Can I Sue the Chinese Supplier Only With Emails Instead of a Written Contract?
Chinese courts prefer to accept written contracts with the parties’ signatures.
However, with certain preparations made, contracts and orders confirmed by emails may still be accepted by Chinese courts.
In case of any default or fraud committed by your supplier, you may file a lawsuit with the Chinese court, and submit the contract, either in written or electronic form, as evidence to the court.
1. Chinese courts tend to accept written contracts with the parties’ signature
The most common way to conclude a contract is that you and the supplier both sign the written contract, and give the original or send the scanned copies to each other.
Chinese courts are also pleased to accept such contract, because the judges can easily confirm that (a) the contract is genuine; and (b) both parties agree to the contract.
However, in terms of cross-border trade, most transactions are confirmed by emails, as it is the most convenient way.
So, do Chinese courts accept the transactions confirmed via e-mails?
2. YES, e-mail is also a recognized form of contract under Chinese law
In accordance with Article 469 of China’s Civil Code, a contract may be concluded between you and the supplier in writing, orally, or in other forms. Any data message that can tangibly convey the content and can be accessed for reference at any time by means of electronic data interchange, e-mail, etc., shall be deemed as in written form.
In other words, if you confirm the content of the contract in your email, the content would be deemed as a written contract by Chinese law as well.
3. Two things you need to pay the most attention to
When both parties confirm the content of the contract by email, you should be aware of the importance of the following two things.
(1) To prevent the situation where the supplier afterwards denies that the e-mail was from himself/herself
Under Chinese laws, a supplier will not be able to deny the existence of a contract if during the course of transaction you “have reason to believe” that the email sender has authority to confirm the contract to you on behalf of the supplier.
So, you need to prove to the court the reason why you believe so.
The typical approaches are as follows:
i. The email address of the supplier uses the domain name of its official website.
ii. The supplier has actually enforced (or partially enforced) the contract in accordance with the content after the supplier confirms it with you via such email address.
iii. The supplier has communicated, concluded, and completed multiple transactions with you via sending emails from such email addresses.
iv. The supplier identifies such email address as its contact information in other “signed written contracts” or other official documents, and websites.
(2) To convince the judge that the email data has not been tampered with
Chinese judges are always worried about the risk of emails and other data being tampered with.
If you are using a public e-mailbox service provided by a large service provider, such as Microsoft or Google, judges will often believe it difficult to be tampered with.
If you’re using your own email server, judges may be less likely to accept your email content unless it’s recognized by the other party.
In the latter case, when you send an email to the other party, you can use BCC in Email to send it privately to a public email address. In the future, you can submit the emails from that public email box as evidence to the court.
In addition, in Chinese lawsuits, a notary office or electronic data authentication agency is generally retained to confirm that the email has not been tampered with.
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