Friday, June 17, 2005
The following fellowship is not specifically in support of research in Chinese law, but that would certainly be included within the ambit scope of contemporary China studies. Here's the announcement:
UNIVERSITY OF CAMBRIDGE
MELLON FOUNDATION POST-DOCTORAL FELLOWSHIP IN CONTEMPORARY CHINESE STUDIES IN THE FACULTY OF ORIENTAL STUDIES
Applications are invited for a Mellon Foundation two-year post-doctoral
fellowship in contemporary Chinese Studies in the Faculty of Oriental
Studies, starting on 1 October 2005.
The salary will be £24,820 per annum.
The postholder will be expected to carry out research in any social
science discipline related to the study of contemporary China and to
teach for up to 7 hours per week on the undergraduate and Masters
courses in Chinese Studies.
Candidates should have a promising research record and be able to
teach disciplinary courses in English as well as using Chinese primary
source materials at both undergraduate and postgraduate level.
Applications, including an application form, a curriculum vitae and the
names and addresses of two referees, should be sent to Mrs Jane
Fisher-Hunt, Secretary to the Selection Committee, Faculty of Oriental
Studies, Sidgwick Avenue, Cambridge, CB3 9DA (telephone 01223 335107,
fac 01223 335110, email email@example.com), so as to reach her by noon
on Friday July 8th. Two references are required for each application
and the applicant should ask the referees to make sure that the
reference reaches the Secretary by the same deadline.
It is hoped that interviews will take place during the week commencing
Application forms (PD18) are found at
http://www.admin.cam.ac.uk/offices/personnel/forms/pd18/ and are also
available from the Secretary.
Further details are available from the Secretary, and are also found
on the Faculty's website, www.oriental.cam.ac.uk.
The University of Cambridge is committed to equality of opportunity.
Thursday, June 16, 2005
For all those who thought Americans were too litigious, here's a story from China about an attorney suing the Hubei Expressway Company because a traffic jam led to the speed provided not being "express". He is arguing that the lower-quality product (a slower road) should mean lower fees. Needless to say, lower fees would result in more cars on the road, leading to even slower speeds, but then, he's a lawyer and not an economist.
Wednesday, June 15, 2005
The indefatigable Wei Luo of the Washington University School of Law Library has just published a new book, Chinese Law and Legal Research. Wei writes:
Although Chinese law as a general topic has been explored quite extensively, I have to devote 1/3 of my book to discuss Chinese government structure, legal system, and sources of law to help would-be researchers get oriented in how to approach Chinese legal research and what information to be expected. Several flow charts were created to illustrate Chinese legal system. I also discuss Chinese legal publishing industries and how the Chinese government information is disseminated.
Here's the bibliographical information on the book:
New York: W. S. Hein, 2005, 380 pages, bibliographies, index, and illustrations, $85. Ordering information can be found at http://www.wshein.com/; orders can be e-mailed to firstname.lastname@example.org, or call 800-828-7571.
Tuesday, June 14, 2005
The Trade Development Alliance of Greater Seattle and the Washington State China Relations Council are putting on a presentation on arbitration in China on June 23rd in Seattle. Further details are available here. The blurb is as follows:
China has been wildly successful at attracting foreign capital investment and related trade deals. However, the perception among many foreign investors is that China's legal reforms and institutions are not impartial in contractual disputes with Chinese parties or as sophisticated as foreign laws and courts when addressing complex legal disputes. As a result, foreign investors are requiring that contractual disputes with their Chinese counterparts be resolved by means of mediation and, if that fails, international arbitration outside of China using an agreed upon set of rules and procedures. Please join us for a discussion on recent Chinese legal reforms, the New York Convention and the most common forms and forums for international arbitration utilized by foreign investors in China, as well as several model dispute resolution provisions taken from agreements involving investment in and trade with China.
Monday, June 13, 2005
An article in the June 10th Financial Times ("Microsoft bans 'democracy' for China web users") reports in part as follows:
Microsoft's new Chinese internet portal has banned the words "democracy" and "freedom" from parts of its website in an apparent effort to avoid offending Beijing's political censors.
Users of the joint-venture portal, formally launched last month, have been blocked from using a range of potentially sensitive words to label personal websites they create using its free online blog service, MSN Spaces.
Attempts to input words in Chinese such as "democracy" prompted an error message from the site: "This item contains forbidden speech. Please delete the forbidden speech from this item." Other phrases banned included the Chinese for "demonstration", "democratic movement" and "Taiwan independence".
The joint venture operating the portal, Shanghai MSN Network Communications Technology (in which Microsoft holds a 50% stake), stated that "MSN abides by the laws and regulations of each country in which it operates", and that users of MSN Spaces were required to accept the service's code of conduct, which forbids the posting of content that "violates any local and national laws". The FT article then noted that "there is no Chinese law that bars the mere use of words such as democracy".
It's true that there is no such statute or, to my knowledge, any other kind of regulation passed by an official government body. But is that the end of the story? In The Path of the Law, Holmes viewed law as "the prediction of the incidence of the public force through the instrumentality of the courts". And in The Bramble Bush, Karl Llewellyn said that "what officials do about disputes is . . . the law itself". There is a vast area of rules, customs, and practices in China that, constitutionally speaking, don't amount to law, but that are administered by state and quasi-state (i.e., Party) officials in a semi-regular way and are unquestionably backed ultimately by the coercive power of the state. Control over information is a key part of this area. Maybe we should just consign this whole territory to the field of non-law, but it seems more realistic to me simply not to confine ourselves to the constitutional definition.
The question has practical consequences. In Delaware, where most big U.S. multinationals are incorporated, it is a breach of a director's fiduciary duty to permit a company to engage in illegal activities and thereby expose it to liability. If Microsoft rejects the Holmesian view of law and allows its Chinese portal to do anything not forbidden by formal government regulation in China, and as a result is shut out of China and suffers losses, will Microsoft shareholders be comforted to hear the explanation that it was all technically legal?
There is another side to this coin as well. The Chinese-Chinese-Foreign structure for telecommunications projects, while perhaps technically in violation of various rules, was (I would argue) quite lawful under a legal realist view of Chinese law: the central government at the highest levels knew exactly what was going on and permitted it to continue. Later the government changed its mind and shut down the CCF projects. If a company lost money as a result, should the directors be liable on a theory of condoning unlawful activity?
I don't think so, but frankly I'd rather be the plaintiff's lawyer in a U.S. court -- while the defendants have to philosophize about legal realism without seeming like sophists, all the plaintiffs have to do is to say, "What part of 'illegal' don't you understand?" The result is that considerations of U.S. litigation may drive U.S. companies to observe rules in the Chinese legal system that, from a legal realist perspective, aren't really legal rules, and that nobody -- not even the Chinese government -- wants or expects them to observe.
Sunday, June 12, 2005
The Carnegie Endowment recently held a seminar in Washington, DC on "Enhancing the Political Role of Lawyers" in China, with the featured speaker being Mr. Gong Xiaobing, the Director-General of the Department of Judicial Assistance and Foreign Affairs of the Ministry of Justice of China. The full text of his remarks in both English and Chinese, as well as the comments of Dr. Veron Hung of the Carnegie Endowment, can be found here.
Mr. Gong's remarks make interesting reading, because they show the extent to which many reform-minded Chinese look to American practice -- or at least what they view as American practice -- as a model of what lawyers should be doing both professionally and as citizens.
It's also interesting to think about some of the things Mr. Gong identifies as the principal problems of the Chinese legal profession. For example, he is concerned that many law firms are small. But is this really a problem for China, and if so, why?
He also views as problematic the fact that "the degree of education and overall quality of lawyers are often higher than those of judicial administration officials who are in charge of managing lawyers". But is it self-evident that the best and the brightest should be in government, with private practice (and the social and political role he favors for practitioners) reserved for the also-rans?