[Opinión] Letters from London: The Complicated Relationship Between English and Chinese Law

Josep Galvez | 04/05/2021 6:46

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The “Bar” of England and Wales has been very upset lately with the relations it maintains with the Chinese government. A situation in line with the change that the United Kingdom is experiencing with respect to the Asian country in recent years, going from being the biggest defender of China to being one of its biggest critics today.

And it is especially surprising when, in addition, the country’s commercial relationship with China is worth approximately 7,000 million pounds (a little more than 8,000 million euros), which makes the Asian giant the fourth commercial partner, the sixth export market and no less than the third in import.

Imagine what all that means in legal services.

A SPECIAL RELATIONSHIP OF ENGLISH LAW WITH HONG KONG

As is known, for historical and practical reasons dating back at least to the times of the British Empire, English law is still widely used in all types of international transactions in Asia, Africa, the Middle East or Europe.

Indeed, the combination of an expansive use of the English language, the trust and prestige of its courts and the inertia of a great legal tradition dating back to the Middle Ages, means that “common law” remains the preferred applicable law in all kinds of cross-border investments and projects all over the world and also in China.

Anyone who has visited Hong Kong will have seen that the English influence is still very much present, especially having been a British colony for 156 years.

Specifically until July 1, 1997, when the sovereignty of the territory was returned to China, in the so-called process of “return” to the Asian continent.

However, the large English law firms continue to have a strong stake in exploiting what, according to many forecasts, will be the world’s largest economy before the end of this decade.

In this way, these firms have large offices in Hong Kong and mainland China since English law continues to be the most widely used law in all types of international transactions, although it no longer has anything to do with England.

Thus, for example, a “solicitor” advising on cross-border mergers and acquisitions or a “barrister” acting in international arbitration proceedings can do so perfectly in Hong Kong, since the extensive scope of English law allows many professional opportunities both in the international arena and particularly in Asia.

However, beyond the geopolitical complexities, the truth is that China’s relationship with the English legal world has cooled down lately as a result of some issues related to human rights, which endangers a very important business in terms of legal services, as we will see.

THE CASE OF THE “BARRISTER” DAVID PERRY QC, A NOTICE TO NAVIGANTS

This issue must first be put into context with the increasing police and judicial pressure that the Chinese government is exerting in Hong Kong against opponents of the Beijing regime, who are being deprived of the freedoms they enjoyed – paradoxes of fate – under British colonial status.

To this must be added, in addition, that The United Kingdom has recently become a “safe harbor” against the unstoppable Chinese steamroller, in such a way that, for example, only during the past month of September 2020, British passports were issued to almost 60,000 Hong Kongers.

As if this were not enough, the UK Foreign Minister, Dominic Raab he met with Lord Reed, the president of the Supreme Court, to discuss the desirability of British judges continue to be appointed as non-permanent judges of the Hong Kong Court of Last Instance.

Well, to further heat the matter, if possible, the lawyer chosen to carry out the accusation against one of the most important groups of these pro-democracy activists has been, precisely, English.

In effect, the “barrister” hired by the Hong Kong Justice Department -dependent of Beijing- was David Perry QC, a well-known London criminal, belonging to “Lincoln’s Inn”, with great experience having participated in several criminal proceedings in Hong Kong and, whose intervention in that jurisdiction is allowed by the “unusual complexity and public interest of the matter ”.

So, last January 2021, Perry was appointed as the prosecution attorney against nine of the main pro-democracy activists de Hong Kong for alleged crimes of public order consisting of organizing and participating in an unauthorized meeting in 2009.

Perry’s decision to accept the assignment did not like a hair in the UK, in such a way that it was highly criticized, calling him a “mercenary” up, and even reaching the issue to the British Parliament, where they gave it even more cane.

In the “Bar” it was even suggested by some colleagues that Perry could lose his status as “Queen’s Counsel” (“QC”) by having entered “in clear conflict with one of his fundamental duties” in relation to English law and to the 1984 Hong Kong agreement

In addition to fiery speeches for or against Perry’s decision, the Foreign Ministers of the United Kingdom, United States, Australia and Canada issued a joint statement in which they expressed their «serious concern»For the arrests of these opponents.

The result of all this was, as you can imagine, David Perry’s express resignation from the case.

CHINA SANCTIONS TO “BARRISTERS” AND A “CHAMBERS”

In this somewhat rarefied environment, there has also been a recent controversy with the Chinese authorities regarding alleged criticisms made by some “barristers” regarding human rights again.

You are right. On March 22, the Ministry of Foreign Affairs of China announced the imposition of sanctions, among others, the famous Essex Court Chambers, along with nine other people, including the “barristers” Baroness Kennedy QC and Sir Geoffrey Nice QC.

The sanctions They consist of a ban on entering mainland China, Hong Kong and Macau.

And it also prohibits these people and their members from doing business with Chinese citizens and institutions, blocking any assets or property they have in China.

The reason? Well, having spread “lies and misinformation” about the treatment of Muslims “Uyghurs” in the Chinese province of Xinjiang.

Apparently, at the beginning of this year, some “barristers” of the indicated “chambers” drew up a legal opinion at the request of “Global Legal Action Network”, A British NGO that carries out actions against countries implicated in human rights violations.

Thus, the aforementioned report included subtle criticisms, such as that the acts carried out by China against the “Uighur” community in the Xinjiang region “amounted to crimes against humanity and genocide”.

As you can imagine, the report did not like much in Beijing and hence the sanctions on everything that moved, including a whole “chambers”.

The point is that the decision of the Chinese government has not only demonstrated the evident lack of knowledge about the particular functioning and structure of the English “chambers”, where each “barrister” is completely independent, but also that it has resulted in the unanimous rejection of all the legal institutions of the United Kingdom and even of Ireland.

En efecto, los cuatro colegios profesionales, “The Bar Council of England and Wales”, “The Bar Council of Ireland”, “The Bar Council of Northern Ireland” y “The Faculty of Advocates of Scotland”, they have stormed out to defend those affected in a statement, calling the measures “an indiscriminate attack” and “incompatible with respect for the rule of law.”

However, despite this laudable stance of “keep on rockin’ in the free world”We must remember the important interests of the great business advocacy in the area, where on the contrary, the maxim seems to be that “do nothing to upset China”(“Do nothing to upset China”), lest the business run out.

We’ll see what happens.

Next week, more.

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