Current Events

Aaron Halegua. Marianas Variety. "The Need for Meaningful Oversight"

Aaron Halegua. Marianas Variety. "The Need for Meaningful Oversight"

We are individuals and groups concerned by the labor abuses that transpired at the Imperial Pacific construction site.

The confiscation of worker passports, failure to pay workers the minimum wage, high rates of injury and even deaths, and retaliation against complaining workers have all been well-documented. In order to prevent future exploitation, we support the proposal to establish an independent and transparent monitoring mechanism in which the voice of workers and their representatives plays a crucial role.

He Xia. Exposing Secrets: U.S. Anti-Sexual Harassment Legislation in Response to the “Me Too” Movement

打破秘密: 美国反性骚扰立法对“我也是”运动的回应

Author: He Xia
Translated by Amanda Morrison with Allen Clayton-Greene

The “Me Too” movement has placed sexual harassment, which is prohibited by American law but remains commonplace, right at the heart of the storm. Since the accusations of sexual harassment against Harvey Weinstein exploded into the limelight, there have been daily news reports of sexual harassment, in various sectors: the entertainment industry, the US Congress, business executives, the doctor to the US gymnastics team, and senior government officials. The perpetrators   have been fired, forced to resign, faced lawsuits for high damages and have even been sentenced to life in prison as a result.

The reason why ten or more years passed before victims stood up and said “Me Too,” is not only because of factors such as emotional pain, the feelings of shame, concerns about privacy and the need to maintain employment and survive, but there are also institutional obstacles that keep sexual harassment secret and prevent victims from speaking out. This secrecy has led to victims being unaware of the risks of sexual harassment because they simply do not know about violations that have previously occurred. These institutional obstacles include confidentiality agreements and compulsory arbitration agreements, which force employees to act separate from each other and silence victims. They make it very difficult for employees to tell others what happened to them. They also prevent victims from bringing class action lawsuits to vindicate their rights.

America’s legislative organs and legislators have, in the wake of the “Me Too” movement, passed revisions to the tax code, and have passed bills proposing to end confidentiality for sexual harassment as well as a bill to end mandatory arbitration, in the hope that more people will stand up and swiftly bring an end to sexual harassment, sexual assault, and gender discrimination.

“Me too”(“我也是”运动)将美国法律禁止却又普遍存在的性骚扰推到了风口浪尖。从哈维·温斯坦的性骚扰指控曝光开始,每天都有性骚扰的新闻报道,演艺界、议员、企业高管、体操队队医、政府高级官员因为性骚扰的指控或曝光而被辞退、辞职、面临高额索赔,甚至被判处终身监禁。




Tax Law Revision Increases the Cost of Confidentiality Agreements


On December 22, 2017, President Trump signed into law the Tax Cuts and Jobs Act, amending the 1986 Internal Revenue Code to reduce corporate and individual tax burdens. However, Section 162(q) of the Act clearly stipulates that if a business signs a confidentiality agreement with a victim of sexual harassment or abuse, then the related expenses, such as settlement costs and attorney’s fees, are not tax deductible. Prior to this, settlement fees and expensive attorney fees had been considered “ordinary and necessary business expenses,” which were tax deductible. Senator Menendez (D-NJ), who proposed this part of the tax bill, declared that by increasing the cost of companies covering up misconduct, they would be encouraged to effectively prevent sexual harassment.

According to Title VII of the American Civil Rights Act, workplace sexual harassment constitutes gender discrimination. Employers bear legal responsibility for sexual harassment because they have not fulfilled their obligation to provide a safe work environment. From the plaintiffs’ perspective, an employer that exists as an organization is more financially capable of bearing the burden of any award of damages than the individual who committed the harassment. From the lawmakers’ perspective, apportioning risk among those who are most capable of controlling that risk is consistent with economic principles.

Before the tax bill was passed, employers tended to settle after paying victims of sexual harassment a fixed amount of financial compensation. Moreover, within settlement agreements, victims signed a confidentiality clause, which silenced them. Generally, the behavior of harassers follows certain patterns and is repetitive. Confidentiality agreements expose employees to the continued risk of  being sexually harassed, and render work environments as unsafe as they were previously. In fact, these kinds of corporate expenditures were tax deductible, and firms could purchase liability insurance, which enabled them to pass on the risk. This makes the handling of sexual harassment an economic matter.

The partners of the law firms we visited, which provide legal services for employers, told us that prior to the “Me Too” movement, after taking economic responsibility, employers usually handled sexual harassers by transferring, demoting, or even simply failing to deal with them at all. For those senior executives who brought the company high returns, substantial punishment was rare. But after the “Me Too” movement, companies are inclined to fire executives – even those running the company – who have been accused of sexual harassment, or have asked them to resign.

In an anti-sexual harassment seminar held at New York University Law School this February, an HR director at a Fortune 500 company responded to why companies are now paying more attention to sexual harassment. The HR director said that the first concern is that public media reports affect the company’s image; the second is expensive economic compensation; the third is the impact on company culture and cohesion.



2017年12月22日美国总统特朗普签署实施的《减税与就业法案》(Tax Cuts and Jobs Act)对1986年《国内税收法》(the Internal Revenue Code)进行了修订,减轻企业和个人的税收负担。但是在该法的第162条却明确规定,如果企业与性骚扰、性虐待的受害人达成保密协议,那么有关的和解费、律师费等费用就不能再进行税收抵扣。而在此之前,和解费和不菲的律师费可以通过“普通、必要的企业支出”进行税收抵扣。对该法条进行提案的参议员梅内德斯主张,通过增加企业掩盖不当行为的成本来敦促企业有效地防治性骚扰。






Bill to End Secret Settlement Agreements


A confidentiality agreement—in addition to requiring the victim to refrain from making statements to other people or to the public media—also restricts a victim’s right to sue in court. As well as applying economic pressure on companies through the tax law revision, members of the US Congress have also proposed to abolish confidentiality agreements that restrict a victim’s legal rights, arguing the agreements conceal illegal incidents of sexual harassment.

In December 2017, Representative Maloney (D-NY) and other representatives put forward the Ending Secrecy About Workplace Harassment Act, which would require employers to annually report the number of settlement agreements involving sexual harassment, sexual assault, and sexism to the US Equal Employment Opportunity Commission (EEOC).

Lawmakers in California, New Jersey, New York, Pennsylvania, and Washington, DC, have, in turn, put forward proposals calling for state legislation to abolish confidentiality agreements that restrict victims’ right to appeal.



民主党派的马洛尼(Maloney)等众议员于2017年12月提出《终结工作场所性骚扰秘密》议案(Ending Secrecy About Workplace Harassment Act),要求雇主必须每年度定期向美国平等就业机会委员会(EEOC)报告雇主通过和解协议处理的涉及性骚扰、性侵害、性别歧视的案件。


Bill to Invalidate Mandatory Arbitration Agreements


On December 6, 2017, Senator Gillibrand (D-NY) proposed the Ending Forced Arbitration of Sexual Harassment Act, which would render invalid and remove enforceability for preemptive mandatory arbitration agreements signed by employers and employees—which limit employees’ rights to appeal a sexual harassment case.

When an employee joins a company, he or she will usually sign a mandatory arbitration agreement at the request of the employer as a prerequisite for obtaining the job. In labor disputes, including those occurring after instances of sexual harassment, an employee can only seek arbitration and cannot file a lawsuit in court. It is actually a requirement for employees to give up their right to appeal.

According to a 2017 study by the US Economic Policy Institute, currently 53.9% of non-union member employees have signed mandatory arbitration agreements, and within companies hiring more than 1000 people, 65.1% of employees have signed.

Arbitration is a closed adjudication procedure, and the investigation of the facts and determination of legal liability tend to favor the employer. Unlike a court hearing, there are no discovery procedures for complex evidence, nor are there punitive damages. Compulsory arbitration means that employees who have encountered sexual harassment or discrimination cannot resolve matters in court, the victims stay out of the public’s view, and in some instances, a perpetrator may continue to engage in misconduct for years without receiving due punishment. Therefore, compulsory arbitration agreements are considered to be a contributing factor in long-term, ongoing workplace sexual harassment.

Although the bill still has not yet been passed, the proposal has already had a positive effect on HR management of large companies. According to a New York Times report from December 19, 2017 (Beijing time), Microsoft has already publicly stated that employees who have suffered from sexual harassment will be released from compulsory arbitration agreements, and that it supports the adoption of a federal law that completely prohibits such agreements.


2017年12月6日,参议员吉利布兰德Gillibrand提出“终止性骚扰的强制性仲裁法案,” 该法案规定如雇主与雇员事先签订强制仲裁协议(mandatory arbitration),限制雇员对性骚扰行为的诉权,那么这项协议是无效的,不具有强制执行力。





Proposals to Establish Sexual Harassment Training Mechanisms


US federal law does not require employers, including private companies or the government, to set up internal anti-sexual harassment training mechanisms. Instead, it regulates the issue from the perspective of exemption from liability. Where sexual harassment accusations are made and alleged to have taken place in a “hostile work environment,” an employer can be exempt from liability if it can prove that the company already provided the victim with reasonable complaint and relief procedures, and that the victim unreasonably failed to use them. This kind of system design incentivizes companies to adopt policies that actively prevent internal sexual harassment.

Before “Me Too,” California and Connecticut had clear state laws requiring employers to formulate measures to prevent sexual harassment, discrimination, and retaliation.

After many members of Congress were faced with allegations of sexual misconduct, Congress approved legislation requiring all 535 Congress members and their employees to receive mandatory anti-sexual harassment training. Maine and Virginia also proposed that employers with more than 15 employees must require mandatory anti-sexual harassment training.

On February 6, 2018, the House of Representatives overwhelmingly passed legislation by voice vote that would reform the way Capitol Hill handles sexual harassment cases, aiming to streamline the complaint process and improve public transparency. The bill would no longer require Congressional staffers to go through psychological counseling and mediation before filing a complaint. Instead, complainants would be able to immediately contact a lawyer and may choose to initiate an investigation or to file a federal lawsuit. When lawmakers settle sexual harassment charges, the legislation prohibits “public funds for private use,” and requires them to be personally responsible for any settlement fees. At the same time, the Office of Compliance would be required to publish statements online every six months, specifying the settlement fees and offices in which allegations of sexual harassment occurred.

The “Me Too” movement has given significant impetus to the prevention of sexual harassment in the US. I came to the US for an academic visit in mid-January. In three short weeks, I saw daily news about sexual harassment in the media and scrolling broadcast notices on the subway that said, “sexual harassment is a crime, if you experience sexual harassment on the subway, please notify our employees right away.” In the process of visiting the EEOC, federal judges, law offices, legal aid agencies and law professors, sexual harassment was always a hot topic of discussion.

Using a movement to promote social change has its advantages—it is rapid and passionate, it has attracted universal attention, and it will usually overcome opposing voices. But there also exists another challenge; how to protect the rights of perpetrators so that they receive a punishment that is proportional to their individual offenses? How do you prevent this kind of movement from becoming another form of oppression? Is there a rational response from a legal point of view? These are thoughts from outside the movement that also need to be considered.

(He Xia, Assistant Law Professor, Southwestern University of Finance and Economics)




在“me too”以前,加利福尼亚州和康涅狄格州有明确的州立法要求雇主制定防止性骚扰、歧视和报复的措施。






Aaron Halegua. Open Democracy. "Sexual harassment at Walmart’s stores and suppliers in China"

Aaron Halegua. Open Democracy. "Sexual harassment at Walmart’s stores and suppliers in China"

A coalition of labor groups, including Global Labor Justice and the Asian Floor Wage Alliance, issued a report last month documenting extensive sexual violence and harassment at Walmart apparel supplier factories in Bangladesh, Cambodia, and Indonesia. In the study, ‘Gender Based Violence in the Walmart Garment Supply Chain’, women also reported retaliation when they refused sexual advances or complained about the mistreatment. The findings are based on interviews with 250 workers in 60 factories over a six year period.

Aaron Halegua & Yizhi Huang. ChinaFile. "What Is the Significance of China’s #MeToo Movement?"

As the #MeToo movement has swept America, it has also made waves in greater China. On the mainland, the most widely publicized incident involved Luo Xixi’s allegation in a January 2018 Weibo post that her professor at Beihang University, Chen Xiaowu, sexually harassed her over a decade ago. The allegation lead to Chen’s dismissal. Since then, Chinese women have organized at least 70 open letters to universities and have posted some of their stories of sexual harassment on social media, with the #MeToo hashtag attracting over 4.5 million hits on Weibo. The government has tried to suppress some of this, blocking the #MeToo hashtag and deleting posts, and China’s social media movement has had difficulty moving “offline,” as it has outside of China. Nonetheless, some Chinese officials have acknowledged that sexual harassment is a problem and are discussing how universities and government agencies should respond. Hong Kong women have similarly been taking to social media to air their grievances.

The following conversation, organized by Aaron Halegua, a lawyer and research fellow at NYU School of Law, addresses the significance of the #MeToo movement from a variety of perspectives, including its impact on sexual harassment litigation and worker protections; implications for youth, feminist, and LGBTQ movements; the role of public interest lawyers in social movements; and the push for gender equality in Hong Kong. —The Editors

Read Aaron Halegua and Yizhi Huang's Comments here:

Alvin Y.H. Cheung. ChinaFile. Who's to Blame for Hong Kong's Weakening Rule of Law?

January 23, 2018

Rimsky Yuen, Hong Kong’s third Secretary for Justice, stepped down in early January. He leaves his department, and the city’s reputation for rule of law, markedly worse than they were when he took office in July 2012.

According to the Department of Justice’s website, the Secretary for Justice’s role is to act as “guardian of the public interest in a wider sense.” Yet Yuen’s tenure has been marked by attempts to wield the law against political opponents, a refusal to defend the courts from unfair and racially-charged criticism or Beijing’s attempts to strip them of their power, and a steady attack on the foundations of Hong Kong’s constitutional order. Far from fulfilling his constitutional duty to speak up for the rule of law in Hong Kong, he has been a willing collaborator in Beijing’s sustained campaign to undermine it.

Ira Belkin. Justice in the PRC: How the Chinese Communist Party Has Struggled with Managing Public Opinion and the Administration of Criminal Justice in the Internet Age

Ira Belkin. Justice in the PRC: How the Chinese Communist Party Has Struggled with Managing Public Opinion and the Administration of Criminal Justice in the Internet Age

The influence of Chinese public opinion on individual criminal case decisions is a phenomenon that has received a great deal of attention in China and around the world. Some commentators have lauded the phenomenon as empowering the public to seek justice in Chinese courts. Others have expressed concern that following public opinion may achieve justice in an individual case but does little to improve the justice system.

Margaret K. Lewis. ChinaFile. Protecting the Rights of the Accused in U.S.-China Relations.

As President Donald Trump visits China, the Chinese government wishes that billionaire fugitive Guo Wengui would follow suit and board a plane to Beijing. For months, he has regaled the world from his luxury apartment in Manhattan with stories of high-level corruption among China’s elite. Untangling the truth of Guo’s claims is complex, but what the Chinese government wants is simple: to have some of its citizens, especially Guo, returned to China to face a long list of criminal and civil charges.

Margaret K. Lewis. CFR. "What Would Trump Do if There Were Another Tiananmen Incident?"

May 31, 2017

Margaret K. Lewis is a professor of law at Seton Hall University School of Law and a Fulbright research fellow at National Taiwan University School of Law.

As the world reflects on this week’s anniversary of the Tiananmen Square protests and subsequent violent crackdown by the PRC government, it is worth contemplating what President Donald J. Trump would do if faced with a similar situation. When asked about Tiananmen during the campaign, Trump said he was not “endorsing” China’s response, but he called the demonstrations a “riot.” Would President Trump see a riot or a massacre if the events of June 4, 1989, were replayed today?

The U.S. bombing raid in April that President Trump linked to the Syrian government’s use of chemical weapons against civilians suggested that human rights would be prominent in shaping foreign policy. Yet President Trump’s remarks during his recent visit to Saudi Arabia and praise for leaders with deeply problematic human rights records, such as Egyptian President Abdel Fattah al-Sisi, caution otherwise.

Specifically regarding China, in March 2016 the Obama administration joined eleven other countries in issuing a rare statement expressing “concern[ ] about China’s deteriorating human rights record” and calling on China “to uphold its laws and its international commitments.” The United States was noticeably absent a year later when eleven countries—including Canada, Australia, and the United Kingdom—sent a letter to the Chinese government expressing “growing concern over recent claims of torture and other cruel, inhuman or degrading treatment or punishment in cases concerning detained human rights lawyers and other human rights defenders.”

The Trump administration is admittedly not breaking the mold: U.S. government policy towards China has always been, at least to some degree, pragmatic. President Jimmy Carter entered office with human rights as a cornerstone of his foreign policy. Nonetheless, even he recognized the United States’ many interests when dealing with China and normalized relations. President George H. W. Bush suspended military contracts and technology exchanges with China following the Tiananmen Square massacre. President Bill Clinton, however, restored China’s most favored nation trading status four years later and quickly relaxed rhetoric that China must make significant progress towards conforming with international human rights standards.

While the tension between principles and pragmatism is not new in U.S. policy towards China, the current dismissive attitude towards human rights is jarring. The past four months indicate that policy decisions based on immediate economic and security calculations will prevail over long-held human rights values. As I have argued elsewhere, this is a mistake. Addressing human rights in both a principled and pragmatic way requires not just stating that human rights matter in the abstract but also articulating an integrated, executive-branch-wide plan for how human rights will be raised in various contexts.

Read the entire article here.

Eva Pils. Jane Henderson. King's Law Journal. "BREXIT and International Relations: The Impact of Brexit on Relations with Russia and China."

In autumn 2016 Affiliated Professor Eva Pils co-published the artile considering the likely impact of Brexit on relations between the United Kingdom, China, and Russia.


This paper considers the likely impact of Brexit on the relations between the United Kingdom and two significant states on the world stage: Russia, which is physically the largest, and heir to one of the Cold War superpowers, and China, which is the most populous, and which some think may be the next superpower. In discussing this impact, we also address how Brexit affects the EU’s relationship with Russia and China.

This question can be conveniently considered from three different (though interacting) perspectives. First, what impact will the change in Britain’s EU status have on individual Russian/Chinese or UK citizens wishing to travel to, invest in or trade with the other state? Secondly, what change is likely between Russia/China and Britain on a state-to-state level? Finally, both the UK and Russia/China belong to some important international organisations; will Britain leaving the EU impact on its place in these other organisations in relation to Russia or China?

A. Russia

England (and later, the UK) and Russia have a long history of interaction, sometimes as friend, sometimes as foe. Tsar Ivan Grozny (Ivan the Terrible) would have liked to have married Queen Elizabeth I (or failing that, one of her maids in waiting) but was refused. The first Russian Emperor, Peter the Great, stayed in London from January to April 1698. As during his preceding visit to the Netherlands, he worked in the dockyards to learn about shipbuilding. (He also had some notoriously drunken parties.) This led to a sadly brief period of unprecedentedly warm relations between Britain and Russia. During the following century, Jeremy Bentham’s works were of interest to Prince Potemkin, one of the lovers of Empress Catherine II (Catherine the Great). In early nineteenth and mid-twentieth centuries respectively the desires of Napoleon Bonaparte and Adolf Hitler to expand their empires put Russia on the same side as Britain; in the 1850s during the Crimean War they opposed one another as part of the then ‘Great Game’ waged between the British, French, Ottoman and Russian empires. Lenin also spent time in London

B. China

Historically the most important thing about Sino-British relations is these relations’ principal origin in colonialism. British historians usually note (not always without gloating about China’s subsequent surrender to British power and influence) that when George III’s emissary arrived in China in 1793 to request that the British be allowed to establish more extensive trade relations on their own terms, his gifts were graciously accepted, but the request rejected with the message,

As your Ambassador can see for himself, we possess all things. I set no value on objects strange or ingenious, and have no use for your country’s manufactures. This then is my answer to your request to appoint a representative at my Court, a request contrary to our dynastic usage, which would only result in inconvenience to yourself … 22 Emperor Qianlong, letter to George III, 1793, available in translation at <>.View all notes

Chinese historians will of course comment on the ‘unequal treaties’ that, inter alia, ceded Hong Kong and, later, its New Territories to Britain, and the memory of the humiliation33 The term conventionally used is ‘national humiliation’ (guochi).View all notes and wreckage colonialism brought to China is symbolised, to many people's minds, by the ruins of wanton ‘punitive’ destruction that can still be seen in Yuanming Park in north-west Beijing.44 Sheila Melvin, ‘The Ruins of Yuanmingyuan’ (ChinaFile, 4 May 2012) <>.View all notes

When the UK, in October 2015, received the General Secretary of the Chinese Communist Party (CCP) and President of the People's Republic of China (PRC) Xi Jinping with extraordinary pomp—taking him to Buckingham Palace in a golden carriage and repeatedly using the phrase ‘golden relationship’ to predict a glorious shared future of exchange and partnership55 Shi Zhiqin and Lai Suetyi, ‘Xi's Visit to Kick Off a Golden Age of China-UK Relations’ The Diplomat (15 October 2015) <>.View all notes—some saw in this a poignant reversal of fortunes. But there were many concerns about China's numerous rule of law challenges, at a time when the UK, like other European countries, seemed to have its own, different, struggles with adhering to and endorsing human rights standards.

A few months later, Brexit seemed likely to add to anxieties and concerns about what is already a complex and challenging relationship,66 Tom Phillips, ‘China, Britain and Brexit: Vote to Leave EU Robs “Golden Relationship” of Its Lustre’ The Guardian (London, 30 June 2016) <>.View all notes even though in terms of immediate consequences for individuals (see section II.B) there is little that can be predicted with any confidence at this point. China's influence on and in a Britain that is no longer part of the EU is set to generate legal and political challenges.

For the complete article please click here.

Jerome A. Cohen. The Wisdom of The Hague’s South China Sea Decision. Wall Street Journal

The July 12 arbitration award in the Philippines case against China under the United Nations Convention on the Law of the Sea (Unclos) isn’t only significant for East Asia and maritime law. It will also have implications for public international law and the peaceful settlement of international disputes generally.

Peter Dutton Interview. The Hague Rules Against Beijing in South China Sea Case. The Takeaway

At long last, the Philippines and China will have answers to their heated dispute over the South China Sea. A tribunal at the Permanent Court of Arbitration in The Hague, Netherlands, has issued a landmark ruling addressing the Philippines' accusations that China has interfered with the rich fishing region of the Scarborough Shoal.

Jerome A. Cohen. Like it or not, UNCLOS arbitration is legally binding for China. EAF (East Asian Forum)

International media have come to focus on Tuesday’s anticipated decision in the Philippines’ arbitration against China. Beijing’s recent propaganda and diplomatic blitz has raised the prominence of the case to new heights. The dispute involves no fewer than 15 issues, many of them highly technical. Yet the basic issue in the case — whether the decision will be legally binding on China as well as the Philippines — is reasonably straightforward. Still there appears to be widespread misunderstanding surrounding it.

Jerome A. Cohen and Peter A. Dutton. Japan’s important sideshow to arbitration decision in the South China Sea. EAF (East Asian Forum)

While tensions continue to rise in the South China Sea and the disputing governments nervously await a decision in the Philippines’ arbitration case against China, an important sideshow has arisen between Japan and Taiwan in the central Philippine Sea regarding a Taiwanese fishing vessel. 

Aaron Halegua. Employees in China should be allowed to protest against work conditions without fear of reprisals. SCMP (South China Morning Post)

China issued a new regulation to better protect whistle-blowers who report work-related crimes. Among the provisions are several articles that not only prohibit retaliation, but also, for the first time, describe the many forms it can take and provide greater detail on how the government should prevent and address reprisals.