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Alternative Dispute Resolution (ADR) in China

As anyone who has ever had an experience with Chinese courts can attest to, they can be difficult.

Chinese culture is not the same as in the US, we all know that, but that does not mean that by learning a few words in Mandarin and showing off your Panda House chopstick skills, you will be able to simply overcome those differences.

There are specific measures and methods that you can use to protect your investments and your business in China, playing it safe and understanding the rules that govern China is a great start.

Arbitration can be a very effective tool in basically replacing litigation in China, while litigation has taken on a fairly negative connotation in China; Arbitration has avoided this label for some reason or another.

Arbitration is generally considered more efficient than litigation in many ways, it is usually cheaper and faster, but there are also other benefits.

Basically you are hiring a private judge or panel of judges to solve your dispute. As China’s court system is still in its infancy, there are many tendencies that Westerns find different, confusing or even downright disturbing; including but not limited to the competency of the courts, fairness of local judges and the amount of independence courts actually have.

Arbitration can offer a solution as it is structured to be neutral, more flexible, the results of arbitration are confidential and if you structure the agreement correctly an award is more easily enforced.

Most arbitration clauses between Chinese and foreign companies will agree to arbitrate in either Hong Kong or Singapore, as both of these locations have established themselves and dependable, mature legal systems and are usually the only seats that are trusted by both sides.

While arbitration is very effective when done properly but there are potential pitfalls; here are some to be especially careful about;

• The choice of court o In order for the agreement to arbitrate to be effective, all parties must have agreed in writing to their choice of court, this is often referred to as a choice of court clause.

o From my discussions with scholars and practitioners, this choice of court clause should be included in the party’s commercial contract, as this will save time in the event of a disagreement of any jurisdictional issue.

o Things to be aware of when selecting a court;

• The national and local courts may have a supervisory role or allow for appeals against the award.

• The freedom of choice as to whom the arbitrators of the dispute may be limited by local practice or laws

• The enforcement of the award may be complex depending on the nationality of the award, the safest method is to select a country that had ratified the New York Convention, most noticeably absent from the treaty is Taiwan.

• Defining what is and is not arbitrable in the contract

o This point deals in particular with anticipation of what problems may arise between the two parties

o Art. 17 of the PRC Arbitration Law specifically states that the arbitration agreement will be null and void if the dispute that is sent to arbitration is non-arbitrable

o Disputes that are arbitral include;

• Contractual disputes, most disputes involving property rights (Art. 2 PRC Arbitration Law)

o Disputes that are not arbitrable;

• Labor disputes, administrative disputes, definition of intellectual property rights and most disputes involving family law

• Defining what language the arbitration will be done in

• Defining the actual arbitrator

o Most arbitration institutions offer a single arbitrator or a panel of three arbitrators

o Three arbitrators means paying for all three but it also will more likely result in a stronger and more skilled arbitration experience. Arbitration clauses are a wonderful way to protect yourself, but they must be structured perfectly or they will end up being useless. Remember to stay on the balls of your feet and keep your head on a swivel, it’s the only way to thrive in China.

Here are some helpful links to some of the larger Arbitration and Mediation institutions.

International Chamber of Commerce

- Hong Kong International Arbitration Center

- China International Economic and Trade Arbitration Commission

Southern Perspective Shenzhen is a boutique consulting firm that specializes in combining manufacturing and the legal system in China. The majority of our time is spent in factories negotiating for legal protection of foreign companies engaged in supply chain activities in China. With combined experience of over a decade in Guangdong province, China’s hot bed for high tech innovation, we have the on the ground skills and knowledge combined with the high level educational standards of one of the top legal education centers for Chinese business law at the Chinese University of Hong Kong.

Matthew Kowalak

SRI Spring Tradeshow Speaking Schedule

I’ll be speaking at 3 different shows in April.  Topics range from Problems Solving to Sourcing Basics and an extended version of the bi-annual China for New Buyers.  Like I’ve done with previous shows, I’ll be posting Q&A as well as some of the useful tidbits from other presenters at the end of each show.  One thing that we’ll be doing differently is to post the video of the presentations on line this year too.  Assuming that I can get a decent copy of the presentations I’ll be adding them to the SRI article library and linking to them from the blog.

April 12th, Global Sources China Sourcing Fair, Electronics & Components at the AsiaWorld-Expo Center (out by the Airport) in Hong Kong.

How to Source from China (part 1): Buying from China, What New Buyers need to know.

April 13th, Global Sources China Sourcing Fair, Electronics & Components at the AsiaWorld-Expo Center (out by the Airport) in Hong Kong.

How to Source from China (part 2): Project Management, Problem solving and In-Production Negotiations.

April 15th, Xi’an Metering China Conference & Exhibition 2010 at the Xian Greenland Pico International Convention & Exhibition Center (GPCEC).

Sourcing Workshops: What Buyers Need to Know When Buying from China.

April 20th, Hong Kong China Sourcing Fair, Gifts & Premiums at the AsiaWorld-Expo Center (out by the Airport) in Hong Kong.

How to Source from China (part 1): Buying from China, What New Buyers need to know.

April 22nd, Hong Kong China Sourcing Fair, Gifts & Premiums at the AsiaWorld-Expo Center (out by the Airport) in Hong Kong.

How to Source from China (part 2): Project Management, Problem solving and in-production negotiations

Labor, Sub-suppliers and Time–3 other ways to lose money in China

A quick story before I get to the issues at hand.

An interesting thing happened on the way home from church…  I was picking strawberries with my boys at a small farm yesterday when I overheard the workers talking about us.  Now, hearing people talk about foreign kids isn’t all the interesting, but what was unique this time was that I realized that they weren’t speaking Chinese—I could swear they were speaking Lao, but even that wasn’t quite right.  Turns out the workers are Dai minority people from southern Yunnan province and they were speaking a dialect of Dai (Tai) and we could communicate a bit.  They told me the Thai people in town (owners of the local Thai restaurants) often come to the farm and they can talk together.  I couldn’t understand everything, but I could certainly follow their conversations and they mine.  The language sounded like 1/2 Lao mixed with 1/4 Chinese and then 1/4 of something else.

Anyone know anything about the Dai and their language?

_______________________________________

Now for the real stuff.

This a portion of an email that I got from a lady that is doing some work on her own here in China:

Hi David,

I wonder about my current manufacturer.  This is what I have encountered…..

Last time I visited the owner tried to give blame to the holiday for not having the required staff to finish the order.  She also created worry about the reliability of a sub-supplier, and urged me to purchase fabric more than one month before I need it.  For these and other reasons she also requested that I pay extra money.

I have mentioned that I intend to take this trip and I have been providing orders for a number of weeks. As I was finalizing the details they told me that I needed to personally order the fabric at least 21 days in advance of any order. She led me to think that she is unprepared for my arrival and this visit might create some problems.

Regardless I feel that she is trying to make me feel like I am in a desperate situation and so will be willing to pay more  It becomes difficult to argue because I spend so much time at the factory, I naturally take the “YA TEAM” mentally in managing the work being done.

In the last visit, I just paid the extra fees. This time I don’t want to pay extra fees because of the problems and unprofessional-ness I’ve experienced.

I also worry that because I am a “foreigner” they may be taking advantage of me.

Answer #1 Labor shortages. Staffing is a HUGE issue in Southern China right now.

Warning from the NYT about two weeks ago.  And more this last week.

We’ve had five factories, all in different industries (plastics, wood, stitched goods, packaging/printing, metal furniture), all tell us the same thing, “The order you placed in January is going to be late since we don’t have anyone to finish it now.”

In the press, the lack of labor is usually blamed on three things: bad conditions, high cost of living in GD province and politics (hukou, no workers’ rights and no help with injuries/grievances, etc.).

Sure these are partially to blame, but there are significant reasons why these are not the main motivators as well.

1. Factory conditions, in my experience, are much worse inland than they are in Guangdong.  Guangdong conditions were particularly bad when Guangdong was unique and there was excess labor.  But that hasn’t been the case for at least the last 4 years.  New factories in the inner provinces are not “shiny new buildings” with the latest in worker comforts.  Rather they are probably relocated machinery and management from Guangdong in either new industrial zones with no supporting amenities nearby or in older (cheaper) areas of towns or out of towns where the land is cheapest.  Either way, working conditions are not significantly different (if different at all) back home.  Remember, the point of opening a new factory farther inland was to save money.

2. For sure, the cost of living is higher in Guangdong province, but wages are higher too—much higher.  Wages can be as much as 30% lower inland than on the east coast for the same job (or so say my employees in the first ever Quick SRI Office Poll).  Sure that’s not scientific, but a quick scan of income stats online says that a 3-1 urban/rural ratio is probably pretty common.  Again, the point is to get more for less, so back home people are probably making “chabuduo” (approximately the same) wages when compared with local living expenses.

My theory is that people will work for less money and in the same conditions if they are closer to home/family—that’s the reason that people aren’t coming home.  Oh yea, and they don’t have to fight for tickets and then stand on a train for 24 hours every year either.

3. The Hukou and other issues are a bummer for sure, but the enforcement of hukou laws isn’t any more strict these past 3-4 years than it was in the previous 10 years and there were no significant problem in years past—so why is this now a “new” issue?  It’s not.  It’s a lingering issue that has been a thorn in the sides of migrant workers for 30 years.  But it hasn’t stopped workers from coming to Guangdong before and so I don’t think that it’s the reason now.

Follow the money.

Let’s be honest, as soon as the demand for labor in Guangdong rises to a point where wages rise noticeably, people will come back—they’ve been here before and as soon as it’s worth it, they’ll come back again.  It’s happened as recently as a couple years ago.  It’ll happen again.

But of course when the labor wages rise, that’s also when it affects us, the buyers. And the real point isn’t the why they aren’t coming back yet, it’s the bottom line result (what to do about late delivery and higher wages?).

So what do you do if your factory is now telling you that projects scheduled to be done in March will be done in April or May (and projects after that will cost more)?

The usual get out the contract and bang on the desk approach won’t work.  Neither will the incentives approach (more money to get what you originally wanted, late).  The physical limitations make both of these options worthless.

Option 1. Accept the fact that you won’t deliver on time and start making adjustments  to your supply chain now.

Option 2. Incentivize the factory to hire more workers.  This will take time (and cost money), but not as much time as waiting for them to find the workers themselves.   This is what large box stores are doing now—(aka: this is what people with a lot of money and influence are doing now).

Options 3. Cut orders in half and give the other half to your back up factory (you do have a back up option, right?).  Of course, this only works if you don’t have specialized products or tooling.  But even for specialty products, if you split up pieces or components you can save time.

Option 4. Prioritize SKU’s and qtty’s and take delivery in pieces.  This is what most people that we work with are doing.  They know what their show orders are.  They know exactly what qtty’s they must have and they know that they have to deliver to certain suppliers or lose their business (while others are more flexible).

Answer #2 Subsuppliers. Unfortunately, even if you’re small sub-suppliers should be your concern.  Why? 1. Most factories don’t do QC incoming components.  2. Most factories don’t forecast delays, price changes or rejects into the bids they give you. 3. No one will be as careful as you are about your own product—if you’re not having 3PQ check incoming goods then no one will—contract with your factory for this service.  4.  The flip side is that if you buy on your own, factories will waste materials as they don’t need to be careful/save anything—so again, contract this service and tie performance to payment.

Answer #3 Time. Yes, prep time is often the longest part of the process.  We often have projects with 50+ day production times but actual manufacturing can be less than a week.  Packaging/fulfillment is usually only another week too.  So the remaining 30+ days is either spent buying raw materials and/or waiting in line in the factory.

A word of warning, don’t confuse waiting in line and waiting for materials with getting pushed out of the queue for larger projects.  Get a fixed date for when your product will be manufactured.  The actually day may vary a day or two but more than that and you should be looking for the “real” problem.  We’ve been completely pushed off line (in the middle of manufacturing) for larger projects.  They only way to get people back to work on your product is to be there everyday all day pitching a fit until they acquiesce.

Answer #4 What’s really going on. If you don’t know exactly what’s going on with your suppliers (because you are overseas, because you don’t speak Chinese, because you are working with a non-transparent middleman, etc.) than you are indeed in a desperate situation.  You need to know.  You need to have fixed times, milestones and other checkpoints that you can confirm to know how your project is doing and so you can make concrete shipping/delivery plans.  You also need to have a physical presence in the factory to confirm the things that you’re being told and the quality standards are up to your (contracted) expectations.

This is the very hardest part of the whole process—finding out what’s real, what’s a story and what’s a mixture of the two.  If you’re not here, you’ll figure out that your being told stories, but by that time it’ll be too late.  If you’re here and you don’t speak Chinese you’re either reliant on others who may have competing agendas or you may have to spend an inordinate amount of time on a single supplier to the detriment of other responsibilities.

Answer #5 Money. If you’ve paid fees in the past, of course the factory assumes that you can pay them again.  Remember, you’re made of money (at least that’s what many think).  The concept that has been told over and over again to me by Chinese sales people is this: “I’d be stupid not to ask for more money—what if you’re dumb enough to actually pay?!”  You will be asked to pay for EVERYTHING.  If you do it once, you will be asked to do it again (and again).  Sometimes you need to give in and help out.  Sometimes there are real mistakes that you choose to forgive, help out with or use as a punitive tool later.  Sometimes you’re just taken out back, bent over and beat ugly.  You may never know.   Each situation requires a health dose of Sherlock Holmes.

Just remember, before you decide to fight the price increase, understand what the battle will cost you in things other than money (time, quality, relationships and the like, which, in the end will eventually cost you money).  Sometimes it’s better to pay more and get less and sometimes it’s worth it to fight to the death.

Reasons why a factory doesn’t want you to come see things.

Before I get to the post today, everyone working in China should read this great article on corrupt QC (h/t China Law Blog).

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We’ve been extremely busy both before and after the CNY break.  As we get back into factories to do QC and project management some factories are more helpful than others scheduling visits. I’m sure there are a hundred versions of “we’re not ready for you just yet.”  These are just a few of the responses that we’ve heard from factories this last week or so.

“There really isn’t anything new to see this week.”

“Don’t worry, we’re doing it just like you asked/last time.”

“Maybe you should come next week to see finished product.”

“All of our staff have not returned from holiday yet.”

Regardless of the words used, my experience tells me that there are really only a few reasons that you can’t go into a factory to see your product for a scheduled QC visit (or any other reason):

1. They are not as far along as they should be.

2. They are not actually making the product.

3. They don’t want you to see how some part of the process is done.

4. They don’t want you to reject product or change processes.

5. They are busy and have schedule legitimate appointments with others on your requested day.

6. They are closed (no power?), have repairs/inspections/other issues that would not allow you to come see product on your requested day.

Maybe there are others.  But the point really is this: either there is product for you to see or they are booked and there will be product to see within 24 hours of your requested date.  Yes you should be understanding of legitimate conflicts, but you’re paying for it.   Unless they’ve contracted different standards with you before the order was started you should be able to see it anytime you want (within reason, not 3AM Sunday morning “anytime you want”).

In defense of busy suppliers, maybe there really isn’t anything different/new from last time.  But the point of QC isn’t “what’s new” as much as it is a confirmation that everything is still the same (quality) level as last time it was checked.  IP (In Process) QC already assumes that product isn’t finished anyway, right?  So just keep pressing to get into the factory as often as you want.

Side Note: IPQC does NOT mean one day of final QC on the same day as container loading. I’m constantly reminding buyers that QC is not for just finished goods—it’s also for processes.  What good is QC on finished product if you can’t reject it or they won’t replace it or you’re too late to have it re-done?

All but the scheduling conflict should make you worry.  Not freak out, but certainly worry and get back into the factory as soon as possible for new dates.

Specifically, if the supplier is late and not telling you you’re either going to get bad product (rush job), someone’s going to pay for airfreight, or both.  It’s much harder for you to reject things if you’re up against a deadline or when production is completed and factories know this.  They may just be busy but don’t discount the reality of them delaying your order because of “better” (more profit) projects or the very common belief that you can’t do much about it.

If they are outsourcing your project and not telling you then you may have a major problem on your hands.  The big question is “can you do QC at the other factory or not?”  If the answer is anything less than “Yes! Anytime you want” then you certainly are going to have issues.  One of the dirty little secret of Chinese business is not that projects are outsourced but that they are outsourced to “friends” (sub suppliers) that would be offended if a QC was sent in by the original factory.  We’ve negotiated special deals with factories so that we can send in our own people for other projects just so that the factory doesn’t offend their friends/sub suppliers.

Often times there are real issues that the factory can’t control like laborers not returning on time, rolling blackouts, accidents, etc.  But in the very least you need to get new schedules.  And it should be the factory that offers solutions to make up for lost time (since you’ve signed a contract and probably have ship dates that you have to meet). You can be flexible, but outside of “acts of god” you can reasonably expect the factory to be responsible to meet dates or make other arrangements for you.

To eliminate as much of this rigmarole, be prepared to roll with the punches, plan extra time into your schedule before you order and of course, spend as much time as possible in the factory.