China Esquire

I have been thinking about the Hague Convention lately. I cannot mention details (or which party we represent), but in litigation dealing with service upon a foreign party, the plaintiffs had to wait 3-6 months to have its complaint served in accordance with the Hague Convention’s requirements. The plaintiffs’ attorney requested that the defendant accept service through its counsel, which did not happen. (of course, that defendant never made any appearance, and as such, had no counsel of record)

Dan Harris in China Law Blog stated earlier this month:

I am beginning to wonder about the willingness of US courts to apply foreign or international law, even in those instances where US law calls for such application.

Based on my firm’s experience with getting US courts to recognize international law, I am sorely tempted to just say something like, “forget about international law. This is the United States. We don’t recognize international law here.” Go ahead, just stick your summons and complaint in a bottle, throw it in the ocean, that ought to be enough for you to get a default judgment anyway. And since China never enforces US judgments anyway, why does it matter.

Virtually every time we have sought to get the US courts to enforce the Hague Convention or even, in one instance, when we sought to get a US court to pretty much ignore the Hague Convention, the US court has seemed perfectly willing to rule as though the United States has no obligation to abide by a treaty it signed. I have a strong sense US Courts (both state courts and federal courts) will not enforce the Hague Convention’s technical service requirements (including that the summons and complaint must usually be translated into the language of the country in which it is being served). Oh, and getting a US court to throw out or stay (delay) a case so that an already pending case in another country can be decided first — forget it. My conclusion is that US courts are happy to ignore foreign/international law in favor of handling things under US law, whether US law should apply or not.

Harris then criticizes U.S. Courts for not enforcing the Hague Convention:

If the United States is serious about globalization, it is time our courts start recognizing that ours is not the only law in the world and that it actually behooves US business to make our courts more international in the context of business disputes.

On the other hand, one commenter, Wayne Parker, stated:

I’ve represented several plaintiffs in differing maritime attachment actions (Supplemental Rule B of the FRCP) where the opposing defendants were Chinese entities that did not have a presence in the district, as well as one action where I defended a Chinese client against a European plaintiff seeking to attach electronic funds transfers here in NYC under the same admiralty supplemental rule. In each of these instances, the US district court required strict compliance with the provisions of the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and in the cases where we represented the plaintiff found that we had complied with the Convention’s requirements, including the costly evolution of translating the complaint, summons and other documents into Chinese.

Admittedly, most federal and state judges in the United States are not even aware of the existence of the Hague Convention. But my experience before the Southern District is that once you convince a US district court judge that the Convention’s provisions should apply, s/he will require compliance.

I tend to agree with Mr. Parker that some judges exist who will enforce the Hague Convention. I would venture that the judges from districts like the S.D.N.Y., C.D. Cal., N.D. Cal., and other places where a lot of international business takes place would do so. I know the court in the case I mentioned in the opening of this post has had no issues with this process. (and is also located in a relatively business-savvy district)

It really is not that hard to comply with the Hague’s requirements for service. Yes, it takes a long time to wait for–so be ready to wait an additional 3-6 months to serve your pleadings. But other than that, I would urge all practitioners to be familiar with the rules. (after all, lawyers should be complying with the law and not trying to urge courts to ignore the Hague) And if you don’t want to look at all of the rules, I suggest using this.

Bill Dodson posted yesterday on his blog that RedHat, the undaunted distributor of RedHat Linux (which must remain undaunted because Ubuntu and Kubuntu walked away with a very significant chunk of its market share over the past few years), has decided to sink roots and investment into Chengdu. From the “This is China!” blog:

I’m presuming RedHat has chosen to stay in Chengdu, based on an earlier story in ChinaTechNews ( 24 August 2007): “RedHat, one of the world’s largest open source and Linux software providers, has landed in Chengdu through Sofmit, the largest outsourcing software company in Sichuan Province.” RedHat and Sofmit had established a RedHat Southwest SOA Solution Center and China SOA Service Center in Chengdu.

One of Redhat’s grand plans is to partner up with the excellent technical universities in the area to create armies of Linux programmers, while they’re still vunerable to options outside the Microsoft universe.

Watch out Microsoft… resistance is futile!

I continue to have my doubts that Linux will be much of a threat outside of the server world. It is not a China issue. Linux, for all its proponents (myself being one of them), has never really caught on. Ubuntu has done about as good a job as anyone, but I still find people running Mac OS, Win XP, and Vista on their personal machines. On a server level, Linux is popular, but there are also other versions of UNIX running around as well.

My personal thought is that Linux will never take over China or the rest of the world until it is actually user friendly. Have you tried Gnome or KDE? They are not. Apple has built its UI over a UNIX core, and that is wildly successful. (though I caveat that Linux can do many things better than MacOS with the right customization) Windows, much as it is bloated, is very user friendly. RedHat can invest as much money as it wants, but until someone in the Linux world creates a user friendly interface, RedHat’s venture in Chengdu is really just about cheaper, well-educated labor.

Perhaps resistance is futile…

It seems that China’s weather problem is not about to let up. From CNN:

China’s worst winter in more than half a century showed no signs of abating Wednesday as forecasters told citizens to brace for three more days of snow and sleet.

“The heavy snow and sleet has paralyzed transport and coal shipments, and led to travelers cramming railways stations and airports and power supply reductions in almost half of the 31 provinces and regions on the Chinese mainland,” China’s Xinhua news agency reported.

If you are counting on Chinese suppliers at this time, you probably already know that your shipments will be delayed due to the Chinese New Year holiday week. You probably didn’t expect that the flow of products (and even information) would be this delayed.

This is a good warning to you to plan around the Chinese holidays. (and not just bad weather) That would be the New Year and the Moon Festival. There used to be a third (what people called “May Day”), but the government has curtailed that. Good planning is going to be your friend.

DiligenceChina (hereafter “Diligence”) has not been updating its blog much recently, but I was catching up after the Holidays when I noticed the post discussing negotiation styles with Chinese older and younger generations. I didn’t find much practical application out of the posting, but I did want to highlight some parts.

First Diligence asserts that negotiating is different between people who are 35-40+ and mid-30’s or younger:

The younger generation who had a lot more exposure to international deal-making, and have witnessed the march of the MNCs into Shanghai and Shenzhen (and Beijing, Tianjin, Guangzhou etc.) are coming of age professionally. These guys are technocrats who probably don’t have much in the way of family or political connections.

Whether or not they have connections, it’s true that they are more accustomed to western style business. Diligence then states:

The older guys are still calling the shots using the old playbook. Fine people, and they mean well. Great with kids. But they don’t know from cooperation or long term business with strangers. This demographic is slicker and sound better than they did in the old days — and it is possible to do significant business with them. But these men were a transitional management team that operated between the opening of China’s economy and the development of a mature market system (ie: now). They grew up in the old system – where they were taught and trained by pre-reform appointees.

If you approach this older generation with the ‘win-win, let’s all work together to make the pie bigger’ line, you are going to encounter serious trust issues. The expensive, bad kind of trust issues. You have to make sure that you are building serious controls and feedback loops into the contract and the formal operating plan. (Yes, you need a formal operating plan.) That includes HR and Finance. And Sales. You get the idea.

And this is where I agree. Partially. I agree that win-win doesn’t work with the older generation. However, I don’t think win-win works with that many people unless there really are solutions where its possible that the two sides are “getting to yes”. Otherwise, I think win-win makes most people suspicious. And being westernized Chinese, younger than mid-30’s myself, even I am skeptical of win-win. (I took negotiation in law school and thought that the theories were pretty lame)

My take? Try win-win at the beginning, but don’t be surprised if the other side has trust issues no matter what the age or sophistication. This applies in China or anywhere else for that matter.

CNN.com had an article today entitled “ Chinese PM apologizes for snow chaos” that piqued my interest. I am all for the Chinese government (and any government for that matter) admitting its mistakes with candor and frankness. Truth is always a good policy. But was this really necessary?

In a rare move for a Chinese politician, Prime Minister Wen Jiabao apologized Tuesday to the hundreds of thousands of people stranded in train stations across the country as the worst winter weather in half a century — combined with crippling power problems — nearly brought travel to a standstill for millions trying to go home for the Chinese New Year holiday.

“I apologize to you all,” said Wen, using a bullhorn to address stranded travelers at a train station in Hunan province. “We are currently trying our best to repair the system.

Chinese media replayed the apology several times. The unusual gesture is likely to go a long way in pacifying the anger and frustrations of the thousands stranded across the country, CNN’s Jaime Florcruz said.

It is also interesting to see that it is the central government that is making an apology whereas it is just as much the fault of the local authorities here. (Read between the lines: corrupt local authorities) We all know the central government in Beijing has come a long away and distanced itself from the local fiefdom mentality of the provincial authorities:

They’re also a signal to local officials to stop bickering over power usage. Provinces have been ordered to share power and energy sources so they can be diverted to where it’s most needed.

But I digress. Is this really the fault of the government? Yes, governments exist to serve the people. Governments should do their best to maintain infrastructure. And I am certain the Chinese government probably could have done better in this situation as hindsight is always 20-20. But even the most well-run government cannot prevent natural disasters and/or uncommonly bad weather. The government is not a deity. The article explains (emphasis added):

The weather couldn’t have come at a worse time: Millions of Chinese workers were trying to leave the cities where they work to travel home to their families for the Lunar New Year holiday, the Xinhua news agency reported, putting intense pressure on the country’s transportation network. The holiday, also known as the Spring Festival, falls on February 7.

Brutal winter weather has pounded China’s central, eastern and southern sections, stranding hundreds of thousands of travelers ahead of the holiday.

Airports in at least 10 cities were closed temporarily Monday and, adding to the woes, seven of the eight highways connecting Guangdong and Hunan provinces have been cut off, Xinhua reported.

I close on this thought: the government should not apologize for something that it clearly cannot control. That is just plain strange to me. Bad weather and holidays don’t mix. But then again, life is just hard sometimes. Don’t apologize about that.

I saw this well-written email from S.B. Woo at the 80-20, which is a Asian American PAC and thought I would share excerpts. I am not a registered Democrat (and am not particularly bound to either party), but found this analysis worth quoting:

As the mainstream media stressed: Obama’s courting of the black vote in SC may cost him the white vote. Exits poll showed that his white support went down by 50%. Since the white vote is still about 75% of the nation’s total, the repercussion dooms Obama on Super Tuesday and later primaries. See NY Times Results

Obama got only ¼ of the white votes, while Clinton and Edwards split the rest. In the 22 state primaries on Super Tuesday, Clinton will get a lion’s share of the white votes, with Edwards getting much less because Edwards is out of time and money to campaign.

High electoral politics is mathematical. The 55% Obama got in SC were almost all from blacks and white Republicans who strongly dislike Clinton, according to a CNN reporter (John King, I believe). Note that in SC, voters may cross party to vote. In contrast, 2/3 of the 22 states allow only Democrats or (Democrats plus Independents) to vote in a Democratic primary. Polls after polls show that Democrats strongly prefer Clinton. In addition, Clinton has very strong infrastructure in all big states, planted since Bill Clinton’s time in the White House.

S.B. Woo concludes:

There are only 9 days left for Obama to play catch up. His strength is rhetorical skills. He can’t use those skills effectively when there are 22 states, some huge, and he has only 9 days left.

Obama has raised $81Million, while Clinton has raised $91 million. My impression is that Obama has been spending much faster than Clinton, because he must do very well in early primaries in order to shock and crumble the Clinton foundation. However, he didn’t achieve his objectives. They each took 2 states (NH and Nevada for Clinton).

Believe it or not, there is an 85% chance that the election is over for Obama!

While I don’t know whether this is reality because elections are hard to call, I found this intriguing given the constant media coverage of the primaries. From what I’ve seen, I have liked Obama, but it will be interesting to see how he actually does. (though I have no plan to vote for the man, I do like him)

It is hard work to publish a good resume. I have seen many a resume where I wanted to re-write everything, or at least tell the person that the resume needs a lot of work. Many people have resumes which are great except the formatting is an eyesore. Others have little or no content. Perhaps I will post some of them some other time.

I have placed my legal and technical resumes in the resume section of my blog. They highlight my extensive technical experience in addition to my legal practice.

Resumes tell me a lot about a person: how organized, detail oriented, and articulate a person is. Yes, many of them are generic and cut-and-pasted from elsewhere, but it still tells me a lot when I see a poor resume.

I have never been a fan of blogging, but I thought this would be a useful resource and a fun thing to post commentaries to articles I read on the news or other blogs. I hope you find it useful!

China Esquire is a blog by Thomas Chow, also known on the internet as Thomas C. Chow.  This is a China law blog that is written by an American based lawyer specializing in international business transactions, corporate work, and non-profit exempt organization law.

This is also a China Business and Law Blog.  China Esquire is one of the newest so-called China Business and Law Blogs out there today. We focus on how to do business in China, both in China and out of China. (in the United States)

We focus on business law, business law blogging, law blogging. Or China law and business blog.

Similar to blogs by:

Dan Harris (China Law Blog)

Steve Dickinson (China Law Blog)

Stan Abrams (China Hearsay)

Rich Brubacker (All Roads)

Bill Dodson (This is China!)

Brad Luo (China Business Law Blog)

Will Lewis (Experience Not Logic)

And many others!

Thanks for reading.

Thomas