China-African Trade Investment and the Exchange of Law
I.The Development of China-African Trade and Investment
China is the largest developing country in the world and Africa is the continent which encompasses the largest number of developing countries. Despite the vast distance between them, there is a long history of friendly exchange.The founding of the People's Republic of China and the independence of African countries ushered in a new era in China-African relationship due to the contributions made by the leaders and people from both sides. For over half a century, both sides have enjoyed close political ties and frequent exchange of high-level visits; people-to-people contacts, bilateral trade, and economic cooperation have witnessed rapid growth.
China has always advocated that China-African trade should be pursued under such principles as “equality and mutual benefit, pursuing practical results, adopting various ways and seeking common development” declared by the former Chinese Premier Zhao Ziyang during his visit to 11 African countries between December 1982 and January 1983.Though China-African trade started from a low base, it has been burgeoning spectacularly, especially in recent years, as a result of their complementary economies and concerted efforts on both sides. In 1950, the trade between them was only US$ 1.2 million. In 1980, it stood at US$1 billion but in 2000 it jumped to US$10 billion. Between 2002 and 2003, two-way trade climbed 50 percent to US$18.5 billion--the fastest growth China has seen with any geographical area. In 2006, the trade volume reached US$55.5 billion,which has made China Africa's third most important trading partner, behind the US and France.
Meanwhile, China is also vigorously promoting export by Africa to China and has taken various effective measures to balance bilateral trade. To date, China has granted most-favored-nation (MFN) trading status to 41 African countries and exempted 190 kinds of products from custom duties from the 28 least developed African countries. Such measures have produced the desired results. From January to October 2004, China had a trade deficit of US$1.16 billionfor the first time, with exports to Africa of US$10.98 billion and imports from Africa of US$12.14 billion.In 2005, the gross trade volume reached US$39.7 billion, including US$21.1 billion in imports from Africa, with a trade deficit of US$2.5 billion. In the trade volume of US$55.5 billion of 2006, exports to Africa are US$26.7 billion and imports from the region are US$28.8 billion.
With the rapid development of China-African trade, Chinese investment in Africa also is going smoothly. The Chinese government has put forward a series of effective measures to encourage well-established and reputable enterprises to invest in Africa. According to preliminary statistics, China's total investment in Africa reached US$6.27 billion by the end of 2005.China has launched over 800 non-financial investment projects in 49 African countries, covering manufacturing and processing, resource exploration, communications, agriculture, etc.Meanwhile, China has also taken active measures to encourage Africans to invest in China. So far, China has signed Bilateral Agreements on the Promotion and Protection of Investment with 28 African countries, and Agreements on the Avoidance of Double Taxation with 8 others. More African countries are encouraged to conclude with China such agreements to promote investment in both directions.More and more African enterprises or individuals have realized business opportunities in booming China, and they have made great profit from their investment or trade in China.
The Beijing Summit of the Forum on China-African Cooperation (FOCAC) held in 2006, the 50th anniversary of the inauguration of diplomatic ties between New China and Africa, will certainly bring more golden opportunities for bilateral trade and investment between both sides. Chinese President Hu Jintao announced a package of major assistance, investment, trade and other key cooperation measures with Africa in an effort to forge a new type of strategic partnership in his opening address at the FOCAC Beijing Summit. The Beijing Declaration (2006) and Beijing Action Plan (2007-2009)subsequently adopted by the Summit reaffirmed or reiterated Hu's measures and made them more concrete and feasible.
The 2006 Beijing Summit has inspired more interest from Chinese enterprises to invest in Africa and a series of activities have been sponsored in China to implement the Beijing Action Plan. On March 14, the Chinese State Council approved the establishment of the China-Africa Development Fund, which will be used to support African countries' agriculture, manufacture, energy sector, transportation, etc. and the development of Chinese enterprises in Africa. On May 16 and 17, 2007, the annual board meeting of the African Development Bank was held in Shanghai, the first time for it to be held in Asia. Themed “Africa and Asia: Partners in Development”, the meeting focused on infrastructure development in Africa, regional integrity and poverty relief. Just before the meeting, the African/Chinese Enterprises Forum focusing on African investment was held in Shanghai on May 14 under the joint sponsorship of South African Standard Bank and China Export＆Insurance Company. There are also some other activities organized by public or private institutions in China to provide guidelines to Chinese enterprises for investing in Africa.All these efforts have created a practical result: in the first half of the year 2007, direct investment to Africa from China reached US＄480 million, and newly signed labor contracts with African countries are worth US＄11.27 billion.
Most of these measures and efforts are political and economic in nature, rarely addressing the legal problems arising out of these bilateral business transactions. In my opinion, this does not go far enough for the sound development of mutual trade and investment. A better understanding of the legal system, especially the commercial law, in the host country can strengthen the investors' confidence in investing in it. As Kalidou Gadio, chief counsel for the African Development Bank, once vividly said, “If I know the law, you know the law, and you know I know the law, that is half the battle.”Many people in China have expressed concern about Chinese investors' poor knowledge of the law in the African host county; they suggest that African law research in China be emphasized and a frequent and regular exchange of law between both sides be set up so that people from both sides can have a better understanding of each other's laws.
II.The Exchange of Law between China and Africa
African studies in New China began in the 1960s. In the early 1960s when meeting with African guests, the late Chairman Mao said that he didn't know much about the African situation, and suggested that an African Studies institute be set up for the research of African history, geography, socio-economy, etc.Consequently, some African institutes were established in the Chinese Academy of Social Science, Beijing University, Xiangtan University, Nanjing University, etc. The early research in these institutes covers mainly African history and politics, especially the liberation movement in African countries. Since China's reform and opening policy, many Chinese African institutes and scholars shifted their research into African economy, culture, education. There was no institute specially devoted to African law studies until the African Law Institute was set up in Xiangtan University in 1998.
Xiangtan University, as a university in Chairman Mao's hometown, has always been a key unit for the African studies. As early as 1978, the Department of African Studies of Xiangtan University was established according to instructions from the Chinese central government. The Institute changed into the African Law Institute in 1998 in order to provide legal support for China-African business transactions, and in 2005 it became the Center for African Law and Society.It is the first and sole institute for African laws studies in China so far, and has worked hard to introduce the study of African law in China.
For the exchange of law between scholars from both sides, the Centre has invited some African law scholars to give lectures on the latest developments in African law in different areas. For example, we have invited professor Christopher Forsyth, a public law and private international law expert in Cambridge University, to deliver a lecture on the legal system in Southern African and private international law problems concerning China-African business transactions. Professor K.K Prah, Director of the Centre of the Advanced Studies of African Society, gave a lecture on human rights and pan-Africanism.Moreover, many of the staff members in the Centre have gone to African or other countries to study African law. For example, professor Hong Yonghong, Director of the Centre for African Laws and Society, went to the University of Cape Town in 2003, professor Chen Xiaohong to the University of Paris (III) in 2005, Dr. Guo Shuli to Asser Institute of International Law in 2004, and two other staffs in the Centre will go to the UK to study African law in 2008.
The most important event for the exchange of law between the scholars from both sides was the symposium on the Law and Socio-economic Development: A Comparison between China and African Countries. This event was hosted by the Centre, under the sponsorship of the Ministry of Commerce of the PRC, from October 21 to November 9, 2006. 15 scholars from South Africa, Namibia, Botswana, Uganda, Ghana and Tanzania, attended the symposium. The African guests and Chinese scholars exchanged their respective views about the relationship between constitutional law, criminal law, civil and commercial law, labor law, criminal and civil procedural law as well as international law and socio-economic development extensively and fruitfully during the 20-day symposium, and they also talked about possible ways to attain a deeper and more extensive exchange of law in future. At the end of the symposium, the Centre and Remin University in Beijing held a joint forum on Sino-African Legal Education and Legal Culture; scholars from both sides exchanged ideas about legal education and legal culture in their respective countries.
Because of the rapid development of China-African commercial transactions, the African scholars show a similar interest in Chinese law. According to a colleague from the University of Cape Town, teachers and students in the Faculty of Law are researching Chinese Company Law due to the fact that some South African companies are investing or are about to invest in China and want to gain some knowledge about the relevant Chinese laws from the Faculty. Many other law faculties in Africa have expressed their intention to establish a regular program for the exchange of law. For example, the Department of Law of the University of Botswana put forward a Memorandum of Understanding about exchange programs with the Centre, and cooperative Diploma and Master Programs in Trade Policy between the Faculty of Law, University of Namibia and the Centre are currently under way.
Despite the achievements made in African law studies and the exchange of law between both sides, there is still a long way to go for Chinese scholars to be able to provide legal guarantees for the sound development of China-African business activities. As far as I am concerned, in China there is no systematic and extensive research in the commercial laws in Africa, especially the harmonized commercial law in some regions, which will constitute a potential obstacle for Chinese enterprises or individuals investing in the relevant African country or region.
III.The Harmonization of Commercial Laws in Africa: A Neglected Subject in China?
For historical reasons, diversity of laws has long existed on the African continent.It is generally recognized that diversified legal systems will impede the international commercial activity and have negative effects on the commercial transactions between African merchants and foreign business partners,especially foreign investment in Africa and trade between Africa and other countries.
Trade is the primary instrument for economic development; however, diversity in the legal regimes of African countries for international trade affects not only intra-African trade but also trade between African merchants and their counterparts from other countries.So it is necessary for African countries to tackle the diversity of laws in order to promote international trade both intra-regional and extra-regional.
It is the same with African investment laws, which are of vital importance to the national economic development of African countries.The lack of co-ordination of African investment laws not only at the sub-regional level but also at the regional level, due to the fact that they are promulgated without regard to the policies of other African countries, hinders “the prospects of meaningful sub-regional or regional economic co-operation and complimentary economic development”, and also makes “the investor who would prefer to invest under uniform condition in a group of African countries instead of in one small one” feel confused.
Furthermore, the diversity of international commercial laws among African countries is likely to impact the achievement of the objectives of the economic integration schemes.Economic integration has been promoted as essential for the development, peace, and stability of Africa and “the imperative of integrating the economies of African countries is more urgent than ever”.Various regional organizations were set up for this goal, such as the Economic Community of West African States (ECOWAS), the Southern Africa Development Community (SADC), the Common Market for Eastern and Southern Africa (COMESA), etc., the most ambitious one being the African Economic Community (AEC) aiming at the establishment of a common market in Africa. In fact, “the integration of markets has gone hand in hand with a proliferation of efforts to harmonize key aspects of the law relating to finance and trade,” and the harmonized legal rules will not only “prevent a race to the bottom between different jurisdictions” but also “lower the transaction costs and therefore foster international trade and commerce”.So “law and policy in Africa needs to embrace global trends which, by definition, transcend national boundaries”.As an African commentator has observed, “the harmonization of trade laws and commercial practices is an important ingredient of regional integration, without which meaningful economic integration cannot be achieved.”Nevertheless, little work has been done in the area of harmonization of law in Africa until OHADA was set up in 1993.
For a long time, there have been many calls from African scholars for the harmonization of commercial laws,and OHADA perhaps is the strongest echo. “OHADA” is the French acronym for the Organization pour l'Harmonization en Afrique du Droit des Affairs, with the English meaning Organization for the Harmonization of Business Law in Africa (OHBLA). The organization was created according to the Treaty on the Harmonization of Business Law in Africa signed in Mauritius in 1993. Currently OHADA has 16 member states, most of them--Benin, Burkina Faso, Central African Republic, Chad, Comoros, the Republic of Congo, C?te d'lvoire, Gabon, the Republic of Guinea, Mali, Niger, Senegal and Togo—are Francophone, but Guinea-Bissau is Portuguese-speaking, while Equatorial Guinea is Spanish-speaking. There is one bilingual member state, Cameroon, both Anglophone and Francophone. The Treaty is open to all African states, whether or not they are members of the African Union (AU).The Democratic Republic of Congo has officially announced its decision to become an OHADA member and is currently proceeding with the admission process.
It has been made clear in the Treaty that the main objective of OHADA is to remedy the legal and judicial insecurity that prevails in member states by modernizing and harmonizing commercial laws and promoting arbitration as a means of settling contractual disputes and in the end to realize the economic integration.In pursuance of its aims, OHADA issues unified legislation in the form of Uniform Acts on particular areas of the law.So far, 8 Uniform Acts have been adopted in relation to general commercial activities, securities, company law and commercial interest grouping (GIE) laws, bankruptcy, debt recovery and enforcement law, arbitration, accounting, and road transport contracts. These Acts are directly applicable and overriding in the Contracting States notwithstanding any conflict they give rise to in respect of previous or subsequent enactment of municipal laws.“OHADA is therefore a process of unification, rather than harmonization”.OHADA is not just a system of uniform laws; it is a unified legal system designed to protect and enhance the pro-investment qualities of the OHADA laws.To assure the uniform application and interpretation of the Acts in the Contracting States, a Common Court of Justice and Arbitration (CCJA) was set up. All these efforts are thought highly of, as Mr Aregba Polo, Permanent Secretary of OHADA, indicated that OHADA efforts are more ambitious than the EC harmonization effort due to the direct application of the Acts and the harmonized interpretation made by CCJA.
Although the OHADA system is still under construction, lawyers and businessmen already acknowledge that OHADA has made a significant contribution to enhancing the legal environment for investment in Africa.It not only introduces modern and market-friendly legislation but also creates a common legal area in the region,thus enhance the investor's confidence in the region. However, regrettably the harmonization of commercial laws in the OHADA region does not receive much attention from Chinese investors or scholars. Up to now, there are no special books or articles on the harmonized commercial laws of OHADA in China; they are only referred to briefly in books or articles.
The Chinese scholars' and investors' neglect of the OHADA commercial laws results from the following facts: First, most of the Chinese scholars involve themselves in the study of the legal systems of the developed countries such as the US, UK, and Germany, and do not care much about legal developments in the developing countries, especially African countries. Some of them even have misunderstandings about African law, so they won't spend their time studying African law, let alone the OHADA law. Second, for some Chinese scholars, the low level of investment in and trade with the OHADA member states makes it unnecessary to study OHADA law. At present, Chinese investment in Africa is mainly in some large countries such as South Africa, Nigeria, Sudan, Egypt, etc. Third, the fact that the official language of OHADA is French and the Uniform Acts and judgments from CCJA are made in French makes it difficult for Chinese scholars to research it. Most Chinese legal scholars do not understand French. Fourth, the difficult access to OHADA materials including the court decisions and scholarly analysis also frustrates some Chinese scholars' enthusiasm for studying it. As for investors, they “must have easy access to current information about OHADA and its evolution before they can have a basis upon which to asses the value of improvements that OHADA is bringing to the region's security”.
The situation is changing now. More and more Chinese scholars and investors are beginning to realize the significance of learning African law, especially the commercial laws, and the interest in African law studies is increasing in Chinese academic circles. At present professor Hong Yonghong is undertaking a national research project on the history and future of China-African legal cooperation; a feasible way for the exchange of law between both sides will be proposed after its completion. Dr. Zhu Weidong from the Centre has also received a grant from the Education Department of Hunan Province for the study of the harmonization of commercial laws in Africa, especially OHADA law. But frankly speaking, research into the harmonized commercial laws in Africa is still far behind the development of China-African trade and investment; it is therefore suggested that more efforts be spent on the OHADA law so as to raise public awareness of it in China.
As can be learned from the above, compared with the rapid and extensive development of China-African investment and trade, the exchange of law between both sides goes slowly and narrowly. The role of law in investment should be given more attention: “if properly designed, the law could have strong pro-development effects by both encouraging capital investment and facilitating trade”.Chinese investors should pay more concern to the harmonized commercial laws in Africa, if they want to invest under uniform conditions in a group of African countries instead of in a small one. It is generally recognized that the commercial laws of OHADA are properly designed; they reduce legal uncertainty and insecurity, replace outdated national legislation in member states, and thus create a more attractive legal environment for companies doing business in Africa. Therefore, the harmonization of commercial laws in Africa should not be neglected but be emphasized in China.
Weidong Zhu,Ph.D, Associate Professor of Private International Law, Faculty of Law, Deputy Director of the Centre for African Laws and Society, Xiangtan .
This is the paper presented at the international conference "The Harmonization of Commercial Laws in Africa and Its Advantage for China's Investment in Africa" held in the University of Macau, Nov.26-29, 2007, which may be relevant for this conference. Please don't quote this article for any purpose without the author's permission.
I thank professor Hong Yonghong for his beneficial comment in drafting the article, and I also thank Dr. Steven B.Davis, Director of the Centre for Scholarly English (USA) for his invaluable help in editing the article.
 Zhang Xiang, "Sino-African Relations Date Back to Ancient Times", Daily Graphic, August 10, 1994.
 See People Daily, January 15, 1983. The 11 African countries are Egypt, Algeria, Morocco, Guinea, Gabon, Zaire, Congo Brazzaville, Zambia, Zimbabwe, Tanzania and Kenya.
 According to Premier Wen Jiabao, China-African trade should reach the US$100 billion mark in 2010, double the figure in 2006.
 The statistics are available at the website of the Ministry of Commerce, PRC: http://xyf.mofcom.gov.cn/date/date.html
 Gong Wen, “The China-African Trade Volume Surpassed US$20 Billion for the First Time”, People’s Daily, January 12, 2005.
 Gong Wen, “The China-African Trade Volume reached US$55.5”, People Daily, May 15, 2007.
 Tang Jiaxuan: “China-African Relationship and the Significance of the FOCAC Beijing Summit”, available at http://www.scio.gov.cn/zgxwybd/en/2006/22/200612/t103738.htm.
 Forum on China-Africa Cooperation-Addis Ababa Action Plan, available at http://www.focac.org/eng/zyzl/hywj/t157710.htm.
 Craig Timberg, "Inventive South Africa Firms Thrive in Booming China", Washington Post, Sunday, February 11, 2007; and also “out of Guangzhou, African Trade Booms”, available at http://www.chinaview.cn, May 23, 2006.
 The documents can be found at http://www.focac.org/eng/zyzl/hywj/.
 The measures put forward that are especially conducive to the development of mutual trade and investment are as follows:
·To provide 3 billion US dollars of preferential loans and 2 billion US dollars of preferential buyer's credits to Africa in the next three years;
·To set up a China-Africa development fund which will reach 5 billion US dollars to encourage Chinese companies to invest in Africa and provide support to them;
·To further open up China's market to Africa by increasing from 190 to over 440 kinds of goods to China receiving zero-tariff treatment from the least developed countries in Africa having diplomatic ties with China;
·To establish three to five trade and economic cooperation zones in Africa in the next three years.
 for example, the China-African Trade and Investment Seminars held in Zhengzhou and Wuhan on April 26 and July 3 respectively, the Meeting on the Investment Environment in Africa held in Xiamen on September 8 and the latest China-African Trade and Investment Forum held in Shanghai on November 11.
 Mark Turner, “Commercial Law Plan in Francophone Africa”, Financial Times, May 13, 1999.
 Chen Gongyuan, “A Long Way Ahead for the African Studies in China”, People Daily, August 10, 2000.
 Hong Yonghong, “Promote the African Law Studies in China”, 1 Journal of West Asia and Africa (1999), p.52.
 The research staffs in the Centre have published several books on African law, such as Introduction to African Law written by professor Hong Yonghong, Xia Xinhua, etc.; African Criminal Law Review edited by professor Hong Yonghong, Development of African Law edited by professor He Qinhua, Hong Yonghong, etc. Besides, the research staffs in the Centre have published more than 130 articles on various aspects of African law and undertaken many research projects on African law. We also opened special columns on African law in many journals or newspapers, such as the Journal of West Asia and Africa, Journal of Hebei Legal Science, the People’ Court Daily, which contribute to the understanding of African law in China. Furthermore, the Centre enrolls students reading for LL.M or Ph.D degree in African law every year, so far more than 10 students have graduated.
The Centre’s research for the moment covers the following fields: the theories and practices of African law; the transition of African law and the social development; as well as the human rights and diplomacy in Africa.
 Other African scholars such as professor Andre Thomashausen and professor Christian Schulze from the Institute of Foreign and Comparative Law, the University of South Africa, and Professor John Kiggundu from the University of Botswana, also contributed a lot to the exchange of law between both sides by sending us valuable African law materials.
 According to the Memorandum of Understanding, The management teams of both institutions have recognized that there is substantial synergy between the Law Department and the Centre for African Law in that both seek, inter alia, to: Enhance the research and study of law, particularly African laws; Develop programs that will enhance an understanding of Chinese law and its impact on China’s rapid economic development; Develop programs that can promote greater understanding between African and Chinese law: and Promote joint research programs. The Law Department and the Centre for African Laws undertake to work closely with each other in the following form and areas:
·Facilitate staff exchanges for periods of 1-3 months on such terms and at such periods as shall be mutually agreed upon;
·Organise seminars and workshops for students of both institutions on topics mutually agreed upon which will require lectures by staff from both institutions;
·Organise joint research and publications teams who will co-operate in identify, research, and publish jointly on topics of mutual benefit to both institutions and their countries;
·Participate in other such projects and programs that are mutually beneficial to both institutions in ways that will enhance co-operation and economic development in both countries.
 According to the plan proposed by the colleague from the University of Namibia, the program will be implemented in partnership with the World Trade Organization (WTO) and the partner university, the students from both sides will be enrolled and they will get Diploma or Master’s Degree in Trade Policy after their studies.
 Diversity of laws exists in Africa at least in three ways: First, there is internal diversity within individual countries; Second, there is diversity among different African countries (intra-African diversity) and the third, perhaps yet more important, there is diversity between African states and other (non-African states), see Gbenga Bamodu, “Transnational Law, Unification and Harmonization of International Commercial Law in Africa”, 38 J. A. L. (1994), p.125.
 Gbenga Bamodu, op.cit., p.125.
 Ibid, pp.128-129.
 Ibid, p.130.
 A. M. Akiwumi, “A Plea for the Harmonization of African Investment Law”, 19 J. A. L.( 1975), p.134.
 Ibid, p.134 and p.153.
 Gbenga Bamodu, op. cit.,p.125.
 Richard Frimpong Oppong, “Private International Law in Africa: the Past, Present, and Future”, 55 Am. J. Comp. L.(2007), p.702.
 Katharina Pistor, “The Standardization of Law and Its Effect on Developing Economies”, 50 Am. J. Comp. L.(2002), p.97 and p.104.
 Olusoji O. Elias, “Globalization, ‘Law and Development’, and Contemporary Africa”, 2 European Journal of Law Reform (2000), p.259.
 M. Ndulo, “Harmonization of Trade Laws in the African Economic Community”, 42 I.C.L.Q. (1993), p.107.
 Gbenga Bamodu, op.cit.; A. M. Akiwumi, op.cit.; M. Ndulo, op.cit.; Richard Frimpong Oppong, “Private International Law and the African Economic Community: A Plea for Greater Attention”, 55 I.C.L.Q. (2006). The Institute for Private International Law in Southern Africa is involved with drafting a code of private international law contract for the SADC region and/ or African Union (AU), see http://general.rau.ac.za/law/English/ipr/ipr.htm.
 Article 53 of the OHADA Treaty.
 Preamble to the Treaty on the Harmonization of Business Law in Africa.
 Boris Martor, Nanette Pikington, David S. Sellers and Sebastien Thouvenot, Business Law in Africa: OHADA and the Harmonization Process, Kogan Page (2002), p.6.
 Article 10 of OHADA Treaty.
 Xavier Forneris, “Harmonizing Commercial Law in Africa: the OHADA”, available at http://www.ohada.com/biblio_detail.php?article=480.
 Clarire Moore Dikerson, “Harmonizing Business Laws in Africa: OHADA Calls the Tune”, 44 Colum. J. Transnat’l L. (2005), p.55.
 Marc Frilet, “Uniform Commercial Laws, Infrastructure and Project Finance in Africa”, 28 International Business Lawyer (2000), p.215.
 Jacques Andy Isabelle, “OHADA: Reforming Business Law in Africa”, available at http://www.ohada.com/infohada_detail.php?article=348.
 Xavier Forneris, op. cit. but we should also bear in mind, OHADA, like any other regional integration in Africa, has its own problems and shortcomings, for example, insufficient national participation, to much influence from France, lack of the participation of common law countries, uneasy access to court decisions and scholarly commentaries on the Uniform Acts, poor judicial system, etc. see Xavier Forneris, op. cit.; Claire Moore Dickerson, op. cit., p.67; Jean Alain PENSDA and Dr. TUMNDE, “The Roadmap of the Harmonization of Business Law in Africa”, available at http://www.ohada.com/biblio_detail.php?article=452.
 He Qinhua＆Hong Yonghong, The History of African Law, Law Press (2006), pp.518-519; Zhu Weidong, “The Harmonization and Unification of International Commercial Laws in Africa”, 3 Journal of West Asia and Africa (2003), p.70.
 Clarire Moore Dikerson, op. cit., p.67.
 Clarire Moore Dikerson, op. cit., p.30.