In response to President Obama's decision to impose Section 421 tariffs on Chinese tires, the Chinese government took a short two days to retaliate. The Chinese Ministry of Commerce announced that it will initiate the necessary proceedings to address anti-dumping and countervailing duties on U.S. imports of chicken products and automobile parts.
Sunday, September 13, 2009
Monday, August 10, 2009
Over the past two and half months, I had devoted my every waking moment into studying for the Texas Bar Examination (TBE), which FINALLY took place on July 28-30. This should explain the absence of any posts for the last several months. Now, with the bar exam behind me, I'm ready to resume blogging.
Friday, April 10, 2009
Monday, April 6, 2009
As the global recession slams China, bankrupt business owners are shutting factories overnight. Often, they leave the mainland, afraid of angry suppliers and workers and uncertain about legal protections. Dongguan alone last year recorded 673 cases—up 24%—of owners fleeing their factories, leaving behind 113,000 unemployed workers owed $44.1 million. Labor disputes almost doubled, to nearly 80,000.
But few judges have received the necessary training to understand the complex measure, so local officials often discourage hard-pressed owners from filing for bankruptcy. And by compensating creditors before employees, the law undercuts Beijing's desire to minimize labor unrest....
Wednesday, April 1, 2009
China Banking Regulatory Commission (CBRC)'s chairman, Liu Mingkang announced that rules will change for foreign invesors who invest in Chinese commercial banks.
Friday, March 20, 2009
Out-law.com ran an article written by Alison Ross, which discusses "How to Protect Your Brand in China." I thought the author did a very good and thorough job in advising mark owners on how they should go about protecting their marks in a comprehensive and proative way in China.
China, by and through MOFCOM, rejected Coca-Cola's bid to acquire the Chinese juice maker Huiyuan. As soon as the news came out, it caught international attention and has been widely reported. Many views float out there about why and how come.
Some anti-monopoly experts remain skeptical about the power of a law that has been regarded as a “paper tiger.” Specifically, experts are concerned about whether the case followed rigorous legal processes and standards that would have helped
further define its merger and acquisition regulations. China
Thursday, March 12, 2009
Two camps of lawmakers are debating what role Chinese courts should play in China during this extraordinarily trying time.
"Prudent handling of company owners suspected of breaking the law is not a good option to solve current disputes resulted from financial woes."
[Market economy was fundamentally] "an economy ruled by law" and the economic development in the long run especially needed an integral legal guarantee, ..., adding there was no place for sentiment in judicial organs.
Peng represents the group of lawmakers who are of the view that the courts should not be taking sides, should not in any way favor businesses and companies in violation of the law, despite the macro economic circumstances. They essentially believe that the courts are there to enforce the law. Period. There is no need to venture beyond the bounds of the law and the facts as they relate to the law. In a certain sense, these are the pure jurists.
On the other hand, the second camp, which includes the current President of the Supreme People's Court of China, believes that the courts should play a more constructive and active role in assisting defendant businesses weather the economic storm so as to contribute to social stability in China. Specifically, they believe that
...courts at all levels should "prudently use such compulsory measures as sealing up, impounding or freezing assets of companies," and should "promptly offer judiciary advisories to help enterprises in operational difficulty tide over economic woes."
In helping enterprises deal with the economic hard times, courts, as the second camp believe, should uphold the law, while at the same time soften the way the law is to be enforced. For example, when it comes to freezing the assets or impounding equipments of businesses, the courts should take into consideration how many jobs will be lost, and what collateral social consequences of such enforcement actions would result.
This debate is nothing new, and it represents the tough situation Chinese courts are in. They are painfully dependent upon other administrative organs in the Chinese government; therefore, they must bend in the direction that the prevailing political wind is blowing. If the country is in tough financial times, courts are expected to be soft on enterprises in violation of the law; if the country needs to strike down on piracy or IP infringements, courts should act accordingly. Courts are always caught up in politics.
The debate also reveals the reality of the rule of law in China. The rule of law serves a political purpose. It should serve purpose whereby the courts dispenses justice ONLY, free of political tides.
I believe the second camp of people are short-sighted. They see only the short-term benefit of lenient law enforcement on the part of the courts, but they fail to see the long-term ill of a judicial system that obeys both the law and political leaders. They see only the upside of courts taking a temporary pro-business stance, but they fail to see the consequence of the same courts taking a pro-labor/pro-consumer/pro-whatever stance under different circumstances. What they need to see is the value of a judicial system with courts and judges that are neutral and bound by the law only.
Wednesday, March 11, 2009
Right after the earthquakes in 2008, I wrote a post advocating for China to establish a individual bankrupty system. In that post, I gave cultural, economic and legal reasons in favor of such a system, in addition to China's fairly new Enterprise Bankruptcy Law.
One Chinese lawmaker, Shi Ying, who is a deputy to the Chinese National People's Congress, submitted a bill to the NPC which is in session now. She is also calling for the the establishment of a personal bankruptcy system for victims of the earthquakes in Sichuan Province.
In an interview, she lamented the tough situations that some of the victims are in because they are still on the hook to pay their mortgages even though their houses/apartments have been demolished by the earthquakes.
"If there is a personal insolvency system, we can declare someone is bankruptcy according to a fixed standard. And the bank can take all his or her assets except minimal living necessities for the family, and the debt is thus cleared..."
I think she is right on. The earthquakes were an act of God, and it is unreasonable for them to carry the debt for something that ceased to exist. If they had got into financial trouble due to their own irresponsbile spending, they'd have a weaker argument for personal bankruptcy to discharge their debt. But, the situation is far from that. Allowing them to declare bankruptcy will truly be a relief and a second chance to start all over again.
In addition to personal benefits for the earthquake victims, allowing personal bankruptcy to this group of people could also serve as opportunity for China to test the waters, so to speak, in anticipation of a full-fledged system that can go countrywide. Testdriving economic and/or political programs and policies is not a new thing to the Chinese authorities. Look at what happened to Shenzhen, whose success has built the foundation for more special econmic zones to be established. Permitting earthquake victims to declare personal bankruptcy could potentially build a model for the rest of the country.
Monday, March 2, 2009
A few days after Secretary of State Hillary Clinton's hopeful and celebrated official visit to China, the U.S. State Department issued its annual report on China's human rights record. In it, the U.S. criticises China for silencing dissent and oppressing ethnic minorities.
Saturday, February 28, 2009
The Standing Committee of China's National People's Congress passed a brand new Food Safety Law on February 28, 2009, and the law is set to become effective on June 1, 2009. Without having a chance to read it carefully, I have some preliminary comments as follows:
Monday, February 23, 2009
On February 1, 2009, the Minister for China's Ministry of Commerce signed into law the Measures for the Registration and Aministration of Import and Export Technology Contracts. (in Chinese) ("Technology Contract Measures") This is a ministry level administrative regulation, and it will become effective on March 2, 2009.
Posted by Brad Luo at 4:10 PM
Friday, February 20, 2009
Frontline (PBS) recently produced an in-depth documentary on the financial meltdown. It is an attempt at figuring out the root causes of the problems that led to the current economic crisis affecting the entire globe. It is well worth your time to watch it.
The University of Texas International Law Journal will be hosting a China law related symposium on February 26, and 27, 2009.
Here is how it is described:
China’s Emergence: Effects on Trade, Investment, and Regulatory Law,” this one-and-a-half day symposium will address the legal and policy implications related to ’s rise in political and economic power. China
Opening remarks of the main body of the symposium will be at 9:00 a.m. on Friday, February 27. Expert panelists will be coming fro China, Hong Kong, and throughout the United States. They will be discuss challenges and opportunities related to China's economic and political rise through the lens of three primary topic areas--(1) Trade, (2) Investment, and (3) Regulatory law. Experts from both academic and practioner backgrounds will present. Official from MOFCOM, the Office of the U.S. Trade Representative, and the Department of Commerce will also present.
This program is free and open to the public. So if you don't want to obtain CLE credits, it is free. Free education is good. Free education in beautiful Austin, Texas on such interesting topics is even better. I plan to attend on February 27th. If you are going to be in Austin on that day, I'd like to meet.
For more information, please check here.
Wednesday, February 18, 2009
Contrary to the popular view that enforcement of judgments is poor in China, Professor Randall Peerenboom stated in his recent article that:
While enforcement is often portrayed as difficult in China, recent studies have found significant improvements in urban areas, where more than half of creditor-plaintiffs receive 100 per cent of the amount owed, and three quarters are able to receive partial enforcement, a situation explored in more detail [elsewhere]. Moreover, the main reason for non-enforcement is that defendants are judgment proof: they are insolvent or their assets are encumbered. No legal system is able to enforce judgments in such circumstances.
Although cross-country comparisons can be misleading, it would appear that enforcement in
Chinamay be less problematic than in many jurisdictions, including in rich countries such as the United States, the United Kingdom, or (He policy brief 3). In the World Bank’s ‘Doing Business 2008’ survey, Russia ranked twentieth out of 178 economies in enforcement of contracts. The survey measures the time, cost, and number of procedures involved from the moment a suit is filed until payment is made. China
Looking into the reasons behind the improvement in enforcement of judgments, Peerenboom found that:
Looking into the reasons behind the improvement in enforcement of judgments, Peerenboom found that:
The main reasons for the improvement in enforcement are changes in the nature of the economy; general judicial reforms aiming at institution building and increasing theprofessionalism of the judiciary; and specific measures to strengthen enforcement (citation omitted). The economy in many urban areas is now more diversified, with the private sector playing a dominant role. The fate of a single company is less important to the local government, which has a broader interest in protecting its reputation as an attractive investment environment. As a result, the incentive for governments to engage in local protectionism has diminished (citation omitted).
According to Peerenboom, enforcement in less developed areas, i.e. rural China, remains a dire problem for a host of reasons. Competency and quality of judges are still less than satisfactory. Local economy still depend on a few sources; thus, the incentive for non enforcement of judicial judgments remain.
Improving enforcement of judgments in rural areas is likely to be a difficult task as it is not simply a judicial problem. Lax enforcement, as can be inferred from the experience of urban areas, is a complicated institutional issue, linked to economic development, availability of well-educated, professional judges, and very significantly a thriving private business sector. Given the reality in the vast rural areas, better enforcement in these areas probably won’t come any time soon, short of drastic changes to local conditions
leaving this spectacular tower empty. Yellow cranes will not return, leaving the white clouds for millennia without companion. –by Cui Hao (704-754 A.D.), Tang Dynasty
leaving this spectacular tower empty.
Yellow cranes will not return,
leaving the white clouds for millennia without companion.
–by Cui Hao (704-754 A.D.), Tang Dynasty
This poem has remained one of my favorites, throughout my education in Before I get carried away with nostalgia and poetry, I’d better move on to Chinese business law.Luckily, I get to return to the “
Before I get carried away with nostalgia and poetry, I’d better move on to Chinese business law.Luckily, I get to return to the “
As reported,Yellow Crane Tower Tobacco Company (“TCTTC”) is one of the most famed tobacco companies in
Naturally, TCTTC took Mr. Deng to court, in the
TCTTC sued Deng for trademark infringement in the form of cybersquatting. Since the central issue here is whether Deng’s registration of the domain names using the TCTTC’s registeredword mark constitutes trademark infringement, the 2001 Several Explanations on Domain Name Civil Disputes (“Domain Name Explanations”) issued by the China Supreme People’s Court apply in this instance. The Domain Name Explanations expressly provide that a mark owner can ask a court of competent jurisdiction to determine whether its mark is famous, and the court may order the cancellation of the infringing domain name if it finds unfair competition, and monetary damages are also available to the victorious plaintiff. Upon request, the Court may also order the transfer of such infringing domain name to the plaintiff. See Arts. 4-8.
To prevail, TCTTC must prove that its marks were infringed and they were famous prior to Defendant’s use. The Court found TCTTC’s marks well known, the “
Upon finding the marks in question well-known, which is the prerequisite to prevail in a domain name cancellation dispute, the Court also found infringement in Defendant’s unauthorized use of the marks in question. It reasoned that both domain names and trademarks have the quality to help consumers relate to the source of goods and services.Given that shared quality of trademarks and domain names, Defendant’s use of TCTTC’s word mark could confuse consumers, despite the unrelated nature of the parties’ trades, one in restaurant while the other in tobacco.Further, the Court disagreed with Defendant’s argument that he did not have the intent to ride on TCTTC’s trademarks to gain economic advantages, because, as the Court stated it is obvious that Defendant’s use of a well-known mark as the core for his domain names was to obtain more economic opportunities, and such use was marked with commercial intentions.
This is easy win for TCTTC here. Of course, Plaintiff had an obvious home court advantage. The “ Another thing noteworthy here is that Plaintiff can get either the infringing domain names canceled or transferred. I would want a transfer.
This is easy win for TCTTC here. Of course, Plaintiff had an obvious home court advantage. The “
Another thing noteworthy here is that Plaintiff can get either the infringing domain names canceled or transferred. I would want a transfer.
So, with a win for the local player, the “Yellow Cranes” should be able to return to
But, will the “real” yellow cranes return after millennia of absence? Poets wait on…