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May05

The Possibility of Recognising and Enforcing Chinese Judgment in United States

A

s a Chinese litigation lawyer, I write this article to talk about the possibility enforce Chinese judgment in the United States. I hope it will help Chinese lawyer to enlarge their vision over the United States judicial rules of recognize and enforcement of foreign judgment. The main message is that different states have different rules. The recognition and enforcement of a Chinese judgment in one state doesn't mean other state will do the same.

An Example of a Chinese Judgment Recognized in U.S.

On August 12, 2009, the United States District Court for the Central District of California issued a judgment enforcing a $6.5 million dollar Chinese judgment against an American corporate defendant under California’s version of the Uniform Foreign Money Judgments Recognition Act. The court’s full decision is available here.

This case is unique because it is generally believed that United States courts will not enforce Chinese judgments given the lack of a treaty between the two countries on the issue and given that Chinese courts generally do not enforce United States judgments in China, which limits the argument for reciprocity in the United States. Given this decision, California may become a favorable forum for enforcement of Chinese judgments in the United States.

China lawyer Blog

This just a news, Chinese lawyers have to know more United States rules to learn how to recognize and enforce a Chinese judgment in United States. The following is a case:

Hilton v Guyot
Diversity case from the pre-Erie era. Set out 5 requirements:
• Afforded an opportunity for full and fair proceedings.
• Court was a competent jurisdiction over persons and subject.
• Court conducted regular proceedings which afforded due notice of appearance to adversaries.
• Court afforded a system of jurisprudence that was impartial.
• Reciprocity of recognition and enforcement of judgment.

 
Apr30

China Intellectual Property Litigation Lawyer

This china law firm team of “tremendous, well prepared” intellectual property litigators helps clients manage, protect and defend their invaluable intellectual property rights and assets. Our China intellectual property litigation lawyer boast a strong record of success in the enforcement and defense of intellectual property rights stemming from patent, trademark, licensing, internet- and technology-based infringements, as well as trade secret and unfair competition claims, false advertising, publicity rights, counterfeiting and intellectual property transfers. Our litigators are skilled in setting the groundwork for successful dispute resolution with comprehensive discovery and case preparation, encouraging active client involvement throughout the trial and appellate process.

China IP Litigation Success

In-depth industry, scientific and technological knowledge contributes to our successful representation of clients from diverse industries, including: electrical engineering, computer technology (hardware and software), chemical engineering, civil engineering, mechanical engineering, aeronautical engineering, pharmaceuticals, medical devices, telecommunications, automotive, chemistry, biochemistry and biotechnology. Our patent cases have protected a full array of innovative products ranging from artificial retinas to video games.

 
Apr26

Recognition and Enforcement of Foreign Judgment in China

The law applying to the enforcement of foreign judgments in China is found in Chapter XXIX, containing Articles 262-270 of the Law of Civil Procedure of the People’s Republic of China. This Chapter is headed Judicial Assistance. These articles are as follows:

Article 267 Where a legally effective judgment or ruling made by a foreign court requires the people’s court in the PRC to acknowledge its validity and execute it, the applicant may directly request a competent intermediate people’s court to do so, or the foreign court may request the people’s court to do so, according to the international treaties which China has concluded or to which China is party or in accordance with the principle of mutual reciprocity.

Article 268 In the case of an application or request for recognition and enforcement of a legally effective judgment or written order of a foreign court, the people's court shall examine it in accordance with the international treaties concluded or acceded to by the People's Republic of China, or according to the principle of reciprocity. If the court arrives at the conclusion that it does not contradict the basic principles of the law of the People's Republic of China nor violate the State sovereignty, security and social and public interest of the country, recognise the validity of the judgment or written order, and, if required, issue a writ of execution to enforce it in accordance with the relevant provisions of this Law. If the application or request contradicts the basic principles of the law of the People's Republic of China or violates the State sovereignty, security and social and public interest of the country, the people's court shall not recognise and enforce it.

 
Apr26

Recognition and Enforcement of Foreign Arbitral Award in China

Recognition and Enforcement of Foreign Arbitral Award in China is very easy now, since China is a signatory of New York Convention. As a China arbitration lawyer, I have extensive exposure in representing foreign clients to apply to Chinese court for the Recognition and Enforcement of Foreign Arbitral Award. The following is an article explaining the legal background of recognition and enforcement of foreign arbitration decision in China.

On 2 December 1986 China elected to accede to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). The New York Convention became effective in China on 22 April 1987.

In acceding to the New York Convention, China adopted both the reciprocity reservation and the commercial reservation. The former provides that China will recognise and enforce only those arbitral awards made in other states that are signatories to the Convention. The commercial reservation limits the scope of recognition and enforcement only to arbitral awards that have been rendered in commercial cases.

It is noteworthy that article V(2)(b) of New York Convention provides that signatory states may refuse to recognise and enforce arbitral awards that are contrary to the state’s ‘public policy.’ For purposes of the this ‘public policy exception,’ the Chinese courts have generally accepted the terminology in article 258 of Civil Procedural Law of PRC, which provides that a court may refuse the enforcement of an arbitral award if it determines that the award is against the ‘social and public interest’ of China. As the definition and scope of this term are somewhat ambiguous, it is important to be aware of this restriction, and consult your lawyers for more detailed advice, when seeking the recognition and enforcement of an arbitral award in China.

 
Apr26

China Distributorship Agreement - Exclusive

Distributorship Agreement – Exclusive

This review list is provided to inform you about the document in question and assist you in its preparation of a exclusive distributorship agreement used in China. You should consult our China intellectual property lawyer to revise the China distribution agreement according to your specific situation.

1. The Manufacturer should be alert to the dangers in establishing any long-term exclusive relationship with a Distributor.  Most of these relationships accrue to the benefit of the Distributor, not the Manufacturer.  Notable cases include Coke, Pepsi, McDonald’s and others who had to buy back their rights at considerable expense from these parties.  The reverse is true for Distributors.  It is usually in their best interests to acquire as many of these agreements as possible in the hopes that one or two will turn into the gold mine that a Coke, Pepsi, or McDonald’s franchise has done.

2.  Manufacturer should consider long and hard whether they can get the same result, or nearly the same result, with a nonexclusive Agreement.  Nonexclusive Agreements give the Distributor less leverage over the Manufacturer in situations where the Distributor performs poorly.  These agreements are more common today, for that reason, than exclusive Agreements.  If the Manufacturer chooses to go ahead with an Exclusive agreement, they must extra cautious about investigating the financial and marketing power and commitment of the Distributor.  In simple terms, the back door or exit position is much weaker, and distributors that seek exclusive agreements, and don’t back off the request easily, are usually prepared to fight hard to keep their exclusive agreements, no matter how poorly they perform.

 
Apr26

China Exclusive Distributor Agreement

Our China contract drafting lawyer provides this China distribution agreement for your information. This is a typical distributor contract used in China. Please be aware this is a exclusive distributorship agreement.

EXCLUSIVE DISTRIBUTOR AGREEMENT

THIS AGREEMENT is made this ______ day of ______, 19, by and between ______ [Name of Company], with its principal place of business located at ______ [Address] (the "Company") and ______ [Name of Distributor], ______ [Address] ______ (the "Distributor").

NOW, THEREFORE, in consideration of the promises hereinafter made by the parties hereto, it is agreed as follows:

ARTICLE  I APPOINTMENT OF DISTRIBUTORSHIP

1.  Distribution Right. The Company hereby appoints and grants Distributor the exclusive and non-assignable right to sell the equipment of the Company ("Equipment") listed in the then current "Price List" (Exhibit "A" attached hereto) [omitted]. The distribution right shall be limited to customers who have places of business in, and will initially use the Company's products in the geographic area set forth in Exhibit "B" attached hereto.

2.  Prices. All prices stated are FOB the Company's offices in ______ [Address]. Prices do not include transportation costs which shall be borne by Distributor. Prices do not include federal, state or local taxes applicable to the products sold under this Agreement. An amount equal to the appropriate taxes will be added to the invoice by the Company where the Company has the legal obligation to collect such taxes. Distributor shall pay such amount to the Company unless Distributor provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.

3.  Terms. Terms are net cash upon delivery, except where satisfactory credit is established in which case terms are net thirty (30) days from date of delivery. The Company reserves the right to revoke any credit extended at the Company's sole discretion. Distributor agrees to pay such invoices when due regardless of other scheduled deliveries. Invoices not paid within thirty (30) days of the invoice date will have one and onehalf percent (1-1/2%) per month finance charge assessed against the unpaid balance from the date of invoice until the date of payment.

 
Apr26

China License Agreement

We are frequently asked about license agreement used in China. We hereby furnish a typical Chinese license agreement which is drafted by our China intellectual property lawyer. Although you are free to use it, you are highly recommended to retain our lawyer's service to tailor a more reliable license agreement for you.

This Agreement is dated:

LICENCE AGREEMENT

about Royalty Free Images

between:


Licensor: (hereinafter referred to as the “Licensor”) OF THE FIRST PART

and:         Outgram Publishing Ltd
China
Phone:    ++86 1829 771880
Fax:    ++86 1829 771883

(hereinafter referred to as the “Licensee”) OF THE SECOND PART

Whereas the Licensor is the owner or is legally entitled to represent the owner/s of the proprietary rights and interests in the royalty free images (which is hereinafter referred to as the “images”).

and whereas the Licensee is desirous of acquiring from the Licensor the right

•    to offer and sell to third parties for royalty free use the licensed images in digital files on CD-ROM or via Internet web sites (both individually or on subscription).
(all of the aforesaid rights collectively referred to as the “Licensed Rights”);

and whereas the parties are desirous to set forth the terms and conditions of the partially exclusive, indivisible and non-transferable Licensed Rights for the Territory as hereinafter defined; World

and whereas it is acknowledged however that the proprietary rights and ownership of the images does not form part of this Agreement.

In consideration of the mutual covenants herein contained the parties agree as follows:

 
Apr26

China Contract for Sales of Goods

This contract for sale of goods is a typical agreement between foreign buyers and Chinese suppliers. Our China contract lawyer advise that you should consult our China contract drafting lawyer before you use it. You should understand that a purchase and sale agreement should be drafted according to your specific circumstance.

Contract for Sales of Goods

Dated:

(1) Seller LIMITED

(2) Buyer LIMITED

1 Definitions and Interpretations

1.1    In these Conditions:-

"Business Day"    means any day other than a Saturday, Sunday or bank holiday in England;

"the Buyer"    means the person who accepts a quotation or offer of the Seller for the sale of Goods or whose order for the Goods is accepted by the Seller;

"these Conditions"    means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller;

"the Contract"    means the contract for the purchase and sale of the Goods under these Conditions;

"the Delivery Date"    means the date on which the Goods are to be delivered as stipulated in the Buyer's order and accepted by the Seller;

"the Goods"    means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions;

"Month"    means a calendar month;

"the Seller"    means [<Insert Seller's name>] a company [<Insert country where Buyer registered>] under number [<Insert Buyer's company number>] whose registered office is at [<Insert Buyer's registered office>];

"Writing"    means any communication effected by facsimile transmission or any comparable means.

1.2    Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.

1.3    The headings in these Conditions are for convenience only and shall not affect their interpretation.

2 Application of Conditions

The Seller shall sell and the Buyer shall purchase the Goods in accordance with any quotation or offer of the Seller which is accepted by the Buyer, or any order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.

3 Incoterms

In these Conditions "Incoterms" means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made.  Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.

4 Basis of Sale

4.1    The Seller's employees or agents are not authorised to make any representations or claims concerning the Goods unless confirmed by the Seller in writing.  In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for beach of, any such representations which are not so confirmed.

4.2    No variation to these Conditions shall be binding unless agreed in writing between the authorised representations of the Buyer and the Seller.

4.3    Sales literature, price lists and other documents issued by the Seller in relation to the Goods are subject to alteration without notice and do not constitute offers to sell the Goods which are capable of acceptance.  An order placed by the Buyer may not be withdrawn cancelled or altered prior to acceptance by the Seller.  No contract for the sale of Goods shall be binding on the Seller unless the Seller has issued a quotation which is expressed to be an offer to sell the Goods; or has accepted an order placed by the Buyer, by whichever is the earlier of:-

4.3.1    the Seller's written acceptance;

4.3.2    delivery of the Goods; or

4.3.3    the Seller's invoice.

4.4    Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

 
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This China Lawyer Blog is aiming at providing better knowledge and understanding of Chinese law for foreigners. Should you have any legal issue in China, do not hesitate to contact China Lawyer Blog for consultation. Preliminary consultation is free. Further legal service, however, will be charged in due rate and in due course.

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China Lawyer BLog AuthorPeter Zhu, an experienced China attorney licensed to practice law for more than ten years, the author of this China Lawyer blog, welcomes any enquiry or consultation related to Chinese law.