Friday, June 8, 2007

Freedom of Contract in China (IV): The Role of the People's Court

Don’t get me wrong. Freedom of contract is one of the fundamental principles of the Chinese contract law promulgated in 1999. However, as Professor Hsu states in his article Contract Law of the People’s Republic of China, the freedom of contract “is not absolute.” The freedom is restricted to contracting within the metes and bounds of the law, societal values, and basic public policy. Provided that such freedom veers off course in the eyes of the Contract Law, the people’s courts (tribunals, alternatively) have jurisdiction and authority to invalidate the contract or illegal clauses therein.

One conspicuous question here is what standard a people’s court or tribunal applies in determining whether a contract or its clauses are per se void for violating other laws or regulations. This question, very naturally, turns on the issue of conflict of laws. Where the law of a locale comports with the law of the land on a particular issue, no concerns arises in terms of the conflict of laws; where the law of a locale conflicts with the law of the land, the concern for inconsistent judicial decisions is well-founded.

In response to the above question, the Supreme People’s Court opined and ordered that when invalidating a contract or clause, the courts must consider the laws and/or administrative regulations adopted by the National People’s Congress, its Standing Committee, State Council, and various underlying ministries, commissions of the State Council. No local regulations or rules should be applied by the courts while invalidating contracts. This Supreme Court rule symbolizes a bold step toward unifying judicial standards across the country. But I’d caution contracting parties about relying exclusively on this Supreme Court opinion.

Assuming that Chinese law is the law of choice in a contract, here is what I suggest in this regard:

1. Get local counsel and know the local law governing all aspect of the contractual relationship;

2. Make sure that your contract and its clauses comply with the laws and regulations of the Republic;

3. Harmonize the contract and the relevant form contracts drafted by local Industry and Commerce Administration.

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