2013-01-13 23:32:58
Probably most people worry about that Chinese courts are biased against foreigners. However, according to research by the World Bank, China is ranked as the top 19th country in terms of enforcing contracts. When suffered by a dishonest Chinese supplier, the importer could file a lawsuit either at the court located in the Chinese supplier¡¯s place of domicile or where the contract is performed. For sales contracts, the place of performance is deemed to be either (i) the place specified in the contract as the place of delivery of goods, or (ii) if the place of delivery is not specified, the place where the goods were actually delivered. To minimize the risk that the court may be influenced by the local supplier, importers should try their best to avoid filing claims before the court located in the supplier¡¯s place of domicile.
Undoubtedly, it is necessary to retain a qualified Chinese lawyer to represent in court. Litigation in China, just like in any other country, is not a mechanical process; its outcome is very much determined by the retained lawyer¡¯s skills. In choosing lawyers, importers should focus on how much courtroom experience he has in general. A fair hearing is only possible when claimant have a lawyer who is competent, well-connected and well-established in the legal community. In China, lower courts pay a great deal of attention to higher courts because being overruled by a higher court will have a direct and almost immediate negative impact on the lower judge¡¯s career.
At first instance, Major foreign-related cases should be heard by the intermediate courts, rather than the basic level courts (county courts). Intermediate courts are generally more experienced and sophisticated in handling disputes. In China, litigants have the opportunity to appeal a judgment only once. In other words, the second instance judgment becomes the final judgment. If you disagree with the first instance judgment, you must appeal in time to the next level courts. A foreign party without domicile in China has 30 days to file an appeal.
In general, a party alleging breach bears the burden of proving its case. Importer must therefore provide evidence to show the supplier¡¯s breach as well as the actual losses you have sustained. Judges have a strong preference for documentary evidence over witness testimony, so you should be able to present documentary evidence to prove relevant facts.