Getting Money out of China by Losing in Arbitration

How to get money out of China. NOT.

File this one under “just when I thought I had seen/heard everything.”

A month ago (exactly) we wrote about how it is getting much tougher to get money out of China. See Getting Money Out of China: What The Heck is Happening? Two weeks later, our own Steve Dickinson was interviewed by Bloomberg for a video piece, entitled, The Problem of Getting Money out of China. In the meantime, our China lawyers are getting a ton of phone calls and emails from companies that want to know (1) whether what their China counter-parties are giving as an excuse for not being able to send them funds is true and (2) what can be done to get the funds?

Some of those callers/emailers want to use us to test some idea/scheme/plan to get money out of China. With all due respect, without exception, their ideas are either severely flawed and/or likely to lead to jail time.

But my favorite out of all of them came in through from an “advisor” to a Chinese company and the scheme they wanted to run by me was a plan to have the Chinese company quickly lose an arbitration case in the United States. This is what I quickly surmised anyway, but it took me a bit of probing to discern this. Here, very roughly and with changes made to improve blog flow and to camouflage any identifiers,  is how our conversation went.

Australian advisor: Can your firm defend a Chinese company in a U.S. arbitration involving a $3.5 million breach of contract claim.

Me: Sure. Not a problem, our international dispute resolution lawyers handle cases like this all the time. But that is not going to be inexpensive and we are going to require an upfront payment before we get started.

Australian advisor: This one is going to be different because both sides will want it to move forward as quickly and as cheaply as possible.

Me: Okay, that may be what they are saying now, but once these things get started that very well might change.

Australian advisor: It won’t in this case.

Me: Okay (while thinking, how many times have I heard someone insist that their matter is the one in a hundred that strays from the norm?)

Australian advisor: The parties would even be willing to agree on the award.

Me: Then why do they even need to arbitrate? The fastest, cheapest, easiest thing for them to do would be to enter into a settlement agreement that can be enforced in both China and the U.S. I’m just assuming the other side is a U.S. company and that is why the arbitration is in the U.S.

Australian advisor: There are extenuating circumstances.

Me: Like what? And by the way, do you have the contract with the arbitration provision in front of you right now. What exactly does it say about arbitration? Where is it supposed to be and before what arbitral body? Does it provide for the winner to get its attorneys’ fees?

Australian advisor: Not exactly. We were kind of hoping to have you draft the arbitration agreement.

Me:  What? What are you talking about? Now I’m really confused. You cannot have an arbitration unless both parties agree to arbitrate. Are you saying the contract between these two parties does not provide for arbitration but the parties have  now agreed to arbitrate?

Australian advisor: Yes.

Me: Okay, what is the name of the other party and who is its lawyer?

Australian advisor: We were going to ask you to form the American company and represent it too.

Me: What? I don’t get it. My firm can’t represent both your Chinese company and the opposing party. It just can’t.

Australian advisor: What if they were really the same party?

Me: But they’re not.

Australian advisor: Well, they really are.

Me: How is that?

Australian advisor: Because the whole point of this arbitration is to get an award that the Chinese company can show to the Chinese government.

Me: Not interested. No way are we going to do this.

Get it? The Chinese company wanted us to represent it in a completely fake arbitration it would lose so it could then send $3.5 million to its own U.S. company so that US company could buy a house somewhere in the United States for the Chinese owner of the Chinese company that lost the arbitration.

Other lawyers: you have been warned.

UPDATE: For more on using arbitration and litigation to get money out of China, check out this Wall Street Journal article, China Capital Flight 2.0: Lose A Lawsuit On Purpose.

5 responses to “Getting Money out of China by Losing in Arbitration”

  1. Yaknow, this blog used to be an excellent source of information about China law. The past few months, it has turned into “everyone is a goddamn idiot but me” with post after post about stupid people who are not attorneys and thus don’t understand the vagaries of international law.
    It’s a real turn-off and I wish we could go back to talking about new laws and interesting contracts. Is the author going through a divorce or other negative life event? This is what happened to other bloggers I follow when they suddenly turn nasty and hostile.

    • I think you are reading the above wrong. The last thing I am trying to convey here is me smart, you stupid. I think that the plan of this person who called me was brilliant and innovative. I turned it down not because I am so smart, but because I found it dishonest and unethical and I therefore wanted no part of it. If you are detecting a change in the last few months, I am guessing you are right as I am detecting a change as well. China is going gonzo to crack down on foreigners who are not following the law and whenever that happens, the people who have not been following the law come out and their excuses for operating illegally do not usually drip with wisdom.

  2. Western lawyers have done this for 500 years. It’s called sophistication. Just tell your Comrades behind the Noodle Curtain to set up the real subsidiary first, then sign a contract … and (hope 🙂 ) that they can fulfill that contract. Haste makes waste.
    Oh, and tell them to contract ONLY with people they can “trust” [to keep only a small share], as the cost of doing business.

  3. Actually, this is a very useful post, and the proposed ‘solution’ often involves attorneys on both sides. It is a well known method for laundering criminal funds too. The difference here is that the ‘Australian’ was open about it. Any litigator who has experienced a lawsuit or arbitral win just a little too easy may have been involved (perhaps completely unwittingly, or maybe wilfully blind to the obvious if he/she chose not to ask the right questions) in something unlawful, whether shifting legitimate funds illegitimately (contrary to Chinese law), as here, or shifting criminal funds (contrary to the laws of China and their own country’s laws)
    It is a salutary lesson for lawyers, trained to find ways for things to happen for their clients’ benefit. In many countries it is an offence even to structure arrangements as to circumvent anti money laundering laws, let alone to be a party to it oneself, which is unlawful (almost) everywhere.

  4. is there really any way that the government could have caught this? It sounds brilliant on one hand and it sounds as if it’s been done before

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