When I give speeches on China law, I am often asked what the best way is to keep up with Chinese law in a particular industry. I usually answer by saying somthing like the following:
Great question. But you probably can’t. To succeed in China, you need a China team, and that team needs to include someone who can read and understand Chinese laws/regulations in Chinese and someone who is in touch with the relevant government authorities.
I then usually describe a conference call from a few years ago, when three lawyers from my firm (including me) were discussing the law relating to a particular matter. One lawyer said the law was “X”, another said it was “Y”, and I said it was “Z”. I then very confidently stated that the other lawyers must be looking at older versions of the law, because I was looking at the one that had come down three weeks ago. One lawyer quickly admitted defeat. The other lawyer said his version had just come out the day before….
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A Beijing lawyer friend of mine who moonlighted as an adjunct law professor once complained to me about how difficult it was teaching China foreign investment law. He told me that it is not uncommon for his teachings at the beginning of the semester to be wrong by the end of the semester due to law changes during that time.
But it is not only China’s constantly changing laws that make keeping up so difficult. The fact that so many translations of China’s laws are just terrible does not help either. At least a couple of times a month, I get emails from American lawyers or businesspeople requesting a “good” English language translation or explanation of some particular area of Chinese law. My response is always the same:
Sorry but I don’t have anything to give you because we do all of our China legal research in Chinese. We just cannot risk outsourcing legal translation or law interpretation to the web. Because of this, we do not make any effort to keep up with the English language side of Chinese law and so we are not a good source for English language cites to Chinese law. If you want to read good English language books on Chinese law, I suggest you check out our blog post, Chinese Commercial Law Books In English. An Update.
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Additionally, it is often difficult to find the relevant laws/regulations on a given topic, even in Chinese and that the laws and regulations are sometimes inconsistent. You also should know that new regulations are often proposed, submitted to the public in draft form for comment, and then never implemented, leaving everything in limbo.
Most importantly, even the most current Chinese-language laws and regulations seldom provide the whole picture. Take forming a China-based Wholly Foreign Owned Entity, or WFOE. Every city in China has its own requirements, and most of the requirements are unwritten. Some cities require audited financial statements. Some cities require signed documents to be notarized, apostilled by the state’s Secretary of State, authenticated by the U.S. Department of State, and consularized by the Chinese Embassy. Some cities require the WFOE to have already executed a lease for office space.
Typically, the only way to know what any particular city requires at any given time is by meeting with the appropriate government official. Thus even if you read Mandarin fluently and have the legal training to interpret the written laws, it might not be enough. Which is why staying abreast of the laws in China requires a China team that includes someone who can read and understand the laws as written and also someone who can speak with the appropriate government officials to figure out the laws as applied.
Dan Harris is a founding member of Harris Moure, an international law firm with lawyers in Seattle, Chicago, Beijing, and Qingdao. He is also a co-editor of the China Law Blog. You can reach him by email at [email protected].