China lawyers

Yesterday, Dr. Josh Dorfman published the following post on Linkedin:

Dear presidential candidates: You cannot ignore China! Do you disagree with our current strategy? All of it? Are you sure? You need to be sure. Because I haven’t heard much about it from any of you. It’s sort of like you don’t understand how much the US-China relationship will shape the coming decades. Seriously. A lot. Please, please hire China advisers that value evidence over ideology. Yes, like me. And many much better than me, like Shaun Rein, Jessica Beinecke, Kaiser KuoEric Olander, Bill Bishop, Dan Harris, Samm Sacks, Benjamin Shobert, Paul Triolo, Damien MaAnd I’d be happy to recommend many others. You can’t afford to get China wrong. Seriously. Let us help you. Our proud nation will be forever grateful. Kindest regards, An honest-to-goodness American.

This is followed by a bunch of comments, some of may or may not be tongue-in-cheek. As a lawyer, I am not so good at distinguishing — not kidding.

My first thought upon seeing Dr. Dorfman’s post was to leave a comment asking him to remove me from the list because I am not even remotely qualified to serve in the position for which he nominated me. But I didn’t do that because I worried that without a full explanation as to why I am not qualified, my comment would be viewed as false modesty and I hate that sort of thing. So I have remained silent until now. But this being my blog I can go into great detail why my name truly does not belong on this list and then I can very briefly discuss some of the other names on this list and why I find Dr. Dorfman’s post at least somewhat troubling.

Let me begin by apologizing in advance if I burst any bubbles with this post, but let me start by bursting my own bubble by explaining why I am so wrong for this job.

I grew up in a middle class and integrated neighborhood in Kalamazoo, Michigan. Derek Jeter went to my public high school (after me) and President Obama chose my high school in 2010 for his one high school commencement address. I never understood why Black people should be treated differently than White people and I as a kid I was obsessed with the U.S. civil rights movement and I would read book after book about the lawyers fighting for racial justice. Even then and even more so now, good laws and good law enforcement are integral to a just society and this means I have trouble with countries where rule of law is unimportant. 

In college I majored in French and Political Science, with an emphasize on international legal side of that. My international studies mostly focused on the Middle East. In my junior year, I decided economics was my true love but I was too late to major in it and I fell one (elective) class short of what I needed for the major. I went straight to law school where my favorite class was Antitrust Law because it was so infused with economics. I started my career with Chicago mega-firm, where I practiced antitrust law for 3+ years. Then when antitrust law cases started disappearing for political/policy reasons, I shifted from big-case antitrust cases in Chicago to big-case environmental matters in Seattle. It’s a long story how I transitioned from that into international law but I did and here I am.

But what is the “here” part? There is nothing in the above that makes me qualified to provide presidential level expertise. Do I know international politics better than the average American? Yes. Am I an expert in it? No. Ditto for economics, China politics and foreign policy. What is my expertise right now? What do I know so well that I could do a good job speaking extemporaneously about it for hours? Basketball, food, telenovelas, the practice of law, and how businesses can best navigate the legal issues they face when operating internationally. As a lawyer, I am well trained in how to answer questions when I don’t really know the answer all that well, but if you are going to look to me to talk much about anything but the above, you will likely be disappointed.

And I have always been upfront about this. When I was asked to testify before Congress regarding China in 2015, I made clear before doing so that my perspective would be as someone who deals with China every day on behalf of clients, not as a China expert. Earlier this week, before accepting a panel position at the US-China Business Council’s Annual Meeting I insisted on a telephone call where I could make sure they knew that my perspective would be based predominantly on what I had see happen to my law firm’s clients, not on decades of scholarly study. Even this blog’s mission statement makes this clear:

We discuss the practical aspects of Chinese law and how it impacts business there. We tell you what works and what does not and what you as a businessperson can do to use the law to your advantage. Our aim is to assist businesses already in China or planning to go into China, not to break new ground in legal theory or policy.

We want to engage in conversations with, for and about the person who wants practical information on starting and growing a business in or involved with China.

We tell you more than just that the law is this and this is what needs to be done to comply. We discuss how the Chinese laws as written may say one thing, but our experience on the ground in China dictates something else. We tell you when you need to do more than just follow the law to succeed, and we set out exactly what that something else is. We also will sometimes regale you with stories about the Chinese lawyers with whom we work, the foreign and Chinese businesspeople with whom we deal, and even the places we go. There will be times where our lawyer ethical rules prohibit us from naming names, but we will always work to tell the full story and when we cannot, we will usually make that clear and explain why that is the case.

So yeah, I do know China laws for foreign businesses, but not a whole lot else. Nothing in my experience or education qualifies me to be giving high level China policy advice to a presidential candidate. I would even argue that my distaste for those who do not respect the rule of law makes me even more questionable for this sort of position. Why not list one of the many excellent Chinese law professors whose China law knowledge is far broader than mine?

And just a quick aside on a point that may or may not be relevant to Dr. Dorfman’s post (but it seems relevant to me): the Trump administration is using experts to deal with China. The lead US trade negotiator against China is Robert Lighthizer, who is widely considered to be one of the best trade lawyers in the country. I mention this because I find myself constantly refuting the idea that the Trump administration has no clue what it is doing in the US-China trade negotiations. You can disagree with US trade policy with China and I won’t fight you on that. You can say President Trump has no clue on most things and I won’t fight you on that either. But the team negotiating trade terms with China are as qualified as you can get.

Back to Dr. Dorfman’s post. Is it clear none of the presidential candidates have a China advisor or have a presidential advisor who is simply unqualified? I have no idea one way or the other, but I can tell you that if I were running for President, I would not be spending my limited funds on a China advisor. Yes, of course China is important. We all get that. But is it important for a presidential run? Is the voting public clamoring for more information on China? No. Is the voting public clamoring for a change in the United States’ China policies? No. Per the most recent Gallup poll, China shows up as the United States’ #2 greatest enemy, second only to Russia. Most of my law firm’s clients that do business with China believe China does treat foreign businesses unfairly. Those running for President did not get to where they are by not understanding which way the wind is blowing and they no doubt all know that it is blowing against China right now and they are going to either ride that breeze or just ignore it, at least until they are elected.

Not only am I not qualified to serve as a China expert for presidential candidates, many others on the list appear equally unqualified. Some are businesspeople whose China expertise appears to start and stop with how to make a widget in China or sell one there. For all I know they are foreign policy experts, but nothing in their past indicates this. Even worse, I think at least one of the people listed is not a U.S. citizen and holds extreme anti-US views. Someone like this is far more likely to harm a presidential candidate than help.

There are though some people on the list I know who are truly qualified to provide China policy advice and I would be remiss if I didn’t explicitly call out my good friend Ben Shobert as fitting into this category. Ben not only knows China he studies China and thinks about China and he discusses China all the time with others who know and think about China and he also thinks about and is actively involved in local and national and international politics. Ben has even written a very thoughtful book about China. Ben’s China expertise goes well beyond asking how to increase widget sales or how to protect a foreign company’s intellectual property from China; it involves the sort of big picture issues from which a President would benefit. And though I do not know Dr. Dorfman, his credentials and his background lead me to believe he himself rightly belongs on that list even though many of us others on there do not.

Perhaps most importantly, what does it mean to value evidence over ideology when it comes to China anyway? Is Dr. Dorfman saying the evidence on China is disputed, because I don’t think it is. Who seriously disputes that China steals IP and discriminates against foreign companies? Who seriously disputes that China bullies its neighbors? The evidence on these things rises to what we lawyers call a summary judgment level, meaning it is so clear no trial on it is necessary.

Is China an enemy of the United States or not? How should the United States deal with China in the short and long term? These sorts of questions cannot be answered with evidence as they are inherently and necessarily infused with opinion and policy. Is Dr. Dorfman saying all decisions about China can and should be made based on evidence? I am not a foreign policy expert but that does not make sense to me. U.S. foreign policy with other countries is based on things like what is important to our interests and how should we act so as to maximize our interests, not on something like evidence. Does Dr. Dorfman believe the “China experts” on his list are ideology-free, because I am not and I doubt any of the others are either. As for me, with every year I deal with China my negativity towards China increases and this is based both on the repetition of the conduct I see (i.e. cold hard evidence) and on things changing for the worst in China pretty much every year for at least the last five years. I do not get the sense this is the sort of evidence Dr. Dorfman wants from his “China experts.” Is it?

I truly don’t get it.

I am going to link this post to Dr. Dorfman’s post to give him and everyone else on there a free and fair opportunity to respond either here or there.

 

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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. 

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.