Wednesday, October 31, 2012
Yesterday I talked about what might happen if Wen Jiabao or his relatives tried to sue in the United States over the recent New York Times story on the Wen family forture. Today I’ll talk about the legal standards that would apply if they tried to sue in China. Please note that this issue is distinct from two other issues:
- Would they win if they sued? Almost certainly. I can’t imagine a Chinese court handing a defeat to a sitting or former premier or his immediate family in a case like this.
- Will or should they sue? Very possibly not. Although the family might have a lock on the outcome, a lawsuit means more publicity and unforeseeable further consequences. They might win the battle and lose the war.
Having gotten that out of the way, let us proceed.
As I’m not an expert in this area, a key source for me is Benjamin Liebman’s article Innovation Through Intimidation: An Empirical Account of Defamation Litigation in China, 47 Harv. Int'l L.J. 33 (2006). Prof. Liebman has also kindly shared his thoughts in some further communications and I’ve done a bit of my own research as well. (Needless to say, Prof. Liebman is not responsible for the conclusions I draw in this post.)
With Prof. Liebman’s permission, I am posting here an extract from the Innovation article in which he explains the legal framework. Here’s the key part:
“[There are] three general circumstances under which defamation will be found: (1) where the content of news reports is ‘seriously mistaken’ or, in the case of critical news reports, where the ‘basic content’ of such reports is incorrect, and such mistakes or inaccuracies result in harm to reputation, (2) where insulting or slanderous language results in harm to reputation, or (3) where unauthorized revelation of personal details causes harm to reputation. [This suggests] that, although the truth of a media report may be a defense to a claim of harm to reputation, truth is not a defense where the alleged defamation results from insulting words or from revelation of personal details.” (Internal footnote omitted.)
Although China promulgated its Tort Law after Prof. Liebman’s article was published, it doesn’t change the accuracy of this summary. The Tort Law protects the right to reputation and dignity, but with no details, so presumably pre-existing interpretations still apply.
Here are the key refinements to this summary:
- “There is no public person doctrine in Chinese defamation law (although some within China have called for the adoption of such a standard, and a small number of courts have in effect adopted such a standard in individual cases).” (Liebman, personal communication.)
- “[The rule] that the media shall not be liable for critical reports that are ‘basically correct’ has permitted courts both to overlook significant errors in reporting and to base liability on minor errors.” (Liebman, Innovation.)
- “[J]ournalists complain that courts generally place the burden of proof on the media, forcing them to attempt to prove that even small details in their reports were correct.” (Liebman, Innovation.)
- Truth is a defense to a criminal libel charge. (Criminal Law, Art. 246; 《刑法学》，黎宏著，2012年版，第689页到第690页，北京，法律出版社; 《刑法各论》，周光权著，2008年版，第75页，北京，中国人民大学出版社.)
And what about the law in practice? Here’s the bottom line:
- “Chinese defamation law generally is pro-plaintiff, both in formal law and in application. Truth is not always a defense, and courts have often in effect required that the media prove the veracity of statements. There is also significant wiggle room in the relevant Supreme People’s Court Explanation when it comes to defining whether the ‘basic content’ of media reports was correct or not. Chinese journalists have often complained that the legal framework governing defamation claims puts them at a significant disadvantage when they are sued.” (Liebman, personal communication.)
- “Defamation has often been used by officials in response to negative media reports. However, officials who have brought such suits have virtually all been low-ranking, and the targets of such lawsuits have been domestic media. I am not aware of prior suits brought by senior officials or of suits against foreign media.” (Liebman, personal communication.)
So where does this leave us?
- Truth is a defense to criminal liability.
- Truth is sometimes a defense to civil liability.
- Truth is not a defense where insulting language has been used.
- Truth is not a defense where the complaint is of harm to reputation caused by the unauthorized revelation of personal details.
- Even in the absence of political considerations, Chinese defamation law is generally sympathetic to plaintiffs. The countervailing value of free speech just doesn’t cut a lot of ice; Chinese law doesn’t worry much about overbreadth and chilling effects.
- No officials of Wen’s stature have brought defamation suits against foreign media before. I suspect, but do not know for sure, that this holds true for immediate relatives of officials of Wen’s stature.
Thus, if Wen or his relatives were ordinary folks without political influence (impossible to imagine, of course, given that we are not relaxing the wealth condition in the hypothetical), it seems to me that it could go either way. It’s possible although by no means certain that they could win a suit in China even if the statements in the NYT article are accurate. A court might plausibly find that the amount and nature of one’s wealth are protected personal information. (I have not checked, however, to see if there are any cases that address this particular question.) If not, though, then the other conditions for liability don’t seem to be met; it’s hard to argue that the article uses insulting language of the kind that has gotten defendants into trouble before.If, of course, the statements are not accurate, then their chances of winning go up quite a bit. The courts are already sympathetic to plaintiffs, and there is no public figure doctrine that gives the press extra leeway to make mistakes. Finally, there is no cost to courts in making a foreign press organization liable in tort, whereas domestic press organizations have a certain amount of clout.
Tuesday, October 30, 2012
More notes on the continuing saga of the Wen family fortune, which I've blogged about here and here. Lawyers retained by undisclosed members of the Wen family issued a statement denying parts of the story and containing a veiled threat of a lawsuit at the end. (The Want China Times reports that the lawyers have since stated they are acting on behalf of Wen's son, Wen Yunsong (Winston Wen).)
What would happen if Wen or his family members tried to sue in the US? Here's an analysis by my colleague, Jonathan Turley, an expert in these matters. Best line: "The Chinese government regularly responds to such corruption stories with executions but they are viewed as little more than a lethal form of public relations." One caveat: his analysis states that the Wen family has already retained US lawyers, which to the best of my knowledge is not accurate, but I think we can forgive him this slight misreading of the NYT story because he wrote his post in the middle of trying to drive from New Orleans to Washington in a hurricane. It doesn't affect the analysis.
What would the legal analysis be if the Wen family sued in China? Stay tuned - I hope to have something on that shortly. Of course, the political analysis is pretty easy - it's unimaginable that they would lose if they went so far as to bring suit. This does not mean it would be wise for them to do so, however - there would be costs.
Monday, October 29, 2012
Rogier Creemers, a member of the Chinalaw listserv, recently had an interesting post on legal research in China. With his permission, it's reproduced here:
Through a discussion with colleagues, I became
interested in the question of what China's policy is in terms of conducting and
supporting legal research, with a few people. Personally, I found that, over
the years of dealing with Chinese researchers and graduate application, most
proposals I would get are remarkably similar, and in the vein of: "I want
to research the function of [insert doctrinal concept] in a number of advanced
jurisdictions, such as the US, UK, Germany and [insert country to which application
is made], and write a chapter on how this should be implemented in China.] In
other words, very instrumental and positivist. So I decided to look fora few
documents on this, and one thing I found was an Opinion on legal research of
the China Law Society, China's academic association for the legal sphere. It
includes interesting passages on the context of legal research, its connection
to practice and the function of international exchange.
I thought this might be useful for some list members as well, so please find it here:
Here’s an interesting twist to the recent New York Times story on the family fortune of Wen Jiabao. (I blogged about it here.) The story at no point accuses Wen or his family members of doing anything illegal. But what about Party disciplinary rules? Here there may be a problem, even though (as I’ll explain) it’s because the rules as written are arguably tighter than is reasonable.
The bottom line is that Wen appears to be in violation of a Party rule requiring senior officials to prevent their close relatives from engaging in business in areas (geographical or subject-matter) under their jurisdiction or, failing that, to resign. Since Wen is the premier, all of China falls within his geographical jurisdiction, and pretty much all areas of business would be within his subject-matter jurisdiction as well. This, of course, means that his close relatives can’t engage in any business in or even relating to China at all. I don’t claim that this is a reasonable or practical result, or that it was intended by those who wrote the rule, but that’s how I read it. My reasoning is below.
In 1997, the Party promulgated a set of disciplinary rules called the “Chinese Communist Party Several Principles on Clean Administration of Government by Party Member Leading Cadres (for Trial Implementation)” (中国共产党党员领导干部廉洁从政若干准则（试行）) (the “1997 Principles”). Article 5 of the 1997 Principles states:
The spouse, children, and spouses of children of leading cadres at or above the level of province (ministry) may not personally engage in business, set up enterprises or work in a wholly foreign-owned enterprise within the region and the subject-matter scope of that leading cadre’s jurisdiction. 省（部）级以上领导干部的配偶、子女及其配偶，不准在该领导干部管辖的地区及管辖的业务范围个人经商办企业和在外商独资企业任职。
Obviously, there are many questions here.
- In terms of substance, what does it mean to “engage in business” or “set up enterprises”? The term I’ve translated as “set up” is particularly vague; it just means “do” in a general sense, so it’s overly restrictive to interpret it as just meaning “to establish” in some formal way. Perhaps “to be involved in” is better.
- Does the term “personally” qualify the forbidden activity in any important way? Is it OK to do it through proxies?
- In terms of logical structure, are “engage in business”, “set up enterprises”, and “work in a wholly foreign-owned enterprise” three distinct activities, each of which is prohibited? Or does the lack of a serial comma between “engage in business” and “set up enterprises” suggest that the meaning is ““engage in business by setting up enterprises”? I believe three distinct activities are covered here. In other places – indeed, in Art. 2 of this very regulation – we see a serial comma between “engage in business” and “set up enterprises”, making it likely that they are intended to be distinct activities and that the absence of a serial comma here is just a mistake or is otherwise insignificant. On the other hand, we could also read them as a single activity that essentially captures the idea of investing and getting profits as opposed to simply being a company employee.
- Is the prohibition only against activities that satisfy both criteria of being in the leading cadre’s geographic and subject-matter jurisdiction? I believe this would be a silly interpretation; I translated the relevant conjunction as “and” instead of “or” only to avoid hiding the possible problem, but the correct English translation would be “or”. The grammar of Chinese Party rules is just not so strictly logical as the grammar of English legislation. Clearly what is intended is that where the leading cadre jurisdiction is defined by region, the relatives can’t do business there, and when it’s defined by subject-matter, the relatives can’t do business in that field.
- What’s the enforcement mechanism?
Later the same year, the Party issued a set of implementing measures (《中国共产党党员领导干部廉洁从政若干准则试行》实施办法) (the “1997 Measures”). These explain some of the concepts of Article 5 of the 1997 Principles.
- “Personally” “engage in business” and “set up enterprises”: Art. 31 of the 1997 Measures refers you back to Art. 10, which defines what it means for the leaders themselves to “personally” “engage in business” and “set up enterprises” (also forbidden under Art. 2 of the 1997 Principles). Art. 10 states that this means “to engage in business and set up enterprises with one’s sole investment, to engage in business and set up enterprises in joint venture, joint stock, cooperative, or partnership form, or to engage in business and set up enterprises oneself through subcontracting, leasing, being hired, or other forms.” (个人独资经商办企业，与他人合资、合股、合作、合伙经商办企业，私自以承包、租赁、受聘等方式经商办企业。) It seems clear here that “engage in business” and “set up enterprises” are just general terms that should not be read too strictly. Very possibly, however, the idea of “setting up enterprises” is there as a way of implying that equity ownership is the key to what’s forbidden, and that merely being the employee of an enterprise without a significant interest in its profits is not forbidden.
- The enforcement mechanism is spelled out in Art. 31 of the 1997 Measures: if you can’t get your relatives to stop doing the forbidden things, then resign or ask for a re-assignment. (拒不纠正的，领导干部应当辞去现任职务或者由组织上调整其职务.) Moreover, the matter should be handled in accordance with Art. 88 of Party’s Regulations on Disciplinary Punishments (纪律处分条例). In the linked version of these regulations, Art. 88 is about retired cadres, so perhaps there has been a subsequent renumbering; I’m not positive the cross-reference is still correct.
In subsequent years, the Party issued further clarification of the forbidden activities of the spouse, children, and spouses of children of leading cadres at or above the level of province or ministry (hereinafter, “Covered Relatives”):
- In 1998, a “Supplementary Rule” provided that Covered Relatives could not work for the foreign side in joint ventures.
- In 2000, an “Interpretation” of a different rule defined “personally engage in business and set up enterprises” as ”engaging by oneself or together with others in a private economic organization; personally serving in a senior management position in a private economic organization; personally engaging in compensated social middleman services; personally registering companies outside of mainland China and then returning to the mainland to engage in economic activities; etc.” (个人经办或与他人合办私营经济组织；个人受聘担任私营经济组织的高级职务；个人进行有偿社会中介活动；个人在国（境）外注册公司后回国（境）从事经营活动等。) This Interpretation is worth looking at because it also spells out in detail a number of substantive prohibitions applicable to the close relatives of senior leaders. Interestingly, the Interpretation does not by its terms apply to officials such as Wen who are above the ministry level.
In 2010, a new version of the 1997 Principles (the “2010 Principles”) was issued and the old version superseded. The nepotism provision in the 2010 Principles, also in Art. 5, makes a key change: the senior official is no longer presumed to control, and made responsible for, the activities of his relatives. Instead, he is required not to help them out in their business activities. But he is not required to resign simply because they are engaging in business in areas that might be within his jurisdiction. It’s not clear whether the 2000 Interpretation noted above survives; it’s about the activities of relatives of senior officials that conflict with the public interest and significantly overlaps the 1997 Principles. Thus, the following conclusions apply only to things that happened before 2010.
Here are a few conclusions we can draw from all this – and remember the qualification I just made about timing.
- The 1997 Principles cover no activities by Wen’s mother or siblings.
- The 1997 Principles cover only activities by Wen himself, his spouse, his son, and his son’s spouse.
- These statements from the NYT story describe
activities by Winston Wen that, if they occurred before 2010, would be covered
by the 1997 Principles:
- “The couple’s only son sold a technology company he started to the family of Hong Kong’s richest man, Li Ka-shing, for $10 million, and used another investment vehicle to establish New Horizon Capital, now one of China’s biggest private equity firms, with partners like the government of Singapore, according to records and interviews with bankers.”
- “Winston Wen and his wife, moreover, have stakes in the technology industry and an electric company, as well as an indirect stake in Union Mobile Pay, the government-backed online payment platform.”
- “Winston Wen’s earliest venture, an Internet data services provider called Unihub Global, was founded in 2000 with $2 million in start-up capital, according to Hong Kong and Beijing corporate filings.”
- “[Winston Wen] made an even bolder move in 2005, by pushing into private equity when he formed New Horizon Capital with a group of Chinese-born classmates from Northwestern.”
- I can’t find in the article a statement about
Wen’s wife that unambiguously indicates a violation of the 1997 Principles.
Many of the investments attributed to her seem in fact to have been made by
entities of which she was an executive, not necessarily an owner. Of course,
she may have been in a position to extract benefits by means of her position
just like any other official in a government agency or state-owned enterprise,
but that’s not a per se violation of
the rule I’m discussing here.
Saturday, October 27, 2012
Lawyers purporting to speak on behalf of the family of Wen Jiabao (and I have no reason to doubt that they do) have issued a statement challenging certain aspects of the blockbuster expose recently published in the New York Times [English|Chinese]. Although the headline of the Times's report on the statement is "Chinese Premier’s Family Disputes Article on Riches," in fact the statement disputes remarkably little.
Let's look at what it says:
I. The so-called “hidden riches” of Wen Jiabao’s family members in the New York Times’ report does not exist.
This is way too vague to constitute a denial of anything.
II. Some of Wen Jiabao’s family members have not engaged in business activities. Some were engaged in business activities, but they did not carry out any illegal business activity. They do not hold shares of any companies.
(1) Well, of course some of Wen's family members have not engaged in business. The Times did not claim they all had. Thus, no dispute. (2) The Times article did not claim anyone had done anything illegal. Again, nothing to dispute. (3) Are they saying that no members of Wen's immediate family hold any shares in any companies? There is of course nothing wrong with anyone owning stock in some company. This part of the statement is, however, a genuine dispute, since the article does assert that "Mr. Wen’s relatives accumulated shares in banks, jewelers, tourist resorts, telecommunications companies and infrastructure projects". Maybe there is some "it depends on what the meaning of 'is' is" going on around the difference between "relatives" and "family members". But it would be hard to claim that his mother is not a family member, and the article did assert that she owns shares. OK, one genuine dispute here.
III. The mother of Wen Jiabao, except receiving salary/pension according to the regulation, has never had any income or property.
Another genuine dispute. This flatly contradicts what the article asserts.
IV. Wen Jiabao has never played any role in the business activities of his family members, still less has he allowed his family members’ business activities to have any influence on his formulation and execution of policies.
No dispute here; the article does not make this claim.
V. Other relatives of Wen Jiabao and the “friends” and “colleagues” of those relative are responsible for all their own business activities.
This is almost true by definition. Again, it doesn't contradict anything the article says.
All in all, then, the lawyers' statement really challenges only one specific assertion - that Wen's mother is a multi-millionaire - and one general assertion - that several of his relatives own shares in various corporations. It may be that in many cases it is literally true that the relatives don't own shares in companies; instead, they may hold interests in partnerships or some other entity that doesn't have shares, and the entities in turn hold the corporate shares. But I wonder whether you can go through life as a wealthy person and not own any shares in any companies.
Tuesday, October 9, 2012
I have received the following announcement about a China-related antitrust position with the Department of Justice in Washington, DC. Application deadline is Nov. 4th. Here's the full announcement.
The Foreign Commerce Section of the Antitrust Division has recently posted a vacancy notice seeking a highly qualified attorney to serve as a senior Attorney in its Foreign Commerce Section. This attorney would be responsible for:
The position is open and competitive.
- Advising senior Division officials on the development and implementation of Division policy on international enforcement and cooperation issues involving China and other East Asian jurisdictions, and liaising on such issues with the Department of State and other U.S. government agencies.
- >Assisting the Division's litigating sections in their matters with international aspects involving Chinese and other East Asian antitrust issues, including facilitating law enforcement and other cooperation between the Division and Chinese and East Asian antitrust agencies.
Thursday, October 4, 2012
Wednesday, October 3, 2012
Why am I posting this? Because it is there. Rogier Creemers found this in an internal training manual for journalists he chanced across in a second-hand bookshop, and has public-spiritedly provided a translation at his blog [translation | Chinese original]. I don't think it's publicly available elsewhere, so I'm posting it here.
Tuesday, October 2, 2012
Edward Alden of the Council on Foreign Relations has published a piece called “Obama’s misguided China slapdown.” I’m not sure I understand his point. The basic idea seems to be that the Obama administration, in blocking through the CFIUS process a Chinese acquisition of a small Oregon wind farm project, has damaged the US economy by sending discouraging signals to Chinese investors. But his argument seems to have some looseness in the joints.
Alden starts by implying that the rejection is something remarkable: he says twice that it’s the first presidential rejection of a foreign acquisition on national security grounds since George H. Bush did it 22 years ago. Well, stop right there. If something like this happens only once every 22 years, it’s a bit implausible to argue that it’s going to be a major discouragement to investors.
But of course just looking at formal rejections makes no sense. To gauge the foreign investment climate, we should also be including potential investments that were ultimately scrapped before they even got to the point where they could be reviewed and denied because the investors were put off by the reaction they had already elicited – for example, CNOOC’s proposed acquisition of Unocal, or just about anything connected with Huawei. If we did that, it would strengthen the argument that the US was hostile to foreign investment, but it would weaken the argument that the Obama administration did something extremely rare and thus presumptively improper. You can’t have it both ways.
OK, so let’s add in all those scrapped potential investments and get a kind of maximum hostility index. We still don’t know if Chinese investment is being discouraged. It might be that the blocked and scrapped investments were a tiny proportion of total investment and that most Chinese investors were having no problems. Indeed, Alden admits as much: he quotes David Marchik of the Carlyle Group as saying, “the vast majority of Chinese investments in the United States have either been approved or have not required any approval.” Under the circumstances, is a single formal denial going to have a big impact?
We might, by way of comparison, look at foreign investment in China. Barriers to foreign investment there are surely by almost any measure greater than barriers to foreign investment in the United States, and yet the foreign investment community has not been notably discouraged. Are Chinese investors are more skittish than their developed-world counterparts and are more easily frightened off?
Finally, as noted above, Alden agrees that existing barriers to Chinese investment in the US are, in fact, trivial. His piece turns out to be a concern about a perception – or more accurately, a misperception – on the part of Chinese investors that America might not be a good place to invest. I wouldn’t say that perceptions don’t matter, but still, I wonder if it’s really worth writing a whole piece to slam the Obama administration just for creating or encouraging a misperception of this kind.
For the record, I, too, find it hard to find a national security threat in a wind farm acquisition, but what do I know?
I just received the following announcement. Looks like a terrific program - it's a very knowledgeable group and includes Chen Guangcheng.
* * * * *
This year's International Law Weekend features two stellar China-law panels. The American Branch of the International Law Association and the International Law Students Association are sponsoring this October 25-27 conference in cooperation with the Leitner Center for Law and Justice at Fordham Law School.
- ILW opens on Thursday evening, October 25 at the home of the Association of the Bar of the City of New York (42 West 44th St.) with a plenary panel discussion on The Rise of China and the Rule of (International) Law, featuring Amb. Winston Lord, Jerome Cohen (NYU), Elizabeth Economy (Council on Foreign Relations) and John Crowley (Davis Polk). Benjamin Liebman (Columbia) will chair and moderate.
- The following afternoon, Friday, October 26 at 3, Chen Guangcheng and Ira Belkin (both of NYU) will discuss Lawyers and China's Future. This panel -- and the rest of the Friday and Saturday programs -- will be held at Fordham Law School.
Program details and registration information are available here.