Sunday, January 19, 2014
Here are some thoughts by Jerome Cohen on the upcoming trial of Xu Zhiyong:
This Wednesday's trial of Xu Zhiyong (and Wang Gongchuan) may make a public mockery of the recent efforts of China's Supreme People's Court to prevent further wrongful convictions by requiring investigation and verification of criminal evidence in an open court hearing.
The SPC and the country's leader, Xi Jinping, have been emphasizing greater transparency and openness in judicial conduct. Yet it is very difficult to learn what transpired at last Friday's pre-trial conference since official court sources have published nothing, and there seems to be a domestic news blackout on the case. Foreign and Hong Kong press reports based on contacts with Xu's counsel suggest that, while the trial will be "public" in principle, its openness will be highly restricted in practice, as is customary in sensitive criminal cases. despite the new verbal emphasis on openness of trials. For example, a very small courtroom has apparently been selected, and arrangements have reportedly been made for the admission of only two members of Xu's family, and no other supporters, to the courtroom. I assume foreign media have been excluded.
As my January 14 essay in World Politics Review pointed out, the SPC's November 21, 2013, major instructions newly emphasized the importance of the courts conducting "open trials" that "make courtroom hearings the center of the trial" so that "evidence is investigated in the courtroom, conviction and sentencing debated in the courtroom and the court's judgment shaped in the courtroom." I noted that "The forthcoming trials of Xu Zhiyong and other recently-persecuted human rights advocates, now the topic of fierce intra-Party debate, will provide an early test of how the new emphasis on open trials will be applied in practice."
Press reports of the pre-trial conference indicate that the court will not require prosecution witnesses to testify in the court hearing and that it will not permit defense witnesses to testify in the hearing. Nor will it permit those defendants who are to be separately tried for their involvement in the incidents for which Xu and Wang are being tried to appear and take part in the hearing of the Xu/Wang case. Xu's lawyers made a long argument about why, since these were allegedly joint offenses, the law requires all accused to be tried together, which would have allowed the defendants in the other cases to testify about Xu's participation, but the court apparently rejected the argument.
Thus Xu and his lawyers are being denied the right to cross-examine prosecution witnesses that has long been authorized by Chinese legislation but seldom permitted to be exercised, and the court also denies him the opportunity to demonstrate through the live, in-person demeanor evidence of his own witnesses and the defendants in the other cases the correctness of his version of the disputed facts.
This is not a case where the facts are not in dispute and the only issues will be the application and interpretation of the relevant legal standards for conviction. In this case there is a serious conflict in the evidence that calls for resolution through the open court hearing that is supposedly to be held. Even Bo Xilai and his lawyer had the opportunity to cross examine some of the witnesses against him. Yet Xu will not have that legally-required opportunity. The court apparently will "investigate and verify" the evidence against Xu in open court by simply having it read into the record, leaving the defense with no meaningful chance to demonstrate its falsity or inaccuracy. One can't cross examine a piece of paper. If this indeed proves to be the case, it will demonstrate how hollow the SPC's new emphasis on testing the evidence in open court hearings is in practice. In other words, no change from the previous practice, so that the SPC's new strictures would clearly be seen, as Shakespeare put it, to "keep the promise to the ear but break it to the hope."
Non-PRC newspaper reports indicate that, to protest this denial of a fair trial, Xu will remain silent during the court hearing. At least one report suggests that his lawyer may also remain silent. The precise extent of this silent protest is unclear. Will Xu refuse to answer relevant court questions put to him? Will he invoke a privilege against self-incrimination? While the new Criminal Procedure Law forbids the court to force the accused to answer, will the court take the refusal as an implicit admission of guilt? Will the defense lawyer and Xu challenge the prosecution evidence as best they can or remain silent on that score as well? Will they silently introduce written defense evidence? Will the accused and/or his lawyer refuse to make a closing statement?
The stage appears to be set for another wrongful conviction.
Saturday, January 18, 2014
And indeed, it has been mostly politics - as opposed to, you know, law. Here's the link. Unsurprisingly, Mao does not come off too well. Here's a choice quotation from some instructions of his to Shanghai officials: “Shanghai is a large city of six million people; given that Shanghai has arrested more than 20,000 people and only killed over 200, I think that in 1951 you should kill at least 3,000 people who have committed major crimes such as bandit leaders, hardened bandits, standover merchants, spies and secret society bosses. And in the first half of the year at least 1,500 people should be killed.”
Monday, December 2, 2013
I recently posted on a controversy involving the use of language from Wikipedia in expert opinions, and want to follow up on one point that makes the case for disqualifying Prof. Feinerman (or any expert in a similar situation) even weaker. The Bloomberg news report said that what was involved was a "report summarizing his proposed testimony" (emphasis added). I now understand the significance of this. The document Prof. Feinerman submitted was not his testimony; it was a disclosure submitted to the defense that summarized what he was going to say on direct examination during the trial. If I understand matters correctly, that document would not even be read by the fact-finder; it is solely to put the defense on notice as to what the expert intends to say. As such, the source of the words in that document is completely unimportant, and it is missing the point to apply academic standards to such a document. I have already explained in my previous post why it misses the point to apply academic standards to expert testimony, and now it appears we are talking about a document that is itself once removed from expert testimony. It is in effect notes for an oral presentation of expert testimony.
Look at it this way: suppose I am an expert astronomer called upon to present oral testimony about the structure of the solar system. I tend to ramble, so I want to make sure I cover all the important facts, but concisely. I read the Wikipedia entry on the solar system and think, "Hey, this is pretty good. No mistakes, and it says what I want to say quite well." I print out the Wikipedia entry and send a copy to the other side so they'll have advance notice of the content of my testimony. I also take it with me to my oral testimony. I might or might not look at it as I testify to remind me what needs to be said. My oral testimony does not, of course, duplicate the Wikipedia entry word for word, but nobody who had read the Wikipedia entry would be taken by surprise by anything I said. Can there possibly be anything improper about any of this? What unfairness is perpetrated by my failing to note that the source of the words in the document I sent to the other side was Wikipedia? Those words weren't even my actual testimony. The more I think about it, the more it all seems just a silly tempest in a teapot.
As with my first post, I have not discussed this matter with Prof. Feinerman; my view here is based on my understanding of the facts, which may be incorrect.
Thursday, November 28, 2013
Why Chinese needs a good word for "irony", and why it's too soon to bid farewell to re-education through labor
I'm not one of those people who says that people whose language doesn't have a word for X can't conceive of X - after all, somebody conceived of the smartphone before there was a word for it - but it's really too bad Chinese doesn't have good word for "irony". Most ways of expressing the idea of irony in Chinese involve using the same term that's used to express the idea of satire (讽刺); they are serviceable in context, but hey, so is a sparkling wine when you really need champagne. Some situations just cry out for the perfect mot juste and not a clumsy workaround.
I was moved to this thought upon seeing (H/T: David Cowhig) this notice issued to a petitioner, apparently just a few days ago (full Chinese text and English translation appended at the end of this post):
The notice is issued by a department of the Changre [CORRECTION: should be "Changshu"] municipal government in response to a complaint by someone named Hu Cheng that he was detained for two days under the rubric of "legal study class". The notice informs him that it's because he insisted on going to Beijing to petition during the 18th Party Congress, and that his detention under this rubric was justified under a document issued by the Jiangsu Province Department of Public Security. The notice helpfully adds that the document is secret.
The idea that the authorities behind this notice and document it refers to can teach Mr. Hu about legality offers, to use a seasonal metaphor, a whole cornucopia of irony. First, it is not illegal for Chinese citizens to go to Beijing to petition. Second, it is a bedrock principle of Chinese law that the liberty of the person may not be restricted - it doesn't matter whether you call it punishment, study class, whatever - except as authorized by a law passed by the National People's Congress or its Standing Committee. (Law on Legislation, Art. 8(v); that's one reason why re-education through labor, with its flimsy statutory basis, has been under attack.) Third, even if the Jiangsu Department of Public Security had the authority to issue regulations providing for the compulsory restriction of personal liberty (which it doesn't), it is another bedrock principle of Chinese law that administrative punishments of this kind must be justified by publicly available documents. You can't say, "Hey, we can lock you up, but we can't show you the basis for out authority - just trust us!"
This has implications for the much-trumpeted imminent abolition of re-education through labor (RETL) that was announced in the Decision of the recent 3rd Plenum. The abolition of RETL, while advocated by many in the legal community for years, has been long delayed because it seems the public security folks are just too loathe to give it up. They like the informality and unaccountability it offers. When the Decision came out, many wondered: can this really be true? Will it not just re-appear in another form?
"Study class" may be that other form (although it is unlikely to last as long as RETL sentences, which can be up to three years plus an additional year in some circumstances). I was at a conference just a week or so ago at which one of the attendees recounted his conversation with a Supreme People's Court judge on this very subject, and the judge said that people freed from RETL might just go into legal study classes. One should never underestimate the ability of the public security bureaucracy to think of new names for holding people without statutory authority. The fault, though, does not really lie with the police. They're just doing what police do. The fault lies with the system that allows creative re-naming to become a successful strategy, and fails to enforce the simple rule that restriction of personal liberty requires a statute from the NPC or its Standing Committee.
* * * * *
Text of Notice and Translation
Changre City Office of the Joint Conference on Handling Mass Incidents and Prominent Problems in Petitioning
Comrade Hu Cheng:
With regard to the issue you have reported of a legal study class being implemented upon you from Nov. 1, 2012 to Nov. 3, 2012:
During the period of the Party’s 18th Congress, when the Jiangsu Higher-Level People’s Court rejected your application for a re-trial, you did not listen to persuasion but stubbornly insisted on going to Beijing to petition. According to the relevant provisions of the Jiangsu Province Department of Public Security Notice No. 120 (2008) entitled “Opinion on Several Issues Relating to Handling According to Law the Unlawful Behavior of Persons Who Go to Beijing to Petition” (Secret), legal education may be imposed by Party and government organizations of the petitioner’s domicile or place of usual residence. Legal education shall be carried out through the implementation of study classes and other means. Therefore, implementing a legal study class upon you is in accordance with the stipulations of the above document.
Saturday, November 23, 2013
Defense attorneys in a criminal trial for economic espionage have moved to disqualify the prosecution’s expert witness, Prof. James Feinerman of Georgetown Law Center, because (they allege) large portions of his expert witness report (a document that summarizes his proposed testimony) contain verbatim extracts from Wikipedia entries on China’s technology, high-technology development plan, and Communist Party. (Here’s the news report.) I have not seen either Prof. Feinerman’s report or the motion to disqualify him, so what follows is based solely on the news report. I should also add that Prof. Feinerman is a personal friend and colleague, so weigh that as you will.
In thinking about the appropriateness of using Wikipedia, it’s important to keep a couple of things in mind: first, the difference between an expert witness report and an academic article, and second, what the language in Wikipedia is actually being used for.
In an academic article, nothing should rest on the authority or existing reputation of the author. The article should speak for itself and should present evidence and arguments in favor of its conclusion. An academic article should never say or imply, “Take my word for it because I’m an eminent professor in the field.” It would not count as a serious criticism of a paper by a junior scholar to point out that a position taken in her paper was contrary to the position taken in a paper by a senior scholar.
This is not wholly true in an expert witness report. Here we are generally not asking the witness to engage in original research; we are asking him to tell us what experts in the field think of a particular question. Instead of concluding from the content of the writing that the writer (whom we may never have heard of before) deserves to be called an expert – this is what we might do in the academic context – we start from the premise that the writer is an expert and then see what he has to say about the subject. That’s why it would be improper for an academic journal to publish articles only from senior professors at big-name universities, but is wholly proper for a court to inquire into the qualifications of those presented to it as experts. Of course, the expert can bolster his testimony and make it more powerful by alluding to specific evidence supporting his opinion and citing to other prominent experts in the field who agree with him, but that’s not required by the logic of expert witnessing. What is required by the logic of expert witnessing is for the expert to say something like, “I am an expert in this field, and here is my view of the issues based on my expertise.”
Now let’s go back to Wikipedia. Any given entry is written by anonymous people about whom we know nothing. Consequently, to cite Wikipedia as authority for some proposition is a bad idea, whether in an academic article or in an expert witness report. (Wikipedia can still be useful academically if the article’s claims are well documented in footnotes; you can just chase down the footnote references.) Note, however, that Prof. Feinerman is not accused of citing Wikipedia as authority for what he wrote; he did not say, “The Communist Party operates in the following way, and I know this is true because it says so in Wikipedia.”
What I think he has done – I cannot read his mind and have not discussed this matter with him – seems to me not in essence different from declaring in his report, “I have reviewed the Wikipedia entry on X, and in my expert opinion I believe it accurately states the relevant facts.” In other words, while Wikipedia is not reliable as an authority, that doesn’t mean it is always wrong. The entry might well be accurate, at least in the opinion of the person reading it. I don’t think any objection could be made to a declaration of this kind.
The next question is, if an expert believes that certain language in a Wikipedia entry accurately reflects his personal views on some matter, is there any reason he should not use it? The reason for using it is quite simple: the expert is probably getting paid by the hour, and like anyone getting paid by the hour, he has an ethical duty not to needlessly inflate the time required to perform a job. If a Wikipedia entry accurately sums up everything the expert might want to say, why should he take the time to engage in an artificial re-writing exercise that will just add to the bill? I don’t think it makes sense to disqualify an expert because he tried to do the job at lower cost.
Finally, there is the question of whether the verbatim quotations from Wikipedia should be properly footnoted. An expert witness report is not an academic paper for which the author seeks academic credit, so personally I don’t see an academic integrity issue in this case. The author is not asking you to admire his words or his thoughts. He is testifying about the content of the ideas expressed by the words, and he is doing so on the basis of his own pre-existing authority and reputation. In this sense, direct quotation is not different from indirect quotation or re-writing. At the same time, quoting a source directly without a footnote is bound to lead (and in this case has led) to the suspicion that something is being concealed. That's not good. Thus, my gut feeling (subject to change upon further reflection) is that despite the differences between academic articles and expert witness reports, it makes sense to follow the same citation rules in each instead of spending a lot of time trying to figure out when the different context justifies different rules.
In this particular case, I don’t think failure to cite should count as a reason for disqualification. As I understand it, experts may be disqualified on grounds such as (a) lack of expertise, or (b) evidence that they are saying something they don’t really believe (e.g., previous writings in which they take a completely different position on the same issue). Neither of those problems is (as I understand the story) alleged to exist here.
Thursday, November 21, 2013
Friday, November 15, 2013
Here’s an announcement I’ve received that may be of interest to people in DC, Boston, and Irvine:
In early December, the Department of Commerce’s Acting General Counsel will lead the 18th U.S.-China Legal Exchange with his counterpart from China’s Ministry of Commerce. The Legal Exchange will take place in Washington, DC on Dec. 4, Boston on Dec. 6, and Irvine on Dec. 9. This event presents a unique forum allowing the U.S. business, legal, and academic communities across the country to hear directly from Chinese officials about new and important developments in China’s commercial legal and regulatory landscape. This year, high-level government officials from China, led by Assistant Minister of Commerce Zhang Xiangchen, will present to public audiences in Washington, Boston, and Irvine for a full day on two areas of China’s commercial law regime:
- Chinese Energy Conservation and Renewable Energy Law; and
- Legal Aspects of Entrepreneurship in China, including Private Equity and Venture Capital.
Commerce invites U.S. company representatives, lawyers, academics, local and state government officials, students, and other interested persons to attend the Legal Exchange and participate in discussions on these topics with Chinese government officials and experts from the United States. More information about this event and registration details are available at (http://export.gov/china/uschinalegalexchange/). In addition, sponsorship opportunities are available. Brett Gerson at email@example.com or (202) 482-5595 has more information.
Wednesday, November 13, 2013
Here's a nice brief piece (in Chinese) by Caixin's legal affairs commentator reviewing judicial reform policies since the late 1990s through to today as a context for understanding what the Third Plenum's communique says about judicial reform (not much).
Tuesday, November 12, 2013
Here are the Chinese and English texts. Nothing terribly earth-shattering, either in the realm of law or anywhere else. Since Chris Buckley of the New York Times expressed an interest on Twitter in a plenum limerick, I herewith oblige:
One might ask of the Party’s 3rd Plenum:
All these slogans – do you really mean 'em?
We waited, all eager,
But their substance is meager,
And it’s not the first time that we’ve seen 'em.
Sunday, November 3, 2013
I have received the following announcement:
Job Posting: 2014-15 Teaching Fellowships
at Peking University School of Transnational Law (STL)
in Shenzhen, China
In 2008, Peking University, China’s oldest and most distinguished university, opened the first law school to offer a J.D. program in mainland China. The program closely follows the model of J.D. education in the United States, focusing on American law, but within a transnational perspective. The Peking University School of Transnational Law (STL) is located on the University’s graduate and professional campus in Shenzhen, which is adjacent to Hong Kong. Shenzhen is a vibrant, modern international city of fifteen million people. Enrollment at STL is very small compared to law schools in the United States – there are about 90 students in each class. Virtually all students are native speakers of Chinese, who speak English as a second language. Admission is highly selective based on prior academic performance, scores on a national qualifying examination and the LSAT, and a rigorous interview. The quality of the student body is comparable to that at the most prestigious law schools in the United States. Instruction is entirely in English.
For 2014-15, STL will appoint up to ten C.V. Starr Lecturers (CVSLs) in the Transnational Legal Practice Program. The program provides first-year and second-year students with intensive instruction in legal analysis, legal research and writing, and other professional and legal skills necessary for the practice of law in a global environment. The Starr Lecturers work with students in small classes of about 10-12 to develop written and oral skills. The CVSLs also co-teach the Legal Method course. The CVSLs are considered to be part of the faculty of STL and play a fully integrated, active role in the intellectual life of the law school. The appointments are for one year with the possibility of extension.
To be considered, a candidate for this position must hold a J.D. degree (or expect graduation in this academic year) and have native fluency in English. Candidates should be responsible, enthusiastic, hard working, and adventurous. Ability to speak Mandarin is useful for living in Shenzhen, but not necessary for the program.
CVSLs will be expected to arrive in Shenzhen in mid-August 2014, and be in residence throughout the academic year, which runs to the end of June 2015 (with an approximate one month break around the lunar new year). Fellows will receive a private room with bath in the student and faculty campus housing complex, comprehensive medical insurance, roundtrip transportation from the United States or other country of origin, and a stipend of US$2000 per month (or the equivalent in RMB). While this is a modest amount by United States standards, given the cost of living in China prior CVSLs have found it to be sufficient to cover board, incidental living expenses and some travel in and around China during school breaks.
For more information about the STL see our website http://stl.pku.edu.cn/en/. Please submit resumes and covering material via email to:
Vice Dean Stephen Yandle
We will begin reviewing applications September 1, 2013, with the goal of completing the selection process by the end of 2013. We will accept applications until all of the positions have been filled.
Saturday, November 2, 2013
I have received the following announcement:
Clarke Program Fellow
Clarke Program in East Asian Law and Culture, Law School
Meridian 180, a new community of prominent intellectuals and policy makers in Asia, the United States and around the world interested in new ways of thinking about law and markets broadly conceived, seeks to hire a Fellow at its center of operations at Cornell University, in Ithaca New York beginning no later than September 1, 2014. The aim of Meridian 180 is to generate new paradigms and solutions for the next generation of transpacific relations. The Fellow will play an integral part in this mission through translation, research, and outreach to wider public and policy communities.
Meridian 180 is a project of the Clarke Program in East Asian Law and Culture at the Cornell Law School. It is a non-profit, non-political project funded through private donations and with support from Cornell Law School. It is comprised of Senior Fellows and of Members in law, the academy, private practice and policy circles who meet regularly via an on-line platform supporting multilingual conversations, as well as periodically in face to face conferences. Ideas that emerge from these conversations are then incubated and developed, with the help of the Fellow, into forms in which they can make a difference in each individual society—ranging from policy papers to academic books, blog entries, and individual conversations with policy makers.
The Fellow will be responsible for the day to day maintenance and translation of on-line dialogues. He or she will also (1) work with other Fellows to draft, create, and translate various elements of the Meridian 180 project, (2) help organize conferences and workshops in the US and the Asia Pacific Region, (3) administer various day-to-day aspects of the project, and (4) take initiative, in coordination with the Director and other members of the team, to develop new features and projects to further the goals of the Meridian 180 project.
Duties and responsibilities (with approximate % of work time):
- Day to day translation of on-line dialogues on meridian-180.org (30%): The Fellow will provide on-line translations from Chinese to English and from English to Chinese of participants’ interventions on the website. This will be a daily task and translations typically must be completed within a 24 hour period.
- Work with other Fellows and Meridian 180 members to produce publications emerging from on-line conversations (25%): The Fellow will work with other Fellows, Meridian 180 members, and other Meridian 180 staff to write/edit/research/produce the final versions of conversations that will be made publicly available, either on meridian-180.org or in other venues (in electronic format or in print – policy papers, books, op-eds, etc.).
- Work with the Director on strategic planning (10%): The Fellow will help develop new research and outreach initiatives for both meridian-180.org and the Clarke Program. The Fellow will help identify emerging scholars whose work should be promoted and/or included on meridian-180.org and more generally via the Clarke Program.
- Conferences and Website Maintenance (15%): The Fellow will work on larger Clarke Program projects, related or not to meridian180.org. In particular, he or she will help with the organization of the conferences which, each year, will convene Meridian 180 members to further and promote the ideas developed in on-line conversations. The Fellow will also take initiative in managing the various features on Meridian 180 website.
- Individual research (20%, i.e. 8h/week) The Fellow is also expected to pursue his or her own individual academic research and writing leading toward publications and conference presentations. It may be possible to take this research time in one block during a portion of the summer break.
Qualifications and requirements
- law degree (JD or LLB) or PhD in the humanities or social sciences in hand by July 1, 2014.
- fluency in English and Chinese. Some level of familiarity with Japanese and/or Korean a plus (but not necessary).
- experience as translator or interpreter.
- must be comfortable with basic computer and internet operations; familiarity with programming (Drupal, PHP, commonspot) a plus (but not necessary)
- entrepreneurial initiative; independence, ability to work in teams, maturity, writing skills, research/scholarly experience, organization, focus, interest in the future of the East Asia-US relationship, familiarity with the Chinese academia, willingness to work on administrative task such as updating databases, communicating with institutions within Cornell University, and other miscellaneous day-to-day tasks, willingness to learn new skills, particularly in relation to computer and internet technology.
Interested applicants should submit a resume, cover letter and writing sample by December 13, 2013 to Donna Hastings at firstname.lastname@example.org.
Cornell University, located in Ithaca, New York, is an inclusive, dynamic, and innovative Ivy League university and New York's land-grant institution. Its staff, faculty, and students impart an uncommon sense of larger purpose and contribute creative ideas and best practices to further the university's mission of teaching, research, and outreach.
Cornell University is an equal opportunity, affirmative action educator and employer.
I have received the following announcement:
The Rights Practice is looking for a project officer to join its Beijing office and support the organisation’s growing programme in China.
We are seeking a motivated and experienced individual to support the delivery of our programme in China. As part of a small team you will have responsibility for supporting our programme manager and local partners in the implementation of a number of law and human rights projects.
You will need to be educated to degree level, preferably in law or human rights, have some relevant work experience, and be supportive of our work. Good communication skills in English, fluency in Chinese and an attention to detail under pressure are essential. We particularly welcome applicants with knowledge of criminal justice in China. The successful applicant must be able to live in Beijing and we cannot pay any relocation costs. For further information please see our website http://www.rights-practice.org/en/about.html.
To apply, please submit by email your CV and a cover letter to Nicola Macbean at email@example.com. Please submit your application as soon as possible or email first to indicate your interest. We are seeking to appoint someone by the end of November 2013.
Wednesday, October 30, 2013
Wednesday, October 23, 2013
Tuesday, October 22, 2013
There's a general consensus among Chinese and foreign scholars of Chinese law that whatever advantages the current system of local leadership over courts and procuratorates may have, they are far outweighed by the disadvantages. Local political leadership controls personnel and finances of courts and procuratorates at the same administrative level, and this naturally makes courts and procuratorates tend to listen to local political leaders, even when their wishes go against what the law might require.
Proposals to centralize control over court personnel and finances have been around for what seems like decades now, but have never gotten anywhere. The principle of local control is quite strong in China, and as courts and procuratorates are viewed by local governments as just another bureaucracy, one can understand why they would not feel there was anything special about them justifying a special governance and accountability structure. Moreover, any centralization would require amendment not only of the Court Organization Law, but of the Constitution itself: Article 101 provides that local people's congresses at the county level and above have the power of appointment and dismissal over chief judges and chief procurators at the same level, although interestingly appointment and dismissal of a chief procurator requires the approval of the higher-level procuratorate and people's congress standing committee.
In any case, the Duowei news service (not always reliable) reports yet another initiative to centralize the power of personnel appointment and finances over courts. Whether this time it will go anywhere is anyone's guess.
Sunday, October 13, 2013
Is a high-energy scanner a "like product" with a low-energy scanner? MOFCOM says yes, WTO panel says no.
I had a look today at the WTO panel decision in China - Definitive Anti-Dumping Duties on X-Ray Security Inspection Equipment from the European Union. This was a complaint by the EU against China for its finding of dumping against Smiths Heimann GmbH ("Smiths"), a European exporter of x-ray security inspection equipment, i.e., scanning machines.
Smiths might have been justified in thinking it had not received an entirely fair hearing before the Ministry of Commerce ("MOFCOM"); the Chinese complainant, Nuctech, was closely associated with Chinese leader Hu Jintao's son, Hu Haifeng - he had been president of the company until 2008, when he was promoted to become the Party secretary of Tsinghua Holdings, a company that controls Nuctech and a number of other companies. In any case, the WTO panel seems to have agreed. It found pretty much across the board in favor of the EU.
An interesting aspect of the case was the question of whether the so-called "low energy scanners" exported by Smiths were a "like product" with high-energy scanners manufactured by Nuctech. It worked in Nuctech's favor to find that they were, and MOFCOM duly so found. The panel was not impressed. In fact, it even bolstered its finding by including in the report photographs of each kind of scanner. You be the judge:
Am I being too cynical to suspect that the fix was in?