting social and legal changes in China. As such, their legal culture is worthy of studying for many reasons. This study focuses on the migrant construction workers’ values, ideas, opinions, and attitudes with regard to the general legal system and legal reform in China, especially with respect to the three important aspects of employment relations, including labour contracts, labour dispute resolution, and trade unions, in the context of market economic reform and globalization. Based on an analysis of primary data collected from fieldwork undertaken in Hubei Province, a less developed province in central China, this study explores that imported Western legal norms, such as rule of law, rights, contract, litigation, trade unions, etc., so far, have limited influence on the popular legal culture of Chinese migrant workers, at least in the construction industry; while the traditional local values in China, such as family ethic, morality, and harmony, still play a dominant role in their daily lives.

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Impartial resolution of disputes in China : an intellectual property perspective (2016)

Impartial resolution of disputes puts an end to disputes, minding members of society to respect the rule of law and good social order. Civil disputes occur quite naturally between two or more persons. Such disputes can be resolved through third persons, be they judges, arbitrators or mediators. Independence and impartiality of such third persons are the corner stones for the dispute resolution system in modern society. The concept of independence and impartiality may, however, vary in different countries.The dissertation examines whether judicial impartiality is different in the current “independent trial” mode in China. Given differences in culture, legal theory and philosophy, judicial impartiality has different dimensions in countries with different systems of law, whether common law or civil law. The study is conducted through the lens of civil cases involving intellectual property rights (IPRs). Criminal cases are not part of the study. Through comparative case study and media review, the dissertation concludes that differences lie in the standards for impartiality in the corrective justice system in China. Drawing on Canadian case law, traditional philosophy and IPR case studies in China, the dissertation explores the building blocks of judicial impartiality and identifies four standards for judicial impartiality: avoiding conflict of interests, procedural due process, substantive justice and consensus-based impartiality, in addition to the “time” element of impartiality. Despite the differences, observable similarities in the dimensions of judicial impartiality exist in the dispute resolution processes.Based on the findings, I argue that impartiality as well as IPR protection should be raised to the Constitutional level in China. International high standards for impartiality ought to be adopted, while Confucian teachings can be gradually upgraded to fit with equality-based justice administration in the on-going judicial reform in China. With the study of the legal reasoning of judgments in IPR cases, I offer perspectives to illustrate the need to uphold judicial impartiality as a system requirement. I contribute to the contextualized interpretation of judicial independence for the rule of law in China and contribute to the standard building for judicial impartiality in connection with administration of justice in China.

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Chinese socialism : an iterative perspective of the legal framework of market economies of the People's Republic of China (2012)

This dissertation suggests that “socialism with Chinese characteristics” or “Chinese socialism” is an evolving and adaptable, rather than transitory and conflicting, ideology. I emphasize the iterative and evolutional characteristics of the ideology, which occurs not only between economic and legal institutions, but also between social and political ones. I also stress the effect of global institution in this iterative evolution. The iterative evolution denotes an interplay of ideological and practical aspects of Chinese socialism and represents a sequential institutional development of modern Chinese reforms. Among them, two institutional changes are noteworthy, namely property rights and market economy reforms. Using capital and land markets as examples, I show that ‘market’, as an institution that aims to delineate property rights, has flourished ongoing developments of property rights of capital and land markets, albeit in different manners respectively, in China. The case study of capital and land market demonstrates practical aspects of Chinese reforms including pragmatic, self-improvement, open, stability, and efficacy ideas. I further argue that property rights reform is an impetus to the rule of law, whereas efficacy and stability mandates are conducive to open, yet controlled, society. This dissertation is otherwise devoted to providing a normative view on the long run evolution of Chinese socialism. I conclude that while Chinese reform appears lacking in a grand design that can articulate all of its content at the outset, an open policy and the interplay of socialism and local practicality will in the long run evolve towards a rule of law based open and controlled society in the PRC. Further, as Chinese pragmatics, open culture, self improvement, stability, and efficacy are external mandates, which need be asserted by political leaders and policy makers of the PRC, political instability, ruling legitimacy, social instability, human right and civil liberty conflicts are all obstacles to the continuity and sustainability of the contemporary reforms. This dissertation suggests further study of the iterative process to address parallel developments of institutional reforms in political, social and legal areas.

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Redefining and regulating public contracting in China : comparative and international perspectives (2010)

Government plays a central and critical role in a country’s social and economic development and in the management of that nation’s affairs. Government procurement laws regulate behaviors of government officials in their business activities. The major research question of this thesis is to explore, in an authoritarian state like China, whether the country’s public contracting law and its implementation can be improved to a high level of transparency which in turn achieves the goal of good governance of the government without fundamental changes to the country’s political and judicial system. Or, in other words, the Western tradition of transparency and rule of law, which was rooted in the value of liberal democracy, can be adapted to local norms of governance in China. Moreover, since the nature of both buying and selling by the government and SOEs are contracts between publicly funded entities and private sectors, by considering all of the commonalities between Public Procurement and Privatization Policy, the author redefines the “Public Contracting”, as a combination of Public Procurement and Privatization Policy (Government Selling), which includes all the business activities of the Government and SOEs, such as buying, selling, and leasing from or to the private sector.By comparing to procurement rules and practices mainly in Japan, but also in Hong Kong, it shows in this thesis the extent to which international procurement rules of transparency and rule of law are mediated in local context. The author concludes that the public contracting system in China might be partially improved to a higher level of transparency and rule of law without a fundamental change to the country’s political and judicial system by solutions such as instituting a unified review body to check, balance, review, and correct decisions and conducts of government officials in government purchasing and selling. However, without a fundamental political reform, some issues in government procurement, such as transparency and justification of planned expenses at the budgeting stage, cannot be addressed.

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Selective adaptation and legitimacy : public-private dynamics in China's TRIPS compliance (2009)

This dissertation examines China’s compliance with the WTO’s intellectual property regime –the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) –and its theoretical implications. The dissertation’s critical review of contemporary intellectual property philosophy at the beginning suggests that justifying intellectual property protection through Locke or Hegel’s property theories internalizes a theoretical paradox. While being recognized as self-sufficient private rights gives intellectual creations constitutional significance, it also traps the legal regime in an intrinsic dilemma of private-public confrontation. In contrast to WTO’s private-oriented perspective, China’s response to this private-public dynamics indicates a clear public interest orientation. This is evident in imperial China’s reliance on criminal and administrative but not civil protection for intellectual endeavors, in contemporary protection of Olympic Marks, and in the Ex Officio action system of enforcement in China’s TRIPS implementation. In addition, an empirical survey study suggests that China’s public-oriented cultural imperative shapes people’s ways of perceiving private rights from their social embedment, and further constructs people’s perception of intellectual property protection. Further jurisprudential analysis reveals that the self-sufficient ontology since the Enlightenment that constructed the modernity of law has shaped TRIPS’ self-sufficient private rights perspective. When private rights are made self-sufficient and the intellectual property regime becomes indifferent to public concerns and development, modern law becomes “self-evident” and legitimacy collapses into legality. This public-private orientation contrast between China and the WTO not only explains the “how” and the “why” of China’s TRIPS compliance, but also reveals a compliance paradox. While foreign pressure on China for establishing an omnipotent administration to protect private-rights-in-nature intellectual property is squaring a circle in vain, China’s effort to embrace the private rights oriented regime is cutting off its toes to fit into foreign shoes. The dissertation proposes a jurisprudential reconstruction building on a relational instead of self-sufficient ontology to restore international compliance to the process of constant “selective adaptation” and dynamic growth of legitimacy. During this process, the dynamics between international norms and local imperatives provides a driving force for law’s development, where “to be” meets with “ought to be,” through which international norms and local regimes evolve.

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Harmony ideology and dispute resolution : a legal ethnography of the Tibetan Diaspora in India (2008)

Communitarianism and harmony ideology have their proponents and critics, particularly as viewed through the lens of conciliation-based dispute resolution. Both features being prominent in the Tibetan Diaspora in India, I hypothesized that the strengths and weaknesses of these orientations could be assessed through the rationale behind the norms of social control operative in the community, and the efficiency and effectiveness of those norms in terms of voluntary compliance. I found that the informal Tibetan mechanisms for dispute resolution were effective and efficient in supporting Indian systems of law enforcement, while allowing a ritualistic affirmation of community. Contrary to proponents of legal centralism and court justice, I found that liberalist values underpinning litigative process were disruptive of social expectations, and had the potential to exacerbate rather than relieve social tensions. The harmony norms that predispose pro-social behavior within Tibetan settlements failed to protect the interests of community members, however, when the challenge came from local Indian groups operating on the basis of their own standards of particularistic allegiance. Legal ethnography best describes the methodology used for this research. Fieldwork drew on: 1) Interviews with twelve settlement officers whose mandate specifically includes mediation of disputes; 2) In-depth interviews with two disputants fighting cases before the Tibetan Supreme Justice Commission; and 3) Interviews with over 70 informants (including senior and mid-level exile government officials and settlement residents), together with archival material, to situate findings and verify interpretations. This research contributes a unique non-Western body of data in support of Law and Society scholars, such as Amitai Etzioni and Phillip Selznick, who have argued for devolution of law-like responsibilities to local levels where internalized norms are an everyday means of social control. It also argues against the pejorative interpretation of harmony ideology as depicted by legal centralists such as Laura Nader. By reframing harmony as a function of norm rationale, efficiency and effectiveness, the research offers new variables for assessing the costs and benefits of community. Finally, the Tibetan case studies provide an important comparative for cosmopolitan states that are debating how to accommodate diversity and legal pluralism.

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Master's Student Supervision (2010 - 2018)
Reexamining free, prior and informed consent ( FPIC ) inside Burma : a case study (2018)

Throughout history, indigenous peoples have figured among those groups who have been most systematically denied and violated of their right to give or withhold consent ( FPIC ) for resource development, most notably when there are large-scale development projects. This thesis examines the principle of FPIC in Burma, the barriers and opportunities concerning its application and implementation, how it may be interpreted in different situations or by different stakeholders, and the need why the need for new collaborative forms of governance. I posit my study on the notion, and theory by John Owen that it has been clear for some time that the market system is unable to account for and regulate the kind of dynamic social and human rights risk associated with large-scale development projects, and that new deliberate efforts are required to ensure that social risk is identified, understood and responded to by those parties involved in the natural resource sector. I show in my study, although the Government of Burma's obligations with regard to consultation and FPIC are minimal at best in national law and policy, and the debate regarding the legal status of FPIC under international law continues unabated, I argue how indigenous communities, the Government of Burma and investors might benefit by applying ' the spirit of FPIC ' as part of their CSR policy. Additionally, I show in the case of Burma's judicial system a legal and compliance driven definition of FPIC alone cannot resolve indigenous peoples' multiple claims, and assert that legal mobilization is only one aspect of indigenous peoples broader political strategies. I explore the current socio-political context in Burma and argue that evolving informal protest movement, complaint, non-compliance and negotiation must remain part of the solution, and bottom-up policy option to advancing land and resource rights in natural resource-affected communities in the context of operationalizing FPIC in response to the violent dispossession by transnational extractive corporations in Burma.

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Dealing with the dragon : what safeguards are required to make an extradition treaty between Canada and the People's Republic of China conform to Canadian extradition law? (2016)

Canada does not have an extradition treaty with China. Concerns over the Government of China’s use of the death penalty and use of torture as well as the lack of procedural fairness in the Chinese criminal justice system present obstacles to the creation of an extradition treaty. Despite the problems with the Chinese legal system, Canada sees fit to trade extensively with China and continues to develop other treaty relationships with the Chinese Government. The Chinese Government wants extradition with Canada, in part to further its massive anti-corruption schemes including Operation Fox Hunt and Operation Skynet. This paper examines Canadian extradition law in the context of possible extradition from Canada to China. While not advocating for or against a Canada-China extradition treaty, the paper considers the current state of the Chinese criminal legal system relevant to extradition law and examines the primary problems and legal reforms undertaken by the Chinese Government to its Criminal Procedure Law and judiciary. From the perceived problems that would hinder or prevent extradition from Canada to China, safeguards are proposed to allow the Minister of Justice and reviewing courts the ability to respond to an extradition request from China on terms that do not offend Canadian principles of justice or the protections established by the Charter of Rights and Freedoms. These safeguards, which derive from diplomatic assurances, current extradition treaties and immigration law, are examined and set out in a proposed Canada-China extradition treaty that provides a framework from which to evaluate extradition between the countries.

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China toward Constitutionalism? Institutional development under the Socialist Rule of Law system (2015)

Building Constitutionalism in China is seemingly a constant topic worth exploring. However, attempts to adopt the current Western Mature Constitutional System, as a static standard for assessing constitutional development in China’s Context is quite prevalent. By reference to three respective institutions in China’s Socialist Rule of Law system: the Communist Party of China (CPC), National People’s Congress (NPC) and the People’s Courts (Courts), this thesis seeks to examine constitutional development in People’s Republic of China (PRC). This thesis also argues the Mature Constitutional model is unable to engage with the orthodoxy of China’s approach to constitutional development. This thesis first demonstrates why applying the standard of mature constitutionalism to assess constitutional development in China is problematic and renders inaccurate results. Thus a more suitable institutional approach has been raised to examine constitutional development in China. It subsequently discuss the evolution of CPC (ideologies, structure, operation) in post 1978 China in order to examine the Party’s role as both the determinant and product of China’s constitutional development. Then the thesis will discuss how the NPC, a traditional “rubberstamp”, has developed as the highest national legislature and constitutional supervisory organ. The courts in China, in particular, have taken the incremental approach to expand institutional authority by interacting with this highest political power holder and supporting the current constitutional order. This thesis makes an original contribution to both the discourse of China’s constitutional law and the studies on authoritarian constitutional development. The thesis has confirmed that institutional development in China’s particular authoritarian context (the socialist rule of law system) is possible. Development of this nature would be difficult to be appreciated by the Mature Constitutional Standard. Thus, an institutional approach based on a contextual analysis is more suitable for examining how the authoritarian system responds to the challenge of constitutionalism. However, the thesis has found that the future of applying the Mature Constitutional Model to China’s Socialist Rule of Law system is tentative and has predicted that China’s system would confront potential tension between democracy and constitutional development in future.

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Convertible preferred stock : testing the legal framework of the U.S. venture capital model in China (2015)

Convertible preferred stock is a risk-mitigating security integral to the success of venture capital (VC) investment strategy in the United States (U.S.). Its function in protecting ownership rights and illiquid investment, as well as facilitating the sale of the portfolio company has attracted the attention of the People’s Republic of China (PRC or China) that has implemented its own convertible preferred stock provisions in search of similar gains. Importantly, the PRC lacks the institutional stronghold of the U.S. – stringent securities regulations and a stock market centered economy - which provides an optimal environment for convertible preferred stock. Despite this, VC analysts unidirectionally support the U.S. model as a template for the PRC without explaining the addition of the provisions as needed law in China’s VC systems. This thesis rethinks the ‘ivory tower’ approach of the U.S. VC model and addresses a missing link in the literature: the tension between what is borrowed from Western structures for the formation of convertible preferred stock and domestic PRC market needs. Through the consideration of law as an instrument of policy, I argue that the party-state’s incremental implementation of convertible preferred stock provisions reflects Western expressions of economic autonomy while also reflecting counteracting socialist goals of state supremacy. This tension provides academic insight into VC and securities laws previously unexplored by the literature, particularly valuable in light of the U.S. and PRC’s status as competing super economies in our modern world.

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Authoritarian resilience in China : an examination of elite politics in the post-reform era (2011)

With a membership of more than 73 million, the Chinese Communist Party (CCP) is the largest and possibly the most influential political party in the world. Since decades ago, Western academics have sought to understand the functions of the Party in an effort to predict the potential for democracy in China. Many had forecasted that with the growth of the Chinese middle class and the economy, democracy was surely the next step in China’s transformation. To date, such forecasts have been proven wrong. The continued existence of China’s one-party regime prompts the question of what makes such an authoritarian system so resilient?This thesis seeks to answer the question by employing an eclectic approach that examines both state-society relations and elite politics. It posits that authoritarian resilience in China is the result of the CCP’s ability to suppress grassroots mobilization as well as its ability to prevent a split among the party elites. By examining the leadership succession process, factionalism, and central leadership demographics—the argument is made that power-sharing and collective decision-making have now become the norms of elite politics in China. Such attributes pose an impediment for an elite-driven democratization process.

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