Home -> Law Blog Directory -> International Law Blogs -> China Hearsay
(866) 635-2689 for Personal Injury or (866) 635-9402 for Criminal Defense
Find a Local Lawyer
Divorce (866) 635-6190
Personal Injury (866) 635-2689
Criminal Defense (866) 635-9402
International Law
: China HearsayAll?s Fair in China Litigation
By Stan
Dan makes a good point about the concept of “fairness” in dispute resolution:
Chinese courts tend to give large account to what is “fair,” not just to what the law says. This means that if a Chinese company is late on a contract because its own supplier was late in delivering it a necessary component part, the Chinese court may very well excuse the delay. This means that if the price of a necessary component part jumps precipitously, a Chinese court might very well excuse the Chinese supplier for substituting in a cheaper part. Many times, Westerners ascribe Chinese court rulings to corruption, when they very well might have been due to equity.
Fairness is a fundamental concept in Chinese law (e.g. Civil Law). This often drives foreign disputants nuts, who perceive judges as pulling opinions out of their asses without any grounding in a legal principle with which the foreigner is familiar. It is often chalked up to corruption, but there are other possibilities.
I was involved in an arbitration recently, and the actions of one of the panel members was a bit unorthodox. This is an ongoing matter, so I’ll just say that in this case, there was no corruption going on, it wasn’t a matter of “fairness,” it was — get this — the arbitrator was trying to move the case off his docket as soon as possible so he could take a scheduled trip overseas. Surprised the hell out of my client when they found out about it.
Life is weird and much more complicated than we realize.
One more point on this topic. Judges have a lot of discretion in China, which makes it difficult to guess how they are going to rule. There is a good way to minimize this discretionary power — make your contracts as detailed as possible.
In Dan’s example above of the parts supplier, perhaps some sort of liquidated damages clause might be appropriate. It could always be overturned by a judge that considered it too large an amount, but it’s worth a try.
In many other areas of commercial disputes, detailed agreements may solve the problem entirely. In my experience, although judges will very often bring “fairness” into a case in a gray area, they are much more likely to follow a specific contract provision.
Tags: China Law
© Stan for China Hearsay, 2009. |
Permalink |
No comment |
Add to
del.icio.us
Full post as published by China Hearsay on June 04, 2009 (boomark / email).
Fair Housing Act
Prevent discrimination by landlords
Mesothelioma Law Suit
Asbestos Exposure
China Green Agriculture, Inc. 401(k) / ERISA Stock Fraud
China Green Agriculture, Inc. 401(k) / ERISA Stock Fraud
UPS Faces Fair Labor Wages Class Action
UPS Faces Fair Labor Wages Class Action
Infant Formula From China
FDA Warns it May be Contaminated Melamine
$189 Million Settlement Reached in Slab Litigation
$189 Million Settlement Reached in Slab Litigation
Breakthrough Settlement Reached In Chinese Drywall Litigation
Chinese Drywall Litigation Breakthrough Settlement Reached
Northwestern Mutual
Faces $200 Million Fair Labor Class Action

China US Relations. Fair And Balanced.
Nash on the Origins of Fair Lending LItigation
China IP: Neither Hong Kong Nor Macau Need Apply.
China: Married couples, mistresses--and love's odd equitable remedies.
China: Married couples, mistresses--and love's equitable remedies.








