CHINA 2009 INVESTMENT DISPUTES AND EXPROPRIATION

UNCLAS BEIJING 002196 SENSITIVE SIPDIS C O R R E C T E D COPY CAPTION STATE FOR EB/OIA - GOETHERT STATE FOR EAP/CM - PENG STATE FOR L/CID - MCDONALD STATE PASS USTR - BAHAR, KATZ, WINTER E.O. 12958: N/A TAGS: CASC EINV KIDE OPIC PGOV SUBJECT: CHINA 2009 INVESTMENT DISPUTES AND EXPROPRIATION REF: A. A) STATE 049477 ¶B. B) BEIJING 03072 ¶1. (U) This telegram is sensitive but unclassified -- it contains business proprietary information and is not for distribution to the public. ¶2. (SBU) In response to ref A, this cable provides updated information on investment and expropriation claims in China and includes input from the Economic Section as well as other mission elements, including Embassy Beijing USTR and FCS offices and Consulates in Shanghai, Guangzhou, Shenyang and Chengdu. 3.(SBU) Begin Text: Expropriation -------------- Chinese law prohibits nationalization of foreign-invested enterprises, including investments from Hong Kong, Taiwan, and Macau, except under "special" circumstances. Officials state that such circumstances would include national security considerations and when an investment includes real property or buildings that pose obstacles to large civil engineering projects. However, the law does not explicitly define the terms. Chinese law requires compensation of expropriated foreign investments, but also does not specify how such compensation is calculated or determined. The United States has not formally determined that China has expropriated any new investments since China's opening and reform policies were initiated in 1979. However, the Department of State has in past annual reports highlighted to Congress several cases of concern. The Embassy is generally aware that many United States persons of Chinese descent, who were not United States citizens at the time their claims arose, have outstanding expropriation claims against the Government of the People's Republic of China (PRC). The Act does not require a report on these claims. The Department of State, however, does provide appropriate assistance to all United States persons with claims against the Government of the PRC. The Embassy is aware of fifteen outstanding disputes that involve United States persons and the Government of the People's Republic of China or entities under its control. These cases are outlined below. Commercial Disputes -------------- Besides expropriation, the Embassy is also aware that a �00A;number of United States nationals are engaged in commercial disputes in China, including disputes with commercial entities owned or controlled by the Government of the PRC. Many commercial disputes include breach of contract claims by United States persons against their Chinese joint venture partners. United States persons that become involved in commercial disputes in China may encounter significant obstacles that prevent a fair hearing of their claims. These may include corruption, arbitrary enforcement of rules and regulations, failure of the judiciary to act independently, and inadequate domestic enforcement of foreign judgments against Chinese parties. Chinese parties in commercial disputes may benefit from personal relationships with or favoritism on the part of law enforcement and the courts. The Embassy is aware of some cases in which U.S. persons have lost control or ownership of property to Chinese entities that appear to have colluded with local authorities. While not expropriation by a foreign government, these instances illustrate the risks to U.S. investors posed by corruption and the inadequate rule of law in China. Protectionism via Regulation -------------- In addition, Chinese agencies frequently adopt rules and regulations intended to limit the ability of foreign firms to compete with local companies. These rules often are adopted primarily to protect local industry and promote China's immediate economic development. While this activity does not meet the definition of expropriation, and the government rarely directly seizes assets, the result is a transfer of value from foreign firms to local companies by excluding the former from domestic market opportunities. Frequently such protectionist regulations benefit state-owned firms, even indirectly, or if they have been adopted at the prodding of well-connected Chinese state-owned enterprises (SOEs),which are closely linked to the government and may benefit from financial and personal ties with their regulators. These risks and obstacles are more fully outlined in the Country Commercial Guide for China, published online by the U.S. Department of Commerce. The Embassy regularly raises these matters at high levels with the PRC government. Despite these problems, the vast majority of U.S. individuals and firms remain keen on the Chinese market. The 2008 American Chamber of Commerce (Amcham) White Paper reports that 89 percent of its members who responded to an Amcham survey had an "optimistic" or "cautiously optimistic" five-year outlook. Dispute Resolution -------------- Commercial disputes are heard in China's civil courts, which include national "Supreme" courts and local courts at the provincial, city, and county or district levels. These civil courts have jurisdiction over contract and commercial disputes involving foreign parties. They do not adjudicate criminal offenses, like theft and tax evasion. In many jurisdictions, a separate system of IP courts cover civil intellectual property disputes in lieu of civil courts. Foreign lawyers cannot act as attorneys in Chinese courts, but may observe proceedings. China also maintains an extensive administrative legal system to adjudicate minor criminal offensives. Chinese officials typically urge firms to resolve disputes through informal conciliation. If a formal mediation is necessary, Chinese parties and the authorities promote arbitration over litigation. Most foreign investors consider arbitration a last resort, as they generally find it time-consuming and unreliable. Most contracts propose arbitration by the China International Economic and Trade Arbitration Commission (CIETAC). Some foreign parties have obtained favorable rulings from CIETAC, but difficulties in other cases have led other participants and panelists to question CIETAC's procedures and effectiveness. In CIETAC arbitration involving at least one purely foreign entity, a panel with a foreign arbitrator is possible. (Foreign joint ventures established in China are considered Chinese legal persons.) Provinces and municipalities also have their own arbitration institutions. For contracts involving at least one foreign party, offshore arbitration may be adopted. Contracts stipulating foreign arbitration should name the arbitration body. While China is a member of the International Center for the Settlement of Investment Disputes (ICSID) and has ratified the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention"),in fact, United States persons have experienced difficulty in their efforts to have Chinese courts recognize and enforce arbitral awards rendered in their favor against Chinese parties. Case One -------------- a. Claimant A b. 2009 c. East Star Airlines had leased Claimant A-owned planes, ran into financial difficulties, and now reportedly owes the Baiyuan Airport Authority in Guangzhou, a State Owned Enterprise, unpaid fees and other money. The now-bankrupt East Star Airlines terminated its lease with Claimant A in accordance with PRC bankruptcy proceedings, but the airport authority has refused Claimant A access to claimant A's planes, which are still located at the airport. Claimant A needs to service the planes and retake possession of them, but the airport authority appears to be using the planes as leverage to recoup funds owed to them by the bankrupt airline, even though the court has ruled that the leased planes were not part of the East Star bankruptcy proceedings. The U.S. Consul General in Guangzhou, in concert with FCS offices in Guangzhou and Beijing, sent a letter on May 22 to the Baiyuan Air Authority urging swift resolution of this dispute in accordance with local law. Case Two -------------- a. Claimant B b. 2006 c. Guangzhou-area American legal firm has struggled to enforce an arbitration judgment in a Shenzhen court for more than three years. Claimant B asserts this lack of enforcement is in violation of the New York Convention on international enforcement of binding arbitration. U.S. Consulate General Guangzhou has regularly contacted the court to request status updates, which it occasionally provides, but the case remains unresolved. (Note: The IPR community in Guangzhou, i.e., U.S. law firms, rights holders, and other interested parties, seems to suffer disproportionately from China's poor implementation of the New York Convention. Mission contacts frequently highlight how unattractive arbitration remains for U.S. firms involved in commercial disputes in South China. End Note.) Case Three -------------- a. Claimant C b. 2007 c. Claimant C, enmeshed in arbitral proceedings in Hong Kong against its joint venture Chinese partner, requested USG assistance in persuading the State Administration of Foreign Exchange (SAFE) to not penalize Claimant C for its alleged illegal USD to RMB conversions. While this case (described in following paras) remains unresolved, Claimant C places even higher priority on getting about $9 million of its investment out of China via a "capital reduction" that requires SAFE approval. The potential assessment of a fine of 1.76 million RMB by Shenyang's SAFE branch would be for allegedly illegal USD to RMB conversions related to Claimant C's Shenyang investment. Claimant C asserts the allegations are wholly baseless, and notes that about a year ago, national-level SAFE officials in Beijing had ordered SAFE/Shenyang to put a hold on issuance of any penalties. However, after Claimant C lifted its "stay" on the Hong Kong arbitration process against its Chinese JV partner on April 1, Shenyang SAFE reportedly re-started the process of assessing the fine. Shenyang SAFE was poised to make a decision on the issue on June 19. We have not yet determined whether a decision has been forthcoming. In early 2008 Consulate General Shenyang wrote a letter and made phone calls to Shenyang government officials on behalf of Claimant C. A meeting was organized between Claimant C and the Bureau of Foreign Trade and Economic Cooperation, which has regulatory oversight of the investment activities of the Shenbei Economic Development Zone. At the meeting, Claimant C's CEO argued that Claimant C was innocent and had been assured by local parties that all its currency conversions were legal. About one week later, Claimant C advised the Consulate General that Shenyang SAFE would indeed rule that Claimant C was in violation of foreign exchange regulations and would recommend to Beijing SAFE that it impose a penalty fine of 30 percent of total conversions. Claimant C said it would not accept that decision, and wrote appeals to the then-Ambassador, U.S. Members of Congress, and China's Ambassador in Washington. In October 2008, the Shenyang government foreign affairs office requested a meeting with U.S. Foreign Commercial Service (FCS) officers to emphasize that (1) Mayor Li Yingjie and Deputy Mayor Yang Yazhou were committed to a fair and quick resolution of this case; (2) the mayor's office had conducted its own investigation of the events leading up to the alleged forex violation and found that all local parties involved were operating within guidelines; (3) Deputy Mayor Yang Yazhou had called a mediation meeting a few years earlier attended by Claimant C, SAFE, Shenbei Development Zone and China Merchant Bank; and (4) Shenyang government mediation led to SAFE's decision to decrease Claimant C's fine to 2 percent of total conversions. FCS communicated the above to the CEO of Claimant C, who replied that the 2 percent proposal was not new, that Claimant C could not accept being cast as a scapegoat for the behavior of certain Shenyang officials, and that Claimant C would not accept the penalty. In November 2008, the U.S. Consul General in Shenyang and FCS met with Deputy Mayor Yang Yazhou to discuss Claimant C's case. Present were representatives from Shenyang SAFE, China Merchant Bank, and Shenbei Economic Development Zone. Mayor Yang reiterated the points made to FCS officers the month before and urged the Consul General to persuade Claimant C to bring this case to a speedy closure. The Consul General replied that he was not in a position to advise Claimant C on this matter. (Note: Over the past 2-3 years, there has been a small but growing number of reports about U.S. companies invested in China alleging improper China or unfair treatment in an administrative review process or denial of a fair hearing in court. End Note.) Case Four (ref B) -------------- a. Claimant D b. 2001 c. Claimant D learned from a January 2002 newspaper report that the area in Tianjin where its construction materials joint venture factory was located was slated for a new university campus. The claimant had signed a 50-year land use agreement with the city when it established its JV in 1997; the Claimant owns 79 percent of the roughly $8.5 million project. The claimant requested compensation of more than $6 million, based on its assessment of the value of the plant. Upon inquiring through its JV partner (the Tianjin Building Material Group, a city-level state-owned enterprise (SOE)), the Claimant was told that it was expected to vacate by the end of May. However, at that point it had received neither a formal notice-to-quit nor an offer of compensation. The claimant sought meetings directly with municipal officials, who responded with a letter deputizing the Claimant JV partner to negotiate for the municipality. Embassy Beijing's Economic Minister-Counselor sent a letter to the Tianjin Government in late January 2002 urging fair treatment. The Embassy's Deputy Senior Commercial Officer also contacted Tianjin trade officials repeatedly over the succeeding months. On April 29, 2005, the claimant sent a letter, through the Chairman of the U.S.-China Business Council, to the Mayor of Tianjin proposing a new solution. In the letter, claimant D sought the Mayor's assistance and approval to merge with an existing plant in Tianjin and receive USD 8 million in compensation. Embassy Beijing's Senior Commercial Officer met with Tianjin officials regarding this case in the fall of ¶2006. Since late 2005, following encouragement from then- Speaker of the House Dennis Hastert, Chinese Ambassador to the United States Zhou Wenzhong told the Department of State that he has engaged the Tianjin municipal government to press for a satisfactory resolution. In June 2006, China's Ambassador to the U.S. said he raised the case with the Mayor of Tianjin, who said the claimant had agreed to vacate, and the only remaining issue was the amount of compensation. The Mayor said compensation should be based on the value of the land before construction, which had raised the value of the land substantially. The Mayor appointed his Secretary General to coordinate among municipal agencies to resolve the case. In February 2008, the claimant told Embassy officials that it had accepted an offer by the city of Tianjin to reimburse costs to move to a new location and re-install its equipment. As of August 2008, the claimant said it was operating in the new location. The city of Tianjin had paid many, but not yet all, of the claimant's moving expenses. Tianjin had also established a fund to compensate the claimant for other losses, like the value of its original leases. That fund is controlled by the claimant's JV partner and no money has yet been paid. The claimant reported a good relationship with its JV partner, but observed that as a municipal SOE, the line between its interest and the city's is not always clear. The claimant is also in the process of renegotiating loans secured by the original property. Case Five (ref B) -------------- a. Claimant E b. 2001 c. Local officials reportedly sought to evict the claimant from its factory on short notice and without adequate compensation in May - June 2002. The claimant in 1998 established a factory to produce cast-iron furniture in Tongzhou District on the outskirts of Beijing and signed a 26-year lease with a local government-owned corporation for land and buildings at a rate of approximately $56,000 a year. The lease was notarized by the Tongzhou District Government. Since then, real estate prices in the area have apparently skyrocketed as builders have erected luxury residences. At the end of 2001, the Tongzhou District Planning Administration Bureau notified the claimant in writing that the building it had rented was not in conformity with the future development of a new section of Tongzhou and should therefore be demolished. On May 10, 2002, both the claimant and the state-owned firm that had leased the property to the claimant were notified by Tongzhou District that some of the buildings were illegally constructed and had to be torn down by May 25. On June 7, 2002, approximately 100 workers with hand tools and a bulldozer reportedly appeared and dismantled the facility's gatehouse, administration building, and employees' dormitories, as well as cutting off the company's power and water supplies. The claimant's attorneys contacted the Embassy while the demolition was in progress, whereupon the Commercial Section telephoned the head of Tongzhou District, the Beijing Municipal Foreign Investment Service Center, and several other officials, but the demolition continued. After meeting with the claimant's American owners, the Commercial Section sent a letter to the head of Tongzhou District urging fair compensation. The District raised its compensation offer from RMB 200,000 (approximately $24,000) to RMB 500,000 (approximately $60,000) but then inexplicably returned to the lower offer of RMB 200,000. Congressman Waxman raised the case in a letter to the then-Ambassador on June 25, 2002. By 2006, it appeared the Claimant had abandoned the case. Neither the Claimant nor officials acting on its behalf had any further contact with the Embassy until June 2009, when the Embassy contacted the claimant's majority shareholder in the United States. The shareholder informed the Embassy that the claimant has left China as a result of unsatisfactory resolution of the case ("the owner left pretty bitter") in which claimant estimates claimant was paid less than one tenth of what claimant it was owed. Case Six -------------- a. Claimant F b. 2009 c. Claimant F owns and operates a restaurant in Beijing. On May 12, 2009, the claimant was given notice by the Jiang Tai Xiang Government and Chaoyang District Construction Department Project Office that the land occupied by the street upon which claimant's restaurant operates had been taken over by what claimant called "eminent domain proceedings," and that the claimant should negotiate with the landlord for a commercial settlement as compensation for breaking claimant's lease and the imminent destruction of claimant's business. As of June 2009, the landlord has apparently refused to meet with claimant or to negotiate in good faith. There have been reports of violence inflicted by the landlord's security staff against another tenant on the street and claimant has been issued notices and threats that claimant's business would be destroyed without a settlement. Claimant has been to two police stations - Beijing Police Bureau and the Police Station of Chaoyang District - to discuss the violence and security concerns. Claimant has been to Jiang Tai Xiang Government (which is in charge of and owns the area) to discuss settlements and compensation. Claimant has been to the Conflict Resolution Center of Chaoyang District three times for meetings and to request fair treatment. During these meetings, claimant's landlord sat on the same side of the table as the government. Claimant went to the Conflict Resolution Center of Beijing and obtained its agreement to urge the landlord to meet with claimant to discuss settlement. Claimant has been to the Conflict Resolution Bureau of Central Government to try to pressure the local government and claimant's landlord to negotiate. Claimant has also retained local counsel and has contacted FCS at Embassy Beijing for help. Apparently as a results of the meetings with various government agencies, the police seem to keep a presence nearby which has quelled any issues of conflict with the landlord's additional security staff. The mayor's office reportedly forced the landlord to "hear" claimant's claim for damages. The central government conflict resolution center appears to have forced the Chaoyang conflict center into action - it met with claimant in June and together with the landlord issued a "take it or leave it" offer. The offer came with a threat: destruction slated for June 11, 2009, which has since taken place. Case Seven -------------- a. Claimant G b. date unknown c. Claimant entered into a commercial relationship with the Anshan Municipal Government in Liaoning Province. The local government reportedly reneged on contractual obligations, stalled in paying for services, and did not issue a land permit for the development site. FCS is assisting, and the local government recently demonstrated interest in resolving the case before the U.S. Consul General in Shenyang visits Anshan again later this year. Case Eight -------------- a. Claimant H b. date unknown c. Claimant leased farm land from the People's Liberation Army (PLA),which was then expropriated based on allegations that the company mistreated workers. A district court confirmed the company's rights under contract, overturning a lower court decision, but the PLA apparently continued to occupy the land, complicating enforcement. The Liaoning Court of Appeals declined to hear the case; the company is now appealing to the People's Supreme Court. Claimant requested help from FCS and from Congressman Royce (CA). Case Nine -------------- a. Claimant I b. date unknown c. Claimant had its factory vandalized, allegedly by its local guard force, causing 1.3 million RMB of damages. FCS supported claimant as it filed a case in district court requesting damages. Claimant was advised by the district court to settle for less than 10 percent of damages. Claimant continues to receive threats and is considering arbitrated disengagement from its contract. FCS is monitoring the situation and providing assistance as appropriate. Case Ten -------------- a. Claimant J b. date unknown c. Claimant signed a contract with the Chinese Medical Education Association (CMEA) to provide education programs for Chinese nurses. According to claimant, CMEA did not fulfill its contractual obligations to market the program, resulting in a failed launched effort. CMEA continues to refuse to market the program, claiming it is not feasible. FCS has met with claimant and written letters on its behalf. Case Eleven -------------- a. Claimant K b. 2007 c. Claimant signed a contract in 2005 to build a light rail link in Wehai, Shandong Province. Claimant prepared extensive engineering designs but city officials have not supported the project as promised, specifically by establishing a one-ticket system. Since the installation of a new mayor in 2007, the project has not moved forward. Case Twelve -------------- a. Claimant L b. date unknown c. Claimant had a dispute with the landlord over rent payments which quickly escalated into threats and seizure of the store. Local police did not intervene. Consulate General Shanghai contacted local authorities, including via a letter from the Consul General to the Shanghai Vice Mayor. The company contacted Congressman Ed Royce, who highlighted claimant's case in a Congressional hearing in July 2008, at which both claimant and then-Director General of FCS Hernandez testified. The landlord's legal case against claimant for back rent was rejected by the court. In order to obtain damages from the landlord, claimant must file a claim with the court, which claimant apparently has not yet done. Case Thirteen -------------- a. Claimant M b. date unknown c. A local township government threatened to condemn and demolish claimant's manufacturing facility in Nanjing without offering adequate compensation. FCS Shanghai contacted the Nanjing Government Foreign Affairs Office to urge that negotiations between the company and local government officials resume. The local officials have agreed to open negotiations. Case Fourteen -------------- a. Claimant N b. date unknown c. Claimant owns a manufacturing facility in Hangzhou. Claimant's managers were reportedly held hostage and the company was liquidated by "auction" by the Zhejiang Provincial Foreign Service Corporation without consent from the American owner. FCS Shanghai and the Consul General wrote letters to the Hangzhou City Foreign Affairs Office (FAO) and met Hangzhou FAO officials concerning the case. The FAO officials have been generally unresponsive. Case Fifteen -------------- a. Claimant O b. date unknown c. Claimant, a dental supply company, had a dispute with the local government of Minhang District of Shanghai concerning compensation for forced relocation of claimant's manufacturing facility. FCS Shanghai has contacted Shanghai government officials concerning this dispute, which is still ongoing. ¶4. (SBU) Proprietary Information -- Identity of Claimants: Claimant A: General Electric Claimant B: Anderson and Anderson Claimant C: EMG, an Indiana-based investment firm Claimant D: SureBlock Claimant E: Beijing Taico Industry Metal Products Co., which is majority owned by Amco Metal Industrial Corporation of City of Industry, CA, with the remainder owned by a Taiwan-based firm. Claimant F: Tim's Texas Roadhouse Claimant G: American Pacific Homes Claimant H: Shenyang Tigers Claimant I: Shenyang Taidong Construction Claimant J: Maricopa Community College Claimant K: Aerobus Claimant L: Nancy's Lifestyles Claimant M: Jensen Claimant N: LP Apparel Claimant O: Dentsply International GOLDBERG