Monday, June 20, 2016
Julian Ku, "A Guide to Countering Chinese Government Spin on the Fairness of the South China Sea Arbitration Tribunal"
Friday, June 17, 2016
Here's the report from Xinhua. According to the report,
China's central authorities has [sic] ordered the adoption of a legal counsel system at governments and Communist Party committees above the county-level as well as state-owned enterprises (SOE) before 2017, a major step to promote rule of law.
. . .
Government and Party organizations are urged to hear the opinions of legal counsels before making major decisions, involve them in the process of decision-making, formulation of major government policies and intra-Party rules, and the handling of some legal cases and emergency situations, said the guideline.
Legal counsels are also required to participate in negotiations involving the government or party organizations and deal with other legal matters.
Matters that are deemed illegal or in violation of regulations in the opinion of legal counsels should not proceed, said the guideline.
I cannot see this as a "major step" to promote the rule of law. If government agencies and SOEs don't follow the law today, it's because the system does not make it important for them to do so. If they don't consult lawyers, it's likely because they make a rational calculation that the advice of lawyers is not important to what they do. Requiring them to hire lawyers does not change any of that. By way of comparison, US financial institutions do not have huge compliance departments, and corporations do not pay securities lawyers millions of dollars, because the government requires them to do so. They do these things voluntarily because the way the system works makes it in their interest to do so. This new Chinese policy is perhaps a nice full-employment program for lawyers, but there's no reason to think that by itself it will increase rule-compliance by its targets.
Thursday, May 26, 2016
Friday, April 22, 2016
Last March, the Supreme People's Court posted on its website an English version of its White Paper on Judicial Reform, but for some reason did not make the original Chinese version available online. I now have a scanned version of the original Chinese text; it's available here.
Friday, March 25, 2016
I have received the following announcement (slightly edited):
PILnet is hiring! We’re currently seeking applications for a China-based Program Manager, located in either Beijing or Hong Kong, and a Program Assistant in Beijing. While legal training and experience is preferred, given that we work across sectors and are increasingly engaging in supply chain interventions (a.k.a. developing new models of CSR that involve law and community stakeholders), applications from professionals of varied backgrounds is encouraged.
Links to both positions are copied below.
http://www.chinadevelopmentbrief.org.cn/hire-20640.html (updated version here)
Program and Administrative Assistant:
Tuesday, March 22, 2016
Here’s an interesting piece from the Dui Hua Foundation on China’s acquittal rate (previously discussed on this blog here). I’m not sure it’s accurate in saying that China’s acquittal rate rose, though. It gives a figure of 1039 acquittals in 2015, which is the number provided in the SPC Work Report, but says this yields an acquittal rate of 0.075%. There are two problems with this:
- The SPC Work Report lists a total of 1.232 million people convicted in the first instance. That would yield an acquittal rate of 0.084%. Of course, 1.232 million first-instance convictions + acquittals is not really the right denominator here; we want to know all final convictions + acquittals, but the SPC Work Report doesn’t seem to have that number. An acquittal rate of 0.075% implies an overall number of final convictions + acquittals of 1,384,294, implying total final convictions of 1,384,294 – 1039 = 1,383,255. But I don’t see where this number or an approximation of it appears in the Work Report. Did I miss it?
- More than a third of the total acquittals were on self-prosecuted cases. There is every reason to believe that the acquittal rate for cases brought by the procuracy would be way lower, so they shouldn’t be mixed together.
- To know whether the acquittal rate rose, we’d have to (a) figure out the answers to the above questions, (b) figure them out for previous years, and (c) satisfy ourselves that any change, given the extremely small numbers, is more than a meaningless statistical blip.
Monday, March 7, 2016
Amnesty International has an opening for an IAR (Individuals At Risk) Campaigner in their Hong Kong office. Presumably this position is mainly about China. According to my friend at AI, "it's a great job, in Hong Kong, playing to Amnesty's core strength and unique role: campaigning on behalf of individuals. It's also reasonably well-paid, includes a good health insurance and pension plan." The salary is HKD 477,191 (US$61,451) and the closing date is March 13 - very soon!
Here's the announcement: https://careers.amnesty.org/vacancy/individuals-at-risk-campaigner-1466/1492/description/
Wednesday, March 2, 2016
Interesting study of patent litigation in China: is the conventional wisdom about protectionism wrong?
Here’s a very interesting new paper on patent litigation in China based on an analysis of 471 suits for patent infringement (Love, Helmers & Eberhardt, Patent Litigation in China: Protecting Rights or the Local Economy?). The authors aim to subject to empirical analysis (which they say, to the best of my knowledge correctly [UPDATE Mar. 10, 2016: I'm wrong. See Mark Cohen's blog post on this.], is virtually non-existent to date) the conventional wisdom that the system is biased, probably deliberately, against foreign patent-holders and they can’t get a fair shake. They conclude that the conventional wisdom is wrong:
Though many suggest China set out to create a system that would benefit domestic industry at the expense of foreign firms, our findings suggest that the system has accomplished the opposite. Contrary to conventional wisdom and high-profile anecdotes, foreign litigants in Chinese patent suits play the role of patentee more often than defendant and fare just as well in their suits as privately owned Chinese firms. Moreover, state-owned monopolies—parties the Chinese government presumably has the greatest incentive to protect—rarely sue and, when sued, lose a significant share of their cases.
On the whole, our findings suggest that the Western technology community may have been too quick to write off the Chinese patent system as a rigged game. To the extent that Chinese authorities sought to establish a protectionist system, they appear to be failing. Rather, they seem to have opened the door for foreign innovators to seek redress against local copyists. Industries that have long accused Chinese firms of idea theft may be well advised to take a peek inside.
I think this is a valuable paper that deserves wide circulation—we should always welcome careful empirical work that challenges conventional wisdom—but I think the authors don’t adequately explore the implications of a key methodological problem: that the population of cases they study is not representative of the population of patent disputes and is subject to selection bias. They look only at cases that go all the way to judgment; they don’t have access to cases that settle, they don’t have access to cases where a plaintiff brings suit but the court refuses to docket the case, and of course they don’t have access to cases that never become cases at all because the plaintiff is convinced (rightly or wrongly) that it will lose and so doesn’t bother suing, or the defendant is convinced that it will lose, and so folds immediately upon receiving a threatening letter from the potential plaintiff. For those interested, the selection bias involved in studying reported cases is modeled and analyzed in a classic paper by Priest and Klein, The Selection of Disputes for Litigation (1984).
They acknowledge this problem in a footnote at the end, but seem to overlook it in the main text when stating their conclusions about what their study shows. For example, they state, “when foreign companies sue, they win relatively frequently . . .” One simply cannot say even that, based on this data, since it’s possible that 99% of foreign suits are never accepted by courts, or are ultimately dismissed before judgment for some reason. (Of course, that’s unlikely, but the point is that there is no way to know from this data what the percentage is, and it’s an important number.)
They also say, “the case-level data suggests that patent suits are rarely litigated in smaller inland cities where, conventional wisdom holds, protectionism is most often encountered.” But this result is consistent with the conventional wisdom being absolutely right, and known to be right by non-local patent holders, who therefore don’t bother bringing suit in such cities, or if they do bring suit, find such suits rejected before judgment by local courts.
There are some areas where this methodological problem might be less acute. For example, the authors find that “successful foreign patentees received a median damages award of 100,000 RMB in suits against private Chinese firms, exactly the same amount that private Chinese patentees received when they sued private domestic parties. Interestingly, Chinese patentees received 20 percent less in suits against foreign companies and 60 percent more in suits against state monopolies.” Those with more mathematical sophistication than me can think about whether my intuition is correct that award size might be less susceptible to selection bias than win rates.
In any case, to the extent one can say anything from a study of reported judgments, this study says something new and interesting and adds something valuable to our knowledge.
Tuesday, March 1, 2016
The official web site for court judgments, 中国裁判文书网, has changed its URL from http://www.court.gov.cn/zgcpwsw/ to http://wenshu.court.gov.cn/. Thoughtfully, they have neither installed an auto-redirect at the old web site nor even provided information about the new web address.
Sunday, February 28, 2016
According to this report from Caixin, in 2014 the percentage of not-guilty verdicts was 0.066%, or fewer than 6 in 10,000. (Figures for 2015 are incomplete.) The report cites figures for other countries, including 2% in Finland, 9% in the US, and a whopping 25% in Russia.
I last blogged about this almost ten years ago, and as far as I know the situation is still pretty much the same:
Without information on what kind of cases are brought to trial - information that only in-depth fieldwork would reveal - it's hard to know what to make of this number. It is theoretically possible that doubtful cases are never brought to trial, although recent well publicized cases of miscarriages of justice (for example, here and here) make that hypothesis a bit implausible. But just how implausible is impossible to say.
Moreover, there is no particular reason why China should look like the US - and in any case, I'd want to know more about where that number for the US came from, given the complexity of the US legal system with its state and federal courts. Still, one can say a few things with a reasonable degree of certainty:
- Guilt is obviously not really being determined in any serious way at the trial state. Therefore, either the Chinese system railroads suspects, or it makes a good-faith determination of guilt before the trial so that the non-guilty never get that far. If the latter, then a criminal procedure system that doesn't give suspects full rights to a defense at that critical pre-trial stage is inadequate. And one must say that there are lots of cases that make one wonder how careful investigators are in their pre-trial investigation.
- A high acquittal rate, such as we see in Russia (if it's really that high) would be evidence that judges and prosecutors aren't in bed together. A low acquittal rate is not evidence that they are, since again it could be that prosecutors are really, really careful, but it's consistent with that hypothesis.
Saturday, January 23, 2016
Thursday, January 21, 2016
Attached, please find information regarding the 2016 PILnet Fellowship Program—a unique program at Columbia University School of Law specifically designed for international public interest advocates. PILnet: The Global Network of Public Interest Law, is an international nonprofit organization that works to advance public interest law around the world by supporting organizations, programs and individuals involved in delivering justice and protecting human rights. One key aspect of our programming is the PILnet Fellowship Program, now in its 19th year, which targets future leaders in various fields of public interest advocacy.
PILnet is now accepting applications for the 2016-2017 PILnet Fellowship from candidates in mainland China, in addition to other developing countries. This Fellowship will cover eight months of study and practical experience in New York, during which time Fellows will develop a project designed to further the rule of law in their home countries. The Fellowship begins with a semester of study at Columbia University School of Law and a series of professional development trainings. In the spring, the PILnet Fellows will participate in study visits to various cities in the U.S. and Europe, as well as two-month internships at New York-based public interest law organizations. Fellows return to their home countries after the Fellowship with the aim of implementing the rule of law project they developed during the Fellowship.
For more details, please refer to the announcement and application form attached. If you have any questions, feel free to get in touch through the contact listed.
Sunday, January 3, 2016
The Faculty of Law at Monash University is interested in hiring someone with Chinese law expertise. Here’s the announcement. It doesn’t mention China specifically, but I am informed that that is one of their areas of interest.
Friday, November 27, 2015
The China IPR blog announces three China IP positions: http://chinaipr.com/2015/11/27/three-chinaip-positions-open/
Wednesday, November 25, 2015
The USPTO is looking for China program specialists; law degree not required.
Program Specialist (IP Exchange), GS-13, all sources
Program Specialist (IP Exchange), GS-13, status/federal candidates
Tuesday, November 24, 2015
Here's the job announcement: http://www.usito.org/usito-seeks-candidates-managing-director.
Sunday, November 15, 2015
I posted the other day about a column written by my colleague David Shambaugh in which he averred to a "delusion" that Taiwan was an independent, sovereign state. I argued that by the definition of "state" in the Montevideo Convention, this view of Taiwan was hardly delusional. David has declined my invitation to respond, so I don't know whether he thinks that Taiwan is not a state under the Montevideo Convention definition, or whether he is just using a different definition of "independent, sovereign state."
In another forum in which I posted my comments, some have suggested a plausible, different definition of sovereignty: that it necessary involves an element of recognition by many other states. If so, and if we define "recognition" narrowly, then it could certainly be said that because Taiwan is not recognized (in the narrow sense) as a state by many other states, it therefore does not meet this particular definition of "sovereign." But if we use that definition of "sovereign," then we have to drop the claim that anyone is delusional, because nobody thinks that Taiwan is in fact recognized in this narrow sense by many countries. Some people celebrate that fact and some people bemoan it, but nobody disputes that it is a fact. Thus, under some definitions of sovereignty, Taiwan is in fact sovereign, and so people aren't deluded to think it is; under other definitions, it's not, but nobody thinks it is, so people aren't deluded in that case either. I cannot think of a fact-based definition of sovereignty about which people could be said to be deluded, since people of all political views pretty much agree on what the current facts on the ground are regarding Taiwan's ability to govern itself and its place in the international community. Of course, they disagree on the ought, but not on the is.
Friday, November 13, 2015
In a recent op-ed in the South China Morning Post, my colleague David Shambaugh spoke of “the delusion and illusion that Taiwan is an independent sovereign state”. I’m not sure what he means by this. Needless to say, people have different views on whether Taiwan should be an independent, sovereign state. But as for whether it actually is one now, that is a matter of (a) facts and (b) how those facts fit one’s definition of “independent sovereign state”.
I’m not sure there is too much disagreement on the facts; in the same op-ed, David refers to Taiwan’s “de facto autonomy”, and autonomy is of course just a synonym for independence. That is at least one important fact. The question then becomes, what does he mean by “independent sovereign state”? Everyone is of course entitled to their own definition, but for a definition that is reasonably well accepted in international law and wasn’t simply cooked up with Taiwan in mind, we could turn to the Montevideo Convention of 1933. That says, in pertinent part:
The state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states.
The political existence of the state is independent of recognition by the other states.
Under this definition—and it doesn't seem like a particularly wild and crazy one—it’s hard to see how Taiwan would not qualify. David is of course not obliged to accept that definition himself, but surely it’s going a bit far to claim that anyone who does is delusional.
Sunday, November 8, 2015
Last Tuesday I blogged about the breakdown in talks between China and the Public Company Accounting Oversight Board. Here's a blog post on the same issue from Paul Gillis at the China Accounting Blog. Check out the comments as well.
Tuesday, November 3, 2015
According to Bloomberg's Securities Law Daily, last month "a final agreement that would have allowed a U.S. regulator to examine the audits of Chinese companies listed on American stock exchanges fell through" (full story here). The story calls this a "setback" for the Public Company Accounting Oversight Board and a "blow" to its chairman, James Doty. And it is. But the story does not portray the breakdown in negotiations as in any way problematic for those on the other side of the negotiating table, the Chinese government. And perhaps the story is right on that, too - is anything undesirable going to happen to China or Chinese companies now that negotiations have failed? Are Chinese accounting firms no longer going to be qualified to audit financial statements of companies listed in the United States? If a failure of negotiations results in no adverse consequences for one party to the negotiations, why would it ever negotiate? Failure has to have consequences for both sides before these negotiations can go anywhere.
The problem, of course, is that China treats information about just about anything as having potential national security implications. And it claims that allowing the PCAOB to inspect domestic auditors would be an infringement on its sovereignty--perhaps its "auditing sovereignty"? Two answers. First, big deal. That's what international negotiations are about. You give up some of your sovereign freedom of action in order to get something you want. Second, the purpose of an audit of a financial statement is to protect investors--in this case, US investors. Chinese auditors are exporting audit services to the US. China exports chicken to the US and accepts that the US Department of Agriculture has a legitimate interest in inspecting its chicken processing plants; it doesn't cry that that infringes on its poultry sovereignty. If it's acceptable for the US to go to China to inspect the way imported chickens are made, how is that different from going to China to inspect the way imported audits are made?