“No Harm, No Foul”: China Wins Trade Dispute on Paper Exports

As reported by the New York Times, the United States International Trade Commission (USITC) handed a victory to the Chinese government and a few glossy paper exporters in their trade dispute with the U.S. government over “illegal subsidies.”

Notably, the USITC refused to endorse tariffs on Chinese glossy paper as requested by American producers, and it “threw out” duties on Chinese imports “authorized” by the Bush government. The reason for this ruling against the American parties is that the USITC found no “material injury” or “threat of material injury” to American manufacturers, despite allegations of illegal subsidies by the Chinese government.

Currently, industries such as steel and tire are also seeking relief, and of course the key to their success seems be to evidence of “material injury” or threat thereof.

China Hearsay looks beyond these trade cases and rulings, and sees glimpse of protectionism in the U.S. and the EU.

Maybe, the Chinese government and those Chinese glossy paper exporters will have something to be thankful for at this time of the year.

"China Hearsayworthy" and Signs of China JV Trouble

The always prolific and thoughtful China Hearsay came out with something quite entertaining, and with a bit of southern accent: You Know You’re [Your China JV Is] in Trouble When the . . .

[For a sampling:]

JV partners haven’t spoken to each other for 7 years.
CFO is the wife of the local partner.
Foreign investor has never visited the JV and forgot what city it’s in.
Local partner claims he is son of a PLA general.
Neither party can remember who was supposed to file the application docs.

Stan points out five more signs dooming a China joint venture. Of course, not all of these signs will be present in all JV failures, but some definitely are in the Danone-Wahaha joint venture fallout.

U.S.--China Rule of Law Forum

Today, I had the distinct pleasure of attending the U.S.-China Rule of Law Forum. The U.S.—China Rule of Law Forum is an exchange program, sponsored by Senator Kaye Bailey Hutchinson (Texas), and it is hosted by Dean Attanasio at the SMU Dedman School of Law. Because of the high profile of the Chinese delegation and the lively discussions during the program, it is one hour well spent, and I’d like to share what I witnessed.

First, the Chinese delegation consists of a group of people from various legal backgrounds. Some are law professors, such as Professor Lixin Yang; some are from the Standing Committee of the People’s Congress; some are from the Ministry of Justice; some are from the Supreme People’s Procuratorate of China; and a few are from private practice; and a Grand Justice, Mr. Liu Jiachen of the Supreme People’s Court, was also a member. In sum, the delegation is good mix of people with substantial knowledge about the development and reform in China’s legal system.

Second, Madam Liu gave a 30 minute keynote speech, titled the Legal Situation and Law Reform in China. During her speech, she briefly highlighted China’s achievement in comprehensive legal reform since the late 1970s. She cited some interesting statistics: in the past 30 years, China enacted about 230 laws, 1000 administrative regulations, and over 10,000 local rules and regulations throughout the country. In the meantime, China also amended and appealed many laws to weed out those no longer in sync with the Chinese society. As a result of these developments, China has established political, social, economic relationships in a brand new legal system governed by law. And the establishment of the legal system has led to specifications of rights and duties of parties, methods of dispute resolution, and a fundamental state policy—rule by law.

Madam Liu was also quick to note the long way ahead of China’s efforts to build a society ruled by law. Much has been accomplished, yet much remains to be done. In the long way ahead, China is willing and ready to borrow from legislative successes from other nations, including those in the common law system. She specifically noted the legal accomplishments of the United States in building a system of the rule of law that works for the U.S., and in training “an army of a million lawyers.”

Her identification with the U.S. legal system quickly turned into a discussion about the importance of building individual legal systems appropriate for each sovereign nation. Each nation has the right to choose a legal system based its own historical, social, and economic backgrounds. And a recognition of the uniqueness of legal systems in different countries help build a world with diverse and colorful legal systems.

Then, Madam Liu calls on the U.S. and China to cooperate in building stronger mutual understanding on the rule of law. In the context of increasing globalization, nations need to work together to achieve justice, build equality, and resolve conflicts. To achieve that, many Chinese students are choosing the study of law, making law practice a fast growing professional area.

Third, I post only the highlights of the Q & A session that I was able to jot down.

Question 1 (SMU law student)—How much deference do courts give to the Chinese communist party opinions/directions in reaching their decisions?

Answer (Grand Justice Jiachen Liu)—Judicial independence is protected by the Chinese Constitution. The judiciary works very hard to try cases independently and their work is in line with the will of the people. Some people in the West misunderstand judicial independence in China, and ignores that China has chosen its own path for its judiciary, which serves China well.

Question 2 (SMU law student)—How will Hong Kong’s common law system mesh with China’s legal system in the coming years?

Answer (member from the Standing Committee of the People’s Congress)—Hong Kong is currently governed by its own Basic Law, under which judicial judgments are independent and final. Even though the judicial systems in China and Hong Kong are widely different, the Central Government and Hong Kong (SAR) Government can operate under the Basic Law to resolve differences. However, if issues concerning technicality cannot be resolved that way, the Standing Committee of the People’s Congress has the power and authority to issue its own interpretation, which will be controlling in resolving such technical differences. This has been done and been accepted by the people of Hong Kong.

Question 3 (SMU reference librarian)—China currently has a compilation system for laws based principally on the date of promulgation. What kind of progress has China made in creating a comprehensive code, like the US Code, to make research on Chinese law easier?

Answer (Member from the Standing Committee)—It is still a work in progress; and it has been a problem for our own researcher as well. We have made some progress in building a comprehensive legal database of laws and regulations. That should make researching easier if you have the URL to that website.

Question 4 (SMU student, me)—China recently revised its Lawyer’s Law to make lawyers’ lives easier. But one persistent issue still seems to loom at large. Article 34 of the Lawyer’s Law requires a lawyer to keep his client’s secret information confidential (i.e. past crime), but Article 84 of the Criminal Procedure Law requires any individual to report any information about crimes to law enforcement authorities. If we consider lawyers as individuals in the sense of the Criminal Procedure Law, there is an apparent conflict between the two laws. How should a lawyer deal with this issue in his/her practice?

Answer 4 (Law professor, Bingzhi Zhao)—As a law professor and a part-time practicing attorney, I hope to answer this question. On the surface, there seems to be a conflict. However, there is no direct conflict. If you look at the apparent conflict in the frame of the relationship between laws, it looks very different. Some laws are special, such as the Lawyer’s Law. Because lawyers enjoy an immunity from the reporting duty under the Criminal Procedure Law while representing a client, the conflict goes away in that situation. In the past decade since the promulgation of the Lawyer’s Law, this apparent conflict was consistently dealt that way.

[Sidebar: another delegate told me in private conversation that the Criminal Procedure Law will soon be amended, which will probably deal with the conflict.]

Question 5 (SMU law student)—Would you please talk about China’s efforts in intellectual property protection?

Answer—IPR protection is both a Chinese and a global issue. Since China’s entry to the WTO, China has paid more attention to IPR protection in a three-pronged approach: legislation, administrative agency enforcement, and police involvement. In terms of progress made in China, here are the statistics:
2002—2006, about 54,321 IP cases were filed in various courts; 52,000 cases were adjudicated by courts. Compared to the same 5 year period between 1997 and 2001, those numbers represent a growth of 145% and 141%, respectively.

By 2006, China has 172 courts devoted to try IP cases.

China has 16,600 judges specializing in IP cases.

Question 6 (SMU law student)—What type of legal regime does China have in dealing with product liability in light of the recent product recalls?

Answer (Professor Lixin Yang)—China actually borrowed heavily from the American and British common law in creating its own product liability law. In 1986, the General Principles of Civil Code was passed, whose Article 122 is devoted to tort liability. While China is in the middle of creating its comprehensive Civil Code, the Tort Law will be lifted out of general provisions and be an independent body of law in the Civil Code. In a civil law system, it is rare to have an independent Tort Law. And the Tort Law will probably come out either next year or in 2009.

I hope that you enjoyed my long notes from this function. It was an incredible experience for me.

Judges: Mind Your Image and Manners

The Henan Supreme People’s Court recently made news here and here. It issued China’s first institutionalized provincial level judicial etiquette—《河南省人民法院司法礼仪规范(试行)》, the Henan Province People's Court judicial etiquette (Provisional) (“Judicial Etiquettes”). The much hyped Judicial Etiquettes will become effective on August 1, 2008, across the central province of Henan.

It sets out some norms for judges to follow while on or off the bench. Some deal with speech, some deal with dress code, and others concern basic manners in a court room.

The following 11 types of sentences addressing lawyers are banned:

1. Stop talking (or more crudely, shut up).
别再说了。

2. Am I the judge or you are?
你当法官还是我当法官。

3. Do you or I know the law?
你懂法还是我懂法。

4. Whose words are controlling here?
你说了算还是我说了算。

5. Shall we listen to you or me?
听你的还是听我的。

6. Not agreeing to mediation is not good for you.
　　 不同意调解对你可没好处。

7. Your case is sure to win/lose.
你这个案件肯定要输（赢）的。

8. How are you lawyering the case?!
你这个律师怎么当的。

9. This Court is not here for you alone.
法院不是为你一个人开的。

10. You are annoying.
烦人。

　11. This is how I’m gonna rule. You are free to appeal, to whomever and wherever.
我就这样判了，你去告好了，想找谁找谁，想去哪告去哪告。

Aren’t these rules great?! Taxi drivers in Beijing and the judges in Henan finally have something in common to talk about—Caution, Speech. What is more, the judges in Henan are now officially required to deliver justice and politeness. Hopefully, that is not a tall order.

There is more to the Judicial Etiquettes. Judges in Henan also have to mind their manners too on the bench. For example, they cannot do these:

1. leave the bench in the middle of proceedings;
不得擅自离开审判席

2. receive phone calls or play computer games;
不得接听电话、玩游戏

3. wear sandals or slippers;
不得有穿拖鞋

4. Pick ears or cut fingernails;
掏耳朵、剪指甲

5. Smoke, eat snacks, or any other improper activities
吸烟、吃零食等不雅行为

I cannot imagine these happening in a court room; but apparently it’s been an issue in Henan People’s courts. Not targeting Henan Province here or have anything against it, which is the cradle of the Chinese civilization, but it is Henan that first came up with these rules.

And the following are my favorites:
1. Male judges shall not grow long hair, beard, or shave their heads bald.
2. Female judges shall not “dye their hair, wear heavy make-up, tattoos or painted nails.”
3. While wearing their uniforms, judges should not hold hands, arms with others in the public.

Overall, I see the Judicial Etiquettes as a positive thing, especially in the light that lawyers will get more respect in court rooms. But, what is wrong with male judges growing long hair? Is it the continuing campaign to root out any remaining influence of the Qing Dynasty? And female judge paining their nails?

Take it easy, your Honors in Henan.

IP Piracy: Does China Deserve the Bad Name?

The answer is more likely a “yes” than “no” for the average consumer exposed to the media’s persistent portrayal of China.

Assuming that you live in the West, you probably have heard the usually song and dance from the media—China is undergoing drastic changes, BUT its record on intellectual property is atrocious.

Now, Tim Johnson of the China Rises Blog (added to my blogroll) came out with a post, titled Is China unfairly bashed on piracy? In his post he urges a fresh look, posing the question: “Is it possible that the media have got it wrong?”

Then, he went on to cite a research report by a law professor out of Thomas Jefferson Law School:

That’s what a professor at the Thomas Jefferson School of Law in San Diego says [The media might have got it wrong]. He’s written a 24-page report that essentially says China, taken as a whole, is not the leading global pirate. When figures are adjusted for population, China's rates of intellectual property violation are lower than those of many other countries, including the United States.

Read his entire post and the underlying report; maybe a new perspective will change the way you view China’s piracy sin.

China's New Anti-Monopoly Law: More Power to the People or the Government?

China’s promulgation of its first ever comprehensive anti-monopoly statute captivated the interest of many scholars and practicing lawyers. Since the first draft of the Anti-Monopoly Law (“AML”) first surfaced, countless articles and comments have been written about the law, given the heavy-weight nature of a comprehensive competition law. Some even referred to this newly-adopted AML as “an economic constitution”, underlining its prospective important rule in China’s economy.

As the clock ticks down toward August 1, 2008, when the AML will become effective, some have expressed their concerns and thoughts about what exactly the AML could bring to the table in terms of fulfilling the stated legislative purposes of this law. Will it be a law enforced in the best interest of protecting consumer rights and general public interests, or will it be just another vehicle for the government to increase its power and influence in the private domain of business and commerce?

Recently, I finished reading an article written by Mr. Paul Jones, a Canadian international lawyer based in Toronto. Paul not only does an excellent job of reassembling the AML in a more reader-friendly fashion (unless you are a civil law statute purist who loves reading civil codes as they are), but also adds some very thoughtful discussions about what the AML is about or could morph into in the future:

On August 30, 2007, after l3 years of discussion the 29th Session of the l0th National People's Congress adopted the Anti-Monopoly Law ("AML") to come into effect on August l, 2008. Will this be the new "economic constitution" for China's market economy as hoped by the sponsors; or a source of "uncertainty for domestic and foreign companies over how the government will use its new powers?" Foreign companies are particularly concerned about provisions allowing for a review of mergers and acquisitions on national security grounds.

The answer at this time must be that, like the development of China's market economy, the AML is still a work in progress. While the basic framework of general principles has been set out in the AML, as would be appropriate for a fundamental piece of civil law legislation, the details that expand upon and clarify the principles will come in the regulations, measures and guidelines that hopefully will be issued in the months to come.

Please click here to read the entire article.

China’s Foreign Investment Guide Catalogue Revised

November 7, 2007 marks an important date for foreign investment policies in China, as reported by the China Briefing Blog and elsewhere (in Chinese):

The Ministry of Commerce and the National Development and Reform Commission jointly released the latest Catalogue for the Guidance of Foreign Investment Industries today.

The catalogue, approved by the state council, will take effect on December 1 according to the NDRC’s website. The new catalogue replaces a catalogue that came into effect in 2004.

While continuing to encourage foreign investment towards the hi-tech, equipment manufacturing and new material industries, the catalogue adds service-outsourcing and modern logistics to the service industry in an effort to fulfill China’s commitment to the WTO.

Overseas investment targeting conventional manufacturing industries in which China has mastered advanced technologies and has competent production capacity is no longer encouraged in the new catalogue.

Under pressure to clean up a growing environmental catastrophe, Beijing is pushing FDI towards developing clean production, reproducible energy, and ecological protection. Foreign capital is not permitted in the exploration of rare and non-reproducible mineral resources, or in high consuming and polluting industries.

Hoping to further spur development away from the booming coast, the revised catalogue drops the article limiting foreign investment in the central and western regions of China. Introducing foreign capital will also be considered in rejuvenating Northeast China and other historical industrial bases.

These revisions to the Investment Guide Catalogue are consistent with recent changes in other Chinese laws and regulations. For example, China revised it tax code to unify tax rates for domestic and foreign-originated companies, while at the same time providing tax incentives for clean and environmentally friendly industries. In addition, China modified its catalogue of export products to limit the export of inexpensive and labor-intensive goods, with the purpose of adjusting trade imbalance with its trading partners and addressing environmental concerns.

Here is the revised Investment Guide Catalogue in Chinese [I have not been able to find an English version]; here is the old Investment Guide Catalogue in English as of 2004. Be sure to note the differences.
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Update:

The English version of the Revised Foreign Investment Guide Catalogue can be found below:

Here, for an unofficial translation.

So far, I have not been able to find an official translation. Generally, one should be able to find official translations of important laws and regulations at http://www.fdi.gov.cn/pub/FDI_EN/default.htm

If a reader finds the official translation, would you please leave the URL of the site in your comment to this post? Thanks!