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Arbitration: A Filipina domestic helper filed a Landmark Labor Suit in Hong Kong

HONG KONG—A landmark labor suit, filed by a Filipina domestic helper seeking permanent residency in Hong Kong, has struck at the core of the territory's often fraught relationship with its guest workers, and raised fundamental questions about its judicial independence from Beijing.

Evangeline Banao Vallejos has worked in Hong Kong since 1986, most of that time for the same family. If she were any other foreign worker, such as a banker, lawyer or teacher, she would automatically win the right to permanent residency after seven years. But a separate ordinance in the law states that domestic helpers are excluded from this right. She filed for residency in 2008, and is challenging the law in court.
View Slideshow

Diana Jou/The Wall Street Journal

Foreign domestic workers gather in Central, Hong Kong, to perform songs and dances.

Lawyers will argue the case in the territory's High Court on Monday. Ms. Vallejos's lawyer says the immigration statute discriminates against her and violates the territory's Basic Law, the legal foundation Hong Kong inherited from the British before the colony came back under Chinese rule in 1997. Basic Law is the foundation for Hong Kong's separate status under China's "one-country, two systems" policy.

Permanent residency in Hong Kong means a person can remain in the territory indefinitely, and they cannot be deported, according to the Basic Law. They also win the right to vote and to stand in elections.

Human-rights advocates say a ruling in favor of Ms. Vallejos would represent a significant step toward dismantling the system that treats domestic workers as second-tier residents.

"Basically, the work that domestic helpers are doing—looking after the children, looking after the elderly, doing the cooking and cleaning, allowing the Hong Kong people to be able to work full-time—is a very significant contribution to Hong Kong's economy," said Danilo Brolado, a pastor at the New Beginnings Christian Fellowship.

Lam Thuy Vo/The Wall Street Journal

Benita Gebaya, who is from the Philippines, works as a helper in Hong Kong.

Hong Kong's current labor laws exclude the more than 270,000 domestic workers living in the territory. Foreign laborers are widely seen as integral to the territory's way of life, with middle- to upper-class residents hiring helpers—typically women from the Philippines and Indonesia—to handle household duties and help with child care.

Working conditions for domestic helpers can vary greatly, with little to no oversight by the government. Most live with their employers, who are required to give their helpers at least one day off each week, though advocacy groups say the time-off requirement isn't always honored. The government-mandated minimum wage for domestic helpers is 3,740 Hong Kong dollars (about US$480) a month, including rudimentary room and board.

Opponents of the effort to amend the labor law say prospect of allowing domestic workers to stay permanently would lead to an influx of migrants and their families, straining Hong Kong's resources.

"All this will pose a lot of effects on Hong Kong society as a whole—on the job market, public housing, welfare and education," says Starry Lee, a lawmaker in the pro-Beijing party Democratic Alliance for the Betterment of Hong Kong.

Ms. Lee says 100,000 workers would qualify for permanent residency, a figure that couldn't be confirmed and which worker advocates dispute. Hong Kong's Immigration Department refused to disclose the number, citing the ongoing litigation.

"What's at stake is the credibility of Hong Kong, of treating all residents of Hong Kong equally," says Holly Allan, manager of the nonprofit organization Helpers for Domestic Helpers. She says the current system makes domestic workers vulnerable to abuse from employers, as well as predatory employment agencies, because losing a job means possible deportation.

In a legal twist that is worrying some experts, politicians in the territory are calling for the court to refer the case to Beijing authorities under a rarely used provision of the Basic Law. Skeptics say such referrals undermine the Hong Kong judiciary's independence.

Regina Ip, a pro-Beijing lawmaker who says she would prefer to send the case to the mainland, dismisses concerns over Hong Kong's legal system, saying that the provision about consulting Beijing is part of the Basic Law.

Others see a referral to Beijing as an abdication of responsibility and a troubling sign that Hong Kong's courts will more and more turn to Beijing rather than rule on potentially unpopular decisions.

"If they are not going to uphold and respect the courts and they are going to Beijing for a reinterpretation...you can effectively then take the Basic Law and rip it up," says Mark Daly, the lawyer representing Ms. Vallejos.

Benita Gebaya, 45 years old, worked for more than seven years in Hong Kong before returning to the Philippines in 2002 to start a family. She has been back in Hong Kong for nearly the past two years and recently parted ways with her employer. Despite her previous tenure, she has only two weeks from her last day of work to find a new job before she loses her right to stay.

"If the government will push through this right to abode, it's good for us," she says. "We could have freedom and we could work not only as a domestic worker." Ms. Gebaya has her sights set on moving to Canada, where she can become a citizen after three years and bring her family there.

Juliet, 46, a domestic helper from the Philippines who declined to give her last name, says the current law is "quite discriminatory." Her employers, French fashion executives, qualify for permanent residency after seven years, while she never can.

Hong Kong is "looking down on us," she said. "Without us, most of our employers couldn't work," she added.

Source:

The Wall Street Journal Aug.22, 2011

To the Link Web:

http://online.wsj.com/article/SB10001424053111904070604576517911520701054.html

 

 

Arbitration: How to deal with China's Dynamic Arbitration Rules

While the United States and the European Union face an economic downturn, China emerges as a solid and vibrant economy. China's humble but decisive desire to celebrate trade agreements and lure merchants with their low prices have definitely brought them where they are now. The bottom line is that China has done things its own way and the rest of the world now questions whether China’s success is a matter of luck or they really wisely planed their future. In terms of arbitration law, again, China does it its own way. China’s arbitration law differs from the UNCITRAL arbitration rules. Is this coincidental or another well planned strategy by the Asian people?

Most countries follow the UNCITRAL arbitration rules. Yet, China has its own rules when it comes to arbitration, and these rules differ, sometimes, from the UNCITRAL rules. With foreign investment flourishing in China, it is vital to know China’s arbitration rules. According to some China law experts, application of UNCITRAL rules in China is uncommon. China’s arbitration rules differ from the UNCITRAL rules in several aspects.

First, the establishment of an arbitration tribunal under China’s arbitration rules (CAR) is limited to 15 days for 1 arbitrator and 30 days for 3 arbitrators, whereas under the UNCITRAL rules, the establishment of an arbitration tribunal may take 3 months for 1 arbitrator and up to 5 months for 3 arbitrators.

Second, CAR sets a time limit, which is not found in the UNCITRAL rules. The UNCITRAL rules do not set a specific time frame for arbitration procedures. Under CAR, the arbitration award must be rendered within 6 months after the formation of the arbitration tribunal when the contract involves a foreign contracting party.

Third, the time for submission of documents under CAR is limited. Parties must submit their application for arbitration, defense, and counter claims within 45 days, and counterclaims by the defense must be submitted in 30 days. Under the UNCITRAL rules, however, the arbitration tribunal may set the time limit for submission of documents, at their discretion.
Fourth, CAR allows summary procedures; this is, an arbitration award must be rendered within 3 months. The UNCITRAL rules, however, do not allow arbitration summary procedures.

Fifth, CAR provides flexibility whereas UNCITRAL rules are more rigid. For instance, under CAR, parties may independently obtain document translations whereas the UNCITRAL rules mandate that only the arbitration tribunal may order document translations. CAR allows parties to negotiate the appointment of the president of the tribunal, whereas under the UNCITRAL rules, the president of the tribunal must be appointed by two arbitrators or by the appointing authority.

Lastly, CAR does not allow interim measures whereas the UNCITRAL rules allow them. Interim measures may delay the arbitration process although they are valuable in certain circumstances.

Definitely, China's arbitration rules seem more dynamic than the UNCITRAL rules. Does this mean it is time to reinvigorate the UNCITRAL rules? Time has passed since the UNCITRAL rules were implemented and maybe it is time to update them to modern times.

Source:

Martha L. Arias, Immigration & Internet Law Attorney; IBLS Editor
Thursday, August 25, 2011

link to website:

http://www.ibls.com/internet_law_news_portal_view.aspx?s=latestnews&id=2452

 

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China Law News

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CONTENTS

  • China Capital Markets
    Door opens for HK investments in Chinese mainland stocks
  • Mining
    Fight against illegal rare earth mining continues in China
  • Shipping and Maritime
    Top Court to toughen sea pollution penalties
  • Patent
    Analysis: China's telecom patent boom heralds innovation era
  • Immigration
    NW China's Gansu Province grants "green cards" to foreigners

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China Law News

China Capital Markets - Door opens for HK investments in Chinese Mainland stocks

A top Chinese official recently announced that the county would soon launch the long-awaited RMB Qualified Foreign Institutional Investors (RQFII) program and start an exchange-traded fund linked to Hong Kong stocks. This will boost the two-way capital flow between the Chinese mainland and Hong Kong

The official also introduced other polices on Aug. 17 for boosting Hong Kong's development, but none of them have received as much market attention as the announcement that qualified foreign institutional investors will be allowed to invest in stock markets in the Chinese mainland with an initial quota of 20 billion yuan, and an exchange-traded fund linked to Hong Kong stocks will be soon unveiled. 

Thanks to the central government's efforts to boost the internationalization of the RMB, Hong Kong investors will soon be allowed to buy RMB-denominated A shares, and investors from the Chinese mainland will also be allowed to invest in Hong Kong stocks, analysts have said. 

Continue reading at: http://english.peopledaily.com.cn/90778/7576482.html

Mining-Fight against illegal rare earth mining continues in China

Xinhua reported that although the government has been working to crack down on illegal rare earth mining since last year, villagers from East China's Fujian province have complained that profiteering still prompts unlawful miners to take risks by playing hide and seek with local law enforcement.

Mr Li Chukai head of the village of Xianghu "It's very hard to crack down on them. Tucked away in the southeastern mountains of Fujian province, the village has been severely affected by illegal rare earth mining. At one of the illegal mines identified by villagers, trees have been toppled and leaking waste barrels have contaminated the ground.”

Villager Mr Li Sida said that at another illegal mine, polluted water has been diverted to the villagers' farms, destroying rice fields and killing off a large number of fish and shrimp. Illegal rare earth mines were set up here three years ago. They use ammonium sulfate and oxalate to extract rare earth metals while contaminated water is pumped into farms without being treated.

Continue reading at:http://www.chinadaily.com.cn/business/2011-08/20/content_13155773.htm

Shipping and Maritime - Top court to toughen sea pollution penalties

Regulations on marine accidents must be improved, judge says

BEIJING - The country's top court plans to improve rules and regulations to better handle rising disputes over marine pollution, a senior judge has said.

The remarks were made while ConocoPhillips China, the operator of two leaking oil platforms in northern China's Bohai Bay, faces compensation demands for the oil spills.

Existing laws and regulations on pollution cannot keep pace with the rapidly developing marine economy, experts said. The maximum fine for marine pollution is just 200,000 yuan ($31,000).

Liu Guixiang, president of the No 4 Civil Court under the Supreme People's Court, said that China's liability fund for marine pollution is currently only eligible for tanker spills.

Continue reading at:http://www.chinadaily.com.cn/bizchina/2011-08/24/content_13180910.htm

Analysis: China's telecom patent boom heralds innovation era

China's telecom giants are building up a war-chest of patents to help give them an edge in the legal battles raging between the world's smartphone makers, aided by Beijing's push to transform the country from workshop to innovator.

Huawei Technologies Co Ltd and ZTE Corp, China's top two telecommunications equipment makers, are stealing a march on rivals both in traditional network gear and, increasingly, high-end phones.

ZTE was the second highest filer of international patent applications in the world last year according to the World Intellectual Property Organization, making 1,863 different filings. Huawei was the fourth most active filer with 1,528 applications, having been in the top spot in 2009.

Patent filings are soaring across most sectors in China -- last year there were 313,854 patents registered in the country according to the Thomson Reuters Derwent World Patents Index, a 12 percent rise from 2009.

China was the third highest filer of patents in 2010, just behind the U.S., which registered 326,945 and Japan with 337,497. Japan has been the leading patent filer in the world for the past decade but its lead is narrowing, with its filings volume down 12 percent since 2006. China is up 83 percent.

The China telecom space in particular is seeing a lot of action as the likes of ZTE and Huawei, along with Taiwan's HTC move from being contract manufacturers for big foreign firms to making smart phones and tablets under their own brands.

Continue reading at:http://www.reuters.com/article/2011/08/25/us-china-patents-idUSTRE77O0VX20110825

Immigration: NW China's Gansu Province grants "green cards" to foreigners

Gansu Province in northwestern China on Thursday granted two foreigners with permanent residence cards, or the Chinese version of "green cards."

It is the first time for the province to grant such cards since 2004, when China allowed issuance of permanent residence cards to foreigners.

According to the exit and entry administration under the public security bureau of Lanzhou, capital city of Gansu, the two foreigners were Fu Qiang and Wang Muyin, a scholar and his spouse.

Fu and Wang are American-born Chinese, and their green cards were granted based on an overseas talents program of Lanzhou University.

Continue reading at:http://news.xinhuanet.com/english2010/china/2011-07/21/c_131000923.htm

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Lehman, Lee & Xu is a top-tier Chinese law firm specializing in corporate, commercial, intellectual property, and labor and employment matters. For further information on any issue discussed in this edition of China Law News or for all other enquiries, please e-mail us at mail@lehmanlaw.com or visit our website at www.lehmanlaw.com.

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Lehman, Lee & Xu 2011.

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