2013 DoingBusinessinChina JBSQ
2013 DoingBusinessinChina JBSQ
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Doing business in China : what is the use of having a contract? The rule of law
and guanxi when doing business in China
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Berry Kwock, United International College (Beijing Normal University – Hong Kong Baptist
University), Zhuhai, Guangdong Province, P.R. China
Mark X. James, United International College (Beijing Normal University – Hong Kong Baptist
University), Zhuhai, Guangdong Province, P.R. China
Anthony Shu Chuen Tsui, United International College (Beijing Normal University – Hong
Kong Baptist University), Zhuhai, Guangdong Province, P.R. China
Abstract
Contracts in China do not appear to have the same binding effect as it does in the Western
world. For example in China, when the economic situation underlying a contract changes, the
Chinese party expects the terms of the contracts to be renegotiated. Furthermore, because of
weak courts, enforcement of contractual terms is uncertain (Yao and Yueh, 2009). So, what is
the use of having a contract in the first place? Is there no rule of law in China? This article sets
out the proposition that there is rule of law in China. However, contracts and the laws in China
must be interpreted from the Chinese perspective. That perspective is that relationship
(otherwise known as “guanxi”) is paramount to the terms and conditions of contracts. Contracts
merely formalize a relationship that presumptively is based on mutual respect and trust. So if
the situation changes, contract terms should be modified out of mutual respect and trust for each
other (Ambler, Witzel, and Xi, 2008). Furthermore, this article argues that guanxi is being
institutionalized by way of concepts written into the laws of China and the manner in which the
courts of China interpret those laws, so that guanxi must be understood in order to successfully
do business in China. Nonetheless, it is recognized that as China becomes a global player in the
world markets, she will be forced to adhere to generally accepted international standards for
commercial dealings. This may cause an erosion of the role of guanxi in the application of law,
but we believe guanxi will remain at the core of business practices in China.
Key Words: China, guanxi, everyday guanxi, special relationship guanxi, rule of law, doing
business in China, China’s Contract Law.
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Introduction
In March 2010, Australian citizen Stern Hu and three of his Chinese colleagues were
sentenced to lengthy prison terms for bribery and stealing commercial secrets. Mr. Hu and his
colleagues were executives of Australian iron ore mining company Rio Tinto. They were
convicted of taking kickbacks from steelmakers to arrange preferential access to iron ore. The
charges for stealing commercial secrets were not clearly stated in the lawsuit (Restall, 2010).
In the early 2000s, China’s steel industry significantly expanded capacity. As demand
for iron ore soared, so did market prices. Rio Tinto began to back out of its contracts claiming
“force majeure”. Contracts were renegotiated at 87% higher prices. When the demand for iron
ore weakened during the economic crisis at the end of 2008, the Chinese buyers walked out of
contracts with Rio Tinto. But then, demand for iron ore rose again by the middle of 2009 as the
result of Beijing’s fiscal stimulus program. Rio Tinto took this opportunity to demand higher
prices again. Given this hostile relationship, reportedly someone from the Chinese buyers’ side
alerted the Chinese authorities to investigate Rio Tinto for wrongdoing. The investigation
culminated in Mr. Hu and his colleagues being arrested on July 5, 2009 (Restall, 2010). Looking
back at the events that led up to the convictions, arguably, the principal reason the Rio Tinto
executives were imprisoned is that trust broke down as a result of the failure to establish strong
guanxi relationships of mutual respect.
So, is there any rule of law in China? Do contracts mean anything? Are contracts merely
an agenda symbolizing progress, but nothing more, since it is merely proof that both sides have
grown close enough to want to develop a trusting business relationship (Ambler, Witzel and Xi,
2008). Some foreign executives who do business in China are of the opinion that what matters
most are relationships; contracts carry very little weight (Farh, Tsui, Xin, and Cheng, 1998;
Standifird and Marshall, 2000). In this article we pose the following questions:
57 ©JBSQ 2013
Theoretical Framework Proposed: From the Chinese perspective, contracts
are useful for establishing the terms for a long lasting relationship.
The Western definition of rule of law is that such contractual terms
must be strictly followed; whereas, the Chinese give more importance
to guanxi (relationships) so that in their minds the definition of the
rule of law means preserving mutual respect and trust by being
willing to renegotiate contractual terms in the event of changes
in the fundamental underlying basis for the contract. So, there is rule
of law in China; it is just a matter of definition.
2. Literature Review
China has promulgated thousands of laws, especially as she opens up to the world as a
major player in the global market. It became a priority for China to firmly establish its
commitment to the rule of law. The Chinese rulers did so in 1999 by amending their constitution
to enshrine that principle (Orts, 2001). So, there is rule of law in China, but in practice how is it
being implemented and interpreted? To understand how the Chinese view laws as they related to
contracts, one must look back at China’s several thousand years of history and tradition.
Notably, Confucian teachings have a strong influence on Chinese thinking. Guanxi is a
Confucian heritage passed on from generation to generation, and remains in the soul of the
Chinese (Chen and Chen, 2004). Confucius emphasizes moral standards over formal law (Zhang,
2006). Such moral standards include mutual trust and respect cultivated through strong
relationships (otherwise called “guanxi”). Buddhism also influences the approach of the Chinese
to law and contracts. Buddhism emphasizes social harmony and frowns on direct confrontation
(Pan, Rowney, and Peterson, 2012). Therefore, for example, the Chinese tend to avoid
disagreeing directly. To the Chinese, maintaining relations is a deeply embedded social value
and paramount to the law. A contract is merely a formality, and entered into without much
consideration to legal enforcement (Leonhard, 2009). In contrast, Westerners are more direct
and approach dealings in linear logic fashion with clear alternatives – if option A is not
acceptable, then go to option B, etc. The Chinese, on the other hand, in order to establish a solid
basis for a strong relationship going forward, may examine ways to combine option A and option
B, or take different parts of each option (Ambler, Witzel, and Xi, 2008). The following chart
shows the differences in approaches:
Table 1: Differences Between Chinese and Western Culture (Chen and Partington, 2004;
Hempel, 2001):
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Communication is top down Communication is multi-directional
“No” terminates negotiations “No” means “make me another offer”
“Yes” enables negotiations to continue “Yes” is an agreement to close the deal
But aside from philosophy, there also were practical reasons for relying on relationships.
When China was still an agricultural society, laws were fewer and there were lack of institutions
for effective enforcement of whatever laws there were. Consequently, people had to rely on
guanxi rather than on laws to do business. People dealt with family and friends based on the
assumption they will be around the same community long enough to reciprocate favors (Ambler,
Witzel, and Chao, 2008). During recent Chinese history, the Cultural Revolution, again guanxi
became important as the only way to get things done through difficult times (Gold, 1985). As
capitalism came to China, it continued to be practiced under the principle of guanxi that was
based on the assumption that the parties will be reachable; otherwise the social capital created by
reciprocal favors will not be of any value (Gold, Guthrie, and Wank, 2002). While the West was
more transaction-oriented in their business dealings, the Chinese remained more relationship-
oriented. Americans want to sign up the deal or project first, and then develop relationships
afterwards. The Chinese want to deal with people they know, like and respect first, then do the
transaction or project. If anything goes wrong, the Chinese expected that the counterparty would
be contactable and would deal with problems in such a manner as to maintain a long-term
relationship (Gold, Guthrie, and Wank, 2002). That relationship must be based on mutual
respect, realism and flexibility that evolve over time. If the situation changes to the detriment of
any party, then the parties must discuss it and be prepared to modify the terms of the deal. The
Chinese want a partnership relationship mutually advantageous to all parties (Gold, Guthrie, and
Wank, 2002). Therefore, the Chinese establish a trusting relationship first, and then business
transactions. Westerners negotiate transactions first, and then wait for relationships to follow
(Gold, Guthrie, and Wank, 2002).
So, does that mean there is no rule of law, since legal contracts can be supplanted under
the guise of the importance of guanxi? Although guanxi and “face” (which equates to respect)
are at the core of doing business in China (Park and Luo, 2001), it is not alien to what is done in
other parts of the world. Actually, it is similar to what is practiced in other countries in Asia,
Africa, South America, and even in the capitalist West. No matter where you are, business
relationships that do well and last are those that are based on mutual trust and face, which means,
among other things, the willingness to accommodate unforeseen difficulties encountered by your
counterparty (Park and Luo, 2001). Depending on how guanxi is defined and how it is practiced,
guanxi can be compatible with capitalism and can coexist with the rule of law (Scott, 2008).
3. Theory Building
59 ©JBSQ 2013
will be acceptable and what may not be acceptable, but all within the standard operating
procedures and corporate policies. Special relationships guanxi is what gets you in trouble
because this often involves bribes to get things done through a close relative or an official or
executive or a customer or supplier to obtain approvals of deals outside of standard operating
procedures (Luo, 1997). Because guanxi easily can blur the line between legitimate business
dealings and corruption, one needs to be careful as to what type of guanxi is being used.
Remember that China does have laws, and the Chinese have high regard for bureaucracy,
procedures and regulations (Luo, 1997). The use of guanxi to expedite matters within standard
operating procedures is acceptable and can co-exist with the rule of law, being no different than
hiring consultants who have knowledge and experience in handling matters.
The guanxi (relationship) starts with the parties identifying and creating a guanxi base
through familiarization and then establishing a commonalty of values and goals (Chen and Chen,
2004). It is not enough to just show the Chinese party your business plan and how profitable a
venture with you can be. They want to know you as an individual. Are you a person they can
trust? Will there be mutual respect for the views of each party? Trust and mutual respect means
you must be willing to compromise. They do not separate business life from personal life. So,
you need to go out to dinner with them, have fun with them, etc. You must show you are willing
to share information, involve them in product development, give them better terms, help them
finance their raw materials, etc. The Chinese want you to be a real partner with them in terms of
a long term commitment to working together for the benefit of all partners (Gold, Guthrie, and
Wank, 2002). However, this does not mean you do not take care to protect your interest.
Among other things, you still need to protect your intellectual property with appropriate clauses
in the contract, and ensure that your interpretation of contractual duties and obligations are
consistent with the understanding of your counterparty (Yu, 2005). It is just that when
unforeseen events cause major difficulties for your counterparty, you exhibit trust and respect by
your willingness to renegotiate suitable terms.
In the context of contracting, Guanxi means being real partners - exhibiting trust and respect and
willingness to help each other in difficult times, even to the extent of willingness to renegotiate
terms when unforeseen events occur. Everyday guanxi is positively associated with whether the
contracting parties will adhere strictly to the terms of the contract, or be willing to renegotiate the
contractual terms when underlying fundamental events change, both being acceptable actions
within the Chinese definition of the rule of law. Therefore we propose the following:
One must be willing to exchange personal favors. But, beware of excesses that trap you.
Small gifts are expected and appreciated; large ones can become bribery. Small gifts generally
are taken as a show of appreciation and respect, whereas large gifts imply an obligation for the
recipient to do something which may not be strictly in accordance with acceptable practices.
Aside from size of the gifts being one distinction, another important distinction is that guanxi is
for long term relationship whereas bribery is for short term benefits (Lovett, Simmons, and Kali,
1999).
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Also note that there is a different standard for Westerners when it comes to acceptability
of guanxi. Westerners are not only accountable to the laws of their own countries, but also
Chinese regulators hold Westerners to a higher standard (Luo, 1997).
Guanxi results in real obligations that should not be taken lightly in terms of favors that
must be reciprocated, but also in terms of what is appropriate within the bounds of legality in
China and your home country.
Westerners view contracts as a list of legally binding rights and obligations. Chinese see
contracts only as a list of expected rights and obligations, depending on the situation (Buttery,
1998). Using the principle of mutual trust and respect underpinning guanxi, if the situation
changes, there should be flexibility to change legally binding terms and conditions set out in
contracts. Otherwise, each party remains bound by such terms and conditions of the contract.
This guanxi approach is supported by three principles of commercial contract law –
fairness, good faith, and the safeguarding of public morality. These principles play a
fundamental role in how contracts are performed and how disputes are resolved. Instead of strict
compliance to the terms and conditions set out in contracts, the Chinese expect a fairness
approach, thus renegotiation of contract terms to account for changing circumstances.
Furthermore, if disputes arise, the Chinese party generally will insist on some form of
renegotiation before beginning formal dispute-resolution proceedings (Graham and Lam, 2003).
Renegotiating is akin to the parties agreeing to mediation, so is compatible with the rule of law.
Mediation is a guanxi approach since it is in the tradition of Confucianism, meaning to find a
mutually acceptable solution without any party losing face (Ge, 1996; Clarke, 1991).
Moving forward, China has institutionalized guanxi into its legal system. On March 15,
1999, at the Second Session of the Ninth National People’s Congress, the new unified Contract
Law of the People’s Republic of China was adopted and came into force on October 1, 1999.
The General Provisions of this new Contract Law were similar in spirit to those contained in
Principles of International Commercial Contracts established by the International Institute for the
Unification of Private Law (UNIDROIT), an intergovernmental organization consisting of 63
members including the United States and China. Articles 3 through 7 of the new Contract law
set forth the basic principles of equality, fairness, good faith, and public interest. Although in
different words, these principles are embodied in the UNIDROIT Principles (Yuqing and
Danhan, 2000). Such principles can be said to be analogous to guanxi and, thus, incorporated
into the rule of law as a generally accepted international principle under UNIDROIT. Given the
institutionalization of guanxi into China’s legal system the application of the rule of law in terms
of the binding effect of contractual terms by contracting parties when doing business in China
will continue to be affected by the guanxi way of thinking. Therefore we propose the following:
Proposition 3: The principles of (3a) equality, (3b) fairness, (3c) good faith,
and (3d) public interest will moderate the relationship between guanxi and
contractual adherence and contractual renegotiation.
61 ©JBSQ 2013
Guanxi remains a strong social force in modern day China
In the earlier days of China, being a highly centralized, bureaucratic state, guanxi became
the counterpart of a commercial legal system (Ambler, Witzel, and Xi, 2008). Even as the
commercial legal system developed, guanxi remained (Graham and Lam, 2003).
Ever since 1978 when China opened its doors to foreign direct investment, foreign
investors and attorneys have contributed to legal reforms and the rule of law in China.
Notwithstanding such legal reforms, foreigners also use guanxi to achieve their goals. The result
was a “layering” or “bricolage” of guanxi to combine existing mature legal institutions with new
legal forms introduced by foreigners (Scott, 2008).
Although the Chinese like to deal with family and friends, it was based on the assumption they
will be around the same community long enough to reciprocate favors. During the past three
decades of economic growth China has experienced one of the fastest demographic shifts the
world has ever seen with the majority of China’s population moving from rural farming areas to
urban areas. Therefore, it would seem that guanxi should become less important as more people
move to cities (Ambler, Witzel, and Xi, 2008). But, even though guanxi may weaken due to
population mobility, it still remains an important social force (Graham and Lam, 2003). The
continuous development of a commercial legal system and population mobility in China is
continuing to alter the social fabric of China, including guanxi relationships. Therefore, we
propose the following:
In modern day China, guanxi maintains its importance as a social force through an
institutional structure that reinforces its culture. Today, as an emerging rational legal system is
constructed by China, business enterprises pay increasing attention to laws, rules and regulations.
Arguably, this is because the Chinese government closely monitors large-scale commercial and
industrial organizations. Furthermore, competitive market forces drive such organizations to
focus on quality and service instead of relying on special relationships guanxi to gain a
competitive advantage (Guthrie, 1998). But what about private entrepreneurs who are outside of
the state coordinated forms of capitalism, including large and powerful state enterprises?
Private-company executives continue to be more dependent on guanxi for protection than state-
owned enterprises (Xin and Pearce, 1996). Guanxi is still needed to bridge the gap between the
logics of their free-wheeling private capital accumulation and an economy controlled by the state
(McNally, 2011). However, as China’s market economy and legal system continues to develop,
the need for guanxi by private-company executives should fade in relevance in favor of
competitive market forces as a rational and effective legal system is constructed in China.
Competitive market forces that favor product quality and the establishment of good customer and
supplier business relationships will change the guanxi contracting relationship. Therefore we
propose the following:
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4. Discussion and Conclusions
Guanxi is fundamental to understanding how the Chinese view contracts and its
performance. It is deeply rooted from thousand years of history and tradition, and is an integral
part of Chinese culture. It has been handed down from generation to generation, either
consciously or subconsciously, through the teachings of Confucius and Buddha, and remains in
the sole of the Chinese people. Confucianism emphasizes moral standards over formal law, and
Buddhism stresses social harmony and frown on confrontation. Consequently, it is more than
merely developing a relationship. Guanxi requires mutual trust and respect. Given such a
mindset, the Chinese definition of the rule of law in commercial dealings is the terms and
conditions set out in contracts must be interpreted and applied in such a way as to preserve
mutual trust and respect for maintaining a long term relationship. Contracts are situational base,
not transaction based as is the approach of Westerners. If the situation changes, then based upon
mutual respect and trust, the parties renegotiate the terms of the contract. According to Western
paradigm, this would mean there is no rule of law. However, it is arguable whether or not
Western legal concepts can or should be used to supplant deep rooted cultural values that
underpin the China legal system (Leonhard, 2009).
Guanxi, or relationships, was essential for getting things done during the earlier days of
China when the legal institutions were in their infancy. As China transitioned into becoming a
major player in the global arena, she adopted new laws accordingly to conform to international
standards of commercial dealings but, in doing so, incorporated guanxi into her legal system.
The importance of guanxi remains in the psychic of the Chinese people. Consequently, there is
the rule of law in China, but it is a matter of definition. One must interpret contracts in terms of
its usefulness and the laws of China with guanxi in mind.
Contribution to Research
This article postulates that guanxi can co-exist with the rule of law and, in fact is being
institutionalized into China’s legal system. The usefulness of contracts depends on guanxi.
Guanxi, which involves reciprocal giving of favors, can expedite procedures and help resolve
contractual disputes to preserve long-term relationships for the mutual benefit of all parties – all
within the rule of law as defined from the Chinese perspective. Guanxi is good business practice
similar to what is actually being practiced in capitalistic economies. To have guanxi means
establishing a psychological contract of mutual respect and trust, to be exhibited by the
willingness to renegotiate contract terms if necessary to help the counterparty during difficult
unforeseen times. This results in good business relations, which is essential for building
competitiveness in a market economy.
We also argue that, notwithstanding the development of a commercial legal system in
China, and population mobility that decreases the likelihood of reciprocal favors being honored;
guanxi will remain an important social force through an institutional structure that reinforces it.
However, the part of guanxi that uses social relations to take care of procedures in economic and
political situations (special relationships guanxi) will fade.
From our study, we developed a theoretical framework, as demonstrated in Figure 1
below, to assist researchers and practitioners to understand the Chinese perspective of contracts,
and to provide a foundation for further research to validate the propositions upon which our
arguments are based.
63 ©JBSQ 2013
Figure 1: Conceptual Diagram of Propositions
Adhere to Contractual
Proposition 1
Terms
Guanxi
Renegotiate Contractual
Terms
Moderating Propositions
Contracts in China are useful and needed to set out the terms and conditions of the parties
and their working relationship. But, as illustrated in Figure 1, the rule of law that applies to the
formation and implementation of those contracts is affected by guanxi – depending on the
strength of the guanxi, when the fundamental basis for the contract changes dramatically, the
contracting parties would either strictly adhere to the contract or would be willing to renegotiate
contractual terms. If the guanxi is strong, in order to preserve respect and trust through
reciprocity so as to foster a long term relationship, the contracting parties would be willing to
renegotiate when confronted with unforeseen difficulties. The building of social capital through
the reciprocal giving of gifts (which can be tangible or intangible in terms of favors) is important
for strengthening of guanxi. However, guanxi itself also is being moderated by the development
of China’s legal system which, on the one hand is institutionalizing guanxi into its system while,
on the other hand is reducing dependence on relationships Furthermore, competitive market
forces that favor product quality and good customer and supplier relationships (as opposed to
special personal relationships) is moderating guanxi.
64
Our theoretical framework as a basis
for future analysis and expansion
Our theory is that, from the Chinese perspective, contracts are useful for establishing the
terms for a long lasting relationship. The Western definition of rule of law is that such
contractual terms must be strictly followed; whereas, the Chinese give more importance to
guanxi (relationships) so that in their minds the definition of the rule of law means preserving
mutual respect and trust by being willing to renegotiate contractual terms in the event of changes
in the fundamental underlying basis for the contract. So, there is rule of law in China; it is just a
matter of definition.
Obviously, our theory is not all inclusive and other antecedents and moderators of guanxi
and of the rule of law will need to be considered. Nonetheless, hopefully, our theoretical model
will at least provide a useful framework for further research. For that further research, you may
wish to consider the following possibilities.
Given the proposition that guanxi is being institutionalized and layered into the formal
legal system of China, more research needs to be done on how this works in practice. One must
recognize that China is a huge country where interpretation and enforcement of laws are not yet
uniform. Consequently, the need for relationships to get things done becomes the counterpart of
a commercial legal system, and this can vary from region to region. It also can vary from
industry to industry, since some industries are more regulated and protected than others. There
are many other situations where the importance of relationships can vary; for example,
relationships are more important for private entrepreneurs; and relationships will not be as
important where the dealings are on a short-term one-off basis.
There also are variations caused by time, so that the propositions presented by this
research must be constantly updated to see where they may lead. One possible view is that, as
international conventions imposed by such organizations such as the World Trade Organization
are imposed on China as the price to pay for being part of the global community, despite deep
rooted cultural values, guanxi eventually will be eroded and even eliminated by Western style
rule of law. On the other hand, some commentators believe that the survival of guanxi is not so
much an economic issue as a practical dependency issue. Guanxi networks are like clubs that
guarantee its members the enforcement of their rights - more cost efficient than legal systems
that require lawyers, time spent in courts, etc. However, in the longer term, when club members
become too many in number to be effective and as enforcement through China’s legal system
improves, the legal system may become a better alternative to the guanxi network (Schramm and
Taube, 2003).
Another interesting theory is that both the Western rule of law and the Chinese guanxi
approaches are defective since their underlying economic systems are based on an incomplete
model of trust. Lack of trust decreases market efficiency and increases transaction costs.
Therefore, instead of the guanxi model being replaced by the Western model, both models will
eventually converge as they move towards a complete model of trust (Lovett, Simmons, and
Kali, 1999).
Obviously, much more research needs to be done, particularly using empirical analyses to
support the many possible theories about guanxi and the rule of law. Hopefully, this article is
another step forward.
65 ©JBSQ 2013
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