Wednesday, June 8, 2005
The China Committee of the ABA Section on International Law is putting on a breakfast/CLE on June 24th in Shanghai that will look at the role of the National Development Reform Commission in the foreign investment approval process. Here's the descriptive blurb:
Obtaining the Ministry of Commerce's (or its predecessor's) approval of projects has been key for foreign investors wishing to access the PRC market. In July of last year, the State Council issued its Reform of the Investment System Decision, which appeared to signal an important role for the National Development Reform Commission (“NDRC”) and perhaps a significant step in development of a registration system instead of an approval system. However, the Decision was broadly worded and left open the specific procedures to be applied by the NDRC. Of keen interest to foreign investors is how the NDRC registration process will in fact fit with the MOFCOM approval process. The NDRC subsequently adopted the Administration of the Verification of Foreign-invested Projects Tentative Procedures (issued October 9 2004), with the apparent aim of clarifying matters. However, significant questions still remain.
For complete information, click here.
A conference on WTO, China, and the Asian Economies will be held at Xi'an Jiaotong University in Xi'an, China on June 25-26. It is jointly organized by faculty from Xi'an Jiaotong University, International University of Japan, and the University of Washington.
For more information, please visit the conference website.
Tuesday, June 7, 2005
Mark Williams of Hong Kong Polytechnic University has written the above book, which will be available from Cambridge University Press in September. The publisher's blurb states in part:
This book is the only comprehensive guide to the competition regimes of China, Hong Kong and Taiwan. Chinese developments are placed in the context of the adoption of competition regimes by developing and transitional states world-wide and also in relation to the influence of trans-national organisations on transitional states to adopt market-based economic strategies. The book adopts an inter-disciplinary approach considering the political, economic and legal issues relevant to competition policy adoption. The paradoxical phenomenon of Communist mainland China seeking to adopt a pro-competition law, whilst capitalist Hong Kong refuses to do so, is explained and contrasted with the successful Taiwanese adoption of a competition regime over a decade ago. The underlying economic and political forces that have shaped this unusual matrix are discussed and analysed with a theoretical explanation offered for the existing state of affairs.
For more information, see the publisher's website here.
If readers would care to write a mini-review, this post is open to comments.
I have been asked to post the following announcement. I am told that this would probably be a paid position for at least the summer and might continue into the fall.
A law firm in Washington, DC is seeking a legal intern with native Chinese language ability to assist with research of laws, regulations, interpretations, etc. of the People’s Republic of China. Candidate should also be able to translate and interpret (from Chinese into English and possibly vice versa) highly technical and legal documents with ease. Strong organizational skills a plus. Please send resumes to [email protected]. Please state what areas of law you have worked in. Law firm representative will contact you if interested.
Monday, June 6, 2005
Deborah Cao has just published a book taking a linguistic approach to Chinese law. Here's an extract from the publisher's blurb:
Studying Chinese law from a linguistic and communicative perspective, this book examines meaning and language in Chinese law. It investigates key notions and concepts of law, the rule of law, and rights and their evolutionary meanings. It examines the linguistic usage and textual features in Chinese legal texts and legal translation, and probes the lawmaking process and the Constitution as speech act and communicative action. Taking a cross-cultural approach, the book applies major Western philosophical thought to Chinese law, in particular the ideas concerning language and communication by such major thinkers as Peirce, Whorf, Gadamer, Habermas, Austin and Searle. The focus of the study is contemporary People's Republic of China; however, the study also traces and links the inherited and introduced cultural and linguistic values and configurations that provide the context in which modern Chinese law operates.
More information from the publisher's website can be found here.
The author is Senior Lecturer at the School of Languages and Linguistics, and also at the Socio-Legal Research Centre, Griffith University, Brisbane, Australia.
If anyone would like to post a mini-review, this posting is open to comments.
For anyone in Beijing, the following law-related activities are going on this week:
- Regulation of Financial Governance and Enhancement of Information Disclosure in Chinese Listed Companies, June 7, 6 p.m. (Australian Chamber of Commerce)
- The Chinese IPR System and Trademark Protection, June 9, 8:30 a.m. (Swedish Chamber of Commerce)
Sunday, June 5, 2005
Yet another lawyer representing a large group of clients in a sensitive case was reported on June 1st in the Financial Times to have been detained. [Story] Zhu Jiuhu (朱久虎) represented hundreds of former oilfield investors in Shaanxi seeking to recover their losses after the government reversed its policy of allowing such operations and seized oil wells. [Background story] Five plaintiff representatives were detained as well. At the same time, the Higher Level People's Court of Shaanxi Province refused to hear their case, reportedly on the grounds that the government was already dealing with the case and that the claims referred to abstract administrative actions. The first reason does not seem legally relevant, but the second reason may hold more water legally if the suit was brought under the Administrative Litigation Law. (That law allows suits over the implementation of rules, but not their content.) The FT report does not give details about the litigation.
As many readers will know, Zheng Enchong (郑恩宠), a lawyer who helped Shanghai residents sue over evictions for redevelopment, was sentenced to three years in prison in 2003 [story], and Guo Guoting (郭国汀), who defended Zheng, was recently banned from practising law for a year.
Saturday, June 4, 2005
Prof. Reuven Avi-Yonah (Michigan) has helped establish a Michigan Law School-China faculty exchange program. He and seven Michigan colleagues recently traveled to China to visit Tsinghua University Faculty of Law to help celebrate the latter's 10th anniversary. Michigan hopes to continue to send two or more faculty to China each year and, in turn, host yearly visits by at least two Chinese legal scholars. For more information, see the Michigan press release here.
Friday, June 3, 2005
I recently ran across a well-organized Chinese website devoted to clinical legal education, an area that is increasingly receiving attention in Chinese law faculties. Other resources on clinical legal education in China include:
- The China Law Center at Yale Law School, which has a project in this area;
- A brief article by the dean and a faculty member of Tsinghua Law Faculty;
- An article on the Ford Foundation's work in this area.
Another newsletter worth knowing about is the monthly China Law Digest. According to its website, it is "published by the Constitutional Democracy Forum and edited each month by Xiaoping Chen and translated by a group of research assistants at the Harvard Law School."
Thursday, June 2, 2005
The Congressional-Executive Commission on China has issued the first installment of a newsletter entitled "China Human Rights and Rule of Law Update". This is the successor to "China Rule of Law Developments", an informal email newsletter that is now being retired. The CECC has assembled a very capable staff to monitor legal developments in China, and assuming the new version is more or less like the old, I recommend it as a high-quality publication that reports on interesting developments in the Chinese law scene (within the scope of its topic) without any obvious ideological axe to grind.
I am excerpting below an email I received on this subject:
The CECC newsletter contains an expanded selection of news summaries and analysis from the CECC Web site, as well as information on CECC activities, links to roundtable and hearing transcripts, statements from CECC members, and other materials. . . .
For those interested primarily in legal developments, note that there is a link near the top of the news updates section of the newsletter that will sort the human rights and rule of law stories (of course, there is considerable overlap). Please also note that the sorting feature, as well as some links in the news summaries to material hosted on the CECC Web site, may not function properly for users in China, as the CECC Web site is currently being blocked there.
. . . To sign up for the email list, visit the CECC Web site at www.cecc.gov and click on "Subscribe/Unsubscribe to Commission Email List" and enter your email address.
The annual meeting of the Law and Society Association is featuring a panel on "Selective Cultural Adaptation and Legal Consciousness in Human Rights and Trade Disputes: Comparing Canada, China, and Japan" on June 5th. Prof. Pitman Potter of the University of British Columbia will be speaking (I presume) on China.
Wednesday, June 1, 2005
Readers may wish to check out the recently-updated website of the China Committee of the ABA Section on International Law.
There are a number of China-related programs at the upcoming ABA Annual Meeting in Chicago (Aug. 5 to Aug. 9). You can find them on the agenda; a description is appended below.
Real Estate Investment in China: Risks and Opportunities
In light of overheated economy in P.R. China, it is necessary to address the issue of real estate investment. Central government has ordered provincial leaders in China to adopt measures to reduce the price of residential property price. Is this a signal of risks to invest in real estate market in China? The major cities in China, such as Shanghai, Beijing are embracing many opportunities. There are many factors to push the real estate price up. These factors include but are not limited to an increase in city population, Olympic Games, World Exhibition, booming economy, etc. This program will address current transactional, structuring and compliance issues regarding real estate investing, lending, leasing and transfer activities in the People's Republic of China and relevant rules, including emphasis on tax, regulatory and due diligence issues presented by investments in PRC real property by non-PRC persons.
CLE: Rising Affluence and Post-WTO Reforms: Converging Trends Boost Franchising in China
In November of 2004, a two-day conference and exhibition on franchising in China was held in three major cities: Beijing, Guangzhou and Shanghai. Over 20,000 visitors attended. Seven categories of franchising businesses were represented, with the preferred industries for investment being food & beverage (34%) and laundry services (30%). More than 50% of the vi! sitors said they wanted to invest in a unit franchise store. Of those, 72% planed to invest US$60,000 or more in a franchise. At the same time that business trends were attracting increasing interest in the possibility of investing through franchising, China adopted key legal reforms aimed at integrating what had been a hodge-podge of various regimes relating to franchising activities. Some of the reforms are controversial, some predictable. This program intends to describe the new regulatory environment and its implications, as well as to glean first-hand experiences from companies engaged in franchising as a means to expand their business in China.
Committee Program: Managing the Crossfire of Multi-Dimensional Governmental Involvement in Foreign Investments in China
Foreign investment in China is subject to a multi-dimensional approval system . With the assortment of authorities involved, bureaucratic oversight and jurisdictional disputes are pervasive.
Establishment of a new company that involves investments above a certain “floor” is subject to the examination and approval of the central government. If the total investment were under this “floor”, the approval of the government at the provincial or municipal level would be sufficient. However, at all levels, a single project will usually involve the approval of more than one governmental agency. To begin a foreign investment project, the National Development and Reform Commission or its local counterparts are involved; with regard to the joint venture contract and articles of association of a ”Foreign Investor Enterprise”, the Ministry of Commerce or its local counterparts must approve. For foreign exchange issues, the approval of the State Administration of Foreign Exchange or its local counterpart is required. For land use, approval by the State Land Administration Bureau or its local counterpart is necessary. If a Chinese partner ! that will contribute its tangible assets into a joint venture is a State-owned enterprise, then the State-Owned Assets Administrative Commission will review the appraisal of those assets. The State Administration of Taxation along with the State Council will determine the tax treatment of the transaction. For approval of the scope of the business, parties must go to the State Administration for Industry and Commerce.
To complicate matters, local governments that want to attract foreign investment, may indicate that they can fully approve a project; when they cannot .
This program will address how to manage in the cross fire of all these regulatory agencies, from four perspectives:
- New regime for foreign investment approval by the NDRC and MOFCOM;
- Special issues involved when acquiring Chinese State-owned enterprises;
- Merger control rules for foreign investment;
- Other regulatory processes in asset and equity acquisitions.
The State Copyright Administration and the Ministry of Information Industry have issued new rules pertaining to copyright infringement by web sites. The text of the rules may be accessed at this URL: http://www.law-lib.com/law/law_view.asp?id=92001
The rules provide, among other things, that a web site will be exempt from administrative sanctions for copyright infringement if it removes infringing material upon receiving notice from the copyright owner. Note that the rules do not seem to address the issue of civil liability, which may remain. Thus, they are not quite what web site operators have been looking for.