Sasha Borissenko: Trade deal update right time to teach China NZ's law

Jacinda Ardern and China's Premier Li Keqiang. Photo / File

COMMENT:

November kicked off with China and New Zealand finally reaching an agreement on an upgraded trade deal. It's been a long two and a half years of negotiations, but it's all worth it though, Labour insists, with New Zealand/China trade reaching $32 billion since the signing of the Free Trade Agreement in 2008.

Based on Labour Party Raymond Huo's experience as a commercial lawyer, however, he says Chinese business people aren't terribly good at doing due diligence before signing an agreement. The real investigation commences once an agreement is signed, which explains why there are so many commercial disputes, he says. Ipso facto there may be a lot of legal work coming our way.

The self proclaimed "socially left, economically right" MP says now's the time to increase awareness of our commercial legal system.

"Promoting the rule of law is more relevant than ever. A more effective way of doing business is to assist our counterparts in China with understanding more of the norms here by navigating [common law] settled legal authorities."

It just so happens that this year he wrote a book for Chinese lawyers, judges, and business people that serves this very purpose. While legal books tend to be boring, Power of the Rule of Law is the first of its kind to hit Chinese shores.

"The likes of Zespri and Fonterra do business with counterparts in China on a weekly basis, [so] it seems appropriate that business people alike get a better understanding of the common law framework."

For our Chinese counterparts who are from a statute law jurisdiction, an explanation of Donahue v Stevenson was the ideal starting point for the book as it illustrates how judges interpret and fundamentally shape law, Huo said.

It's a case that is perhaps triggering to all lawyers/law students the world over who had to suffer through Laws 101. I've never been able to stomach a ginger beer without wondering whether I've swallowed what-could-have-only-been-a-truly-dead-snail since, for example. I feel as if I'd be breaching my duty of care by going into further detail.

Next up is the French case, LICRA v Yahoo! [2000].

Yahoo lost out in its bid to allow Nazi memorabilia being sold on the platform in a French context. The case eventually ended up before the US Court of Appeals for the Ninth Circuit, which held that a US former district court didn't have jurisdiction. It was one of the first cases to address the application of national laws to the internet.

In the case of Company Inc v Gutnick [2002] - a case around defamation via the internet - The High Court of Australia held that Gutnick was legitimately right to sue for defamation in his hometown, and where he was best known.

The defamation didn't occur when Dow Jones published an article entitled "Unholy Gains" referencing Joseph Gutnick, but rather as soon as a third party downloaded and read the material. Location of the publisher and computer server (the US, in this case) was no barrier to proceedings.

The UK's McAlpine v Bercow [2013], put the millennial platform Twitter in the spotlight - perhaps ironic seeing as it concerned a rift between Conservative peer Lord McAlpine and Sally Bercow, the wife of John Bercow, Speaker of the House of Commons.

According to Sally Bercow: "The High Court found that my tweet constituted a serious libel, both in its natural meaning and as an innuendo. To say I am surprised and disappointed by this is an understatement. I will accept the ruling as the end of the matter. I remain sorry for the distress I have caused Lord McAlpine and I repeat my apologies. Today's ruling should be seen as a warning to all social media users."

What was the tweet, might you ask? "Why is Lord McAlpine trending? *Innocent face*" was found to be innuendo to the accusation that the Lord was "a paedophile who was guilty of sexually abusing boys living in care". The court held that "innuendo meaning" was as legally recognised as "natural and ordinary meaning".

Labour Party list MP Raymond Huo. Photo / Greg Bowker

Closer to home there's the High Court 2015 decision Winston Peters v The Electoral Commission. Deputy Leader of the Act Party, Kenneth Wang, recorded a video in Mandarin accusing Peters of being "anti-Chinese". The High Court clarified the meaning of "publishes" pursuant to the Electoral Act 1993, and brought the issue of social media during elections to the fore.

Why might these common law cases be of interest to China? Because of the prevalence of WeChat, Huo said. Okay respected elders, essentially it's a social media platform - think Facebook - that has more than 700 million subscribers worldwide. It offers a combination of Facebook and Twitter but it has the added bonus of having a credit card function.

"That means you could scan to get your shoes polished, or to purchase street food, or even use WeChat to buy large portfolio products. Pick-pocketing has been made redundant. Sure, you could steal a person's phone, but it can be wiped remotely," Huo said.

If China-based lawyers were to pick up on these precedents, defamation lawyers need not worry about "digital disruption" and expanding the Chinese equivalent of "Business Transformation" teams. And "a better informed Chinese business people will tremendously help two-way communication and two-way trade between the two countries".

On a brighter note, Attorney General David Parker has appointed nine acting judges, all of them retired or about to retire, interestingly. It's cause for celebration, and if it were my pick, I'd say the costume theme ought to be centered around the name "David".

David Christopher Ruth, David Graham Smith and David John Harvey are three of the nine who have been appointed as Acting District Court Judges, and will also exercise the criminal jurisdiction of the District Court. The saying "there are more Fortune 500 business leaders with the name John than there are women" comes to mind, but I shouldn't jest.

If you've got any tips, legal tidbits, or appointments that might be of interest, please email Sasha - on sasha.borissenko@gmail.com