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Blawg Review #210
2009-05-04 18:26:00
Half-wracked prejudice leaped forth "Rip down all hate," I screamed Lies that life is black and white Spoke from my skull. I dreamed Romantic facts of musketeers Foundationed deep, somehow. Ah, but I was so much older then, I'm younger than that now. Bob Dylan, from his song, My Back Pages, presumably in reference to my previous Blawg Review , Blawg Review #162 "Peace lies not in the world..." Master Po (Kung Fu Television Show, Episode 8) This is the second time I have taken up the call to write a Blawg Review. The last time I wrote a Blawg Review (#162), I did so to bring about peace in our time: When I took on this task of writing Blawg Review #162, I received emails expressing excitement at the idea of this blog bridging East and West, enlightening the legal world about China, and enlightening our China readers about the legal world. All lofty goals, but not lofty enough. I am going here for no less than WORLD PEACE. Miss America (and Miss World too, for that matter) cou...

China Real Estate Stirring?
2009-05-03 15:46:00
For months and months and months and months, my law firm had not been involved in a single China commercial real estate deal. Not one. Sure, we assisted a foreigner or two in buying (or selling) a condo in which to live, but nothing at all on the investment front. Now, just in the last month, we are in the midst of a number of such deals (for a number of clients old and new) and I read the news and the news says commercial property (retail, office, industrial, etc.) is not selling in China. And I know all real estate is local, but our new deals are in cities where the news clearly applies. All of our new deals involve foreigners taking out very very long term leases (rather than "buying") office buildings in need of renovation in great locations. All of these deals involve fairly small buildings (certainly small by China standards) owned by Chinese developers who want out. Our clients are small to mid-sized foreign developers who have their "own people" standing by to do ...
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China Power Summit 2009. May 22-23, 2009 In Beijing.
2009-05-01 20:57:00
The China Power Summit is going to be in Beijing from May 22-23 this year and China Law Blog's own Steve Dickinson will be a featured speaker. Steve will be reprising (and updating) his speech on how foreign companies can best protect themselves when getting into Chinese joint ventures. Steve spoke on this last year at "JPMorgan’s Hands-On China Series" and at JP Morgan's China Conference. Joint ventures are a very common (and sometimes necessary) vehicle for foreign companies seeking to enter into China's energy and cleantech fields. I forgot to ask Steve if he would be speaking in Chinese or in English, but due to the nature of the topic, I am guessing it will be English. If you want to read more on Chinese joint ventures, check out Steve's AmCham China Brief article, "Avoiding Mistakes in Chinese Joint Ventures" and my Wall Street Journal article, "Joint Venture Jeopardy?" In addition to Steve, other speakers at this event will include the following: Shu Yingbia...

China Visas. I'm Getting Deja Vu Olympic Feelings, Part II, The Now I
2009-04-29 16:10:00
Three days ago, I did a post entitled, "China Visas . I'm Getting Deja Vu Olympic Feelings ," in which I talked about having heard from clients of difficulties in getting their China visas: One of the great things a about being a lawyer is that we hear all kinds of things from our clients and potential clients. And then when we start hearing those same things on the blogs, we know something is up. I am hearing a lot of things about the difficulty of getting anything but a three month visa. I actually got a call from a potential (very broadly defined) client the other day wanting our help in getting hima one year visa. He "owns" a business in China and it is "absolutely critical to the point of it being do or die" that he be in China at the end of May. He had applied for a business visa (an F Visa) and been turned down cold and essentially told not to bother coming back until 2010 to try again. We talked a bit about what he was doing in China and it turned out he had set up an inte...
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Avoiding Chinese Jails. I'm Talkin' To You.
2009-04-28 20:42:00
In her post, Hot Water in China? Don’t Get Burned: Part I, Aimee Barnes highlights how important it is for foreigners to follow the law in China. All of the laws. All of the time. No matter how much you may disagree with them, no matter how silly you may find them, and no matter how different they may be from those to which you are accustomed. Most importantly, you must strive to follow the law no matter how much you may see those around you disobeying them, particularly if those you see are not foreigners. Ms. Barnes puts forth the following list of what to avoid if you "want to steer clear of a legal snafu and avoid hanging out with the Public Security Bureau or other inmates at a local jail" ....even if they’re not a big deal in your own country": 1. Driving without a Chinese drivers license 2. Leaving “home” without your residency permit and passport 3. Living or cohabitating illegally 4. Letting your visa expire, visa overstay 5. Participating in “under the t...

Foreign Direct Investment In China. The Times Have Changed. For Good.
2009-04-27 19:11:00
China Law Blog's Steve Dickinson recently did a China Economic Review column on China's efforts to move away from being an "export-led" economy. The column is entitled, "No Turning Back," [subscription required] and its thesis is that despite the economic downturn, China's overall macroeconomic plan is still moving forward. Steve starts out by noting how the recent session of the National People's Congress has made clear that China is not backing down from its plan to move away from export-led growth: For all the pledges of support for struggling manufacturers, the surprise package of the recent session of the National People’s Congress (NPC) was actually a definitive rejection of the export-led growth model. While China will obviously remain open to foreign commerce, Beijing’s response to the global economic slowdown is to emphasize even more strongly the role of domestic consumption and domestic investment in maintaining growth. Many foreign observers expected that th...
More About: China , Investment , Direct , Foreign , Times

China Visas. I'm Getting Deja Vu Olympic Feelings.
2009-04-26 17:44:00
One of the great things a about being a lawyer is that we hear all kinds of things from our clients and potential clients. And then when we start hearing those same things on the blogs, we know something is up. I am hearing a lot of things about the difficulty of getting anything but a three month visa. I actually got a call from a potential (very broadly defined) client the other day wanting our help in getting hima one year visa. He "owns" a business in China and it is "absolutely critical to the point of it being do or die" that he be in China at the end of May. He had applied for a business visa (an F Visa) and been turned down cold and essentially told not to bother coming back until 2010 to try again. We talked a bit about what he was doing in China and it turned out he had set up an internet business with a Chinese "partner" where, on the books, his Chinese partner owns the business entirely, but this American has an oral agreement with the "100% trusted"Chinese partner...
More About: Olympic , Feelings , Visas

Everything (And A Whole Lot More) You Wanted To Know About China Law Blog I
2009-04-26 10:13:00
@22tweets interviewed me via twitter the other day and that interview is now online here. Because it was on twitter, I was limited to 140 character answers (actually it was even less than that as some of the 140 characters went towards the address and the hashtag). 22tweets is run by the incomparable Lance Goddard and it can be found here on Twitter. It was really great fun and I can see where in real life it would make sense to limit people (especially lawyers) to such short responses. Not sure why 22tweets chose to emphasize my television and radio appearances in my background, but, hey, if you want to think I am a television star, that's alright by me.
More About: China , Blog , Wanted

Can Someone Explain China Retail?
2009-04-26 08:59:00
I am being serious here. I just recently got back from a China trip with my eleven year old daughter. Like most 11 year old girls, she loves to shop for clothes and she really is quite knowledgeable about them. Though we went to other places as well, she did her clothes shopping in Shanghai, Beijing, and Seoul, Korea. She did virtually all of her buying in Seoul. Here are my findings and questions based on what I saw of and heard from my daughter. 1. The clothes that she liked that are also available in the United States, were pretty much the same price in China as in the United States. I do not understand this. I am pretty certain retail rents are considerably higher in the Seattle (where she does most of her shopping) than in most places in Beijing and Shainghai and I am absolutely certain the wages of the salespeople are considerably higher in Seattle (where everybody makes at least $8.50 an hour) than in Beijing or Shanghai. I also think the taxes are about the same. ...
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Wanna Get Sued In China? Your Ex-Employees Can Help. Part II, The Corpora
2009-04-25 17:53:00
I should have waited a couple of days. The day before yesterday, I did a post on foreign employees getting sued in China by their ex-employees, entitled, "Wanna Get Sued In China? Your Ex-Employees Can Help." Today, Corporate Counsel Magazine came out with a related article, in which I am quoted. The article is entitled, "Companies Considering Layoffs in China Must Coordinate With Government." It is written by Anthony Lin, an attorney and Chief Asia Correspondent at Incisive Media. The article does a great job describing the topsy-turvy labor situation in China these days. The article starts out by setting the stage regarding the Chinese government's somewhat contradictory messages: Beijing is doing what it can to stanch the loss of jobs by downplaying some aspects of the new labor law and emphasizing others. Even before the economic downturn hit, companies complained that they would have to get rid of employees because the statute's social welfare provisions were a burden....
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Wanna Get Sued In China? Your Ex-Employees Can Help.
2009-04-24 07:47:00
China Daily (h/t to my friend Brian over at China Challenges) just came out with an article headlined, "Cases soar as workers seek redress." The article gives facts behind what many of us already knew: "the number of labor disputes heard by courts has skyrocketed this year." I knew it because my firm's handling of such matters has probably just about doubled in just the last three months. According to the numbers, employee cases have increased by 59 percent over last year. The article rightly ascribes this increase to three things: 1) the economic downturn; 2) "Ever since the implementation of the Labor Contract Law in January 2008, workers have become more aware of their rights and the legal avenues available to safeguard them:" and 3) A reduction of costs for such suits to at most 10 yuan. We are finding that most of these cases arise from one (or more of the following): -- Firing of an employee for a reason not explicitly mentioned in the employer manual or not having a...
More About: China , Employees , Sued

On How To Handle The Accidental China Business
2009-04-23 15:35:00
Interesting post by Andrew Hupert over at China Solved, entitled, "Selling China to the Accidental Expats." The post is intended to instruct China consultants on how they should handle calls from American companies that have now decided they must take advantage of China's growing market. But it also makes some very good points for those American companies as well. Andrew starts out by defining "Accidental Expats": I call them Accidental Expats. They are the American business owners and senior managers who had never really considered setting up shop in China – not while the US market was big & active enough to support their growth strategies. They’ve got nothing against China per se. They just used to consider it an unnecessary risk and huge inconvenience. But now, of course, times are changing. I’m already starting to hear from lots of Americans I haven’t spoken with in a while. When I first moved to Shanghai they had no idea why I was doing it. Now they want to know ...
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Chinese Drywall Cases. Show Me The Money!
2009-04-22 08:01:00
The Wall Street Journal Law Blog did a post the other day touting Chinese drywall as the next big mass tort action in the United States. The post is entitled, "Does the New Product-Liability Boom Lie . . . Inside the Walls?" and to the extent it hints at a "yes" answer, it is likely going to be dead wrong. It is going to be wrong because it ignores one critical point. The US plaintiffs are not likely going to be able to collect anything from the Chinese defendants by suing in them in the United States and collecting from the German defendants is likely to prove difficult as well. WARNING: I am going to have to get rather technical in this post as there is really no other way to handle a subject as legalistic as enforcing a judgment overseas. Near as I can tell, the US drywall plaintiffs are mostly suing the Chinese manufacturers of the drywall and the name most often mentioned for that Knauf Plasterboard Tianjin Company. Additionally, the plaintiffs are also naming Knauf, a...
More About: Money , Show , Cases , Show Me the Money

Hutong Economics.....China Business?
2009-04-21 08:47:00
I am in the middle of a post on why the Chinese drywall cases are no big deal but I can't seem to get out of my head a very short post over at Letter From China . The post is entitled "Hutong Economics ," and it very briefly (I know I earlier already described it as "very short") discusses the opening and closing of a tiny Beijing food stand, all within an eight week span. I can't get it out of my head because I am convinced there is some conclusion to be drawn from this post, yet I keep coming up empty. Does this reveal the impatience of Chinese businesspeople? Does it show that what is true of the United States is also true of China, that small businesses frequently fail because they are undercapitalized? Does it show that it takes more than eight weeks for a business to garner a reputation and to thrive? Why do you suppose "Letter From China" (conspiracy anyone?) failed to reveal the quality of the food produced at this stand and how much of a factor was this in its failure...
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Jackie Chan Is A Know-Nothing Self-Loathing Racist.
2009-04-19 22:54:00
The title sums up my initial reaction to the news of Jackie Chan dissing the Chinese people by essentially saying they are too messed up to ever be able to handle democracy. I was going to write a blog post criticizing Chan for his comments and noting how the same thing has been said about other countries that are now democracies (the United States, Japan, West Germany, Italy, Spain and South Korea immediately come to mind). Then I decided I am not the right person to write such a post, so I didn't. But today, over at The Useless Tree, I saw the post I would have written, if I were a thoughtful college professor of Chinese politics and decided to simply incorporate it as though I had written it myself. The post is entitled, "Jackie Chan does the Orientalist thing," and if you want to know why Jackie Chan should pretty much be ignored when it comes to world politics (just as anyone with any brains ignores Sean Penn, Woody Harrelson, and the various other Hollywood types when the...
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Working With Chinese and Korean Lawyers. The Big Four Issues With Each.
2009-04-19 08:13:00
Last year, I wrote an article for the Complete Lawyer, entitled, "Working with Korean and Chinese Lawyers ." I was originally asked to write on working with Asian lawyers, in general, but convinced the magazine to allow me to focus on just China and Korea. I asked for this limitation because I did not believe myself experienced enough in working with lawyers from other Asian countries to write about working with them and, more importantly, because I did not see enough similarities to talk of Asia as a whole. I was reminded of that article today after receiving a complimentary email from a Chinese lawyer studying law here in the United States. An article like this has to generalize a bit and there are certainly exceptions to everything I say, but having worked with dozens of law firms in Korea and China, I have noticed the following four problems in dealing with lawyers from those two countries, respectively: KOREA 1. Non-responsiveness is the norm. American lawyers generall...
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Ignore China's Low End Market At Your Peril. Oh, And Don't Forge
2009-04-17 05:31:00
The other day I did a post, entitled, "China Business. Which Comes First The Wealth Or The Low End?" on a discussion I had with Jack Perkowski regarding China's low end products market, how huge it is, and how foreign companies should not simply concede it to local companies. At the end of my post, I asked whether China's playing field (I mostly focused on the tax/legal field) precludes foreign companies from succeeding on the low end and whether that market even makes sense for foreign companies. In a post entitled, "Competing in China's Local Market ," Jack weighs in with some excellent responses. His main point, with which I completely agree, is that whether you are going to compete in China's low end market or not, you had better know about that market and how it might impact your product. Jack's thesis (I am basing this as much on our meeting as on his blog post) is that eventually, most of the Chinese companies that are now strictly low end will be bumping up against o...
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What China's Credit Crunch Means For YOU.
2009-04-14 06:33:00
The Financial Times just did a story, entitled, Fears rise on China groups’ payments on how private Chinese companies are being negatively impacted by the credit crunch (h/t to China Economics Blog). China's credit crunch is already having a large impact on American and European companies that do business with China and I see that impact only growing. The FT story makes the following key points: -- A rapid deterioration in the ability of Chinese companies to pay their suppliers "is significantly increasing the risk of doing business in China." -- Chinese companies are facing "a liquidity crunch" due to China’s plummeting exports. "Many of them were also unable to access bank loans to tide them over the tough times, especially if they were small to medium-sized private businesses." -- Though Chinese banks have "ample liquidity," they usually do not lend to small private companies. -- Many Chinese companies have turned to their suppliers for credit, "thus forcing the ...
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United States Job Creation, China Style.
2009-04-14 03:16:00
About a month ago, I wrote a post, entitled, "China . Friend Or Foe? Opportunity Or Challenge? Or, Why Can't We All Just Get Along?" The post was on an unnamed client of mine who had written me an email regarding a wind energy project in which he had helped an Ohio company secure necessary parts from China. My client had written me an email regarding this project and of how he thought his handling the China outsourcing had saved American jobs. My post used my client's story to make the point that outsourcing products or components is not the same as outsourcing jobs. Forbes Magazine liked my client's story and asked me for his name. After securing my client's permission, Forbes contacted him and the story has run, aptly entitled, "One Way To Save U.S. Manufacturing Jobs." It really does make for a great story and I particularly like it as it will probably be the only time I ever see Doug Smith (now named in the Forbes story) in a suit. Doug formed the first WFOE in Jining, ...
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China: I'll Take You There.....Flowing Waters Never Stale.
2009-04-13 04:25:00
One of the best/worst things about this blog is that just about every book that comes out on China finds its way to my desk, gratis. Most sit on my credenza for a few weeks, and then get moved to my bookcase, where I look at them from afar. I'm planning to read all of them eventually, but, you know....life just always seems to get in the way. It has taken me forever to read the book, Flowing Waters Never Stale , by Mark Anthony Jones. On the one hand, I really wanted to read the book because Mark is a long time China Law Blog reader and a very thoughtful commenter here. On the other hand, I worried his book would be too intellectual and since it is subtitled, "Journeys Through China," I thought it would be too much the travel book. So it sat. But I spent most of this weekend at the office on a big project and I started reading it as a diversion and I ended up hardly putting it down until I finished it. I wish I had read it sooner because I actually really liked it. It ...

China Business. Which Comes First The Wealth Or The Low End?
2009-04-11 16:58:00
Had breakfast yesterday with Jack Perkowski, author of the book, Managing the Dragon, and the blog of the same name. Jack recently left as CEO of Asimco Technologies to start JFP Holdings, "a merchant bank for China ." Jack has been doing business in China for a long time and he clearly knows whereof he speaks and I found his stories on China business fascinating and enlightening. Much of our discussion was about the still nearly unlimited business opportunities in China, particularly in health care and green tech, and of how it is now pretty much a given that Western companies must go to China for growth. We also talked about how there are essentially two markets for so many products and services in China. There is the high end market, which is pretty much the equivalent of that in the places like the United States, Western Europe, and Japan (which, for simplification purposes only, I am going to call "the West"). And there is the low end market, which essentially has no equiv...
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China's Labor Laws: The Cultural Disconnect Goes Both Ways.
2009-04-06 03:25:00
Last week, I attended co-blogger Steve Dickinson's lecture on China labor law. Steve's lecture was part of a truly superb Doing Business in China seminar put on by Global Nav. The thrust of Steve's speech was that labor laws in China have changed, they are being enforced against foreigners, and they are very different from U.S. labor laws. In a nutshell, the biggest differences are that written contracts with all employees are required in China and firing an employee generally must be for cause. Neither of these are true in the United States. Judging from the audience questions (and this was an extremely sophisticated audience), many were surprised by this and many had trouble understanding the full import. A few days later, Steve and I were talking about this with the Chinese lawyers we work with in Qingdao. In explaining to them some of the cases we have handled for American clients who got themselves into trouble by improperly laying off Chinese employees, it soon bec...
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On The Importance Of "Face" In China Legal.
2009-04-01 22:29:00
China Daily did an article the other day on how China's courts are now going to post its unpaid judgments online. It is entitled, "Court launches website showing who hasn't paid." A bit of background is in order. China's court system (and I am talking about commercial disputes ONLY) is not as bad as is so widely believed in the West. Foreign companies can sue and win against Chinese companies and they can and do. All the time. But winning a lawsuit and getting paid on a lawsuit are two very different things, both in China and everywhere else in the world. Many years ago, my firm brought a cross-border lawsuit against a foreign company on behalf of about 35 mostly foreign companies. The clients would often ask me if I thought we were going to win the lawsuit and my response to that was always, "yes, we are almost certainly going to win. Defendant took money that should have gone to you without your approval or authorization. This is about as blatant a breach of contra...
More About: China , Legal , Face

MY China Hearsay Post
2009-03-29 22:14:00
China Hearsay has a great post on private equity and investment bankers in China. The post is entitled, "Great Recession Watch — Living With Mendacity in China." Why am I certain it is a great post? Because I wrote that same post, with that exact same conversation, IN MY HEAD, many times. I am, however, certain Stan Abrams did not pry this post from my head because I am far too low-brow to be quoting from Tennesse Williams; I would have quoted from Bob Dylan's song, "Sweetheart Like You." Essentially, Stan's post talks about investment bankers/venture capitalists coming to him to "do deals" in China without having any clue whether the substance or the structure of the deals of which they are talking are even legally possible in China: Oftentimes, they came to him after having spent huge amounts of time and money on "the deal" already: Over the past few years, as China became a red-hot market, everyone wanted to get in on the game. Throw some money together and get some fo...
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Fake China Joint Ventures. Why You Calling Me, I'm Not The Guy!
2009-03-27 19:58:00
Four in the mornin and they haul rubin in, Take him to the hospital and they bring him upstairs. The wounded man looks up through his one dyin eye Says, whad you bring him in here for? he aint the guy! From the Bob Dylan song, "Hurricane." Not entirely sure why, but just about every week for the last month, I have been getting calls or emails from tiny tech companies telling me they have heard I'm "the guy" for these sorts of difficult technology joint ventures. I have gotten so many of these that I now know pretty much exactly what is going to follow next and here it is: Caller: I've got this great website and it is exactly what China wants/needs. And I've been working on developing it with some Chinese tech friends of mine and we are want to take it legal so we can start getting VC (venture capital) funding for it. Here's our plan. Now I know that the old/truly legal/expected/usual way to do this is for me to form my own company and then form a joint venture with my ...
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Fake China Joint Ventures. Why You Calling Me, I'm Not The Guy!
2009-03-27 19:58:00
Four in the mornin and they haul rubin in, Take him to the hospital and they bring him upstairs. The wounded man looks up through his one dyin eye Says, whad you bring him in here for? he aint the guy! Bob Dylan, Hurricane (for the other side of the story, go here) Not sure why, but just about every week for the last month, I have been getting calls or emails from tiny tech companies telling me they have heard I'm "the guy" for these sorts of difficult technology joint ventures. I have gotten so many of these that I now know pretty much exactly what is going to follow next and here it is: Caller: I've got this great website and it is exactly what China wants/needs. And I've been working on developing it with some Chinese tech friends of mine and we are want to take it legal so we can start getting VC (venture capital) funding for it. Here's our plan. Now I know that the old/truly legal/expected/usual way to do this is for me to form my own company and then form a joint ...
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The Legal Basics On Starting A China Business. Clinical Testing As Example.
2009-03-25 15:51:00
One of the many things I love about being a lawyer is learning about various industries. What so happens to lawyers is that we get one client in an industry, and then, through word of mouth, we end up getting a whole slew of others in the same industry. That has happened to us in spades with clinical testing, a global industry booming in China . I woke up this morning to an email between my firm's lead China lawyer, Steve Dickinson, and a potential client needing help in establishing its clinical testing business in China. The email does a great job laying out the basics of what clinical testing companies must do to establish themselves legally in China and to protect themselves legally from employee and IP issues. But nearly everything in this email applies with equal force to nearly all businesses, particularly service businesses, seeking to get off on the proper legal foot in China. This email sets out the essential big three for doing just about any business right in Chi...
More About: Business , Testing , Legal , Basics

Workshop On China's Second Tier Cities: Qingdao And Ningbo. Shanghai
2009-03-25 11:37:00
China Law Blog's own Steve Dickinson and Bill Dodson of the This is China Blog will be sharing the stage at the upcoming Benulux Chamber of Commerce (BenCham) workshop. The workshop is being put on "in cooperation with SwissCham and The JLJ Group" at the Westin Bund in Shanghai on March 31. Steve, who spends the majority of his time in Qingdao, Shandong Province, will be speaking on the benefits of Qingdao as a location for Western investment. Bill Dodson, who bases himself out of Suzhou, will be speaking on Ningbo. Go here for more information and to sign up.
More About: China , Workshop , Cities , Tier

How To Shut Down Your China Business. Hint: Do Not Emulate The Baltimore Co
2009-03-24 18:08:00
Just about whenever I read about some company leaving China in the middle of the night, I think about the Baltimore Colts and this line from "Beware: Do Not Read This Poem": statistic: the US bureau of missing persons re- ports that in 1968 over 100,000 people disappeared leaving no solid clues nor trace only a space in the lives of their friends Then I wonder if the company that has left China without leaving much of a trace realizes that it and most of its people just made it difficult/impossible to ever return to China. There is a right way and a wrong way to shut down your China business and guest writer, Robert Zierman, will explain the difference. Robert recently started working with my law firm after many years spent as an in-house counsel in China and running his own China related businesses. Here goes: On November 19, China's Commerce, Foreign Affairs, Public Security and Justice, issued Working Guidelines on Cross-border Pursuit ...
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China WFOE. Do It Right Or Your Money Never Leaves.
2009-03-23 04:39:00
We are programmed to receive. You can checkout any time you like, But you can never leave! China Economics Blog used the term, Hotel California effect (borrowing from a scholarly article), to describe the problems foreigners so often have in getting their money out of China. I love that term (both because it so well describes things and because it combines law and music) and I have since used that term many times with clients who insist something in China "must be legal" because so and so did it or because the local government is encouraging them to do it. If my using lyrical symbolism fails, I flat out tell them that, "of course, China will take your money, but the problem will be when you try to take it out." I then tell them of the person who came to us after having sold his condo that he had purchased illegally and having been told by all of the banks that he would not be able to deposit his cash proceeds. I have a speech I give to American lawyers that focuses on the mi...
More About: Money , Leaves