October 2, 2008
US Requirement of Cervical Cancer Vaccination for Immigrants Stirs Up Backlash
Part of my law practice includes immigration, primarily for Chinese.
The incidence of cervical cancer among Chinese women, according to a recent study, is relatively low in comparison to world statistics, but is, nevertheless, the fifth most prevalent cancer among women in China.
Section 212(a)(1)(A)(ii) of the Immigration and Naturalization Act requires certain vaccinations -- including polio, rubella, etc. -- of all immigrant visa and adjustment of status applicants. Beginning August 1 of this year, all women aged 11 to 26 who wish to apply for immigrant visas or an adjustment of status must be vaccinated against cervical cancer -- an expensive proposition -- but the decision to make HPV vaccination mandatory has created a good deal of confusion, even among the medical authorities upon which USCIS apparently relied. (Gardasil may cost as much as US$120 for a series of three shots.) Even though the Center for Disease Control (CDC) "routinely recommend[s] the vaccine:"
[...] even some of the CDC physicians and experts who promoted Gardasil [the brand name of the vaccine] in the U.S. say they never intended to make the vaccine mandatory for young female immigrants.
"If we had known about it, we would have said it's not a good idea," said Jon Abramson, who was chairman of the CDC's Advisory Committee for Immunization Practices when the body recommended the vaccine for U.S. citizens last year.
Why?
WSJ answers the question with a snippet from another interviewee:
"We don't want someone coming into the U.S. who hasn't been vaccinated against measles or chickenpox," said Dr. Abramson, who is currently chairman of the department of pediatrics at Wake Forest University School of Medicine in Winston-Salem, N.C. "HPV can only be communicated by sexual contact....This is not something that endangers kids in a school setting or puts your population at risk."
(I find of questionable worth the practice of offering the words of a second interviewee to fill in what the writer should logically have asked of the first interviewee.)
Given the rather surprising storm of controversy -- read the entire WSJ article for the predictable immigrant advocate groups --, it remains to be seen whether and for how long this latest vaccination requirement will remain on the books.
Posted by Richard at 1:56 PM | Comments (0)September 29, 2008
UPDATE: Chinese Regulators Give Green Light to Borrow from Foreign Banks
Further to this Asiabizblog post, WSJ reports:
Chinese regulators said the finances of foreign banks in the country are sound, a message that appeared aimed at reassuring local banks that have been reluctant to lend to their foreign counterparts because of concerns about the U.S. financial crisis.
The China Banking Regulatory Commission said in a statement posted on its Web site late Friday that the Chinese operations of foreign banks it monitors have "healthy fundamentals, good asset quality as well as adequate provisions, liquidity and capital bases."Posted by Richard at 5:10 PM | Comments (0)
Yet Another Email Scam Targeting Lawyers: A Different China Twist
The so-called Nigerian scam turned its attention to attorneys, as we reported in prior posts, at that time purportedly emanating from Hong Kong. Already, in the past year, several attorneys, in California and Georgia, are on the hook for six-figure debts.
This morning, I received another scam e-mail, this time purportedly from the China Luoyang Glass Company. There is such a company, but this e-mail without a doubt does not come from that company. How does one tell that an email business lead is a scam? In this case,
1) The English text appears to be too competent for a Chinese company located in Henan Province. Press releases may be sent out to be translated, but e-mail is generated in-house, and contains errors which are not seen in the e-mail below.
2) My name is nowhere stated. That is because this email was sent out as a mass e-mail to many potential suckers. Chinese who are contacting you personally will address you by name an e-mail.
3) The return e-mail address displays a domain name of aol.com. However, the company uses its own domain name for e-mail. Notice at the company's website that the "contact us" link spawns an e-mail with the company's own domain name as the target, i.e. abc@clfg.com.
4) The properties of the e-mail itself display the e-mail origin: an account called presiden@floyd.nswebhost.com. Hmmm..... Surely doesn't look like it came from the company.
Just five minutes of due diligence removes doubt. This is not a genuine business lead.
Luoyang Glass Company Limited, No. 9 Tanggong Zhong Lu, Luoyang City, Henan Province, China.Posted by Richard at 1:35 PM | Comments (0)Attention: Counsel
Request for Legal consultation services.
This is an official requisition for your legal consultation services on behalf of Luoyang Glass Company Limited.
We are based in China and our activities are the production and sale of float sheet and flat glass and reprocessing of automobile glass. Other activity includes the exploration of minerals.
We got your contact information from your office site. We looked up your qualification and experience from your profile and we think that you are capable of providing legal services as requested.
Please accept my sincerest appreciation on behalf of Luoyang Glass Company Limited in advance, for your willingness to render your services. We look forward to your prompt response to our request.
Thank you.
From: Liu Yixiong
September 26, 2008
AIG Turns to Asia-interest Blogs In Media Relations Program
I wasn't quite sure how to handle this one. Incredulous that a friendly AIG media relations exec would even send it my way. (If they haven't gotten this out in Chinese, Malay, Thai, etc., they are not getting through to their customers directly.)
The text clearly shows that AIG is seriously concerned about counter-reaction in Asia to its recent, most fortunate bail-out. I note in passing that Manulife may purchase AIG's Asian operations. The run on the Bank of East Asia spooked a great many, sending thousands of Hong Kong residents running through the streets to their local BEA branch to pull out cash. [See this image. Imagine, as I have done for you previously, the effect of a run on a mainland Chinese branch. Yes, they have occurred in the past. But a spreading panic is a fearful thing.]
Frankly, I have no opinion as to the safety or danger facing those in Asia holding an AIG insurance policy. Hence, one must take this message either at face value or not at all and I so post it in its entirety. Further investigation is encouraged in those affected.
Rich:Posted by Richard at 6:57 PM | Comments (0)I hope this email finds you doing well. I know you and Asiabizblog have covered quite closely the unfolding financial market news this past week and I wanted to quickly send you some new information.
I want to share the facts with you and your blog’s readers about AIG’s strong commitment to Asia - and to all of our insurance policy holders globally.
AIG’s Chairman and CEO Ed Liddy made the company’s position clear when he reaffirmed that our insurance assets are “sacrosanct.” Take a look at his CNBC interview here:
In addition, The New York State Insurance Department recently released a statement reassuring policy holders about the security of their AIG policies. According to the State of New York Insurance Department, “AIG’s insurance companies are financially strong and fully able to honor all policyholders' claims.” The link to the press release can be found here:
Yesterday, Joel Ario, the Insurance Commissioner of the Commonwealth of Pennsylvania released a statement declaring that his department’s most recent examination of the AIG Companies that are domiciled in Pennsylvania are financially sound and that policyholders’ insurance policies are safe. The link to that press release can be found here:
Additionally, as you most likely have read, AIG has signed a definitive agreement with the Federal Reserve Bank of New York. This important step allows the company to move forward in implementing our strategic initiatives
Finally, I know your readers are following this story literally minute by minute as it unfolds. I’ll continue to post more information in the days and weeks ahead.
September 25, 2008
Rumor: China Banking Regulators Tell Local Banks Not to Lend to U.S. Banks
The China Banking Regulatory Commission (CBRC) has denied a report that it instructed local banks to halt interbank lending to U.S. banks.
"The CBRC has never, through any channel, issued a statement or told domestic commercial banks not to lend to or borrow from U.S. financial institutions," the China Banking Regulatory Commission said in a statement on its website.
CBRC Vice Chairman Wang Zhaoxing told Reuters that a report in the South China Morning Post, which said the agency had told Chinese banks to stop lending to U.S. banks in the interbank market, was not correct.
"If they are not willing to lend, this is the normal practice of risk control," said Wang, speaking on the sidelines of a major banking conference.
The SCMP report is here (paid subscription required).
Posted by Richard at 2:25 PM | Comments (0)September 22, 2008
Doing Business with North Korea Seminar To Be Held in Beijing
Event: Doing Business with North Korea
Where: Capital Club, Beijing
When, Sept., 29, 18:30 (6.30pm)
For further information, click this.
Posted by Richard at 5:14 PM | Comments (0)September 19, 2008
U.S. to Employ Chinese-style Financial Regulatory Techniques
It wasn't too long ago when American officials excoriated PRC banking authorities for establishing asset management companies to take the nonperforming loans off of the books of technically insolvent banks and to recapitablize them. A ruse, it was shouted to the rooftops, to clean up the books of banks desperately in need of a listing on worldwide stock exchanges, but prevented by numerous "technical" deficiencies. These asset management companies have performed badly: perhaps 20% capital recovery.
With the announcement of a plan involving "sweeping reforms" to "take bad assets off the balance sheets of financial companies," we see basically those same American officials employing -- in essence -- a similar technique. One cannot believe that the cash recovery will be as poor, but who will take the hit? The American treasury. This suggests that the next American President will be forced to raise taxes.
John McCain has just announced his belief that treasury has gone too far in its rescue operations. I'll provide a link as soon as I get one.
US University Researcher Convicted of Export Violations -- with a China Connection
[Editor's note: Doug Jacobson has graciously provided the text of today's post. I recommend readers visit his International Trade Law News blog, well-written, informative and worth your time. Doug Jacobson is a partner in the Washington, DC office of the law firm of Strasburger & Price (www.strasburger.com) and serves as chairperson of the firm’s international trade compliance practice. Doug has extensive experience representing companies in a wide range of international trade regulatory and enforcement matters, including dual-use and defense-related export controls, trade sanctions, customs, Foreign Corrupt Practices Act and and antiboycott issues. Doug is also the founder and editor of the International Trade Law News blog (www.tradelawnews.com).
In April, I discussed the stunning connection between American export law and sensitive university research that could lead to criminal liability and even possible jail time. No, it is not a hypothetical. A professor and researcher at an American academic institution, in this case, the University of Tennessee, assigned sensitive military technology research to a Chinese graduate student, with disastrous consequences for the professor.
The Air Force did not like the idea of a Chinese national working on top-secret unmanned drone technology. The Department of Justice prosecuted the research student's professor, who had assigned him his work. The professor was convicted this month. What next? Our guest author today takes up the story from there.]
Attorneys for Convicted Professor File Motions for Judgment of Acquittal and New Trial
The attorneys for former University of Tennessee Professor J. Reece Roth, who was recently convicted of violating the Arms Export Control Act (AECA) and wire fraud, have filed motions for a judgment of acquittal and a new trial under Rules 29 and 33 of the Federal Rules of Criminal Procedure. Such motions are routinely filed by defendants who have been convicted in order to set up the legal issues for appeal, but are rarely granted.
Summary of Arguments for Judgment of Acquittal
Roth's Motion for Judgment of Acquittal is based on two grounds. First, defense counsel claims that the data generated by the contracts that Roth and his graduate students were working on was neither a “defense article” or “technical data” relating to a “defense article” as those terms are defined in Category VIII of the United States Munitions List (USML). Second, defense counsel contends that the evidence presented in this case was not sufficient to convict Roth for willfully violating the AECA.
The crux of the defense argument is that the certifications made by the Directorate of Defense Trade Controls (DDTC) regarding the classification of the data and other items that Roth was working on and exported to China were incorrect. For example, the Memorandum of Law in Support of the Motion for Judgment of Acquittal notes that the DDTC staff member that made the certifications initially determined that "none of the items which were subject to the Indictment were included on the USML and thus were not defense articles or technical data relating thereto." Specifically, counsel stated that the defense articles and technical data at issue in this case were not "directly related to an aircraft specifically designed, modified, or equipped for military purposes," the test for determining whether an item is subject to the jurisdiction of the ITAR or not.
Defense counsel noted that it "is fair to say there was less than unanimity in the proof regarding the particular defense article that the data and [defense article] fell within, although the jury was charged and returned a verdict premised solely on Category VIII."
In addition, Roth's counsel contends that the provision in the AECA that precludes judicial review of the "designation of items as defense articles or services" (22 USC 2278) does not exempt certifications from the State Department that particular articles or technical data are within USML Category VIII. In addition to discussing a few cases where the courts appeared to exercise judicial review of State Department certifications, counsel also noted that a "construction of section 2778(h) that would preclude judicial review of the adequacy of the evidence that an item constitutes a defense article would violate the Constitutional due process requirement that criminal statutes provide 'fair warning.'"
Finally, Roth's attorneys stated that the evidence presented in this case was insufficient to establish that Professor Roth acted willfully and with specific intent, the requirement for a conviction under the AECA and wire fraud statutes. For example, it was noted that in addition to there being considerable uncertainty as to whether the defense articles and technical data were defense articles or not, Roth's "efforts to comply with his inaccurate understanding of this complex regulatory scheme demonstrate a lack of understanding of the law that persisted throughout the time period in question."
Summary of Arguments for New Trial
In arguing for a new trial, Roth's counsel claimed that a new trial should be granted because the trial judge did not include in the jury instructions a proposed instruction on ignorance of the law and the file to include such an instruction "resulted in prejudice to the Defendant." The proposed jury instruction read as follows:
In order for the government to show that Defendant violated the Arms Export Control Act, it must prove beyond a reasonable doubt that Defendant knowingly and willfully violated the Arms Export Control Act. Defendant acted knowingly and willfully if he knew he was unlawfully exporting technical data on the United States Munitions List. An innocent or negligent mistake by the Defendant is insufficient to support a finding of a knowing and willful export. So if Defendant was ignorant of the requirements of the Arms Export Control Act or was aware of the requirements of the Act but believed that he was complying with those requirements, he did not act knowingly or willfully, and you must find him not guilty.
Citing several cases as precedent, defense counsel argued that because ignorance of the law is a defense to the AECA, the issue should have been put before the jury and failure to do so is grounds for a new trial.
Needless to say, the U.S. Government will present a different version of the law in their responses to Roth's motions. Assuming that these motions are not granted and the convictions are appealed by Professor Roth, the appellate decisions could lead to important legal precedent and clarification on these issues for companies and academic institutions subject to export controls.
Author's Note: Thanks to a loyal reader for providing copies of the motions filed by Roth's counsel.
September 18, 2008
China Investment Corp. Offers to Raise Stake in Morgan Stanley to 49%
Bloomberg TV has just announced Morgan Stanley refused CIC's offer to raise its stake in the bank to 49% from 10%, preferring to remain "independent." More on this as the day goes by.
[Update: 10.14am EST -- Bloomberg. This article maintains that talks continue, in contradiction to the report on Bloomberg TV.].
[10.18 am -- Bank of China has just announced in Paris (for this event) that it is not in talks and will not buy a foreign bank. No text available at this time.]
[10.22 am -- Report: "Morgan CEO John Mack told Citigroup chief Vikram Pandit that "'we need a merger partner or we're not going to make it.'"
[10.26 am -- China Investment Corp. thruogh Central Huijin Investment Co to buy stakes in major Chinese banks to support the financial sector.]
[10.34 am -- Bloomberg TV reports that CIC / Morgan talks are still in process. The substance of the issue: CIC's offer will substantially dilute equity. A purchase by Wachovia will pair the Morgan with an entity that doesn't offer the stability of a Bank of America.]
Comment: Morgan Stanley's independence in China will be severely constrained if the Chinese government controls such a substantial stake.
September 17, 2008
3 Chinese Banks Hold US$297.4M in Lehman Debt
Following up to yesterday's post, the International Herald Tribune reports:
Three Chinese banks hold a total of US$297.4 million in Lehman Brothers bonds, two of the banks and a state news agency said Wednesday, but analysts said China's total exposure to the failed U.S. investment house should be limited.
Industrial & Commercial Bank of China Ltd., the country's biggest state-owned commercial lender, holds US$151.8 million in Lehman bonds, the Xinhua News Agency said.
Bank of China Ltd., the country's No. 3 commercial lender, said on its Web site it owns Lehman bonds valued at US$75.6 million. It said that includes holdings by its Hong Kong and foreign branches.Posted by Richard at 7:52 PM | Comments (0)
September 16, 2008
Lehman Brothers -- Many Asian Banks Among the Top 30 Creditors
A respectable showing of Chinese and Japanese creditors, along with the amount claimed, now vying for the assets of bankrupt Lehman Brothers.
Totals (in US million) by institutional location:
Japanese 1,521
Hong Kong 275
Taiwan 110
Singapore 93
China 59
Korea 46
Here's the original bankruptcy filing.
Posted by Richard at 9:11 PM | Comments (0)Prestigious Sponsorships and Exhibition Opportunities at the ABA Section of International Law Conference, Spring 2009
[Editor’s Note: I’m pleased to be a member of this year’s ABA Planning Subcommittee for this event .]
One of the most prestigious legal sponsorship and exhibition opportunities awaits your law firm or corporation: the ABA Section of International Law Spring Meeting. Download this file now to learn more.
The 2009 Spring Meeting is a “Must-Attend” meeting for international lawyers to be held at the Fairmont Washington, DC. Over 1,000 international law practitioners will gather at this 5-day event to take advantage of a unique opportunity to network and more than 70 cutting-edge CLE programs.
The meeting is a superb opportunity to increase your name recognition among the crème of the international bar over the course of a week. Here are only two of the many sponsorship opportunities:
As DIAMOND Celebration Sponsor
(subject to availability)
• Your firm will be the primary sponsor of the Wednesday Breakfast, the official opening of the Spring Meeting, and;
• A USB drive with name and logo recognition and a “Save the Date” postcard will be sent on your firm’s behalf to over 22,000 ABA International members.
Sponsor a CLE program track such as
• Dispute Resolution/Litigation
• International Trade/Customs
• Corporate/Transactional
• Public International Law
• Regional
• Rule of Law
• Taxation
• Regulatory
…and, other benefits, receive recognition on a variety of Spring Meeting promotional materials used for marketing programs to over 30,000 ABA International members and other interested individuals.
Download this file now to learn more.
As we celebrate the 130th anniversary of the Section, we also acknowledge over 22,000 members which include over 5,400 private practitioners, 1,200 in-house counsels, over 800 U.S. lawyers living abroad, and more than 1,000 non-U.S. lawyers in 88 countries.
American Bar Association, Section of International Law
2009 Spring Meeting, Washington DC
April 14-19, 2009
September 14, 2008
Thank you, Ladies and Gentlemen, I'll be here until Doomsday -- Jokes from Pyongyang
For a good laugh, read these jokes collected in the DPRK, courtesy of Radio Free Asia and North Korean Economy Watch. I've added two in the comment area.
Posted by Richard at 7:40 PM | Comments (0)September 10, 2008
Making Money in Pyongyang -- This is No Hallucination
On the subject of North Korea, it isn't widely known that some Westerners are actually in residence in Pyongyang doing business there -- profitably.
Well, not many. Nick Bonner, whom I met in Shanghai several years ago, may be in the black by now. One remembers, if one read this weblog several years ago, of the well-paid Milanese winner of an Italian national pizza competition, swept off his feet and brought to Pyongyang for an excellent salary to work as Kim Jong-il's pizza chef.
But here, courtesy of North Korean Economy Watch, we read a fascinating interview with Felix Abt, formerly Asea Brown Boveri (ABB) rep in the DPRK, who now represents in his own agency European multinationals with a claimed annual sales of several USD millions:
Klaus-Martin Meyer: Felix Abt, you came as country director for the ABB group to North Korea in 2002 where you have been resident since. ABB closed its representation just about 2 years after your arrival but you have successfully been involved in a number of other businesses since then. What happened?
Felix Abt: At the time the Swiss-Swedish ABB, a global leader in power and automation technologies, not only faced huge asbesto claims in the United States but also large debts versus a tiny equity that culminated then into a matter of life or death for the group. To survive it decided to immediately save 800 million USD cash expenses, making the closure of a number of factories and offices around the globe unavoidable.
Though we at ABB Pyongyang fully covered our cost through sufficient sales with a good margin the funds and other resources necessary to set up the planned joint ventures I had been negotiating, however promising they may have become, were definitely not available any longer. In addition the pre-contracts I secured for ABB – including one for a 9-digit USD infrastructure project I signed at the dismay of the competitors in presence of the Swiss foreign minister, the Swedish ambassador and the North Korean minister of power and coal industries – would have required even more substantial funding. Given ABB’s critical financial condition...
ABB Pyongyang? Already I am green with envy. What an adventure!
To continue reading click this.
Posted by Richard at 7:26 PM | Comments (0)September 8, 2008
Is Kim Jong-il Dead?
No one is surprised by the use of look-alikes in tyrannies (Saddam Hussein, Mao, Stalin, et al). But would a look-alike continue to operate five years after the death of the tyrant?
Such is the claim of Toshimitsu Shigemura (重村智計), veteran Korea-watcher at Waseda University. His claim is that Kim Jong-Il died of diabetes in 2003. Read it for yourself. His book (in Japanese) in which he makes the claim may be found here.
An interesting comment here from In From the Cold.
This, from the days when there was (perhaps) some food to be processed in North Korean factories, from the valuable repository of such videos, the Songunblog:
Lending credence to the illness/imminent death/already deceased rumors, let's not forget that just a year ago, Kim Jong-Nam, one of Jong-il's sons, returned to Pyongyang and a relatively executive Intelligence position, after apparent disfavor and father-imposed "exile." In other words, in preparation for the struggle for power to come?
Posted by Richard at 1:36 PM | Comments (1)September 6, 2008
Event: Chinese Investment in Europe
EU Magnets for Chinese Companies: Refuting the Myths, A Research Workshop
Wednesday 17 September 2008, 10.00 – 16.00
Chatham House, 10 St James's Square, London SW1Y 4LE
Programme
09.30-10.00 Registration
10.00-10.05 Welcome and introduction
Paola Subacchi, Chatham House
10.05-11.35 Session 1
The Rise of Chinese Firms in Europe: Motives, Strategies and Implications
Presenters: Stephen Thomsen, Chatham House
Françoise Nicolas, Ifri
Discussants: Eric Thun, Saïd Business School, University of Oxford
Chair: Paola Subacchi, Chatham House
11.35-11.45 Coffee Break
11.45-13.15 Session 2
Mapping Chinese FDI in Italy: A European perspective
Presenter: Roberta Rabellotti, University of Piemonte Orientale
Discussants: Lawrence Saez, SOAS and Chatham House
Simona Iammarino, University of Sussex Brighton
Chair: Vanessa Rossi, Chatham House
13.15-14.15 Lunch
14.15-15.45 Session 3
Chinese investments towards Europe: Decision-makers, strategies and decision-making processes
Presenters: Axel Berkofsky, University of Milan
Bernt Berger, University of Hamburg
Discussants: Kerry Brown, Chatham House
Xiaotong Zhang, MOFCOM
Chair: Guy de Jonquières, Chatham House
15.45-15.50 Concluding Remarks
Paola Subacchi, Chatham House
Gianmaria Ajani, CASCC and University of Turin
RSVP: Amalia Khachatryan
International Economics Programme Administrator
Chatham House
10 St James's Square
London SW1Y 4LE
Tel: +44 (0) 20 7314 3648
Fax: +44 (0) 20 7957 5710
E-mail: akhachatryan at chathamhouse.org.uk
www.chathamhouse.org.uk/internationaleconomics
September 4, 2008
Rich Kuslan Available for Speaking Engagements: China Speakers Bureau
I'm pleased to announce my availability for speaking engagements and my inclusion in the China Speakers Bureau, run by Fons Tuinstra, editor of the China Herald. Speakers Fons currently represents include Bill Overholt, Howard French, Shaun Rein, Tom Doctoroff and others. I'm happy to speak at your venue in English or Mandarin.
Recent engagements of mine have included the American Bar Association, International Law Conference; World Trade Week New York; and the Chinese American Library Association. To hear what I sound like, listen to any podcast on this site.
Posted by Richard at 1:37 PM | Comments (0)September 3, 2008
合夥做生意最好白紙黑字 -- An Article in Chinese for the World Weekly
[Editor's Note: I continue to write for Chinese Americans about legal issues relevant to their communities. The article below -- on how desperate things can become when a business partnership dissolves -- was published in the August 31, 2008 print issue of World Weekly (世界周刊）．]
法律之窗 ／柯亦清 (Richard Kuslan, Esq.)
生意興旺時，華人合夥人意見不同，就通常能夠自己解決。在商業環境裏，合作的確不是爲了慈善的動機：是確保各自利益的手段。雙方認爲為了小事情而爭論會浪費賺錢的寶貴時間。雙方最好盡量合作。
可是，小公司成立后卻不見得一定會成功。按照美國中小企業局(Small Business Administration)的發表研究，將近三分之一的小公司成立后兩年就會停業。成立后四年只有44%還能生存。
在糾紛演變嚴重，合夥人爲了保護自己經常會放棄溝通而進入「打仗狀態」， 這樣就提高解決衝突的複雜性。何況在生意失敗的情況下！此時因爲雙方盡力挽救資產或減少個人須負擔的債務，合夥人相互指責使得感情分裂更激烈。某一方決定通過法律的途徑來解決問題，會有效嗎？
因爲跟美國法律接觸不夠多，很多華人對美國法律體系懷抱著一個理想：法律是客觀的萬能武器，用起來保證處罰邪惡的敵人並且會讓人得到適當的賠償。偶爾有如此積極的結論。盡管如此，總可以經過法律途徑而獲得該得到的觀念是不怎麽符合事實的。
律師甲和律師乙為客戶打官司。律師甲的目的是，提交足夠的證據説服法官按照可適用的法規接受他的賠償請求。對方的律師乙也是同樣的目的。法官可以接受甲或乙的説法或憑他自己的看法下判決。在這種情況下，任何一個律師都向客戶難以保證結果。假如由6到12個人當陪審團下決定更難預測結果。所以，律師只能以他的知識與經驗而為客戶盡力。在一般情況下，雙方出庭前能夠和解就省時間，金錢和痛苦。
在美國組成公司的華人合夥人自然地以中國人的生意模式營業：非正式，口頭上交易多，以現金爲主要付款方式，缺少書面記錄等，這種做法導致證據遠離完善的情況。有些人以爲把自己的看法說給法官聼就可以得到好結果，但口頭的解説不夠：法院要求的是更有説服力的證據。因此，沒出庭過的人認爲絕對成功的案子並不一定能成功。
證據是什麽？其範圍相當廣泛，譬如，合約紙或電子收據；物體和抽象的個人財產（像音響系統或電子部件的專利），本人當證人或第三人(專家)的説辭，等等。如果律師無法向法官提交有説服力的證據又怎麽能夠證明他的説法呢？
非正式的生意模式比較方便簡易，省掉日常的麻煩。除外，也有其他不單純的用處，包括：隱藏職員的非法移民身份，逃稅漏稅等。因此緣故，生意興旺的時候，對於未來可能會發生的壞事華人基本上不在乎。 向華人提起此可能性，華人通常輕鬆地回答：「沒事就沒事了。有問題，到時候再説吧。」
華商的世界觀很簡單：因爲誰也無法預料未來，所以問題出現才解決。設想營業計劃來預防可能不會出現的難題是大浪費。進入美國法庭的環境之後，一般人會後悔這個想法。
打官司時中國人生意模式所引起的困難，我們以兩個假想的故事來解釋一下「預備」的價值。
缺少書面記錄：投入資產的證據沒了？糟糕了！
組成公司之前，合夥人商量而決定各自投資的額度。可以投入的資產取決於州法的制定與合夥人互相之間的承諾，包括許多種類，如金錢、個人財產、不動產或職業服務等。譬如說，合夥人王和陳一起開公司。王和陳簽的書面營業協議制定各自投入一百萬元。在理論上，王和陳每個人擁有公司50%的股份 。按照營業協議，利潤和虧本照股份分配。王和陳兩個人都認爲可以分享利潤的50%，虧本的話也同樣的情況。
（營業協議是什麽？合作夥伴簽署營業協議來記錄營業方面的同意，包括資產投入，營業方式，分解程序等重要題目。不少商人根本沒有任何書面營業協議。口頭協議卻又缺簡樸。沒有書面文件好像最自由，可以隨時調整夥伴的協議，不過風險很大。到時候有衝突的話，就難以證明口頭協議的内容。）
我們來進一步了解王和陳的實際資產狀況。其實況不如預期，就與書面營業協議已非常不同。王開了25萬元的私人支票直接投入新公司的支票帳戶。陳投入10萬元現金，但他的方法不正規。因爲公司辦公室需要裝修，陳叫他親戚從國外銀行的私人帳戶直接匯錢到裝修商戶頭來付清債務。陳在美國也有一棟小倉庫，同意投入給公司。陳知道倉庫的價值為10萬元。王不了解不動產市場，但因爲資本不是公司非常需要倉庫的投入，就受騙而同意40萬的價位。不動產市場最近非常不景氣。前營業協議後，兩個合夥人再也沒有投入一毛錢進去。合夥人疏忽履行協議。
按照營業協議，陳和王每個合夥人具有50%的股份。按照以上的投資數目，這就不合實際。在表面上，王的投資達到25萬元而陳的投資高達50萬，所以按照實際資產投入，王可能只有三分之一的股份，而陳就又三分之二。
可是，王的投入的證據比較可靠。陳則很難證明10萬元的匯款原來是他的資產。對於倉庫來講，也可能有點問題。當陳把倉庫投入公司的時候，市場價就不一定達到40萬元。除了予人欺騙的把柄以外，陳或王怎麽能夠證明這筆資產的價值？可能必須要通過商業不動產的專家估價師來評估才能搞定。公司股份的支配比率到底如何？利潤怎麽分配？債務該誰負擔？
有關職員的身份記錄：聘請非法移民，老闆本身要不要負責？
某華人公司爲了減少工資，逃避向政府繳收入稅加以免除支付州法定的勞動賠償費，聯邦醫療保險稅（FICA）等的負擔，就決定聘請非法移民。兩個合夥夥伴梁和董自己身份已經合法了。他們決定不保留任何有關職員的書面記錄，且用現金支付工資，認爲因此就不會有事。梁和董同意只要把非法移民的身份隱藏起不告訴任何人，就好了。据他們的判斷，若職員發生事情的話，絕對不會影響他們兩個合夥人。
按照非法移民計劃公司安全地營業一段時間后，兩個人聽説有賺外塊的妙方法：幫人家申請勞動簽證。董的親戚有朋友在大陸認識蛇頭。親戚不是律師，但自己在中華街創辦了移民簽證事務所，好像很賺錢。兩個人就開始拍賣公司的職位，收每人一大筆錢。與聯邦勞動局規格相反，他們認爲從海外過來的人沒有任何學歷或工作經驗也無所謂。夥伴決定僞造重要文件，認爲誰也不會發現。他們不承諾任何人會有任何保障。如果得不到簽證不會是他們的問題。梁和董很有信心一切都會順暢。兩個人処得很好，以爲互相之間絕對保密。
非法移民廖在公司工作一段時間，對待遇和安全情況不滿。提出抱怨時，合夥人很快就把他解雇了。可惜的是，輕舉妄動的廖氣得快吐血了，向地方警察局和移民局打小報告誇張梁和董又實行非法計劃又進口毒品，使得政府開始調查。“絕對不會有事”很快就變得嚴重了。由於密告事由，梁和董的計劃就由此導致入罪。
按照聯邦移民和勞動法再加一般州法，公司不能不保留有關職員的記錄，並且必須要繳支法定的稅．９１１事件后，勞動與移民的監管更拉緊了。各老闆爲了保護自己的利益，責怪對方才是黑手。儘管過去很順暢，一旦發出嚴重問題，整個情形顛倒了。證據稀薄，哪個合夥夥伴也難以駁回政府的控告。在這種情況下公司能活多久呢？
結論
爲了保護自己的利益，華人在美國必須採取美國人也必得不疏忽的預備措施。譬如：
• 商量並達成合夥人書面營業協議，了解並履行條款内容。協議有變化時，條款照樣修改。
• 按照法律的要求和自己最明智的判斷，保留個交易的書面記錄，包括資產投入，消費，收入，職員信息等。
讀者該為未來採取保護性的措施。其實，中國古時候最出名的將軍也照樣建議了：
夫未戰而廟算勝者，得算多也﹔
未戰而廟算不勝者，得算少也。
多算勝，少算不勝，而況無算乎！
吾以此觀之，勝負見矣。
《孫子兵法》計篇第一
September 2, 2008
Ambassador's IPR Roundtable, Beijing -- Date Announced
From the Embassy circular comes the following announcement:
SAVE THE DATE: November 6 and 7, 2008
The Ambassador's IPR Roundtable, Beijing, China. Ambassador Clark Randt’s seventh and final annual IPR Roundtable will be held in Beijing on Thursday and Friday, November 6 and 7.
This year’s focus will be on new Chinese IPR legislation, resulting strategies, and the implications for U.S. businesses. In June, China announced its National IPR Strategy. On August 1, China's new Anti-Monopoly Law took effect. Revisions of China’s patent, trademark, and copyright laws are all underway. The Sino-U.S. Joint Commission on Commerce and Trade (JCCT) IPR Working Group is re-convening.
The Ambassador's IPR Roundtable will provide a forum to examine these and other issues. Registration information and agenda to follow.
Posted by Richard at 7:49 PM | Comments (0)August 27, 2008
American Bar Association Gives Go-ahead to Legal Outsourcing
The ABA has issued an ethics opinion dated August 5 and apparently unpublished, but procured by the New York Law Journal.
Asiabizblog will post on this shortly.
Posted by Richard at 5:39 PM | Comments (0)August 26, 2008
Scam on Attorneys Claims U.S. Victim
The scam I wrote about here has found success with at least three attorneys, one of whom may now be in the hole for $200,000:
Atlanta securities lawyer Gregory Bartko said he is the victim of an Internet fraud scheme that is apparently targeting law firms throughout the country and the banks where lawyers have their escrow accounts.
Read about it here. This article should be standard reading for any attorney doing business internationally.
August 25, 2008
Technology Heads-up -- An Interview with Wayne Turmel
What's a webmeeting? I've been corporate and know just how tough it is to hold worthwhile meetings with participants on two or more continents. Wayne Turmel, President of greatwebmeetings.com, offers a service that makes things a lot easier.
August 21, 2008
Famous Chinese Film Director: Western Workers are Lazy -- Podcast
Chinese Film Director Zhang Yi-mou teaches Westerners a thing or two about the laziness of Western workers. A lesson about opinions commonly held by Chinese in business.
Famous Chinese Film Director Expresses Commonly Held Opinion of Western Workers: Lazy! Therein Lies a Lesson for Business Managers
Chinese, as we well know well, are supremely capable of putting in long hours. Indeed, suffering quietly is a badge of honor. Hong Kong Chinese work even while asleep (or so it seems). Well, they do often pass the evening in the office or factory. Taiwanese follow as close runners-up only because they are known to give up Sundays to spend with family. I've not found Mainland Chinese workers to be self-starters, but generally resist little when compelled by circumstance (poverty) or a berating management. Pleasure or entertainment is, without doubt, not a focus of Chinese existence. Does the quality of life suffer as a result these profoundly held ideas?
Americans, to the contrary, are no longer willing to suffer much -- the Protestant work ethic has just about gasped its last breath. We would rather be safe, fat and happy. Americans believe they work long hours, but generally maintain a 5 day schedule lasting perhaps 10 hours. Lazy? Perhaps...
Lazy!
Zhang Yi-mou（張藝謀）, film director and Olympic Impressario, describes to Southern Weekly (南方周末）the frustration of working with Western artists, whom he had the displeasure to direct:
南方周末：外国人还感叹，看开幕式之后，至少他们在评论中使用的语言，想象不到还有谁用这样的资源，制作这么大一个作品出来，他们在对你的采访提问中有这样的误会或疑问吗？
张艺谋：他们都没有说这个，他们只是觉得——其实我觉得我们是两种东西在一起，1+1产生的效果，就是人的表演。我老跟他们开玩笑说，说我们人的表演是天下第二，天下第一是朝鲜，就是整齐到了一个相当的程度，整齐死了！就是这种传统的整齐的动作带来的美感，这一步我们中国人能做到，中国人通过严谨的训练、刻苦的训练能做到。像那活字模，那完全是口令，代表一听口令，完全做到，像电脑一样，外国人很惊叹，这是我们中国人的志气，我们把人的表演通过我们的努力和聪明能做到这一步，这是人的表演，这一步是很多外国人做不到的。我排过西方的歌剧，那个麻烦呀！一个星期只工作四天半，中间要喝两次咖啡，不能加任何的班，稍微有一点不舒服都不行，因为人权，那个排练能把人急死，哎哟！一个星期，我都觉得咱早就能把它排整齐了，他有时候队伍还没站整齐。你还不能说谁，他是有组织的人，也很严格的，就是明儿“哗”给你换一批人来了，你刚有点熟了，又换一批。他都是有各种制度，工会制度。咱们不是，咱们刻苦，能吃苦耐劳，咱的训练一个星期下来绝对是他两个月的层次，所以我们可以把演员做到这样的表演质量，我觉得是除了朝鲜，世界没有一个国家能做到。
The Washington Times translates this interview, in part, thus:
"North Korea is No. 1 in the world when it comes to uniformity. They are uniform beyond belief! These kinds of traditional synchronized movements result in a sense of beauty. We Chinese are able to achieve this as well. Through hard training and strict discipline," he said. Pyongyang's annual mass games feature 100,000 people moving in lockstep.
Performers in the West, by contrast, need frequent breaks and cannot withstand criticism, Mr. Zhang said, citing his experience working on an opera performance abroad. Though he didn't mention a specific production, he directed an opera at New York's Metropolitan Opera in 2006.
In one week, we could only work four and a half days, we had to have coffee breaks twice a day, couldn't go into overtime, and just a little discomfort was not allowed because of human rights," Mr. Zhang said of the unidentified opera production.
[Editor's Note: Tan Dun's The First Emperor, Dec. '06.]
There is a good deal to criticize in this comment, but much to praise.
Chinese business executives who deal with Americans think no differently. One who deals with Chinese, especially in business, would be foolish to dismiss this comment -- instead, one should make it a topic of study. We will come back to it in our discussions this fall, to discuss its implications, its truth and the false perception that it harbors.
Regardless, Americans take notice. You (we) must go the extra distance simply to catch up. The extraordinary success of Zhang's Opening Ceremony lends credence to his criticism.
Posted by Richard at 3:32 PM | Comments (2)August 18, 2008
Work in China Job Sites -- Podcast
Looking to work in China? Listen to a brief introduction to a China job site.
Work in China Job Site -- NewChina Career
Several years ago, I was surprised to hear from a number of friends at the midpoint of their careers who expressed the desire to work in China. A number of them were, as we say, "on the beach," but the suntan lotion had dried up. A few had significant international experience, some had none. All of them needed to work.
(A handful asked how quickly it would take them to become fluent in Mandarin. Two to three years of intensive study will bring you to the barest of minimums and most likely not even conversational ability. For those who speak Mandarin, there are more opportunities, of course, unless you wish to teach English.)
I applaud the courage to search elsewhere for work -- born of necessity -- but valorous nonetheless. Doron Vermaat, Managing Director of NewChina Career, has asked me to blogroll his site, which is a job search site for China, Now, I have never myself used this website, and I don't know Doron personally, but I've surfed it. For those readers who wish to work in China, here is a site which is, as Doron writes, "100% free for job-seekers."
Readers who've had positive experiences with other China job sites are welcome to write about them in our Comments section directly below this post. (Please don't use this as an opportunity to plug your product -- I will delete comments that do so.)
Posted by Richard at 2:31 PM | Comments (0)August 14, 2008
Asiabizblog Announces Podcasts to Return in Fall
Asiabizblog announces that its informative and popular podcasts will return to the Web this fall, in English and Mandarin. You'll also notice we've widened our margins and increased the text size for easier viewing.
Reach Out and Touch Someone: China's Metals Traders Touched by U.S. Agency Fine
China's international reach for precious commodities extends as far as Cuba, lately earning the Minxia Non-Ferrous Metals Company a substantial Office of Foreign Assets Control (”OFAC”) fine. (Not this far more delightful Minxia.)
How is it that a Chinese metals dealer has been ordered to pay $1.5 million to the US Treasury?
Our story begins with a fairy tale island, white beaches nestled in lapping warm waves of a clear blue sea. [Ok, so my descriptive muse has overdone it a little...] Playboys and celebrities once danced to a Cuban Rhythm. They still drive 1959 Bel-Airs there, because that's the last year American autos could be imported. The American embargo of Cuba began in the depths of ancient time and, unbelievably, continues to this day, viz. the Cuban Assets Control Regulation (31 CFR 515), etc.
The excellent ExportLawBlog takes up the story:
Minxia Non-Ferrous Metals is a subsidiary of China Antimony Chemicals Co., Ltd., which, in turn, is a subsidiary of China Minmetals Non-Ferrous Metals Co., Ltd., which is, in turn, a subsidiary of the giant Chinese metal conglomerate China Minmetals Corporation. This climb up the corporate ladder may reveal what had OFAC in a snit about Minxia’s trades — namely, the $600 million joint venture between China Minmetals Corporation and Cuba to exploit Cuba’s large nickel supplies. China is one of the largest consumers of nickel which is a key component of stainless steel, and nickel is Cuba’s largest export — plenty there to get OFAC in a tizzy. In fact, the Bush administration announced a crackdown on nickel exports in July 2006, claiming that they constitute more than half of Cuba’s foreign income.
Sadly for the Chinese, if this was the cause of the fine, the Chinese interest in the nickel joint venture was recently bought out by Venezuela in what may not have been an arms-length, consensual transaction.
Make sure you click over to the ExportLawBlog page for this item to get the links, generously provided by its editor.
Posted by Richard at 12:37 AM | Comments (0)August 7, 2008
The China Downturn Bandwagon
Hmmm... Now everyone is jumping on the China downturn bandwagon.
Textile exports fell 4.2 percent in June from the same month last year, a serious blow to an industry that employs millions of people. Overall export growth in June was 18.2 percent, down from May's 28 percent rate.
Note the change in overall export growth means that there has been a decrease in the rate of increase, but that exports continue to grow.
Posted by Richard at 2:12 PM | Comments (0)August 6, 2008
German Companies Planning to Pull Production Out Of China
Der Spiegel reports that one out of five German companies has ceased or is planning to cease production in China due to rising costs.
"The big story here is that globalization is for real -- and China is no longer what it was," says Ronald Haddock, a vice-president at consultant Booz Allen Hamilton...
Corporate fright at seemingly unstoppable upwardly moving human resources cost, the rapid turnover of highly trained workers, the insufficiency of energy supplies coupled with fast rising demand, the slight appreciation of the RMB and a revulsion by many consumers in the West at the prospect of seeing their local shops stocked entirely by Chinese -- all contribute to the "China no longer is what it was" phenomenon. Elsewhere on this blog, I have suggested as much, viz., a decrease in the increase of the rate of at which Chinese goods find their shores in the US. Even so, read this:
Chinese companies, too, are increasingly outsourcing production abroad, Eddy Henning, the head of corporate banking at Deutsche Bank in Beijing, told the newspaper. "Someone who just wants to produce T-shirts is more likely to go to Vietnam or Africa," he said.
As energy prices make container transport unprofitably expensive for heavy products, some furniture manufacturers in North and South Carolina in the United States have brought back production from China. But has the tide turned back to the countries that have lost their manufacturing? Not likely:
In only four years, from 2002 to 2006, the value of furniture production in China has nearly tripled in value, from just under $20 billion to just under $60 billion. As production has increased, China's furniture exports have experienced a similar boom. From 1997 to 2006, the value of furniture imported to the US from China has increased more than nine-fold, to hit $14.4 billion in 2006. The percentage of US furniture imports from China rose from 32% in 2001 to 50% in 2005. Due to a weaker currency and state regulations, Chinese manufacturers can produce finished products at much lower costs. In fact, the average wage of a Chinese furniture production worker is only four percent of the average wage of a worker in the U.S. This fact combined with China's modern, high-tech plants make them a huge threat to the stability of the industry in North Carolina.
One wonders whether the German companies profiled by Der Spiegel are smaller companies which should never have been in China in the first place. The Chinese export engine continues to hum. Visit the ruins of the American manufacturing industries throughout the US and one will see what it really means to pull production.
August 5, 2008
Event Reminder: Chinese Income Tax Online Seminar
While it may be true that tax collector is one of the two oldest professions, no pejorative comment affects the fact that tax collection, wherever it may occur, will put its hand in one's pocket and scrounge around for even loose change. The multinational, whose pockets are considered fertile territory for treasure hunting, feels the touch of many-fingered hands of all nationalities.
Thus, when a national tax code changes dramatically, as in the case of China's new corporate income tax, not only does the multinational itself encounter often obscure changes in reporting requirements and the amount of tax it must pay, but its effect upon the tax law of other nations in which the multinational reports taxes can be complex and ill-understood.
For example, the IRS has issued new guidances on how non-US companies controlled by US persons can achieve deferral of income tax. Specifically with regard to American businesses operating in China, how does one rationalize Chinese and American corporate tax regulations so as to minimize the total tax paid to both? What is the effect of the changes to the tax regulations upon transfer pricing? Should US subsidiaries operating in China conduct themselves in a certain way with regard to third-party subcontractors so as to ensure minimization of corporate tax, both in China and the US?
To answer these important questions, Strafford Publications has announced the following online audio seminar to be presented on Thursday, August 7, 2008 at 1:00–2:40pm Eastern:
China's New Business Income Tax
Shielding Non-China Income From the Expansive Enterprise Income Tax
Plus: The Impact of IRS Contract Manufacturing Regs for U.S. Operations in China
A Live 100-Minute CPE & CLE Teleconference with Interactive Q&A
Speakers:
Peng Tao, Of Counsel, DLA Piper, New York.
Melanie Chen, Managing Director of China Group, UHY Advisors, New York
Alan Granwell, Partner, DLA Piper, Washington, D.C.
For more information and to sign up for what promises to be a seminar of great interest to corporate management, their attorneys and accountants, click this link.
August 4, 2008
Family Ties and the Chen Liang-yu Scandal
Chen Liang-yu (陈良宇) was Shanghai Party Secretary (上海市委书记) until removed in 2006 following an alleged scandal involving Social Security. [In Chinese.] Was the Social Security scandal the fundamental reason for his removal?. His swift rise to the Politburo in 2001 as a protégé of Jiang Zemin and the Shanghai faction preceded an even swifter fall following the presidency of Hu Jin-Tao in 2003.
Whether or not Chen Wei-li (陈维力) was a fundamental participant in his father's corruption or the innocent son of a guilty man, it is clear from this discussion that the simple fact of his family connection to the accused was an important bargaining chip upon which prosecutors relied to induce "a good attitude" (良好态度) in both men in the courtroom and most likely with the prosecution's investigation. [In Chinese.] If it is true that $400 million was appropriated from the Social Security program as alleged -- and, who knows, it may have been a lot more than that -- how much has been returned? Little mention {none...) has been made of that aspect of this case. Where did all those great gobs of money really go?
For some background on the scandal itself, see this page. [In Chinese.]
Posted by Richard at 2:44 PM | Comments (0)
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