Former monk makes arbitrary career choice

MICHAEL MOSER volunteered as a candidate for this column, pitching an unusual metamorphosis from Buddhist monk to high-powered corporate lawyer. Well known in the local legal profession for being among the first foreign lawyers to scout the mainland market during the 1980s, he now heads international law firm Freshfields Bruckhaus Deringer's China business group with more than 80 lawyers and para-legals in Hong Kong, Beijing and Shanghai. The Connecticut native these days fits neatly into Freshfields' Two Exchange Square office, decorated with deliberate, expensive and self-assured minimalism. But he enjoys telling the story of his formative interest in China as a high-school exchange student in Thailand, spending months in a monastery learning Buddhism from an ethnic Chinese monk. He went on to pursue a doctor's degree in anthropology, which took him to the mountain villages of Taiwan for several years of field research. 'I went there to study religion. But what really interested me in a mountain village was all of the disputes that all of the people were engaged in . . . That's what I ended up writing my PhD thesis about - how disputes are settled in Chinese society.' The experience motivated him to read law at Harvard University. While there he accompanied representatives of United States labour unions and other assorted left-leaning groups to a still closed China in 1976, shortly after chairman Mao Zedong's death and at the tail-end of the turbulent Cultural Revolution. It was his first visit to the country where he would live and work for the best part of the next two decades. He moved to Beijing around 1982 to set up an office for US-based law firm Baker & McKenzie. His career picked up steam after a group of bondholders filed a suit against the Chinese government in a US federal court, seeking repayment of more than US$41 million in unpaid principal and interest on defaulted debt. The tranche of bonds was issued by the Qing Dynasty, the last imperial line, on its last breath in 1911 to finance the construction of part of the railway linking Beijing and Guangdong. 'At that time, a visiting secretary of state, George Shultz, met Deng Xiaoping. Deng Xiaoping supposedly made the remark to Mr Shultz: 'Can't we get rid of this annoying lawsuit in America?' And Mr Shultz said: 'Well, I don't know about China. But in America, the government doesn't have a right to tell the court what to do. I'm afraid you will just have to hire a lawyer'.' Baker & McKenzie was consequently hired as the first foreign law firm to represent the communist government in overseas legal proceedings. Mr Moser was involved and the case ended with a Chinese victory on appeal in 1986. His work did not go unnoticed. In 1988, Beijing overhauled its 32-year-old Soviet-style main arbitration body for foreign-related disputes, now named the China International Economic and Trade Arbitration Commission (Cietac). Mr Moser was chosen as one of the first four foreigners to sit on the panel. At Baker & McKenzie, then the world's largest law firm, Mr Moser gradually rose to the helm of the China practice group. One of the few public setbacks in his career came in December 1994 when Baker & McKenzie, then only licensed to operate as a law firm in Beijing, was forced to pull out of Shanghai. For years China limited foreign law firms to one representative office and still prohibits them from advising clients on Chinese law. However, as with many other foreign companies that made an art of bending rules when they could under China's restrictive regulatory environment, most foreign law firms operated lucrative underground offices. Regular warnings from the Ministry of Justice were rarely taken seriously. But the temporary pull-back of Baker & McKenzie's Shanghai staff attracted publicity and ended up a mild embarrassment. 'It was a tempest in a tea cup,' Mr Moser said. Beijing has since allowed several foreign law firms to open a second office legally, in line with its pledges to join the World Trade Organisation in late 2001. After years of operating in a legal vacuum, Baker & McKenzie's Shanghai office got its chop of approval late last year. Mr Moser was not there to officiate, having left the firm in 1999. As an arbitrator in more than 100 cases in jurisdictions ranging from Singapore and Hong Kong to Sweden and Switzerland, Mr Moser comes across as one of Cietac's most quoted critics. 'If I am a critic, I'm a constructive critic. I think there's no doubt that Cietac has made tremendous progress in the past 10, 15 years. 'Cietac is very well suited for dealing with smaller trading disputes . . . I think where Cietac is less well suited is in dealing with international investment disputes, big disputes, with a lot of money, very complex.' Cietac derived its strength in small disputes partly from its long and often controversial tradition of combining arbitration and mediation, said Mr Moser. Among Cietac biggest problems was people. Disputing parties must choose from the commission's list of 492 arbitrators, 158 of them from overseas. 'But many foreigners are unwilling to accept cases, who will politely decline, because the compensation given to arbitrators is not up to international standards,' said Mr Moser. Foreign lawyers have raised doubts about the fairness of Chinese arbitrators and faulted the mainland's poor enforcement of arbitral awards. Why does Mr Moser still bother to hear Cietac cases? 'I have been involved in China for most of my life. My wife is Chinese . . . For me, there is a special personal and professional interest.' A director of the Hong Kong International Arbitration Centre (HKIAC), Mr Moser professes to be a strong advocate of the government's petition to Beijing to encourage mainland firms to arbitrate their international business disputes in Hong Kong - a more neutral third party. He sits on a committee drafting a complete revision of Hong Kong's arbitration ordinance, to be submitted to the government by the summer. Billed as probably the most modern, up-to-date arbitration legislation in the world, it will unify Hong Kong's domestic and international arbitration systems and reduce the courts' interference in the arbitration process. 'We see this as part of enhancing Hong Kong's role as Asia's world city and as the key international business centre for Greater China as well,' Mr Moser said. However, the latest legislative proposal has already aroused worries for attempting to reduce the Hong Kong courts' influence over arbitration through means such as the removal of arbitrators challenged for unfairness and setting aside disputed arbitration decisions. There are murmurs that the move could give excessive power to the relatively few people who control the HKIAC. Biography Michael Moser , 53, is head of international law firm Freshfields Bruckhaus Deringer's China business group. Before joining the firm late in 1999, he worked for about 16 years with United States-based law firm Baker & McKenzie, rising to become China practice group head. He was one of the first four foreigners named as arbitrators at the China International Economic and Trade Arbitration Commission. He read international affairs and economics at Georgetown University in the US, going on to earn a doctorate in anthropology from Columbia University and a law degree from Harvard University. He is married with three daughters. bzfaceges