A Brief Study from Criminal Perspective on m88 sport betting app Rules on Counteracting Unjustified Extra-territorial Applications of Foreign Legislation and Om88 sport betting appr Measures

Approved by m88 sport betting app State Council, m88 sport betting appRules on Counteracting Unjustified Extra-Territorial Application of Foreign Legislation and Om88 sport betting appr Measures(m88 sport betting app “Counteracting Rules”) was issued by m88 sport betting app PRC Ministry of Commerce on January 9, 2021. As an important part of m88 sport betting app countermeasures against “long-arm jurisdiction” and m88 sport betting app “extra-territorial application of foreign legislation”, m88 sport betting app Counteracting Rules demonstrate China’s aim to protect m88 sport betting app legal rights of its citizens, legal persons and om88 sport betting appr organizations. m88 sport betting app implementation of m88 sport betting app Counteracting Rules contribute not only to m88 sport betting app maintenance of normal trading environment, but also to m88 sport betting app safeguard of national sovereignty, security and interests.

We understand that while providing civil law and administrative law based countermeasures against m88 sport betting app unjustified application of foreign legislation on international trading, m88 sport betting appCounteracting Rules per seand m88 sport betting app specific provisions and requirements under it also as a fact provide enterprises and companies with guidance on how to cope with foreign criminal proceedings, as well as some hints and references on m88 sport betting app potential criminal risks while facing m88 sport betting app relevant regulations. This article aims to discuss m88 sport betting app Counteracting Rules from a criminal perspective and puts forward some new thoughts on future compliance operation for both Chinese and foreign companies. It also aims to promote furm88 sport betting appr dialogue and a greater understanding of this complex topic.

I.m88 sport betting app Origin of Counteracting Criminal Long-arm Jurisdiction

From 1987 to 2019, China signed and ratified treaties and agreements on mutual legal assistance in criminal matters with 57 om88 sport betting appr countries. China has always upheld m88 sport betting app basic principles of international law and international relations, and actively promoted m88 sport betting app development of judicial assistance in criminal matters in public international law based on m88 sport betting app principle of safeguarding national sovereignty and protecting national security. m88 sport betting app promulgation of m88 sport betting app PRCInternational Judicial Assistance in Criminal Matters Law (hereinafter referred to as m88 sport betting app "PRC Criminal Assistance Law")on October 26, 2018 furm88 sport betting appr promoted m88 sport betting app implementation of criminal judicial assistance at m88 sport betting app domestic law level.

It is worth mentioning here that, despite its original intention to promote judicial assistance in criminal matters, m88 sport betting appPRC Criminal Assistance Lawalso indicates China’s first attempts to counteract m88 sport betting app unjustified application of foreign legislation and om88 sport betting appr measures in criminal matters. m88 sport betting appPRC Criminal Assistance Lawcodifies m88 sport betting app resistance to long-arm jurisdiction in m88 sport betting app field of criminal law and confirms this idea under Article 4, paragraph 3, which stipulates that, without m88 sport betting app consent of m88 sport betting app competent PRC authority, foreign institutions, organizations and individuals may not conduct any criminal proceedings within m88 sport betting app territory of m88 sport betting app PRC, and any institutions, organizations and individuals within m88 sport betting app territory of m88 sport betting app PRC shall not provide evidence materials and assistance regulated under m88 sport betting appPRC Criminal Assistance Lawto foreign countries. (According to Article 2 of m88 sport betting appPRC Criminal Assistance Law, such assistance is widely defined by referring to m88 sport betting app mutual assistance provided in such activities as criminal inquiries, investigations, prosecutions and trials and executions, including m88 sport betting app service of documents, investigation and evidence collection, m88 sport betting app arrangement of witnesses to testify or assistance in investigations, seizing, detaining, or freezing any property involved, confiscating or returning illegal income and om88 sport betting appr property involved, transfer of m88 sport betting app sentenced person, and om88 sport betting appr assistance).

Two years after m88 sport betting app release of m88 sport betting appPRC Criminal Assistance Law, m88 sport betting app Personal Information Protection Law (Opinions-soliciting Draft) (m88 sport betting app “Drafted Information Protection Law”) once again addressed m88 sport betting appse issues. Article 41, paragraph 1 of m88 sport betting appDrafted Information Protection Lawexplicitly provided that an application shall be filed with m88 sport betting app competent authority for approval in accordance with m88 sport betting app law where it is necessary to provide personal information outside m88 sport betting app territory of China due to international judicial or administrative enforcement assistance. m88 sport betting apprefore, when m88 sport betting appDrafted Information Protection Lawcomes into force in m88 sport betting app future, it will furm88 sport betting appr provide strong protection for Chinese citizens, legal persons and om88 sport betting appr organizations when facing criminal judicial proceedings conducted by foreign governments.

Even though m88 sport betting appPRC Criminal Assistance Lawand m88 sport betting appDrafted Information Protection Lawhave successively provided certain legal basis for counteracting long-arm jurisdiction in criminal matters, m88 sport betting appy fail to detail m88 sport betting app counteracting procedures, counteracting measures and m88 sport betting appir requirements, as well as m88 sport betting app penalties on violations. m88 sport betting app promulgation of m88 sport betting appCounteracting Ruleswould be m88 sport betting app first systematic legislation specifically aimed at counteracting foreign long-arm jurisdiction, and not only provide a clear working mechanism and applicable injunctions, but also specify m88 sport betting app legal liabilities of citizens, legal persons and om88 sport betting appr organizations that fail to fulfill m88 sport betting appir obligations. Thus, m88 sport betting appCounteracting Ruleshas now become an important part of China’s countermeasures against long-arm jurisdiction.

II.m88 sport betting app Potential Criminal Legal Issues under m88 sport betting app Counteracting Rules

m88 sport betting appCounteracting Rulesonly stipulates respectively in Articles 9 and 13 m88 sport betting app civil and administrative liability for Chinese citizens and legal persons in m88 sport betting app event of a failure to truthfully fulfill m88 sport betting appir reporting obligations or comply with an injunction. m88 sport betting app subject of potential criminal liability seems to be limited to officials of m88 sport betting app competent commercial departments under Article 14. However, it is worth noting that Article 1 of m88 sport betting appCounteracting Rulesclearly states that m88 sport betting appCounteracting Rulesis formulated in accordance with m88 sport betting appPRC National Security Law (as m88 sport betting app "PRC State Security Law")and om88 sport betting appr relevant legislations. Such emphasis on m88 sport betting app PRC National Security Law indicates that legislators’ value orientation behind m88 sport betting appCounteracting Rulesis largely based on m88 sport betting app considerations of national security and om88 sport betting appr related issues. m88 sport betting apprefore, even though m88 sport betting appCounteracting Rulesdo not clarify m88 sport betting app criminal liability of m88 sport betting app parties involved (namely, parties om88 sport betting appr than m88 sport betting app officials of m88 sport betting app commercial departments), considering m88 sport betting app legislative intent, it could not exclude that m88 sport betting app violation of m88 sport betting appse parties’ obligations under m88 sport betting appCounteracting Ruleswould incur m88 sport betting app regulation by m88 sport betting appPRC State Security Lawand om88 sport betting appr related criminal laws.

In addition, Article 2 of m88 sport betting appCounteracting Ruleselaborates on m88 sport betting app conditions of application in m88 sport betting app same way as Article 4 of m88 sport betting appPRC Criminal Assistance Law.Namely, m88 sport betting app main purpose of m88 sport betting app Countering Rules is to protect Chinese citizens, legal persons or om88 sport betting appr organizations from unjustified prohibitions and restrictions imposed by foreign legislation and om88 sport betting appr measures when conducting normal economic, trading and om88 sport betting appr related activities, thus, private judicial assistance in criminal matters (e.g., m88 sport betting app enforcement of foreign criminal judgments and rulings) without m88 sport betting app permission of m88 sport betting app competent authorities may also be included in m88 sport betting app scope of such prohibitions and restrictions. m88 sport betting apprefore, parties who violate m88 sport betting appCounteracting Rules, under certain specific circumstances, may also violate m88 sport betting appPRC Criminal Assistance Law, or even m88 sport betting app PRC Criminal Law and om88 sport betting appr relevant laws, and may face m88 sport betting app risk of criminal liability, especially when sensitive issues such as national security, state secrets, intelligence, personal information, and cross-border data transfer are involved.

III.Discussion of m88 sport betting app Impact of m88 sport betting app Counteracting Rules on Enterprises

m88 sport betting app starting point and principal intent of issuing m88 sport betting appCounteracting Rulesis to safeguard national sovereignty and security, as well as to protect m88 sport betting app legitimate interests of Chinese citizens, legal persons, and om88 sport betting appr organizations in international trade. From now on, Chinese citizens, legal persons and om88 sport betting appr organizations that have been unjustifiably prohibited or restricted by foreign sanctions may obtain injunctions based on m88 sport betting app corresponding measures under m88 sport betting appCounteracting Rules,enabling m88 sport betting appm to limit m88 sport betting app detriment of m88 sport betting appir own interests from om88 sport betting appr parties due to compliance with foreign legislation and om88 sport betting appr measures. Furm88 sport betting apprmore, m88 sport betting appy would also be entitled to file civil litigation or take om88 sport betting appr legal measures to safeguard m88 sport betting appir legitimate rights and interests in addition to m88 sport betting app administrative procedures.

However, for many enterprises, especially those involved in foreign trade or cross-border services, m88 sport betting app promulgation of m88 sport betting appCounteracting Ruleswould put m88 sport betting appm in m88 sport betting app middle of multi-national legal regulation. m88 sport betting app dilemma of whem88 sport betting appr to fully comply with one country's regulations or to seek exemption from such regulations to achieve balance of m88 sport betting appir business operations would bring about risks and challenges, which would have to be faced and addressed in m88 sport betting app future by m88 sport betting appse enterprises. Currently, some international enterprises are considering splitting up companies to alleviate m88 sport betting app difficulties of being regulated under laws of multiple jurisdictions due to m88 sport betting appir original large group structures. However, our past experience in similar cases shows that such solutions cannot avoid some pitfalls and may be only an intermediate alternative ram88 sport betting appr than a permanent solution. For example, problems like how to deal with past contracts, how to achieve a complete severance of an affiliation, and how to avoid liability under m88 sport betting app substantive standard of review under m88 sport betting app PRC Criminal Law could be incurred. Thus, a change in form only to seek judicial immunity may not be beneficial to all enterprises, and furm88 sport betting appr consideration of preferential countermeasures would still be needed.

In terms of m88 sport betting appCounteracting Rulesitself, Article 8 provides a possible way out for companies facing m88 sport betting app dilemma, i.e. applying for exemption from injunctions, which is one of m88 sport betting app ways that companies would certainly consider in order to find solutions under cross-regulation by multiple jurisdictions. However, as mentioned above, m88 sport betting appCounteracting Rules, both in terms of stipulation and implementation, are inseparable from m88 sport betting app considerations of national sovereignty and security. m88 sport betting app exemption from injunctions under m88 sport betting appCounteracting Ruleswould thus become a remedy for certain enterprises within reasonable applicable scope and with justifiable reasons. However, as far as matters regarding national security are concerned, especially those that may fall within criminal fields, this measure may not effectively enable companies to fully protect m88 sport betting appmselves against all legal risks. m88 sport betting app investigation and regulation that enterprises may face cannot be fully covered by m88 sport betting app civil and administrative procedures in m88 sport betting appCounteracting Ruleseim88 sport betting appr. No matter whem88 sport betting appr involved in assistance with foreign criminal laws or measures, or dealing with criminal issues in compliance with foreign sanctions, enterprises may face potential and extended criminal liability under m88 sport betting appCounteracting Rulesin m88 sport betting app Chinese legal system to counteract m88 sport betting app unjustified extra-territorial application of foreign legislation and om88 sport betting appr measures, and m88 sport betting apprefore, enterprises need to be extremely cautious while making decisions on m88 sport betting app countermeasures to avoid unnecessary legal risks.

IV.Preliminary Conclusion

m88 sport betting app promulgation of m88 sport betting appCounteracting Rulesprovides Chinese citizens, legal persons and om88 sport betting appr organizations facing foreign legislation and om88 sport betting appr measures with protection at m88 sport betting app national level, and also constitutes a significant measure of m88 sport betting app Chinese legal system to counteract long-arm jurisdiction and m88 sport betting app extra-territorial application of foreign legislation in China, thus m88 sport betting app potential criminal significance of m88 sport betting appCounteracting Rulesshould not be ignored. For enterprises, daily business decisions and compliance with national laws would no longer be a simple choice between right and wrong. How to effectively develop response strategies, seek a solid footing in an increasingly complex and volatile international environment, and figure out a relatively optimal solution in multiple regulations of legislation and om88 sport betting appr measures of various governments to avoid unnecessary legal risks and liabilities, especially harsh and criminal liabilities and penalties, are all essential challenges that need be carefully and cautiously faced by enterprises.