Professor Donald C. Clarke testified before the US-China Economic and Security Review Commission at the "Rule by Law: China’s Increasingly Global Legal Reach” hearing. The hearing examined how the Chinese Communist Party (CCP) views law and its ambitions to promote those views internationally, uses case studies to assess China's subversion of international laws and norms and violation of its treaty obligations and the consequences in various domains of international law, and considers how the U.S. court system treats the interpretation of Chinese law and enforcement of Chinese judgements, as well as the Chinese court systems attempts to influence and prevent parallel litigation in other jurisdictions.
In response to the CCP and foreign legal systems, Professor Clarke said this in his testimony:
"My experiences as an expert witness surprised me. If you were to read the mainstream serious media—the New York Times, the Washington Post, the Wall Street Journal, the Financial Times—you would get a single consistent message about China and the Chinese legal system: it is an authoritarian dictatorship, judges do as they are told if they receive instructions from political superiors, and there is no meaningful judicial independence. These characterizations could certainly be more nuanced, but they are not fundamentally wrong. Yet in a surprising number of cases, I found that federal and state judges, who presumably read the mainstream media, did not seem to be getting the message. I found that their default presumption was that China was more or less like Canada, and that it was up to the party arguing that it wasn’t to prove their point. And judges set the bar for that proof very high."
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"The danger of accumulating precedents is real. Judges are not well equipped to figure out foreign legal systems, particularly one as opaque as China’s. This strain on judicial capacity leads judges to rely on holdings or even dicta in prior opinions, as courts want to see what other courts have done in apparently similar cases. This is particularly true in the China cases, with briefs and expert declarations amassing dozens of lines of string citations that seem never to be examined closely. The problem here is that unless one reads the cases very closely, it is impossible to know if a case really is similar, and whether the previous court’s judgment deserves respect as a product of an adversarial process."
Watch more of his testimony here, or read his full testimony here.