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The single best way to avoid being taken hostage in China

by Dan Harris

Just got an email from a long-time China hand and good friend of mine with the subject being “Going to be seeing a lot more of these.”  The these was foreigners being held hostage due to alleged debts and the email contained a link to an AP article entitled, “US factory boss held hostage by workers in Beijing.” To make a short story shorter, Chip Starnes, one of the owners of an American company went to China to work out severance packages with some workers his company would be laying off and he ended up being held hostage. Starnes is quoted as being surprised by what has befallen him:

“I feel like a trapped animal,” Starnes told The Associated Press on Monday from his first-floor office window, while holding onto the window’s bars. “I think it is inhumane what is going on right now. I have been in this area for 10 years and created a lot of jobs and I would never have thought in my wildest imagination something like this would happen.”

Me, I am not the least bit surprised.  As the article states, “it is not rare in China for managers to be held by workers demanding back pay or other benefits, often from their Chinese owners, though occasionally also involving foreign bosses.”

My law firm’s advice every single time to our clients who are laying off workers in China or closing a facility in China or allegedly owing money in China is to stay in the United States for all negotiations.  One only needs to be a regular reader of our blog to know that we took this position long ago and have never waffled:

  • If you are in a debt dispute with a Chinese company, the best thing to do is not go to China at all.
  • If you must go to China, think about using a bodyguard or two and think very carefully about where you stay and where you go. Most importantly, be very careful with whom you meet.
  • Consider preemptively suing the alleged creditor somewhere so that you can very plausibly claim that you have been seized not because you owe a debt, but out of retaliation for having sued someone. If you are going to sue, carry proof of your lawsuit with you at all times while you are in China.

We really should have added a fourth rule, which rule we discussed in “Shanghai Thugs Forcibly Remove Shanghai Residents. Why This Matters For YOUR Business”:

Though China is relatively safe, one should absolutely not write off the possibility of violence in one’s business dealings in China. My law firm has been called in at least a half dozen times where violence was either threatened or occurred. We tell our clients that if they owe money to a Chinese company or are involved in any sort of dispute with anyone in China (partner, employee, etc.), they should avoid meeting to discuss the dispute/problem anywhere other than in a neutral, very public place in the day time. A high end hotel lobby in Shanghai or Beijing is a good choice. Singapore or Tokyo or Seoul are an even better choice.

In other words, if you really think it necessary for you to go to China to try to resolve your company’s debt issues, at least seek to have the meeting in a hotel lobby in Beijing or in Shanghai, rather than in Xiamen in the conference room of the company to whom the debt is allegedly owed.

In “Bo Xilai’s Lessons For Your China Business,” we wrote of how arguing that the hostage does not personally owe the debt is usually not the fastest/best way to resolve these sorts of situations:

I say this because we have been involved in at least two cases where this was the case. U.S. company owes money to Chinese company. U.S. company ceases to do business and so its key figures assume the issue is resolved in that the company has no assets to pay any debt.  They then get on a plane to a foreign country (one was a China case, the other was a Russia case) and they both get seized and “held hostage” until we negotiate out their release. They wanted us to argue that they personally did not owe the debt; their companies did. Our response was to tell them “that would be an excellent argument if we had the luxury of filing court briefs and waiting months for a judge’s decision, but our goal here is to get you released as quickly as possible.”

We deal with this issue in its nascent stages all the time when we work with our clients to shut down their Chinese entities (which for some reason has been happening like crazy of late). We always instruct our clients never to reveal that they will be shutting down their China operations while anyone from the home office is in China. We also tell them that if they or their company ever wish to return to China, they should pay off all their debts and usually the best way to do that is to announce from outside of China the plan to gradually shut down the China office and then, using that as leverage, negotiate down all of the debts. We always stress that once a reduced debt is agreed upon, there should be a written agreement on that and there should be proof of payment on that agreement as well.

All of this is necessary if you want to formally close your China entity, which is, in turn, necessary, if you want to be able to return.

For more on hostage situations in China, check out the following:

I cannot emphasize enough how serious this is and how little the US Embassy and Consulates can do to help Americans being held (note how in this case US Embassy officials “stood outside the gate).  China law actually allows for keeping people in China for the debts of their companies.  And trust me when I tell you that accommodation quality can vary.

China’s economy is pretty much universally regarded as slowing and as it does so we can be quite sure that hostage situations will increase.

So what is the single best way to avoid being taken hostage in China?  Avoid going there at all.

Be careful out there. Please.

Dan Harris is founder of the Harris & Moure law firm, a boutique international law firm focusing on small and medium sized businesses that operate internationally. China is the fastest growing area for the firm. Dan writes as a source of China legal and business information.

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