July 28, 2006
MOFCOM bashes Chinese lawyers representing foreigners
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.
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I might say this provision is not preliminarily targeting Chinese lawyers or law firms. It is more for foreign law firms who wish to represent Chinese firms in antidumping investigations of trade partners, inter alia the EU and the US.
Legally speaking, MOFCOM may not have the right to prevent a Chinese firm to choose a particular law firm. In practice, due to the way that AD cases are handled (the collaboration with government and trade association is of significant importance), their "recommendation" is more or less equal to a commend to individual firm.
I am just wondering whether a regulation of this kind is in violation of GATS.
Posted by: Yan Luo | Jul 30, 2006 1:56:29 PM