Contracting in China: Comparative Observations on Freedom of Contract, Contract Formation, Battle of Forms and Standard Form Contracts
Maastricht European Private Law Institute Working Paper No. 2011/06
41 Pages Posted: 10 Feb 2011 Last revised: 13 Feb 2011
Date Written: February 7, 2011
China is Europe’s second largest trading partner and number one source of imports and the international transactions between European businesses and their Chinese counterparts form the backbone of this large volume of trade. Nevertheless, businesses and lawyers tend to feel some discomfort about Chinese law and the legal system they will encounter in their business dealings with their Chinese counterparts. This article provides comparative observations from a European perspective on Chinese contract law. In the context of international business transactions, in particular international sales, businesses frequently contract on the basis of standard form contracts. This raises issues of contract formation and the freedom of contracting parties to establish the terms of their contract. For this reason, this article pays particular attention to the corner stone of modern contract law in Europe, freedom of contract, and to what extent Chinese contract law recognizes freedom of contract as a fundamental principle underlying contractual relations, the rules of contract formation, and in particular the battle of forms, as well as the control of standard terms. It also provides a brief overview of the sources of Chinese contract law.
Keywords: Chinese contract law, Freedom of Contract, Contract formation, battle of forms, standard form contracts, European Contract Law
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