I gave the following reasons:

I do not like writing about proposed laws for the following reasons:

1. There are so many laws already on the books and being enforced that need coverage more. Laws on the books will impact you right now. Proposed laws may or may not ever come into being.

2. China has a very real habit of saying it will institute a new law and then never doing so. It floats new laws to gauge reaction. If the reaction is negative, the law oftentimes never comes into being.

3. China has a very real habit of instituting new laws and then never enforcing them. This often happens when the new law is negatively received.

Today, China officially backed down (no surprise). Or, in the words of the immortal Gilda Radner, Never mind.

China is billing it as a delay, but I can virtually guarantee this software will never be heard from again. I say this for two reasons. One, the people did not like it and Beijing does NOT want to go against the people on something like this. Since there is absolutely no reason to believe the people will ever start liking something like this, there is absolutely no reason to believe the software will return. Two, I know movement has been slow, and I know it has been in fits and starts, but if we were to draw a straight line through the rises and falls, freedom is on a fairly inexorable march in China.

We now return you to our regularly scheduled programming....

UPDATE: E-Commerce Times interviewed me on this last week and quotes me in their story today, entitled, "China Wobbles on Green Dam:"

It was never really clear whether or not Beijing would enforce the edict, according to Dan Harris, a partner in international law firm Harris & Moure and an expert on China.

"What they're doing is floating an idea and seeing what the reaction is," he told the E-Commerce Times. "In the last five years, there probably have been thousands of laws China said it's going to enact and hasn't. Or it has enacted them but hasn't implemented them."

FURTHER UPDATE: Sky Canaves has a great post up on the WSJ China Journal, entitled, "Green Dam and the Politics of Consent," discussing how popular "consent" plays a huge role in China's governance. This post nails it completely.

I learned that this employee's yearly salary was about $3600 and that the WFOE was in Shenzhen. I also learned that this employee did not have a written contract and that the WFOE did not have an employee manual. I told the HR officer that for us to research whether this ex-employee was entitled to what she is seeking, we would need to research the laws of China, of Guangdong province and of Shenzhen. I then told her that the cost of our doing that would be so close to what the employee was seeking and that I was very dubious that our research would reveal any cost savings (particularly because this employee had no written contract and this WFOE had no employee manual) that it would almost certainly not make sense for us to take on the matter.

But I also told her that if the WFOE chose to pay this ex-employee her ten months salary that it needed to have her sign an appropriate release, in Chinese, making it so that she would not be able to sue the company and win, even after receiving payment. I told her that from what we have been hearing, foreign companies lose pretty much every time in these sorts of employee disputes and they usually lose a lot more than just the one case. I told her that what happens is that the company loses the one case, all the other employees hear about it and then they sue as well. I stressed again the need to contain the problems stemming from this one employee right away by means of a well-crafted written agreement in Chinese.

She is to get back to me this week, after she talks with the company owners.

Or you can read the transcription below, stripped of all my overly long pauses and interminable "uhmmms."

Welcome to China Brief Insight. This is Josh Gartner of AmCham China. I’m very excited today to be joined by Dan Harris of Harris & Moure law firm. Dan is a very well-respected lawyer. He is also well-known in China for China Law Blog, which he writes together with Steve Dickinson, who is also with his firm based out of Qingdao.

Today, Dan and I are going to talk a little bit about the MOFCOM [Ministry of Commerce] decision to block the Coca Cola purchase of Huiyuan. Huiyuan, as you know, is one of the biggest Chinese producers of juice. This case was pretty widely watched because it is one of the first tests of China’s anti-monopoly law.

JG: Dan, how are you?

DH: Good. How are you Josh?

JG: Good. Welcome to the Podcast.

DH: Thank you for having me.

JG: Alright. We are going to talk about the anti-monopoly law today. And specifically China is coming up on the one-year anniversary of the implementation. In the year since China has formally put the anti-monopoly law into place, what have we learned about it? How is China using it?

DH: Well, they are not using it all that often. The case that everyone talks about is the Coca Cola-Huiyuan purchase or the attempted purchase. And in that instance, China used the anti-monopoly law to prevent Coke from purchasing a large juice manufacturer.

JG: And when that ruling came out and the purchase was blocked, you wrote on China Law Blog that you had been anticipating that result for awhile. Why were you so convinced that was going to be the final result?

DH: Because the brand that Coca Cola was trying to buy was simply too big, and we felt that China would not allow it to go forward because that sort of purchase would be viewed as not being in China’s national interest.

JG: So are you saying that it was not on the traditional grounds that people would view monopoly cases? Or is it a combination of the monopoly law and some national sentiment as well?

DH: I’m saying that it is difficult to know. The thing about monopoly is – and this is true of many instances of the law – there are a lot of ways to look at numbers, a lot of ways to look at market share. In fact, just the other day I was at a party and somebody said the local cable company is a monopoly, and I said “no,” that it was not a monopoly because there are various ways that you can get a signal to your television. And this other person kept insisting that it was a monopoly because it was the only cable company. So a lot depends on how you define the market. The reality is that I would think most countries would not have stopped Coke’s purchase on antitrust grounds, on anti-monopoly grounds, for various reasons. First, the company Coke was buying was in the juice business. I believe that the combination of Coke and that company would have – I can’t remember exactly the numbers – it would not have increased Coca Cola’s percentage. Huiyuan, I believe, had something like 40 percent of the market, and Coca Cola had a very small percentage of the juice market, so the combination would not have led to that much of an increase in market share in the juice market alone. I also think that a lot of countries would not have confined it to just the juice market. Maybe they would have looked at it more specifically and said what about grape juice, what about orange juice, what about water, what about soda, etc. A lot has to do with the concept of elasticity of demand. If orange juice all of sudden doubles in price, people are not necessarily going to continue buying orange juice. They might switch to something like grape juice, so gaining monopoly power in something like orange juice might be very difficult because you have to deal with more than just who else is in orange juice, but also grape juice, cherry juice, soda, water, etc. So I think very few countries would have acted the same way China did with respect to the Coke deal, and I think a lot had to do with China’s overall policies regarding foreign investment.

JG: Are there any ways other than, specifically a monopoly on juice or a monopoly on specific type of juice, that a merger like this could create any specific monopolistic concerns?

DH: No, not really. The monopoly would come from Coke having such a large share of the market that it would be able to essentially price the product in a monopolistic way. And what that means is that it would have so much pricing power that it could raise prices and people would still have to, need to, or want to continue buying the product. There is another aspect to the purchase that we should talk about and that’s another reason why I think that it was denied, and that is the brand name. The fact is that Huiyuan is such a big brand name in China. I think that Beijing was concerned with appearing to cave in to foreigners by allowing foreigners to take over such a well-known Chinese brand name. And again that has to do with nationalistic sentiment. One thing I want to make clear here is – and you and I have talked about this previously – and that is this idea of decisions being made based on nationalism is very common throughout the world. It is not confined to China, and China could have made a similar argument with respect to some of the decisions made by the United States regarding foreigners purchasing American companies. I think the best example is the attempted purchase of UNOCAL a few years ago, which was denied by – I don’t remember if it was formally denied by the US government – but it was certainly made clear that the US government was not going to tolerate a Chinese company owning UNOCAL, which was viewed as important to national security interests.

JG: And for that particular deal, would you say that national security issues were the most important or was it more general protectionism and nationalism?

DH: My view was that it was protectionism and nationalism.

JG: Looking at more recent deals, particularly since the Huiyuan purchase was blocked, people have looked at the Rio Tinto deal to draw connections to the Huiyuan deal to see if there was some sort of fallout in Australia that even though Australia wasn’t involved in the Coca Cola-Huiyuan deal there were some questions about whether China’s reaction was enough to rouse nationalistic sentiment in Australia to block the purchase of Rio Tinto by a Chinese company. Can you talk a little about that deal?

DH: Yes. Again, there is no way to know what the rationale was for what happened in Australia. But I do think nationalism and protectionism definitely played a part. And I find it very interesting that people talk about the Rio Tinto deal being a bit of backlash from the Coca Cola deal because I don’t really see that. I think that the same thing would have happened had there never been a Coca Cola deal, just like it happened when CNOOC [China National Offshore Oil Corporation] was trying to buy UNOCAL in the United States. I think that Australia was very wary of a Chinese company coming in and taking over, essentially, one of their commodities. Call it national security. Call it protectionism. Call it nationalism. I think that is a fact of life just about everywhere in the world and so what happened in Australia didn’t really surprise me either. I don’t think that the line goes to the Coke deal in China. I think the line goes to nationalist sentiment.

JG: Since the Rio Tinto deal basically fell through there has been a new seller, which is BHP Billiton, and China’s Ministry of Commerce or MOFCOM has begun to make some rumblings about looking into the monopolistic implications of that deal. I guess I have two questions. The first would be: How much of that – from your own personal point of view – is fallout because the Rio Tinto deal with a Chinese company fell through? How normal is it for a third party country to look at the monopolistic implications of a deal involving two foreign companies?

DH: I’m going to answer the second question first. How normal is it? It’s unusual but not unheard of. I think the basis that China is giving for looking at that deal – the BHP-Rio Tinto deal – is legitimate or at least appears legitimate initially and that is that China is saying: “Look, these two companies are going to get together and control a huge portion of the iron ore industry. And we, China, are a huge purchaser of iron ore. Therefore we are entitled to look into this merger from a monopolistic perspective under our antimonopoly laws. Countries do that. The European Union has done that with respect to Microsoft. I can’t think of instances where the US has done that, but I’m sure they have. The justification is sound. I don’t really know enough about the numbers that will result from a BHP-Rio deal, and I don’t know enough about the numbers with respect to Chinese purchases of iron ore to really know whether under antimonopoly law – and when I say under antimonopoly law, I’m just talking in general, not necessarily under China’s antimonopoly law – if there is really something there. I do have no doubt that China is not happy about what has gone on in Australia. They are not happy about Chinalco essentially being pushed out of the deal, and I’m sure that their initial reaction to the BHP-Rio Tinto deal is based on anger, and it will be interesting to see how far they take it and what sort of valid basis they have for doing so.

JG: On the China side, in terms of foreign companies coming in and purchasing Chinese brands, I think the recent history shows that companies are starting to be a little more cautious about it and there is sort of an understanding that in certain cases there may be a backlash. Have you seen any developments recently that show foreign companies taking a different tact in terms of purchasing Chinese companies?

DH: From my own personal perspective, no. I should talk about that briefly. My law firm tends not to represent huge companies. I shouldn’t say “tends not to.” We do not represent huge companies in huge buyouts. We tend to represent small to medium sized companies who go into China either on their own or sometimes they buy Chinese companies. In that marketplace, these antimonopoly laws have never been a big factor, and we have never had to deal with any sort of nationalistic backlash on the scale where…. let’s say the media gets involved. There have been times when there are certain industries where we get the sense that the Chinese government would prefer that our clients not go in, but that’s probably less due to nationalism than other factors because these are not investments where they are going to make the national press in China. So from my own perspective, and that being the perspective of representing small to medium sized companies there has been absolutely no change. What I have also seen, from the perspective of an interested observer, is that there has always been and will likely continue to be the big companies who seem to understand what is going to be allowed in China in terms of purchases and act accordingly. A very recent example of that is KKR -- Kohlberg Kravis and I forget what the R stands for. I was just reading that they invested $150 million in a dairy company in Anhui province. I think they are getting a 20 percent stake in that and the press has talked a bit about how this was allowed and the Coke deal wasn’t, and the reason why is fairly obvious. The reason is that this is the kind of deal has always been allowed in China. (When I say “always,” I am talking about the last five to ten years.) The Chinese government has always pretty much encouraged foreign companies to purchase non-majority interests in Chinese companies where the foreigner coming in can add a benefit to the Chinese company – maybe a transfer of technology, management skills, access to foreign markets. That’s what I see in the KKR purchase. My guess is that China is very happy with this purchase because it views this as an opportunity to bring in foreign expertise to help tighten up the supply chain in the dairy industry.

JG: To clarify KKR is Kohlberg Kravis & Roberts. I won’t pretend that I knew that, but I was able to look it up while you were talking through that. So you’re basically saying that when it’s a smaller stake and the foreign enterprise is able to bring in the expertise and essentially add something to industry and the economy in China that is something that tends to be more welcomed as opposed to something that might be seen as a foreign enterprise coming in and taking over a national company or a famous brand in China.

DH: Absolutely. Yes. In fact, one of the reasons I am willing to take some credit for having foreseen what happened with the Coke purchase is that in the article we wrote we talked about – and I say “we” because it was with one of my partners, Steve Dickinson, who is based in China – the policies that China has with respect to foreign M&A, and we set out what we saw as the kinds of purchases that would be allowed. The Coke purchase did not fit in there. We said that foreign companies would be allowed to purchase small Chinese companies that the central government is not interested in managing and those tend to be the kind of deals in which my law firm is involved -- small companies that frankly the government does not have much interest in. We said that they would be allowed to purchase large state-owned companies that are suffering from financial difficulties, provided that the foreign investor can restructure and save the Chinese company, and thereby save jobs. There were a lot of those purchases going on three or four years ago. That has seemed to die down a bit, but I remember a number of our clients would come back from China and talk about how some government official was telling them about some great company that our client should buy. Our reaction to that was always “If a Chinese government official is telling you about a great company to buy, it’s either because this Chinese government official has some friend who owns it or more likely this company is probably on its deathbed and they are hoping you can save it.” So those deals have always been encouraged by the Chinese government. Another deal that has always been permitted is – like the KKR deal – where a foreign company comes in and buys a non-majority share in a successful Chinese company but will bring some added benefit to it. But the one purchase that has generally not been allowed is – and will not generally be allowed is – buying a majority interest in a large and financially successful Chinese company. Another kind that tends to not be allowed is a smaller company that is financially sound that has what China considers a critical technology or in a really important field like military related or something like that.

JG: Would that latter category be under anti-monopolistic grounds or national security grounds?

DH: Not monopolistic grounds. Something more along the lines of national security grounds. As far as I know, just about every country has similar grounds. I know the United States does, China does. Countries tend not to like foreign companies buying into their airlines, buying their ports, etc. I know, for instance, in the US there are limits on foreign ownership of airlines. There are even limits on foreign ownership of fishing vessels.

JG: Moving back to the AML. We have had almost a year of the lobbying in place. We had a few landmark cases but not that many yet. Looking ahead, what are the kinds of deals you are looking for in terms of giving you road markers for the future?

DH: What I am looking for is to see somebody bring an action against some giant state-owned entity accusing it of being a monopoly because there are definitely some of those out there, none that immediately come to mind, but it’s very interesting – the idea of having an antimonopoly law in a country where some of the biggest companies are owned by the government, so I’m looking forward to a case like that. There have been some cases brought involving price fixing. I don’t know what the results of any of those cases have been. I’m not sure there have been any results. Based on the facts, and I’m only getting the facts from the media, but based on what I’m getting from the media is that some of those cases are fairly strong. There are some companies in China that have engaged in price fixing. One of things that fascinates me about China’s antimonopoly laws is that it is essentially plopped down as it ought to be, but it was plopped down without there being any history on which lawyers and judges can go on and so that’s always going to make things difficult and what’s also going to make things difficult is that not only is there no body of case law, which will tell people what they can do and what they can’t do, but there can only be very few judges in China who are knowledgeable about antitrust law because how can such judges have been developed when the law wasn’t in existence? I think there is going to be a lot reliance on foreigners in trying to figure out how to handle the law. I personally find that very exciting. I remember many years ago we sent over a first year associate to Sakhalin Island in Russia to represent one of the creditors in a bankruptcy case there, and it was one of the first bankruptcy cases in Russia. Our first year associate was not an experienced lawyer and he was not a bankruptcy lawyer. He had taken one bankruptcy course in law school and all these very experienced Russian lawyers and the judges were asking him how they should handle various things. I can see that same sort of thing happening – to a somewhat lesser extent – but happening in China with respect to the antimonopoly laws.

JG: One last question before we let you go. You just mentioned that you are going to be watching out for cases where some Chinese companies standing as potential monopolies would be challenged. Do you have any predictions of what the outcome of those cases might be?

DH: Tough question. Tough question because I haven’t thought about it much. But I guess the answer is that I suspect that because of the newness of the law and the lack of comfort that the judges will have with the law and perhaps even the fact that they will not necessarily understand the benefits of chopping up a company or preventing a merger…. I would guess, and it’s nothing but a guess, that we are not going to see much enforcement of the antimonopoly laws against domestic companies for another five years.

JG: Alright. Thanks so much for taking the time to talk with us, and as these cases do come to court and do get resolved. We would love to have you back on the podcast to talk about them.

DH: That sounds good to me. Thank you for having me.

JG: Thanks so much for listening to this AmCham China Production.

As soon as the product hit the US, it was stopped at customs as counterfeit. Within hours, my client received a fax from one of its direct (and probably most hated competitors), saying that the imported product was counterfeit and that if my client did not pay $25,000 and destroy all of the boxes with the trade name on it, it would be facing a lawsuit. For ease of reference, let's call this competitor "the enemy." My client came to me and we met with a top flight local trademark lawyer (that same afternoon) and we all determined that the enemy was absolutely right. My client was using the enemy's trade name and it was almost certainly liable for trademark violations and counterfeiting. In light of this, we advised our client to do exactly as told and to then seek to recoup its costs from its lawyers.

My client paid the enemy $25,000 and then incurred another approximately $150,000 in repackaging its product, along with another approximately $50,000 in costs having to resell the product because its original buyers were unwilling to wait for the repackaging. My client went to its insurance company seeking reimbursement and it was not only denied coverage, but the insurance company raised its premium by approximately $25,000 a year because it had misunderstood my client's product up to that point! In the end, this trademark error ended up costing my client around $250,000, though it was able to recoup a good portion of this from its (former) corporate law firm.

The two page letter "the enemy" wrote my client was so good that I saved it and my firm has since used it (with slight revisions, of course) a few times on opposing parties to very good effect. Within my firm, we even refer to using that letter as "going 'the enemy' on their ass."

Note that it was a law firm that made the mistake in the above case and note also that my firm does NOT handle US trademark matters for reasons that encompass the story above. We refer out US trademark matters or bring in US trademark counsel to assist. We believe US trademark law is best left to those US lawyers who focus on US trademark law.

Yet, with the onset of this recession/near depression, I am seeing more and more companies trying to cut costs by doing their own US trademark work. I see this as a huge mistake and it is a mistake that is starting to impact my firm's China work. Here are two examples as to how:

1. A company contacted us to have us help them with an OEM contract with a Chinese manufacturer and to have us register their US trademark in China. Their US trademark is a pretty common name so I asked them to tell me more about their US trade name registration. They told me that they are the only company using that name to make their particular product, but that someone else had already registered the same trade name to make a similar, but "very different" product. The product sounded way too similar to me and I suggested that before they pay my firm to register their US name as a Chinese trademark, they ought to first make sure their US name is valid. They agreed and we are awaiting the results.

2. Someone from China very recently emailed me saying they had registered their trademark in the United States all by themselves but they had heard that one has to use an agent in China to register a trademark there. They wrote me to see if there is a way to register one's trademark in China "cheaply." I said the cheapest way is to register one's trademark in both the United States and in China correctly and that I worried their US trademark is invalid. If so, registering that same trade name in China will likely be a waste of time and money. More importantly, it could mean this company is starting off with a name that may eventually be taken from it at a cost of hundreds of thousands of dollars when someone goes "'the enemy' on their ass."

Last night, I received the following email from my client:

They signed! Now I'm back in china and quarantined for possible pig flu!! Thanks for your help.

Since the inception of this blog, I have refrained from using the old (and badly overused) cliché on China that, "Everything is possible, nothing is easy." I am using it now.

Unfortunately, however, this distributor "forgot" to alert one very large grocery store who went on to sell all of the product before learning of the recall. Needless to say, this very prominent and respected grocery store became very angry at my client upon learning of its not having been alerted to the recall. This grocery store then told other grocery stores of what had happened and our client's reputation precipitously declines and all of its profits disappeared. Things were never the same again.

I mention all this because the issue of product recalls/product safety is so obviously front and center these days in China. Co-blogger Steve Dickinson recently attended a conference on this topic and he has written on it here:

The issue of how to respond to defective products is a hot issue in China. The recent Sanlu Dairy melamine contamination case highlighted that China simply does not have a clear and effective system for recalling dangerous products. Even when a company in good faith seeks to recall a defective product, such a recall is simply not a practical possibility. In response to this issue, the PRC Product Quality Commission released in September of 2008 a set of draft regulations for establishing a nationwide product recall system, the 《缺陷产品召回管理条例（征求意见稿)》Regulations for Management of Defective Product Recall: Comment Draft, which can be found here. This draft regulation is based on the regulations concerning the recall of defective automobiles issued in 2004: 缺陷汽车产品召回管理规定, The Regulations for Recall of Defective Automobiles, which can be found here.

On Sunday, I attended a major conference here in Qingdao, hosted by the Qingdao Office of Consumer Protection and Wincon Law Firm, a Chinese law firm with whom my firm has a formal affiliation. Even though the conference was held on a Sunday, the meeting room was packed with over 100 participants. The participants included government officials, major consumer product companies, consumer advocates and law firms. The various presentations revealed two things. First, there is strong interest in China in using product recall as a tool for confronting the continuing problem of unsafe products within China. Second, China is a long way from developing a comprehensive product recall system.

My own comments on the draft regulations were as follows:

1. The regulations do not provide for creation of a single regulatory body similar to the U.S. Consumer Product Safety Commission. Where there is multiple and overlapping central and local jurisdiction over these kinds of issues, the result is usually chaos, not effective action. This was shown quite clearly in the Sanlu melamine situation. The proposed rules exacerbate this situation rather than improve it.

2. Manufacturers and retailers will only cooperate with product recall if they believe it is to their economic benefit to do so. The proposed regulations rely entirely on administrative sanctions to achieve compliance. However, the proposed fines are too low. Since there are numerous obstacles to product liability litigation in China, there is little to coerce or convince Chinese companies to comply with any regulations that are actually adopted.

3. A major target of the recall system is foreign manufacturers. In several recent cases in China, foreign manufacturers intended to include China in worldwide product recall campaigns. In each case, they abandoned their China recall program because of the lack of any system within China. The Chinese authorities do not want this to happen again. It is clear that the first target for effective implementation of the recall system will be foreign manufacturers, particularly manufacturers of big-ticket items like automobiles.

As foreign manufacturers begin to have increasing success in penetrating the Chinese market, they need to be aware of the extensive and growing body of product safety laws and regulations. The new recall rules are one of many sets of rules that are likely to be enacted and enforced with particular enthusiasm against foreign manufactured products in China.

For more on food safety in China, check out Steve's Wall Street Journal article, "Food Fumble."

But lately I have been having my doubts. Just a little.

Not that long ago, a client came to us having reached a tentative agreement to sell millions of dollars of product to a Chinese city government. The deal looked good from all angles and my firm was hired to draft the contract. I discussed with my client the need to register their product's trademark in China before anyone else beat them to it. My client was concerned about this because a number of people knew it would soon be doing a substantial business in China. So it went ahead and registered its trademark in China right away as it continued to negotiate the final terms of its contract with the Chinese city.

To make a long story short, my client was unable to turn its oral agreement with the Chinese city into a written one due to various disputes regarding payment terms and IP protections. Rather than compromise, my client made the decision not to go into China, at least for now. But its China trademark has been bought and paid for and approved for filing and so, in a couple years (yes, it does take that long), it will have a registered Chinese trademark that will only have value for it if it is either selling its product into China or having it manufactured there. In other words, in hindsight, its filing its trademark there came too soon.

I thought of this prior matter this week because I am involved in another situation where I am worried that my client's trademark filing might end up being for naught. This client has a very strong brand name and it is in negotiations with a Chinese manufacturer regarding having one of its products made in China. Interestingly, if my client does not reach agreement with this particular Chinese manufacturer, it will have its product made in another country. So does it register its trademark now, so as to be sure to beat everyone else to it, or does it wait and see whether it can reach agreement with its Chinese manufacturer? Hate to give away the punchline, but this client too chose to go ahead and register its trademark. But what if it had only a very limit amount to spend?

Though the odds of someone "sneaking in" and filing "your" trademark while you are negotiating a contract are low, the cost of missing out on being able to register your trademark are so high, that as a lawyer, I think I have to advise clients to register their trademark every time. But might there be circumstances where a company should take a wait and see approach to registering its trademark?

Ms. Mooney is the author of the books, Beijing Eats and Not Just a Good Food Guide: Beijing and the oft-cited Guardian article, "Top 10 Places to Eat in Beijing." She also has been writing a superb blog for the last few months, entitled, Eileen Eats. As you probably have guessed, its focus is on food in China, mostly Beijing. The blog does a great job discussing Chinese food history, Chinese food, Beijing food, and Beijing restaurants.

I heartily recommend it.

Just about every time there is a rumor of a major new Chinese law, I get an email from someone asking me to write about it. I virtually never do. This happened most recently regarding the news that China would soon be requiring all computers sold within China to come with built in web filtering software.

I do not like writing about proposed laws for the following reasons:

1. There are so many laws already on the books and being enforced that need coverage more. Laws on the books will impact you right now. Proposed laws may or may not ever come into being.

2. China has a very real habit of saying it will institute a new law and then never doing so. It floats new laws to gauge reaction. If the reaction is negative, the law oftentimes never comes into being.

3. China has a very real habit of instituting new laws and then never enforcing them. This often happens when the new law is negatively received.

I am absolutely thrilled our readership is so internationally diverse, but this also means that I often receive emails from people wanting me to cover their diplomatic relations with China. For two reasons, I never do this because China is always engaging in diplomatic meetings with some country somewhere. I do not see this as news. The press virtually always describes these meetings as positive and they almost always seem to end with a comment on how both countries expect increased trade and how some economic/business/aid package has been agreed to. This is not news. This does not warrant analysis. This is mutual public relations. Move along.

This is not a blanket rule (though I do not think I have yet to cover such a story) and I do reserve the right to cover some future major China diplomatic breakthrough. But for now, I will leave these stories to Xinhua.

Am I off base here?

By and large, in most sectors of the retail business, they had the locals on the run both as brands and retailers. Then last year’s financial crash. Since then two mantras have surfaced – the West is in freefall; China is surprisingly robust. Our sales are declining in the West; growth is still apparent in China. Good news then for those teams in China who did all the hard work over the last decade?

Eeeerrr, no. Head offices from London to Paris to New York and back again panicked – big time. Cuts were demanded; cost savings had to be found – redundancies implemented. And it seems a sort of warped, nonsensical political correctness has been in vogue on the chopping block this season. We’ve seen one experienced brand brand/retail manager after another in China fired and slung out on the street. Why? Every country office must implement a 10% head count cut (it varies from company to company but...), regardless of performance, in the dubious name of “fairness”. The result is that an office in Europe or America, where sales are falling through the floor sacks 10% of management – and then so does the office in China, despite having double-digit growth!! This is apparently fair and equitable in corporate speak at the moment.

The article goes on to rightly point out what a big mistake this is because these Western companies are losing massively experienced employees to their Chinese rivals.

I completely agree with the article's analysis, but this laying off of employees is not at all what I am seeing with my firm's clients. If I had to breakdown what our Western clients are doing in China (and I am admittedly pretty much guessing here because I have not been keeping track, but I do nearly always ask, "how's business?), I would say 60% have frozen hiring, 30% are still fairly actively hiring, and 10% have engaged in layoffs. Of all these numbers, I am most confident of the laying off one because I think we are nearly always called in to assist on the legal aspects of layoffs, but we certainly are not called in for freezes and only rarely are we called in for hiring (because our clients usually can use the employment contracts we previously drafted for them).

So why the big difference? I think it is because most of our clients are small to medium sized entities, none are from New York City or London, and very few are directly connected with either the financial or real estate industries.

What are you seeing out there? Are Western firms laying off employees in China, freezing their hiring, or hiring?

In my recent post concerning the PRC Contract Law, I noted that restrictions on disclaimers of liability in form contracts are a particular concern. As I mentioned, form contracts are often used for cargo and other carriage contracts. The primary function of such contracts is normally to limit the liability of the carrier. This runs directly against the form contract provisions of the Contract Laws, which are designed to prevent such limitation of liability. In this post, I will describe a recent case concerning this issue that clearly illustrates the Chinese approach and the dangers for foreign carriers who intend to operate within China.

The relevant provisions of the Contract Law are as follows:

Article 39 Where standard terms are adopted in concluding a contract, the party which supplies the standard terms shall establish the rights and obligations between the parties in accordance with the principle of equality; shall use reasonable means to clearly identify any provision that limits his own liability or increases the liability of the other party; and upon the request of the other party shall explain such provisions.Standard terms are clauses which are prepared in advance for general and repeated use by one party and which are not negotiated with the other party in concluding a contract.

Article 40 When standard terms fall within the provisions of Article 52 and Article 53 of this Law, or in the case where the party which supplies the standard terms exempts itself from its own liability, or increases the liability of the other party or eliminates the rights of the other party, the terms shall be null and void.

Article 41 If a dispute over the understanding of the standard terms occurs, it shall be interpreted according to general understanding. Where there are two or more possible interpretations, the interpretation unfavorable to the party supplying the standard terms shall be used. Where the standard terms are inconsistent with specifically negotiated terms, the latter shall be adopted.

Article 53 The following exculpatory clauses in a contract shall be null and void:
(1) those that concern personal injury to the other party;
(2) those that concern property damage to the other party as a resulting of intentional acts or gross negligence.

These provisions were applied in the following case. (Taken from 合同法案例应用版 (2009) pp. 27—29):

Company A is located in Nanjing. On July 21, 2006, it received an order from Company B, located in Nantong, for an IBM notebook computer. Since Nantong is 300 km from Nanjing, company A engaged the services of a package delivery company to make the delivery. Upon accepting the order, the Delivery Company provided a freight bill to Company A, stating the particulars of the transaction and providing for a delivery fee of ten RMB (about $1.50 US). Below the signature line, the freight bill included the following statement: “If this package requires insurance, please provide advance notice.” Below this statement was the further notice: “Before signing this document, please read the explanation on the reverse of this document. Your signature confirms that you understand and accept the provisions of this explanation.”

After signing the document, the delivery company took away the package. Company A notified Company B that the product had been shipped and Company B paid the purchase price of RMB 17,450 (roughly $2,000 US). The package never reached Company B. As a result, Company A shipped a replacement computer to Company B and sued the delivery company to seek compensation for its loss. After investigation, it was determined that an employee of the delivery company had subcontracted the delivery to a third company. An employee of that third company stole the computer before it could be delivered to Company B.

At trial, the delivery company argued that the exclusion provision of the delivery contract limited its liability. Provisions printed on the reverse side of the delivery contract provided the following:

1. In the case of expensive items, the customer is required to state the actual value and to purchase insurance.
2. In the case where the customer has not done the above, the liability of the carrier is limited to 30 times the delivery fee.

In this case, the delivery fee was 10 RMB. The delivery company therefore argued that its liability was limited to 300 RMB.

The court rejected the argument of the delivery company and held that it was liable for the entire damage in the amount of RMB 17,450. The court did not discuss the requirement of prominent disclaimer language or the requirement to explain, as required by Contract Law Article 39. The court instead based its decision on Article 40, which provides that any standard term that limits the liability of a contracting party for its intentional or grossly negligent conduct is simply void. The court held that it was grossly negligent for the delivery company to subcontract to an unsupervised third party and stopped its analysis at this point.

This decision suggests that in the context of form contracts it is not possible for a party to limit its liability for negligent or willful conduct. This is true even if the exculpatory language is clearly stated and even if the other party acknowledges the provision. This issue must be considered carefully. The delivery company in this case charged only a nominal sum (10 RMB) for this delivery. It charged this low price presumably on the assumption that the exculpatory provisions of its contract would limit its liability to no more than 300 RMB. Instead, it was held liable for the entire 17,450 RMB loss, an amount it clearly had not considered in setting its delivery fee.

Many foreign carriers operate within China under the same assumption. They believe their limitation of liability provisions allow them to safely charge a modest freight charge. This case shows that this assumption is misplaced and that far more care in this issue must be taken in delivery, freight and related contracts in China. The Chinese form contract provisions are far different from anything encountered in the common law and they must be considered carefully.

China's tendency not to enforce limitation of liability provisions applies much more broadly than just to freight contracts. They apply in any warranty situation where a seller or service provider seeks to limit liability. The normal waiver of warranty in bold print does not appear to be a viable solution in China. The entire issue of disclaimer of warranty/disclaimer of liability must therefore be approached with extreme care in China, particularly when using a form contract.

PRC Supreme Court Explanation of Legal Issues Concerning Well Known Trademarks
by: Steve Dickinson

The issue of protection of “well known” foreign trademarks is a continuing area of dispute in China. In an attempt to clarify some of the issues, the PRC Supreme Court recently issued an explanation of the issues arising in disputes relating to well known marks. This is 最高人民法院关于审理涉及驰名商标保护的民事纠纷案件应用法律若干问题的解 (Explanation of the Supreme People’s Court Concerning Some Questions Arising from the Application of Law in Civil Legal Disputes Concerning the Protection of Well Known Marks) which can be found here [in Chinese only].
The Court issued this Explanation on April 22 and it officially became effective on May 1.

Among the purposes of the Explanation is to clarify the provisions of Article 13 of the Trademark Law, which provides the following:

13. A trademark which is applied for registration in identical or similar goods shall not be registered or shall be prohibited from using, if it is a reproduction, an imitation or a translation, liable to create confusion, of a well-known mark which is not registered in China.

A trademark which is applied for use in unidentical or dissimilar goods shall not be
registered or shall be prohibited from using if it is a reproduction, an imitation or a translation, misleading the public, of a well-known mark which is registered in China, provided that the interests of the owner of the well-known mark are likely to be damaged by such use.

The translation above is taken from the WIPO standard translation. Note that many translations found on the internet are incorrect and should not be used.

The first article of the Explanation clarifies an important issue. Explanation Article 1 states that the term “well known mark” means a mark generally known by the public within the territory of China. The Explanation thus makes clear two key requirements for a well known mark. First, the mark must be known to the general public, not to a restricted group of experts. Second, the mark must be well known within China. The situation outside China is not relevant.

This second requirement is the source of much confusion for foreign trademark owners. I have read a number of case reports in China where a foreign company went to great lengths to prove that its mark is well known in the United States and Europe and I have had a number of companies tell me they did not think they would need to register their trademark in China because it is a well known mark. The Chinese courts in these cases can do nothing but politely state that though it may be true that the mark is well known outside China, that is irrelevant here in China. What we need to know is whether or not your mark is well known within China. Absent evidence of knowledge of the mark by Chinese consumers, the provisions of Article 13 are of no benefit to the foreign trademark owner. It is essential that the territorial limitation of Article 13 be clearly understood because a failure to understand this and act accordingly will likely lead to much wasted time and money on the part of foreign trademark owners. The clear statement in the Explanation is intended to prevent such misunderstanding.

For the basics on China trademarks, check out this post, entitled, "China Trademark Law: Simple And Effective."

Needless to say, this post brought a wealth of comments and in this post, I respond to each and every one of your comments. First off, let me say that I appreciated ALL of your comments, even those that attacked me, even those that ascribed positions to me that I never set forth and do not hold, and even those I did not understand. Secondly, I am proud that I did not have to delete or even edit a single comment. Without exception, all comments struck me as legitimate efforts to discuss difficult issues. You evidenced a desire for real discussion and that has spurred me to try to respond to keep the discussion going.

Below are all of the comments so far, and my responses. I ask that if you have additional comments to make that you make them on the original post, here, and not on this one.

I apologize in advance if I offend anyone. My goal is to go at the issues strongly and if I make anyone feel bad, I feel bad myself.

Let's roll.

Thanks.

1. Well said.
Response: Thank you

2. I was thinking the exact same thing. Thanks for having the guts and the skills to put it into words.
Response: Thank you

3. Brilliant. Really. I know you don't like to get political but I am glad you did. Sometimes we just need to call Bullshit.
Response: Thank you. I agree (on the calling bullshit part).

4. Organ harvesting in China? Internet lynch mobs allowed by the gov't? BTW the boxer rebellion got started with lynch mobs deliberately ignored by the gov't... China's continued support of a certain gov't (NK) that has starved to death over 2 million of its people since the Korean war, not even mentioning the executions. Or anti-Beijing people in the US and Europe attacked in their homes, their computers stolen, etc?
Response: Did you actually read my post? Did I ever say China is a paragon of human rights? No, I simply compared it to two countries that engage in widespread genital mutilation of its females, that hang its homosexuals, that behead its criminals, that imprison or kill or torture nearly all those who dare to speak against the government, or merely cross it, and that pretty much shut down all non-Muslims. Yes, China could stand to improve, but why are you telling me this now?

5. Yes... mostly.
Response: Thanks....mostly.

6. Egypt has opposition groups, opposition MPs. Muslim Brotherhood is formally banned but has 88 MPs who sit as a block. Much of its press is independent and critical. So I'm not sure the answers to your questions are by any means so clear cut as you imagine. Saudi is brutal but even there the current king is reformist. Is Hu?
Besides, the contrast is fallacious. US presidents say exactly the same sort of thing about its Arab allies as it does about China, its most important trade partner. Clinton's important statement on arriving in Beijing this year that human rights concerns would be downgraded for strategic reasons is exactly mirrored by Obama's interview with the BBC about his mideast trip outlining the strategic reasons for putting diplomacy before human rights grandstanding the other day.
You cannot make an argument by plucking one statement about China and sticking it next to a visit to the Arab world. Otherwise he would be constrained from speaking out on some atrocity in the mideast while he was visiting Tiananmen Square, where exactly the same, inverse comment could be written.
Response: You make some valid points, but not many. First off, I never said the US should go silent on HR abuses in China. I just said those criticisms should be done in private, where I think they have a much greater potential of having an impact. Second, a heavily proscribed opposition is no opposition at all. I don't have a problem with the way Hosni Mubarak runs Egypt as I recognize that if he didn't run it the way he did, it would probably be much worse. I am merely saying that we in the US cannot have it both ways and be considered credible. If we are going to cozy up with repressive regimes like Egypt and Saudi Arabia, then we cannot at the same time publicly scorch China, at least if we want to remain credible. It's like at my law firm where we are always claiming we have no assholes as paying clients because a paying client cannot, by definition, be an asshole. Except we are joking. As for the Saudi King being a reformist? What does that even mean? That next time Saudi Arabia will send over only 15 out of the 19 terrorists to bomb us or that it's women can drive cars so long as they are married to a prince? Give me a break. China is reforming (very very slowing). Saudi Arabia is putting on face paint to impress the US.

7. @Richard,

Are you intentionally missing the point? If the Obama administration had even just once criticized the human rights abuses of ANY of the countries Dan mentions, you might have a point, but it never has. And instead of mouthing off about the Potemkin villages that pass for democracy in Egypt and Saudi Arabia (all put in place by their megolomanic rulers merely to placate the United States), why don't you instead answer Dan's questions one by one?
Response: I love it. I couldn't have said it better myself.

8. Wonderful post, Dan. Some people have to get that a lot of countries have done bad things. Even us. China has made a lot of progress in recent years and is as much about "organ harvesting" as the US is about torture. There are many components to a country, and a number of the components of most countries and their histories will, unfortunately, be bad. But do we judge America as the country that killed Indians and/or enslaved Africans? Sometimes we need to see the bigger picture. This post helps do that.
Response: Thanks. I mostly agree. The US is not perfect on human rights, but we try and, overall, I think we do pretty well. China too isn't perfect, but it is improving and anyone who doesn't believe that should study the Cultural Revolution for a few hours. It certainly is more than an "evil empire." And you are right, of course, that there is a huge picture out there.

9. The last week in Beijing, leading up to this day, has been frustrating beyond words. Websites and Internet services shut down, one by one. The powers that be huddling up and hunkering down to put every single block they can come up with in place to prevent anyone - ANYONE! - from recognizing the significance of this date. I have been in Beijing for several June fourths, but nothing compares to the collective, coordinated, enforced blindness that we have experienced this week. Plainclothes officers at the square blocking news broadcasts with umbrellas. Truly! Unbelievable. And sad. When I read Secretary Clinton's statement it was a relief. Some official acknowledgement! The issue should not be a comparison between whether Egypt/Saudi Arabia or China is a worse offender. The countries that violate human rights -- US included -- should be called out for it. And for diplomacy to work, I'd imagine every country needs to be approached from a different angle. After years of witnessing firsthand a government's (amazingly strong) will to deny and forget, I am proud to be a citizen of a country that insists on remembering. Because today it's not just about diplomacy. Today it's about the lives that were lost and so quickly forgotten.
Response: This is a difficult one to respond to because, emotionally, I pretty much entirely agree. But it does somewhat miss my point. My point is that either the US has to criticize all countries that violate human rights (including our allies) or it risks losing credibility when it selects just some of them, particularly when the some it selects are far from being the worst offenders. It also needs to focus on the effectiveness and the timing of its comments. I remember seeing a comedian once who made fun of the world's fattest man. His jokes centered around the fact that everyone could claim they were thinner than him. Making fun of the world's fattest man lets the merely obese off the hook. The US's going after China because it is the politically expedient thing to do (for the US domestic audience) lets countries like Libya and Syria and Saudia Arabia off the hook, at least to an extent, and that ain't right.

The lives that were lost at T-Square hugely matter, but the United States is not going to get China to remember that and fess up to it. It just isn't. Japan has really not fessed up for World War II, should we be reminding them of that all the time? It took the US far too long to recognize anything close to fully how we mistreated African-Americans and I still don't think we are even close to being their yet with Native-Americans. And yet, I love my country and I think it is a great and moral place and I think more of it on human rights (by far) than China, yet at the same time, I resent it when others criticize us too hard for our past because far too often the criticisms are grossly simplistic. I lived in Europe as a kid and it really used to piss me off to hear everyone (from teachers to cab drivers) preach at me about race relations in the US as though they had a clue. They would talk about some incident in the South and make it seem like it was the entire country. When I would tell them that I lived in a racially mixed neighborhood and half my friends were Black and there had been virtually no racial problems, they would accuse me of making it up and go back to their preaching on how the way the US handled its minorities wasn't right. Now that Europe has its own minorities, I daresay that the US is much farther along in fair treatment (for the most part) than Europe. Why do I bring this up? Because people generally know what they need to do and they generally do not like outsiders telling them.

At the same time, there is a point where we have to do something about human rights beyond just talking privately with other countries and that point has certainly been reached with some countries (Zimbabwe, Iran, Syria, Libya, Myanmar, Yemen, Sudan, North Korea, Saudi Arabia) and yet for various reasons we pretty much do nothing. And when I say "we," I mean far more than the US, I mean the entire world. So if we do nothing when horrible horrible things go on in these countries as a matter of state policy, do we really have credibility speaking out so incredibly selectively? I just don't think so. Many of you seem to be of the view that speaking out is the moral thing to do and hey it makes us all feel good, but I am of the view that it is actually (in most cases) counterproductive. And that is the reason I oppose it. It just doesn't work and it has blowback impact.

10. I find myself both strongly disagreeing with you and strongly agreeing with you. Egypt and Saudi are not democracies, regularly imprison and torture, and in fact are imprisoning people who might protest the Obama visits. At the same time, criticism of China's human right record is quite correct. Criticising China from Egypt, whilst not explicitly criticising Egypt, is hypocrisy, but criticism is warranted.

Response: Criticism is warranted, of course, but so what. Is it effective? Will it lead to change in China or will it merely reduce the US's standing in the world?

11. There is a major issue that's being avoided here, and that is the specter of Islamic extremism. As reprehensible as Saudi Arabia or Egypt's government is, it pales in comparison to the Taliban or other horrific extremist movements active in Islam today, and THAT is why the US avoids castigating the Arab governments. If the US were to come down HARD on Riyadh or Cairo on their human rights abuses it would only empower the extremely dangerous groups operating within those countries that hate the West and modernity with a passion. Think if the House of Saud fell or Egypt was taken over by Taliban-style madmen who burned the faces of girls who tried to go to school with acid or cut out female genitalia to prevent pleasure . . . and THAT is the most likely scenario if the current strong men were displaced.

Does such a scenario exist in China? No. The Chinese are at heart a practical, reasonable people. They called for democracy when their economy was suffering and inflation was rampant, and they have accepted autocracy so long as their living standards improved. If the CCP fell the vacuum would not be filled with Boxer-style fanatics or religious crazies. Likely an (initially very corrupt, admittedly)democracy would emerge.

THAT is why the US accepts the Arab governments. Because they are BETTER than the other option. China's other option is democracy, not religious fundamentalism.

Yes, I will agree Saudi Arabia is more repressive than China. But BOTH are extremely repressive. How many executions did China have last year? 6,000? Saudi Arabia? 2,000? How many journalists and human rights activists are suffering under house arrest or in labor camps? Organ harvesting? Corruption?

But be pragmatic, like the Chinese people are. Don't fall into the Chinese 50-cent army tactic of COMPARING everything (my favorite from today - BBC1, one of the many paid Chinese commentators who operates on Shanghaiist - commented on a picture of 'Tank/Man' and said that in Iraq the Americans would have run over the Iraqi). It's like saying the Chinese occupation and gradual extermination of T1b*t is justified because the US did it in its Western territories. The US can't speak out against Chinese abuses because it doesn't condemn Saudi abuses (or my favorite, so ridiculous given the DEGREES involved, stating that US has no leg to stand on trumpeting human rights because we water-boarded. As if simulating drowning compared in any way to the Chinese tactics to control their Western provinces. WEAK. Look at the larger picture and you'll see why the US is more circumspect around the Arab world.

Response: I agree with almost everything you say, except your big point. Yes, as horrible as the regimes are in Saudi Arabia and Egypt, the alternatives are worse. But if we reduce our human rights criticisms to when it makes political sense, we look like hypocrites. If we are going to criticize China and not Saudi Arabia, at least let's not lie about it. Let's say something like the following:

Saudi Arabia is one of the most repressive countries in the world. Practicing a religion other than Islam there is likely to lead to your being executed. Being gay is likely to lead to your being executed. Being female means you have virtually no rights at all. It is the leading funder of terrorism worldwide and most everyone knows that it was people in the Saudi government who funded 9-11. It executes as large a percentage of its population in any given year as any country in the world, oh, and oftentimes, just for good measure, it beheads those whom they execute, after they are dead. There is no democracy there. Not even a hint. If you are not royalty or super rich, you are scum. Its foreign laborers are treated pretty much like slaves; in fact, many of them are literally slaves. It is a country where if you are a father (even if you are a muderer) you can take your kids and be absolutely certain that your wife will never get them back. If it didn't have oil, it would have nothing at all, but because it does have oil and because its present rulers are so greedy that despite their hatred of us, they are willing to sell us oil, we will not press them on their human rights record and we will not embarrass them before the international community. In fact, our Presidents will walk with them at Camp David, etc. as though they are just like us and even one of our Presidents will bow. Oh, and as bad as they are, we are convinced that if these present rulers were deposed, the next group would be even worse. So for all of these reasons, we will say nothing.

There, is that better? I actually think it is because at least then we are making clear that we know what is going on instead of papering it over in such a way that many Americans have no clue. Maybe if we had been honest about the massive repression and lack of democracy that is extant in nearly every Arab country, the US would never have gone to war in Iraq because our citizenry would have never bought the absurd Bush line that we were going in to make it a democracy. We all would have said, no, that can't happen. That's impossible. He's lying to us. So yes, this sort of hypocrisy does have real life repercussions.

But, hey, let's go after China instead, because that's what sells tickets back home.

12. I think what drives me crazy about China is the attitude of its government. True, China is doing better on human rights than a lot of other countries, but officials continue to lie and conceal past and present abuses, and they want China to be a big world power without any further reform.

Response: True, but see my responses above.

13. I could not have said it better myself! Brilliant.

Response: Thanks. I love readers who effusively praise me.

14. I've been tired of talking politics. But US hypocrisy on human rights has been there for a long time. That's part of the politics.

Response: I completely agree and that is why I did this post. I wanted to highlight that it's business as usual.

15. Excellent and brave post, Dan- a great contribution to the very heated dialogue of the past few days. I believe that the U.N. called the US's human rights record "deplorable" only a week ago. One only has to look at America's record of ratifying articles under the UDHR to begin to question the hypocrisy in "our" annual issuance of the US State Dept. human rights report.
Like you, I love my country, but the finger-pointing and China bashing is counterproductive and entirely out of hand. T-----n was an absolute tragedy that should not be overlooked, but it is also an extremely delicate issue that cannot be effectively handled by a Western perspective alone. I had the opportunity several years ago to talk with a member of the CCP about J-ne 4th. He was of the mindset that T-----n was merely a Western propaganda tactic- a lie. Sad, but I can certainly understand why he would think this way.
Globalization has drastically changed the order of our world. If the US continues to take the stance that "our" way is the "right" way and the "only" way, we can expect some major problems in the coming years.
Before the US can have an effective and consistent human rights policy in place, it needs to take accountability for its own errors and put the pen to paper. Once that happens, maybe the US and China can have a human rights conversation with a positive outcome.
No doubt improvement is needed on BOTH sides of the fence.

Response: I don't like your criticisms of the US, but I otherwise mostly agree with you, particularly on the point that our talking of T---n to China is just going to cause them to put up walls. China has to come to its regrets entirely on its own, just as the US has for the most part done with its history of racism.

16. I'm not sure why Carter is written off as idiotic. He has always approached human rights issues in China in a responsible way--making clear is concerns about human rights there generally and T1b*t in particular, but also being humble about things and talking about his own experiences with racism growing up in the South when he speaks to Chinese audiences. Carter has also done a lot to keep the momentum on village elections in China from dying out completely through his center's work with the Ministry of Civil Affairs.

More generally, it is certainly not right to make nice to Egypt and Saudi Arabia while criticizing China. But it's not true that only quiet conversation with the Chinese leadership makes a difference. It is the most COMFORTABLE route for everyone concerned, of course, including businesspeople / lawyers / students living in China... but that should be beside the point.

Response: Carter is written off as an idiot, because he was and still is one when it comes to foreign policy. Until Bush came along, Carter did more to reduce US standing in the world than any president in history. It will take another 50 years before it can be determined whether Bush has now taken the top position, but they are definitely Nos. 1.

17. Interesting and good post.

But you may be assuming that most people in the world, including Nancy Pelosi, can even define what "human rights" are. The sad reality is that they generally cannot do so. Until they can do so, it seems to me that what they have to say, on either side of the debate, may be "sound and fury, signifying .... not much". See this post I made a few days ago on this very issue. To wit, how do you/the reader define human rights and is your concept or definition even a realistic workable one? And which aspect of human rights are you/the reader, talking about? Categories matter, a lot, in this discussion. http://calpolymbatrip.com/2009/china/human-rights-part-ii/

Cheers from Cal Poly ....

Response: I completely agree, and that is why I try to take a very broad definition by including things like Saudi Arabia's treatment of non-Muslims, of females, and of homosexuals. The broader the definition, the more complicated the issue and this is a damn complicated issue and not one that can be or should be dealt with by 30 second bromides intended to placate domestic constituencies back in the US.

18. Your comments are baffling. Are you saying the Muslim Brotherhood are a potemkin opposition? That'll be the Muslim Brotherhood that supports Hamas?
Clinton's comments were put in deliberately positive terms: "A China that has made enormous progress economically and is emerging to take its rightful place in global leadership should examine openly the darker events of its past and provide a public accounting of those killed, detained or missing, both to learn and to heal." etc - ie what China should do now (rather that condemning its past acts).
This is exactly parallel to what Clinton said after meeting Egyptian ngos last week:"It is in Egypt's interest to move more toward democracy and to exhibit more respect for human rights."
Of course the T---men quotes are stronger but it's a particular anniversary. And contrary to what Dan suggests, there aren't mass killings in Egypt.
I'm not going to go through his post line by line but i'd like to know what evidence he has for Mubarak's apparent killing of all his opponents or for his having driven nearly all non-muslims out of Egypt. Ten per cent of Egypt is Christian, I believe.

Response: Hundreds of Coptics are killed in Egpyt every year and I recall seeing a survey a few years back in which over 90 percent said they would leave Egypt if they could afford to do so. Just a few weeks back, the government used the excuse of swine flu to kill hundreds of thousands of pigs (all of which belonged to the Coptics) without any remuneration. The Coptics are pretty much the last of the non-Muslims in Egypt, as its once large Jewish population has all been killed or expelled. One of the things Egypt does so well though is to repress its Coptics so extensively that little bad news gets out. Its selling itself as a "moderate" force in the region also helps. That and the fact that the foreign media there are so limited and tightly controlled (far more than in China) means that we hear little. Do you really for a moment believe that Clinton's chastising was meant to be or was taken to be in a "positive" light? Come on.

19. It's a point well made. Yes, China has human rights issues, but I think America has a tendency to come off as rather parochial at times and yes, hypocritical. I'd rather live in China any day compared to Saudi Arabia or Iran. We're all sinners.

Response: We are all sinners, including me, but I still have the right to stress morality and keep my own kids in line. But you are absolutely right about China versus Saudi Arabia and Iran.

20. Dan, I disagree. I don't know enough about the situation in Saudi Arabia or Egypt, but to say that the US should not raise human rights issues with China because China is relatively better than the Saudis is unacceptible.

What Clinton called for is for China to account for the event. I don't think that is too much to ask for.

Response: Did you even read my post? Seriously. I never said what you say I said. I never said that because B and C are worse than A, we should not criticize A. What I said was that since B and C are far worse than A, we look like hypocrites in criticizing A while paying fealty to B and C. Do you see the difference?

21. Wow, you certainly hit a sensitive nerve by your rabid defense of China, nevertheless, it makes me nervous that our government criticizes other governments when our own problems with racism, environment, and fair distribution of wealth is so apparent. As Mom always told me, "two wrongs don't make a right"; hence, our relative social, legal, and ecological improvements do not give us the right to criticize others behind us, it should only encourage us to continue our own progress until we have achieved a perfect society. "Lead by example", that's what my Dad would say.

Response: I sorta agree, but for different reasons. I would have no problem criticizing if I thought it would be effective. See the example re my own kids above. But I don't think it effective and I think that most of the time leading by example is the way to go. The US has led by example for hundreds of years and we can and should do it again. Rah, rah, rah!

22. I agree with you. Until US is perfect in terms of human rights, no one, whoever they are, should complain about the Chinese record. The world must leave China alone to do their stuff, while the US must concentrate on making their human rights efforts perfect, not just in US, but all over the world, except in China.

Response: I'm not sure if you are being sarcastic or not, so I am just going to keep my mouth shut on this one for fear of sticking my foot into it.

23. I'd like to add that Obama DID mention human rights (in the context of the Middle East) three or four times in his Egypt speech. Also, there is a very large dose of conjecture in your points 1 and 2. And I don't think your overall point is consistent with the fact that the Obama administration has made a point to speak publicly about human rights in mostly any context. I think the hypocrisy and contradictions are less dramatic than you claim.

Response: I must have missed it because I have never heard anyone in the Obama administration publicly criticize the human rights in any country other than China. I am NOT saying it has not happened, but I am not aware of it. Speaking generally about the need to improve human rights does not qualify. I welcome you to point out instances where this has happened.

24. Leaving China alone to do its stuff means that the T1betans and U*ghurs are exterminated (Kashgar is being completely torn down and its residents relocated) and that N. Korea will still exist. Remember, China is the sole, unwavering political ally of Pyongyang only to keep democratic and Confucian S. Korea off of its border.

Response: Do you really think that it is our criticism that has stopped China from doing more? I sure don't.

25. You might want to read this transcript if you want to see what the US human rights policy is now - it lays it out pretty clearly.
http://www.state.gov/r/pa/prs/dpb/2009/124303.htm
It makes clear on both Egypt and China that while the Obama administration will speak out in favour of democracy and human rights strategic issues are paramount. This also explains why the form of words used on China is stronger than Egypt - the strategic needs on the Middle East are stronger than the case with China (Saudi in particular needs to be kept on board the peace process as the paymaster of Fatah).
Interestingly, Clinton accepts the Chinese definition of human rights, as including social progress. That's pretty striking.
No US administration will give up on human rights in China completely because to do so would be to abandon those many Chinese dissidents, opposition figures, petitioners who hope that the west will speak up for them since noone else will. If you have only met Chinese people who think Ti---en was a western imperialist plot you haven't met enough people.
On a number of occasions I have praised Deng Xiaoping before people my age (40s) only to be asked how I could possibly overlook his record from 1989. These are non political types I'm talking about.
Of course, few Chinese will say this in a formal news interview setting, or at work,or when faced with admittedly self-righteous "how terrible for you to be chinese" type questions which I accept is often how the western attitude too often comes across.

Response: And your point is? If your point is that many Chinese would love to see democracy in their country, I completely agree. If your point is that China has HR problems, I completely agree. If your point is that the US selectively chooses who to criticize on HR based on politics, I completely agree, and that is the point of my post. That policy is not effective.

26. Americans are in no position to question any other nation's human rights record especially with what has come to light recently at Gitmo, Abu Ghraib, and prolly many others to come. Americans historically love thumbing their noses at the inadequacies, whether real or perceived, of other nations and theor peoples, while completely ignoring their own situation at home. My advice to America: Fix your own house first before you make comments about other nations. And there's a WHOLE lot of fixing to do in America.

Response: Your comment gets the award for the least sophisticated one. I am not going to waste my time explaining to you the difference between individual action and government policy but you really should look into that....

27. What's REALLY hypocritical is that the US is all for doing business with China and Vietnam but yet refusing to lift the embargo on Cuba, another socialist country. Don't tell me it is just about the Cuban-American voters in Florida. The US is practical, it doesn't bully China because it can't; it bullies Cuba because it CAN. It only picks on the small potatoes to squeeze.

Another case of American hypocrisy: Why not invading North Korea? Is Kim Jong-il better than Saddam? Sure, the US will never invade North Korea because (1) The KPA is a force to be reckoned with, you can't just crush them like you crushed the Repulican Guards; (2) North Korea has no oil and most importantly (3) North Korea does not directly threatens Israel. As long as you don't threaten Israel, the US will not touch you.

Response: I agree with you on Cuba but disagree with you on why Iraq and not NK. Iraq had nothing to do with Israel, who actually was better off with Saddam Hussein's iron fist in Iraq than the Iranian led crazies there now.

28. I'm speechless!

Response: Me too!

29. human rights as well as WMD, Word Movement of Democracy, are just like another WMD, Weapons of Mass Destruction. You can use it to keep the world in peace, or seriously harm the others. Obviously, USA is more interested by the later.

Response: I have no clue what you are even talking about, but I would give 2-1 odds you do.

30. James - how can you say that Americans ignore the abuses at home when those abuses are only known about because they have been exposed by American journalists and turned into causes celebres by them?

Response: I completely agree.

31. Dan, this is a good article that helps put perspective on modern life in China. There are a lot of things that are good about China.

However, just because the US or other countries are not perfect, does this mean China cannot be criticized?

That is the biggest difference between China and the US. We are, more often than not, willing to face our problems head on in a basically free press. True, the US has done terrible things, like all countries. But what countinues to separate us from a large part of the world is the abiltiy to admit our faults publicly and take steps to correct our mistakes. That being said, China does take steps to improve their country, but for some reason lacks the maturity to admit they have a problem in the first place.

The problem I have with China is that they often think there is no problem. I often hear "Why do foreigners care about T1b*t? Why do foreigners care about the Fah L/n Gohng? Why do foreigners care about Tia---en?" The inability to understand why foreigners care IS China's problem. They just don't get it; that until they get past their denial and chip on their shoulder, they will never truly be respected on the world stage.

To be fair, the Chinese people and the Chinese government have created a country where the above answers to Dan's questions are yes. So there is a lot that is good in China. However, I am tired of hearing they same response is that "you beat your wife more than I do so you can't tell me I am wrong." Until more Chinese understand this is a child's repsonse, they will not receive the respect they desire so much.

Response: I agree with many of your points, but you are putting words in my mouth. I never said the US should not criticize, I just said that it is unbelievably hypocritical for us to go after China while ignoring places like Saudi Arabia....

32. Great post. This is what many of us who understand China believe, but are drowned out by the incessant china bashing and demonization by the western media.

Response: Thanks.

33. @ another anon

Your comment about china wanting to exterminate the t1b*ten people really doesn't make much sense. If that were true why invest so much money there? Why give them an education? Why have affirmitive action (easier access to university & employment)? And finally, why exempt them from the one child policy?
Something else to consider is would t1b3t really be free if it was independant? Probably for the privlidged Llama class, but not for everyone else. T1b3t under Llama rule was not the paradise it is made out to be, you either had everything or you had nothing, and this was determined from birth. If you were born into the lower class, there was no chance you could "make it", you were cursed to be that way until the day you died.If you offended your overlords in anyway (or if they were just in a sadistic mood), you could have your eyes gouged out or have your hands, lips, toungues, or even feet cut off. Not to mention the rampant sexual abuse of children in monesteries.

And what of the alleged "cultural genocide"? In the last few centuries up until 1959 T1b*t has produced exactly zero works of literature, and very few works of art (most of these were limited to paintings of monestaries).

Now that isn't to say that China isn't guilty of human rights violations in T1b*t and it certainly does need improving........but is T1b*t really worse off now than it was before? Hardly.

About Saudi Arabia: During the last 30 years the KSA (Kingdom of Saudi Arabia) has been using our petro dollars to finance the spred of islamic extremism in as many countries as possible, all the while the US has turned a blind eye to it. So with that in mind, should we really be surprised that 17 of the 19 9/11 hijackers came from the KSA?

As for the comments about if the House of Saud fell and the current king being a reformer: The House of Saud itself actually is just like the Taliban, and they do enforce strict, literallist interpretations of what life "should" be like. In the KSA women aren't allowed to drive, and only a select few have any jobs at all. The current king has done very little to actually change anything. For comparison, under Hu a great many more things have changed for the better.

Response: I certainly agree with your comments regarding Saudi Arabia. As for T--b*t, I find that issue so incredibly complicated and my knowledge so incredibly limited as to be unable to comment on your comments, beyond pointing out the complexities there.

34. Good article by James Kynge in the Financial Times about how the Western media got 1989 wrong:

http://www.ft.com/cms/s/0/0d3c9c04-5059-11de-9530-00144feabdc0.html?nclick_check=1

Response: It's not a "good" article, it's a GREAT article. Thanks.

35. Dan,
I clearly agree that human rights in China are better than in Egypt or Saudi. There's not many who would argue otherwise. We can also all agree that there's been huge progress in giving people more space to live their lives in China since 1989.
However, I completely disagree with the tone of your piece. Firstly, did you read what Clinton actually said? She didn't "blast" China at all. Its most controversial bit was a line calling on China to "cease the harassment of participants in the demonstrations and begin dialogue with the family members of victims". Basically it calls for the memories of the dead to be respected, which 150,000 people in HK were also doing.
Second, I personally know several people involved in what you advocate as the "private" dialogue. I can tell you it's about as useful as farting into the wind. The Chinese government takes no heed of anything that's said, and harrasses both you and anyone you have contact with. And let's just detail some of that harrassment, such as an old lady being pursued down the street by agents who tell taxis that if they pick her up they'll lose their license (which a friend of mine actually saw during the Olympics). Or lawyers who are abducted from their homes at night and beaten simply for championing rights that have been legislated by the central government. Evil behaviour needs to be challenged everywhere, whether in Saudi or China, and we should not forget the abuses that are carried out on the minority just because the lot of the majority has improved. Constant pressure from outside and, more importantly, within China is precisely why things change.

Response: You either completely misunderstood me or you are trying to oversimplify what I said so you can then torch the straw man you have created. I am calling for the US to talk privately with China and others. I am not even saying we should stop talking publicly. But if we are going to speak publicly about other country's HR, we should do so based on their HR, not our own political expediencey.

I did read what Clinton said and it absolutely was a blasting and it absolutely will be taken as such.

36. It appears that a lot of the complaints and disagreements raised above evidence a failure to read carefully before commenting.

Great political post, Dan.

Response: I love most of all those who effusively praise me AND slam all those who disagree with me. Thanks.

37. its amazing how your own commercial interests get in the way of your principles. Talk about human rights quitely??? Why? This is exactly what the Chinese Gov wants you to do so they cannot be held to account by thier own people. There is only one wat to talk about Human Rights and that is in the open. I dont really care what is going on in other countries.....just what is happening in China

Response: You get the most evil comment award. You have just gone on the record as not caring about the mass killings in the Sudan, the genital mutilations rampant in Saudi Arabia, the beheadings and bombings in Pakistan, the ....

38. I think both arguments have good points. But the issues I believe some readers have are that China has repeatedly denied certain events which can be safely categorized as human rights offences. ‘Maintaining a harmonious society’ is very important to the Chinese government, so it has tended to handle issues in ways the rest of us disagree with. So is it right or wrong not to make a public apology or acknowledgement of some sort? Well we would have to consider the answer from the perspective of the people it concerns. And people in the West forget that culturally, constructive criticism is not very well known or generally used or acceptable in every day Chinese society. The US and other nations receive their share of negative publicity in Western media, Eg., “Iran's supreme leader Ayatollah Ali Khamenei had delivered his own speech, saying the US was still "deeply hated" in the Middle East.” I can see the Chinese going a bit bananas at the public mention of it being deeply hated by anyone within or beyond its borders. So why are issues such as those in Myanmar or Sudan forgotten by the rest of us on a daily basis? I don’t know…But I can tell you why we remember China.. because China is in the media spotlight for many other things (positive ones), like the advancement of industry, its burgeoning cities, etc. etc. The truth is, we should all be questioning each other’s human rights records, engaging in dialogue and taking measures for improvement, because we have all failed in this regard.

Response: I like your last sentence. A lot.

39. I'm sorry I simply disagree with you. Your comparison is completely off mark.

Clinton says something that is really nothing more than
"Fess up, it happened. Let people demonstrate if they want to"

A human right should be universal. In the U.S we believe that the right to demonstrate and the right to express yourself is a basic human right.

Now Obama meeting with Saudi Arabia is a completely unrelated item but you tie them together to make your point; which appears to be that the U.S shouldn't on one hand meet with Saudi Arabia while on the other hand say that China's human rights are a problem.

In the sixties and seventies the human rights abuses within China were atrocious. Now China is much better. If you compare the China of today to the China of the sixties you'll find a much better picture, not a perfect picture but a better one. One of the many reasons why things have improved is because China has engaged with the rest of the world. It opened its borders, the lines of communication opened up, people began traveling, learning and returning to China (and the world has also learned from China). In short China's has become a part of the world.

A strong argument can be made that China is what it is today because it welcomed the world. Specifically it welcomed the world and the world used their influence to cause change within China. Money changes a lot of things.

Saudi Arabia is a different situation mainly because of instead of having a resource of people it has a resource of oil. In short it holds more of the bargaining chips. I don't see the U.S and any other country turning a blind eye to the situation but it has to be handled differently.

If the U.S wants to influence human rights in Saudi Arabia the best it can do is to remove the bargaining chip that Saudi Arabia has (i.e. oil). If the U.S didn't want so much of it we wouldn't give them so much money and allow them to do the things they do.

If you want to make your argument why don't you focus on getting the U.S to change its force of influence. Comparing China to Saudi Arabia and coming to the conclusion that the U.S is embarrassing is a weak argument as it ignores too many factors.

Response: I am not sure if my failure to understand your comment is due to your comment or to the fact that I am about to go to bed....Sorry.

40. That is a really strident post on something more nuanced than you made it out to be. The text of Clinton's speech doesn't indicate anything so harsh as you made it out to be, but if you isolate a few sentences - i.e. take them out of context - it could be seen thusly. Of course this is a judgement call.

Similarly, I was surprised when you called Jackie China a "know nothing self-loathing racist". Those are pretty strong words, but his original speech - which most of the people commenting on could not understand and relied on the dubious translations that the media floats - wasn't nearly as upsetting or shocking to mainland Chinese as it was to "freedom loving" Americans, HK, etc.

Strong words attract readers and posts, but... not every nail calls for a hammer.

You'll note that HK had a massive turnout for a vigil concernin 6/4, and there has been a consistent, impassioned call from Chinese incountry and abroad, political active and the
老百姓, to release the names of the dead. In fact, just recently on Blogging for China, a person who protested at T------n said he'd like to see such a list.

I agree in principle and passion about the U.S. hypocrisy, but I don't agree with your assessment of the gravity of Clinton's speech. Further, China, like the U.S., can do with outside pressure on it's human rights issues.

If all countries were soley left to critize themselves, where would we be? It sounds good to say that an imperfect country shouldn't point fingers, but given that all countries are imperfect... and unfortunately, despite a lot of past bluster and bravado, China has proven time and again that they will respond to outside pressure, especially in the western media.

Response: It must really be getting late because this is the second comment in a row which I pretty much do not understand. BTW, I love the hammer and nail quote and I actually use it on my own firm's website. So your having used it in your comment leads me to believe there is a point in there somewhere and it is just too late at night for me to be able to pull it out.

41. Trying to make nice with others and pointing out human rights issues are not mutually exclusive.

We make diplomatic progress with China too, probably much more than we condemn them. We criticize the Islam world on their human rights all the time, trying to bridge our worlds today has nothing to do with hypocrisy.

Response: You are right about how trying to make nice and criticizing on human rights are not mutually exclusive, but you are making it up about the US having criticized the HR records of individual Arab countries in the same sort of way Clinton just did with China. Maybe it happened, but if it did, I truly missed it and I welcome your pointing it out to me.

42. I think many of you has get the author wrong. The author just exposes the hypocrisy, which none of you can deny. But he does NOT say China should not be criticized or US is not qualified to criticize China. It seems that many of you has, intentionally or unintentionally, left the former part out and keep on stressing the latter to somehow refute the author's point.

China should be criticized and US should take the responsibility to do its job. That's what the author said.

That's not the point the author wants to draw. The point that he wants to draw attention to is what to do with this hypocrisy. To deny it as it doen't matter all, or something can do about it? When someone points out your hypocrisy or you realize your own hypocrisy by yourself, you change your attitude and your way of dealing with people. That what the author is calling for. That's why he is supporting Kissinger, Regan, Clinton way of dealing human rights issue with China. And I second his point.

Response: Thank you, thank you, thank you. You are absolutely right. I absolutely never said the US was not qualified to criticize other countries on HR and I never said China was above criticism. I merely said that if we are to criticize, we have to be very cognizant of the countries we criticize because by going after China while ignoring Saudi Arabia and Egypt (and Sudan and Zimbabwe and Libya and Syria and Yemen, etc.) makes us look completely insincere (which we are) and renders us ineffective.

43. The point is, when was the last time you people saw the western media (especially American) rag on the Human Rights record of Saudi Arabia and the ME? Or when that girl was gangraped by her uncle's buddies in the ME and it got maybe a a day of coverage in the US? The point here is that the US takes every chance it can get to take a swipe at China, whether for "currency manipulation" or for "egregious human rights abuses" and tries to somehow blame all of its economic woes on the trade deficit between China and the US. The coverage of the far more egregious abuses of human rights in the Middle East is a drop in the bucket compared to how often the American media whines and attacks China for something, whether it be T---eman or the currency. Let's face it, America's scared and is showing just how insecure they are, from the top military commanders to the top politicans, they have all admitted that China is the biggest threat to American superiority in the next 3 decades, both militarily and economically. Americans can't stand the fact that someone else can do it better, cheaper, and faster than them. I see two options for the US, keep taking potshots at China and fight against the tidal wave or work alongside China for a better tomorrow. Having been a student of both countries, I would imagine America will continue to be its ignorant and arrogant self and will choose the former instead of the later sealing its own fate.

Response: You are half right. You are right that the US is way too China focused on these things and you are right that the US has remained completely silent in the face of incident after incident of human rights violations in the Arab world (the ME as you call it) that shock the conscious of any decent human being. You ascribe that to fear and I ascribe it to politics. Let's face it, Clinton and Obama are going after China simply because the American people love it and by going after China their own political standing in the US rises.

44. My question is, why do you think it is America's natural responsibility to seek to change others? Why should outsiders seek to change China? Why should outsiders seek to change the US? Why should outsiders seek to change any country?

If you don't like how your neighbor is running his house, should you seek to change him? Should you call him and say "hey, I don't like how you do certain things and you should change"?

The west always believes that it is in a position to lecture, to influence, to change others for their own benefit (so it thinks). I have always wonder why the west is this assertive, preachy and self-righteous. Does this have something to do with your upbringing/culture/racial traits?

From the State Department press briefing linke that someone provided:

"US Wants China to Learn from History and Not Hide from It"

This one cracked me up. Who does the US think it is to tell China or anybody that "I want you to do this and that"?? Seriously, who does the US think it is? Anybody? Imagine the Chinese or Russian Foreign Ministry press briefing that says "China/Russia wants the US to Close Guantanamo Bay Prison Camp and Give Due Process to Its Detainees". haha.

From the same State Department press briefing:

"US Wants to Change the Perception of the US in the World"

Haha, with this kind of assertive, self-righteous, preachy, nagging attitude that never changes, fat chance!

Response: Let's go with your "house analogy." If my neighbor is cooking weird foods, or doing a poor job raising his kids, or buying the wrong car, it's none of my business. But if my neighbor is poisoning his wife, abusing his kids, or stealing from other neighbors, it is my business and I will report him/her to the cops. I do not myself need to be completely perfect to be justified in reporting him/her to the cops.

45. Great post.
And Pffefer, great comments.

Here's a statement made in front of the House of Representatives by Congressman Ron Paul that some of you might find interesting:

http://lewrockwell.com/paul/paul534.html

Response: Ummm.

46. An important point, though I think you possibly did not phrase it in the best possible way. After all, it isn't so much hypocritical as it is simply disingenuous. I agree, often the government's criticism is levied for political support at home and their intentions aren't exactly the most genuine.

I think in the end your core point is sound: if we have a problem with human rights, we need to be fair in how we call out for changes to human rights for human rights sake, and not our own. But framing it "hypocritical" and broadly painting the picture about the Middle East, while peppering your conclusion with a dose of "come on can't you see" seems to have brought out a sizable opposition, misunderstandings, and even red herring arguments, from supporters and not. Words are powerful weapons, but they must be chosen wisely right?

Response: Of course words are powerful weapons and of course I could have phrased things better. So what?

47. I think you are going too far. Obama took it right to the Middle East in his speech in Cairo. Who else has had the guts to put it right in the face of people like that? He has really made me proud as he has dialed down the hypocrisy and started talking in public like he talks to other leaders in private. He told the Israelis to stop the settlements. He told the Arab leaders to respect womens rights. He said the US had made mistakes and he named them. How often do you hear Chinese leaders or leaders of any country doing that? And I thought Hillary Clintons remarks on TAM and China were measured, true and exactly what the US should have said.

Response: You are making it up about Obama having told "the Arab leaders to respect women's rights and the fact that you are "proud" of what he said on that front really makes me wonder. I searched his entire speech for what he said regarding women and here is everything:

-- That is why there is a mosque in every state of our union, and over 1,200 mosques within our borders. That is why the U.S. government has gone to court to protect the right of women and girls to wear the hijab, and to punish those who would deny it.

-- Because we reject the same thing that people of all faiths reject: the killing of innocent men, women, and children. And it is my first duty as President to protect the American people.

-- But let us be clear: al Qaeda killed nearly 3,000 people on that day. The victims were innocent men, women and children from America and many other nations who had done nothing to harm anybody.

-- Make no mistake: we do not want to keep our troops in Afghanistan. We seek no military bases there. It is agonizing for America to lose our young men and women.

-- Palestinians must abandon violence. Resistance through violence and killing is wrong and does not succeed.....It's a story with a simple truth: that violence is a dead end. It is a sign of neither courage nor power to shoot rockets at sleeping children, or to blow up old women on a bus. That is not how moral authority is claimed; that is how it is surrendered.

-- The sixth issue that I want to address is women's rights. I know there is debate about this issue. I reject the view of some in the West that a woman who chooses to cover her hair is somehow less equal, but I do believe that a woman who is denied an education is denied equality. And it is no coincidence that countries where women are well-educated are far more likely to be prosperous. Now let me be clear: issues of women's equality are by no means simply an issue for Islam. In Turkey, Pakistan, Bangladesh and Indonesia, we have seen Muslim-majority countries elect a woman to lead. Meanwhile, the struggle for women's equality continues in many aspects of American life, and in countries around the world. Our daughters can contribute just as much to society as our sons, and our common prosperity will be advanced by allowing all humanity - men and women - to reach their full potential. I do not believe that women must make the same choices as men in order to be equal, and I respect those women who choose to live their lives in traditional roles. But it should be their choice. That is why the United States will partner with any Muslim-majority country to support expanded literacy for girls, and to help young women pursue employment through micro-financing that helps people live their dreams.

It is sad that you and others would be proud of a President who says that women should not be killed and that they deserve an education. Your being of this and your claim that this is really taking it to the Middle East world only goes to show how ridiculously horribly women are treated over there that calling on the cessation of murder is somehow deemed to be courageous. Wow! I call that pussyfooting, but we obviously see things very differently.

47. My, there sure are a lot of apologists for China here. Anyone that thinks China's human rights record is okay hasn't been paying attention to the plight of the laobaixing in China and the terrible regimes China is backing and propping up abroad. China doesn't even pretend to support human rights so its pretty easy to avoid the hypocrite label.

While the US has made plenty of mistakes it owns up to them eventually and has contributed more to advancing human rights than any other country. Lets try to keep a little perspective here. I am an American and I am very pleased with Obama.

Response: It seems that you saw a single criticism against Obama and you felt it necessary to just make stuff up to try to protect him. Wow!

48. It's never about humanrights, stupid, it's about communism.

Response: It is?

49. I dont think that the fact that the US government is hypocritical on human rights should stop us crticising Chinas human rights record. I mean us individually, as citizens, not our politicians.

What has always struck me about this blog is that it gives the impression that China is progressing towards the increasing rule of law, at least in matters of business. This might be true (i dont know as I dont do any business in china). But even if it is true we should not be led to the conclusion that if this is the case the human rights situation in china must also be improving as well. They are two seperate issues.

Response: I completely agree that they are two separate issues and virtually every time I tout the increasing rule of law on the business side, I make clear that I do not know what is happening on the criminal side. I also agree that we as citizens are absolutely entitled to criticize any country for HR, including our own.

50. While in law school, I worked for the Carter Center's China Village Elections Project (see, e.g., http://en.chinaelections.org/about-us.asp ) I was impressed and I think you would be, too. Check it out.

Response: When I was referring to Carter as an idiot, I was referring to him acting as President or World Leader, or someone who has a clue about international diplomacy. I certainly did not mean to imply that he is completely incapable at everything and I am sure he has done a lot of good in the world building houses and other things.

51. The United States and other global powers should address these violations immediately. But they dont they would rather not rock the boat, there are many arms contracts to lose as well as the oil industry, if countries leaders did kick up a fuss about the violations I am sure something would change, torture and executions still go on as the norm. I live in UK and my Childrens Father (James) was horribly tortured for 66 days and nights in a Saudi Prison accused of planting bombs along with other westerners, he was released after 2 years with a deal set up to swap 5 Saudi terrorists from Guantanamo bay, this was a 3 way deal with US UK and the Saudi Government. Our UK Government blocked these men getting any justice in the UK Courts. James lost everything and suffered deeply from PTS disorder and depression as well as the injuries that was inflicted on him in that hell hole, while he was incarcerated the UK Ministers told me lies and warned me not to rock the boat as it would not do us any good to upset the Saudi Royals while our Gov did nothing but left these men to rot knowing the suffering they were going through, deals were still being made and arms sales were booming. even when handed the proof of torture our Government washed their hands of the whole affair. Mary Martini UK

Response: I absolutely believe you and I am sure the UK is equally guilty of saddling up to Saudi Arabia because it has to....

52. "2. Of course I believe in Human Rights." Sweet Mother of All Creatures Great and Small, what does that mean?
As near as I can tell, folks who make such statements believe that all people on our planet (at least) are entitled to a certain body of rights, variously defined but centering around life, basic human dignity and expression, etc.

Now then, where does that come from? Okay x% believe it is divine in origin, let's call that "mystical" - by definition, we can't understand it as it's otherworldly in nature. If you believe in mystical human rights, I'll accept that and not argue with you. But if you're proposing that there are "mundane" human rights, I'm asking you where these come from... and when...

Does Jackie Chan have these human rights? He thinks Chinese folks are not ready for these rights (your earlier post on him). There are many, many, many more Jackie Chan thinkin' folks in China than the few intellectuals living in three cities on the coast of that vast land for less than a hundred years.

In the name of all-that-does-not-suck, don't be drawn in by human rights advocates. There is no mundane right to anything, although we may be witnessing the infancy (if not birth) of a structure capable of granting such a body of rights. My, what a frightening structure that would be... what if it decided to redefine human rights?

By all means, argue what kind of relationship the USA should have with various entities based upon their conduct, as judged by our standards - it's our country's right (as taken and retained by force) as a sovereign nation. But don't sing me some song about how everyone has a body of human rights or the right to universal automobile care, it's just another form of cultural imperialism and, ultimately, an excuse to beat them up and take their stuff.

In the China context, I refer you to the denunciation of the tributary state system as falling outside of international law and the imposition of TREATY PORTS, for crying out loud, and the forced unequal treaties, seizure of, for example, Burma and Korea. From its inception, International Law, such as it is, has been a tool of conquest, and it is no different waving the Human Rights banner.

Although there are many sincere voices for improvements to the human condition in China and elsewhere, efforts to force China whether by political, economic, or military might to effect this change are just more of the same sort of bullying China has experienced since coming into contact with International Law.

Is it so shocking that China might not take these criticisms to heart?

Response: I do believe in HR in the sense that people have certain "inalienable rights." Exactly what rights is certainly open to debate. Not sure I even understand your comment though. Sorry.

One role of China's Supreme Court is to provide guidance on the interpretation of statutes. These interpretations are directed at two fundamental issues. First, Chinese statutes tend to be short and general. Conflicting interpretations of such general wording is possible. Since China has no form of stare decisis, the only way to resolve such conflicts is through guidance from the Supreme Court. Second, most Chinese legislation is quite new and is based on foreign models. Without an historical background in the concepts, lower courts sometimes interpret the legislation in a manner clearly contrary to the intent of the drafter. Guidance from the Supreme Court serves to correct these aberrant interpretations.

In accord with this role, the PRC Supreme Court recently released Some Explanations of Questions Arising Under the PRC Contract Law 中华人民共和国合同法若干问题的解释 (“Explanation”), which became effective on May 13, 2009 and can be found here. The PRC Contract Law arises in virtually every commercial transaction in China. This post will discuss several of the provisions of the Explanation that are of particular importance for foreign companies operating in China.

Explanation 2: The Contract Law at Article 10 provides that contracts can be formed through a writing, orally or through “other means.” The Explanation states that if the conduct of the parties is sufficient to show the parties intended to enter into a contract, then the courts should enforce such contract as a contract formed by “other means.” There are two important points to notice here. First, many of our clients (and many Chinese businesspersons) believe that an oral contract is not enforceable under Chinese law. This is not true. Article 10 of the Contract Law clearly provides that oral contracts are valid and enforceable. Second, there is a general trend in the Chinese courts to limit enforcement of oral contracts. The Supreme Court constantly battles against this trend. This Explanation is an example of this. Lower courts have avoided enforcing contracts arising from conduct, and the Supreme Court is now pushing the courts to expand their jurisdiction to cover such contracts.

Explanation 3: This Explanation provides that if a party announces publicly that it will make a payment to any person who completes a certain task, this is a contract enforceable under the contract law. This provision makes clear that unilateral contracts are enforceable under the Contract Law. This clarifies a difficult issue. The plain wording of the Contract Law suggests that only multi-party contracts fall within the scope of the Contract Law. This Explanation would exclude unilateral contracts of reward or gift. However, such an exclusion is not consistent with other interpretations of the Contract Law and actual judicial practice in China. This Explanation clarifies the matter and makes clear that unilateral contracts are valid under Chinese law. In this regard, note that China follows the German approach to contracts and has no requirement for consideration. Thus, a “naked promise” is enforceable under Chinese law.

Explanation 4: In the case of a written contract, if the parties fail to state the location where the contract was concluded, the court must make this factual determination. As a general rule, the location for the execution of the contract will be the place where the last signature was affixed. Note that this whole issue can (and should) be resolved in the contract by setting out the governing law and the location for dispute resolution.

Explanation 5. In China, when contracting with individuals, it is common for the individual to sign with a fingerprint. This fingerprint is usually taken as the equivalent of a corporate seal used by a legal person. This Explanation states that such a fingerprint will be taken as the equivalent of a signature under seal, even if the party does not actually sign his name.

Explanations 6, 9 and 10: These Explanations are concerned with the issue of form contracts or contracts of adhesion. The Contract Law provides for a series of highly restrictive rules relating to form contracts. Many foreign parties ignore these provisions and then are surprised when their contracts are not enforced by Chinese courts. This often happens even when the contracts provide that they are governed by foreign law, because the Chinese courts take the position that the Chinese form contract rules are a matter of public policy that cannot be waived. Any such waiver will not be enforced by Chinese courts. The form contract rules are similar to consumer contract rules that have been adopted in Europe. However, there is a major difference that causes even Europeans to make mistakes in this area. The European rules protect only consumers. The Chinese rules are much broader and apply to all contracts, regardless of the status of the parties. Since Chinese companies have a strong tendency to use form contracts, these rules are very important within the Chinese system.

The basic form contract rules are as follows:

-- The party making use of the form contract must use reasonable means to clearly identify those provisions of the contract that limit or eliminate its liability to the other party. Upon request, such provisions must be explained.

-- The following provisions of a form contract are void:
* To eliminate one’s own liability.
* To increase the liability of the other party.
* To exclude the important rights of the other party.
* To exclude liability for physical injury to the other party.
* To exclude liability for negligence or intentional damage.
In the event of a dispute in interpretation, form clauses are interpreted against the drafter.

These provisions are contradictory and quite difficult to apply in practice. The Explanation provides some guidance as follows:

Explanation 6: This Explanation states simply that if a form contract meets all of the above requirements, then it is a valid contract. This prevents lower courts from dismissing form contracts out of hand.

Explanation 9: If the party that provides the form contract fails to explain an exculpatory provision and the other party requests that such a provision be invalidated, the court shall comply with such request. This then raises the following question: how is it possible to prove conclusively that an exculpatory provision has been explained? It appears to me that it will be virtually impossible to offer such proof, which suggests that all such provisions should be considered to be voidable under Chinese law. Perhaps the only way to do this would be to provide a written explanation and to require the other party to sign something indicating that it received and read that explanation.

Explanation 10: Any provision of a form contract that fails to comply with the provisions of the Contract Law governing form contracts should be declared void by the court. This applies only to the offending provision, not the entire contract. That is, the obligations remain in place, only the exclusions are voided. Where a party has priced its contract obligations assuming that the form exculpatory provisions will be enforced, the result can be an unexpected and disadvantageous shift in the bargain.

Explanation 19: Debtors in all jurisdictions often seek to avoid collection actions by transferring some or all of their assets to a third party. When this transfer is made at an unfairly low price, this impairs the interest of legitimate creditors. Such a practice in the U.S.is known as a fraudulent conveyance or a fraudulent transfer. Fraudulent conveyance is a common tactic in China and Article 74 of the Contract Law is written to combat such practices. Article 74 provides that if an asset is conveyed to a third party at a “clearly unreasonable price,” the creditor can petition to have the conveyance declared void.

Explanation 19 sets the standard for determining what constitutes a “clearly unreasonable price.” First, the court must determine the market price for the property. This is done based on the government standard price or the price in the local market. Then, any price that is 70% or less than the determined price is “clearly unreasonable”. The creditor needs to prove nothing more regarding the motive for the transfer or the relation of the transferee to the debtor: the proof of an unreasonably low price is sufficient.

Explanation 29: Since it is based on civil law, Chinese contract law is far more flexible with respect to remedies than the common law. China makes no distinction between law and equity. As a result, in addition to money damages, Chinese law provides for specific performance, contract (“liquidated”) damages, deposit, loss of bargain damages and incidental damages. Most importantly, the use of one remedy does not exclude the application of another remedy. For example, if contract damages are not sufficient to compensate for a party’s actual damages, Article 114 of the Contract Law provides that the injured party can request that the court order payment of an amount sufficient to allow for complete relief. However, to prevent abuse, the reverse is also true. Contract Law Article 114 provides that where stipulated contract damages are “excessively higher than actual damages”, the defendant may request a reduction in the amount. Explanation 29 provides that an amount 130% higher than actual damages will generally be considered “excessively high.” However, the burden of proof in establishing the amount of actual damages is on the defendant. In the absence of clear proof, there is a strong tendency for Chinese courts to accept the stipulated contract damage amount.

But Hillary (and Barack), would you please get a damn clue on human rights, would you please stop embarrassing my country, would you please stop being such hypocrites, and would you please stop using human rights as a way to advance your popularity at home. I am referring to the US (on today of all days) blasting China for human rights violations that mostly took place 20 years ago. I say today of all days because today is the day that President Obama is making nice to Saudi Arabia while touting his next day speech in Egypt. I am not saying that Obama should not be engaging in diplomacy with those two countries, but they are about as far from paragons of human rights as one can get. As we lawyers like to say, let's look at the evidence:

1. Saudi Arabia is a country which denies the most basic of human rights to more than half of its population. Women are second class citizans and non-Muslims and homosexuals are denied virtually any rights. Criminals are not just executed, they are beheaded after thier execution. And does anyone seriously doubt that highly placed Saudi governmental figures funded 9/11 and continue to fund terrorism and extremism around the world?

2. President Mubarak is a bit more sophisticated than the Princes who control Saudi Arabia, which means only that he wears nice suits while imprisoning, torturing, or killing anyone who questions his authority or his health or his age or his autocratic lifetime rule or his passing on his "throne" to his son. This country too represses all its non-Muslims, having already driven most of them out and now working very hard to do the same with the rest. To the extent Egypt looks good, it is only because those striving to take over would probably be even worse.

If you are female, where would you rather be, Egypt/Saudi Arabia or China?
If you are a homosexual, where would you rather be, Egypt/Saudi Arabia or China?
If you are practice a religion other than Islam, where would you rather be, Egypt/Saudi Arabia or China?
If you are against the government in power, where would you rather be, Egypt/Saudi Arabia or China?
If you are going to be charged with a crime, where would you rather be, Egypt/Saudi Arabia or China?
If you are a journalist, where would you rather be, Egypt/Saudi Arabia or China?

We all know China is the answer to every single question set out above.

I am not condoning China but I do think that public denunciations of it are counterproductive in terms of effecting positive change there and I think they make us look downright stupid when we make no such denunciations of Saudi Arabia and Egypt.

I would prefer that we talk human rights with China in private, not in public. And if we are going to talk human rights a la Jimmy Carter, can we at least start the conversation with Iran, North Korea, Egypt, Syria, Libya, Sudan, Zimbabwe Saudi Arabia, Yemen, Somalia, or Iraq (yes Iraq, which though our "close ally" is really just your standard Middle East thugacracy). If we did that, the world might actually believe we are doing so because we care and not to gain political advantage at home.

Let's get a human rights policy in place and stick with it, people. Near as I can tell, we still have none.

What do you think?