Xi vowed "political, diplomatic, economic, & law" countermeasures against "long-arm," but few noticed
How to connect the dots in China reporting & analysis, and, if someone could have, the news should have emerged earlier.
(Everything in this piece is openly-sourced, and the views are totally personal.)
It all started with a tweet from Henry Gao, a Professor of Law at the Singapore Management University, on Thursday afternoon
The Chinese text in Prof Gao’s tweeted picture and its translation
习近平总书记2019年2月在中央全面依法治国委员会第二次会议上指出：这些年来，我国涉外法律服务业有了长足发展，但同快速增长的需求并不相配。目前，国内能够熟练办理涉外法律业务的律师只有七千二百多名，能够办理“双反双保”业务的律师不到六百名，能够在世界贸易组织上诉机构独立办理业务的律师只有三百多名。国内企业大量的涉外业务都被欧美律所拿走了，其中蕴含着很大的安全风险。
In February 2019, at the second meeting of the Commission for Overall Law-based Governance, General Secretary Xi Jinping pointed out that: over the years, China's foreign-related legal service industry has made great progress, but it does not match the fast-growing demand. At present, there are only more than 7,200 lawyers in China who can handle foreign-related legal affairs skillfully, less than 600 lawyers who can handle the business of anti-dumping, anti-subsidy, Safeguard Measures, and Special Safeguard Measures, and only more than 300 lawyers who can handle business independently in the World Trade Organization's appellate body. A large number of foreign-related businesses of domestic enterprises have been taken away by European and American law firms, which contains great security risks.
Prof. Gao tweeted the quote without identifying the source. So the first thing to do is, of course, to search for the readout of the second meeting of the Commission for Overall Law-based Governance in February 2019. (It’s common knowledge that readouts of meetings like that are published.)
That’s pretty easy, and it won’t take 30 seconds to find the readout. But, as with all readouts, the piece didn’t mention anything as remotely as specific as Prof. Gao’s tweeted quotes. The closest thing in the readout is:
加强涉外法治专业人才培养，积极发展涉外法律服务，强化企业合规意识，保障和服务高水平对外开放。
We will strengthen the training of foreign-related legal professionals, actively develop foreign-related legal services, strengthen corporate compliance awareness, and ensure and serve a high level of opening to the outside world.
So Prof. Gao’s tweeted quotes must have come from somewhere else. After a few Googling, it turned out that he probably just came across a little-known article published in September 2021 in a well-known Chinese newspaper.
Somebody named 盛铭 Sheng Ming published a commentary on Page A2 of the Study Times, the newspaper of the Central Party School, on September 15, 2021, where Prof. Gao’s tweeted quotes apparently originated.
But the commentary didn’t mention the source of the quote, which was a bit strange since this would usually not be the usual occasion to publish the General Secretary’s specific remarks if they hadn’t been published formally before.
A little bit more digging was now in order. After a few Googling, it turned out that Xi’s entire speech- not just the readout - at the meeting - was already in the public domain.
A Xinhua report on December 16, 2020, says
中共中央党史和文献研究院编辑的习近平同志《论坚持全面依法治国》一书，近日由中央文献出版社出版，在全国发行。
Comrade Xi Jinping’s book On Adhering to the All-round Rule of Law, edited by the Central Committee of the Communist Party of China Institute of Party History and Literature, was recently published by the Central Literature Publishing House and distributed nationwide.
Another Xinhua report on the same day says
中共中央党史和文献研究院编辑的习近平同志《论坚持全面依法治国》一书，收入习近平同志2012年12月4日至2020年11月16日期间关于坚持全面依法治国的重要文稿54篇。现将这部专题文集的主要篇目介绍如下。
《为做好党和国家各项工作营造良好法治环境》是2019年2月25日习近平同志在中央全面依法治国委员会第二次会议上的讲话。
Comrade Xi Jinping’s book On Adhering to the All-round Rule of Law, edited by the Central Committee of the Communist Party of China Institute of Party History and Literature, includes 54 important manuscripts by Comrade Xi Jinping from December 4, 2012, to November 16, 2020.
"Creating a Good Legal Environment for Doing All the Work of the Party and the State Well" is the speech made by Comrade Xi Jinping on February 25th, 2019, at the second meeting of the Commission for Overall Law-based Governance.
Since the book with the entire speech was published on December 16, 2020, the speech has been in the public domain, and anybody could have bought it in the market.
After another round of Googling, it turned out that some people had uploaded the entire book in PDF online, which saved a trip to the bookstore.
And here it is, starting on Page 251 of the book
Some quotes:
法治是最好的营商环境。 各类市场主体最期盼的是平等法律保护。 一次不公正的执法司法活动， 对当事人而言， 轻则权益受损， 重则倾家荡产。 近期， 有关部门纠正了一批执法司法不公 的典型案件， 效果很好， 还要继续加以解决。 要把平等 保护贯彻到立法、 执法、 司法、 守法等各个环节， 依法平等保护各类市场主体产权和合法权益。 对滥用查封、扣押、 冻结财产等强制措施， 把民事纠纷刑事化， 搞选择性执法、 偏向性司法的， 要严肃追责问责。 市场经济是法治经济， 要用法治来规范政府和市场 的边界。 现在， 有些地方政府部门仍然热衷于直接配置资源、 直接干预微观经济活动， 导致部分产能过剩、 地方债务和金融风险累积等问题多发。 要用法律和制度遏 制一些政府部门不当干预经济的惯性和冲动， 解决好政府职能越位、 缺位、 错位的问题。 无论是化解地方隐性 债务， 还是处理 “僵尸企业”、 淘汰落后产能等， 都要依法依规解决， 不能简单依靠行政命令和手段。
The rule of law is the best business environment. All kinds of market players are looking forward to equal legal protection. An unfair law enforcement and judicial activity to the parties concerned may cause damage to their rights and interests or even ruins their lives. Recently, the relevant departments have corrected a number of representative cases of unfair law enforcement and adjudication, and the results are very good. They (the relevant departments) should continue to solve them.
Equal protection should be implemented in all aspects of legislation, law enforcement, adjudicating, and compliance with the law, and the property rights and legitimate rights and interests of various market entities should be equally protected according to the law.
Those who abuse coercive measures such as impounding, detaining, and freezing property, criminalizing civil disputes, and engaging in selective law enforcement and biased justice should be held accountable strictly.
The market economy is an economy ruled by law, which should be used to regulate the boundary between the government and the market. Currently, some local government departments are still keen on the direct allocation of resources and direct intervention in micro-economic activities, resulting in such problems as overcapacity and the accumulation of local debt and financial risks.
We should use laws and systems to curb the inertia and impulse of some government departments to interfere in the economy improperly and solve the problems of abuse, absence, or misplacement of government functions. Whether it is to resolve local hidden debts, deal with "zombie enterprises," or eliminate backward production capacity, they must be resolved by the law and regulations. They cannot simply rely on administrative orders and means.
But perhaps more newsworthy are the following quotes:
我国日益走近世界舞台中央，我国企业和公民也越来越多走向世界。大国之间地缘竞争、科技和产业制高点竞争、贸易保护主义抬头等风险因素和不确定性持续加大。我国企业拓展海外利益遇到的阻力和挑战势必增大，跨国纠纷和法律问题也将更多更复杂。我们要甄别这些纠纷的性质，有理有利有节应对。有的西方国家以国内法名义对我国公民、法人实施所谓的“长臂管辖”，在国际规则上是站不住脚的，但他们执意这样做，我们必须综合运用政治、经济、外交、法治等多种手段加以应对。
Our country is getting closer to the center of the world stage, and more and more of our enterprises and citizens are going global. Risk factors and uncertainties such as geographical competition among big countries, competition in the commanding heights of science and technology and industry, and rising trade protectionism continue to increase.
The obstacles and challenges encountered by our enterprises in expanding their overseas interests are bound to increase, and transnational disputes and legal issues will be more and more complicated. We should identify the nature of these disputes and deal with them on just grounds, to our advantage, and with restraint. Some Western countries impose the so-called "long-arm jurisdiction" on our citizen(s) and legal persons in the name of domestic laws, which is untenable in international rules. However, when they insist on doing so, and we must comprehensively use various means such as politics, economy, diplomacy, and the rule of law to deal with it.
Also
要把法治应对摆在更加突出位置，用规则说话，靠规则行事，维护我国政治安全、经济安全，维护我国企业和公民合法权益。
……
针对西方国家打着“法治” 幌子的霸权行径， 要加强反制理论和实践研究，建立阻断机制，以法律的形式明确我国不接受任何国家的“长臂管辖”。
We should put the rule of law in a more prominent position, speak by rules and act by rules, safeguard our political and economic security, and safeguard the legitimate rights and interests of Chinese enterprises and citizens.
……
Targeting the hegemonic acts of Western countries under the guise of "the rule of law,” we should strengthen the theoretical and practical research of counter-measures, establish a blocking mechanism, and make it clear in the form of law that our country will not accept the "long arm jurisdiction" of any country.
Note that the speech was made at the meeting on February 25th, 2019. The readout published immediately didn’t mention the blocking mechanism. But the book with the speech was published no later than December 16, 2020.
Judging history with hindsight is unfair, but if someone had paid attention to the book at the time, then they probably wouldn’t have been surprised by the news three weeks later
China’s New Rules Amp Up Pressure on U.S. Businesses (Wall Street Journal)
Updated Jan. 9, 2021 10:42 am ET
HONG KONG—Beijing hit back against recent U.S. restrictions targeting Chinese companies, saying it plans to ban Chinese firms and citizens from complying with foreign laws and sanctions it deems “unjustified.”
Beijing’s new rules, released Saturday, also allow Chinese companies to sue in Chinese courts those who comply with foreign laws.
Or the news six months later
China Passes Law to Counter Foreign Sanctions (Wall Street Journal)
Updated June 10, 2021 9:43 pm ET
HONG KONG—China enacted a new law aimed at countering foreign sanctions, in response to U.S. and European efforts to pressure Beijing on issues spanning human rights, trade and technology.
Senior members of China’s legislature approved the “anti-foreign-sanctions law” on Thursday, state media said, following an expedited process that skipped public consultation and involved lawmakers reviewing the bill twice instead of the usual three times.
……
Foreign business executives voiced concern over what they see as unusual secrecy. “European companies in China are alarmed by the lack of transparency in this process—the first reading was never announced, and there is no draft to examine,” Joerg Wuttke, president of the European Union Chamber of Commerce in China, said before the law was passed.
Observers say the rapid passage of the new law was the culmination of Chinese leader Xi Jinping’s demands, issued in November, calling for speedier improvements to China’s legal framework for safeguarding its sovereignty, security and interests in dealings with foreign parties.
While the law had been months in the making, state media only disclosed the existence of a draft on Monday, saying the bill was ready for its second reading and final passage this week by the standing committee of the National People’s Congress.
……
In January, China’s Commerce Ministry published new rules for countering what it called unjustified foreign laws and sanctions that target Chinese companies and citizens, which would, among other steps, allow Chinese businesses to sue in Chinese courts for compensation over losses that result from foreign measures.
Then in March, the National People’s Congress approved plans to improve China’s legal tool kit for countering sanctions, intervention, and “long-arm jurisdiction” from foreign countries, state media said.
To sum it up, the order of rule-making and law-making, which materialized in January and June 2021, respectively, had been made no later than the February 2019 speech. And that order has been in the public domain no later than December 2020.
But few noticed. (Yours truly didn’t, either.)
Now let’s read the quote from the speech on February 25, 2019, again:
Some Western countries impose the so-called "long-arm jurisdiction" on our citizen(s) and legal persons in the name of domestic laws, which is untenable in international rules. However, when they insist on doing so, and we must comprehensively use various means such as politics, economy, diplomacy, and the rule of law to deal with it.
Now there is a wild thought, and it’s pure speculation, especially after the very recent blockbuster journalism from the Wall Street Journal:
Three months after Sabrina Meng Wanzhou, the Chief Financial Officer of Huawei and daughter of Huawei founder Ren Zhengfei, was arrested by Canada on a provisional U.S. extradition request on December 1, 2018, who could have been the “citizen(s)” referred to here?
Since we have mentioned books, a new one has just hit the bookshelf
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