Changing the Way We Look at China

With a population of just over 1.3 billion, China — the world’s second largest economy — has captured global attention.

One particular Allard School of Law scholar has been studying this influential country through a legal lens for the past three decades and producing ground breaking research in the process. Dr. Pitman Potter’s influential work has helped shape public policy in the US, Canada and throughout Asia on matters related to international trade, human rights and dispute resolution.

These accomplishments (including seven single-authored books and hundreds of articles and book chapters) have ultimately led to Potter becoming one of the world’s leading experts in Chinese law.

But first, let’s talk about art

Potter’s interest in China began early on, and not with politics or the law, but with art — an interest that he has maintained to this day. It’s not uncommon to come across art metaphors as a means to clarify complex concepts in Potter’s writings.

During his time working at a law firm in Beijing, Potter nourished his interest in art by helping to coordinate a series of art tours around the city. He once stumbled upon a painting that was carelessly thrown in a back alley, which, on talking to a curator, Potter learned was a valuable and extremely rare piece.

This passion for art also provided a deep connection to his late grandfather (his namesake), a prominent international law scholar who was a tremendous source of inspiration for Potter. Potter recalls a particular moment during his time working in Beijing in the 1980s when local relationships came to be informed by his family history.

“One of the people I worked with in Beijing was a leading Chinese scholar on Ming Dynasty furniture (his collection now resides at the Shanghai Museum). One day he was telling me about his mother, who is a painter of goldfish. So I told him about the goldfish painting I inherited from my grandfather. The next day my Chinese friend brought in a book he had written in honour of his mother’s paintings.

I recognized the paintings immediately — they were clearly drawn by the same artist as the painting that I had. It turns out that my Chinese scholar friend’s mother had given this painting to my grandfather when he was teaching in Paris in the 1930’s.”

A career in law awaits

In 1978, China was entering an historical period of legal reform that called for the equality of all citizens — something that hadn’t existed under the previous, more radical regime. It was during this time that Potter’s interest in Chinese law was piqued. He had also just wrapped up his undergraduate degree in Chinese history at George Washington University, and was preparing to pursue his PhD in Political Science at the University of Washington, aiming to work in the area of Chinese law and politics.

Potter received the valuable advice from a mentor at the time that a law degree was critical to achieving his goal. Shortly after completing his JD at the University of Washington, Potter moved to Beijing where his experiences working for a law firm there planted the seed to some of his most innovative research.

From practice to theory — and back

One of Potter’s first cases in Beijing involved a group of office building tenants who were concerned about their lease after learning that the government had made some changes to it without informing them. Having done his PhD dissertation on the topic of contract law in China, Potter was aware of the requirement in Chinese law that all parties to a contract approve changes to the contract. When he met with the relevant ministry’s head of law, the response he received surprised him.

“What they said to me was, no you don’t understand. We are the approving ministry. We approve the deal. We approve the construction of the building. We approve the lease. We approve everything. We have the authority to stand in for the lessees and give approval on their behalf without notifying them.”

“What struck me about this was that this ministry had no particular material interest in this. It had a bureaucratic interest. This wasn’t a situation where someone was gaming the system in order for personal advantage, but rather a government ministry interpreting the law to suit its organizational and bureaucratic interest. What that got me thinking about was that the black letter language of the rule — i.e. get consent from the lessees — was interpreted in a way that was different from my expectation. And that told me that there is a value system going on there that affects the way the text of law is interpreted.”

It was experiences like this that helped shape Potter’s innovative approach to understanding legal norms in China, which he later termed the ‘theory of selective adaptation.’ This theory asserts that local cultural practices influence the way in which the law is interpreted.

This theory has been widely cited by scholars around the world and has provided policymakers and practitioners with the tools to understand legal compliance more fully. However, Potter is quick to point that his theory hasn’t always been welcomed by some Canadian and US government officials.

“They are often of the view that the rule is the rule and you can either comply with it or not. But for me, that is a somewhat simplistic way of looking at the ways the rules operate and is not realistic.”

“I think that we’ve provided something that is pretty close to a predictable model for Chinese legal behavior. We’ve distilled our theories into concrete formulas, with which we are able to put a fairly predictive analysis in place on how China is going to comply with international policies and agreements.”

The practical application of Potter’s research has also resulted in the China Links program, a course geared towards lawyers, policy analysts and entrepreneurs from North America who engage with Chinese businesses and government. For many years the China Links program has provided an important resource for the local legal and business community working in Asia.

“We have to deal with China as it is, not how we would like it to be. And if we say that the rule is the rule and obey it or not, we are setting ourselves up for a range of disputes and conflicts. These can be avoided if we are able to understand local legal performance of international rules in light of local legal cultures.”

Building an international research community

Over the course of his remarkable academic career, Potter has received over $6.4 million in research funding. This funding has been used to lead projects in countries throughout Asia, including India, China and Japan.

His largest project on Asia-Pacific Dispute Resolution, funded by a Major Collaborative Research Initiative (MCRI) grant from the Social Sciences and Humanities Research Council of Canada, involved collaboration between 54 researchers from 21 institutions across North America and Asia.

Potter says that one of the main challenges in leading any international research project is ensuring that all the people involved continue to be devoted to it. “You have to keep the project interesting, moving forward, productive and exciting so that people want to be a part of it.” But the benefits are important.

“Building research communities is the best way to building knowledge. Be collegial, invite and include as many people from as many different backgrounds and cultures as you can,” is Potter’s advice when it comes to managing complex projects across multiple jurisdictions.

Influencing change

Stewart Beck, President and CEO of the Asia Pacific Foundation of Canada (an organization focused on Canada’s relations with Asia) has known Potter for over 20 years.

“Ultimately, Pitman is a great collaborator and a passionate supporter of initiatives he thinks are important to Canada and Canadians. On China in particular, Pitman is one of our country’s leading experts,” says Beck, who has previously served as a Canadian diplomat in the US, Taiwan, China and in India. “Based on his extensive research and knowledge of China, he understands that Canada can’t approach China as a zero-sum game. If we want to succeed with China, we need to engage strategically and pursue areas of mutual interest for our mutual benefit. For Canada, that might mean judicial training and legal governance, or climate change mitigation, or the social safety net — areas where we have extensive experience and knowledge to leverage.”

“Pitman understands these dynamics, and has the ability to draw key stakeholders into these critical conversations on Canada’s future, and future prosperity, in the Asia Pacific.” Not surprisingly, with key strategic partnerships around the world and the capacity to work across continents and cultures, Potter’s research has made considerable impact on both policy and legal scholarship.

In India, his research team helped draft the country’s National Food Securities Act. In China, his research around minority nationalities in Tibet and Magnolia and its implications for Hong Kong and Taiwan, has been translated and distributed at the highest level of government. And back home in Canada, Potter’s research has provided policy expertise around human rights, trade/investment and dispute resolution.

Most recently, Potter and his UBC research team for the Asia Pacific Dispute Resolution project released a series of policy recommendations for more effective approaches to integrating trade policy and human rights in the Asia Pacific region.

Some of the recommendations in the report include clarifying “standards and terms for human rights” and providing “stronger incentives for Canadian investors to promote human rights in international trade relationships.”

“We need to help the trade policy world develop better peripheral vision to incorporate human rights standards and then to focus not just on human rights goals, but on actual achievements,” said Potter. “Integrating human rights and trade policy would further Canada’s prosperity agenda by strengthening trade and investment relations, while also providing a foundation for improved human rights protection.”

The ability to span geographic and cultural borders has allowed Potter to provide a fresh approach to studying the law. His research looks beyond a conventional analysis mostly focused on enforceable legal text to consider the importance of local legal culture and socio-cultural dynamics that affect legal behavior. Potter’s research and unique approach will forever leave an imprint on Canadian and international policy and the way in which legal research is performed.