China Law Practice: Different By Design

Our China practice is designed to be different from the standard model. In terms of our lawyers' backgrounds, the legal connections we have in China, and, most importantly, the way we bill and handle the legal work, our clients have a unique advantage when doing business in or with China.

Experienced China Lawyers: Fluent in Chinese Language and Culture.

Steve Dickinson manages our China Law practice. Steve is fluent in both spoken and written Chinese. During the mid 90's Steve was an Associate Professor of International Law at the University of Washington, where he also headed up the Law School's program for training Chinese legal professionals. Steve was the first attorney invited to teach in China by an independent Chinese Bar Association. Steve was a guest lecturer (in Chinese) for the intellectual property law program at the Beijing University School of Law and international contract law in Italy for the International Development Law Organization.

Dan Harris has been handling international law matters in Asia for more than 15 years, and makes frequent visits to the region. He loves to tell of the time the Westin Chosun Hotel in Seoul photographed him and gave him gifts because it was his 100th stay there; and that may have been as many as 100 stays ago. Dan's Korea stays invariably are on his way to or/and from his many China trips. Dan speaks and writes extensively on the legal aspects of doing business in China.

Mathew Alderson works within our China Practice from Beijing, China. He has been based there since 2009. Prior to joining Harris Moure, Mathew had been a partner at two Australian firms, both of which had offices in China and Australia. Mathew handles all types of foreign direct investment and trade issues, and has a particular interest in intellectual property in China. Mathew also focuses on assisting foreign film and media companies with their China legal matters.

Ben Dietz began his Chinese language and culture studies in 1980, and has been involved with China and Tawian ever since. Ben spent two years working with a Taiwanese law firm and he too is fluent in both spoken and written Chinese. Ben's practice focuses mostly on advising Chinese companies doing business in the US and on advising American and European companies on the legal aspects of doing business in Taiwan and in China.

Matthew Dresden Matthew is also fluent in both spoken and written Chinese. Matthew's practice is based out of our Seattle office and he focuses on international technology and entertainment law contracts and on Chinese transactional and IP work. Matthew clerked with a Federal bankruptcy judge and he handles our international bankruptcy cases and international matters with restructuring or bankruptcy law issues.

Leading national and international media, including, The Wall Street Journal, The International Herald Tribune, Forbes, Business Week, Investor's Business Daily, The New York Times, The National Law Journal, The Washington Post, The Washington Times, China Economic Review, China International Business Magazine, The Christian Science Monitor, National Public Radio (NPR), and CCTV (China Central Television), have all come to us because of our China law expertise and LexisNexis chose us to head up its China law site.

Our Clients are also Different

The focus of our Chinese law practice is on the small and medium sized company, and on the large company needing specialized international law assistance. Though hardly anything in a Chinese legal matter can ever be said to be "typical," our Chinese transactional and litigation work usually has some common threads. The corporate side of our China work usually involves assisting American or European companies in establishing Chinese manufacturing or service operations in China and in protecting their intellectual property and brand name rights. The litigation side of our China work usually involves assisting American and European companies in pursuing claims against Chinese, Taiwanese, and Hong Kong companies that have violated intellectual property rights, have failed to pay on a contract, or have manufactured defective goods.

Many of our Chinese law clients do not have their own in house international legal counsel and their regular outside law firm is unfamiliar with Chinese legal issues. We frequently are retained by other law firms on matters requiring China legal knowledge. Sometimes this involves our helping another law firm's client figure out the legal requirements for doing business in China and other times it will involve our being "the China lawyers" on a domestic or international litigation matter.

Cost Effectiveness is Key

We handle China law matters differently than the typical large law firm. Almost all of our China work is done on a flat fee basis. We almost always charge a flat fee for OEM agreements, employment contracts, employer manuals, trademark filings, non-disclosure agreements (NDAs), and company formations (particularly WFOEs).

We have long established relationships with top Chinese law firms in Shanghai, Beijing, Qingdao, Shenzhen, Dalian, and various other cities throughout mainland China. We work directly with these firms in the Chinese language to ensure communication is effective and costs are contained.

Trademarks in China — Absolutely Essential

You have worked too hard building up your name to lose it in China. There are people in China who make a living by usurping foreign trademarks. The fact that you are manufacturing your product in China just for export does not minimize the need for you to protect your trademark. Once someone registers "your" trademark in China, they have the power to stop your goods from leaving China.

The key to protecting a trademark in China is actually very simple: register it in China.

China's trademark requirements are actually quite similar to those in most other countries. The trademark must not conflict with an existing Chinese trademark and it must be distinctive. A Chinese trademark gives foreign companies a surprising amount of protection in China. For additional information regarding Chinese trademark law, please click here for an article we wrote on this, entitled, Chinese Trademark Registration - An Essential Primer.

The Practical Solution is Always our Goal.

Our goal in negotiating China business deals is to achieve our client's goals. We rigorously avoid legal provisions that work under US or other foreign law, but that will fail under Chinese law or business practices. We develop effective solutions that meet our client's needs in a way that works under China's legal system.

Chinese Contracts: OEM and Outsourcing Agreements

Chinese law is more than just what can be found in the Chinese law books. It is the law that is enforced every day by the Chinese courts and regulatory agencies. Our focus is on drafting a contract that works both for you and for China's overall legal system. For more on China outsourcing, check out Outsourcing in China: Five Basics for Reducing Risk.

Chinese Employment Contracts and Employer Manuals

Companies without written contracts with their China employees and an employee manual run the very real risk of getting sued and being found liable for double or more in back wages. The way to avoid these China labor law problems is relatively simple and relatively inexpensive: make sure all of your China employees (including your expat employees) have written employment contracts, preferably in Chinese. We have substantial experience writing Chinese language and China law compliant employment contracts and employee manuals for foreign companies with employees in China and we do these on a flat fee basis.

Chinese Licensing Agreements

Chinese companies are notorious for signing long term contracts to license your technology or name or other IP and then not paying once they have secured what they needed. We draft our China licensing contracts to increase the odds of your receiving full payment. We also make sure your licensing agreement is appropriately registered with the Chinese authorities to negate that excuse for not paying.

China Non Disclosure Agreements (NDA)

An American style Non Disclosure Agreement, calling for litigation in an American Court, is, in most cases, worthless. China is not the United States and for you to have the best chance of enforcing your NDA against a Chinese company, you typically will want your contract to be in Chinese and to call for enforcement in a Chinese court. After all, what is a Chicago court going to be able to do to stop a Chinese company from abusing your IP? Our China non-disclosure agreements are so different from the standard American ones, that we have given them a new name. We call them NNN Agreements to signify that they are written to prevent your Chinese co-party from 1) disclosing your confidential information, 2) competing against you, and 3) circumventing you. For more on our NNN Agreements, please check out the following: Why Non Disclosures (NDAs) Alone are not Enough for China and Why Non Disclosures (NDAs) Alone are not Enough for China. At Least Make Them Enforceable.

Chinese Language Ability is Crucial Because the Chinese Contract Controls

Our lawyers' ability to work directly in the Chinese language allows us to conduct negotiations directly in Chinese without need for constant translation, saving money and time.

There are many traps for the unwary in China and one of the most common is the dual language contract. A foreign company contracts with a Chinese company with contracts drafted in English and in Chinese. The foreign company takes heart from the English language contract calling for it to apply should there be any conflict between it and the Chinese version. The foreign company has been fooled. Chinese law dictates that in these situations the only enforceable contract is the one in Chinese and, frequently, when the foreign company goes to enforce the Chinese language contract, it learns it is different from the English language version in many respects. The foreign company now finds itself unable to enforce the contract it thought it had. We have seen many examples of these problems and we are aware of only one sure fire solution: retaining your own lawyer who is completely fluent in both English and Mandarin Chinese.

A contract that provides for litigation in the United States or your home country in Europe is rarely a solution. The problem is that even if a judgment in the United States is easy to obtain, that judgment has little to no value in allowing you to collect anything from the Chinese company. For that, you still need to go to China and sue on your contract there and for that you still need to be certain your contract conforms to Chinese law and is fully enforceable in China. Chinese law actually does provide powerful contractual remedies to deal with most potential business disputes. However, if your contract does not take advantage of these provisions, those remedies will not be available to you.

Representation on the Ground in China

Our clients retain us as their China counsel because they know of our reputation in international law and the high standards of our work. One of the distinctive ways we do this is by virtually always having at least three of our attorneys in China at all times. We do this (1) to maintain our close relationships with Chinese counsel; (2) to keep abreast of the business and legal situation in China; and (3) most importantly, to better serve our clients.

China Company Formation: WFOE, Rep Office, Joint Venture

We have extensive experience forming companies in China. Steve Dickinson of our office is considered one of the foremost Chinese corporate lawyers and the leading international corporate law treatise, International Corporate Procedures (Mathew Bender/Jordan's), chose Steve to write the Chinese corporate law chapter. Steve's combination of Western corporate legal training, Chinese language skills and deep knowledge of China's corporate law history ideally suit him to interpret China's business laws.

Steve is in constant demand as a speaker on how to avoid problems when entering into joint ventures, a topic on which he has lectured many times for JP Morgan Chase, including at one of their yearly China Conferences in Beijing, at which Steve was the only lawyer to speak. Steve also wrote an article for AmCham's China Brief magazine, entitled, "Avoiding Mistakes in China Joint Ventures" and Dan Harris wrote an article on the same topic for the Wall Street Journal, entitled, "Joint Venture Jeopardy."

Registering a company in China is very different from registering a company in the United States or in Europe. Registering a company in China requires much more than filling out a few forms and paying a small fee. It requires the company seeking to go into China to explain to the Chinese government exactly what it will be doing in China and how its being there will be good for China.

In the United States and in Europe, registering a company is a first step to securing the licenses, permits, identification numbers and approvals to do business. That is not the case in China. In China, those licenses, permits, identification numbers and approvals must be secured before registration can occur. So though it is complicated and time consuming to register a business in China, once registered, the newly formed company is fully ready to conduct business.

Chinese Litigation/China Arbitration

Many US firms find litigation in China to be expensive and cumbersome. There are two reasons for this. First, since litigation must be conducted in China through a Chinese attorney, they usually must work through a US attorney not directly connected to the case. Second, since the litigation must be conducted in the Chinese language, they are usually working through layers of translation back and forth from Chinese to English and back again. Because we have lawyers in China and in the United States who are fluent in Chinese and because we already have established long term relationships with top Chinese law firms and Chinese lawyers, we are able to commence litigation in China quickly and at relatively low cost. We have successfully overseen a number of Chinese litigation matters in China, ranging from securing payment refunds for bad product to pursuing breach of contract and fraud claims.

We also have substantial experience with arbitration in China, including CIETAC arbitration in English and in Chinese. If your contract calls for CIETAC arbitration and it does not provide for it to be in a language other than Chinese, you are facing arbitration in Chinese. Contact us. We can help.

Chinese Criminal Law/Chinese Criminal Litigation

Though our focus is on business, the law is different in China and what is not a crime in the West sometimes is a crime in China. Because of that, and due in large part to our Chinese language skills and our close connections with Chinese lawyers throughout China, we have developed an expertise in assisting foreigners facing Chinese criminal prosecution. On these cases, we bring in top-flight Chinese criminal lawyers and we act as a liaison between the client and the Chinese lawyer, who usually does not speak any language other than Chinese. Sometimes our role on these China criminal cases is confined to China. Other times, we aid in gathering evidence from outside China to help the foreign defendant in his or her China case.

China Law Blog
We started the China Law Blog in 2006 and it has since gone on to become the undisputed leader among China law blogs. For the last five years, The ABA (American Bar Association) Journal chose it as one of the top 100 law blogs and for three years in a row the Journal's readers voted it as the best blog in its category. China Law Blog has also drawn accolades from Business Week, Alltop and Blogged. You can read more about our blog on Wikipedia.