China Contract Templates: the Cons and the Cons
We are often asked to draft China employment contracts for WFOEs and Joint Ventures. Our first response is to ask the potential client whether their Chinese entity already has a set of Rules and Regulations (sometimes called employer manual or employee handbook). If the answer to that question is yes, our lawyers will use those Rules to determine what should go into the employment contracts.
If the answer is no, our response is to say that we cannot draft the employment contracts standing alone; we need to be retained to draft both the employment contracts and a set of Rules and Regulations (and sometimes more). Our reasoning on this is three-fold. One, nearly all locales in China now require employers to have Rules and Regulations, especially those locales with more than a handful of foreign companies. Two, having an employment contract without any Rules and Regulations is like having a car without an engine; it just doesn’t work. Without such Rules and Regulations you cannot discipline or terminate your employees and you are at great risk of your employment policies and decisions being fodder for employee-employer disputes. The third reason is both more personal and selfish: we do not want our law firm’s name associated with an imminent disaster.
Many times the potential client will respond with something like the following: “In doing our Rules and Regulations, would it be possible to use a standard template to keep costs low?” Our typical response to this is something like the following:
Every time we draft Rules and Regulations, we begin by reviewing our own Rules and Regulations to find the best one to use as a model for what you will be doing in China. This requires we gather up all sorts of facts from you even to be able to figure out which of our existing Rules and Regulations will most closely fit your situation. If you are a factory in Qingdao, do we use the Rules and Regulations we did for a an accounting firm in Qingdao two months ago? Or do we use the Rules and Regulations we did for a factory in Suzhou three months before? Or do we use the Rules and Regulations we did for a factory in Yantai six months prior, since Yantai and Qingdao are in the same province? Actually in this sort of situation we would probably research the relevant laws for factories in Qingdao and probably end up using parts of all three Rules and Regulations to create a new one that will work for a factory in Qingdao today.
An employer’s Rules and Regulations will always vary depending on the type of company, the type of employees, and, usually most importantly, its location. Just by way of an example, the overtime rules are going to vary greatly for a CEO as compared to factory workers and those rules are also going to vary greatly as between Chengdu and Shanghai. We have many Rules and Regulations that can serve as an appropriate starting point but we must first make sure everything in that document is current (the relevant laws and regulations constantly change in China) and fits your location and your exact situation, and then we must modify it in English and in Chinese accordingly.
We get the “template question” a lot on the licensing and manufacturing side too and many times in those situations, the potential client will ask whether it would save them money to have their in-house lawyer or their less-expensive local domestic lawyer draft it first and then have our law firm use that draft contract as our template. Our response to that question is usually something like the following:
We have drafted literally hundreds of China licensing agreements and manufacturing agreements and we do not really use any of them as a “template.” Instead, we spend hours gathering up the facts from our clients and then we figure out which of our many contracts — if any — make sense to use as a model in creating what will essentially be a new contract for you. Our agreements have been specifically drafted for use in China and that means they are dual-language agreements with Chinese as the official language. We draft them under Chinese law and we make sure to draft every provision to benefit you as a foreign company that is licensing its products or services in China or having its products manufactured in China. Our existing contracts are as close to ready as you could possibly find and it makes no sense for you to pay another lawyer who knows nothing about Chinese law to create a brand new English language contract which will not even be close to what makes sense for China. Not only would the money you pay that lawyer go to waste, but my law firm’s fees would soar as well, because instead of our starting with our own Chinese and English contracts as the model (not as a template, and there is a difference), we would start with an English language contract that is not even going to be close to what makes sense for what you are looking to do in China. We would have to revise nearly every provision to make it China-appropriate, and it would take twice as much time as if we just used one of our own previously drafted contracts as the model for yours.
Second, whatever of our contracts we end up giving you will not be right for what you are doing and whatever changes you make to it will only make it even less right. There is a lot more to doing a deal with a Chinese company than simply sending it a contract and getting it to sign it. You first need to do at least basic due diligence to make sure the company you have been negotiating with is the same company signing the agreement and to make sure you have the company’s name and address correct. This is often far more complicated than people think. At least 30 percent of the time the contracting party is actually a Hong Kong or a Taiwan entity and in those cases a PRC contract does not make sense. At least another 30 percent of the time we find irregularities in the company information and we need to investigate further to clarify. And then there are the times we determine there is actually no company at all and the Chinese “company” was actually a complete fraud. See China Fraud Season Starts Early This Year.
More succinctly, you get what you pay for.
We will be discussing the practical aspects of Chinese law and how it impacts business there. We will be telling you what works and what does not and what you as a businessperson can do to use the law to your advantage. Our aim is to assist businesses already in China or planning to go into China, not to break new ground in legal theory or policy.
Source: http://www.chinalawblog.com/2017/05/china-contract-templates-the-cons-and-the-cons.html
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