Transnational Law Blog

TLB is One of The Top 100 Law Blogs

TLB has been selected by the ABA Law Journal as one of the top 100 blogs by lawyers for lawyers. We are now in a competition for a top spot in one of the 12 subcategories and we need your vote! Please click on the graphic or click here and vote for TLB. We ask that you please vote at least once and we besiege you to vote often!

The ABA Law Journal did a feature on TLB during the summer entitled, Law Blogs Can Be a Successful Strategy for Jobseekers (pdf), which discussed accomplishments of some of TLB's authors.

And while you're at it, vote for China Law Blog, which is written by two of the partners at Harris & Moure, pllc, the firm I worked at last summer in Shanghai. Their blog on China is the best and it deserves your vote! To vote for China Law Blog click here.

Just What We Need, More Lawyers

Recently the results of the California Bar exam were released and thousands of people nervously waited for the results webpage to load.  Of the 8,151 people who took the July 2007 exam 4,571 passed, including (thankfully) me.   As a result, almost 5,000 new lawyers will be added to the already swollen ranks of lawyers in California.  In contrast, at the recent swearing ceremony for the Sierra Leone Bar Association there were 20 new lawyers. The year before there were only 12.  Is the amount of new lawyers an indication of the health of the legal system?

At first blush, 20 new attorneys seems a ridiculously low number.  However, a number of Sierra Leonean lawyers I talked to did not consider the number to be inordinately low.

There are a number of  reasons why this may be the case.  Sierra Leone, if you hadn't noticed, is much smaller than California and has less formal education per capita.  In Sierra Leone, similar to many former British colonies, lawyers do a general degree in law before going to a specialized barrister school.  Here, the progression is Fourah Bay College and then a year at the Sierra Leone Law School.  The class sizes at the law school are roughly equivalent to the number of people called to the bar, with some not qualifying and one or two going back to the bar in The Gambia or Guinea. 

Another common characteristic is for Sierra Leoneans to train and work abroad where the legal practice is more lucrative.  A number of Sierra Leone lawyers who work at the Special Court have been educated at Canadian and UK law schools.  Because of the large diaspora, it is often quite easy for Fourah Bay graduates to pursue their education and careers abroad.  A number do return to Sierra Leone, but there are significant incentives to stay abroad.  While this may have some brain drain effect, the reality is that there are not enough legal jobs in Sierra Leone to accomodate a significant rise in the number admitted to the local bar. 

The lawyers that I talked to were quick to point out that it is not the number of lawyers that is the problem, but that the administration of justice and institutions were/are riddled with corruption.  With court personnel taking bribes, judges following the direction of politicians and shockingly inadequate legal resources, adding more lawyers is not going to help.

This does offer some insight in how legal development programs should be designed.  Its not the case that the legal education system is so defunct that competent attorneys can't be produced.  As such, less focus should be paid to bolstering the legal education.  This is not to say that there is no room for improvement, but where there are limited resources, more attention should be paid to providing electricity to the courts, proper record keeping and proper training for court administration.

I am very fortunate to work with a number of Sierra Leone lawyers who are quite talented. As a number of them are permanently based in Freetown, there is hope that when the resources of the legal system improve there will be plenty of talented and dedicated local lawyers to restore the Sierra Leone bar to the highly respected position it once occupied in West Africa.

China's Naval Rebuff Could Be Response to Dalai Lama's Medal

According to the Washington Post, China refused to let a US Navy carrier group enter Hong Kong harbor during Thanksgiving-- a port call planned months in advance-- and it is being seen as a response to the US's favorable treatment of the Dalai Lama. The Washington Post said the following:

On Thursday, China turned away the USS Kitty Hawk, which has previously docked in Hong Kong, a common rest and recuperation stop for U.S. Navy vessels. Hours later, China changed its mind, with Foreign Ministry spokesman Liu Jianchao telling reporters, "It is a decision out of humanitarian consideration only."

But by then, the carrier, four warships and a nuclear submarine were already 250 miles out to sea and a decision was made to continue on to their base in Japan. The 8,000 personnel aboard marked Thanksgiving at sea.

A few days earlier, two U.S. minesweepers had been denied permission to refuel in Hong Kong and wait out bad weather there, the head of the U.S. Pacific Command, Adm. Timothy J. Keating, told the Associated Press.

Many points of tension exist between the United States and China, including trade, military issues and how to deal with Iran's nuclear program. But China takes special interest in the Dalai Lama, calling him a dangerous "splittist" who threatens the sovereignty of China. Chinese officials contend that he secretly advocates independence for Tibet, rather than just autonomy.

Traditionally, a new Dalai Lama, who is believed to be a reincarnation of a past lama, is selected by senior Tibetan monks who search for a boy born around the time of the death of the preceding lama. The Chinese government recently announced that it must approve all lama appointments.

This week, the Dalai Lama was quoted in a Japanese newspaper as saying that the Tibetan people would not support a successor who was selected by China. "If the Tibetan people wish to uphold the Dalai Lama system, one possibility would be to select the next Dalai Lama while I am still living. Among options being considered are a democratic selection by the high monks of Tibetan Buddhism, or the appointment of a successor by myself," the Dalai Lama said, according to the Sankei Shimbun.

Also see Why is the US Defying China for the Sake of Tibet and not Taiwan?

And see China Confidential's post Understanding the PLA's Thanksgiving Message.

Politically Inconvenient: Everyone Including Russia Knows the War in Iraq is About Oil

An interesting post at China Confidential entitled, Russian Leaders See Iraq War as US Oil Grab, analyzes Russia's motives for not adopting the Bush administration's hard line on Iran. According to China Confidential, Russia's political and military leaders view the US invasion of Iraq as a move to steal Iraq's vast oil reserves. The post gives the following explication:

The Russian view is that the "Great Oil Grab" was the brainchild of the first Bush administration's neo-conservative faction that included deputy defense secretary, Paul Wolfowitz; Douglas Feith, the undersecretary of state for defense; and Lewis Libby, the chief of staff for Vice President Cheney (whom many Russians regard as the de-facto president). As Moscow sees it, the neo-cons planned to first privatize (or "piratize," as some Russian analysts put it) and then substantially increase Iraqi oil production and exploration in order to flood the world oil market and drive prices below $15 a barrel. The Russians speculate that the Americans believed that an oil crash would cause the collapse of OPEC--and the domino-like fall of anti-democratic, oil-rich regimes--while strengthening the economies of the US and its oil-importing allies.

Iraq has approximately 112 billion barrels of proven oil reserves, which could theoretically be doubled or perhaps even tripled through exploration, surpassing Saudi Arabia's proven reserves of 245 billion barrels.

Russia's resurgence is based on escalating energy prices. The country is using its immense oil and gas resources to advance a geopolitical agenda in opposition to the US (which, under President Bush, seems to have gone out of its way to antagonize the Kremlin and push it closer to its former Communist rival, China).

The fact that the alleged neocon oil plot (like the democracy promotion project) obviously backfired--Iraq plunged into anarchy and proved impossible to control, Iranian influence increased, Iraqi oil production decreased, and the price of oil rose instead of fell and is now approaching the $100 landmark--does not make Moscow more inclined to help the US to peacefully resolve the Iranian nuclear issue. Having established itself atop the world's largest pool of oil, in a position to potentially control its exploitation, Russian leaders suspect, the US now plots to put an end to the Islamist regime in Tehran and ultimately win control of Iranian oil reserves. Another "oil war" is in the making, the Russians assert.

They believe that their suspicions have ironically been confirmed by prominent personalities in the US, including former Federal Reserve Chairman Alan Greenspan, whose recently published memoir states: "I am saddened that it is politically inconvenient to acknowledge what everyone knows: the Iraq war is largely about oil."

Asked to comment, Gen. John Abizaid, former CENTCOM commander who oversaw three and a half years of the US occupation of Iraq, agreed. "Of course it's about oil, we can't really deny that," he said during a discussion at Stanford University.

Proposed Bill Would Make the USA a First-to-File Patent System

A new bill in Congress could bring the US in line with the patent systems of other countries. If the Patent Reform Act of 2007 passes, then the US will cease to be a first-to-invent patent system and will become a first-to-file system like most of the other countries in the world.

Joanne Irene Gabrynowicz of the Res Communis blog gave the following summary of the differences between the two patent systems in a post entitled, Filing First, Not Inventing, May Be More Important For Securing Space Intellectual Property:

When it comes to recognizing a creator’s right to a patent, most of the world has adopted the “first-to-file” rule. This means that the person or entity that files the patent first, is granted the patent without having to prove that they were the first to actually invent it. It was, as a former law school professor of mine used to say, “a race to the patent office door.” On the other hand, the United States has abided by the “first-to-invent” rule. This means that the patent applicant has to prove that it was he/she/it that was the first to invent the patentable item by being the first to reduce the patent’s underlying idea to a practice. Generally speaking, the first-to-file rule appeals to those who value efficiency in the often long patenting process. While those who value equity are proponents of the first-to-invent rule which seeks to reward the labor of the inventor.

Her post is an excellent read, and it briefly points out some of the implications the passage of this bill could have on space law and the general US practice of IP.

It seems to me that switching from a first-to-invent to a first-to-file patent system is like the US switching to the metric system. However, switching patent systems could have far greater implications than merely streamlining the systems between countries. It becomes a question of who should be rewarded? The first to invent or the first to get his patent to the trademark office? Apparently, the rest of the world appreciates efficiency over equity.

Debunking Five Myths About China's Legal System

Steve Dickinson has an excellent article in the China Economic Review entitled, Misrepresenting the Facts, which has the subtitle, "Exploding the myths about China's fast developing yet unfairly maligned legal system," (h/t China Law Blog). Dickinson is a partner at Harris & Moure, pllc, Seattle, Washington and Shanghai, China, and has lived and worked in China for nearly 30 years.

In the article, Dickinson said, "Much work needs to be done, and anyone in China understands the process is just beginning. But the trend is very clear. The Chinese authorities fully understand that economic development and development of a strong legal system go together."

The article debunks five myths about China's legal system:

Myth No.1: There are no laws in China. If anything, China has too many laws. Between 1979 and 1983, China promulgated 4,119 laws and regulations, and a further 37,775 between 1996 and 2000. Then the dam broke. In the five-year period from 2001 to 2004, 94,288 laws and regulations were promulgated in China, almost triple the previous five-year period. The pace of Chinese legislation continues at a breathtaking speed, with 2006 seeing the adoption of a property code, individual and corporate tax codes, a labor contract law and an anti-monopoly law. As it now stands, virtually every area of business life in China is covered by a modern statute or regulation.

Myth No.2: There are few lawyers and they are poorly educated. In 1981, there were only 6,218 lawyers admitted to practice in China. Since there were no legal departments in any of the major Chinese universities, many of these lawyers were poorly trained. By 2005, the number of admitted lawyers had grown to 114,471. Though the number of lawyers is far less than the highly over-lawyered US, it compares favorably with European countries like England, Germany, Italy and Spain, where the number of lawyers ranges from 120,000 to 150,000. Japan has only about 22,000 and Korea about 12,000. The level of education for members of the bar has also improved, with 100% having a post high school education and 54% having college or higher degrees with a specialization in law.

Myth No.3: There are few judges and they are poorly educated. China has worked especially hard at improving the quantity and quality of its judiciary. In 1987, there were 117,647 judges in China, but only 17% of those judges had received a post high school education. By 2000, this was up to 100%. By 2004, there were 190,961 judges, probably more than any other country in the world. (According to the crime statistics section at Nationmaster.com, there are 67,994 judges in Russia, 29,023 in the US, 6,774 in France and 3,019 in Japan.)

Myth No.4: The laws adopted are meaningless because Chinese people file few lawsuits. China has seen a tremendous increase in the number of civil lawsuits. In 1981, 1,179,388 decisions were rendered in cases of first instance in China. By 2004, the number had increased to 5,625,310 decisions, up 377%. Meanwhile, the number of mediated civil disputes declined from 7,805,400 in 1981 to 4,414,233 in 2004. Civil disputes formally decided in accordance with the law totaled 10,039,543.

Myth No.5: Chinese statutes are intentionally vague and there is no guidance on interpretation from commentary or case law. China is a civil law country, and every statute assumes a large body of unstated civil law theory from official and academic commentary. Further, China’s Supreme Court publishes important explanatory comments and cases every year. Fully annotated cases on virtually every major statute are available in large bookstores, but they are usually in Chinese only. For a common law lawyer to try to understand Chinese statutes merely by reading the English language translation is an exercise in futility.

Dickinson ends by adding, "In dealing with China, it is critical to understand the facts. We should not make China an even more difficult place to conduct business by perpetuating stale, old myths that can lead business people to make costly mistakes."

For more, we recommend reading the post by Dickinson's co-blogger, Dan Harris, on China Law Blog called, I Heart China's Legal System. The post also has a number of comments that also make for good reading.