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."