China's Expanding Courts -- Enforcing the Law as Though it Matters

China Digital Times (always an excellent source for China news) recently blogged on a Harvard Law Journal article by Columbia University Law Professor and Director of the Center for Chinese Legal Studies, Benjamin L. Liebman.  Though I remain mindful of ChinaLawBlog's focus on the business aspects of China law, as opposed to its more esoteric and academic aspects (see e.g., Chinese Law Prof Blog), this is an area where academics and practicality intersect and the thesis of this article is both valid and important. 

Entitled, "Innovation Through Intimidation: An Empirical Account of Defamation Litigation in China" (as a former law journal managing editor, I do not miss the titling of law journal articles even one bit), the article analyzes 223 recent defamation cases in China and concludes that these cases facilitate "ordinary persons challenging state authority" and reflect the "growing use of the formal legal system by local authorities to resist central Party-state control."  Professor Liebman states that defamation litigation encourages "ordinary persons to use such cases to protect their own interests," and "courts to become increasingly important arbiters of individual rights," legitimizes "the role of courts in Chinese society," and "may also increase official accountability."   

In layman's terms, this article posits that China's courts are becoming a stronger venue for dispute adjudication, are more independent of the government than widely believed, and may even be serving as a check on government. 

ChinaLawBlog's own Steve Dickinson gave a speech last year before the Northwest China Council on how China's courts do, for the most part, act independently of the Chinese central government on all but the more politically charged cases.  In a nutshell, Steve's theory is that Beijing likes the courts as a check on the local power structures and recognizes that China's citizens and businesses will take their grievances to court only if they believe the courts to be fair arbiters.  The Western press consistently underrates the extent to which Chinese citizens are becoming increasingly reliant on and trusting of the courts for dispute resolution and the extent to which the courts are increasingly succeeding in this task. 

The reason all of this is important for business is because there is a persistent stream of thought out there that the law in China does not matter.  That stream is wrong and the bottom line for business is that China's laws do matter and China's courts are not powerless to enforce them. If you are doing business in or with China, you should do so with at least the same degree of legal caution as you exercise in doing business in the United States, England, or anywhere else.