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November 25, 2008
ALERT: American Companies in China: US to Redouble Enforcement of Foreign Corrupt Practices Act:
The American Foreign Corrupt Practices Act seeks to criminalize bribery of foreign officials -- not of American officials -- by regulating and punishing the conduct of Americans doing business globally. In its "Report of the Committee on Banking, Housing and Urban Affairs to Accompany S. 305...May 2 (legislative day, March 28), 1977," the U.S. Senate noted:
The statute covers payments made to foreign officials for the purposes of obtaining business or influencing legislation or regulations. The statue does not, therefore, cover so-called "grease payments" such as payments for expediting shipments through customs or placing a transatlantic telephone call, securing required permits, or obtaining adequate police protection, transactions which may involve even the proper performance of duties.
The word "corruptly" is used in order to make clear that the offer, payment, promise, or gift, must be intended to induce the recipient to misuse his official position in order to wrongfully direct business to the payor or his client, or to obtain preferential legislation or a favorable regulation. The word "corruptly" connotes an evil motive or purpose, an intent to wrongfully influence the recipient. It does not require that the act be fully consummated, or succeed in producing the desired outcome.
Did you too see the word? I had to read it twice to make sure "evil" was not a typo. Hmmm.... This is, without doubt, activist legislation that seeks to influence global behavior indirectly by holding Americans to account. Does that sound right to you, when many of the nations it seeks to indirectly regulate employ bribery as a common and ordinary way of life? Isn't it their responsibility to clean up their own mess? Why am I to be punished for behaving as they would in their own land?
The EU and its member countries have enacted similar legislation. For those doing business globally, especially in the third world, where "gifts" are expected, anti-corruption leglislation in one's home country is a serious obstacle. In China, one of the most corrupt nations, those who require the assistance of government walk the wire of violating US and EU anti-corruption leglislation.
Once thought to be safe from the same level of scrutiny, payments to charities are not immune. Schering Plough's $76,000 contribution to a legitimate charity -- the favorite of a senior Polish official -- resulted in a $500,000 fine in June 2004 when the company failed to account for the payment as the bribe that it was deemed to be.
Government enforcement, at least in the U.S., will apparently be redoubled.
The U.S. Securities and Exchange Commission expects in the next two to six months to slap larger penalties than in the past on a number of companies that have allegedly violated the Foreign Corrupt Practices Act, reminding lawyers in the field that the regulator is taking a tougher stance today on international bribery.
"The dollar amounts in the cases that will be coming within the next short while will dwarf the disgorgement and penalty amounts that have been obtained in prior cases," said Scott Friestad, the SEC's deputy director for the Enforcement Division.
I have never understood why the American government has made -- over three decades -- the extraordinaty effort to reach into its taxpayer funds to prosecute the bribery by Americans of foreign officials. Where will the money come from to increase enforcement efforts of global activities? Ah, timing, timing, never to be forgotten -- this must be part of the Obama stimulus? Clean up the world, in our image, and have the American government pay for the enforcement of it. A missionary purpose, one with which I find it hard to agree.
But that is the law as it stands and we must follow it. Businesses dealing with China must thoroughly understand the effect FCPA has on even something as seemingly unrelated as its client development efforts. Thinking of showing the Import/Export Development Official of City X and his colleagues around your factories in the US and then taking them for a weekend jaunt in some city where you have no business interests? What are you going to pay for? Do you plan on giving them "spending money?" Do you risk going afoul of the FCPA? To answer those questions, the extent of your exposure needs to be determined up front. Your business activity needs to be vetted by your company counsel.
Here's fish for thought: are the activities of Chinese national employees of American subsidiaries, who may never have left China in their lives, also regulated by the FCPA? We will deal with that question in a forthcoming post.
Posted by Richard at 1:55 PM | Comments (1)November 20, 2008
Video Event: The Onion Speaks on the Chinese Court System
Have we ever before seen such commentary on the Chinese court system? Or on China, from Westerners?
20 years ago, China was held the object of veneration -- perhaps because few knew anything about her. But she is now the target of and criticism, which grows ever more intense, and even ridicule. Watch this and you'll see what I mean.
China�s Andy Rooney Has Some Funny Opinions About How Great The Chinese Government Is
Posted by Richard at 7:38 PM | Comments (0)
Chinese Government Tells FDA To Enjoy Its Wonderful Vacation Spots
In yesterday's post, we noted the opening of the FDA office in Beijing and the frustration that they are bound to expect.
The struggle has begun.
"China hopes the U.S. side accepts certificates offered by the Chinese quality inspection department on goods to be exported to the United States," Foreign Ministry spokesman Qin Gang was quoted as saying by the state-run Xinhua news agency.
In other words, China will not cooperate with American Food and Drug Administration inspectors resident in China and will only issue certificates attesting to a Chinese government inspection.
This is the opening salvo In what should prove to be a major battle, much of which will be fought in public, a spectator's delight, a regulator's nightmare.
Posted by Richard at 2:09 PM | Comments (0)November 19, 2008
Another "So What?": American Food and Drug Administration Announces the Establishment of an Office in Beijing
We’re opening up a new era, not just new offices...a permanent F.D.A. presence in China.
So claims Mike Leavitt, Secretary of Health and Human Services for the Bush administration. Well, at least there will be a physical presence -- but whether or not this office will be able to inspect any of the factories it wishes remains to be seen. It is unlikely the Chinese government will give the American government the access it wishes. Let us not forget similar programs which have come up against extraordinary stonewalling, e.g. Validated End-User (VEU) inspections under the BIS, requiring on-site inspections in China for certain technology items requiring a license prior to shipment.
The American public barely knows of that program and its frustrations, failures and very limited successes. Imagine the potential publicity of American inspections in Chinese factories where access is unfettered! No, indeed, there will be epic battles between Chinese and American regulators over destination factories. American regulators are sure to be on the short end of the stick. One hopes that the stories of these bureaucratic tangles will find their way to the press -- I will be pleased to post a report of anyone so involved, especially any of the eight inspectors who are supposed to be manning the office. You may remain confidential...
Posted by Richard at 1:57 PM | Comments (0)November 16, 2008
Another, Yet Another Email Scam Targeting Lawyers
Another scam mail targeting lawyers. Similar content to previous scams: delinquent accounts in the U.S. requiring your legal services to recover.
You'll notice, however, that, in this email, the author has inserted my name, as if to reassure me that his request is genuine.
He may have pulled the info on the company from Hoovers. My hunch is that this email was created by someone with access to Hoovers, perhaps at a university library in Hong Kong.
Wouldn't you agree that a domestic steel company in Anhui is very unlikely to have debt collection work in the U.S.? The yahoo.com.hk address listed in the email, does not agree with the AOL.com return email address in the email's properties tab, making this solicitation completely unpersuasive.
Delinquent account services in USA. Attn: Richard Kuslan This is an official requisition for your legal consultation services on behalf of Maanshan Iron & Steel Company Ltd.Posted by Richard at 11:36 PM | Comments (0)We are based in China and our principal activity is manufacture and sale of iron and steel products. The production process of the Group mainly comprises cooking, sintering, iron smelting, steel smelting and rolling. The principal steel products come in four major categories: steel sections, wire rods, medium or thick steel plates and train wheels and tyres. It imports machinery and raw materials and exports steel products. It is also involved in the planning and designing of automation system, metallurgical, construction and environmental protection projects. Other activities include purchase, installation and repair of computers and communications systems; production, sale and transportation of slag products and provision of related consultation and technology services. We are presently incapacitated due to international legal boundaries to exert pressure on our delinquent customers in USA and we request for your services accordingly.
We got your contact information from the state of USA lawyers Directory as a result of our search for a reliable firm or individual to provide legal services as requested. After a careful review of your profile as well as your qualification and experience, we are of the opinion that your are capable and qualified to provide the legal services as requested.Please accept my sincerest appreciation on behalf of Maanshan Iron & Steel Company Ltd,in advance for your willingness to render your services as we look forward to your prompt response to our request.
Thank you.
Mr.Zhu Changqiu
Executive,
Maanshan Iron & Steel Company Ltd.
zhuchangqiu@yahoo.com.hk________________________________________
You Rock! One month of free movies delivered by mail from blockbuster.com
November 14, 2008
The Chinese "Stimulus Package" -- A Few Notes from a Political Economist
Victor Shih's always engrossing Elite Chinese Politics & Political Economy blog talks about the Chinese bail-out:
There is a rumor that Chinese Academy of Social Sciences, a government think-tank, came up with a plan to set up a government fund to buy up Chinese stocks if the market falters drastically.
Read it all here.
November 13, 2008
FDA Issues Blanket Detention Order of Certain Products From Chinese Manufacturers
Below you will find the relevant text of the FDA's import detention order of Chinese-made product, as reported by the AP today. Note the breadth of products potentially affected. Physical inspection is not required under this order for detention. (For some background on melamine, read this FDA paper on melamine contamination in China)
Products affected by this order include:
PRODUCT
Bakery Products/Doughs/Mixes/Icings
Cereal Preparations
Breakfast Food Ready to Eat
Breakfast Food Quick Cook
Snack Foods
Milk/Butter/Dried Milk Products
Cheese/Cheese Products
Ice Cream Products
Filled Milk/imitation Milk Products
Soft Drink, Milk Based (Chocolate Flavored), Noncarbonated
Noncarbonated Soft Drink, N.E.C.
Soft Drink/Waters N.E.C.
Soft Drink, Milk Based (Chocolate Flavored, Etc.) Carbonated
Carbonated Soft Drink, N.E.C.
Beverage Base N/Fruit (Cola Rootbeer Etc)
Beverage Base Non-Fruit Liquid
Soft Candy w/ Nut, seeds, w/out Coconut
Soft Candy w/ Coconut
Soft Candy w/ Fruit
Soft Candy w/ Nuts & Fruits
Soft Candy, w/out Nut/Fruit
Candy Specialties
Candy w/out Chocolate, N.E.C.
Chocolate/Cocoa Products
Custard Pudding mix
Pudding Mix (Not Custard)
Baby Food Products
Iodinated Casein (Cat. I, Type A med. Article)
Iodinated Casein (Combo Cat. I& II, type A, med)
Iodinated Casein (Cat. I med. feed)
Iodinated Casein (Combo Cat. I & II, med. feed)
Dairy Byproducts for Animals
Animal Waste Feed Products
Byproducts for Animals, N.E.C.
Pet Cat Foods
Pet Dog Foods
Pet Fish Foods
Other Pet Foods, N.E.C.
Laboratory Animal Feeds
Pet and Laboratory Animal Foods, N.E.C.
The order (redacted):
IA #99-30, 11/12/2008, IMPORT ALERT #99-30, "DETENTION WITHOUT PHYSICAL
EXAMINATION OF ALL MILK PRODUCTS, MILK DERIVED INGREDIENTS AND FINISHED FOOD PRODUCTS CONTAINING MILK FROM CHINA DUE TO THE PRESENCE OF MELAMINE AND/OR MELAMINE ANALOGS"
PRODUCTS: All milk products
All milk derived ingredients
Finished food products containing milk
PROBLEM: Unsafe Food Additive
Poisonous or Deleterious Substance
Unfit For Food
COUNTRY: China (CN)
MANUFACTURER/
SHIPPER: All
CHARGES: "The article is subject to refusal of admission pursuant to
Section 801(a)(3) in that it appears to bear or contain a
food additive, namely melamine and/or a melamine analog,
that is unsafe within the meaning of section 409
[Adulteration, section 402(a)(2)(C)(i)]"
OASIS charge code: MELAMINE
and/or
"The article is subject to refusal of admission pursuant to
section 801(a)(3) in that it appears to bear or contain a
poisonous or deleterious substance which may render it
injurious to health [Adulteration, section 402(a)(1)]"
OASIS charge code: POISONOUS
and/or
"The article is subject to refusal of admission pursuant to
section 801(a)(3) in that it appears to be unfit for food
[Adulteration, 402(a)(3)]"
REASON FOR
ALERT: In September, 2008, FDA became aware of thousands of infant
illnesses in China due to the consumption of infant formula
reported to contain melamine. Reports indicated over 53,000
illnesses, including almost 13,000 hospitalizations, and at
least four deaths of infants. The illnesses involved the
formation of kidney stones and crystals and related
complications.
The milk used in the infant formula has been implicated as
the source of the melamine contamination. According to
sources, at a bulk fluid milk collection point, water is
added to the bulk fluid milk to increase the apparent volume
of product. Melamine is added to the water/milk mixture to
increase the nitrogen content in order to inflate the
apparent protein content found in the product. Milk is
transported from the collection centers to milk processing
facilities.
The problem of melamine contamination is not limited to
infant formula products. Chinese government sources
indicate contamination of milk components, especially dried
milk powder, which are used in the manufacture of a variety
of finished foods. These contaminated milk components
appear to have been dispersed throughout the Chinese food
supply chain.
FDA analyses have detected melamine and cyanuric acid in a
number of products that contain milk or milk-derived
ingredients, including candy and beverages. In addition,
information received from government sources in a number of
countries indicates a wide range and variety of products
from a variety of manufacturers have been manufactured using
melamine-contaminated milk or milk-derived ingredients,
including: fluid and powdered milk, yogurt, frozen desserts,
biscuits, cakes and cookies, taffy-like soft candy products,
chocolates, and beverages. These products appear to contain
at least one milk-derived ingredient and they are of Chinese
origin. Reports of contamination have come from more than
thirteen countries in Asia, Europe, and Australia, in
addition to the United States. Additional products from
various manufacturers continue to be found to be
contaminated with melamine.
The problem of melamine contamination in Chinese food
products is a recurring one. In 2007, bulk vegetable protein
products imported from China were contaminated with melamine
and melamine analogs, apparently from deliberate
contamination.
November 10, 2008
Auto Bailout, Financial Bailout, What Next?
Massive non-performing loans that force major financial institutions into insolvency. Significant state investment in manufacturing industries. National governmental leadership in product planning. Taxpayers "profiting" from equity investments in quasi-private enterprises.
What nation do you think I'm referring to? Could be China, but no.
The United States has apparently embarked upon the creation of a quasi-capitalist economy with socialist characteristics:
The Democratic lawmakers said federal aid should come with "strong conditions," such as requirements that car makers build more fuel-efficient vehicles, and equity stakes for the government so taxpayers could profit if the companies recover.
A re-run of the last 25 years of a Chinese state-led market economy, Americanized?
Posted by Richard at 4:04 PM | Comments (1)November 9, 2008
World Bank Chief Asserts World Trade Has Fallen
An update to our earlier post on the contraction of credit used for international trade:
According to Mr. Zoellick, the onset of the [credit] crisis caused a "stunning" decline in global trade. "And we believe that you could find in 2009 that you could have an actual decline in world trade, which would be the first time since 1982," Mr. Zoellick said.
Speaking at a briefing during the Group of 20 meeting of finance ministers and central bankers in Sao Paulo, Mr. Zoellick said that one of the primary drivers in the drop-off was a big gap in trade finance. The World Bank recently moved to expand a trade finance facility to $1.5 billion, up from $1 billion, that could be expanded further to help offset the gap.
Read the rest here.
According to Mr. Zoellick, China is a country that could move forward with a financial stimulus package.
Which, in fact, they have just announced.
Both the Chinese and American governments have asserted through massive market invasions their great goodwill as final protector of the People. We can posit that Chinese decision-makers are intent upon bolstering their own private business interests, which will suffer without a stimulus, and with tamping down root causes of social disorder. It is only natural that the single biggest investor in capital infrastructure in China -- it's government -- would also move massively to expand its involvement.
But who would ever have thought that Americans would act to nationalize banks and invest vast sums of taxpayer money into private non-banking enterprises? Isn't something very wrong here? We in America trod a dangerous path of ever-expanding federal government, a behemoth bureaucracy that blots out the sun while claiming the light as its own. Those who grow it larger, accompanying their aggrandizement with language at once fearful and promising, contribute to the starvation of everyone who does not need a handout from the King to live and thrive.
Posted by Richard at 2:29 PM | Comments (0)November 7, 2008
Yawn! Another Attorney Scam-mail with Webpage for Effect
Here's yet another example of a scam-the-attorney email. I guess you can call me a collector.
Crudely conceived email. Its properties:
from Rising Sun
reply-to WLung@aggies.com
to sunr35@yahoo.com
date Wed, Nov 5, 2008 at 11:54 PM
subject Your Service Needed (Attorney at Law)
mailed-by yahoo.com
signed-by yahoo.com
The From and To are identical. In other words, mass email. Here's the text
Rising Sun (HK) Limited
7/F The Grande Building
398 Kwun Tong Road
Hong Kong
Phone/fax: (852)3010-1786
Attention: Counsel,
We the management of Rising Sun Industrial, Hong Kong require your legal representation for our North American Customers. We are of the opinion that the ability to consolidate payments from North America will eradicate delays due to inter-continental monetary transaction between Asia and North America.
We understand that a proper Attorney Client Retainer will provide the necessary authorization and we are most inclined to commence talks as soon as possible. Your consideration of our request is highly anticipated and we look forward to your prompt response request.
Sincerely,
William Lung Chin
Not addressed to me personally. But -- google the phone number and you get a complete webpage for the Rising Sun company. DO NOT go to that webpage. I was able to view a cached version through the google search, but the original may be a phishing site.
Posted by Richard at 2:31 PM | Comments (0)November 5, 2008
More on Closing Chinese Factories
Chinese banks, despite State prodding to the contrary, refuse to lend to struggling factories. At least, that is what Bloomberg writes.
``It's wishful thinking for the government to try to talk banks into lending to stimulate the economy,'' says Li Qing, a Shanghai-based analyst at CSC Securities HK Ltd. ``Banks are holding onto their purse not because they are bound by the quota, but because they are expecting mounting defaults and failures.''
Hold on to your 帽子 （hats）!
Posted by Richard at 3:06 PM | Comments (0)November 4, 2008
Off-topic: Electronic Voting Machine Our Next President
I know it has nothing to do with China, but it's just too funny to pass up.
Voting Machines Elect One Of Their Own As President
November 3, 2008
Audio Event: Retail in Vietnam with Giles Cooper
While China occupies center stage for most Western investors, Vietnam's nascent retail sector may provide opportunities, which our guest attorney Giles Cooper, resident in Hanoi, expounds upon, with comments on the legal system as well.
Giles Cooper is Special Counsel to Duane Morris. View his bio here.
Posted by Richard at 7:02 PM | Comments (0)November 1, 2008
Melamine and the Chinese Academy of Sciences?
One of my fav blogs suggests that the Chinese Academy of Sciences (中国科学院) was the prime mover in the introduction of melamine into the Chinese food production industries. The Academy has issued a denial.
Posted by Richard at 1:44 PM | Comments (0)
