The Contract Law provides for a series of highly restrictive rules relating to form contracts. Many foreign parties ignore these provisions and then are surprised when their contracts are not enforced by Chinese courts. This often happens even when the contracts provide that they are governed by foreign law, because the Chinese courts take the position that the Chinese form contract rules are a matter of public policy that cannot be waived. Any such waiver will not be enforced by Chinese courts.
The form contract rules are similar to consumer contract rules that have been adopted in Europe. However, there is a major difference that causes even Europeans to make mistakes in this area. The European rules protect only consumers. The Chinese rules are much broader and apply to all contracts, regardless of the status of the parties. Since Chinese companies have a strong tendency to use form contracts, these rules are very important within the Chinese system.
The basic form contract rules are as follows:
* The party making use of the form contract must use reasonable means to clearly identify those provisions of the contract that limit or eliminate its liability to the other party. Upon request, such provisions must be explained.
* The following provisions of a form contract are void:
o To eliminate one’s own liability.
o To increase the liability of the other party.
o To exclude the important rights of the other party.
o To exclude liability for physical injury to the other party.
o To exclude liability for negligence or intentional damage.
In the event of a dispute in interpretation, form clauses are interpreted against the drafter.
These provisions are contradictory and quite difficult to apply in practice.
If a form contract meets all of the above requirements, then it is a valid contract. This prevents lower courts from dismissing form contracts out of hand.
If the party that provides the form contract fails to explain an exculpatory provision and the other party requests that such a provision be invalidated, the court shall comply with such request. This then raises the following question: how is it possible to prove conclusively that an exculpatory provision has been explained? It appears to me that it will be virtually impossible to offer such proof, which suggests that all such provisions should be considered to be voidable under Chinese law. Perhaps the only way to do this would be to provide a written explanation and to require the other party to sign something indicating that it received and read that explanation.
Any provision of a form contract that fails to comply with the provisions of the Contract Law governing form contracts should be declared void by the court. This applies only to the offending provision, not the entire contract. That is, the obligations remain in place, only the exclusions are voided. Where a party has priced its contract obligations assuming that the form exculpatory provisions will be enforced, the result can be an unexpected and disadvantageous shift in the bargain.
Tags:
Contract,
public,
contract law
Related Posts:
China has a long history of mediation and conciliation. [5] However, before the mid-1950s, there was no independent international commercial arbitration in China. As a result, when a dispute arose between a Chinese party and a foreign party, the parties typically referred the arbitration to a tribunal outside China, notwithstanding that Chinese parties were concerned about arbitrating in a foreign tribunal.[6] The former Government Administration Council of the Central People’s Government established the Foreign & Trade Arbitration Commission which is the former name of today’s Chinese International Economic & Trade Arbitration Commission (“CIETAC”).[7]
However, the organization developed very slowly. By the end of the next 20 years, the CIETAC only accepted about 100 arbitral cases.[8] The development of international commercial arbitration in China grew dramatically after China began to implement its open-door policy in the late 1970s.[9] By the middle of 1990s, CIETAC filings were averaging more than 700 cases per year. CIETAC has thus become the world’s busiest international arbitration tribunal.[10] The evaluation on CIETAC competency was overwhelmingly positive. The American Chamber of Commerce in Beijing conducted a survey among American companies and found that companies having experience with the organization had positive feedback on the competency of CIETAC. [11]
The primary law regulating arbitration today is the Chinese Arbitration Law (“CAL”). In addition, the Civil Procedure Law and other laws contain some provisions concerning arbitration or enforcement of arbitral agreements and awards.[12] The CAL was adopted and promulgated in 1994, as China began to implement a market economy.[13]
The CAL has the characteristics which are essential to modern international commercial arbitration law. [14] First, the CAL considers promoting party autonomy as one of its primary goals. Parties must agree to arbitrate of their own will before an arbitration institution can exert jurisdiction unless parties agree to arbitrate “of their own record”; Chinese courts cannot assert jurisdiction over the dispute. And an arbitration provider cannot accept a dispute if there is no valid agreement to arbitrate.[15] Second, the CAL provides that arbitration institutions shall be independent from the government. For example, Article 8 provides that arbitration shall be conducted independently according to the law and shall not be subject to interference from government entities. Article 14 further provides that “all arbitration committees are independent from the administrative organs.”
Enacted in 1991, the Civil Procedure Law is another law containing provisions related to arbitration.[16] It separates arbitral awards into domestic, foreign-related and foreign awards with each receiving a different standard of judicial review. For domestic awards, courts may conduct a substantive review. Foreign awards that are arising from arbitrations made by an international arbitration tribunal enjoy deferential treatment from the courts – courts only conduct a procedural review. The Civil Procedural Law categorizes awards resulting from arbitrations, involving foreign parties and arbitrated by a Chinese arbitration tribunal, as foreign-related awards. [17]
In December 2003, the Chinese Supreme People’s Court promulgated a draft judicial interpretation, clarifying that the more deferential standard of review should apply to all awards with foreign parties or elements, regardless of whether the awards were issued from a domestic or international arbitration institution. The more deferential standard of judicial review afforded to foreign awards and foreign-related awards is based on Article V(1) of the New York Convention.[18]
With regard to the enforcement of awards, the Supreme People’s Court took steps to avoid the local protectionism by setting up a reporting system to monitor the lower courts’ refusals to enforce foreign arbitral awards.[19]
In general, the Chinese commercial arbitration system is in conformity with the international standard. In addition, with deferential treatment from the courts, enforcement of foreign and foreign-related awards in China becomes predictable. With its development over the past decades, Chinese commercial arbitration deserves to be the first choice in resolving international commercial disputes in China.
[1] Fiona D’Souza, The Recognition and Enforcement of Commercial Arbitral Awards in the People’s Republic of China, 30 Fordham Int’l L.J. 1318, 1318 (April, 2007); see Joseph Kahn, Dispute Leaves U.S. Executive in the Chinese Legal Netherworld, N.Y. Times, Nov. 1, 2005 at A1 (reporting U.S. Business executive deprived of liberty in P.R.C. and coerced into signing documents transferring property).
[2] No Dispute About It, Econ. Intelligence Unit (Bus. China), Apr. 24, 2006.
[3] Id.
[4] Id.
[5] Xiuwen Zhao, Reforming Chinese Arbitration Law and Practices in the Global Economy, 31 U. Dayton L. Rev. 421, 421 (Spring, 2006).
[6] Id. at 423.
[7] Id.
[8] Id. at 424.
[9] Id.
[10] Id. at 425.
[11] Benjamin O. Kostrzewa, China International Economic Trade Arbitration Commission in 2006: New Rules, Same Results, 15 Pac. Rim L. & Pol’y J. 519, 531 (June 2006).
[12] Zhao, supra note 5, at 427-28.
[13] Id. at 428.
[14] Id.
[15] Id.; see also CAL Article 1.
[16] Jian Zhou, Judicial Intervention in International Arbitration: A Comparative Study of The Scope of the New York Convention in U.S. and Chinese Courts, 15 Pac. Rim L. & Pol’y J. 403, 410 (June 2006).
[17] According to a 1992 SPC interpretation implementing the 1991 Civil Procedure Law, a case is a foreign-related case” if (1) one or both parties are foreign nationals, stateless persons, or foreign companies or organizations; (2) the legal actions leading to formation, change, or termination of the legal relationship occurred in a foreign country; or (3) the subject matter of the dispute is located in a foreign country.
[18] Zhao, supra note 5, at 443.
[19] Zhou, supra note 16, at 415.
http://iblsjournal.typepad.com
Tags:
China,
foreign investors,
Trade
Related Posts:
MANCHESTER AIRPORT WINS SAFE PARKING AWARD
Manchester Airport (MA) has won a “Park Mark” Award from the Association of Chief Police Officers (ACPO) for improving the safety and facilities in its public car parking areas.
The improvements made have led to a 79 per cent reduction in vehicle crime across the airport site over the last three years.
The prestigious Park Mark Awards are only awarded to companies that have put in comprehensive measures to deter criminal activity within parking facilities.
Manchester Airport – which has space on site for 14,000 cars in its seven public car parks – has won the award following a programme of works designed to improve the safety of its facilities.
Over £250,000 has been invested in the works that include the installation of additional fencing, lighting and CCTV in hotspot areas.
John Spooner, managing director of Manchester Airport, said: “We want to provide safe and secure facilities for our customers and we’re delighted that the improvements we’ve made to our car parks have been officially recognised by this award. We will continue to work with the police to ensure that vehicle crime continues to drop across the airport site.”
Ken Upham, Greater Manchester Police’s Crime Reduction Advisor,
Manchester Airport police station said: “This award represents over
three years of partnership work between GMP and Manchester Airport to tackle vehicle crime.
“The airport have willingly taken aboard our advice and have invested
substantial funds into reducing crime on the airport car parks. As the
figures show, their efforts have paid off with a significant drop in
vehicle crime.”
Assistant Chief Constable Steve Thomas, Greater Manchester Police said:
“This award goes to show that selecting and implementing the correct
security measures can help in the reduction of crime.
“We have worked closely with our associates at Manchester Airport and our
knowledge, together with their investment, has ensured a significant
decrease in crime and created a safer place for the public to park their
cars when visiting the complex.”
ACC Steve Thomas presented the award to Manchester Airport at a ceremony on Friday 8 July.
Source: http://www.manchesterairport.co.uk
Tags:
vehicle crime,
substantial funds,
US
Related Posts:
The City of Madison needs to update its parking policies and begin to think about convience that students need under their own tight scheduals.
Those who bring their car with them to Madison have to brave a concrete jungle of parking meters and yellow paint. They must face the joys and perils of parking in the city.
Some are too strapped for cash to pay the ridiculous prices landlords charge
for a parking space, while others fall victim to an architect who did not see fit to provide enough parking space for all tenants. For these individuals, the city sells mercifully cheap residential parking passes, just $21 annually. The kicker? They sell more permits than there are spaces.
The City of Madison Parking Utility ironically—and comically—declares on its website that “more permits are sold than there are available on-street parking spaces.” It also suggests that residents seek alternatives to on-street parking. Thanks for the warning.
The permit allows individuals to park their car on the street for 48 hours at a time. The Parking Utility claims the purpose of the Residential Parking Permit Program is to prevent commuter parking on residential streets. Another aim seems to be swelling the Utility’s wallet by charging students for exceeding the 48-hour limit.
But once a driver scores that treasured parking space, it’s difficult to give it up simply because the Parking Utility believes drivers must go for a spin every other day.
I
concede that if the 48-hour limit is a constant issue for an individual, they probably don’t need a car in the first place. However, between spending all day in classes, studying at Helen C. White, doing laundry and occasionally washing a dish or two, sometimes there just isn’t time to drive anywhere.
Once the clock is about to strike the 48th hour, there is a decision to make: chance being the next victim of the parking utility’s ticket-wielding minions, or drive
in circles around the block waiting for a space to free up. These
parking-space hunts are usually accompanied by exclamations of, “If
that bastard would have just pulled forward a couple feet,” “Damn fire
hydrant false alarms,” and bold contemplations of difficult parallel
parking feats.
Then there’s the chalk mark that the city tags on your car. When it appears on your tire, the parking minions will be back to give you your ticket if you haven’t moved. But there are ways of avoiding the fine. If there is some space in front or behind your vehicle, simply move it a foot to conceal the mark and you’ve bought yourself another 48 hours. However, this tactic is only acceptable if you are in a pinch for time, as the toolish nature of the
act renders it unacceptable for frequent use.
Winter is perhaps the most fun time to have a car in Madison. Complying with the 48-hour limit is particularly daunting when you must first unbury your vehicle from a foot of snow. The joys of the “Snow Emergency” also make winter a fun time for all.
Some extra breathing room for the parking time limit would make the lives of students at the mercy of on-street parking less stressful. Increasing the limit to 72 hours should do the trick. If you are not using your car frequently enough that even a 72-hour limit causes you strife, you definitely don’t need it.
The parking utility has made small steps to resolve the parking shortage. Ten-hour meters have been installed in some areas as a less expensive alternative—50 cents per hour—to the shorter-term meters. Twenty-two of the meters are conveniently located on Langdon Street between Henry Street and Wisconsin Avenue. The city should consider the welcomed addition of more 10-hour meters in the campus area.
In the meantime, if a car isn’t necessary, leave it home for your own sanity. Then the poor saps who need to drive to an internship or job can come home and not have to scour the congested streets for that elusive free gap of curb, an oasis in the desert.
Michelle Turcotte is a senior majoring in journalism. Please send responses to opinion@dailycardinal.com
Source: http://www.dailycardinal.com
Tags:
scheduals,
wallet,
US
Related Posts:
SHOCKED families could find their relatives’ graves buried under a car park if a new development in Barton is given the green light.
The 200-year-old Barton Methodist Church and its two cemetery plots are the subject of a planning application which could see the derelict church demolished in favour of a block of 32 flats, and a car park laid over some of the 1,100 graves – believed to contain more than 6,500 bodies.
Ninety-one-year-old Vera Hutchinson buried her six-year-old son at Barton Methodist in 1941 after he drowned in Manchester Ship Canal, but because his death was more than 50 years ago she, like many others, will not be able to have her son’s grave moved elsewhere.
She told The Advertiser: “It’s completely wrong. We’re all very upset about it, we want to know what is going to happen.”
Vera’s nephew, Philip Hutchinson, whose two grandparents are also buried at Barton Methodist, said he ‘could not believe’ what developers Abbotsound Ltd were suggesting, and wondered how many families would never even know about it.
He said: “My gran was the last person to be buried in there in the 1960s and I own one other grave that we are trying to track down. I have sent my letter of objection to the town hall. I know the building had been vandalised and I’m quite happy with the plans to knock down the church – but I’m certainly not happy that they want to change the cemetery into a car park.”
Philip has now vowed to continue fighting the development, and track down the missing graves.
Meanwhile The Advertiser can reveal that the man behind the proposals is Les Hampson, who is no stranger to controversy and planning rows. Earlier this year, as we reported, his Lancaster House development in Hope sparked a furious reaction from local residents, who claimed it was being used as a hostel for ex-offenders.
Mr Hampson, who has always denied claims that Lancaster House was a hostel, said he was keen to work with anyone who has objections to the cemetery plans. He added that he wants to build a memorial garden to allow people access.
“I understand the plans are contentious but it is really common practice throughout the country. We want to work with the people involved and make sure it is tasteful.”
Mr Hampson added he placed public notices in The Advertiser, which were not statutory, because he wanted to be open about his plans.
Tags:
grave,
car park,
relatives
Related Posts:
