Thursday, May 9, 2013
Here's a story that goes straight to the ridiculous without passing the sublime. Self-styled direct descendant of Confucius, Peking University professor (shame on you, PKU!), and all-around blowhard Kong Qingdong (孔庆东) was ordered on Wednesday by the Haidian Basic-Level People's Court to apologize and pay 200 yuan to Guan Kaiyuan, a 22-year-old law student at the China Institute of Industrial Relations. After Guan had criticized a poem by Kong as not following proper composition rules, Kong responded on Sina Weibo (Chinese Twitter), "You haven't even read the poem, you dog and traitor," and added some salty references to Guan's mother.
Guan, who is obviously one of those Chinese people we keep hearing about from the government whose delicate feelings are easily hurt, sued. It's not clear from news reports what the exact claim was - presumably defamation. Anyway, Guan still isn't satisfied - he wants Kong to be required to apologize on his Weibo account, not just in some national newspaper.
While one hates to be in the position of defending someone like Kong, this is ridiculous. Guan posted his critique, and received the insult, under a pseudonym. In other words, even if we decided that ordinary insults like "dog" and "traitor" should be actionable as defamation - something that would already severely crimp ordinary speech - in this case nobody knew the insult was directed against Guan until he outed himself. Do the courts really want to overload themselves with cases from every anonymous troll who managed to provoke a rude response?
Some relevant references:
- South China Morning Post report
- Shanghaiist report
- Beijing News report (in Chinese)
- Language Log post showing that everyone in China and probably many outside are descended from Confucius, too
Friday, March 29, 2013
Here's a fascinating case that makes for an interesting data point in what we think we know about the Chinese legal system. An anti-discrimination NGO reserved rooms at a hotel in Suzhou for a conference. The police got wind of it and instructed the hotel to cancel the reservations in the name of stability maintenance. The hotel, needless to say, did as it was told. Yawn. Dog bites man.
Now it gets interesting. The NGO sued the hotel for damages in a Suzhou. What would we expect? That no court would accept the suit, and that if it did, the plaintiffs certainly would not win. But what happened is that the court not only accepted the suit, but found for the plaintiffs. It rejected the hotel's argument that the police order to close was a kind of force majeure and that the state had expropriated the rooms ("政府临时征用客房开会"). But apparently the government did not in fact take the rooms in question for some other purpose, and the court rejected the force majeure argument, stating that it wasn't one of the events of force majeure spelled out in the contract.
Astonishingly, the vice-chief of the local police station, Mr. Pan, appeared in court and testified that they had indeed orally ordered the hotel not to allow the meeting to go forward:
Pan: Around April 29, 2012, our station received an oral notice from the relevant superior departments saying that during the period of May 1st, because of the needs of stability maintenance work, hotels within our jurisdiction were requested not to permit the hosting of meetings. . . . Because of this, we orally requested the Motai Company [i.e., the hotel] to discontinue their hosting activities. The main objective at that time was not to permit large-scale meetings to go ahead.
Court: Are there any written materials pertaining to this measure by the police?
Pan: No. Everything was orally transmitted from above to below. At the time, officers from the Security Brigade of the Pingjiang Public Security Branch Bureau went with policemen from our station to the defendant Motai Hotel and worked on the hotel manager Feng Xiaojun. [I have translated "做工作" as "worked on"; the basic idea of the term is to try to persuade someone, but one can imagine it was done in a pretty coercive atmosphere.]
It's hard not to have some sympathy for the hotel here. It's unrealistic to suppose that they could just have blown the police off; I would have thought there was indeed a good case to be made for force majeure. What message is the court sending to hotels in cases like this? That they should not listen to police instructions? It seems extraordinary that a court, especially on in the same city as the police in question, should have come up with a judgment like this. Does this mean that courts are not as subservient to local powerholders as we thought? Or is there some fascinating behind-the-scenes story that explains this apparent anomaly? My inclination is to suspect the latter, but if enough data points like this accumulate then the former will start looking more plausible.
It's the old question of whether you make the observations fit the theory ("My theory tells me that this stuff doesn't happen, so there must be something fishy about the observation") or the theory fit the observations ("Time to reassess what we think we know about Chinese courts"). Although many people think the first method is obviously wrong - of COURSE we should adjust our theory to fit the facts, right? - in practice we constantly, and often correctly, question the validity of our observations precisely because they seem so out of whack with a theory in which we have confidence. Remember the Italian scientists who thought they might have found neutrinos that traveled faster than light? Even they doubted their own findings.
Here are two news reports:
Wednesday, March 27, 2013
Sunday, March 24, 2013
New developments in China-Philippines UNCLOS arbitration: tribunal appoints representative for China
In the latest development in the China-Philippines UNCLOS arbitration, the International Tribunal for the Law of the Sea has appointed a representative for China, since China failed to do so.
I've previously blogged about this arbitration (in chronological order, here, here, and here). China has objected to the arbitration on the substantive grounds that the complaint lacks merit, and possibly on procedural grounds that the tribunal for various reasons doesn't have jurisdiction. What the Chinese government doesn't seem to understand (perhaps willfully) is that you don't get to be your own judge of these issues; whether the complaint has merit and whether the tribunal has jurisdiction are things the tribunal decides. To fight the claim in no way acknowledges its legitimacy. What it does acknowledge is the legitimacy of the UNCLOS dispute settlement system. That's presumably an important part of UNCLOS. Does China really want to promote the principle that the system applies only to states that consent to its jurisdiction after the dispute arises?
Monday, March 18, 2013
Tuesday, March 5, 2013
Tuesday, February 26, 2013
Monday, February 25, 2013
Does law matter in China? This is a question I'm often asked (skeptically) when I tell people what I study. As with just about everything related to China, no simple answer is possible. But sometimes you run across nice examples of how it might.
I was struck by this article on the Caixin web site today. Apparently the Ministry of the Environment possesses detailed data on soil pollution in China. Lawyer Dong Zhengwei made a request under the "Regulations on Open Government Information" for that data to be made public. In response, the MOE stated that the information could not be released as it was a state secret.
Surprise, surprise, right? Of course the government does not want to release this information. But think about how this scenario could have played out in an era not so different from today: (1) Lawyer requests information. (2) No response. And this could have happened whether or not there were regulations on open government information.
Instead, the existence of these regulations combined with a shift in what for want of a better term we might call legal culture has meant that the MOE apparently feels the need to respond in some way. It has to come up with a justification for not revealing the data. And that means it has to put itself in the embarrassing position of lamely claiming that this information is a state secret, implying that releasing it would somehow harm national interests.
Let's make two assumptions: (1) an action based on an explicit rationale is easier to criticize than one for which no rationale is supplied; and (2) government officials and agencies would, all other things being equal, prefer not to put themselves in the position of exposing themselves to criticism. If you buy those two assumptions, then at the margin we should expect to see more information being made available as a result of the regulations.
In other words, this law matters not because there is some institution out there (for example, courts) that can force the government to reveal information, but because the very procedure, even if it results in an effectively unreviewable decision not to disclose, puts some pressure on government to operate differently from the way in which it has operated in the past.
Saturday, February 23, 2013
Still more on China-Philippines UNCLOS arbitration: the significance of China's 2006 declaration against UNCLOS dispute settlement
Some commentators on my first post on this issue have raised the following objection:
First commenter: "Sorry but China made a reservation when ratifying UNCLOS and expressly does not accept the compulsory dispute settlement regime under s 287."
Second commenter: (a) "The researcher commenting in the Global Times is actually right. When China ratified UNCLOS, it made a reservation which excludes all forms of dispute settlement in section 2 of part XV of UNCLOS (see http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm#China%20Upon%20ratification). These kinds of reservations, although unfortunate for those in favour of increased international adjudication, are perfectly legal and it therefore does seem that the arbitral panel is without jurisdiction."
Second commenter (b): "A correction to my earlier post: China made the Declaration in which it does not accept the dispute settlement provisions of UNCLOS (which would normally be a reservation) ten years after ratification, which raises issues under treaty law; most likely the Declaration is invalid, but the question is who decides."
I appreciate the comments, but don't agree with them. First, it is not crystal-clear that China's declaration in fact covers the current dispute. The Philippines was of course aware of China's declaration and strove to phrase its case in a way that avoided its effect. For an excellent analysis (with hyperlinks) of the effect of China's declaration and its applicability to this case (concluding that China has a good case but not an airtight one), see this blog post.
Second, and most important, is the issue raised in the last part of Second commenter (b)'s statement: "the question is who decides." Exactly. My point is that this is not in fact a question. The arbitral panel decides. The parties do not get to be judge in their own case even on issues of subject-matter jurisdiction. Once challenged, they have to make their arguments in front of an arbitral panel.
I blogged a few days ago about China's purported rejection of arbitration under UNCLOS of the Philippines' complaint over the Nansha islands. After speaking with colleagues who are international law specialists, I can add a bit more to the following paragraph:
As I read the Xinhua report of China's rejection, China also seems to be arguing that the Philippines is precluded from bringing this type of action because of obligations it has undertaken in other international agreements, specifically, the Declaration on the Conduct of Parties in the South China Sea. For this argument to work, it would have to be true that (a) the Philippines has indeed undertaken contradictory obligations, and (b) those obligations, under international law as recognized by the UNCLOS arbitral tribunal, will trump its rights under UNCLOS. I have no informed (or even uninformed) opinion about whether either part of this argument is sound. But I suspect that these questions must themselves be resolved in the arbitration proceedings.
It is theoretically possible that Country A could have rights against Country B under Treaty X, but has waived those rights under Treaty Y. This is what China is in effect arguing - that even if UNCLOS gives the Philippines a right to arbitration with China (and perhaps even the right to win the arbitration, although of course China would never admit even that hypothetical), it has waived that right by signing on to the Declaration of Conduct (the "DOC").
Here's the problem with that argument. First, it doesn't work in substance. Even if seeking arbitration under UNCLOS did violate a commitment made in the DOC - a very questionable proposition - the Declaration of Conduct does not amount to a formal treaty commitment of the kind that could override a contrary right to arbitration under UNCLOS. But hey - maybe you think that's not crystal-clear. What is crystal-clear is the second point, though: that the argument doesn't work procedurally. Parties don't get to judge the merits of their own arguments. China's argument about the effect of the DOC, like its argument about subject-matter jurisdiction (should it choose to make it) is one that must be made before the UCLOS arbitral tribunal, which has the power to decide its own jurisdiction.
In short, no matter how strong China's case is, it's one that has to be argued before an UNCLOS arbitral tribunal if another UNCLOS member starts proceedings. By joining UNCLOS, you agree to this procedure even in cases you think are frivolous. Is there anyone explaining this to the Standing Committee of the Politburo? They seem to understand it well enough when it comes to the WTO.
Thursday, February 21, 2013
Here's a pretty astounding story that's currently agitating the Chinese twittersphere/blogosphere: a Zhejiang man in his eighties was tried for a murder that took place in 1967, at the height of the Cultural Revolution. According to the China News Service story, the defendant, surnamed Qiu, was directed by the local militia to strangle the victim, a doctor suspected of being an informant for unspecified others - perhaps a rival group. Qiu was arrested in July 2012, after having been out of the area of decades. (The South China Morning Post story linked to above says he was "on the run", but the Chinese text doesn't support that interpretation; it just says he had been away from home for decades, without any implication that he was trying to avoid capture.)
This case raises two interesting legal issues.
First, is there no statute of limitations in China? Yes, there is. The longest period allowed is 20 years; that's for crimes punishable by life imprisonment or the death penalty (Art. 87 of the Criminal Law). There are two ways this prosecution could lawfully go forward, however, in spite of the passage of time. First, Art. 88 says that the ticking of the clock is suspended if the suspect flees investigation after authorities have initiated one or a court has already accepted the case. Thus, I suppose the case could be brought now as long as the authorities initiated an investigation within 20 years of the killing and the suspect is deemed to have fled. (If they waited longer, then there would be no crime left to prosecute, at least as I understand the rule.) That's possible: twenty years later puts us in 1987. Second, Art. 87 says that prosecutions can when necessary be brought even after twenty years have passed, but only with the permission of the Supreme People's Procuratorate. The short press report we have does not, of course, say anything about this.
Second, aren't the courtrooms of China going to get a little, ahem, crowded if we start prosecuting everyone who was involved in extrajudicial killings during the Cultural Revolution? One can understand the policy decision that some cans of worms should be left unopened. The Chinese Communist Party does not do Truth Commissions. Indeed, this very issue has already been thought about, and there was in the past an official poicy on it.
In 1984, the Supreme People's Procuratorate (the body in charge of prosecutions) issued an official Reply to a question from the Hebei Provincial Procuratorate about whether to prosecute those who had caused injury or death in the course of struggle sessions or forcing confessions through torture during the Cultural Revolution. The answer: "Cultural Revolution cases took place during special historical conditions. The issue of whether or not to prosecute these cases is highly political. In accordance with the spirit of relevant rules of the Central [Party Committee] and the Provincial Party Committee, the matter should be handled by political-legal organs according to law after reporting to the Party Committee [the administrative level of which is left unspecified] for examination, approval, and decision. If relevant organs have different views in the course of carrying out [this policy], they should report to the Party Committee for resolution through adjustment." In other words, it is recognized that these cases are not simple murder cases, and essentially a fact-intensive political decision must be made each time one of them comes up.
The legal effect of this document, however, was annulled in 1993 by another document from the Supreme People's Procuratorate. No reason is provided; perhaps it was just embarrassing to have this reminder around, or perhaps someone thought the language about having everything decided by the Party, instead of by legal professionals, was a little outdated and reminiscent of the Bad Old Days. The document does not explain why the earlier document was annulled or what policy should take its place, so it's a little unclear where we now stand: since the 1983 document essentially establishes a restriction on prosecutions and then provides a way to proceed, does annulling it abolish the restriction or does it abolish the way to proceed?
Whether this prosecution is a one-off or a harbinger of more to come is a question of more than just academic interest. The Cultural Revolution has not yet (despite the Party's best efforts) passed into the mists of history, where "the memory of man runneth not to the contrary," as they say in property law. People who were 20 in 1967 - certainly old enough to beat people to death - are now 66 and possibly still in good shape if they been doing their tai-chi. People who lost relatives are still alive, too. This case may awaken what was perhaps a long-dormant desire for vengeance.
I've provided a screen shot of the Chinese news story at the top of this post; it's already been scrubbed from several sites, and by the time I post this and you read it, it may be unavailable at the link I've provided.
Tuesday, February 19, 2013
The news today is that China has rejected - or more accurately, purported to reject - the Philippines' attempt to resolve a dispute over sovereignty (over the Nansha Islands in the South China Sea) through arbitration under the UN Convention on the Law of the Sea. According to the Philippines' Department of Foreign Affairs, "The Department received this afternoon from Chinese Ambassador to the Philippines Ma Keqing a Note Verbale stating that China rejects and returns the Philippines’ Notification and Statement of Claim."
The Department goes on to say, "In its Note Verbale, China reiterated its often stated position that it has indisputable sovereignty over the entire South China Sea encompassed by its 9-dash line claim." This is interesting, if true. One perplexing aspect of the 9-dash line, which dates from the late 1940s when China was under Chiang Kai-shek's Kuomintang, is that successive Chinese governments have refused to say exactly what they mean by drawing it. Are they claiming, for example, that all islands within the line are Chinese, which would imply territorial waters 12 miles out from each island (and an Exclusive Economic Zone of 200 miles) but no further? Or are they claiming that the entire South China Sea is in effect a Chinese lake? The Chinese report of the rejection states only that China claims sovereignty over the Nansha Islands "and their adjacent waters." This is a more limited claim than the one the Philippines' government is reporting.
In any case, what I want to write about is the legal effect of China's rejection upon the arbitration proceedings. As far as I can see, it has no effect at all. According to China's Global Times, "The international court would not take the case without agreements from all parties involved, Dong Manyuan, a researcher at the China Institute of International Studies, told the Global Times." Sorry. No. Read your UNCLOS again. The proceedings do not require the agreement of both parties; or more accurately, each defendant has already agreed in advance to arbitration by the mere fact of joining UNCLOS. The Philippines has, pursuant to Article 286 and 287(1)(c), requested the formation of an arbitral tribunal under Annex VII. And Annex VII makes clear that the failure of a state to show up and cooperate does not bring the proceedings to a halt; they go on without it.
China's argument that the Philippines' notice of arbitration is factually flawed and contains false accusations is of course bogus; you don't get to reject otherwise justified proceedings against you just because you don't agree with the charges. Of course you don't agree with the charges; that's why arbitration is necessary.
As I read the Xinhua report of China's rejection, China also seems to be arguing that the Philippines is precluded from bringing this type of action because of obligations it has undertaken in other international agreements, specifically, the Declaration on the Conductof Parties in the South China Sea. For this argument to work, it would have to be true that (a) the Philippines has indeed undertaken contradictory obligations, and (b) those obligations, under international law as recognized by the UNCLOS arbitral tribunal, will trump its rights under UNCLOS. I have no informed (or even uninformed) opinion about whether either part of this argument is sound. But I suspect that these questions must themselves be resolved in the arbitration proceedings.
It's going to put China in an awkward position if it loses and simply blows off its treaty obligation to respect the arbitration decision.
[UPDATE: For a cogent analysis that's congruent with this one but discusses somewhat different issues, see Julian Ku's post here at Opinio Juris. In an earlier post, Prof. Ku argues that China may have a pretty strong jurisdictional claim. But typically arbitration panels decide their own jurisdiction to decide, so it's risky to refuse to appear and make that argument.]
Sunday, January 27, 2013
Now we're being told (Global Times story here) that it will be after the March meetings of the National People's Congress and the Chinese People's Political Consultative Conference. According to the report, unnamed insiders say that the case is complicated and that the trial might last ten days.
Ten days would be extraordinarily atypical in a criminal trial. A recent study of a large sample (non-random, but those are the limitations of research in China) of criminal cases found that two thirds of Basic Leval court cases and one third of Intermediate Level court cases were completed within one hour, including adjournments. Of course, that's hardly surprising - in the vast majority of cases, the defendants admit most or all of the prosecution's case, so these trials are functionally similar to a US court's processing of a plea- bargained deal. (This is by no means to claim they are identical or problematic in the same way.) What empirical research shows, however, is what anecdotal evidence has long suggested: that matters of importance are almost never decided at the trial stage, and that the mere fact that the case has gotten that far is evidence that a guilty verdict will be forthcoming. (The acquittal rate is below 1%.)
But the Bo case is of course an atypical case. Still, if he’s not contesting the charges (Chinese criminal procedure doesn’t have a formal guilty/not guilty plea), one wonders what can be so complicated about it. If he is contesting the charges, then going forward with the trial really is atypical. Possibly he is being allowed to contest some minor aspects of the charges – for example, did he take $10 million in bribes or was it only $9 million – and the court will reject a few elements of the prosecution’s case in an attempt to show that it wasn’t all pre-ordained from the start.
Saturday, January 26, 2013
Some years ago I read a fascinating law-and-economics analysis of the Beijing taxi industry [available here; thanks to a commenter for the link] written by a Chinese graduate student under Prof. Fang Liufang; as a piece combining empirical research, economics, and law it really stood out among the usual crop of dreary statutory exegeses. I was reminded of it today when I came across a pair of articles discussing well known (at least, well known to those of us who spend time in Beijing) problems getting taxis in Beijing.
The Global Times reports that the Beijing government recently passed rules designed to address the problem: if a taxi company is the subject of too many complaints (for example, about drivers refusing to pick up during peak times), then it will be punished. This attempt at a cure obviously reflects a particular diagnosis: that the reason drivers refuse to pick up fares is just simple cussedness.
But of course that's ridiculous. Like most of us, Beijing cab drivers hope to earn money from their occupation. And as anyone who has talked to a Beijing cab driver about this knows, a cab driver loses money by taking fares during rush hour and other times when traffic is jammed (which is a lot of the time in Beijing). The meter simply ticks over too slowly for them to recover their fuel costs; they're better off parking of-road with the engine off instead of parking on the Third Ring Road with the engine running.
One obvious solution is to raise the permitted rate, which has stayed the same now for (I believe) over a decade, although fuel surcharges of one or two yuan per trip (totally unrelated to distance) have been around for a while. Another solution is to return to the good old days of the 90s, when different classes of taxis were allowed - some were nice cars that cost more, some were in ... let's say, less nice vehicles, and cost less. A third alternative is to subsidize taxi drivers - this is suggested by Prof. Meng Bin, a professor of urban planning quoted in the Global Times story. (This seems like the worst solution to me; subsidies are always tremendously hard to administer and vulnerable to cheating, and it's hard to see why (relatively well-off) taxi riders should be supported by (less well-off) non-taxi riders. In addition, Prof. Meng suggests this because he's opposed to any increase in fares; it's hard to see the basis for thinking that somehow the current fare structure, in January 2013, by some amazing coincidence is exactly what it should be and mustn't be changed.)
For a more detailed analysis of the economics of it all, see this article by Michael Cormack.
Friday, January 25, 2013
That at least is what's being reported in Hong Kong's PRC-affiliated Ta Kung Pao (大公报). His defense lawyers are Li Guifang and Wang Zhaofeng of Beijing's Deheng Law Firm. I don't know anything about Wang, but Li is a respected figure.According to some reports, Bo's son Guagua had previously attempted to retain another lawyer - Li Xiaolin, who had defended Gu Kailai's accomplice, Zhang Xiaojun - but Bo had nixed it. Li Xiaolin is quoted in the Ta Kung Pao as saying he didn't mind: "The less I know [about this case], the better."
UPDATE: The Duowei news site says that the Guiyang Intermediate People's Court states that it has "received no plans" for the trial of Bo. This is kind of a strange locution to use if an outright denial was intended. On the other hand, they're going to look pretty silly if the trial does indeed go ahead on the 28th and they insist they knew nothing about it a mere three days earlier, and they must know that, so maybe the denial is accurate. Wheels within wheels!
Thursday, January 24, 2013
Friday, January 4, 2013
The US Chamber of Commerce has produced an excellent and comprehensive report on the approval process (actually, many processes) for foreign direct investment in China. It includes both details and big-picture perspective. I don’t think I’ve ever seen this kind of information all brought together in a single report before, at least at this level of detail. It should be on the reading list of all courses about doing business in China.
Wednesday, January 2, 2013
US securities regulators have been engaged in a long struggle to obtain the workpapers of auditors of Chinese companies listed in the US, and last month the SEC initiated administrative proceedings against the Chinese affiliates of five big accounting firms (NYT story, plus useful background, here.)
In related proceedings, the SEC subpoenaed documents from Deloitte Touche Tohmatsu CPA, Ltd. (DTTC), the Chinese auditors of Longtop Financial Technologies, a Chinese company whose financial statements were apparently less than totally accurate.
DTTC has been fighting the subpoena on the grounds that it is liable to punishment under Chinese law if it provides the documents the SEC is seeking. Below are links to relevant court filings that look at the Chinese law issues here. I produced an expert witness declaration in support of the SEC's position in this matter and so my own views are stated there. The expert witness declarations in support of DTTC's position were produced by my colleagues (and as it happens my good friends) Prof. Tang Xin of Tsinghua University Faculty of Law and Prof. James Feinerman of Georgetown University Law School.
- DTTC's brief in opposition to the subpoena (April 11, 2012)
- SEC's brief in reply to DTTC's brief (Dec. 3, 2012)
- Regulation 29 (This is a key document relevant to the Chinese law issues and discussed in the filings)