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Sometimes there just isn’t a second chance.

It seems to me that one of the hardest lessons that we are constantly teaching factories in China is the sometimes there just isn’t another chance.

Chinese factories certainly know that they usually only have once chance to get a client with a bid or a sample (hence underbidding and Golden Samples).  And factories know that if there’s bad quality product they won’t get any reorders.  They know all this.

But I’m talking about something a bit different.  Once production has started and mistakes are found, it’s usually the position of the factory, after much negotiations, to offer to redo, fix, replace or repair the product.  Of course who pays for this and how long it takes (and who pays for the resulting airfreight costs) are also always up for negotiations.  And here’s where the lesson comes in.

Sometimes a redo, a fix, a replacement or a repair just doesn’t cut it.  Sometimes it’s just too late.  Sometimes the window of opportunity has passed.  Sometimes a missed date is the death of the project.

I’ve seen this happen a number of times, and it’s not all the factory’s fault.  Usually (most of the time) it’s initially the fault of the buyer.  They are on a very strict time line.  They miss a couple of small design/art dates in the beginning but continue to push the supplier to meet the delivery dates originally agreed too.  The supplier agrees, of course, as they want to cooperate and hope to build some type of relationship that will turn into future orders.  They also assume that since they accommodated the client, the client will do the same later.

Now factories always have issues.  Some are small and can be fix with little or no impact on the delivery date.  But some are much larger and change dates dramatically.  But when push comes to shove, the factory thinks that it can bank on the store of good will they have built up with the client.

Only they can’t.

What factories don’t understand is the West’s infatuation with contractual dates.  You know that if you’re planning on getting your product into a any of the box stores you’ve probably got a 72 hour delivery window that if you miss you’re completely out of luck.  Your factory doesn’t know this.  And the factory’s rework is almost never that fast. Further, if you’re shipping by sea you may have already scheduled your goods to go to port on the closing date—meaning if you miss that date you’ve got to wait at least a week to get on another ship.

Because EVERYTHING is negotiable in China, this almost never happens.  Dates are missed and everyone understands, or at least compensates for the change/delay.  I believe that factories honestly don’t get how important (devastating) a missed date can be.

Because it’s such a huge deal to get a factory to take responsibility for problems (just like it’s so tough to get individuals to loose face and admit mistakes) it’s like they assume that just the fact that they’ve admitted to it and will fix it should be the end all of all negotiations.  But sometime sorry isn’t good enough.

What the buyer doesn’t understand is the quid pro quo that is part of the Chinese business culture.  All those little favors are counted and recorded.  There is a very tacit expectation that each one will be paid back.  The supplier knows that they’ll have issues in the future and while no one likes delays, I know that factories love to have a client in their social debt—it makes the inevitable problems so much easier to work through.  This is, of course, if the client understands the implicit cultural expectations.

Often the buyer gets bugged, rails on the factory for agreeing to dates (repeatedly and even after delays) and then falling through.  The factory feels like they’ve been hit upside the head with a frying pan.  They went out of their way to help and this is how they are repaid!?  Now the project is late, the relationship is flushed down the toilet and it’s a fight just to wind things up.

Once it gets to this point the factory has no incentive to help the buyer.  There is no trust at all that the buyer will keep their word.  The buyer just wants to get their money back, which is not only unrealistic but probably impossible.  The opportunity has passed and late product does no one any good.

Bottom line?  If you expect your factory to go out of their way to cover for your “little mistakes” then you’d better be willing to do the same thing for them later.  And later is ALWAYS more expensive.  Plan you time, your negotiations, your requests and your projects very carefully and with as much knowledge/foresight into future costs and delays as you possibly can.  Do NOT take anything for granted and never ask for favors, even small ones, that you’re not willing to return.

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 in the HKTDC’s Hong Kong Trader

SRI’s David Dayton was featured in a piece on smart sourcing in the latest issue of Hong Kong Trader, the trade magazine published by the Hong Kong Trade and Development Council.

Happy Holidays!

Merry Christmas, Happy Hanukkah, and Happy New Year–新年快乐!

SRI”s annual Christmas gift is now available.  Yes, our much awaited annual calendar and screen saver can now be yours–for free (mostly)!

The screen saver can be downloaded from our home page (link on the bottom left) or directly from here!

The calendar can be ordered from either our China or US offices for just the cost of shipping.  Let us know if you want one and we’ll send it right out to you!

And don’t forget, as much fun as it is for us to give this to you, we want stuff too!  So vote for SRI: Best China Business Blog 2008.

Thanks,

DD

Happy Thanksgiving!

No generic “happy holidays” here–we’re into the real deal.  Thank God for Pilgrims, America, the Founding Fathers, and Deng Xiaoping.

I’m thankful for Deng’s Opening Up plan that gave me the opportunity to meet my wife.  I’m grateful for those in governments around the world that honestly sacrifice their own interests for the benefits of others–though few and far between, I’m please to know some in China, Thailand and the US.  Thanks, Mom.

I’m thankful for good advice–stay out of dept, be prepared for a rainy day and be prepared to help others.

I’m thankful for my Danish and Irish heritage.  For a great grandmother that immigrated from Denmark in 1913 as a child, who left family and a comfortable life for a new life and a new religion in the US.  I’m grateful she taught me to make kleiner and panika and taught me Danish nursery rhymes that I can still remember (and which I shared with a Danish guy I met on the way to work just this morning!).

I’m grateful for my wife’s Chinese heritage.  For the incredible lessons in hard work, humility, thrift and love that she teaches me.  I’m grateful for her family for welcoming in a big fat loud slightly odd foreigner.  They are incredible people and for no other reason than so that my children can speak to their amazing grandparents, we will always speak Chinese in our home.

I’m grateful for my family’s willingness to serve in the military.  My grandfather, uncles, my father and currently 6 cousins.  I’m grateful that we have a tradition of service.  Despite the problems in the US and atrocities of war, I’m eternally grateful for those who put there lives on the line so I can be safe and raise a family and vote and have so many wonderful freedoms an opportunities (and have the freedom to complain about it all too).

I’m grateful for being raised in a home of faith.  For being taught of God, forgiveness, repentance, charity and principles that do not change with the political or social winds.  I’m grateful that I was taught to work, to practice, to love to learn and to love to read.  I’m grateful that I had the opportunity for as much higher education as I wanted.

I’m grateful for a successful business, many opportunities, wonderful partners and employees.  I am grateful for clients and suppliers that I can trust and that trust me.  How grateful I am to have work in this time of extreme economic crisis.

I’m grateful for friends that are great examples of good lives, successful families, professionalism and who honestly care about others.  Truly, good friends are worth more than gold.

I’m grateful for my parents, brothers, sisters, cousins, aunts, uncles, nieces and nephews, one remaining grandma and all those that have passed on.  I’m grateful for 5 smart, handsome, healthy boys.  What’s the point of life without family?!

I’m grateful for tradition–whether it’s football on Thanksgiving, or Old Beatles movies on Christmas or yellow cake on my father’s birthday or heartily waving the red-white-and-blue on the 4th of July.  I’m writing this post today as a continuation of our family’s tradition of sharing what we’re thankful for before we gorge ourselves on our annual Norman Rockwellesque Thanksgiving dinner.

And finally, I’m grateful for those who write about China on many blogs and in books that I love to read.  I’m grateful for those of you who read and comment here.  May you have a wonderful Thanksgiving and, with or without turkey, may you take a moment to remember all that you have.

Happy Thanksgiving

David Dayton