Nearly every week, I get an email from someone (usually a law student or an in-China company manager) asking what books they should be reading to better understand China’s laws and legal systems. About six months ago, I did a post, entitled, Chinese Commercial Law Books in English, setting out four excellent such books. I do these posts so that when I get an email asking for good readings, I can quickly respond with just a link.
When I wrote that post six months ago, I commented on how where there used to be very few English language books worth recommending, but now (then) there are four. Since writing that post, no fewer than three more excellent (though somewhat specialized) law books have come out and need to be added to my list.
if you want help understanding China’s legal system or aspects of it, I recommend the following books for the folllowing reasons:
1. The Legal System of the People’s Republic of China in a Nutshell. Yes, this is part of West’s Nutshell series, but before you law students and lawyers start keeling over in laughter, let me explain. I am always telling law students that they should read “the nutshell” of their course before they go to their first class in any given subject. I suggest they read the nutshell book from cover to cover as though they are reading a novel. In other words, they should not stress too much over the points they do not understand and they should not worry about retaining anything.
I advocate reading nutshell books because they are a superb and fast and relatively painless way to get a big picture view of a topic. Getting the big picture view first then allows you to put the pieces you learn later into their proper place.
The China nutshell (I read a previous edition a long long time ago) does a great job of giving its readers a feel for Chinese law and a quick read of it will help you immeasurably in thinking like a Chinese lawyer. Will it tell you what you need to do to get from point A to point E in forming a China WFOE? No, but that should not be why you read it. You should read it because it is a very good first introduction to Chinese law.
2. Chinese Commercial Law: A Practical Guide. This book was written by Maarten Roos, a Holland trained lawyer who practices in Shanghai. I find this book very useful as a good first source on Chinese legal issues. It does a good job touching on the major legal issues foreign investors typically face in China. Its Amazon page accurately describes it as follows:
He clearly describes the opportunities and pitfalls exposed as a foreign investor engages with such elements of business in China as the following:
- negotiating a detailed written contract;
- performing a legal and commercial due diligence on a prospective partner;
- resolving disputes through negotiation, arbitration or litigation;
- establishing and enforcing trademarks, patents and other intellectual property rights;
- investing in China;
- considering the joint venture structure;
- expanding through a merger or acquisition;
- restructuring or liquidating an operation;
- designing and implementing effective corporate governance;
- retaining, managing and terminating employees;
- arranging funds into and out of China;
- ensuring both tax efficiency and tax compliance; and
- avoiding criminal liabilities in the course of doing business.
I agree and I think this book makes for a great nuts and bolts introduction to the various topics it covers and it also serves as a great initial legal reference as well.
3. China Law Deskbook, A Legal Guide for Foreign-invested Enterprises. This book is by James Zimmerman, a very respected China lawyer. When I wrote my last post, I had not read this book, but that has since changed. James was kind enough to send me a copy of it and though I have not read it from cover to cover, I have read enough of it to state confidently that it is THE book on the practical aspects of China law.
Its website describes much of what it covers:
[T]he new Tort Law, Property Rights Law, Anti-Monopoly Law, Labor Contract Law, Enterprise Income Tax Law, Enterprise Bankruptcy Law, revised Foreign Investment Catalogue, and various other new and amended laws, regulations, and governmental policies that impact foreign investment and trade with China. [It] is over 1100 pages long and over 3000 footnotes of references and citations. Overall, the Deskbook is organized in 24 chapters covering key topic areas such as court system and litigation, contract law, financial regulation, taxation, tender and government procurement, consumer protection, customs and trade, labor and employment, M&A, liquidation and bankruptcy, securities, property rights and land use, environmental, and dispute resolution.
If you buy this book, do not buy Maarten Roos’s book, and vice-versa. They are both excellent books and they are both geared towards the person who needs real-life help in figuring out China business law issues. The difference between the two of them is that Zimmerman’s book is much longer, much more comprehensive, and much more expensive. In my view, Zimmerman’s book is geared more towards lawyers (though it would be fine for non-lawyers as well), as opposed to businesspeople, and Roos’s book is the opposite.
4. Understanding Labor and Employment Law in China. I gave a very favorable review of this book when it first came out and my appreciation for it has only grown. This is what i said then:
I am three-quarters of the way through the book, Understanding Labor and Employment Law in China, by Ronald C. Brown. Brown is a Professor of Law and the Chair of the Pacific-Asian Legal Studies Committee at University of Hawaii Law School and can confidently state that it is a great book.
But it is not for those seeking merely a light dusting on Chinese labor and employment law. Not at all.
It is 332 page exposition on the current state of China’s labor laws. It was just published so it is quite current. Its appendix consists of translations of the key Chinese laws relating to labor and employment.
Who should read this book?
— Academics interested in China labor laws? Check.
— Private practice lawyers seeking a deeper understanding of China’s labor laws? Check.
— In-house lawyers wanting to better understand China’s labor laws? Check.
— HR personnel with businesses operating in China? Probably check.
— Lawyers who actually practice labor law in China? Maybe check.
— The general businessperson doing business in China? Maybe check.
Let me explain my maybes.
Any lawyer actually doing employment law in China must be able to speak and read Mandarin fluently and so that lawyer probably does not have much need for a book like this, written in English. If you are going to be writing employee manuals and employment contracts in China or giving advice regarding China’s labor laws, you absolutely must know how to read and write Mandarin. You have to know how to read it because so many of the employment laws are local, rather than national, and because there is no substitute for reading a law in its original language. You have to know how to write in Mandarin because your employee manuals and your employment contracts pretty much have to be in Chinese if you have any Chinese employees.
This book is probably too intense, too thorough, too long, too deep, and too complicated for the typical businessperson seeking a general background on Chinese employment law and I do not think it was ever intended for that purpose.
If you are looking for an English language book that really details China’s labor and employment laws, this is the book.
I am now of the view that HR personnel should buy this book, so long as they realize that it is just a first step towards deciding what to do in each individual instance. I have come to this view after having recommended it to a number of HR people with whom my firm works and seeing how they use the book. I have come to believe this book is a great resource for HR people because they are using it to help determine whether they might have a legal issue in doing such things as firing someone who is pregnant, reducing vacation time, asking someone to work a weekend out of town, etc., rather than using it for the definitive answer to their very specific situation.
5. Patent Litigation in China, by Douglas Clark. This is a really good book if you want to know what is going on in the China patent world and it is great book if you want to know what to do in that world if you believe someone is infringing on your patent or if someone believes you are infringing on theirs. It is also an excellent book to read just for getting a sense of how China’s courts operate (which as I am always saying, is likely to be quite a bit better than most believe it is, particularly in the context of business litigation involving foreign companies).
This book is very much aimed at the legal practicioner, not the businessperson, but if you are a businessperson imbroiled in a China patent dispute, I recommend this book for you as well.
The book’s own blurb accurately describes it as follows:
Patent Litigation in China, by Douglas Clark, provides U.S. and other non-Chinese practitioners with an overview of the patent litigation system in China. Strategic commentary is provided to enable those contemplating or involved in patent litigation in China to better comprehend the risks and challenges they face, as well as to ensure better decision-making by those responsible for bringing or defending patent actions. The book covers the tests for patentability grounds for invalidating patents before focusing on evidence gathering, litigation strategy and procedure, as well as considering defenses and remedies. The key differences between the Chinese, U.S. and other more mature patent systems are highlighted throughout the book.
6. Environmental Law in China: Mitigating Risk And Ensuring Compliance, by Charles McElwee. The book’s publisher, Oxford University Press, accurately describes this book as having achieved the following:
- Lays out a detailed explanation and analysis of Chinese environmental law
- Provides the most complete [English language] guide to date for businesses, particularly foreign-operated, to comply with both national and local Chinese environmental regulations
- Discusses the possible legal ramifications, both civil and criminal, of companies’ failure to comply with Chinese law
- Describes generally the relation between international environmental treaties and Chinese national law
- Includes an overview of Chinese culture and its unique influence on the nature of the Chinese legal system
As I read this book, I kept thinking how China’s environmental laws are not all that dissimilar from those in the United States. China greatly differs from the United States, however, in that there is little history to discuss by way of enforcement, either in the real world or in the courts. This means that too much of the book is on laws as opposed to practice. Charles essentially had no choice because in many instances there is no practice about which to write. Nonetheless, if you represent or work for a company facing environymental law issues in China, this is the book for you.
7. Anti-Monopoly Law and Practice in China, by H. Stephen Harris, Jr., Peter J. Wang, Yizhe Zhang, Mark A. Cohen, and Sebastian J. Evrard. This is truly a great book. It is clearly written, comprehensive and highly relevant and that is a rare beast among law books.
It does an exceptional job covering China’s anti-monopoly laws and it does an exceptional job putting them in their context. To quote some of those who received an advance copy:
This is an extraordinary treatise on the Chinese Anti-Monopoly Law, and should be on the desk or nearby shelf of every antitrust practitioner, academic and policymaker whose work or interest involves modern-day China, the relationship of the state to the market, and its transition to a socialist market economy. The book is an invaluable resource. It is clear, straightforward, and comprehensive in its presentation of the fundamental details, its identification of the ambiguities, and its overview and perspective.”
Anti-Monopoly Law and Practice in China is an insightful and comprehensive account of an increasingly important area of Chinese law. The authors provide detailed coverage of a number of important issues that are central not only to the development of China’s Anti-Monopoly Law, but also are at the heart of China’s rise as an economic power. It will be helpful reading for practitioners, scholars, and policy-makers.”
—Benjamin L. Liebman
“Chinese Anti-Monopoly Law (AML) is now one of the most important antitrust regimes in the world, and this book provides the first comprehensive analysis of the AML. It describes not only the substantive and procedural provisions of the law, but also compares the AML with other antitrust regimes, and describes relevant cases since its implementation. This book will be useful to any corporation doing business in China as well as anyone interested in China’s economic and legal systems.”
I wholeheartedly agree with all three and encourage those with an interest in China antitrust law to pick up this book.
What do you think?