Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

Friday, September 23, 2016

Vote-buying scandal and expulsion of Liaoning delegates from the NPC: legal aspects

The big story from China in the last week has been a massive vote-buying scandal in Liaoning, resulting in the expulsion from the National People's Congress of 45 Liaoning deputies. An interesting twist on this story is that the whole expulsion process seems to have been done in brazen violation of established legal procedures.

The Organic Law of the National People’s Congress (OLNPC) provides for two ways for delegates to be unseated. First, they can be disqualified by the NPCSC’s Credentials Committee after their election but before the first NPC session following their election (Art. 3; see below). That didn’t happen here; the delegates were elected in 2013, so we are way past the deadline for disqualification by the credentials committee. The second way is for them to be unseated by the body that elected them, i.e., the relevant provincial people’s congress or its standing committee (Art. 45; see below). Obviously, that didn’t happen here, either.

The news reports say that the NPCSC’s action also disqualified the delegates from serving in the Liaoning provincial people’s congress and its standing committee. That’s very weird; there is no law giving the NPCSC the power to do this. (At least not that I know of.)

Now of course this is said to be an unusual situation. (Whether it’s actually unusual for so many members of a provincial people’s congress to be involved in corruption is an issue for another day.) And given that the OLNPC didn’t contemplate so many members of a provincial PC being corrupt, it of course did not contemplate that a provincial PC would be incapable of throwing out a few bad apples and would require external intervention. Thus, perhaps it was necessary to take this legally invalid action. (There is no place the delegates can go to challenge it, anyway.)

But this argument doesn’t really wash. The NPCSC can legislate about anything it wants. It can amend existing legislation. Thus, if it could get its act together sufficiently to pass a resolution expelling these delegates, it could have gotten its act together sufficiently to amend the relevant legislation to make its expulsion resolution legally valid. The failure to do so can’t be chalked up to urgency or the difficulty of getting legislation through a grid-locked and unfriendly legislature. I think it’s more likely attributable to a sense that getting your legal ducks in a row (even when it would be easy to do so) is just not important; people are not putting a lot of thought into that angle. There’s bad stuff going on and we have to put a stop to it.

The Chinese government would not be the first to side-step legal procedures when it wanted something done, of course. Here in the United States, Republicans and Democrats both have plausible complaints about stuff done when the other held the White House. I think there is an important difference, however. The executive branch takes these shortcuts (if we concede them to be shortcuts) because it can't get the legislature to go along, and it argues vehemently that the shortcuts are lawful anyway. The leadership of the Chinese party/state controls the NPC and its Standing Committee, and can get any law passed that it wants. And it is just not thinking about whether what it wants is lawful or not. There is no cadre of lawyers charged with writing memos that will provide the legal justification for what the leadership wants to do. Within the Chinese system, it just doesn't matter. No person or institution of consequence cares.

This is not to say that the American way of doing things is the only way or the best way. It is to say that there is a lot of evidence suggesting that caring about what the statutory law says is not the Chinese way (at least for the top leadership), and we shouldn't pretend otherwise.

September 23, 2016 in Commentary | Permalink | Comments (5)

Monday, September 19, 2016

GWU Law School panel discussion on South China Sea arbitration

Wednesday, Sept. 21, at 12:15 pm, in Lerner 402 at George Washington University Law School, 2000 H St. NW, Washington, DC.

Here are the details:



September 19, 2016 in Commentary, People and Institutions | Permalink | Comments (5)

Sunday, September 11, 2016

More on defamation law in China

The other day I posted about the concept of group defamation in China, noting that Chinese courts have upheld complaints in which members of a particular group sought damages or other legal remedies against those they believed had insulted their group.

The two interesting legal issues in cases like this are (1) under what circumstances can any group member sue for an insult to the entire group, and (2) what sort of commentary counts as an actionable insult (i.e., does the insult have to be an allegation of a particular fact that could be verified as true or not true (such as Donald Trump's allegation that Mexican illegal immigrants are rapists), or can it be just an offensive expression of opinion ("so-and-so is a jerk")?

In the United States, the answer to question 2 is that it must be an untrue allegation of a particular defamatory fact, not just something that is clearly the expression of an opinion that nobody would mistake for a factual allegation. The answer to question 1 is that if it's the group that has been insulted, an individual cannot sue unless the group is so small and identifiable that those who heard the defamatory statement would readily connect it to that individual. (This at least is my understanding; I'm not a libel law expert.) I note this only for comparative purposes and not to suggest that the U.S. rule is one that everyone else should follow.

As my post noted, in China neither of these is true. One can sue for a generally insulting expression of opinion, and group members have standing even when the group is huge (for example, all Henan residents).

That being said, there is an exception to these restrictive rules on free speech: we find courts sympathetic to expansive protection of speech when the insulter reflects government views. This is not the rationale courts provide, of course, which means that we can find different and quite irreconcilable principles cited by courts in these cases.

The latest example of this is two decisions handed down by the Beijing 1st Intermediate Court and the Beijing 2nd Intermediate People's Court on the same day last February in the cases of Hong Zhenkuai and Huang Zhong. (For a full account, from which the following borrows liberally, please see this post on the Fei Chang Dao blog.) They were the writer and editor respectively of an article in the liberal journal Yanhuang Chunqiu (炎黄春秋) that questioned the accuracy of historical accounts of some revolutionary heroes. 

After the publication of the article, Mei Xinyu (梅新育) posted this response on his Sina Weibo (Chinese twitter) account:

"What is motivating these editors and writers at 'Yanhuang Chunqiu'? . . . . Is it too polite to say this kind of writers and authors are sons of bitches?"
《炎黄春秋》的这些编辑和作者是些什么心肠啊?. . . . 说这样的作者和编辑属狗娘养的是不是太客气了?

The same day, Guo Songmin (郭松民) reposted Mei’s post and added the following comment on his Sina Weibo account:

Oppose historical nihilism; if nothing is done about this gang of sons of bitches it's a joke!

Hong and Huang sued both Mei and Guo and lost. The reasoning of the courts boiled down to the following propositions: (1) Neither Mei's nor Guo's posts identified the plaintiffs with sufficient specificity for the court to find that the remarks were directed at them; (2) in casting doubt on revolutionary heroes, their posts hurt the feelings of the defendants and therefore they had it coming to them.

September 11, 2016 in Commentary, News - Chinese Law | Permalink | Comments (2)

Thursday, September 8, 2016

Group defamation in Chinese law

Ten years ago (can it really have been that long?) I posted about defamation law in China, noting that one feature that differentiates it from defamation law in at least some other jurisdictions is that while on the one side there is a recognition of the harm that can be done by nasty speech, there is not on the other side any pushback from a countervailing value of free speech (in the case of the U.S., for example, a constitutionally-protected countervailing value). Thus, it has the potential to go very far in the direction of policing everyday speech quite stringently.

The latest development is a case where Hu Wei, a CCTV television personality, made a series of posts last month on Sina Weibo (Chinese twitter) insulting people from Henan province (a common target of popular prejudice, combining a Manhattanite's image of Appalachians with Donald Trump's image of Mexican immigrants). Apparently he really has it in for Henanese, having made another Weibo post in April saying that they were all good-for-nothings who knew only how to have babies, steal, and boast.

Jing Changshui, a resident of Henan [NOTE: corrected from "Hunan"] decided he had had enough and brought suit on August 31st against Hu and the operator of Sina Weibo in a local court in -- you guessed it -- Henan (in the city of Zhengzhou). He seeks removal of the offending posts and a commitment to post no more of them, an apology to the people of Henan in national and provincial media, and damages of 1000 yuan for emotion distress. For various reasons, he wishes to characterize his suit as a public interest suit, not an individual suit.

When a suit is brought, there's a preliminary gatekeeping stage in which court decides whether there's enough there to justify going further. This decision is called li'an (立案), often translated as "docketing". Courts have a week to make this decision. Just as the deadline was approaching, on Sept. 7th, the Zhengzhou court decided to docket the case. This means that it will now go forward: the plaintiff will have the opportunity to plead and prove his case, and the defendant will have to show up and defend.

Although docketing the case does not mean that the plaintiff wins, it does mean that the court is unwilling to say that as a matter of law, the facts as alleged by the plaintiff simply don't state a legal claim. Put another way, the court is saying that at least in some circumstances, making nasty generalizations about a group can lead to liability.

This is not at all surprising, given what we already know about the operation of defamation law in China. Nevertheless, it does clarify (and a decision in favor of the plaintiff might clarify even further) the scope of defamation law: that it extends to groups. At the same time, I'm not sure why this is being presented in the press as some kind of breakthrough or difficult case: a similar case on similar grounds was brought in 20o5 and accepted by a Henan court; it ended in a settlement. 

I found this case especially interesting when I ran across it today because it was only yesterday that I ran across an instance of what is arguably group defamation committed by Air China against Indian, Pakistani, and black residents of London (and possibly worldwide). The photograph below is from an article in Air China's inflight magazine about London:


I confess I can't remember (or perhaps never knew) the precise rules on suing a defendant inside China under Chinese law for a tort when the victim is outside China. Presumably the effect of the tort is felt both within China (when the magazine is read on a domestic flight) and outside. I'd welcome comments on whether a lawsuit in China against Air China by offended residents of London would be at least theoretically possible, given the endorsement of group defamation theories by the Zhengzhou court.

September 8, 2016 in Commentary, News - Chinese Law | Permalink | Comments (1)

Wednesday, July 20, 2016

"Patriotic" Chinese companies warns that workers who buy iPhone 7 will be fired

Iphone firing

Here's the story from the South China Morning Post. What the company seems to have forgotten in its patriotic indignation is that China actually has some employment laws that forbid employers from firing employees simply on a whim - especially if they have long-term contracts, which after a certain period of time all of them will have.

July 20, 2016 in Commentary, News - Chinese Law | Permalink | Comments (2)

Wednesday, July 13, 2016

Thoughts on the South China Sea China-Philippines arbitration

[Note: This post has endnotes.]

The long-awaited decision of the UNCLOS arbitration tribunal (the “Tribunal”) in the South China Sea case between China and the Philippines case (the “Decision”) was released today. (Click here for links to a detailed press release and the text of the Decision itself.) I am not a specialist in the law of the sea or even international law generally, but since everyone else is commenting on the decision I think I’ll add my own voice as well. What follows are some unsystematic thoughts on particular aspects of the Decision that I think are more difficult to understand or haven’t been commented on much. (For an excellent quick overview of the whole thing (which this post definitely is not), check out this great Lawfare blog post by Robert Williams. For a more detailed look and assessment, check out Jacques deLisle's excellent piece here. Julian Ku has also been following this for some time and has written several pieces on it, and will no doubt continue to do so.)

In brief:

  1. The Decision does not decide any territorial claims. The Tribunal did not have jurisdiction to do so and never so pretended. It specifically disclaimed its jurisdiction and intention to decide any such claims.
  2. The Tribunal did decide what types of rights to surrounding waters were generated by particular geographical features such as rocks and islands. It decided that the features in questions were rocks, not islands, and therefore not capable of generating 200-mile exclusive economic zones (“EEZs”) around them. (Decision, pp. 204 et seq.) This matter falls squarely within the purview of the Law of the Sea Convention (the “Convention”). As noted above, however, it did not decide who had the rights to those features (appropriately, because that is a matter that does not fall within the purview of the Convention), whether or not they were capable of generating rights.
  3. The Decision does not say that China’s Nine-Dash Line (the “NDL”) is “illegal” or anything like that. Nor could it: China has never clarified what exactly it is claiming with the NDL. The Tribunal said that if it represents a claim of type X (of which more later), then that claim is unfounded. It is the claim that is unsound, not the particular method China uses to signal its claim.
  4. The main significance of the Decision is not what it says about the NDL and China’s claim of “historic rights”. It is in what it says about what kinds of rights are generated by various geographical features. As the Decision notes, much of the area within the NDL “would also fall within a claim to an exclusive economic zone or continental shelf drawn from the various features of the Spratly Islands.” (Decision, Para. 207) Since the Tribunal did not decide the question of sovereignty over those features, the key feature of its decision was whether China, if it had sovereignty, was entitled to a 200-mile EEZ as a result. If it had decided in China’s favor on that question, its decision against China on the NDL issue would have been of little practical significance.

It’s the third point that I want to address here, because there are lots of interesting wrinkles in the argument.

A. Did the tribunal have to address the NDL issue?

First, did the Decision have to address the NDL issue at all? I ask this question because some analysts have asserted that the tribunal could (and should) have avoided this sensitive question entirely. This kind of objection really makes sense only if one is saying that the tribunal could have resolved the issues before it without getting into the thicket of the NDL. Anglo-American lawyers are used to making arguments like this, because they see courts and similar tribunals as designed to resolve cases, not to make abstract, grandiose, and quite possibly controversial statements about the law. If you can resolve a case by using low-level, uncontroversial principles, you should do it that way instead of relying on high-level, highly-disputed principles. That means that you invoke the latter only when you really have to, thus minimizing controversies and maximizing the court’s legitimacy. So far, so good: in principle, this is a reasonable objection.

But if one is simply saying that the tribunal could have avoided a controversial issue by simply not addressing it, well, duh. But then it would not have resolved an issue that it was supposed to resolve. It’s like saying that the Supreme Court could have avoided ruling on the constitutionality of segregation by simply declining to hear Brown v. Board of Education. Well, yes, but …

So this criticism is legitimate only if the tribunal could have resolved the issues before it without talking about the NDL and what it stands for. Could it have done so? I don’t see how.

The Philippines specifically requested the tribunal to do the following:

[T]he Philippines seeks a declaration from the Tribunal that China’s rights and entitlements in the South China Sea must be based on the Convention and not on any claim to historic rights. In this respect, the Philippines seeks a declaration that China’s claim to rights within the ‘nine-dash line’ marked on Chinese maps are without lawful effect to the extent that they exceed the entitlements that China would be permitted by the Convention. (Decision, Para. 7)

Now, it is certainly not the case that tribunals are obliged to resolve every issue put to them. If the Philippines had asked the tribunal to resolve an abstract issue of law with no real-world consequences for the parties, the tribunal could, and should, have avoided the question. The standard justification for avoiding such questions is that with nothing at stake, neither the parties nor the tribunal have an incentive to think the issues through sufficiently and consider all the angles and consequences of a ruling one way or the other, and also that the tribunal’s legitimacy is diminished when it purports to pronounce on matters that are beyond its proper jurisdiction: the resolution of an actual dispute between the parties. And that line of thinking makes sense to me.

But in this case, the issue that the tribunal was asked to resolve was a genuine issue between the parties that had real-world consequences. China was claiming certain rights over waters on a theory (that of “historical rights”) that had no basis in the Law of the Sea Convention, it was defining those waters via the NDL, and it was taking specific actions on the basis of those claims.[1]

The Tribunal listed three specific instances where China appears to have asserted rights arising independently of the Convention. First, in June 2012, the China National Offshore Oil Corporation issued a notice of open blocks for petroleum exploration adjacent to the western edge of the NDL. At least one of those blocks included an area situated more than 200 miles from any feature in the South China Sea claimed by China and beyond any extended continental shelf. (Decision, Para. 208) Although the area in question does not apparently overlap with any waters claimed by the Philippines, other areas claimed under the same theory do, and given that the area is, in the view of the Philippines, international waters not subject to any country’s EEZ and therefore open to exploitation by any country including the Philippines, it has a legitimate interest in challenging a claim contrary to that view.

Second, China has objected to the Philippines’ award of petroleum blocks within the NDL. But what was the source of the claimed rights that formed the basis of China’s objection? As the Tribunal noted, “The area of the Philippines’ petroleum blocks could be almost covered by entitlements claimed by China under the Convention, if China were understood to claim an exclusive economic zone from all high-tide features in the Spratly Islands, no matter how small, and from Scarborough Shoal. The fact of China’s objection is thus not necessarily indicative of the source of China’s claimed rights.” (Decision, Para. 208 (emphasis added)) But China itself stated that its claims derived from its “indisputable sovereignty” “since ancient times” “over the Nansha islands and its adjacent waters”, and in a different objection noted that various blocks were located “deep within China’s nine-dash line.” (Decision, Para. 209)

Third, China has declared a partial ban on fishing in areas of the South China Sea that, like the Philippines’ petroleum blocks, could be almost entirely covered by entitlements under the Convention “if China were understood to claim a 200-mile EEZ from the very small rocks of the Scarborough Shoal.” But for the reasons stated above, it seems more likely that China’s claim is based on its theory of “historic rights”, and in any case since the Tribunal decided that the rocks of the Scarborough Shoal did not generate an EEZ, it became necessary to rule on whether China had a claim to the seas in question on the basis of any other theory.

Finally, although the Tribunal did not make this point, it is worth noting that had the Philippines not challenged China’s “historic rights” theory symbolized by the NDL, it could justly have been faulted later on for acquiescence, a key factor in deciding rights under international law. If a state makes claims beyond its recognized rights and other states fail to object for a long enough period, then those claims will ultimately ripen into recognized rights.

In sum, the Philippines presented a genuine and not abstract issue to the Tribunal on which issues of real importance turned. China was claiming certain rights to the sea that did not originate in the Convention, and those claims were inimical to the Philippines. The geographical scope of those claims was defined not by land features (as is the case with EEZs and territorial waters) but by the NDL. It is impossible to see how the Tribunal could have resolved the issue before it without talking about the NDL and the “historic rights” claim it defines.

B. What does the Decision say about the NDL?

Second, what exactly does the Decision say about the NDL? Contrary to some commentary, the Decision does not say that the NDL is “illegal”. And indeed, it could not, since the NDL does not actually do anything. It’s a line on maps drawn by China. The important thing is to understand what underlying claims it symbolizes, and then to analyze those claims. This proved a bit difficult for the Tribunal, since China has been coy about what exactly it is claiming when it publishes maps showing the NDL.[2] The Tribunal tried to figure out what sort of claim was symbolized by the NDL and then ruled on the validity of that claim. This does not quite mean that China can simply change the theory underlying the claims symbolized by the NDL and force the Philippines (and other affected states) to start again from square one, because the Tribunal expressly ruled that rights not provided for under the Convention are trumped by rights provided for in the Convention; that the extinction of such rights was the price states paid to get the benefit of rights under the Convention such as EEZs.

On the basis of various statements made by the Chinese government, the Tribunal concluded that China was making a particular set of claims (call them “X claims”) over particular waters (call them “Y waters”).[3] The content of X claims is as follows: (1) exclusive rights to living and non-living resources, and (2) a commitment to respect freedom of navigation and overflight, indicating that Y waters are not considered territorial or internal waters.[4] The content of Y waters is all waters within the NDL that are not China’s territorial waters or EEZs under the Convention. Even if one acknowledges as valid all of China’s territorial claims in the SCS, and moreover grants a 200-mile EEZ to every rock within the NDL, it still encompasses areas that are outside of any conceivable EEZ, and the Tribunal found that China was asserting X claims over those areas.

The Tribunal then had to decide whether X claims had any validity under the Convention or beyond the Convention. On this issue, its reasoning was straightforward. If China (or any other state) had rights of any kind (historical or otherwise) to waters covered by the Convention prior to joining the Convention, those rights were extinguished as part of the deal states made when they joined. In exchange for the EEZ, they gave up other kinds of rights. Thus, even if China did have something called “historical rights” over certain waters, it gave up those rights when it signed on to the Convention.[5]

Ironically, as the Decision points out, exactly this position was strongly supported by none other than China itself during negotiations over the Convention in the mid-1970s: “In the course of these debates, China actively positioned itself as one of the foremost defenders of the rights of developing States and was resolutely opposed to any suggestion that coastal States could be obliged to share the resources of the exclusive economic zone with other powers that had historically fished in those waters.” (Decision, Para. 251)

In short, the Tribunal found that (1) China was claiming EEZ-type rights over waters to which the Convention did not grant it EEZ-type rights, waters defined by the NDL; (2) those claims were based on a theory of “historic rights”; and (3) even if China had had “historic rights” over those waters, such rights could not trump the EEZ rights of another state over the same waters.

C. What did the Decision say about China’s historic rights?

Given that the Tribunal decided that historic rights, even if they existed, were invalid against rights under the Convention, it was not strictly speaking necessary for it to spend time on the issue of whether such rights did in fact exist in China’s case. Nevertheless, it did offer some interesting observations.[6]

The core of the Tribunal’s comment on historic rights lies in its (unstated) analogy to rights acquired by prescription (also known in real estate law as adverse possession) in domestic legal systems: if you do something wrongfully long enough and others don’t effectively object, then your wrong can ripen into a right. The Tribunal put it this way:

[T]he Tribunal notes that historic rights are, in most instances, exceptional rights. They accord a right that a State would not otherwise hold, were it not for the operation of the historical process giving rise to the right and the acquiescence of other States in the process. It follows from this, however, that the exercise of freedoms permitted under international law cannot give rise to a historic right; it involves nothing that would call for the acquiescence of other States and can only represent the use of what international law already freely permits. (Decision, Para. 268)

In other words, if you’re just doing what you already have a right to do, and what others have no right to object to you doing, it can never ripen into anything more than that.

The Tribunal then observed that engaging in navigation, trade, and fishing on high seas beyond territorial waters simply represents the exercise of high seas freedoms already permitted by international law. Nobody can object to it, and such activities therefore cannot form the basis for the emergence of a historic right. (Decision, Para. 270) What is needed for a historic right is evidence that you took more than you had a right to take, and that others acquiesced:

Evidence that merely points to even very intensive Chinese navigation and fishing in the South China Sea would be insufficient. Instead, in order to establish historic rights in the waters of the South China Sea, it would be necessary to show that China had engaged in activities that deviated from what was permitted under the freedom of the high seas and that other States acquiesced in such a right. In practice, to establish the exclusive historic right to living and non-living resources within the ‘nine-dash line’, which China now appears to claim, it would be necessary to show that China had historically sought to prohibit or restrict the exploitation of such resources by the nationals of other States and that those States had acquiesced in such restrictions. In the Tribunal’s view, such a claim cannot be supported. (Decision, Para. 270)

The Tribunal said it knew of no evidence that China had historically regulated or controlled fishing in the SCS beyond its territorial sea, and of course it could not even have attempted to regulate access to non-living resources of the seabed, since extraction of seabed resources is a very recent historical phenomenon.


[1] See Decision, Para. 190:

In the Philippines’ view, the nature of China’s claim as one of sovereign rights and jurisdiction is confirmed by China’s conduct in (a) seeking to ban fishing by other States within the ‘nine-dash line’; (b) interfering with the Philippines’ petroleum exploration activities; and (c) offering concessions to oil blocks in areas within the ‘nine-dash line’ but beyond the possible limits of China’s entitlements under the Convention. At the same time, the Philippines considers that China’s conduct makes clear that its claim is not to sovereignty over the entire area within the ‘nine-dash line’, insofar as China has repeatedly asserted that it respects freedom of navigation and overflight in the South China Sea.162 The Philippines also notes that this interpretation of China’s position has been adopted by numerous Chinese scholars, including those with significant links to the government. (Internal footnotes omitted.)

See also Decision, Para. 207:

Since 1956, China has proclaimed a series of maritime zones—a territorial sea, a contiguous zone, a continental shelf, and an exclusive economic zone—that are, at least in general terms, in line with those anticipated by the Convention. Nevertheless, China’s repeated invocation of rights “formed in the long historical course” and its linkage of this concept with the ‘nine-dash line’ indicates that China understands its rights to extend, in some form, beyond the maritime zones expressly described in the Convention. The Tribunal therefore turns to the rights that China has actually invoked in the South China Sea. Much of the area encompassed by the ‘nine-dash line’, however, would also fall within a claim to an exclusive economic zone or continental shelf drawn from the various features of the Spratly Islands. Whether or not the Tribunal would agree that the Convention or the features support such entitlements, a matter discussed in Chapter VI below, the mere fact that China asserts rights in the South China Sea does not indicate that China considers those rights to derive from the ‘nine-dash line’. Where, however, China has asserted rights in areas beyond the maximum entitlements that could be claimed under the Convention, the Tribunal considers that such assertions indicate a claim to rights arising independently of the Convention. There are at least three instances when China appears to have asserted such rights.

[2] See Decision, Para. 180: “[T]he resolution of the Parties’ dispute . . . is complicated by some ambiguity in China’s position. As far as the Tribunal is aware, China has never expressly clarified the nature or scope of its claimed historic rights. Nor has it ever clarified its understanding of the meaning of the ‘nine-dash line’.” (Internal footnotes omitted.)

[3] See Decision, Chapter V.

[4] See Decision, Para. 213.

[5] See Decision, Para. 257:

Through the Convention, China gained additional rights in the areas adjacent to its coasts that became part of its exclusive economic zone, including the areas adjacent to any island entitled to such a zone. It necessarily follows, however, that China also relinquished the rights it may have held in the waters allocated by the Convention to the exclusive economic zones of other States.” See also Decision, Para. 262: “Accordingly, upon China’s accession to the Convention and its entry into force, any historic rights that China may have had to the living and non-living resources within the ‘nine-dash line’ were superseded, as a matter of law and as between the Philippines and China, by the limits of the maritime zones provided for by the Convention. This should not be considered exceptional or unexpected. The Convention was a package that did not, and could not, fully reflect any State’s prior understanding of its maritime rights. Accession to the Convention reflects a commitment to bring incompatible claims into alignment with its provisions, and its continued operation necessarily calls for compromise by those States with prior claims in excess of the Convention’s limits.

[6] The Tribunal could perhaps be criticized for going beyond the minimum necessary to resolve the dispute before it, especially in such a contentious case. I will leave the judgment on that issue to the reader. The Tribunal would be on much firmer ground if it were customary, or at least not rare, in international state-to-state arbitration for tribunals to engage in this kind of practice. Unfortunately, I do not know whether this is so.

July 13, 2016 in Commentary | Permalink | Comments (0)

Tuesday, July 12, 2016

China-Philippines UNCLOS arbitration ruling: the documents

Here they are, courtesy of Andrew Erickson (spoiler alert: China lost).


July 12, 2016 in News - Chinese Law | Permalink | Comments (5)

Wednesday, June 29, 2016

Amnesty International seeks Research and Campaign Assistant for East Asia (Hong Kong-based, China-focused)

Here's the announcement: The description notes that it's China-focused.

June 29, 2016 in Internships/Employment Opportunities | Permalink | Comments (1)

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

China to require government agencies and SOEs to hire lawyers and to listen to them

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.

June 17, 2016 in Commentary, News - Chinese Law | Permalink | Comments (6)

Thursday, May 26, 2016

IP vacancy at the USTR

Friday, April 22, 2016

White Paper on Judicial Reform

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.

April 22, 2016 in Books, Commentary, News - Chinese Law | Permalink | Comments (0)

Friday, March 25, 2016

China-related jobs with PILnet (Global Network for Public Interest Law)

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. 

Program Manager: (updated version here)

Program and Administrative Assistant:



March 25, 2016 in Internships/Employment Opportunities | Permalink | Comments (0)

Tuesday, March 22, 2016

Again on China's acquittal rate

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:

  1. 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?
  2. 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.
  3. 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.

March 22, 2016 in Commentary | Permalink | Comments (0)

Monday, March 7, 2016

Position available at Amnesty International, Hong Kong (deadline: March 13th)

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:


March 7, 2016 in Internships/Employment Opportunities | Permalink | Comments (1)

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.

March 2, 2016 in Commentary | Permalink | Comments (0)

Tuesday, March 1, 2016

New web address for Chinese court judgments site

The official web site for court judgments, 中国裁判文书网, has changed its URL from to Thoughtfully, they have neither installed an auto-redirect at the old web site nor even provided information about the new web address.


March 1, 2016 in Commentary, News - Chinese Law | Permalink | Comments (2)

Sunday, February 28, 2016

China's criminal conviction rate stays high

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:

  1. 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.
  2. 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.

February 28, 2016 in News - Chinese Law | Permalink | Comments (0)

Saturday, January 23, 2016

Cornell Law School seeks Clarke Program Fellow (no relation)

Thursday, January 21, 2016

2016 PILNet fellowship available for applicants from mainland China (and other places, of course)

Seth Gurgel at PILNet just circulated this email to the Chinalaw list. I'm attaching the materials he refers to here (Call for Applications) and here (Chinese version).

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.

January 21, 2016 in Fellowships/Research Opportunities | Permalink | Comments (0)