DEALING WITH CULTURAL CONFLICTS WITH CONTEMPORARY CHINA: A PLURALISTIC CONFLICT-OF-LAWS APPROACH

Abstract

The global community has witnessed the rise of contemporary China as a new powerful economic presence in the world order. China has surpassed the U.S. as the world’s top destination for new Foreign Direct Investment since 2020, and it continues to extend the geographical reach of its FDI outflows by fostering unprecedented global initiatives such as the “One Belt, One Road” project. Despite its significant contribution to the global economy, China’s socialist market economy model, which has unique Chinese characteristics, has raised considerable skepticism and concern in the international community. For instance, China has been criticized for disrupting the international order of fair competition due to its pervasive “business culture of bribery.” China’s African investment has also witnessed an escalation of local resistance against the Chinese way of production, which is allegedly characterized by abusive labor practices. As China’s business model plays an increasingly influential role in the global economy, its distinct Chinese characteristics have also aggravated the misunderstandings and conflicts between China and the rest of the world. This dissertation seeks to understand the challenges that the Chinese business model presents to the global community from the perspective of cultural conflicts. By emphasizing the “Chinese characteristics” in its socialist market economy, the Chinese government has reminded us that culture matters—The rest of the world cannot effectively deal with conflicts with China and Chinese companies without a sophisticated understanding of their values and orientations. This dissertation studies cultural conflicts through two hypothetical cases. The first one, which is the major case study in this research, is concerned with the clash between the Chinese business culture of gift giving and the anti-bribery provisions prescribed by the U.S. Foreign Corrupt Practices Act. The second one is concerned with the clash of labor cultures between China and Zambia over working hours. Taken together, these two cases look at conflicts between Chinese and foreign business cultures in two dimensions: China as a global FDI destination and China’s economic presence in overseas markets. The approach that holds the greatest promise for revealing and dealing with the complexities of cultural conflicts, as I argue, is a pluralistic conflict-of-laws approach. Conflict of laws (conflicts), traditionally viewed as a branch of law aiming to solve transnational legal disputes between private persons or entities, offers a series of doctrines and technical steps to determine whether foreign or forum law should be applied to a specific case. This dissertation aims to show how the highly technical field of conflict of laws, when imagined and applied as an intellectual framework, offers new approaches to understanding, evaluating, and ultimately resolving cultural conflicts in international business. To this end, I draw insights from anthropological theories of legal pluralism and adopt a pluralistic approach to the conflicts analysis. This approach departs from the traditional conflicts theories and doctrines which only deal with state-made laws, assuming that choice-of-law analyses could be applied to those unofficial cultural norms that impact business decisions. By applying this pluralistic conflict-of-laws approach to the analysis of the two hypothetical cases, I demonstrate how this approach brings cultural conflicts between China and the rest of the world into legally defensible ends in specific cases, and how it captures crucial insight of modern cultural anthropology—the insight that culture is dynamic, internally contested, and contextual—in this process.