US businesses are helping China improve its legal system
A unique effort to strengthen the rule of law in China, the US-China Legal Cooperation Fund is a charitable program supported by leading US companies engaged in trade and investment with China. The fund solicits project proposals from US and Chinese partners, most of which are educational institutions or legal services organizations, that are planning cooperative efforts in legal education, improvement of legal services, protection of legal rights, legislative and judicial procedure, and related areas. Members of the US-China Business Council (USCBC), publisher of the CBR, established the fund in late 1998, soon after the US and PRC presidents committed to enhance bilateral cooperation in the field of law.
With the help of 44 US companies that have invested more than $1 million in the fund since 1999, the fund has made 102 grants that support a wide variety of rule of law projects in China. The fund’s trustees selected the projects from among more than 300 requests. Many of the fund’s grants are used as seed money to leverage larger grants from others.
The fund’s board of trustees consists of executives of businesses that support the fund and prominent China scholars. The board is co-chaired by Herbert J. Hansell of the law firm Jones Day and R. Michael Gadbaw of Georgetown University Law Center.
The latest approved grants, announced in February 2009, provide full or partial support for projects dealing with freedom of government information, migrant worker training, criminal defense lawyer training, prevention of sexual harassment in the workplace, and other important legal topics. The projects supported aim to
- Establish an annual forum on government information publishing, dissemination, and disclosure in Beijing to promote government information freedom (sponsored by Washington University School of Law, St. Louis, Missouri, in cooperation with the National Library of China, Beijing);
- Provide pre-employment training on labor law and worker rights to minority Tibetan and Qiang people in Ma’erkang, Sichuan (sponsored by the Council of Overseas Chinese Services, New York City, in conjunction with Southwest University for Nationalities, Chengdu, Sichuan);
- Establish a pilot electronic-learning platform for training criminal defense lawyers in China (sponsored by the University of Montana, Missoula, Montana, and International Bridges to Justice, Boston, Massachusetts, in cooperation with Peking University Law School);
- Initiate a distance-learning, Internet-based course on international human rights and mental disability law at Shanghai Jiao Tong University School of Law (sponsored by New York Law School in cooperation with Shanghai Jiao Tong University);
- Provide legal resources to low-income female workers in China with a particular emphasis on prevention of sexual harassment in the workplace (sponsored by the Legal Aid Society-Employment Law Center, San Francisco, California, in cooperation with Peking University Women’s Law Studies and Legal Aid Center);
- Create China’s first course in AIDS law and establish a national hotline to provide AIDS law counseling services (sponsored by Asia Catalyst, New York City, in cooperation with China Orchid AIDS Projects, Beijing);
- Conduct a study on the effects of recent labor legislation on industrial relations in China (sponsored by the International Labor Rights Forum, Washington, DC, in cooperation with the Shenzhen Spring Wind Labor Dispute Consultation and Service Center);
- Create and disseminate a practical guidebook for legal aid in rural China with a particular focus on assisting farmers with issues related to their land rights (sponsored by the Rural Development Institute, Seattle, Washington, in cooperation with Guangxi University Law School, Nanning, Guangxi);
- Teach US commercial space law at the Harbin Institute of Technology School of Law and China University of Political Science and Law (sponsored by the National Center for Remote Sensing, Air, and Space Law, University of Mississippi School of Law, University, Mississippi);
- Conduct a study on outsourcing to civil society organizations for social services, including international experiences, lessons, and recommendations for China (sponsored by the International Center for Civil Society Law, Crownsville, Maryland, in cooperation with the PRC Ministry of Civil Affairs, Beijing); and
- Conduct a policy dialogue on the development of legal institutions in China (sponsored by the Maureen and Mike Mansfield Foundation, Washington, DC, and New York University School of Law in cooperation with Peking University Law School).
Case Study: Rural Development Institute
The Rural Development Institute (RDI)—an international nonprofit organization that helps the rural poor in developing countries obtain legal rights to land—launched an effort in 2008 to establish China’s first independent legal aid and education center to strengthen farmers’ land rights in Guangxi. The World Bank supplied a grant for the operation of the center, but RDI and its partner—Guangxi University Law School—did not have the funding to publish the lessons learned at the center and to share them broadly with practitioners and the academic community.
In November 2008, the US-China Legal Cooperation Fund (LCF) provided a $17,500 grant to RDI to develop a practical guidebook that would help legal aid practitioners replicate legal services throughout rural China. According to RDI, the guidebook “will provide the nuts and bolts of a functioning legal aid service” and will include information on how to establish and run an independent legal aid center for farmers’ land rights, approach farmers in various situations, stimulate farmers’ interests in their land rights, reach rural women, and mitigate political risk. The information will be available in print and on the RDI website.
The LCF grant will also help RDI design a website to raise awareness among law schools, legal aid practitioners, and international development professionals about ways to provide legal aid to farmers. The website, which will be in Chinese and English, will host an electronic version of the guidebook as well as other legal aid resources and news on upcoming trainings, discussions, and events.
LCF has awarded RDI grants for other projects in the past. For example, in 2006, LCF granted RDI and Guangxi University Law School $9,000 to train Guangxi-based legal aid lawyers and staff on the protection of rural women’s land rights. RDI and the law school completed the training in January 2007.
To prepare for the training seminar, RDI and Guangxi University Law School compiled a 37-page training manual. Nearly 30 legal-aid lawyers—including 17 women—attended the seminar, which featured presentations and group discussions. The training attempted to answer several questions common in rural areas, such as how one can protect a daughter’s land rights when she marries and moves to a different village, ensure that a woman’s land rights will be preserved after divorce or abandonment, and ensure equal inheritance rights for women concerning land.
After the seminar, RDI reported that the trainees would likely serve as advocates and train colleagues when they returned to their jobs, extending the seminar’s reach to benefit many more women in years to come.
—Paula M. Miller
Paula M. Miller is the CBR’s associate editor.
Case Study: Carnegie Endowment for International Peace
In 2004, the US-China Legal Cooperation Fund (LCF) provided a $15,000 grant to the Carnegie Endowment for International Peace, which was working with the Shanghai Academy of Social Sciences (SASS) Institute of Law, to assess the performance of PRC courts in commercial litigation. The study, which examined the experience of litigants in civil lawsuits in Shanghai through surveys, aimed to enhance knowledge of China’s legal system and help investors and Chinese policymakers identify the strengths and weaknesses in China’s current judicial system. Prior to the study, relevant empirical studies based on systematically gathered evidence were rare.
For the study, Carnegie and SASS surveyed roughly 200 corporate litigants that were plaintiffs or defendants in commercial disputes in Shanghai’s courts and more than 200 individual litigants to examine whether, by taking legal recourse, they were able to protect their property rights and enforce contracts. The survey of corporate litigants showed that small and medium-sized companies used courts more actively to protect their interests than large firms did, 25 percent of litigants tried to resolve disputes earlier through other means but were unsuccessful, and companies’ chief executives made the decision to sue in 54 percent of cases. A large percentage of respondents (47 percent) admitted trying to influence their judges before the trial by giving gifts or holding banquets. Regarding the trial process, most respondents (63 percent) rated the presiding judges highly in terms of conduct and professionalism, and 83 percent of respondents said that the trial procedures formally complied with legal procedures.
In terms of outcome and enforcement, 53 percent of respondents in the corporate litigant survey said that their company won the lawsuits and that the court met all or nearly all of their claims, and 10 percent said their company won but that the court only met part of their claims. Of the winning respondents, most said they won because their argument had legal merits (47 percent) or abundant evidence (49 percent). The survey also found that 77 percent of winning plaintiffs asked the court to enforce the judgment because the losing party failed to carry out the court’s judgment voluntarily. Nearly 80 percent of judgments enforced by the court were successfully enforced within one year.
Through a seminar and write-ups in SASS and Carnegie publications, the two institutions shared the survey results with audiences in China and the United States. The LCF grant helped support work that was part of a multi-year study on Shanghai’s modern legal system. Carnegie hopes to use the Shanghai results “as benchmarks to evaluate the performance of courts in other provinces and jurisdictions.”
—Paula M. Miller