Tuesday, July 31, 2012
The BBC recently reported that two Chinese citizens had been sentenced by police in Jiangxi province "to labour camp" (probably re-education through labor (RETL) 劳动教养, since the police can do this, but have no authority on their own to impose a criminal punishment of reform through labor 劳动改造). The offense? The son of one of the citizens reported that police had told him that his mother "took part in an illegal demonstration." OK, par for the course so far. Nothing unusual about this, right? Wrong. The demonstration was in Hong Kong.
Hong Kong is, of course, part of China, but PRC law does not apply in Hong Kong, with the exception of a few specific statutes listed in an appendix to the Basic Law. And the laws regarding criminal and adminstrative offenses (the kind that can get you locked up for re-education through labor) aren't there. For these purposes, then, Hong Kong is like a foreign country. Thus, the citizens here are getting locked up on one of two theories:
1. You can be punished in China for something you did outside of China that was illegal where you did it (the "illegal demonstration" was illegal in Hong Kong, and China is just helping Hong Kong enforce its own law).
2. You can be punished in China for something you did outside of China that was perfectly legal where you did it. (I.e., China passes judgment on whether the act should be punishable.)
China's Criminal Law does indeed cover acts committed by persons (citizens and non-citizens) outside of China, but where the maximum sentence is imprisonment for three years or less, the actor "may" (可以) be exempted. Here the Criminal Law does not seem to be implicated; just the administrative punishment of RETL. The rules on RETL do not, to my knowledge, say anything about their extraterritorial application; given the approach of the Criminal Law, however, it is hard to believe that anyone considering the issue in the abstract would have thought that it could be applied in this way.
This action by the authorities, then, is a big red flag to any Chinese citizen who thought they could not be punished under Chinese law for engaging in an action abroad that didn't amount to a major crime under Chinese law. (Few people would be surprised to find themselves punished on returning to their home country if, for example, they committed treason while abroad.) If you look at the regulations on RETL, you'll find that you can even be sentenced for "not engaging in a proper occupation" (不务正业). Lazy Hong Kongers lying around on your mom's sofa, beware!
Monday, July 30, 2012
Thursday, July 26, 2012
China’s official news agency announced yesterday that Gu Kailai (it calls her Bogu Kailai, but that’s another story), the wife of ousted Chongqing Party secretary Bo Xilai, had been formally charged with murder by the Hefei Municipal Procuratorate in Anhui Province and would face trial in the Hefei Intermediate People’s Court. Wait a minute. Hefei?
To the best of anyone’s knowledge, neither the accused nor the victim, nor indeed anything about the case, is remotely connected with Hefei. And indeed, that is very likely the reason the government has decided to try the case there. There is a long tradition of trying cases involving high-level officials outside their power base – one source (HT: Eve Sun) estimates this happens 90% of the time – because of fears they can use their local influence to influence the result. Indeed, that courts are vulnerable to this kind of pressure is readily admitted even in the most orthodox sources (see, for example, this article on the “News of the Communist Party of China” web site on why corrupt officials need to be tried outside their home base). Only Foreign Ministry spokespeople speaking to the foreign press take the trouble to deny it these days.
No doubt, then, this practice makes sense. But is it legal?
The article above quotes Wang Jixue, a current-affairs commentator, as saying that the practice has a legal basis in Article 26 of the Criminal Procedure Law, and that the provision there reflects the legislators’ profound grasp of Chinese realities. But let’s see what the Criminal Procedure Law actually says.
The basic rule of jurisdiction is set forth in Article 24: “A criminal case shall be under the jurisdiction of the people's court in the place where the crime was committed. If it is more appropriate for the case to be tried by the people's court in the place where the defendant resides, then that court may have jurisdiction over the case.” OK, so we are talking about either Chongqing or wherever Gu Kailai resides – maybe Chongqing, maybe not, but in any case certainly not Hefei.
What level of court should hear the case? That question is answered by Article 20: cases involving a potential life or death sentence shall be heard in the first instance by an intermediate-level court (even higher if the case is of province-wide or nation-wide significance). OK, no problem there.
Note that Article 24 presents some choices about location, and somebody has to decide how widely significant the case is in order to decide the appropriate level of the first-instance trial. What happens if people don’t agree? No problem: Article 25 says, “When two or more people's courts at the same level have jurisdiction over a case, it shall be tried by the people's court that first accepted it. When necessary the case may be transferred for trial to the people's court in the principal place where the crime was committed.” And if there is still disagreement, the final decision is assigned by Article 26 to the highest court that chooses to get involved in the matter: “A people's court at a higher level may instruct a people's court at a lower level to try a case over which jurisdiction is unclear and may also instruct a people's court at a lower level to transfer the case to another people's court for trial.”
Does Article 26 explain why Gu Kailai is being charged and tried in Hefei, then? No.
First of all, there is no relevant issue of unclear jurisdiction here. There is nothing to suggest that any court other than an intermediate court in Chongqing should have jurisdiction. But what about the second half of the sentence, which seems to give a superior court (in this case, it would have to be the Supreme People’s Court) unfettered discretion to transfer any case from any inferior court to any other inferior court? This can’t be the explanation, because this case hasn’t been transferred to the Hefei court. That’s where it started.
Anyone who knows anything about China will, of course, already suspect that this trial cannot possibly take place in the absence of substantial political influences. But I think it’s important to point out this particular example of that process at work. The decisions to have the Hefei procuratorate bring the prosecution and to have the trial in Hefei cannot be accounted for under the current rules of the Chinese legal system. Grammatically speaking, no legal institution could have been the subject of the verb “decide”. There was an extra-legal political decision made that this is how the matter would be handled, and that decision was then transmitted to all relevant actors in the legal system.
One caveat: the decisions could as a formal matter have come from the Supreme People’s Procuratorate and the Supreme People’s Court. In that case, though, the point still stands that the decisions don’t seem to have been made in accordance with the rules of the Criminal Procedure Law. I’m not claiming here, by the way, that there is anything inherently unjust about trying officials away from their home base. What’s interesting is that while it would be easy to amend the CPL to provide a way for these decisions to be made, nobody seems to think it necessary.
Many bloggers have already written about the posturing of certain of our elected representatives on the issue of China-made clothing for US Olympic athletes, using various permutations of the word “idiot” (e.g., Daniel Drezner, “idiocies like the Olympic-uniform controversy”; Stan Abrams, “US Olympic Uniform Idiotfest”).
For readers who have been in news-free zone for the last few weeks, the controversy erupted when it was reported that Ralph Lauren, the supplier of parade uniforms for the US team, had contracted the job out to a Chinese manufacturer. (Too bad they didn’t contract out the design to someone else, too.) Quick off the mark with some really delightful imagery was Senator Harry Reid, who huffed, “I think they should take all the uniforms, put them in a big pile and burn them and start all over again.” The next day, a resolution was introduced into the House expressing disapproval of the decision to purchase Chinese-made uniforms and urging the SOC to source domestically in the future. And on the same day, six senators, apparently idle because of the lack of serious problems facing the United States, announced they would introduce legislation requiring the US Olympic Committee to source the ceremonial uniforms domestically. That legislation, the Team USA Made in America Act of 2012, was duly introduced into the Senate and referred to committee on July 16.
No doubt thoroughly panicked, the USOC went into deep mea culpa mode and started negotiating with the bill’s sponsors on July 18. The result was an official statement of a new policy by the USOC, with no formal Congressional action at all. Senator Bob Menendez announced, “I’m incredibly pleased that the USOC has formally adopted the requirements outlined in the Team USA Made in America Act.” USOC CEO Scott Blackmun stated, one imagines through heavily gritted teeth, “We were pleased to work with Sen. Menendez and his colleagues in Congress to address their concerns regarding Team USA’s parade uniforms.” Yeah. Real pleased, I’m sure.
In a welcome sign that our lawmakers are not completely bonkers, the new policy does not require the current uniforms to be burned or even replaced. Here it is:
- All uniforms provided by sponsors, partners, licensees, or suppliers for parade ceremonies shall be “Made in the USA” as defined by the standards of the Federal Trade Commission, with the following exception allowing for a deviation from the policy:
- Obtaining such parade ceremony uniforms would be in violation of U.S. law or would not comply with any applicable trade agreements or treaties to which the United States is a party;
- Essential materials or parts needed to produce parade ceremony uniforms are not available in the United States;
- Obtaining such parade ceremony uniforms would cause undue delay or create material financial detriment to the U.S. Olympic Committee;
- It would violate IOC, Local Organizing Committee or host country laws, rules or regulations to adhere to the policy for the particular event.
- If the U.S. Olympic Committee cannot obtain parade ceremony uniforms in conformance with this policy, it shall make publicly available information explaining the reasons why it cannot do so.
- As a part of its Quadrennial Report to Congress, the U.S. Olympic Committee shall include an assessment of its performance under the policy, providing justifications on any instances where it has had to diverge from the policy, as well as any changes it has made to the policy.
Whether the expenditure of time and resources on this matter did more to help the US worker than anything else its sponsors could have done with the same amount of time and resources is a question I will leave to others. What I want to look at here are the trade law implications.
The general idea behind the WTO is not to eliminate trade barriers but to bring them under control. This happens through a process in which members negotiate those trade barriers among themselves. The trade barriers you are allowed to have are the ones that were agreed to in negotiations. You can’t come along later and unilaterally erect new ones. If you think other members are cheating, there’s a process for dealing with that. “Trade barriers” includes not just tariffs, but also domestic sourcing requirements, since such requirements (in the vision of trade embodied in the WTO agreements) distort what would otherwise be the “normal” flow of exports and imports under agreed-upon barriers.
The WTO does not, and cannot, prohibit private parties from deciding on their own to buy domestic products even if it doesn’t make economic sense to do so. But it generally prohibits governments from ordering or even encouraging them to do so. (Canada was found in violation of this principle back in the pre-WTO era for having a requirement that foreign investors source domestically when the domestic price was the same or cheaper – i.e., a very modest burden.)
What about government purchases? Can the government decide on its own that it prefers domestic sources, even when they’re more expensive? Yes – this is an exception to the general rule against requiring or encouraging domestic sourcing, partly because the government is in a sense just making its own “private” decision. But governments can also commit on a reciprocal basis to opening up their procurement markets by signing on to the Government Procurement Agreement. The US is a member; China is not.
As a result, if the USOC is a governmental entity, then it can decide on its own or be ordered by government to prefer domestic sources without China being able to complain. (Other GPA members might able to complain, though.)
But is it? It’s a federally chartered corporation under the Ted Stevens Olympic and Amateur Sports Act. But that doesn’t make it a federal governmental agency any more than a Delaware corporation is a creature of the Delaware state government. It receives no federal money. As I read the USOC’s bylaws, the board of directors is entirely self-perpetuating, and no US government official, elected or not, has any say in their selection. I stress that I’m not an expert in what counts as a governmental entity for purposes of the GPA, but my guess is that the USOC would not.
If that’s so, then it has to be able to decide on its own whether to source domestically or not. If the USOC board members, on the basis of a misguided sense of patriotism, bribes from textile manufacturers, pressure from their mothers, or instructions from the Great Pumpkin appearing to them in a dream, decide to source domestically even when it would be cheaper to go abroad, that’s OK under WTO rules. (This is why the policy’s stated exception for non-compliance with applicable trade agreements or treaties to which the US is a party makes no sense – the USOC, as a private party, cannot violate those agreements; only the US government can.) What is not OK, I think, is for board members to make this decision under government pressure.
If it would not be permitted for the US government to mandate the USOC to source uniforms domestically (that would be, if nothing else, nullification or impairment under Art. XXIII of the GATT), surely it is not permitted for it to engage in backroom armtwisting to achieve the same result. Of course, it’s harder to bring a WTO case when backroom armtwisting is involved, because when armtwisting takes place in the back room, it’s hard to get evidence. In this case, however, the armtwisting took place in the living room, with a big picture window facing the street and paparazzi outside recording every second.
I remember the outcry over China’s indigenous innovation policy, which after all involved government procurement and was therefore not even WTO-illegal. And I remember the, ahem, skepticism that greeted China’s claim that when its exporters stopped shipping rare earths to Japan just at the time that China was pissed off at Japan, the government had nothing to do with it. I don’t think it is really in the interest of the US to promote the principle in international trade that reneging on your promises is OK provided you do it through private meetings and off-the-record phone calls and not through formal legislation.
There’s a brief discussion of some of these issues at the International Economic Law and Policy blog.
Tuesday, July 24, 2012
Li Qinghong is (or was) a real estate businessman who in March of 2010 was sentenced by a court in Guiyang to 19 years' imprisonment for involvement in organized crime. The story of what happened afterwards is fascinating and is recounted here (in English and Chinese) on the Tea Leaf Nation blog. The long and the short of it is that an increasingly vigorous defense was mounted, a number of lawyers got involved, gross procedural problems were exposed, and ultimately (surprise!) the conviction was upheld on retrial. Plenty of grist for both optimists and pessimists.
Saturday, July 21, 2012
This just in from the China IPR blog:
The Beijing-based IP boutique law firm ZY Partners is hiring a middle level IP associate. The preferred candidate has a US LLM degree or equivalent. PRC bar is a requirement. A science/technology background is preferred but not required. Competitive compensation.
Anyone who is interested may contact Mr. He Jing at Jing.He@zpartners.com.
Wednesday, July 11, 2012
I hope readers know that I'm always happy (time permitting) to post announcements of job opportunities as a service to the Chinese law community, provided the jobs have some reasonable relation to Chinese law. Here's the latest from Winkler Parterns in Taiwan:
Winkler Partners is looking for an intern for the academic 2012-2013 year from September 2012 to June 2013. The basic qualifications include good analytic, research, and English writing skills. We will try to pair you with an intern from a Taiwanese law school.
You do not need to know any Chinese although you will be able to do more if you can. You do need to be either a native speaker of English or have near-native fluency. Your duties would include curating social media sites, writing updates on legal topics, and light case work for 15-20 hours per week. This position would be ideal for someone who is already studying Chinese or an academic subject in Taiwan and is thinking about law school.
All offers are conditional on whether we can obtain authorization for you to work in Taiwan. Please send a resume and a brief writing sample to the attention of Gladys Kao (firstname.lastname@example.org) if you are interested.