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Tao Jingzhou, Droit chinois des affaires (PRC Business Law)
The legal and fiscal guide published by the French Centre for External Trade and entitled by its authors, members of the law firm Thieffry & Associés, Comment vendre et simplanter à Shanghai [How to Sell and Set Up Shop in Shanghai](1) is well known. In the series of small practical guides on the perfect joint venture or how to make profitable investments in the Peoples Republic of China, one can do much worse than turn to the new and very helpful Droit chinois des affaires [PRC Business Law] by Tao Jingzhou.
After briefly presenting the politico-economic situation in China and Chinas judicial system, the writer embarks on a detail-by-detail description of an evolving area of mainland Chinese law, disparate in character and its enforcement uncertain, according to a three-part approach: Reaching the Chinese Market, How Business Works in China, Escape Routes in the Event of Litigation. Each of these parts deals accurately and in detail with questions in areas as diverse as the forms of foreign investment vehicle and how they can be taxed, the procedures for setting up a business, labour law, land ownership law or how to wind-up a company.
The chapter on dispute resolution through international arbitration (pp. 337-357) warrants a few comments. Essentially governed by the Arbitration Law of August 31st 1994, arbitration, particularly by CIETAC (China International Economic and Trade Arbitration Commission) attests to the utilitarian inclusion of international norms in the body of Chinese law through the gradual adoption of concepts that are still subject to interpretation, like those of economic and commercial disputes that contain a foreign (shewai not guoji) element or autonomy of the arbitration clause. Framed by rules adopted in 1988, modified in 1994 and then again in 1998, arbitration by CIETAC has been a real success in the view of Chinese and foreign economic partners, which puts this commission among the most important arbitration authorities in the world. We observe, however, that while the Chinese law-maker has largely drawn on the UNCITRAL (United Nations Commission of International Trade Law) model of arbitration, the spirit of this law has not really been preserved, since a certain number of measures (the composition of the arbitration tribunal, and the arbitration process) diverge from it. A renowned expert in this area, in his capacity as arbitrator accredited with CIETAC and head of the Peking office of the Franco-American law firm Coudert Brothers, Tao Jingzhou provides a complete overview of a complex and evolving jurisdictional practice. Confronted by what the writer calls the war of attrition of the courts, there is, however, an unfortunate absence of references to a jurisprudence of arbitration, which, while copious, is not at all well known in France((2). Some kind of contribution on this area would certainly have brought out the difficulties encountered in the enforcement of penalties, and, as a consequence, the limits of this process in terms of legal acculturation in the context of Chinas scheduled accession to the WTO that should bring in its wake comparable problems in the harmonisation of legal systems. An appendix of the full texts of Chinas principal foreign investment legislation, as well as CIETACs new arbitration rules, would have been a highly useful addition. The total absence of any bibliography or reference notes is even more regrettable.
Written by a China law practitioner, this work is most definitely intendedthe prohibitive cost of 820 francs reminding us of the factfor investors in the Chinese market, international legal experts, and managing directors of companies that are already established or wish to be in China. PRC Business Law thus readily achieves the objective that its author set himself in the Preface: to have as his sole ambition to throw out a few thoughts that others will be able to turn into brilliant ideas. Beyond this excess of Chinese false modesty, it is a shame that such a strategic choice in favour of the business world is made at the expense of the academic one, given that the latter already suffers from a paucity of publications in French on Chinese law. A meaty bibliography, appendices in the form of an anthology of texts, and a less linear and more personal approach might have been able to turn this work into a benchmark introduction to Chinese economic law for a much broader public. But doubtless the pay-off from such a market is far less rewarding
Translated from French original by Peter Brown
1. This work, reprinted in October 1999, has also been enthusiastically received by French businessmen. Thieffry & Associés, Comment vendre et simplanter à Shanghai, [How to Sell and Set Up Shop in Shanghai] 2nd edition, Paris, CFCE, Coll. Guide juridique et fiscal [Legal and fiscal guide], 1999, 254 pp.
2. Although the collections of judgments do not always take proper account of the evolution of Chinese practice in jurisprudence, a certain number of anthologies have nonetheless been published in Chinese and English. Among them, we should mention the brilliant work of Chen Dejun, Michael J. Moser and Wang Shengchang, International Arbitration in the Peoples Republic of ChinaCommentary, Cases and Materials, 2nd edition, Hong Kong, Singapore, Malaysia, Butterworths Asia, 2000, 1308 pp.