当力拓公司(Rio Tinto)包括一位澳大利亚籍公民在内的4名员工因涉嫌...

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  • 1. 中国商业的灰色地带 力拓在华员工因商业间谍罪被捕,凸显中国商业游戏规则问题重重。 当力拓公司(Rio Tinto)包括一位澳大利亚籍公民在内的 4 名员工因涉嫌窃取国家机密被中国警方拘捕时,一股寒意顿时涌上了许多在华外国投资者的 心头。 鉴于此事发生前不久,力拓公司终止接受国有有色金属制造商中铝公司 (Chinalco)120 亿美元投资的计划,因此许多人的第一反应是:这是中国方面因为 这次投资失败而展开的报复行动。澳大利亚方面迅速指出,此举会影响国际商业界对于中国这个全球第 3 大经济体的看法。 今天,由于中国方面已经告知澳大利亚政府,中国有“充分证据”支持其间谍罪的指控,中澳两国围绕这项指控最新一轮的“口水战”呈现出加剧态势。 中国外交部副部长何亚非表示:“我要强调的是,我们有充分证据显示,涉及此案的人员运用非法手段获取了中国的国家机密。此案已经进入司法程序, 我希望澳方尊重中国的司法主权。” 对于自己的员工在中国从事间谍和行贿活动的说法,力拓公司予以否认。 诚信 堪培拉方面表示,解决这场危机将要“花费一些时间”。力拓公司在中国的铁矿石业务负责人、澳大利亚人胡士泰(Stern Hu)与其 3 位同事已经被拘禁了 18 天。澳大利亚外长史蒂芬·史密斯(Stephen Smith)表示,他依旧希望与中国外长商谈此事。 中国是澳大利亚最大的贸易伙伴,去年的贸易额高达 530 亿美元。澳大利亚的贸易部长西门·克林(Simon Crean)上周警告说,“对于所有试图在中国做 生意的人来说,这件案子是一个重要的信号”,他呼吁迅速解决此事。 由于此案依然处于调查阶段,没有人可以确切得知这些指控的具体细节,当然更无法知道这些指控是否确有根据。力拓公司强调,它相信它的员工“任何 时候都行事端正,他们时刻恪守着力拓公司严格且公开表明的道德规范”,对于员工向钢铁公司行贿的指控,该公司坚决否认。 但 现如今,大多数人相信,此事所调查的,其实是复杂、并且经常显得神秘莫测的钢铁业的运作情况,而并非什么间谍活动或者国家安全事务。问题在 于,在中国,这 种区别并不明显。此案的中心环节是,中国钢铁制造商和由力拓公司领衔的铁矿石制造商之间的谈判,以及这些谈判中所使用的信息。 由于大量的中国公司或多或少 都是受政府支持的,加上钢铁业属于战略产业,因此,此案绝不仅仅是一件纯粹的商业事务。 “这个案子体现出在中国做生意的某些不确定性,” 纽约城市大学(City University of New York)经济学系助理教授约翰·弗兰肯斯坦 (John Frankenstein)说,“一位中国律师曾经对我说,‘从根本上说,国家可以合法正当地以任何借口,在任何时间干预任何交易。’” “许多来华投资的跨国公司都有一个专事调查搜集商业信息的部门。对于那些人来说,这件事当然令人不安。”北京龙州经讯(Dragonomics) 经济咨询公司 的汤姆·米勒(Tom Miller)补充说。 “如果你从事的是那种你认为商业信息和国家机密有可能产生重叠的生意,你就会尤其重视。问题在于,中国这方面的法律非常晦涩,坦率地说,没有人 知道究竟什么是国家机密。” 力拓案正在显露的细节,似乎已经抚缓了外国投资者最严重的担心。 “我认为,这件事并不像第一天看到时那么令人惊悚,”一位不愿透露姓名的商业咨询师表示。有几位人士不愿意自己的谈话被记录,或是他们的公司指 示其不要这样做,这也显示出此案的敏感性。
  • 2. “很明显,此案的背后有一定程度的政治动机;说这完全是巧合,是不可能的。” 但 他指出,随着对钢铁公司高管的调查展开,调查的范围已经扩大,这显示出当局并不仅仅是针对力拓公司,他们关注的是这个“腐败至深,臭名远 扬”的产业,并试 图扭转其发展轨迹。“在较低层次的商业谈判中,使用法律手段威吓或向公司施压,一点都不令人惊讶;这种事情经常发生。但是,在 这样的层次上发生这种事情, 确实不同寻常,”他补充说。 此案是如此地敏感,以至于有报道说,中国国家主席胡锦涛亲自下令继续展开调查。但是,青岛 Harris & Moure 律师事务所的合伙人斯蒂文·迪金森 (Steve Dickinson)相信,此案引发的问题并非新鲜事物。 处置 “过去的旧观念认为,外国人往往不会受到法律的惩处,他们会轻易地脱身,大不了被遣送回国。现在不一样了,”他说。“从事商业间谍、行贿活动以及 非法获取信息的人,不应该涉足中国。” “有人对我说,‘在中国,大家都是这样做的。’ 但在中国,也有人由于做这种事情而锒铛入狱,甚至掉脑袋。有人这样做了,并且认为,‘瞧,啥事都没 有。’在中国,只有当局面失控的时候,才会出事。” 许 多人抱怨说,非法信息市场的形成,是由于中国没有能建立起合乎法律规范的信息机构所致。“政府和企业应该意识到,通过提供公开可用的信息, 它们能够在很大 程度上满足对于商业情报的需求……,这样就减少了腐败和间谍活动的存在空间,”北京安邦咨询公司(Anbound)给出了上述说法。 迪金森承认,当许多客户眼睁睁地看到自己遵守的法律条文被竞争对手视若废纸时,他们非常恼火。“外国人面临运用不合法手段获取信息的压力…… (但是)如果你无法用其他方式做事的话——那就回家吧。还犯不着因为这种事被拘捕,”他补充说。 那些公司是否会接纳他的建议还有待观察。“我认为,这种局面并不会阻止它们赶赴中国投资的脚步。当前,世界上大多数国家的经济依然处于困境之 中;中国是少有的亮点之一,”米勒说。几天前,最新公布的数据显示,中国第二季度的 GDP 增速出人意料地高达 7.9%。 有 一种观点认为,一个日益强大的中国正在排斥它昔日竭力争取的外国公司,专家们认为这种看法有些言过其实。“有人非常焦虑地认为,中国对外国 投资的兴趣已经 一去不复返了,”北京长江商学院(Cheung Kong Graduate School of Business)及弗吉尼亚大学(University of Virginia)教授李伟指出。 “我觉得没有那么严重。对于外国公司带入的资金,中国已经不大在乎了,但是,进入外国市场依然是十分重要的。我预期,这不会出现显著的变化。” Perils of doing business in a secret state Rio Tinto 'spies' fell victim to a Chinese regime where the rules are changing - and unknowable When Chinese police detained four Rio Tinto employees – including an Australian national – for allegedly stealing state secrets, a chill ran down the spines of many foreign investors. Given its timing shortly after Rio aborted plans to take a £12bn investment from Chinalco, the state-owned metals producer, many initially suspected it was retribution for that debacle. Australia was quick to suggest it could affect the international business community's perceptions of the world's third largest economy.
  • 3. Today the latest round of a war of words between the two governments over the spying allegations deepened as it emerged that China has told the Australian government that it has "sufficient evidence" to support the accusations. He Yafei, China's vice-minister of foreign affairs, said: "I stressed that we have sufficient evidence showing that the individuals involved obtained China's state secrets using illegal means. The case has entered the judicial process and I requested the Australian side to respect China's judicial sovereignty." Rio has denied the claims that its employees have been involved in any kind of spying or bribery in China. Integrity Canberra said that it would "take some time" to resolve the crisis, which has seen Rio's top iron ore executive in China, Australian Stern Hu, held for 18 days along with three colleagues. Stephen Smith, the Australian foreign minister, said he still hoped to meet his Chinese counterpart to discuss the matter. China is Australia's biggest trade partner, with trade worth $53bn (£32.3bn) last year. Last week Simon Crean, its trade minister, warned that the case was "important as a signal to all people seeking to do business in China" and called for the matter to be handled quickly. With the case still under investigation, no one can be sure of the precise details of the allegations; still less of whether they have foundation. Rio Tinto has stressed that it believes its staff "acted at all times with integrity and in accordance with Rio Tinto's strict and publicly stated code of ethical behaviour" and denied claims that they bribed steel companies. But most now believe the issue is in effect an inquiry into the operations of a complicated and often shady steel industry rather than any espionage or national security matters. The problem is that in China, the distinction is not so clear. The case centres on negotiations between Chinese steelmakers and iron ore producers, led by Rio Tinto, and the information used in those talks. Because so many Chinese companies are partly government-backed, and because steel is a strategic industry, it has become far more than a purely commercial matter. "This case illustrates some of the uncertainty of getting involved in business in China," said John Frankenstein, assistant professor of economics at the City University of New York. "A Chinese lawyer once told me 'basically, the state can legitimately intervene in any deal at any time under any pretext'." "There are a lot of multinationals who came to China and have a fact-finding, commercial information arm. For those people it's certainly worrying," added Tom Miller, of the Beijing-based economic consultancy Dragonomics. "If you are in the kind of business where you think there might be an overlap between commercial information and state secrets, you would be concerned. The problem is that Chinese law on this is very, very oblique and frankly no one knows what a state secret is." The worst fears of foreign investors appear to have been mitigated by the emerging details of the Rio case. "I don't think it's as alarming as it looked on day one," said one business adviser who asked not to be identified; several people were reluctant to speak on the record, or had been instructed not to do so by their companies, in a sign of the case's sensitivity. "There is obviously a degree of political motivation; it's impossible to say it's pure coincidence." But he pointed out that the inquiry had expanded with the investigation of executives from steel firms, suggesting that the authorities were not simply targeting Rio Tinto and that they were concerned about the "notoriously corrupt" industry and its possible skewing of development. "Using legal means to intimidate or pressurise companies in business negotiations at lower levels is not at all surprising; it happens quite a lot. But to happen on that sort of stage would be unusual," he added. The case is so sensitive that it was reported that president Hu Jintao personally approved the decision to press ahead. But Steve Dickinson, a partner at the law firm Harris & Moure in Qingdao, believes the issues it raises are not new.
  • 4. Executed "The old notion used to be that foreigners got a free pass – the worst that would happen was that you would be told to go home. That is not the rule now," he said. "People who conduct industrial espionage and bribe people and obtain information illegally should not set foot in China. "One guy said to me 'everyone does that in China'. But people also go to jail and get executed for doing this in China. People do it and think 'see, nothing happened'. The only time things happen in China is when things go sideways." Many complain that the market for illicit information has been created by China's failure to establish legally compliant information agencies. "Government and enterprises should realise that by [providing] publicly available information, they can to a large extent satisfy the demand for commercial intelligence ... and reduce the space available for corruption and espionage," the Beijing-based economic consultancy Anbound said. Dickinson acknowledges many clients chafe at obeying laws that they can see competitors flouting. "Foreigners have pressure to get information through improper means … [But] If you can't do things any other way – go home. It's not worth being arrested for," he added. Whether companies take his advice remains to be seen. "I doubt this will put them off coming. Most of the world economy is still in the doldrums; China is one of the bright spots," said Miller, speaking days after new figures showed that GDP growth rose to an unexpectedly high 7.9% in the second quarter. Experts also play down suggestions that an increasingly mighty China is brushing aside the firms it used to woo. "There's anxiety that China is not interested in foreign investment any more," pointed out Professor Li Wei, of the Cheung Kong Graduate School of Business in Beijing and the University of Virginia. "I would discount that. It doesn't care much about financial resources foreign companies can bring, but access to foreign markets remains important. I don't expect major changes."