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China Product Sourcing Risk
Every December, we get an even greater rash of phone calls from companies that have received bad product or no product at all and the past two weeks have been no exception. And as is almost always the case, I blame the “victim.”
I blame the victim because without exception, in every single case where we have gotten such a call, the non-Chinese buyer has done a lot of things wrong in its sourcing of product from China and now it is, to put it somewhat harshly, paying the price for that.
But what so often really drives me nuts about these people is that after I tell them exactly why my law firm has zero interest in their case, some of them say something like “I knew you can’t trust Chinese companies” or “I knew they had no law there” and then they usually say something like “I’m never going to do business there again. The risks are just too high.”
Wrong. Wrong. Wrong.
What I always want to tell them, but pretty much never do, is the following:
What are you talking about? You did NOTHING to try to protect yourself. You didn’t research the Chinese company before sending them money. You didn’t use anyone to monitor quality control. You didn’t use anyone to write you a contract that would actually work in a Chinese Court. So really, what did you expect? I hate to tell you this, but we have hundreds of clients who buy from China all the time and they almost never experience anything close to what you are going through.
It reminds me of a relative I have (not on my side of the family, I might add), who during the tech boom would brag about how he had gotten so good at the market he would be earning 20% a year forever. Yes, he actually said that. But what is even more interesting is that after the market crashed and he lost a ton of money, he then started preaching how the market was rigged and he would never buy stocks again, not once even referencing his prior claims. As my older brother the stockbroker is always saying, “genius is a rising market.” But the corrollary to that for this relative is that a falling market is a rigged market to be avoided by everyone.
Wrong. Wrong. Wrong.
Just like there are ways to do well in the stock market (over time), there are ways to do well in the China product sourcing market. The way to increase your odds of getting the product for which you paid is to do the following:
1. Make your products purchases from China under a well-drafted contract that is enforceable in China. Purchases under informal purchase orders simply do not work for China. For more on China OEM Agreements, check out the following:
- China OEM Agreements. Ten Things To Consider.
- China Supplier Agreements. With Apologies To Kansas.
- Drafting A China Manufacturing Agreement. Watching The Sausage Get Made.
- China OEM Manufacturing Agreements. What Should Go In Your Term Sheet?
2. The contract with the Chinese manufacturer must provide for a mechanism where the foreign buyer can exercise constant control over the quality of the Chinese product. Liability for defect must be made clear and it must fall hard on the Chinese side. If possible, no defective product should ever be permitted to even leave the Chinese factory. If defective product is discovered outside of China, the Chinese side must be absolutely liable for dealing with the problem. The standard procedure (in China, anyway) for dealing with defects through a discount on future purchases must not be used.
3. The foreign buyer must actually follow through and constantly monitor the quality of the product. The best contract with the best procedure is no good if the foreign side does not follow through by rigorously implementing the procedures outlined in it. As I mentioned above, this is an expensive and tiresome process. Parties that do not follow through are almost guaranteed to experience problems in China. These problems are an irritant to the Chinese side but can be fatal to the foreign side. For this reason, the only side that has any incentive to follow through is the foreign side.
Is China product quality getting better? Yes and no. Chinese manufacturers are not doing a better job on their own at maintaining quality. In fact, if left on their own, much evidence suggests they are doing worse. But yes, the legal system and quality control systems have progressed to the point where aware and active foreign companies can force Chinese manufacturers to operate in a reasonably acceptable manner. “Forcing” means doing things right.
What do you think?
We will be discussing the practical aspects of Chinese law and how it impacts business there. We will be telling you what works and what does not and what you as a businessperson can do to use the law to your advantage. Our aim is to assist businesses already in China or planning to go into China, not to break new ground in legal theory or policy.
2012-12-19 23:42:06
Source: http://www.chinalawblog.com/2012/12/china-product-sourcing-risk.html
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