Monday, July 31, 2006
This is an addendum to my earlier posting on this subject.
As Yan Luo's comment to that post points out, I overlooked the fact that the reach of this regulation extends beyond Chinese lawyers to foreign lawyers, and very possibly the latter are the intended target. Yan Luo also wonders if this regulation is a GATS violation. My answer to all such WTO-related questions is: take a look at the relevant agreement. Very often there is no need to wonder because the answer can easily be found.
In this case I will ignore my own advice and speculate. On the one hand, the regulation could be viewed as an interference with the cross-border supply of legal services that constitutes a nullification and impairment of the justified expectations of foreign service providers. On the other hand, however, it is WTO-legal in a very important sense: it does not discriminate between Chinese and foreign service suppliers.
Friday, July 28, 2006
MOFCOM's recently promulgated Rules on Responding to Antidumping Actions Against Exported Products (出口产品反倾销案件应诉规定) state (Art. 15) that lawyers or law firms who have assisted foreign firms in antidumping actions against Chinese products may not for the next three years represent Chinese firms in antidumping actions brought against them:
反倾销案件立案前 3 年内曾代理过调查国或地区企业,申请发起针对中国产品的贸易救济措施调查的律师和律师事务所不得参加律师竞聘。行业组织应将在代理行为中曾严重影响或损害我企业、行业利益的律师和律师事务所通知应诉企业。
An experienced foreign lawyer in Beijing had the following comment to me: "These regulations express the for us or against us mentality that is known to exist in MOFCOM." They can only be called an effort to punish Chinese lawyers for doing what is neither illegal nor unethical. But MOFCOM does not regulate the practice of law. If neither the All-China Lawyers Association nor the Ministry of Justice sees anything wrong with representing foreigners in these cases, who is MOFCOM to say such work should be punishable by the loss of other business?
Actually, I wonder how these regulations can be enforced. If a Chinese respondent wants to hire a particular Chinese firm to help it in an antidumping case abroad, how can MOFCOM prevent it?
Thanks to my former student Ma Jin for bringing these regulations to my attention.
Tuesday, July 25, 2006
Monday, July 24, 2006
The Congressional-Executive Commission on China's hearing entitled "China's WTO Financial Services Commitments: A Commercial Rule of Law Assessment," which was originally scheduled for Wednesday, July 26 from 10 a.m. to 11:30 a.m., has been cancelled.
Sunday, July 23, 2006
In a follow-up post on the above agreement, the China Law Blog kindly endorses one of my comments in my earlier post on this, so let me return the favor by quoting the following practice tip, with which I completely agree:
I am of the view that in almost all cases, the best strategy for foreign companies doing business in China is to negotiate an arbitration provision. Two main reasons for this. One, arbitrators are usually more knowledgeable about international commercial disputes than the courts. Two, arbitration awards are generally much easier to enforce internationally than court judgments.
Indeed, I would add that arbitration awards - especially foreign arbitration awards from a signatory country to the New York Convention - are easier to enforce domestically in China than Chinese court judgments (at least as far as the applicable rules are concerned), since losers have fewer grounds for seeking relief. Under the Supreme People's Court's 1995 Notice on Issues Concerning the Handling by People's Courts of Matters Related to Arbitration Involving Foreign Interests and Foreign Arbitration (最高人民法院关于人民法院处理与涉外仲裁及外国仲裁事项有关问题的通知), a court decision not to enforce a domestic "foreign-related" arbitration award or an award from New York Convention country would ultimately have to be approved by the Supreme People's Court.
Note: There is an interesting drafting quirk in this rule, as there is in the relevant section of the Civil Procedure Law. The relevant language speaks not of a Chinese foreign-related arbitration award, but of an award issued by a Chinese institution for foreign-related arbitration (我国涉外仲裁机构裁决). In other words, the key is the issuer of the award, not the nature of the award itself. In 1995, this meant CIETAC and possibly the Maritime Arbitration Commission, at that time the only bodies that could hear foreign-related arbitration, so it made no difference. Since 1995, however, other arbitration bodies such as municipal arbitration commissions have achieved jurisdiction to hear foreign-related arbitration cases, and CIETAC can now hear non-foreign-related arbitration cases. Is an award issued by the Beijing Arbitration Commission in arbitration between a foreign entity and a Chinese entity subject to the rule? It would be a stretch to call the BAC an "institution for foreign-related arbitration". Comments based on actual experience welcome.
Saturday, July 22, 2006
On July 14th, the PRC central government and the Hong Kong government signed an agreement for the mutual recognition and enforcement of commercial and civil court judgments in certain cases. Essentially, the agreement allows parties to choose PRC or HK courts as they would choose an arbitration organ; it will not result in HK courts enforcing PRC judgments against parties that have not bargained for it. I have previously blogged here and here on this subject (including the interesting differences between this agreement and one signed between the central government and Macau) so I won't go on at length here. Please see below for useful web references discussing this agreement; I recommend the commentary by Graeme Johnson as the most complete.
- Chinese text
- English text
- Commentary by Graeme Johnson of Herbert Smith (July 17, 2006)
- Shanghai Daily article (July 15, 2006)
- China Economic Review article (July 14, 2006)
- China Law Blog analysis (July 13, 2006)
- Legalweek.com article (June 29, 2006)
I have discovered that the HK government has a useful web page for mainland-related legal issues generally at http://www.doj.gov.hk/eng/topical/mainlandlaw.htm#mutuallegal.
Friday, July 21, 2006
I am pleased to forward the following announcement:
The Asian Journal of Comparative Law (AsJCL) is an initiative of the Asian Law Institute, an association of thirteen leading law schools in Asia. The AsJCL is a peer-reviewed journal which is published in both the printed form and the electronic form, the latter by Berkeley Electronic Press (BEPRESS) (website at www.bepress.com/asjcl ). The journal is spearheaded by faculty from the National University of Singapore's Law School and the journal's editorial board comes from top institutions across the Asian-Pacific region and South Asia.
Based in Asia and representing the most prominent Asian legal institutions, The Asian Journal of Comparative Law is the definitive new source for Asian perspectives on the law and legal perspectives on Asia. Articles from Asian scholars with intimate local knowledge offer special insight into the ways that legal solutions are tailored to local culture and circumstance. Comparative law, central to Asian legal scholarship, is defined broadly: recent topics include Korean corporate governance, the political culture of blogging in Malaysia, and Asian discourses on legal education. The Asian Journal of Comparative Law will be an invaluable resource for scholars of comparative and international law, as well as scholars of Asian area studies.
Thursday, July 20, 2006
Last September I posted here about the Shandong "barefoot lawyer" Chen Guangcheng (陈光诚). The July 20th issue of the New York Times carries a good article by Joseph Kahn here on his latest travails. For a rather ugly commentary that accuses him of being a traitor in the pay of foreigners, see here.
Wednesday, July 19, 2006
I have received the following announcement:
The Congressional-Executive Commission on China will hold a full Commission hearing entitled "China's WTO Financial Services Commitments: A Commercial Rule of Law Assessment," on Wednesday, July 26 from 10 a.m. to 11:30 a.m. in Room 124 of the Dirksen Senate Office Building. Senator Hagel will preside.
All CECC hearings are open to the public and the press. Members of the public who wish to attend do not need to respond to this message or otherwise register. News media representatives should see the final paragraph of this announcement.
The witnesses are:
Timothy P. Stratford, Assistant U.S. Trade Representative for China Affairs, Office of the United States Trade Representative
Mark Sobel, Deputy Assistant Secretary for International Monetary and Financial Policy, U.S. Department of the Treasury
John Frisbie, President, The US-China Business Council
Pieter Bottelier, Visiting Associate Professor, School of Advanced International Studies, The Johns Hopkins University
Nicholas C. Howson, Assistant Professor of Law, University of Michigan Law School
For news media representatives: If you have no special equipment needs, you do not need to register in advance. If you need special equipment or services (e.g., malt box, audio feed), please contact Emma Ashburn at (202) 226-3831 not later than close of business on Friday, July 21.
Tuesday, July 18, 2006
I have been asked to post the following. Please ignore the language about "the enclosed attachment"; I don't have it (I will post it if I get it). Just go to the CECC's web site.
The Congressional-Executive Commission on China (CECC) is currently soliciting resumes for fall internships (paid) in Washington D.C., working on Chinese human rights and rule of law issues. Interns must be U.S. citizens.
Applications for fall internships must be received by August 1. Further details are available both in the enclosed attachment and on the Commission's Web site at www.cecc.gov.
Interested applicants should send a cover letter and resume to the CECC, preferably via e-mail to Judy Wright, Director of Administration.
Please forward the enclosed attachment to interested students (both undergraduate and graduate), particularly those with strong research and language skills.
Director of Administration
Monday, July 3, 2006
The July 2006 issue of China Human Rights and Rule of Law Update, the newsletter of the Congressional-Executive Commission on China, is now available here. For readers in China who can't get to the blocked CECC site, click here: Download july_newsletter.pdf
On June 29th, the National People's Congress Standing Committee adopted a number of amendments to the Criminal Law, effective immediately. They are available here. For commentary on the relationship of the amendments to capital markets, see here. For a commentary on the decision not to criminalize sex-selective abortions, see below:
Sunday, July 2, 2006
I regret that postings will continue to be sporadic during July, as I will on vacation and otherwise away from my usual work routine for much of that time. Regular postings will resume around the middle of August.
Best wishes to all,
Saturday, July 1, 2006
I have been asked to help distribute the following announcement seeking law teachers for the Hopkins-Nanjing Center. I have no association with the Center, but colleagues who have taught there have enjoyed it.
JOHNS HOPKINS UNIVERSITY
HOPKINS-NANJING CENTER FOR CHINESE AND AMERICAN STUDIES
TWO LAW POSITIONS FOR 2007-08
Johns Hopkins University invites applications for two Visiting Professors of Law at its graduate school located in Nanjing, the oldest, most ambitious, and largest-scaled joint academic venture in China.