If I had to pick one area in which my firm has seen by far the most growth over the last six months, it would definitely be foreign companies outsourcing their IT work to China. Paul Denlinger of China Vortex has come out with a “white paper” (where in the hell did that term come from and why did it not exist until a few years ago?) explaining why this is the case. The paper is entitled, “Why Indian Software Companies are Outsourcing to China: Why your next major software project may actually be made in China even if you award it to an Indian service provider,” and to see the full article, go here and register.
The paper’s thesis is that Indian outsourcing companies need to expand and India is not producing talent fast enough to fuel this expansion. “China is the logical service provider of talent and services they need.” According to Denlinger, “when it comes to size and scale of market, China is the last frontier for IT talent and is the only market which can come anywhere near the size of India’s IT pool of talent.” The Chinese government is investing heavily in both hardware and software infrastructure, English language skills are rapidly improving, and China “is now poised to make a great leap forward in the field.”
Denlinger rightly points out Beijing’s emphasis on developing its IT sector:

Economic development in China is largely charted out by the Chinese government, with policy decisions and incentives to encourage new industry development. The latest new Chinese economic policy directives came from the 17th party congress held in October 2007. The new policy directives are aimed at the encouragement of clean industries and services which do not pollute the environment and contribute higher value-added to the country’s exports.
Since software development and outsourcing fall within these directives, they are an industry which the Chinese government now encourages, opening up the Chinese market to foreign investment and participation.

We are finding the securing of government approvals for our IT clients generally easier than for any other industry.
The paper notes that IT outsourcing in China is quickly expanding beyond Beijing and Shanghai to second tier cities like Chengdu, Hangzhou, Guangzhou, Jinan, Nanjing, Shenyang, Shenzhen (I think of Shenzhen as a tier one city), Tianjin, Wuhan, Xian, and Dalian. Not sure if it is a trend or not, but most of our clients lately have been focusing on Chengdu, Wuhan, Xian and Dalian. Just this week, I asked a software company client why it had chosen Chengdu to establish its China outsourcing presence. I expected the client to respond by talking about the low cost there as compared to Beijing or Shanghai, but he talked only about the excellent talent coming out of the universities there.
Denlinger notes how China’s second tier cities have better infrastructure than those in India:

When comparing China’s tier two cities to India’s tier two cities, China’s are infinitely better in education and hardware infrastructure, including roads, water, electricity, broadband access and office space. In addition, the Chinese have been aggressively courting outside investment for years. Investment deals in India take months, even years to negotiate, but in China, as long as the mayor and city government get behind a deal, it can be completed within a very short time. Moreover, since the office buildings are already there, all the investor has to do is focus on hiring and training personnel. Since many of the personnel have already been working in Chinese companies for several years, it is only a question of hiring them and bringing them up to speed quickly enough.

One of the biggest fears I, as a lawyer, have with China’s tier two cities is IP enforcement. Denlinger seems to think this issue has been solved:

For many American companies considering software outsourcing for the first time, many are afraid of China fearing that their intellectual property will be stolen. Knowing this, the leading Chinese software outsourcing firms offer to sign IP agreements with their American customers which are governed by US intellectual property laws.

This is not necessarily a solution. Saying US IP laws will govern says virtually nothing about enforcement. US IP laws governing does not mean a Chinese court will issue an injunction forcing the Chinese company to stop using the American companies IP. Nor does it mean that a US issued injunction will have any impact on China. One of the things we are starting to see is Chinese IT companies forming US companies and then using those US companies to contract with American companies wanting to outsource in China. This seems to give great comfort to the American companies, but the reality is that much of that comfort is false. Unless the Chinese company’s US company has enough assets to matter, entering into a contract with the US arm of the Chinese company may actually reduce the legal protection. This is a very complicated and fast changing area of law and the best party with which to contract should be determined on a case by case basis.
Denlinger sets forth the following ways Indian companies are adopting to the Chinese market:

 Identifying and partnering with a Chinese city government in a second-tier city. In return for investment incentives, they guarantee to create x number of job opportunities for university graduates and recent university graduates.
 Forming a joint venture company with a Chinese city government. This is a much more tightly integrated entity than the previous example which would bind the JV closely to one Chinese city.
 Identifying a leading Chinese software outsourcing firm, and forming a BOT (build, operate and transfer) operation where the Indian company commits a certain value of contracts and the Chinese company commits a certain number of technical persons devoted to contract delivery. At a negotiated point in time, the Chinese company transfers operations to the Indian company.

Almost all of our clients (most of which are American and none of which are Indian) are going into China under the third option set forth above.
I would love to hear what IT people think of all this? Is it really fair to act as though China is going to be the only game in town beyond India? Does that not ignore Russia and the rest of Eastern Europe? What about the IP issues?

Photo of Dan Harris Dan Harris

Dan is a founder of Harris Bricken, an international law firm with lawyers in Los Angeles, Portland, San Francisco, Seattle, China and Spain.

He primarily represents companies doing business in emerging market countries, having spent years building and maintaining a global, professional network.  His work has been as varied as securing the release of two improperly held helicopters in Papua New Guinea, setting up a legal framework to move slag from Canada to Poland’s interior, overseeing hundreds of litigation and arbitration matters in Korea, helping someone avoid terrorism charges in Japan, and seizing fish product in China to collect on a debt.

He was named as one of only three Washington State Amazing Lawyers in International Law, is AV rated by Martindale-Hubbell Law Directory (its highest rating), is rated 10.0 by AVVO.com (also its highest rating), and is a recognized SuperLawyer.

Dan is a frequent writer and public speaker on doing business in Asia and constantly travels between the United States and Asia. He most commonly speaks on China law issues and is the lead writer of the award winning China Law Blog. Forbes Magazine, Fortune Magazine, the Wall Street Journal, Investors Business Daily, Business Week, The National Law Journal, The Washington Post, The ABA Journal, The Economist, Newsweek, NPR, The New York Times and Inside Counsel have all interviewed Dan regarding various aspects of his international law practice.

Dan is licensed in Washington, Illinois, and Alaska.

In tandem with the international law team at his firm, Dan focuses on setting up/registering companies overseas (via WFOEs, Rep Offices or Joint Ventures), drafting international contracts (NDAs, OEM Agreements, licensing, distribution, etc.), protecting IP (trademarks, trade secrets, copyrights and patents), and overseeing M&A transactions.