By Moritz Rudolf
In official Chinese discourse, “foreign-related rule of law” (FRROL) [????] plays a crucial role in achieving the Communist Party’s Second Centenary Goal of “building China into a great modern socialist country in all respects and to advance the rejuvenation of the Chinese nation on all fronts through a Chinese path to modernization” by 2049. Yet FRROL is for the most part ignored outside of the PRC. This is a mistake. Understanding this concept is essential to grasping the fine-tuning of China’s global outreach.
In light of the Politburo’s November 27, 2023 group study session on FRROL, this post traces the evolving official framing of the concept. It also introduces and critically analyzes the recommendations for advancing FRROL that Prof. Huang Huikang [???], the most prominent authority on the subject within the PRC, likely shared with Chinese leaders at the study session. This post ends by assessing the outlook of the concept.
- What Is “Foreign-Related Rule of Law”?
- How Has the Chinese Leadership’s Framing of FRROL Evolved
- How to Advance FRROL?
o 1. Enacting More Foreign-Related Legislation
o 2. Improving the Business Environment for Foreign Investment
o 3. Strengthening the Legal Basis of the Belt and Road Initiative
o 4. Clarifying the Status of Treaties in Domestic Law
o 5. Expanding the Exterritorial Application of Chinese Law
What Is “Foreign-Related Rule of Law”?
FRROL may be viewed as a bridge between China’s “domestic rule of law” [????] and the “international rule of law” [????]. (It is important to note that, given the PRC’s Sino-Marxist approach to the law, “??” primarily carries the notion of “rules-based governance” rather than “rule of law” as understood in Western legal systems.) Prof. Huang defines FRROL as “the aggregate of the philosophies, principles, systems, mechanisms, and rules that regulate foreign-related legal relationships,” with components concerning foreign-related legislation, law enforcement, judicial administration, and legal services, as well as China-foreign judicial cooperation (p. 45).1 He sees FRROL as an “indispensable” part of China’s “domestic [or national] rule of law,” which stands alongside the “international rule of law” (p. 46). FRROL catalyzes the development of both by strengthening China’s domestic governance and connecting the Chinese legal system to the international one.
In official Chinese discourse, FRROL is viewed as a core component of “law-based governance” [????]. Under the Xi Jinping Thought on the Rule of Law, which expounds on the why and the how of law-based governance, the law primarily serves as a tool to achieve the Party’s development goals. Xi’s Thought on the Rule of Law has been boiled down to eleven key tasks—the so-called “11 Upholds” [?????]—which, while prioritizing the domestic legal environment, also include promoting FRROL.
At the 20th Party Congress, Xi announced that, after having completed the First Centenary Goal in 2021 (“building a moderately prosperous society in all respects”), the Party’s priorities now lie in achieving the Second Centenary Goal. And it is the Party’s assessment that its “strategy of national rejuvenation” takes place amid—and therefore must take account of—“global changes of a magnitude not seen in a century.” The FRROL project is critical to this endeavor.
How Has the Chinese Leadership’s Framing of FRROL Evolved
Given the Party’s instrumentalist approach to the law and the shifts in the domestic and international environments, FRROL’s function is highly adaptable. Depending on the domestic and external circumstances, the Party may shift FRROL’s emphasis and function, employing it as a sword, a shield, or an accelerator of development. The key determining factors appear to be the state of U.S.-China relations and the PRC’s domestic economic situation.
Xi Jinping focused on the sword and shield functions of the “rule of law” when speaking at the first meeting of the Central Commission for Comprehensive Law-Based Governance (Commission) in August 2018, months before the term “FRROL” was coined. He remarked that, “in external struggles [????], we must take up legal arms, take over the commanding heights of the rule of law, and dare to say no to saboteurs and disruptors.”
The first official use of “FRROL” dates to February 2019, when Xi chaired the Commission’s second meeting. “The rule of law is indispensable for reform, development, and stability,” said Xi this time, underlining the law’s role in promoting development.
On November 16, 2020, when Xi first outlined the key components of his Thought on the Rule of Law at the Central Conference on Work Related to Comprehensive Law-Based Governance, he again emphasized the role of the rule of law as an accelerator of development, characterizing it as an important part of the PRC’s “core competitiveness.” He also called for advancing FRROL efforts to “better safeguard national sovereignty, security, and development interests”—stressing FRROL’s sword and shield function as well. In particular, Xi underscored the need to—
- expedite the establishment of a comprehensive system of foreign-related laws and regulations;
- enhance the efficiency of foreign-related law enforcement and judicial processes;
- encourage Chinese enterprises and citizens to abide by local laws, regulations, and customs when they go global, and to use the law to protect their rights; and
- nurture “world-class” arbitral institutions and law firms.
A year later, Xi Jinping used a more assertive framing of FRROL at the 35th group study session of the 19th Politburo in December 2021. He emphasized the project’s sword and shield functions, stressing the need to wield “legal tools in international struggles,” with little reference to its role as an accelerator of development. This may be explained by the deteriorating U.S.-China relations at the time. As priority tasks, he identified—
- strengthening foreign-related legislation;
- improving legislation to counter sanctions, interference, and “long-arm jurisdiction”;
- developing a legal system on the extraterritorial application of Chinese law;
- expanding bi- and multilateral judicial and law enforcement cooperation;
- extending the “security chain” for safeguarding China’s overseas interests; and
- cultivating FRROL talents.
Xi’s speech at the Politburo’s most recent study session on November 27 provided the most comprehensive account of the Chinese leadership’s priorities with respect to FRROL. Notably, Xi framed FRROL, to a large extent, as a tool to improve the domestic business environment and opening-up. He underlined that the expansion of “high-level opening up” should “go along with” FRROL’s development. This renewed emphasis on utilizing FRROL as a development accelerator corresponds with a more moderate tone from Beijing about its role in the world, slightly improving U.S.-China relations, and Beijing’s attempts to stimulate economic growth. Nevertheless, FRROL’s functions as a sword and a shield for China’s development interests remain crucial. Once the international environment, China’s domestic circumstances, and Beijing’s interests change, FRROL’s primary function is likely to change once again.
How to Advance FRROL?
On November 27, 2023, Prof. Huang Huikang provided the key input to the group study session. A distinguished international lawyer, Prof. Huang has been a member of the U.N. International Law Commission since 2011. He also served as a diplomat and now heads the Ministry of Foreign Affairs’ Advisory Committee on International Law. Huang has published and spoken extensively on FRROL. Notably, in February 2022, he gave a lecture to the NPC Standing Committee (NPCSC) on “understanding and advancing the development of FRROL from a strategic height” [????????????????]. His work on the subject is therefore crucial to understanding where China is heading on FRROL.
Since Prof. Huang’s input on November 27 has not been disclosed, his lecture to the NPCSC— which was published in an academic journal with the “necessary additions and deletions”2 in late 2022— remains the best indicator of the suggestions he put forward at the Politburo study session. In the 2022 article, Huang outlined the following five priority areas and provided a comprehensive set of recommendations for the future development of FRROL.
1. Enacting More Foreign-Related Legislation
Echoing official reform initiatives, Huang stressed the need to first and foremost “speed up the enactment and refinement of urgently needed foreign-related legislation and to form a systematic and complete system of foreign-related laws and regulations as soon as possible” (p. 48). He then laid out the following detailed legislative proposals (id.)3:
- In the field of foreign affairs, I recommend formulating, as early as possible, fundamental or specialized laws such as foreign relations law, law on the application of treaties, foreign state immunity law, basic law of the sea, anti-interference law, anti–foreign corruption law, foreign agents law; as well as establishing a legal system on foreign aid with Chinese characteristics, and improving laws and regulations on the services for and management of foreigners;
- In field of civil and commercial law, I recommend formulating a code of private international law to build a complete system of jurisdiction, application of law, and judicial assistance in foreign-related civil and commercial cases;
- In the field of criminal law, I recommend amending the Criminal Law to add a separate part or chapter/section on foreign-related matters and improve the provisions on the Criminal Law’s extraterritorial application; prescribing the procedures for foreign-related criminal proceedings in a separate chapter in the Criminal Procedure Law; and improving the International Criminal Justice Assistance Law;
- In the field of administrative law, I recommend amending the laws and regulations in such areas as administrative licensing, administrative penalties, taxation, environmental protection, cybersecurity, and customs to add corresponding provisions for their extraterritorial application; improving the procedures for foreign-related administrative litigation; and formulating an international mutual administrative assistance law; and
- In the field of economic law, I recommend amending the territoriality provisions in such laws as the Company Law, Enterprise Bankruptcy Law, [Commercial] Banks Law, Insurance Law, [Securities Investment] Funds Law, Anti-Monopoly Law, and Anti–Unfair Competition Law and adding in them foreign-related chapters to provide a clear legal basis for the extraterritorial application of domestic laws.
Recent Chinese legislation tracks Huang’s proposals. For instance, the NPC has since enacted several laws on his list, including the Foreign Relations Law (June 2023), Foreign State Immunity Law (September 2023), and amendments to Civil Procedure Law provisions on transnational civil litigation (same). Of note, the Foreign Relations Law codified initiatives to advance FRROL, to strengthen legislation in foreign-related fields, and to strengthen the development of FRROL systems. Several other projects proposed by Huang also appear on the NPC’s legislative agenda for the next five years. In addition, the Supreme People’s Court (SPC) has recently issued a new judicial interpretation of the Law on the Application of Law to Foreign-Related Civil Relations, focusing on the ascertainment of foreign law in civil and commercial litigation.
2. Improving the Business Environment for Foreign Investment
Prof. Huang’s 2022 article invoked Xi’s statement that “the rule of law provides the best business environment” [??????????], stressing that constructing FRROL is of key importance in this regard (p. 48). Huang emphasized that the rule of law is essential to an open economic system, that domestic and foreign market participants should be treated equally, that China should establish “open and transparent” regulatory rules and standards (p. 49).
He also listed the following priority tasks (id.):
- [On foreign investments in China, I recommend] improving the legal systems on foreign trade and investment; improving the “pre-establishment national treatment plus negative list” management system for foreign investment; improving institutions such as national-security review of foreign investment, antitrust review, national technical security list management, and the Unreliable Entity List; and strengthening protections for the lawful rights and interests of foreign investors . . . ;
- [On China’s outbound investments, I recommend] promulgating laws and regulations on outbound investment; streamlining the system for managing outbound investment; . . . providing legal protections for Chinese enterprises and citizens in “going global”; and protecting the legitimate rights and interests of Chinese citizens and entities overseas;
- [On international commerce, I recommend] improving international commercial dispute resolution mechanisms, enhancing the attractiveness and
