| Story Views | |
| Now: | |
| Last Hour: | |
| Last 24 Hours: | |
| Total: | |
Quick Question Friday, China Law Answers, Part XXI
Because of this blog, our China lawyers get a fairly steady stream of China law questions from readers, mostly via emails but occasionally via blog comments or phone calls as well. If we were to conduct research on all the questions we get asked and then comprehensively answer them, we would become overwhelmed. So what we usually do is provide a super fast general answer and, when it is easy to do so, a link or two to a blog post that provides some additional guidance. We figure we might as well post some of these on here as well. On Fridays, like today.
Probably the most common question we get is some variant of the following:
I ordered ____ number of widgets from _____ company in China and I paid them _____ dollars. They never sent me anything [or they sent me a fake or they sent me bad quality] and now they are not answering my emails? Can you help?
Pretty much 100 times out of 100, our answer (sometimes after we have gathered up more information) is something like the following:
I’m sorry, but we are not interested in taking on your case on a contingency fee basis and I cannot in good conscience ask you to pay us to handle it.
Our lack of interest in your case stems from the following:
1. Your contract [this probably wrongly assumes that the English language PO sent to us qualifies as a contract under Chinese law] is in English. Many courts in China will not hear a case with an English language contract. This is even more likely to be the case in a place like _____. For more on the importance of your contract being in Chinese, check out China OEM Agreements. Why Ours Are in Chinese.
2. You never paid the Chinese company to whom you issued the PO and from whom you received the bad product. You instead paid some other company based in Hong Kong. This is a classic China ploy. If you sue the Chinese company it will say that you never paid them because you didn’t. Not sure if it will win on this, but it is yet another hoop you will have to jump through.
3. Your PO says that you will inspect the product before it ships. The Chinese manufacturer will contend that you either did inspect and were fine with the shipment or that you chose not to inspect and thereby relinquished your right to complain about product quality. Either way, it should make for a pretty good defense. If you are not going to inspect product before it gets sent to you, you should not have this sort of provision.
4. You say that the product you received is of bad quality but your PO nowhere mentions the quality you would be requiring. When it comes to China, if you want your product to be of a particular quality, you need to set out in great detail every single specification that will get it to that quality. China has incredibly low quality levels that are just fine for Chinese commerce and for Chinese courts. From what you have provided me, there is nothing to indicate that your Chinese manufacturer failed to give you exactly what you ordered. You say that what you received is of bad quality and I am sure that is true, but that is under US standards. Under Chinese standards you asked for 5,000 widgets and that is exactly what you got and that is probably all that is going to matter to a Chinese court. For more on why this matters and for how you should handle this the next time you have product manufactured in China, check out How To Get Good Product From China.
You might want to try to interest a Chinese lawyer in pursuing your case in China. Suing the Chinese company in the United States will probably be a waste of your time and money unless this Chinese manufacturer has assets in the United States, and very few do. I very briefly researched the Chinese company to whom you issued the purchase order and it is not even a manufacturer; it appears to be a broker of some sort and Chinese brokers usually do not have much in the way of assets in China, much less in the United States. China courts do not enforce U.S. judgments so even if you win over here, it will be of no value in collecting money from your Chinese manufacturer in China.
If you are going to continue buying product from China, you should have a contract that will work. I suggest that you read the links within this email [now this post] to help prevent this same sort of thing from happening to you again. Again, I am sorry that we cannot be of more help on this.
Maybe 10 out of 100 times, we get a response asking us whether they should pursue their case via the U.S. Embassy or the U.S. Consulate or through their own embassy or consulate (for some reason we seem to get a disproportionate number of these from Australians) may be. To which we always respond as follows:
You can try to pursue this with your embassy or consulate but they generally do not seem interested in these sorts of commercial law matters and we have never heard of a single person getting their money back using this route. This is not to say it isn’t possible, but we are not aware of it ever working. If you do go this route and it does work, please let us know.
So now a question for you, our loyal readers. Have you ever heard of anyone getting their money back on a China product purchase by going through their embassy or consulate?
The post Quick Question Friday, China Law Answers, Part XXI appeared first on China Law Blog.
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.
Source: http://www.chinalawblog.com/2016/04/quick-question-friday-china-law-answers-part-xxi.html
