Chinese Law Prof Blog

The legal job market in Asia

Here's a blog post on this subject from Above The Law. HT: China Law Blog.

WTO panel partly sides with US in dispute with China over IP piracy

In August 2007, the US requested a panel to hear its complaint against China for inadequate enforcement of IP laws. The panel has now issued its interim report. Although the report is not yet public, AP reports (citing trade diplomats who have seen the interim report) that the panel faulted China for not prosecuting pirates who copy CDs and DVDs before they are passed by censors. Apparently the panel also found, however, that Chinese thresholds for prosecuting piracy do not break WTO rules.

For the full AP report, click here.

Teng Biao and other lawyers offer assistance to Tibetan detainees

Fresh from his kidnapping by the police, Teng Biao has now joined an effort to offer legal assistance to Tibetans detained in the recent unrest. Here is the open letter in which he and several other signatories offer assistance. Teng is a brave man; the rabid nationalists - and there sure seem to be a lot of them - may be less polite to him than the police were.

My very last post on Tang Wei

There is now a petition circulating in China addressed to Hu Jintao and Wen Jiabao asking that the government withdraw the ban. Here's an English translation; here's the Chinese original. Interestingly, some of the language tracks that of the report in the Procuratorial Daily that I translated here a few days ago.

Visiting (or trying to visit) Zeng Jinyan at Bobo Freedom City

Here's a video of Time reporters Simon Elegant and Austin Ramzy trying to visit Hu Jia's wife Zeng Jingyan at her apartment at the ironically named Bobo Freedom City apartment complex. Zeng is under what amounts to house arrest, although as far as I know no legal justification has been offered. Here's a video shot by Hu Jia earlier of their life under house arrest. And here's the story of an attempt to bring milk powder to Zeng Jinyan and her baby. Fascinating stuff.

WTO panel issues final ruling against China in auto parts case

Last month I posted about the WTO's interim ruling; the final ruling has now been issued (but won't be public until July). Those who have access to the BNA's WTO Reporter can see a full report here. Here are the first few paragraphs, the quoting of which will not, I hope, exceed the bounds of fair use:

A World Trade Organization dispute panel has issued a final ruling upholding complaints filed by the United States, the European Union and Canada against China's discriminatory tariff treatment of imported automobile parts.

The final ruling circulated to the four parties March 20 maintains the findings in the panel's interim report issued Feb. 13, according to officials familiar with the ruling (30 WTO, 02/14/08).

The panel rejected China's arguments in defense of regulations that the United States, the EU, and Canada said resulted in illegal duties being imposed on imported auto parts.

Officials said China contested only one part of the panel's findings during the review of the interim report, namely that Beijing's decision to subject imports of completely knocked-down (CKD) and semi knocked-down (SKD) auto kits to the same 25 percent tariff as complete motor vehicles violated China's WTO accession commitments. The panel rejected China's claims in the final ruling, the officials said.

The final ruling is due to be issued to all WTO members and made public sometime in July.

US and EU initiate WTO complaint against China for financial information restrictions

I noted this dispute in an earlier post last January. Here's the latest story on the official request for consultations filed on March 3rd.

US to initiate WTO dispute proceedings with China over financial information rules

The BNA's WTO Reporter reports as follows (excerpt only; full story here):

The United States has signaled it will initiate new World Trade Organization dispute settlement proceedings against China to address a standing U.S. complaint regarding Chinese restrictions on foreign financial information service providers.

Officials speaking on condition of anonymity said a letter was sent by the United States to China Jan. 25 warning that U.S. patience on the issue has finally run out. As a result, barring quick action by Beijing, Washington is expected to initiate proceedings by requesting WTO dispute consultations with China.

At issue is a September 2006 administrative measure issued by China's state-owned Xinhua News Agency prohibiting foreign financial information services such as Bloomberg or Reuters from selling their services directly to Chinese domestic clients. Instead, the measure requires the foreign news services to operate through an agent designated by Xinhua.

To date, the only agent designated by Xinhua is a Xinhua affiliate.

For a great story of an earlier attempt by Xinhua to control (and profit from) the information flow from foreign providers, see James McGregor, One Billion Customers (2007), pp. 129 ff.

Chinese Law Prof Blog passes 100,000 mark

Yes, yes, I know - some other blogs get about that many hits per day. But It's not too bad for our little corner of academia. My potentially unfair advantage - a Chinese audience - has unfortunately been nullified by the Chinese government's blocking of this site.

EPA - China Environmental Law Initiative Web site

Here's the first paragraph of the EPA's press release:

In an effort to strengthen the legal framework for environmental protection in China, EPA today launched the EPA - China Environmental Law Initiative Web site. The Web site, announced by EPA General Counsel Roger R. Martella, will provide a forum for sharing information and fostering an ongoing dialogue with China on environmental law.

Full text here.

The Web site itself is here; portions have been translated into Chinese and are available here.

Shi Tao et al. suit against Yahoo settles

Here's the CNN report. The amount was undisclosed.

Yang and Callahan testimony in Congressional hearing

Last week I posted here about the hearings before the House Committee on Foreign Affairs regarding Yahoo's role in the prosecution of Shi Tao. Here are some more useful links:

• Jerry Yang's testimony (not much of substance)
• Michael Callahan's testimony (much more interesting)
• Webcast link (be sure to have RealPlayer configured to run SMI files)

Callahan's testimony reveals that he learned in October 2006 that his earlier testimony to Congress - to the effect that Yahoo had not known the nature of the investigation of Shi Tao - was inaccurate. He apologizes for not informing the Committee of this.

A puzzle remains in that Callahan, speaking for Yahoo (the US parent), continues to insist that the request for information was received by Yahoo China, and that the information in question was provided by them. Thus, the issue as framed by Yahoo is whether a Chinese company can be expected to resist Chinese government orders. The documents uncovered in litigation and posted on the Duihua Foundation's web site, however, seem to show that the request was to Yahoo Hong Kong (specifically, its representative office in Beijing), and that it was Yahoo Hong Kong that provided the information. (For more on this, with relevant links, see my previous post here.) The House Foreign Affairs Committee has focused solely on whether Yahoo knew of the nature of the investigation of Shi Tao, and seems to have overlooked this other problem.

Yahoo executives grilled by House Foreign Affairs Committee

The House Foreign Affairs Committee held hearings today on Yahoo's role in the prosecution of Shi Tao, a topic on which I've blogged before (most recently, here). Testifying before the Committee were Jerry Yang and general counsel Michael Callahan. Specifically relevant to this hearing, Chairman Tom Lantos has accused Yahoo of providing false information to Congress in earlier testimony by Michael Callahan (see Lantos' statement here). According to a Yahoo-sympathetic report of the proceedings by CNET's correspondent, Yahoo admits that the information Callahan provided - that Yahoo did not know of the nature of the investigation - was inaccurate: as Lantos' statement points out, "[T]he document provided to Yahoo! China on April 22, 2004 by the Beijing State Security Bureau stated, 'Your office is in possession of the following items relating to a case of suspected illegal provision of state secrets to foreign entities…'" Lantos is not prepared to say that Callahan in fact knew this and was actually committing perjury, but expresses astonishment that a translation of this key document was never provided to Callahan as he prepared for his earlier testimony. Lantos also states:

Six months after his testimony, Mr. Callahan became aware that some officials of Yahoo! did know the nature of the investigation against Shi Tao at the time it complied with the Chinese request for information. Despite Mr. Callahan’s explicit recognition that his previous testimony was inconsistent with the facts, neither Mr. Callahan nor anybody at Yahoo contacted the Committee, orally or in writing, to advise us that Yahoo had provided false information to the Committee.

I don't yet have a transcript of the hearing, so I don't what Yang and Callahan had to say in response to this; much of the time seems to have been spent in statements by Committee members.

If I may be forgiven for quoting myself, I think an important issue is being overlooked:

Once again, it seems, the complex structure of Yahoo's East Asian operations is confusing people and diverting attention from an important issue. Forget about the debatable issue of how much information the search warrant really provided. What the CFA's press release does not notice, and what the Yahoo spokesman does not deny, is that the documents (again, if genuine) appear to refute conclusively Yahoo's explicit contention, made elsewhere in general counsel Callahan's testimony, that the Yahoo entity named Yahoo Holdings (Hong Kong), Ltd. (Yahoo HK) had nothing to do with any of this, and that the information demand was made to (and the information supplied by) Yahoo's Chinese-incorporated entity. The documents show that the demands were addressed in one case to Yahoo HK's Beijing representative office, and in another case simply to Yahoo HK generally. They also show that in at least one case, information was supplied by Yahoo HK (or at least the document has a Yahoo HK stamp on it).

This is more than just a technical issue. If Yahoo HK released the information, it may have violated Hong Kong privacy laws. And as I argued in my post yesterday, Yahoo HK is really in no different position vis-a-vis the PRC authorities than the US parent, where many people (including me) have e-mail accounts.

There are important issues involved here; among other things, in some cases simply doing business in China involves some distasteful choices. Are we really prepared to say that US companies should simply stop doing any business in China? That seems a bit extreme; I think reasonable people of good conscience could reach a different conclusion, and it's never been my intention in my posts on this topic to engage in intemperate Yahoo-bashing. At the same time, it's impossible even to discuss these issues intelligently if the factual background of who knew what when is not well understood.

Department of Commerce seeks comments on granting market-economy treatment to certain Chinese respondents in antidumping suits

On October 25, the US Department of Commerce issued a notice requesting public comment on

whether it should consider granting market-economy treatment to individual respondents in antidumping proceedings involving the People's Republic of China ("China"), the conditions under which individual firms should be granted market-economy treatment, and how such treatment might affect our antidumping calculation for such qualifying respondents.

This is a very interesting development. As trade buffs know, Commerce has long declined as a matter of policy to apply countervailing duties to non-market economies on the grounds that the amount of a countervailable subsidy in such an economy is impossible to determine. (Trade buffs may also think I'm oversimplifying here; sorry!) Recently, however, Commerce did find that Chinese exports had received a countervailable subsidy. (See Countervailing Duty Investigation of Coated Free Sheet ("CFS") Paper from the People's Republic of China - Whether the Analytical Elements of the Georgetown Steel Opinion are Applicable to China's Present-day Economy (March 29, 2007) (on file in the CRU on the record of case number C-570-907); Coated Free Sheet Paper from the People's Republic of China: Amended Preliminary
Affirmative Countervailing Duty Determination, 72 FR 17484 (April 9, 2007).) This position is less a reversal of previous policy than a recognition that China's economy is sufficiently market-governed in at least some areas to warrant revisiting the policy's application to China.

This new thinking has now gone the logical next step, toward consideration of the possibility that some elements of China's economy are sufficiently market-governed that they should not be subject to NME treatment in antidumping proceedings. Since NME treatment is, for respondents, essentially the equivalent of losing before the contest has begun, that Commerce will consider this possibility is good news for Chinese exporters and American importers.

Product-liability lawyer's dream: gasoline-powered roller blades from China

You saw it here first. Well, at least it comes with a warning: "Oldster, child gingerly to use."

Thanks to ASY for the tip.

Yale Law School's China Law Center snags $10M Hewlett Foundation grant

The title of this post says it all; congratulations to China Law Center director Paul Gewirtz. For more information, see the press release.

June 4th irony

So successful has the government been at eradicating any memory of June 4th that someone was able to slip a small ad into the Chengdu Evening News (成都晚报) saying, "A salute to the strong mothers of the victims of June 4th" (向坚强的64遇难者母亲致敬!). (It's quite inconspicuous; click on the thumbnail for a full-size photo and look for it on the right hand side, about two thirds of the way down.) Apparently the person who took the ad didn't know the significance of "64"; the person who placed it apparently said it was connected with some mine disaster.

The deputy editor of the Chengdu Evening News and two others have been reported fired. Here's a South China Morning Post article (registration required) on the affair.

Green revolt in Xiamen

Residents of Xiamen last month demonstrated against the construction of a chemical plant; on May 30th, the "temporary suspension" of the project was announced. For a news story with links to two Youtube videos of the demonstrations, click here.

The Economist on US-China economic relations

This post is not, strictly speaking (or even broadly speaking), law-related. But it bears on important issues in US-China relations on which there is a lot of misinformation and misunderstanding, even at the highest levels of policymaking. Here's an excellent article from the Economist pointing out that the current RMB-dollar exchange rate does not hurt the US, and that US unemployment - at close to its lowest rate in decades - is hardly a problem, let alone one for which China can be blamed. None of what article says is news, but it's a kind of knowledge that simply does not penetrate in some quarters. (Thanks to China Law Blog for the pointer.)

While I'm at it, may I make an undoubtedless useless plea for people to stop talking about the trade "imbalance"? Imbalance is a value-laden word that is impossible to think of as other than bad. The word "balance" in trade discourse means the same thing as "balance" in your bank statement: it just means "remaining amount" or "difference". A surplus or deficit between two countries is no more "imbalanced" than having a bank balance of $100,000 is "imbalanced". Using the word "imbalance" to describe a deficit or surplus implies that the ideal and proper state of trade between any two countries is always no surplus, no deficit. This is utter nonsense. What we really need is a whole new set of terms for talking about trade, so that we can get rid of value-laden and therefore misleading terms such as "balance," "surplus," and "deficit."

Scholarship on Chinese law cited in US Supreme Court opinion

Yes, it has really happened. In footnote 2 of his dissent in United Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste Management Authority (April 30, 2007), Justice Alito cites Owen, Sun, & Zheng, Antitrust in China: The Problem of Incentive Compatibility, 1 J. of Competition L. & Econ. 123 (2005) and Qin, WTO Regulation of Subsidies to State-owned Enterprises (SOEs): A Critical Appraisal of the China Accession Protocol, 7 J. of Int'l Econ. L. 863 (Dec. 2004). Qin is the only law professor in the group - she's at Wayne State.