When I started this blog, I swore I would never do a post apologizing for not posting nor would I ever do a post making any sort of excuse for not posting. We are all busy and I hate excuses and unless one thinks this post violates that pledge, I am proud to say I have stuck by it.

In fact, instead of not posting when I get crazy busy, I just tend to get more biting and ornery so if any apology is necessary, I apologize in advance for that.

I also must dedicate this title to my Canadian international trade lawyer friend, Cyndee Todgham Cherniak, with whom I shared a podium at the just completed American Bar Association International Law Section Meeting in Miami. Cyndee commented to the crowd on how "shocking" my titles sometimes are and I thought of her when I penned this one.

My ire today stems from perfectly fine domestic US lawyers who, for some unknown reason, deem themselves able to practice international law. They are not. Last week, I got an email from an unnamed company that had doubts as to the legality of its arrangement with someone it described to me as their independent contractor in China. I then did what i always do when someone uses the US term, "independent contractor." I stopped him and told him that this person is an employee working without a written employment contract and his company is at risk for this.

The laws on this are clear in China. If an individual works for your company, that person is an employee of your company and that individual is covered by China's labor laws. This means the failure to have a proper written agreement and the failure to have a well-crafted employee manual might mean a large penalty for the company and/or an employee for life. If you want someone to work for your company without being your employee, you must contract for that person's work through a third party company. In other words, that person must be employed by some other company and your company must contract with that other company. See "Wanna Get Sued In China? Your Ex-Employees Can Help. Part II, The Corporate Counsel Edition."

But here's the really good part. This person then told me that his company has a written agreement with this person making very clear that this person is an independent contractor and not an employee and would this solve his company's problems. He then told me he had just sent me a copy of this contract and would I please look at it. I did and I wrote the following email in response (altered only slightly to hide any markers that might reveal the company involved):

My firm has a closer relationship with ____________ than just about any other firm and I have heard nothing but good things about Ms. __________'s abilities as a labor lawyer. Two of my best friends, ____________ and ___________ are lawyers there and we are always referring work back and forth. I say this to moderate that this agreement is not worth the paper on which it is printed. I’m sorry, but there is no other way to put it. There is absolutely no way this contract has any validity in China and suing this person in _________ [state] [as per the contract] will be a complete waste of time and money.

There is just no way that a contract calling a relationship one thing is going to make it that one thing. It would be like you and me signing a contract saying Seattle is in Oklahoma. We can do that, but it is not going to change the reality. Under Chinese law, this person is an employee and a US contract purporting to claim otherwise will never see the light of day in a Chinese courtroom, nor should it Chinese courts hire out their own translators so even if it did make it to court there (which it would not), it will likely say something very different than what is here in any event. This is why it almost always makes sense to have contracts in Chinese, not English.

The other problem with this document is that it calls for disputes to be resolved in _____ County Superior Court. My firm has dealt with this issue many times for both US and Chinese companies and I know exactly what will happen if you sue this person in _________county. You will win because she won’t show up. You will then take your judgment to China, where it has zero value whatsoever. Zero. Here’s a post I did on this a few years ago: Enforcing Foreign Judgments in China -- Let's Sue Twice. But it’s even worse than what I said and here’s why. This contract probably stops you from suing her in China because her defense there will be that you two agreed that any dispute would be handled in the United States and you already did that and won, so you cannot now sue her in China. We crafted that argument (with a Chinese law firm) on behalf of a Chinese company and they won on it.

At this point, however, I am more concerned about getting you legal than I am about your contract with this person. The real questions that need answering all revolve around what you are doing in China now and what you hope to be doing there a few years from now. It is the answers to those questions that will determine how you should proceed.

A year or so ago, I gave a talk to the Alaska Bar Association entitled What Lawyers MUST Know About China and I then did a blog post with the same name. In that post, I talked about how I should have subtitled the talk, "the biggest mistakes foreign lawyers make when dealing with China." I would love to give a somewhat more general talk on the eight (lucky number) things every domestic lawyer must know about international law, but right now I am having trouble getting past the first one, which is don't do it. Seriously, I think that would make a great topic for a talk and I would love to hear what items you think belong on the list.