currently there exist no such comprehensive legal structure.
23 It is also different from
FTAs, where rights and obligations of participants are clearly defined and enforced
through a dispute settlement mechanism.
24 In the case of FTA the legal framework is
established first. The BRI has not started from the articulation of a legal framework.
The absence of a comprehensive, concrete legal framework means that there is
flexibility in terms of legal rules and that the framework is a work in progress
which will evolve on the basis of need.
2.2 The BRI Is Based on Flexibility
It has been argued that the BRI is an attempt by China to sustain its economic
growth
25 by exploring new forms of international economic cooperation with new
partners. During the first three decades of economic reform, China achieved rapid
economic growth, benefiting from a dramatic expansion of exports to and foreign
direct investment from the developed economies. With growth moderating continuously over the past five years, China’s development pattern appears to have reached
a bottleneck. The BRI enables China to look westward for new economic opportunities and support for economic growth for the next phase of development and
reform.
26 In a nutshell, the purpose of the BRI is to solicit new business for China.
China is currently in the state of re-designing its economy and is experimenting with
new business ideas in a controlled fashion. The absence of a concrete BRI framework allows its policymakers the flexibility to be responsive in terms of strategy and
business needs in the short-term. Indeed, such law-making approach is not new in
the context of the Chinese legal system. Even historically, there has always been a
visibly positive attitude towards short-term flexibility,
27 over certainty and predictability. The Chinese view law as a part of the superstructure of society and when
economic relations change, law should change as well.
28
23 The scope of the BRI may be found from the Vision and Actions document, note 12 above.
Central, regional and local level documents in the form of laws, regulations, notices, circulars and
communications form a part of the underlying framework of the BRI.
24 For comparison between the BRI and FTA refer to Chaisse and Matushita (2018), pp. 163–186.
The BRI is contrasted with TPP on the basis that the former is not based on a formal treaty
arrangement and their organizing principles and modes of connectivity are different. The BRI is
inspired by the ancient silk routes.
25 Cai, Understanding China’s Belt and Road Initiative, 22 March 2017, https://www.lowyinstitute.
org/publications/understanding-belt-and-road-initiative, accessed 18 April 2019.
26 Mustafaga (2015); Summers (2016), pp. 1628–1643; Wen et al. (2017), pp. 36–45. It has also
been argued that the BRI is also to manage China’ excess production capacity.
27 It has been highlighted that flexibility yields uncertainty and values like certainty and legal
security are much lauded in the context of rule of law. Refer to Dickinson (2007), pp. 53–88;
Pound (1922), p. 71.
28 Xingzhong (1989), p. 29. See also Hsia and Johnson (1987), p. 10 who have stated—“Socialist
law must develop and change in accordance with the development and change of economic,
Maritime Rules for Rail Carriage: China’s Initiative to. . .
45
23 It is also different from
FTAs, where rights and obligations of participants are clearly defined and enforced
through a dispute settlement mechanism.
24 In the case of FTA the legal framework is
established first. The BRI has not started from the articulation of a legal framework.
The absence of a comprehensive, concrete legal framework means that there is
flexibility in terms of legal rules and that the framework is a work in progress
which will evolve on the basis of need.
2.2 The BRI Is Based on Flexibility
It has been argued that the BRI is an attempt by China to sustain its economic
growth
25 by exploring new forms of international economic cooperation with new
partners. During the first three decades of economic reform, China achieved rapid
economic growth, benefiting from a dramatic expansion of exports to and foreign
direct investment from the developed economies. With growth moderating continuously over the past five years, China’s development pattern appears to have reached
a bottleneck. The BRI enables China to look westward for new economic opportunities and support for economic growth for the next phase of development and
reform.
26 In a nutshell, the purpose of the BRI is to solicit new business for China.
China is currently in the state of re-designing its economy and is experimenting with
new business ideas in a controlled fashion. The absence of a concrete BRI framework allows its policymakers the flexibility to be responsive in terms of strategy and
business needs in the short-term. Indeed, such law-making approach is not new in
the context of the Chinese legal system. Even historically, there has always been a
visibly positive attitude towards short-term flexibility,
27 over certainty and predictability. The Chinese view law as a part of the superstructure of society and when
economic relations change, law should change as well.
28
23 The scope of the BRI may be found from the Vision and Actions document, note 12 above.
Central, regional and local level documents in the form of laws, regulations, notices, circulars and
communications form a part of the underlying framework of the BRI.
24 For comparison between the BRI and FTA refer to Chaisse and Matushita (2018), pp. 163–186.
The BRI is contrasted with TPP on the basis that the former is not based on a formal treaty
arrangement and their organizing principles and modes of connectivity are different. The BRI is
inspired by the ancient silk routes.
25 Cai, Understanding China’s Belt and Road Initiative, 22 March 2017, https://www.lowyinstitute.
org/publications/understanding-belt-and-road-initiative, accessed 18 April 2019.
26 Mustafaga (2015); Summers (2016), pp. 1628–1643; Wen et al. (2017), pp. 36–45. It has also
been argued that the BRI is also to manage China’ excess production capacity.
27 It has been highlighted that flexibility yields uncertainty and values like certainty and legal
security are much lauded in the context of rule of law. Refer to Dickinson (2007), pp. 53–88;
Pound (1922), p. 71.
28 Xingzhong (1989), p. 29. See also Hsia and Johnson (1987), p. 10 who have stated—“Socialist
law must develop and change in accordance with the development and change of economic,
Maritime Rules for Rail Carriage: China’s Initiative to. . .
45