Summer 2011

Reflections of a US Lawyer in China:An Asian American Journey Back to Asia
Esther H. Lim

To capture my experience of living and working in China as a US lawyer, the story must start at the beginning. Not so much for chronological completion, but rather, to tell the story of an Asian immigrant who returned to Asia after many decades in America. The China I discovered in June 2008, when I moved to Shanghai to open my law firm’s first mainland China office, is not the same China today, and certainly will not be the same China tomorrow. During this time of great change, I attempt to capture a slice in time in China as seen through an Asian American back in Asia, witnessing one of the most remarkable periods in history for the nation.

The Full Circle -- From Asia Back to Asia

My life began in a rural seaside village in Busan, Korea, where I grew up with two sisters and a brother. On the wings of my parents’ dreams, my family and I began a new life in America with little money in our pockets. When I started junior high school four days after immigrating to the United States, I spoke no English and thus began a painstaking process of sink-or-swim immersion program. For the next two decades, we lived in the United States of America to become Americans—to learn English, to attend American schools, and to eat American food. We planted roots around Washington, DC, the Nation’s capital. I became a lawyer and joined a large firm in Washington, DC. We were living the classic immigrant dream as Asian Americans.

On that first flight to America nearly thirty years ago, I never dreamed that I would be on a plane headed back to Asia—this time to Shanghai, China—to start yet a new chapter of my life. After practicing law in Washington, DC for over ten years, I was approached by the Chairman of my law firm with the opportunity to open the firm’s first mainland China office as the managing partner. That proposal set off a series of actions, which ultimately led to the China-bound flight. On this journey back to Asia, my husband John Yang, also an Asian American lawyer, sat beside me, providing emotional support and physical assistance to his then 5-months pregnant wife.

The decision to move to China was neither easy nor quick. It took deep soul searching about our careers and our identities. John and I had established law practices in DC. We were active in local and national legal communities. We had family and friends, and were planning to start our own family in Arlington, Virginia. If the news of moving to China surprised our friends, it shocked our families, particularly John’s parents. After all, they left China in their youth and moved to Taiwan. They worked hard to immigrate to America, seeking the American dream for their two boys when John was only two years old. Three decades later, their younger son was headed right back to where they started. It had come full circle.

The year it took to reach a “yes” to the Chairman’s proposal was filled with countless questions. Three years in China later, those questions are a distant memory in a country that moves at “China speed.” Opening an office, practicing law, and living in China have been simply amazing. It has challenged, pushed, and fulfilled in ways beyond anything I imagined when practicing in the comforts of familiar rules, people, and language. In hindsight, the Chairman’s proposal was an offer I could not refuse.

Opening an Office in China -- Clear as Mud

I never prayed for patience. Perhaps, someone prayed for me. And God answered. Opening an office in China was … well, a test of patience to put it mildly. The application process for opening a foreign representative office is quite unfamiliar, often unclear, and reliably unpredictable. Some requirements are strict and exacting such as the use of a specific type of binding clip. Other procedures are opaque, leaving implementation and detail to interpretation and guesses. Through much grit and downright luck, the firm obtained from the Chinese Ministry of Justice a license to open a foreign representative office in less than two years.

After the long-awaited office license, the next phase of mental gymnastics and emotional flexibility came into full play in securing the work permit and work visa. One department of the Chinese government told us that, in order to obtain the work permit, one must first obtain the work visa. When we applied for the work visa, we were promptly told that we must first obtain … you guessed it…the work permit. We consulted with anyone and everyone. No one provided a clear answer. We ran in circles until we ultimately broke through the catch-22. In the meantime, we were on standby for an immediate international move to meet the annual, minimum work-day requirement in China, and made it by a hair.

Within a week of receiving clearance, we packed up our lives in suitcases and hopped on the China-bound flight. My memory of the initial days in China are dim, quite literally. In Shanghai, June is rainy season, aptly called the “yellow mold season.” We arrived on June 14, and did not see sun for ten days. With soaring heat and oppressive humidity, I took refuge in any place with air-conditioning and stepped out only when absolutely necessary into a cocktail of sweltering heat, humidity, and urban smog.

The initial months were focused on building the new office. Like any new construction, we faced delay. We also dealt with countless regulations, inspections, meetings, negotiations, re-negotiations, applications, approvals, and re-inspections of the new office. Designing the interior of our office with a highly experienced architectural firm, however, was the highlight. Like building a new home, we carefully inspected various shades of greys and browns, selected everything from ceiling to carpet, and ordered furniture. Six months after the scheduled date, we finally moved into the brand new office in February 2009.

If opening an office in China can cause nightmares, having opened an efficient, well-functioning office is a dream. In a highly-mobile market, building a skilled office with a loyal and dedicated team is absolutely critical. Indeed, one of the keys to overcoming the hurdles of the complex maze of regulations was our first hire, a local staff with the ability and agility to navigate through the Chinese system and personnel. She proudly holds the moniker “007.”

Practicing Law in China – A Wild Ride

To me as a patent lawyer, China is the Wild Wild East. Even in other practice areas, expat lawyers thrive on changing laws and regulations, a growing economy, and an evolving market. Practicing law in the world’s most dynamic market has been simply fascinating. The Huangpu riverfront where my law office stands tall on the 28th floor of a shiny new glass high rise, just minutes walk from the Pearl Tower, in Pudong, Shanghai, was rice fields just twenty years ago. Now, the new financial district, the center of finance in the world’s fastest growing economy, boasts skyscrapers and world-class offices, hotels, and shops. Peering south along the river, one can see the iconic bright red pavilion, ablaze with the morning sun, at the site of the World Expo in Shanghai, which ran for six months in 2010.

The recent meteoric growth of Shanghai, and China overall, parallels the historic speed with which IP has fueled the fire of innovation in China. In just several decades, China has transformed itself from a predominantly agricultural society into a manufacturing powerhouse. China is also fostering strong R&D focused industries and developing indigenous technologies. Take clean energy, for example. Chinese spending in green technology doubled that of the U.S. in 2009. Out of the $162 billion invested globally last year, China’s investment and financing in clean technology alone was $34.6 billion.

Brick by brick and mortar by mortar, China is constructing real property--buildings and roads. Any visitor from around the world cannot help but experience jaw-dropping surprise when witnessing the city commonly referred to as “New York City on Steroids.” Make that Mega Steroids. Huangpu River cuts the massive city of 20 million people into Puxi (West of the River) and Pudong (East of the River). West of the River, the skyline of the old Shanghai boasts historic buildings of the famous Bund. East of the River, the skyline of new Shanghai showcases the iconic Pearl Tower and one of the tallest buildings of the world.

Patent by patent and trademark by trademark, China is building its intangible assets through intellectual property. In just one year from 2009 to 2010, China climbed from sixth place to fourth largest patent filer in the world under the Patent Cooperation Treaty. China filings increased a whopping 56.2% from 2009, making it first in growth rate. In 2010, new patent applications filed by Chinese domestic companies in SIPO, the Chinese patent office, exceeded the one million mark. China’s growing constellation in the global IP sky is shining bright.

The record-breaking numbers of patent-application filings are nothing short of remarkable. After all, China’s patent laws were enacted only about 25 years ago. Since the first patent laws became effective in 1985, there have been three amendments—the most recent amendment becoming effective on October 1, 2009. In 2010, China celebrated its twenty-fifth anniversary of joining the Paris Convention for the Protection of Industrial Property. I am here to witness, and more significantly, be a part of these historic changes and growth. It is breathtaking.

Living as an Asian American in China – Straddling the Cultural Fence

“Where are you from?” was a question I was often asked living in the United States, even long after I became a U.S. citizen. People generally assume I am from somewhere else because of my Asian appearance. Although America has been my home for several decades, that question still provoked the unsettling feeling of an outsider, that I do not really belong.

From that, I moved to a country of 1.3 billion people who essentially look like me. Ironically, here, I am asked “Where are you from?” People, especially negotiation-loving merchants, can smell a non-local a mile away. People often assume I am a Chinese American, from Hong Kong, or funnier yet, from Singapore. When I explain that “I am Korean American--from Korea, grew up in the United States,” an assured nod of understanding and a comforting smile appear.

Roots are very important in China. People are interested in where you are from. By that, I mean what province and what town. Although I have never lived in China before, I now feel at home. I often wondered how I would fit in in China as neither Chinese nor American. As it turns out, many in Shanghai are neither. It is the world’s international melting pot. The Shanghai that I discovered in the wet, gray, hot summer days in June of 2008, has become a place where my daughter is growing up trilingual (Chinese, Korean, and English), where I’ve discovered and made friends, and where I’ve learned that home is where your heart is.

It did not escape my realization that I really haven’t gone far in 28 years. After all, Shanghai is an hour flight from Busan where my life began. But oh what a world of difference.

Esther H. Lim is the Managing Partner of the Shanghai office of Finnegan Henderson Farabow Garrett & Dunner, LLP

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Attorney General: Keynote Speech to Minority Lawyers' Conference
April 9, 2011
The following were remarks delivered at the British Minority Lawyers Conference presented by the Law Society of England and Wales and the Bar Council of England and Wales on April 9, 2011. (reprinted with permission from attorneygeneral.gov.uk)

Attorney General Dominic Grieve QC MP

Two years ago, when this conference last gathered:

  • President Obama had not yet completed his 100 first days in office
  • Susan Boyle had yet to appear on Britain's Got Talent and was totally unknown
  • We were looking forward to a barbecue summer
  • The Conservative party was in opposition
  • and of course two years is a long time in politics.

So thank you for inviting me to speak, perhaps look at some of the changes over the last two years and some of the challenging times we are facing. As a government minister I am first to acknowledge there are many challenges.

Justice doesn't and cannot come cheap. According to Treasury figures, before last year's Comprehensive Spending Review, annual central government spending on preventing crime and delivering justice - a global package including the police, prosecution, the courts, legal aid and offender management - was estimated at over £19bn. Of this, my own Departments cost a relatively modest £700 million.

Whatever the economic climate, all public servants are obliged to make the best possible use of the resources with which the taxpayer provides them. But the situation we face today is that the present Government inherited the UK's biggest budget deficit since the Second World War. We are determined to bring it under control by the end of this Parliament, because if we don't bring it under control then the prospects of being able to deliver good public services in ten, or 15 years time with a huge debt which requires a service and higher rates of interest to pay for that debt would in fact guarantee that the United Kingdom progressively becomes less capable of looking after those in need.

As a Government Minister, I know that the Criminal Justice System cannot be exempt from that process. As Attorney General, I am however determined to find every possible way of doing this without detracting from the quality of justice.

The Government recognises this is a transitional period providing both risks and opportunities and is likely to require a dynamic debate as to how we find the best way through the issues.

Today's theme of embracing change recognises that opportunities exist, and I pay tribute to the professional bodies represented here today and the way they have engaged with policymakers as we review the legal landscape. Not always an easy thing to do, often something that can sink into confrontation and polemic. I have to say with gratitude that although there have been differences, we have successfully avoided that in the period of the last twelve months.

Our hosts the Law Society have of course been extremely active in recent months campaigning with and on behalf of its members around the legal aid reforms. I meet regularly with the Bar as its leader - a rather ancient title which I try to honour by attending Bar Council meetings - and hear its concerns. It too has been very active in scrutinising the proposals for legal aid reform and engaged in offering alternative strategies, while accepting that the Government has a problem in cutting the deficit.

In a moment I want to address some of the issues of this conference; the legal aid review, alternative business structures, diversity within the profession as it is, and as we would like it to be.

But in addressing you I start with the principle that you are not an interest group by virtue of being drawn from minorities. Each of us is an individual, even if we share some aspirations and aims.

I may be white male, married with teenage children and Oxford educated but that actually tells you very little about me.

My life is based on my own experiences and my own views, and how I've responded to those experiences just the same as each one of you in this room.

My view has always been that anybody who has the necessary aptitudes to be a lawyer and wishes to do it, ought to have the opportunity to do so and to bring their background and experience to bear on the work that they do, and that is what we all need to strive to achieve together.

Legal aid

The legal aid consultation closed on 14 February and the responses are currently being considered. It is expected that a government response will be published in the spring.

England and Wales has one of the most comprehensive legal aid provisions in the whole world. But as my ministerial colleagues have said, the current system, costing around £2bn a year, is regarded as unaffordable in its present form.

Our proposals aim to radically reform the system and I and colleagues at the Ministry of Justice want to encourage people to take advantage of the most appropriate sources of help, advice or routes to resolution. And that doesn't necessarily always mean involving lawyers or courts. In fact for the avoidance of doubt, most of us responsible lawyers know very well that moment in conference when you say "my advice to you is not to litigate."

However, we also need to make clear choices to ensure that legal aid will continue to be available in those cases that really require it, the protection of the most vulnerable in society, and the efficient performance of the justice system.

There is still going to be a lot of publicly funded legal work available and those chambers and solicitors' firms which are adaptable and open to new ideas are in my view going to be poised to do well in the new market, where of course quality will still be of the utmost importance, as will the ability to show that the work will be processed efficiently and in a way which both furthers the need for propriety and the needs of justice.

Those people who are go-ahead and can do the work are going to get the work. There's plenty of evidence of chambers or solicitors firms which are capable of operating within the sorts of constraints and requirements of the successor to the Legal Services Commission will lay down.

The changing market

One of the key workshops today will be around the introduction of Alternative Business Structures.

Now I am a bit of an old fashioned lawyer, having been called to the Bar in 1980 it never crossed my mind when I started my career that we would end up by 2011 with the sort of prospects of ABSs that are now on offer.

By establishing a new framework for the regulation of legal services in England and Wales, the Legal Services Act 2007 has already led to significant changes.

The Government believes these do offer exciting opportunities by lifting the restrictions on the structure, ownership and management of businesses that provide legal services. This will allow different types of lawyers and non-lawyers to work together as single enterprise and provide legal and non-legal services. This is, I have to accept, revolutionary and some may look askance. Some people view it as a glass half empty and others clearly view it as a glass half full. The question is whether this change can be managed. I believe it can. I simply make this point, going back to my own experience as a lawyer having qualified in 1980. Even before the changes come in, are the Chambers in which I'm in recognisably different than in 1980? I can promise you the answer to that is 'almost unrecognisable'.

When I joined the Bar it was small group of 20 people working in a number of offices with a couple of clerks, everything done by paper - there were still ledgers, manual diaries and the system was dependent on a series of structures which isolated us almost completely from our own clients, including the solicitors for whom we worked. It is now a rather high-tech enterprise with over sixty members and when one looks around the Bar it's perfectly obvious that the capacity to adapt to the sorts of challenges that the Legal Services Act may impose on us are already on the way to being met.

So Alternative Business Structures - and I want to reassure you on this point - will not be introduced until Ministers are convinced that all the appropriate regulatory arrangements have been made, the necessary safeguards are in place and the impact of the new regime on the legal services market is fully assessed. But there is a need for all of us to prepare for the moment it happens.

The wider picture

Turning to diversity, there are lots of examples of good practice in the private sector and leading law firms have shown what can be achieved. I entirely agree with the comments made in the introduction, that with any number of global markets ethnic minority lawyers with origins and cultural roots in countries where in fact we wish to expand our services are now in an unrivalled position to have a substantial advantage over their non ethnic minority colleagues.

If the private sector promotes diversity and equality at every turn, then we will achieve greater diversity and equality far faster than if the Government is the main driving force.

But even in this time of savings the state as an employer of legal professionals must continue to provide opportunities for all on merit. I believe the record where the state is an employer is good in this respect and must not diminish.

Those of us within the system need to consistently work hard to dispel the myth that the government service and its various branches is not one of the best employers of equal opportunity, because my experience of ten months as Attorney General is it unequivocally is. I'm very wary of quotas. Often the only thing that stops people aiming for a profession which may seem dominated by specific groups of people is a perception that it is a members' club - but I can assure in the case of government service it most emphatically is not.

At the end of last year in the Government Legal Service, of all those lawyers, including Legal Trainees, who responded to the GLS ethnic monitoring questionnaire, 14% declared that they were from an ethnic minority background.

As you'll know, in 2008 Baroness Scotland as Attorney General launched an Equality and Diversity Expectations Statement for Civil and Criminal Panel Counsel and their Chambers. I as Attorney General and my colleague the Solicitor General as the current Law Officers are committed to equal opportunities and the Expectations Statement for the Civil Panel will remain in place and we will continue to monitor applications to the Civil Panels and the makeup of the Civil Panels themselves. It was a pleasure for me indeed this week to go and meet new members of the Civil Panels and to note there was good ethnic minority representation amongst them.

Treasury Solicitors sent a questionnaire out in 2009 and the results were helpful. However at a time when public spending was being reduced there had been a question about whether we could or should continue to monitor all Chambers when the Bar Standards Board is also asking Chambers for the same data.

So I am very grateful that the Bar Standards Board has agreed to share its data with us, and I understand that the next survey will go out in October 2011. I hope to be able to compare the makeup of the Bar in general with the make up of the panels at that time, and discuss it with the Treasury Solicitor when the data is available.

I prefer encouragement and honest criticism to blunt instruments such as sanctions which can all to easily have an adverse impact on the ethnic minority members in the organisation you're trying to sanction, but I will do what I can to spread the word that the Government is committed to encouraging diversity in the legal profession and that I do see it as an essential part of my work to see that this happens.

Diversity in the Law Officers' Departments

My own departments are consolidating already recognised good work in equality of opportunity. Let me take an example from the biggest, the Crown Prosecution Service.

Earlier this year Keir Starmer QC, Director of Public Prosecutions, spoke at the Bar Standards Board on the proposed new equality and diversity regulatory provisions that will be part of the Bar Code of Conduct and Practising Rules.

He said that equality and diversity should not only be a commitment for the public sector but fairness and diversity should be mandatory across the Bar.

The Equality Act 2010, which came into force last October, requires the CPS and Chambers that deliver public services on the CPS's behalf comply with the legislation and therefore meet the obligations under the new Public Sector Equality Duty that will come into force this month.

Against this commitment, the CPS has recently launched a new scheme for the delivery of prosecution services in court which ought to assist all talented criminal lawyers, be they solicitors or barristers.

All advocates undertaking prosecution work in the Crown Court (and Higher Courts) from October must be members of new, quality-controlled CPS Advocate Panels.

The panels will be open to all barristers and solicitor advocates, and panel members will complement and work alongside CPS in-house advocates. Although the overall number of advocates on the panels will be reduced compared to the current lists, which I have to say often have people on them who have not done any work for the CPS for years, but - and this I think is the important issue - selected advocates will have far more opportunity to undertake prosecution work, and indeed it will be expected that they undertake prosecution work regularly.

The Bar Council and the CPS worked together to bring about the Advocate Panel scheme. The scheme will not only give advocate appointees an important opportunity to gain experience of criminal prosecution work, but will signify excellence in advocacy with a clear focus on quality.

Looking to the top

I was heartened to learn that according to the latest Law Society figures for 2008/9, the number of minority ethnic group solicitors on the Roll increased by 11.5% to 16,111. The proportion on the Roll is up as well.

As for Barristers, in 2009/10 the total practising profession, according to the Bar, included 10.1% from a black and minority ethnic group - but 13.1% did not disclose their ethnicity.

The proportions in the employed and self employed Bar are around the same level.

But the issue remains as to how diversity is reflected on the other side of the courtroom.

Lord McNally, joint chair of the Judicial Diversity Taskforce, said in March that it was 'appalling' that only 20 per cent of judges are female and 8% from ethnic minorities.

In February last year the Advisory Panel on Judicial Diversity delivered a report with 53 recommendations.

One of them was that there should be a fundamental shift of approach from a focus on individual judicial appointments to the concept of a judicial career.

A judicial career should be able to span roles in the courts and tribunals as one unified judiciary. It said that lawyers from all backgrounds should be encouraged to recognise early in their career that becoming a judge could be a possibility for them.

The Government supports, in principle, the recommendations, and the Judicial Diversity Taskforce, established to oversee the delivery of the Panel's recommendations, met on 14 March to review what has been achieved to date, and will publish its report on progress shortly.

As the report also said, there is no quick fix and there needs to be a proactive campaign of mythbusting to deter good candidates from whatever background coming forward.

Conclusion

Despite the challenges, I am optimistic. There may be some bumps along the road but those who can adapt could well prosper. Talent will out. I wish you all a very productive day.

On April 6, 2011, the Diversity Committee co-sponsored a program called “Kiss, Bow or Shake Hands: Doing Business around the World.” The moderator, Terri Morrison, and presenters represented four continents and attendees were likewise diverse. The engaging dialogue between panelists and audience started almost immediately and offered up a real lesson in international relations. The diversity of our Section’s membership and its value was quite apparent as those attending shared perspectives!

Panelists first reminded those attending how easy it is for a simple gesture or comment to offend. Graphic examples included faux pas of recent Presidents and celebrities. Speakers started with encouraging a global mindset when conducting business abroad – remembering that Americans’ relative informality and frequent touching of others does not sit well with many other cultures. Using one’s left hand in cultures where left hands are only used for personal hygiene, for example, reminded us all of using caution in making any physical contact.

Speakers introduced various greetings, with one audience member demonstrating an appropriate bow for a chieftain and speaking about how awkward it felt when others did not show the same deference in such fundamental courtesies. The panel compared methods of exchanging business cards. Think of the card as an extension of the person giving it to you; it’s not for teeth cleaning or note taking (at least not in the person’s presence)! Another interesting point made by the panelists was the variations from country-to-country about how much introductory, non-substantive conversation is viewed as suitable and courteous.

They spoke of relative concepts of time – ranging from the U.S. view of time as money to the Somali view represented by the proverb, “The slow climber does not fall.” and the Huasa proverb, “Going slow does not prevent arriving on time.” Anyone going abroad on a legal project should take time to understand and plan for a project to progress at the pace of the local jurisdiction instead of expecting that one can impose one’s own pace. A good starting point to understanding what one can expect is simply to ask questions about typical timing and process for similar projects.

The panel provided terrific examples of how numbers, colors and symbols can affect the success of a project. Do you know why China opened the Olympics in Beijing on August 8, 2008? Do you know what it means to hang the Philippine flag on a pole with the blue stripe on top? What colors are reserved for royalty in certain countries? Audience members jumped in with various examples, relating to important numbers and colors, as well.

The panel also discussed the significant complexities of nodding and the use of “yes” and “no.” Audience members were encouraged to avoid using the word “no” in any language – not even in phrases like “No, thank you.” or “No problem.” The “no” leaves a negative impression, regardless of whatever else is said with it.

A large number of audience members expressed agreement with the panel, as various cultural styles of negotiation were discussed. Fair negotiation tactics in one country are not necessarily fair in another. Is bargaining hard and then bargaining hard again a vital part of showing business acumen in your country or does it come across as reneging on one’s previous promises? Many agreed that this difference was a major challenge in cross-border negotiation.

The panel and moderator spoke of how successful one can be at deepening relationships through simple study of dining etiquette, gift giving attitudes, acknowledging holidays and understanding gestures – but these topics were left for another day.

Throughout the presentation the message was clear: Try to inform yourself of key values and attitudes of any place you will visit or conduct business. When uncertain, ask. Also, remaining quiet and observing are key. Americans’ frequent attitude of jumping in and speaking to fill in gaps in the conversation is not always appreciated and can lead to serious social gaffes. No doubt the audience left the session with a greater appreciation for what they knew and had yet to learn about global cultural affairs and the importance of cultural sensitivity in the practice of international law.

Upcoming Program

Lessons from Europe: Dealing with Diversity Directives in a Global Environment
SIL 2011 Fall Meeting
Dublin, Ireland
Thursday, October 13
4:30 pm - 6:00 pm

Questions or comments?
E-mail us at
Sandra Yamate, Editorial Contact; sandra.yamate@theiilp.com
Sara Sandford, Diversity Officer; ssandford@gsblaw.com
Angela Benson, Director of Membership; angela.benson@americanbar.org
or call 202-662-1000

American Bar Association, Section of International Law
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