Mr. Buxbaum with Prof. Ada Yonath

David Buxbaum got this significant Chinese painting from Mr. Zheng Weixue.

Jewish Times Asia
April 2010, Volume 5, Issue1, Nisan/Iyar 5770

A Brief Sojourn in Asia and the Flourishing of Jewish Life

  As a youngster I aspired to be a lawyer specializing in international law, but after having served in the US army in Germany, after World WarⅡ, I was not inclined to return to Europe.
  When I started to attend law school, I made a decision to specialize in an area of the world which I thought would become important, and in whose culture I had an interest, namely, China. I was in both law school and Chinese studies at the University of Michigan where I obtained my JD, and eventually went on for an MA and PhD, with a specialty in Chinese law. Naturally, China was the place to go.

Singapore my first port of call
  My first posting in Asia, in 1963, was to the Law Faculty at the University of Singapore, from Harvard, which I attended as a fellow for a year. Tommy Koh, who was later to become a Minister in the Singapore’s government, went to Harvard as part of the same exchange programme. At the University, in addition to English law subjects, I also taught Chinese law, which at the time was part of the Family Law of Singapore.
  The Jewish community in Singapore was the most dynamic community in Asia, with two synagogues, a shochet, mikva, and a wonderful Jewish school that my four children attended. The titular head of the community, Mrs Missam, was a wonderful person who had an open house for all members of the community on Shabbat and holidays, and was most generous with her family’s money in supporting the financial needs of the community.

Taiwan surprise
  I was subsequently posted to Taiwan twice, once as the Senior Fullbright scholar, with residence at Academia Sinica, and on another occasion, to complete my PhD research on law and social change, where I resided in a village in Shilin Township, called Ganyuan. I also did legal work for certain bank in Taiwan.
  The community in Taiwan in the 1960s was small and not well organized. On Friday nights and Saturdays, we prayed in a building of the US military, which on Sunday, became a church for Christian believers. There was a Sunday get-together of the Community, with bagels and lox, and some of the children were taught Jewish subjects, but there was not much activity beyond that.

Hong Kong
  In 1966 and 1967, at the beginning of the Cultural Revolution, I was living in Hong Kong with my family, in part to complete my PhD dissertation research work and part to take on legal work.
  Hong Kong was in chaos, and the extreme leftists were fire bombing cars, periodically killing people (I witnessed their murder of a Hong Kong policeman), and in general behaving atrociously.
  Hong Kong’s Jewish community in the 1970s was a community, without much Jewishness. Having come from Singapore, we were surprised at the lack of a school, a shochet, a kosher mikva, a rabbi, or a regular minyan service. At that time the Jewish club was poorly maintained.
  Members of the community including Karel Weiss Yaakov Aion, Zakki Dwek, Simcha Benshay and Eziekel Abraham felt a need to enhance the cultural and religious content of Jewish life. We organized study classes and a minyan on Shabbat and maintained a kosher table at the Jewish club.
  We eventually organized a Rabbi’s Search Committee, consisting of Mark Ejlenberg, Jack Crystal and myself. After several months the community selected a young yeshiva boy who was Rabbi Mordechai Avtzon who is now the regional director of Chabad in Asia. His appointment ensured the kitchen was koshered, kosher meat was now available at a reasonable price and a daily minyan had been established.

Guangzhou where I spent most of my life
  In April 1972 I went to Guangzhou to establish the region’s office of the law firm that I was then working for.
  China, in the last years of the Cultural Revolution, was still largely a prison, and virtually everyone was in jail. On my first day in China, I was detained in the Dongfang Hotel, because my “guide” was sure I was a spy, since I spoke Chinese.
  Guangzhou at the time was the centre for international trade activity in China. The word lawyer, at the time, was one of opprobrium, since Mao Zedong had essentially done away all public legislation, closed the courts, arbitration tribunals and law departments, and sent the law specialists to the countryside. Though in fact I was acting as a lawyer, I did not use that term while I was in China. Since I spoke Chinese with some fluency and could read and write, the latter not very well. I was exceedingly busy, mostly serving the American corporations.
  At the time there were no organized Jewish communities in China, but during the Canton Fairs, twice each year, each for 6 weeks at a time (and people came to Guangzhou before and after the fair), foreign persons, including Jewish, were present in large numbers for more than 5 months of the year. Some Jewish visitors organized prayer gatherings and many brought us kosher food.
  Nevertheless, for about the first seven years we were in Guangzhou, we never ate meat. We subsisted on fruits, fish, and vegetables, the former of which were not readily available for many years. Watermelon was the only staple fruit.
  Foreigners in China required a visa for each city that was open to travel, and not many cities were so open. In some locations, such as Hainan, travel from one county to the next required a visa.
  Travel by plane was not commodious, and most airplanes were Russian, neither comfortable nor modern. Travel to Hong Kong from Guangzhou was by train.
  Until 1978, when Deng Xiaoping rose to power, almost all business in China was concluded by trade agreements between state-owned enterprises and foreign companies. The largest sales were whole plant sales. Not until 1978, with passage of the Joint Venture Law, was foreign investment permitted.

1980s onwards
  When Rabbi Avtzon left Ohel Leah Synagogue in the 1980s to establish Chabad in the Hilton Hotel, two other active Jewish centres in Hong Kong began to prosper.
  Later, Shuva Yisrael was establish Chabad by the Darvish family, where my son Rabbi Benjamin Buxbaum worked for some years, and still later, Rabbi Moeded established a Sephardic community in Kowloon, which made Hong Kong the most active Jewish community in Asia. Chabad sent a schaliach to Shanghai, initially based in the Portman Hotel. Subsequently, Rabbi Shalom Greenberg became the established Rabbi in Shanghai.
  Initially, the Public Security Bureau was concerned and interested in the activities of the Jewish community. We invited them to participate in our social and religious activities, and they were both studious and friendly, and came to understand Jewish religious life.
  They informed us that we could lawfully continue our activities, and once legislation was in place, we can register as a Jewish community. In fact, because of the problems of the Fa Lung Gong, that legislation was not enacted until a few years ago.
  At the same time, I began to negotiate with the government on use of the Ohel Rachel Synagogue on Shaanxi Bei Road. We were first granted permission to use the synagogue on social religious holidays, such as Rosh Hashanah and Yom Kippur, Chanukah, etc.
  During this coming Shanghai Expo 2010, the synagogue will be available for us on every Shabbat, and we are negotiating for its full time use in the future.
  In Beijing, Rabbi Shimon Freundlich established the largest Jewish school in China and the only kosher Jewish restaurant in China, called Dini’s.

Mongolia
  Recently, there has been increased activity to develop a Jewish centre in Ulaanbaatar, Mongolia, where Jews have resided for many years and where I have been active for many years.
  Chabad has sent a young man to conduct Pesach services there, this year as they have in the past. There are plans to send a full-time Rabbi to Ulaanbaatar.
  We were most fortunate to come to Singapore in 1963, when Jewish life was in its madir in the region, and to see it flourish throughout Asia as it has until today. My family is most thankful for having the opportunity to play a small role in this development.

SomeWay to Go

Mutual enforcement of Chinese and Hong Kong judgments is undesirable at present, argues David Buxbaum

The recent news about suits by Microsoft and other corporation a, ,against various Hong Kong companies for intellectual property (IP) piracy and infringement is certainly not a surprise. Intellectual property piracy has been rampant in Hong Kong for some time despite periodic government raids against some offending outlets.

In addition, there have been important Hong Kong corporations, and Taiwan companies using Hong Kong as a base, \which have been at the forefront of establishing factories in China for the production of pirated software, video disks, CD Roms and books, as well as for use of infringing of trade dress, trademarks and design patents. Some of the most notorious cases in China, such as the Kongalu piracy of Kellogg’s trade dress have been substantially funded and assisted by Hong Kong interests.

In China, administrative action has been at the forefront of enforcement programmes. The General Administrator for Commerce and Industry (GAIC), Patent Bureau, Anti-fake organization, Copyright Bureau, Public Security, IP Task Forces and Customs
Bureau have been most significant in IP enforcement. The involvement of these authorities has not, however, been to the exclusion of the judiciary, which has come down hard on IP infringement in leading cases such as Microsoft et al v juren (Beijing Intermediate Court (1996)); Kelloggs v Kongalu et al (Meizhou Intermediate Court (1995)) and the Disney case in Beijing.

In Hong Kong, on the other hand, while the customs, police and prosecutors have all played a significant role in IP enforcement, the role of the judiciary, has become increasingly Important.

Although China is not yet a member of the World Trade Organization (WTO), this is not because of its failure to promulgate a full set of laws on IP. China has adhered to virtually all international treaties and conventions for the protection of IP, and has also promulgated legislation as required by said treaties. Furthermore, the Chinese Government has entered into two agreements on IP protection with the Us Government, which have further
accelerated the development of truly, comprehensive Chinese legislation in the IP field.

Hong Kong’s law is in virtually full compliance with its obligations as a WTO member and essential compliance is not in doubt. The basis of compliance of course is quite different as between Hong Kong and China because of the fact that Hong Kono’s IP law is found predominantly in case law while China’s is statutorily based. For example, while China has passed comprehensive statues to deal with the problem of unfair competition, the common law in Hong Kong addresses the same issue via the traditional rules against passing off and the like. While there is great similarity in the actual nature of the substantive law of the two jurisdictions, the means of achieving enforcement  in Hong Kong and China are quite different.

There are substantial differences between the judicial institutions of the two jurisdictions. Over an extended period of time Hong Kong has produced – or welcomed from abroad solicitors, barristers, judges and other judicial personnel well-trained to modern western standards(although clearly continued improvement is required).

In China, judicial institutions were virtually non-existent from 1958 to 1976. When they were re-established in the late 1970s, there were insufficient trained personnel to staff them. The development of legal institutions since 1978 has, however, been nothing short of amazing. The training of lawyers has proceeded both  with alacrity and outstanding results. A national qualifying examination has been introduced for legal practitioners. Although unfortunately the Judges Law, requiring similar standards for judges, was not passed until 1996. Of necessity China has many sitting judges who are not properly trained. In addition, Chinese judges receive very 1ow salaries- often 1ower than those of junior lawyers.

Finally, and perhaps most importantly, while the judiciary in Hong Kong is independent, judges in China receive their salaries, and as importantly, their housing, from the very gov erment which is likely to own local contpanies appearing before their courts.

After 1 Iu1y 1997 both the Chinese and Hong Kong legal systems will operate within one national entity. The need for both jurisdictions’ customs officers, prosecutors, police and administrative agencies to work together to protect IP is obvious. The mutual enforcement of judicial decision from one jurisdiction in the other jurisdiction would seem logical. Yet with the differences in the quality of the judiciaries, it is not something likely to be desirable to Hong Kong companies.

 Until legal institutions in China reach a level comparable of those of Hong Kong, it may be best not to change the existing arrangement whereby a party can sue in Hong Kong on a judgment for damages obtained in China, as on a debt, and obtain permission from the court. pursuant to the Code of Civil Procedure in China, to sue on a comparable Hong Kong judgment. In the long run, however, mutual enforcement of IP and other judgments is clearly desirable.