In the last few months, the phones of our China lawyers have been “ringing off the hook” from worried foreigners (mostly Australians, Canadians, and Americans) based in China. Our law firm has been getting so many that we’ve created a fixed fee package to more efficiently and cost effectively handle them!
We are getting the following kinds of questions and we are giving the following kinds of short answers — our long answers are more nuanced:
1. Should I leave China?
Not unless you or your company have violated Chinese law in such a way that you personally are at risk for going to jail.
2. But isn’t China arresting innocent foreigners?
Yes, but incredibly rarely. We obviously do not have all of the facts or even close to the facts we need to answer this question with any sort of certainty, but it appears China is mostly going after foreigners it honestly believes have violated Chinese law, especially if those foreigners work for industries China does not like to see in foreign hands or are owned by a company in a country China does not like.
We see so many foreign companies operating in violation of Chinese law that we almost have to believe that no matter what the reason is for China’s crackdown against foreigners, there is no need for China to start arresting people for no legal basis at all. There are though two exceptions to this “rule.” Number one is if you have a military or diplomatic background, your odds of getting arrested for purely political reasons will go up if your home country should anger China. For examples of this, go here. The other example we constantly see (like pretty much every week), is some English teacher getting jailed for 30-60 days and then deported. This though is done at the local level and is invariably done at the instance of the teacher’s employer who does this as a power play to teach a complaining teacher a lesson. For more on this, check out Do NOT Teach English in China and Why EVERYONE Should Read This.
3. Won’t my D&O insurance cover me?
Not exactly. It will may prevent you from having to pay for your own defense (but do check your policy regarding alleged criminality) but it will not keep you out of a Chinese jail.
4. But if they come after me, I’ll have time to just leave on an airplane right?
Very doubtful. Our instructions to individuals at great risk in China is usually to try to get out via the land border with Vietnam, but not sure how COVID restrictions may be impacting that. China has become damn good at getting word out to its airports.
5. Is China really any less safe for foreigners than it’s always been?
Not sure, but it sure does feel like it is, but it’s always hard to gauge.
6. What should I do to avoid going to a Chinese jail?
Don’t violate the law. More importantly, make sure nobody else in your company is violating the law. If possible, consider setting up outside China.
7. Should I be worried?
Absolutely. Your worry will lead to you and your company taking necessary steps for protection, so it’s a good thing. Just don’t worry too much and don’t let it paralyze you. Again, it just does not seem China is acting randomly here, so you can and should quantify your risks. And as we so often say, you should also constantly be planning for various worst case scenarios. For more on that, check out How to Prepare for the Worst in China and Why You Should.
8. Should I be worried about my family here with me in China?
Short of hearing of a few racist/nationalist incidents involving children, probably not.
9. But what about Chinese companies, aren’t they doing what these foreigners are getting arrested for?
Yes, but so what? How will that help you? Also, they are more and more often getting into trouble as well. In fact, to a large extent, that is what has been driving many of the phone calls we have been getting.
10. Should I leave China right now?
See #1 above.
I am going to conclude this post with a long list of the posts we have done over the years relating to criminal liability for foreigners, in part to show that this issue goes back to the inception of this blog in 2006, and in part to show the panoply of criminal issues impact foreign companies that do business in China.
La plus ça change. . . .
What are you seeing out there?