Certified Licensing Professional - Paul Stewart先生 2014-08-01
校译：识林-椒 2014-08-07
Be sure to get ORIGINALS of your signed Chinese contracts!!!
01-August-2014 • Written by Paul A. Stewart, Certified Licensing Professional
Doing deals in a timely fashion around the world has gotten SO much easier in recent years, mainly due to advances in modern technology. In the 'old' days before faxes, we communicated internationally using Telex and TWX messages (I doubt that many readers of this post remember or even know about Telex or TWX!), and because we did not have today's rapid courier services like DHL, FedEx or the like, we had to send original documents via the governmental postal services in our respective countries, and it sometimes took 2-4 weeks or longer for original documents to reach their addressees. Faxes were a great time saver, but they have now largely been replaced by scanned PDF documents that are sent via e-mail.
Yet, even though today’s convenience and speed of e-mail and scanned PDF documents has changed, it is possible that if the only thing you have of your signed Chinese contracts are electronic documents, those contracts may be not be enforceable in a Chinese court. Said another way, be sure to get ORIGINALS of all of your signed Chinese contracts!!! Although this policy may change in the future, my understanding is that a 10-December-2010 decision by the Beijing No. 1 Intermediate People's Court affirmed Article 49 of the 2001 Supreme People's Court rules on evidence that allow a party in a dispute the right to demand that the original documents be submitted or else not admitted as evidence. (Because people with nefarious intentions can use Photoshop or other editing software to modify electronic documents to appear different than what the original document looked like, I personally feel that this ruling is understandable and reasonable.) And, because courts in China do not use what is called “discovery” in the USA, the defendant in this 2010 case was under no obligation to produce evidence to help the plaintiff, even if the defendant had the original! In that case (and regardless of whether the plaintiff was in the right), the plaintiff was not able to produce original documents (the dispute involved trademarks), and because the trademark license agreement was not registered in China, the plaintiff lost their case.
I share all of this with you so that you are aware of the importance of getting signed originals – with the official Chinese corporate seal or 'chop' – for all of your Chinese contracts, not just a scanned signature page in a PDF file that is fairly common practice in the USA. And, in addition to getting signed originals with a chop on Chinese contracts, my own personal practice is to have the person who signs the contract for each party to also initial at the bottom of each page of the contract and to initial each exhibit page. Although I've never had any situations where someone removed a page and inserted a different page into an already-signed contract, having the initials at the bottom of each page of a contract document can give you and your organization better protection that someone will not do such a thing.
Send me your ideas, suggestions and stories to pas@pascoventures.com and perhaps I'll include them in a future post. May your deals help to make our world a better place to live!
