Opinion | The legal misunderstandings at the heart of the US-China trade war tensions

Washington needs to temper its unrealistic hopes that China can overhaul its legal system overnight, while Beijing must stop seeing all US legal action as top-down directives from Trump

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Published: 1:30am, 18 May 2019Updated: 7:08am, 18 May 2019

At the heart of the recent tensions between the United States and China lies a fundamental misunderstanding of each side’s legal system. Just last week, a collapse in trade negotiations stemmed from unrealistic US expectations that China would adapt its laws in line with negotiators’ demands.

China, meanwhile, sees individual US law enforcement action by federal agencies as part of a government-wide conspiracy targeting the country and responds accordingly with arbitrary countermeasures. Both sides expect that the other’s legal system has the ability to sort things out, as long as the leadership has the political will.

If the legal realm will serve the next frontier in which the two countries must contend with each other, officials from both sides would do well to appreciate the different characteristics of each country’s respective system.

The US has increasingly turned to unilateral legal action to address its concerns vis-à-vis China, whether on trade, security, commercial espionage, or otherwise. The tool of choice for the Office of the US Trade Representative and the Department of Commerce has been the statutory authority derived from decades-old pieces of legislation that enable the executive branch to address unfair trade practices on a variety of grounds.

The Department of Justice has woken up to the threat of commercial espionage by Chinese nationals and moved forward with a series of related indictments. In Congress, lawmakers have turned to bills such as the National Defence Authorization Act and Taiwan Travel Act to shape US policy on China.