On October 16, 2020, USALI Affiliated Scholar Aaron Halegua and Assistant Professor Xiaohui Ban of Wuhan University School of Law recently published an article in The Chinese Journal of Comparative Law, Volume 8, Issue 2, September 2020, Pages 304–330, https://doi.org/10.1093/cjcl/cxaa024

Abstract

The launch of China’s Belt and Road Initiative has brought attention to the dispatch of Chinese workers overseas. These vulnerable migrants are often charged high fees in China only to suffer wage abuses and work injuries abroad, where obtaining relief is often impossible. But what laws or regulations within China protect these workers, and how effective are they? This study takes an initial step towards answering those unexplored questions by analysing over 100 Chinese court decisions. While, for much of the China’s history, overseas workers were primarily seconded abroad by Chinese employers, a clear preference has emerged for sending workers through intermediary agencies that can charge fees and execute ‘service’ contracts. Nonetheless, the courts generally provide some relief to aggrieved workers who are dispatched through formal channels. However, a large number of workers go abroad through informal brokers. When disputes arise in these cases, judicial practice becomes very inconsistent. Ironically, workers sometimes fare better because the courts adopt a ‘strict liability’ approach that punishes the unregistered broker, ordering them to pay all compensation or refund all fees. But some judges punish the worker who entrusted an unregistered broker or worked abroad on a tourist visa. And other courts simply treat the matter as a contract or tort dispute. While aggrieved overseas workers who litigate in court face mixed results, this article also discusses why many workers never make it to the courthouse door. The conclusion offers proposals to enhance protections for overseas workers and discusses why it is important that China do so.