Key points for foreign tour companies to win dispute cases against their before Chinese partners
By Sun Jin(Marlow), Chinese attorney at Law, republishing this article please indicate author and source of this article. March. 17, 2023
As background knowledge, for transnational tourists, for example, guys from mainland China (PRC), if they want to go to tour to foreign countries like Sri Lanka, or Mauritius, or Iceland, they will need the help of two tour/travel companies, one is in China who will help to organize them up and take care of their air tickets and hotels abroad, another one is in foreign destination nation who will help to guide them to have a tour locally, and help them with their traffic and hotel locally.
In normal business situations, when nodispute between you and your Chinese cooperation travelling wholesale companies who helped to organize up tourists from mainland China (PRC) for you to host, you both can make money happily together, but in some difficult situation, like present or just-passed Pandemic of COVID, when your Chinese partners failed to pay you the money they owed you, how to win the dispute case against them will become a problem.
It¡¯s true that COVID Pandemic did broughtgreat impact to the business industry of tourism. This lawyer had accepted quite some cases when foreign travel companies / agencies had to find a lawyer to fight against their Chinese partners so as to get their money back. In these cases, the Chinese travel wholesale companies organize up tourists from PRC, and then send them to be hosted by foreign travel agencies, and some upfront payment might be paid before the tourists arrived in destination, but there always are some payments to be paid after the tourists were hosted, and when Pandemic came, some Chinese travel companies will stop the payment to the invoice due, and then dispute arouse.
In Chinese laws, we mean the PRC Civil ProcedureLaw, there is one basic rule on proof of burden, that is, these who claims must evidence their claims. So you want to sue your Chinese partners who owed you money? Well, you need to convince the judge that you had signed one agreement with opponent, and they had dispatched you some tourists, and you did host these tourists. So when you cooperate with the Chinese travel companies, you need to keep it in your mind that you need to save and keep well some paperwork, so as to be prepared for the situations of ¡°in-case¡±:
First, you¡¯d better to sign one cooperationagreement with your Chinese partners, otherwise, how to convince judgethat you did have deals and the details of the deals (like how you cooperated with each other and how to share the profit) will be a problem.
Second, when opponent sent you Chinesetourists, let them to send you detail information of the tourists in written, like through business emails. Nowadays, WECHAT is a good instant communication tool, and WECHAT record could be valid legal evidence on China court, however, it is not as good as official business emails; please remember it that WECHAT is not that official, so for agreement you had come into being via WECHAT, you can send one business email to confirm the information (like how many tourists, their names, passport information, telephone numbers of the tourists, travel product name, charges to them and so on), when it will be perfect evidential paperwork on China court.
Sometimes the telephone numbers of thetourists could be vital. This lawyer once had a case, the client of the foreign travelling company did not have sign one official written agreement with opponent, and they closed the deal on cooperation via face-to-face talk, both parties are professional guys in tour business, so it¡¯s easy to agree to each other on many business details, but just they did not write them down. And on arrangement of each team of tourists, the Chinese company did send emails but used another company¡¯s name. And when the foreign client hired this lawyer to raise a litigation case, opponent simply did not appear on court, while this could be useful Court tactics in China. When they appeared on court, they can not tell the lie, but if they did not appear on court, then actually court will depend on plaintiff¡¯s evidential paperwork alone, when plaintiff¡¯s evidential paperwork must be strong enough to convince judge to support them, if not strong enough, then it is possible that the plaintiff may lose the case. So finally, judge was not convinced. And the solution to this, is that, the judge arranged someone to call the alleged tourists, and asked whether it¡¯s true that they ever made a tour to the place in the case paperwork, and judge was convinced after they got a positive reply. This is also the reason that we have above suggestions on ¡°preparation on evidential paperwork in advance¡±.
And third, but not last, it¡¯s recommendedto have a good habit to sign account statement with opponent periodically, like each month, or each quarter, and write down all the money sum that opponents owe you(even, and especially when they cannot pay you very soon), and let them sign it and also stamp company seal on it. These could be very strong and even most perfect evidential paperwork on China court. As in nowadays China court, evidential paperwork is still the most-often-seen evidence, especially for transnational litigation cases.