China Business

I Wish All China Could be California Girls

China employment law

Interesting post up at the iLook China blog, aptly titled, Belching About China.

The post is a complaint piece on a Huffington Post article, China Labor — the Pure Shame of It, written by Leo Hindrey, Jr., a self-proclaimed “pro-worker advocate”.

iLook China takes issue with Hindrey for “castigating China from a Western cultural point-of-view” and for presuming China needs and wants American help and would necessarily benefit from it. iLook is bothered by Hindrey’s eagerness to see the “American labor movement smartly and creatively provide all the help to China’s workers that it can responsibly offer” to help Chinese workers earn more money along with better benefits.” iLook then briefly highlights previous “Western meddling” in China:

Due to Western meddling in China during the 19th century, there were two Opium Wars forcing British, French and American opium into the country along with Christian missionaries, which led to the Taiping Rebellion started by a Christian convert ending in 20 to 100 million killed. Then there was the Boxer Rebellion, a peasant uprising caused by meddling Christian missionaries, greedy Western businessmen and pompous politicians.

iLook ends its post with this very sensible suggestion: “let the Chinese fix China and leave the American labor movement out of it.”

I agree with iLook’s overall premise, but I am not so sure Hindrey’s article is the right one on which to go off, because it is neither simplistic nor jingoistic, as can be evidenced by the following paragraph from it:

This is an incredibly fragile moment in Chinese labor history with implications not just for Chinese workers but for America as well.

China could be on the cusp of a new movement that markedly improves the lives of its workers, or the world could see this movement wither through a lack of organizing expertise or because of government crackdown. While we need to be realistic about our own ability to impact any outcomes in China — and very sensitive to the fact that even our indirect involvement could result in the opposite of our intended outcome — I am eager to see the American labor movement smartly and creatively provide all the help to China’s workers that it can responsibly offer. And I look forward to their positive results.

Many years ago, I wrote a somewhat similar piece regarding an article telling China how it needed to mimic America’s legal system. My post was entitled, One Night In China And The World’s Your Oyster [link no longer exists], and in it where I went after an American personal injury lawyer who had written an article, condescendingly (and falsely) entitled, China needs a few good lawyers. Highlights from my article follow:

The article starts out approvingly referring to a recent article written by another Seattle lawyer, Chi-Dooh Li, the underlying thesis of which seemed to be that we Americans will never be able to trust China because it is not a Christian nation. Marler takes a more secular (and only slightly less ridiculous) approach, asserting Chinese products cannot be trusted until China has a body of civil law.

China has a comprehensive body of civil law that includes very clear standards for negligence actions, including product liability suits. There are certainly those who argue the damage awards in such actions should be higher and judicial corruption lower, but those issues are separate and apart from whether there is a system at all. There were nearly one million civil lawsuits filed in China last year and that number is on the rise and my firm typically has one or two such lawsuits pending in China at any given time. China has a civil law system.

Marler then wrongly claims the Chinese government responded to its food safety problems by “executing its top food-safety official” when that execution was actually for having taken around $1 million in bribes. Marler then explains his reason for being in China was “to suggest some less drastic solutions.”

Marler then tells us of the wise teachings he gave China and of the way the natives imbibed of his great wisdom:

Killing regulators will not make food any safer, I told the mostly Chinese audience. Tougher laws and inspections may help, but not by themselves. If consumers are injured by a product, the consequences must fall on those who made it. And, for that, Americans rely on a body of civil law.

The Chinese were clearly puzzled by this. They understand the power of government, and the concept of criminal law. But they do not understand how one person can stand up to a rich corporation and say: “You made my child sick, and you are going to have to make it right.”

Seeing their puzzlement, Marler then “explained how our civil laws work:”

A Chinese company manufactures a product, or a component part of anything from dog food to automobiles or toy parts, and sends if off to Wal-Mart. The product proves to be tainted or faulty. A consumer is injured, and files suit against Wal-Mart, demanding compensation. A court awards damages, and Wal-Mart looks to the Chinese manufacturer, and demands accountability. Their message: China can make things cheaper, but they have to be safe. Lawsuits may make products more expensive, and both American and Chinese firms risk losing business.

Marler continued spewing forth his pearls of wisdom to a clearly enthralled audience:

So, I told the Chinese, the issue is not social justice or morality. The issue is something they can understand much more easily — the bottom line. I could see heads nodding across the room. Ohhhhh, so it is ultimately about making the sale or not making the sale! This they understood.

Marler’s brief sojourn in China has imbued him with an almost supernatural knowledge of Chinese law and culture such that he can state that “it is difficult to imagine China developing a body of civil law. It does not seem to mix well with an authoritarian society. Their impulse remains: ‘Kill the regulator.’ I am not going to say no Chinese lawyer thinks this way, but not a single Chinese lawyer I know does. Not one.”

The good news though, according to Marler, is that the Chinese can learn and “when it comes to exports, China is learning that its manufacturers are indirectly accountable to our system of civil justice. Once they understand that, they will have to play by the rules. Not because they are moral or immoral. But because they are motivated by the same raw, rational impulse as our corporations. They want to make money. And they will make more if they are not harassed by a bunch of lawyers representing sick kids.”

If the U.S. product liability system is so great (and I actually think it is), how does Marler explain why American manufacturers and importers have allowed so much unsafe product into the United States when they know lawyers like Marler lie in wait to sue them within an inch of their lives? And how are Chinese companies even “indirectly accountable to our systems of civil justice” when Chinese courts do not enforce U.S. judgments?

China Hearsay [link no longer exists], written by an attorney who has spent nearly ten years practicing law in China also takes strong issue with Marler’s noblesse oblige:

I completely agree with the conclusion that an effective, muscular product liability/tort system in the PRC would ultimately lead to better QC. However, I gotta say that the whole China-has-no-legal-system argument is really getting old and making me cranky.

Granted, this is not a China guy, so I can’t really criticize too much. However, the following line bugs me:

“Perhaps all China needs is a few good lawyers, and a body of civil law.”

This is a good one too:

“If consumers are injured by a product, the consequences must fall on those who made it. And, for that, Americans rely on a body of civil law. The Chinese were clearly puzzled by this.”

China Hearsay begs for a stop to this sort of thing and chastises Marler for getting the facts wrong:

Can we stop with this kind of thing? I usually hear it in an IP context when clueless commentators state that China has no IP laws. Now we have the strange notion that China’s civil law somehow doesn’t cover product liability? Perhaps the author was just trying to say that the legal practice in this area needs to be more developed – agreed. But these kinds of blanket statements, which are also quite condescending, do not help. China does have product liability laws, people who suffer damages from products can and do sue manufacturers, and courts often find in their favor.

Now, damage awards may be too low, the lack of a system of discovery means that information/evidence is hard to come by, and certainly the writer of this article would not be happy with a legal system that does not include juries. But let’s get the basic facts right, huh?

In a subsequent post, China Hearsay explained as follows:

[W]hen someone who obviously doesn’t know something puts himself forward as some sort of expert – that’s pretty damn annoying. Throw in a few statements that have racist overtones and, well, you can see where even the most mild-mannered folks out there will snap.

I don’t expect some tort lawyer in Seattle to be an expert on Chinese law. However, would it hurt him to talk to at least one expert before spouting off on unfamiliar topics?

I actually do understand how people can be so happy and proud of what their own country has accomplished and wanting to help other countries accomplish the same thing, but this far too often gets taken too far (and it is not just Americans who do this, though it does seem to be pretty much just us who believe things like how sending more troops to a place like Afghanistan will eventually make it a stable democracy). This “helping” view seems to go awry, however, when people start giving advice to other countries without having done anything to determine the following:

  • Is your country’s system truly better than the country whose system you are criticizing?
  • Is your country’s system truly better than other countries around the world?  Why tell another country it needs to mimic your country’s system if some other country is really the gold standard?
  • Most importantly, will the system you are advocating for that other country actually work there? How do you know this?

I am NOT calling for the end of criticism. Not at all. I am simply asking that real thought go into it first.

What do you think?

11 responses to “I Wish All China Could be California Girls”

  1. I always love the self-proclaimed “China experts” in the world, especially from the US, who love to antagonize and patronize China and its system when they have not a clue what the culture or true business environment is about… Aside from reading a few watered down reports from their “reliable sources” and then making all encompassing statements based on assumptions that were flawed and in most cases ignorant in the first place. Let’s see how many of your clients fail miserably in the next 3 months due to your “expert” advice. Here’s a tip. Come live here and work here and actually learn the langauge and culture. Then maybe you can start calling yourself a “China expert” without worrying about real China cultural specialists snickering at you everytime you open your mouth. Perfect example… The American push for a Yuan revaluation thinking that this would change anything….

  2. You raise some good points and I like how you talk about two nominally unrelated issues (product liability and employment) to make your point. I think all of these people who are telling China what to do with their lives are the same people who want to regulate every business and social thing in their own countries. To all of these people: BUG OFF.

  3. I will agree that today’s American labor movement has little to offer China. All China needs to see is how much “help” the UAW has been to the American auto industry to know they want no part of it.
    On the other hand, many of the labor abuses depicted in Upton Sinclair’s *The Jungle* were very real in early 20th century America and also in contemporary China. America’s nascent labor movement at the time was essential to containing real human rights abuses taking place right here at home.
    So I while I would agree that China absolutely does not need the UAW, they do need something like the early AFL-CIO. This isn’t a cultural issue. It’s a human rights issue. And I think we can safely leave it to the Chinese to figure out how to keep necessary improvements in workers’ rights from turning into the excesses of the UAW that nearly killed an industry.
    On an unrelated note, the writer at iLook China says (in your first quote above) that British, French and American opium were forced into China in the Opium Wars. Unless he has uncovered some previously unknown source, the Opium Wars were between only Britain and China. There was no French or American opium. It all came from British-ruled India.
    I know hating America is still all the rage, but I see no point in blaming America for things it didn’t do.

  4. I have read at this site of one improvement after another in the legal position of employees in China, and watched meanwhile the decline of workers’ rights in the U.S/ Perhaps Mr Hindrey ought better to ask the Chinese send advisors to the American labour movement.

  5. To G.E.Anderson:
    In the Second Opium War, France and the United States joined with Britain to extract by force of arms a number of trade concessions, including those relating to opium.

  6. @brosna, Thanks.
    I’ll take your claim at face value — that the US would have joined with Britain to extract trade concessions from China — but what you aren’t saying is that France and American opium were being forced on China.

  7. The fundamental flaw in all of this thinking is trying to interpret everything in China into US centric realities.
    Simply – it can’t.
    In all the years since China has opened up to the world, China has learned a lot about other countries, other cultures, others languages, societies, political systems, governance, economies, etc. – even in its darkest days of the 1960’s & 70’s it still had that window.
    The rest of the world has failed because it has failed to learn almost anything about China, apart from selected negatives regularly reinforced by media – for the most part still hunkered behind mid 19th century thinking (they must find OUR God for their salvation), Cold War ideology (they are still a bunch of commies) or short term selfish demands for domestic economic benefits (float the yuan, yet in 1997 it was praised for its fixed currency)
    It is this fundamental lack of understanding that severely hinders Western businesses and countries and to regain competitiveness must be changed. No use harking back to the ‘good ol’ days’ of western supremacy – its gone; now, deal with it!

  8. Let us call those “China Experts” ignorant and arrogant!
    With respect to product liability, Chinese courts have been unwilling to grant handsome damages to victims suffering personal injuries, mainly because in the past, spiritual damages are very often humble amounts and punitive damages are not available under China tort laws.
    Things may change soon. China Tort Liability Law is to take effect from July 1, 2010, a few days away. It is the first time that the law recognizes punitive damages in the context of product liability where defective proucts lead to death or serious health problems. It remains to see how far courts will go in ordering punitive damages to such victims.

  9. I’ve never understood why people like the iLook author think it’s such a devastating refutation of a claim to assert that it’s based on a Western cultural viewpoint. Of course we make claims and criticisms based on our own viewpoints and values. Hey, stop the presses. To further attach a label to those viewpoints and values is just that: attaching a label. It’s not a refutation. As for keeping Western viewpoints out of China, I’m afraid it’s a little late for that. The country is ruled by an organization called “The Communist Party” claiming fealty to the teachings of the German Karl Marx and organizationally based on the teachings of the Russian Lenin. The schools and media promote nationalism, an ideology originating in 19th-century Europe. Etc., etc. Unsurprisingly, the government would like to pick and choose which elements of Western culture it likes, but that doesn’t mean the rest of us have to go along.

  10. Dave said, “The country (China) is ruled by an organization called “The Communist Party” claiming fealty to the teachings of the German Karl Marx and organizationally based on the teachings of the Russian Lenin.”
    Look again, Dave. After Mao died and Deng Xiaoping declared, “Getting rich was glorious”, Marxism and Lenin went in the trash with Maoism. In fact, China is a mixture of capitalism and socialism and the socialism looks to be losing. Check out the history of medical care in China since 1950. The socialist system of medicine also went into the rubbish when Mao died and there is no more cradle to grave medicine. It’s cash, baby, or have a nice death. Along with the state-run hospitals, a growing and very expense private medical system exists that caters to rich expatriates and wealthy Chinese.
    The only thing left of Marx, Mao, Stalin or Lenin is the word “Communist”. Mao ruled for 27 years as China’s modern emperor and after his death, the “Communist” government revised the Chinese Constitution imposing term limits for public office and an age limit, both of which the US doesn’t have.
    Granted, China still has a one party system but out-of-sight there is debate and disagreement before the few hundred at the top vote in secret which way the national government is going to go. Even then regional governments sometimes do not follow the national party line. The Chinese are not shy about voicing their opinions when the world isn’t watching.
    China is a “Communist” nation in word only. Since 1976, China has been reinventing itself and the people who rule China do so by the consensus of a few hundred at the top of the 70 million members Communist Party. Then there is the 70 million member Communist Youth League, which also has opinions—but most foreigners won’t hear them unless they go out of their way to follow China experts.
    What most people in the West are not aware of is the number of study groups China’s central government has dispatched to other nations to study their political, legal, military, economic and medical systems—China is on a learning curve and they will adopt the best parts the world has to offer. One team that came to the US studied the American juvenile justice system returned to China and recommended that a separate court system be created similar to what the US has regarding juveniles. I’m not sure what has transpired since. Maybe The China Law Blog can educate us on what’s happening regarding that recommendation.
    The American form of government, which is based on Judea, Christian values and British Common Law, along with a free press does not fit with Chinese collective, culture, which is influenced more by a mixture of Legalism, Taoism and Confucianism then Communism.
    After the fall of the Qing Dynasty, the only reason that China moved toward Communism was because Soviet Russia was the only nation that answered Sun Yat-sen’s cry for help in the early 20th century. America, Great Britain, France and the other Western “democratic” powers already had what they wanted and that cry for help fell on deaf Western ears. After all, the Western merchants and industrialists had cheap Chinese labor and a market for Western goods in China like opium while Christian missionaries were happy because they had total freedom to save Chinese souls—something that came about due to the Opium Wars.
    While China was in chaos and anarchy for several decades between 1911 and the Japanese invasion prior to World War II, Westerners in China partied, made money and lived the good life while staying in foreign enclaves protected by foreign troops along China’s coast in cities like Shanghai, Hong Kong and Canton. To them, “Getting rich was glorious.”

  11. I know ZERO about China’s juvenile justice system but what you say about China forming expert groups to review the laws of other countries is absolutely true.
    Take China’s company laws. China reviewed and pulled from the laws of many other countries in creating its own company laws. You will be hard pressed to find a corporate lawyer who does not regard those laws as thoughtful and well written.
    What drives me nuts when people from outside China tell China how to do things internally (like for instance corporate law) is that they far too often operate from the assumption that China has no clue nor concern for what is going on elsewhere in the world and they also far too often believe that a certain system can and should just be grafted onto China, without change. This sort of thinking is arrogant and should be avoided.

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