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Reflections of a U.S. Lawyer in China: An Asian American Journey Back to Asia

ABA Section of International Law Diversity Newsletter
Summer 2011

Lim, Esther H.


Authored by Esther H. Lim

To capture my experience of living and working in China as a U.S. lawyer, the story must start at the beginning. Not so much for chronological completion, but rather, to tell the story of an Asian immigrant who returned to Asia after many decades in America. The China I discovered in June 2008, when I moved to Shanghai to open my law firm's first mainland China office, is not the same China today, and certainly will not be the same China tomorrow. During this time of great change, I attempt to capture a slice in time in China as seen through an Asian American back in Asia, witnessing one of the most remarkable periods in history for the nation.

The Full Circle – From Asia Back to Asia

My life began in a rural seaside village in Busan, Korea, where I grew up with two sisters and a brother. On the wings of my parents' dreams, my family and I began a new life in America with little money in our pockets. When I started junior high school four days after immigrating to the United States, I spoke no English and thus began a painstaking process of sink-or-swim immersion program. For the next two decades, we lived in the United States of America to become Americans—to learn English, to attend American schools, and to eat American food. We planted roots around Washington, DC, the Nation's capital. I became a lawyer and joined a large firm in Washington, DC. We were living the classic immigrant dream as Asian Americans.

On that first flight to America nearly thirty years ago, I never dreamed that I would be on a plane headed back to Asia—this time to Shanghai, China—to start yet a new chapter of my life. After practicing law in Washington, DC for over ten years, I was approached by the Chairman of my law firm with the opportunity to open the firm's first mainland China office as the managing partner. That proposal set off a series of actions, which ultimately led to the China-bound flight. On this journey back to Asia, my husband John Yang, also an Asian American lawyer, sat beside me, providing emotional support and physical assistance to his then 5-months pregnant wife.

The decision to move to China was neither easy nor quick. It took deep soul searching about our careers and our identities. John and I had established law practices in DC. We were active in local and national legal communities. We had family and friends, and were planning to start our own family in Arlington, Virginia. If the news of moving to China surprised our friends, it shocked our families, particularly John's parents. After all, they left China in their youth and moved to Taiwan. They worked hard to immigrate to America, seeking the American dream for their two boys when John was only two years old. Three decades later, their younger son was headed right back to where they started. It had come full circle.

The year it took to reach a "yes" to the Chairman's proposal was filled with countless questions. Three years in China later, those questions are a distant memory in a country that moves at "China speed." Opening an office, practicing law, and living in China have been simply amazing. It has challenged, pushed, and fulfilled in ways beyond anything I imagined when practicing in the comforts of familiar rules, people, and language. In hindsight, the Chairman's proposal was an offer I could not refuse.

Opening an Office in China – Clear as Mud

I never prayed for patience. Perhaps, someone prayed for me. And God answered. Opening an office in China was . . . well, a test of patience to put it mildly. The application process for opening a foreign representative office is quite unfamiliar, often unclear, and reliably unpredictable. Some requirements are strict and exacting such as the use of a specific type of binding clip. Other procedures are opaque, leaving implementation and detail to interpretation and guesses. Through much grit and downright luck, the firm obtained from the Chinese Ministry of Justice a license to open a foreign representative office in less than two years.

After the long-awaited office license, the next phase of mental gymnastics and emotional flexibility came into full play in securing the work permit and work visa. One department of the Chinese government told us that, in order to obtain the work permit, one must first obtain the work visa. When we applied for the work visa, we were promptly told that we must first obtain . . . you guessed it . . . the work permit. We consulted with anyone and everyone. No one provided a clear answer. We ran in circles until we ultimately broke through the catch-22. In the meantime, we were on standby for an immediate international move to meet the annual, minimum work-day requirement in China, and made it by a hair.

Within a week of receiving clearance, we packed up our lives in suitcases and hopped on the China-bound flight. My memory of the initial days in China are dim, quite literally. In Shanghai, June is rainy season, aptly called the "yellow mold season." We arrived on June 14, and did not see sun for ten days. With soaring heat and oppressive humidity, I took refuge in any place with air-conditioning and stepped out only when absolutely necessary into a cocktail of sweltering heat, humidity, and urban smog.

The initial months were focused on building the new office. Like any new construction, we faced delay. We also dealt with countless regulations, inspections, meetings, negotiations, renegotiations, applications, approvals, and re-inspections of the new office. Designing the interior of our office with a highly experienced architectural firm, however, was the highlight. Like building a new home, we carefully inspected various shades of greys and browns, selected everything from ceiling to carpet, and ordered furniture. Six months after the scheduled date, we finally moved into the brand new office in February 2009.

If opening an office in China can cause nightmares, having opened an efficient, well-functioning office is a dream. In a highly-mobile market, building a skilled office with a loyal and dedicated team is absolutely critical. Indeed, one of the keys to overcoming the hurdles of the complex maze of regulations was our first hire, a local staff with the ability and agility to navigate through the Chinese system and personnel. She proudly holds the moniker "007."

Practicing Law in China – A Wild Ride

To me as a patent lawyer, China is the Wild Wild East. Even in other practice areas, expat lawyers thrive on changing laws and regulations, a growing economy, and an evolving market. Practicing law in the world's most dynamic market has been simply fascinating. The Huangpu riverfront where my law office stands tall on the 28th floor of a shiny new glass high rise, just minutes walk from the Pearl Tower, in Pudong, Shanghai, was rice fields just twenty years ago. Now, the new financial district, the center of finance in the world's fastest growing economy, boasts skyscrapers and world-class offices, hotels, and shops. Peering south along the river, one can see the iconic bright red pavilion, ablaze with the morning sun, at the site of the World Expo in Shanghai, which ran for six months in 2010.

The recent meteoric growth of Shanghai, and China overall, parallels the historic speed with which IP has fueled the fire of innovation in China. In just several decades, China has transformed itself from a predominantly agricultural society into a manufacturing powerhouse. China is also fostering strong R&D focused industries and developing indigenous technologies. Take clean energy, for example. Chinese spending in green technology doubled that of the U.S. in 2009. Out of the $162 billion invested globally last year, China's investment and financing in clean technology alone was $34.6 billion.

Brick by brick and mortar by mortar, China is constructing real property—buildings and roads. Any visitor from around the world cannot help but experience jaw-dropping surprise when witnessing the city commonly referred to as "New York City on Steroids." Make that Mega Steroids. Huangpu River cuts the massive city of 20 million people into Puxi (West of the River) and Pudong (East of the River). West of the River, the skyline of the old Shanghai boasts historic buildings of the famous Bund. East of the River, the skyline of new Shanghai showcases the iconic Pearl Tower and one of the tallest buildings of the world.

Patent by patent and trademark by trademark, China is building its intangible assets through intellectual property. In just one year from 2009 to 2010, China climbed from sixth place to fourth largest patent filer in the world under the Patent Cooperation Treaty. China filings increased a whopping 56.2% from 2009, making it first in growth rate. In 2010, new patent applications filed by Chinese domestic companies in SIPO, the Chinese patent office, exceeded the one million mark. China's growing constellation in the global IP sky is shining bright.

The record-breaking numbers of patent-application filings are nothing short of remarkable. After all, China's patent laws were enacted only about 25 years ago. Since the first patent laws became effective in 1985, there have been three amendments—the most recent amendment becoming effective on October 1, 2009. In 2010, China celebrated its twenty-fifth anniversary of joining the Paris Convention for the Protection of Industrial Property. I am here to witness, and more significantly, be a part of these historic changes and growth. It is breathtaking.

Living as an Asian American in China – Straddling the Cultural Fence

"Where are you from?" was a question I was often asked living in the United States, even long after I became a U.S. citizen. People generally assume I am from somewhere else because of my Asian appearance. Although America has been my home for several decades, that question still provoked the unsettling feeling of an outsider, that I do not really belong.

From that, I moved to a country of 1.3 billion people who essentially look like me. Ironically, here, I am asked "Where are you from?" People, especially negotiation-loving merchants, can smell a non-local a mile away. People often assume I am a Chinese American, from Hong Kong, or funnier yet, from Singapore. When I explain that "I am Korean American—from Korea, grew up in the United States," an assured nod of understanding and a comforting smile appears.

Roots are very important in China. People are interested in where you are from. By that, I mean what province and what town. Although I have never lived in China before, I now feel at home. I often wondered how I would fit in in China as neither Chinese nor American. As it turns out, many in Shanghai are neither. It is the world's international melting pot. The Shanghai that I discovered in the wet, gray, hot summer days in June of 2008, has become a place where my daughter is growing up trilingual (Chinese, Korean, and English), where I've discovered and made friends, and where I've learned that home is where your heart is.

It did not escape my realization that I really haven't gone far in 28 years. After all, Shanghai is an hour flight from Busan where my life began. But oh what a world of difference.

Originally printed in ABA Section of International Law Diversity Newsletter. Reprinted with permission. This article is for informational purposes, is not intended to constitute legal advice, and may be considered advertising under applicable state laws. This article is only the opinion of the authors and is not attributable to Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, or the firm's clients.