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.
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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.
Sunday, September 30, 2012
Blast from the past: Supreme People's Court and Supreme People's Procuracy repeal several pre-1980 rules
In a society as fast-changing as China's, rules can quickly become obsolete. But the system can rarely get around to repealing or updating them in time. The pragmatic response to this problem has been simply to ignore the outdated rules when they get in the way. But this response does, of course, have a cost in damage to the culture of legality. Thus, institutions still try from time to time to identify and purge from the system old and obsolete rules. The latest attempt at this was published jointly by the Supreme People's Court and the Supreme People's Procuracy on Sept. 29, 2012. Interestingly, it was approved by the SPP last December, but not by the SPC until last June. And it wasn't promulgated until this month. I don't know the reason for all this delay.
The abolished regulations range in time from 1956 to 1979. Most are abolished because the subject matter they deal with no longer exists - for example, crimes of counterrevolution or hooliganism. I suspect (without any real evidence, I admit) that nobody was implementing these rules any more anyway, so this is likely just a housekeeping operation and won't bring about any change in practice.