The year 2019 started earlier this week, and the Year of the Pig starts early next month. Thinking about Sino-American New Year resolutions, my mind drifted to what the best of a bad year could be like in light of all the dark and gloomy political, military and economic forecasts proclaimed by the so-called expert-pundit-prognosticators. The conclusion I reached was a Year of Law and New World Disorder — a year in which laws are enforced, not-withstanding the ensuing disruptions and dislocations their enforcement generate in the New World Disorder.

Lawyers are not only running the military, technology and media companies — but armies of lawyers in government and global law firms. The law is a $6 billion a year industry, in the private sector, not counting government lawyers salaries and related expenses. It is miniscule compared to the military industrial complex and the money governments spend arming themselves and fighting wars.

Being a lawyer born in the Year of the Pig, I couldn’t help conclude lawyers are far more effective and efficient — cost wise and results wise — fighting in court rather than advising militaries on battle fields.  Let the military commanders run the wars.

Lawyers can apply the law in geopolitical disputes, much like the former U.S.-ZTE dispute that almost bankrupted the company; the current U.S.-China-Canada Huawei spat, over the company violating U.S. sanctions against Iran; the U.S. Justice Department criminal charges filed last month against Zhu Hua and Zhang Shilong, who it said acted on behalf of the Chinese Ministry of State Security in coordinating espionage activity by hacking to steal trade secrets and technology; and recently concluded trial of Patrick Ho.

Patrick Ho Chi-ping, the former Hong Kong Home Affairs Secretary, member of China’s political advisory board and member of the Hong Kong Special Administrative Region Preparatory Committee, was found guilty last month in New York, by a jury, on seven of eight charges of corrupt and illegal business practices. Bribery and money-laundering.

Ho was convicted of violating the Foreign Corrupt Practices Act (“FCPA”), which prohibits payments to officials to help obtain business and anti-money-laundering laws. He paid millions of dollars to African officials for oil rights in Chad and Uganda on behalf of Chinese conglomerate CEFC China Energy — a principal and advocate of China’s Belt and Road Initiative trade expansion strategy.

The charges arose from the use of the U.S. banking system to process bribes to obtain oil rights under the guise of donations originating from Hong Kong.

The laws on the books in the U.S., China, and international bodies and courts — domestic and international — are a lot more efficient than duking it out on battle fields.

The Huawei and Ho cases are a more civilized way to slow China’s aggressive Belt and Road Initiative. Better than bombing the infrastructure already built — online or offline.

President Trump’s National Security Adviser John Bolton and China Trade Representative Robert Lighthizer, are lawyers who know the law and how to game it. Their counterparts on President Xi’s team are techno-apparatchik non-lawyers who do not fully appreciate or respect the law, hence the New World Disorder.

China’s first ever appeal court for intellectual property disputes opened earlier this week. Foreign companies complain that different legal standards are applied by different local courts. Hopefully, a national appeal court will consolidate and apply international standards.

Former U.S. Trade Representative, Charlene Barshefsky, a lawyer, who opened the World Trade Organization door for China said, a provision in China’s WTO agreement stipulated that it should not be conditioned upon the distribution of import licenses on the transfer of technology, which would suit the description by most companies as China’s forced transfer of technology. But Barshefsky said the U.S. had never applied or enforced the provision.

She said China’s legal process “has become complicated,” as the Communist Party had put itself above the law, “whereas other countries place the law above party and above the individual.”

China agreed to depart from its state-led economic system, which is a major source of the Communist Party’s power, but to date has refused to do so. China reneged on robust market changes and adopted a model she described as “significantly state-run” and discriminated against foreign companies.

President Xi has revived Marxist and Maoist orthodoxies. He has exerted state domination over the economy, to make state-owned companies stronger, better and bigger. Private and foreign companies are required to set up party branches or cells.

China, the world’s second largest economy, ended the year as the world’s worst performing stock market. It shed $2 trillion in value, in part because of the U.S.-China trade dispute.

That is because the law of supply and demand — market forces — is a law that cannot be amended by a Party decree!

Getting judgements against sovereign states or their agents enforced is another matter. We’re getting there. Judgments are a starting point to negotiate a mutually beneficial agreement as was the case with ZTE. Only if such negotiations fail do the parties resort to other means.

As a law student, I co-authored a Law Review article with Barry Johnson. The article was about the history of the California Long Arm Statute. A law that allows parties to sue each other across state lines if both parties had contact with the jurisdiction the suit is filed and are subject to the law in question. The article went on to win the California Most Legal Writing Contribution Award that year.

Having advised American and Chinese companies on the pitfalls of FCPA, because of the numerous Long Arm Statutes America and several of its states have, I know first-hand how lethal and effective the law can be.

China, Ho and Huawei are finding out.

America and China have shared for the last 40-years the world’s most important bilateral relationship, and must continue to do so — lawfully.

A civilized peaceful World Order is a law-based order.

Here’s to the Year of Law and New World Disorder!

About the Author

Related Posts

I never cease to be amazed at how expensive health care is in America. There is no reason for...

“When Hong Kong stands up, the world will follow,” lyrics written by Vietnamese-American Trui He in...

There were many positive takeaways from the double-header Detroit Democratic Debates — both party...

Leave a Reply

Social media & sharing icons powered by UltimatelySocial