Equity Joint Ventures in China: New Legal Framework, Continuing Questions

Foreigners participating in equity joint ventures in the PRC since such investments were authorized in 1979 have encountered a variety of problems. New legal institutions have been established to provide a framework for joint ventures but their reach and interpretation of the new rules in practice are still often uncertain. Changes in policy have affected, and will continue to affect, the operation of both joint ventures and the new legal rules. Potential investors need contractual protection against changes in laws, regulations and policies which may affect the joint venture. Some specific issues of importance to foreign investors in China include access to the domestic market for sale of joint venture products and for purchase of goods and services, convertibility and repatriability of profits earned on the domestic market, the joint venture\u27s relationship to the state economic plan, valuation of land used by joint ventures, and the level of wages and benefits to be paid to Chinese employees. After ventures are established misunderstandings may arise because of differences between the parties\u27 management styles as well as their different conceptions of the obligations created in their contract. Given variations in practice, changes in policy, and the limitations and continued flexibility of Chinese legal institutions, participants in joint ventures should carefully investigate each opportunity offered to them and insist on drafting contracts which adequately address likely problem areas. The Chinese leadership has taken important steps in creating a legal framework for foreign economic activity, but existing questions are likely to be solved only slowly

The Uncertain Future of Legal Reform in China

This talk looks at how far Chinese law reform has come since 1979, possible further reforms, and obstacles to meaningful reform

Mao and Mediation: Politics and Dispute Resolution in Communist China

We lack much essential knowledge, not only about Chinese Communist legal institutions, but about Chinese society generally – how it is organized, how power is distributed and wielded, and the nature of even the most ordinary relationships. Such ignorance is dangerous, especially when China and the United States, and their perceptions of each other, remain tragically far apart. An analysis of China\u27s institutions for resolving disputes can teach much about its dominant values and authority relationships. This Article examines the resolution of disputes between individuals in China, relying on documentary sources and on interviews conducted by the author in Mandarin with fifty Chinese emigres in Hong Kong from 1965 through 1967. The Article has several primary goals. By closely analyzing Chinese institutions that have hitherto been inadequately described in the West, it seeks to show how the disagreements, fights, and quarrels of ordinary people in China are settled. Further, it attempts to define Chinese Communist concepts of social conflict and social control, to deepen understanding of the Chinese institutions which manage conflict and exercise control, and to explore the functions of dispute resolution under Communism. Finally, this study compares traditional Chinese and Communist Chinese modes of dispute resolution

The Unrecognized Government in American Courts: \u3cem\u3eUpright v. Mercury Business Machines\u3c/em\u3e

What right have I, as the King\u27s Judge, to interfere upon the subject of a contract with a country which he does not recognize? Lord Eldon\u27s words, written in 1823, have been echoed more than once by American judges, who have been as troubled as Eldon by problems complicated by diplomatic nonrecognition. Twentieth-century wars and revolutions have required American courts to decide whether unrecognized governments, entities created by them, their representatives, or their assignees could sue in domestic courts, often on matters of private right. Frequently, too, the courts have been perplexed by the effect of nonrecognition on the application of foreign laws and decrees. Uncertain of the consequences that should flow from nonrecognition, the courts have often responded as Eldon did; alarmed by the suggestion that their recognition of a government might conflict with executive nonrecognition, they have frequently endeavor-d to treat unrecognized governments as nonexistent. In addition, the courts have often emulated Lord Eldon, in their own fashion, by hastily deferring \u27to supposedly overriding considerations of foreign policy as expressed, at times, by the State Department. Only rarely have they evaluated .in a sophisticated manner the basis in policy and precedent for taking judicial cognizance, in any context, of an unrecognized government. As long as trade and other contacts with unrecognized countries are not prohibited, these questions of doctrine and judicial technique will be presented to the courts. They have most recently been raised and provocatively discussed by the Appellate Division of the Supreme Court of New York in Upright v. Mercury Business Machs. Co. To some extent Upright is a welcome departure from past decisions; in other respects it bears an unfortunate resemblance to them. This article will discuss Upright and some of its implications and contradictions, with the hope of contributing to a clarification of some of the problems that nonrecognition has persistently created for American courts and will consider a method that the courts may use in meeting those problems

Legal Uncertainty in Foreign Investment in China: Causes and Management

My talk today will be based on an article – “Looking for Law in China” – that was published last year. In it, looked at Chinese law from the perspective of foreign investors that have had to cope with the uncertainty of a business environment in which legal institutions have been vague, incomplete and weak. I wrote, and today speak to you, from under two hats, that of a scholar and that of practicing lawyer, since for over thirty years I have combined those two careers. My observations here, then, are not just those from the academic ivory tower but from what is laughingly known as real life. The problems I will discuss reflect not only those of foreign investors but general characteristics of Chinese legal institutions. I am going to compress my summary of essential points so that I can have time to speculate on the prospects for Chinese law reform overall, not just as it affects foreigners, and I am going to interweave some of my speculations with my summary of the essential points in the article

On Understanding Chinese Law and Legal Institutions

Our unfamiliarity with Chinese legal institutions and policies toward law causes misunderstanding of the role of law in the People\u27s Republic of China. The present unimportance of the formal legal system has deep historical reasons. As China\u27s economy becomes more complex, regularity should increase, although it will remain controversial. In commercial contracts with the West, custom performs the role of law

He Jiahong, \u3cem\u3eBack From the Dead: Wrongful Convictions and Criminal Justice in China\u3c/em\u3e

1In 1987, Teng Xingshan was sentenced to death for raping a woman and dismembering her body; wrongfully convicted, he was executed in 1989 – but in 1992 the “victim” returned home, and Teng was exonerated in 2005. His case is only one among numerous other tragic wrongful convictions discussed in Back From the Dead: Wrongful Convictions and Criminal Justice in China, by Professor He Jiahong (Renmin University Law School, Beijing). This book, the product of ten years of research, is a scholarly analysis of wrongful convictions that demonstrates deep system-wide flaws in China’s criminal justice system

Coexistence and Commerce: Guidelines for Transactions Between East and West

For all the talk in this country in recent years about improving relations between the United States and Communist nations – building bridges and the like-old stereotypes of West and East, Us and Them, linger on. The Cold War mentality dies hard: East-West relations remain symbolized by signs of separation and antagonism such as the Berlin Wall and the lonely bridge at Lowu where travelers cross between Hong Kong and China. Such images, and the stereotyped habits of thought associated with them, are especially dangerous in a time characterized by neither war nor peace, but by a mixture of both. Soviet-supplied automatic weapons kill Americans in Vietnam while Soviet dancers entertain in New York. American policy choices are unclear because precise alternatives are lacking and neither policy-makers nor citizens can easily muster the suppleness and subtlety which they need to confront a confused reality. In the muddle, even some fairly obvious possible adjustments in American policies remain obscured by obsolete moralizing and long-established commitment to economic welfare. A striking example of the need for change is American policy on trade with Communist nations, a subject on which Samuel Pisar\u27s book has much to say

Western Scholarship on Chinese Law: Past Accomplishments and Present Challenges

Chinese law-making in recent years has been nothing less than remarkable and presents a new challenge for research today. The recent adoption of new codes, the revival of formal legal institutions, including courts and the bar, and the reinvigoration of legal education and research all signal the reappearance of an entire field of study. Although a foundation for study was laid by some scholars in the 1960\u27s, the field later declined, reflecting the low condition to which the Chinese legal system fell, both before and during the disastrous Cultural Revolution. Once again, however, study of the operation of the Chinese legal system and, more importantly, of its complex interaction with Chinese society, promises insights for the patient foreign student. This article first surveys the development and current state of Western, particularly U.S., studies of modern Chinese law and then notes some of the many questions of interest that the current reconstruction of Chinese legal institutions present to students of Chinese law. It is one specialist\u27s impression and assessment of some of the work done in the recent past that should be helpful today. It also suggests that current trends in China, if continued, may extend the scope for research well beyond the reach of existing scholarship

Looking for Law in China I: Themes and Issues in Western Studies of Chinese Law

I have been studying Chinese law since the early 1960s – some have said that I began before there was any. The field has expanded so far beyond its narrow scope at that time that this overview will illustrate an old Chinese saying: riding a horse and looking at flowers. I will first review the growth of this scholarly field, because it is necessary to understand that there are layers of scholarship that reflect first the paucity of formal legal institutions in Maoist China, then the appearance of first shoots of new or rebuilt institutions, and only recently the publication of increasingly deep analyses of the new institutions. I will then summarize issues that have in recent years dominated studies of some Chinese legal institutions of central importance – the courts, the bar, administrative law, and criminal law. I will then discuss the principal issues that the current state of Chinese law seems to present to scholars. I will avoid submerging you under a deluge of names of scholars and citations to their work. For those of you who wish extensive bibliographic information, I note that much of what I will say here draws on a copiously footnoted survey of the field that I published in 2003 in the Washington University Global Studies Law Review. [Westlaw, or SBL send to any who request] I would prefer to spend our precious time here together by focusing on major issues raised by the scholarship