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Fulbright expands Asian presence China’s Foreign Trade Agency System: Commission or Brokerage?
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ulbright & Jaworski has added five new lawyers to its Beijing and Hong Kong operations. Legal consultant He Yuping joins Fulbright’s Beijing location from a large national oil company in China and associate Joanne Du has joined from another major international law firm. Meanwhile, legal consultant Lori Ji has relocated from Fulbright’s Hong Kong location to round out the Jeffrey Blount, Fulbright new additions in Beijing. Additionally, partner Steve Vogel has relocated to Hong Kong from Fulbright’s London location. Senior associate Ben Smith joins the firm in Hong Kong from a major international firm in London and counsel Alexandra Freeman has also joined from an international firm. Fulbright’s growth in Asia continues the expansion of the firm’s global energy and projects practice. In recent months, Fulbright has also expanded its locations in the Middle East and the UK. “China continues to be a dynamic and important market for our clients as their global businesses expand,” said Jeffrey Blount, the head of Fulbright’s Hong Kong and Beijing locations and co-head of the firm’s international practice. “Our presence in Asia is key for our clients, as we continue our long history of cross-border work and to continue building on our strengths.” ALB
Fulbright 扩大亚洲阵营 ulbright & Jaworski 的北京和香港办事处近日新增五名律师。加盟 Fulbright北京代表处的法律顾问He Yuping来自一家中国大型国有石油 企业， Joanne Du 律师来自另一家著名的国际律师事务所，法律顾问Lori Ji 则从Fulbright的香港办公室调职至北京代表处开展工作。 此外，合伙人Steve Vogel从Fulbright伦敦办事处调职至香港。高级律师 Ben Smith从伦敦一家著名国际事务所转投Fulbright香港办事处，法律顾问 Alexandra Freeman也来自国际律所。 Fulbright在亚洲的发展提升了该所在全球运营项目的能力。近几个月 来，Fulbright还增加了在中东和英国的代表处。 Jeffrey Blount是Fulbright香港和北京办事处的负责人兼该所国际业务的 联席负责人，他表示“随着中国企业在全球的扩展，中国将继续是本所客户 的重要市场。我们在亚洲设立办事处对客户而言至关重要，我们将秉承提 供跨境服务的悠久传统，充分发挥本所优势。”
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n the course of drawing the Contract Law, actually, there was once a chapter called “Foreign Trade Brokerage” in the draft made by experts and scholars, which was finally deleted due to their inconsistent recognition. However, they kept a special chapter called “Contract for Brokerage” in the Contract Law, under which, “a brokerage contract refers to a contract whereby the broker is, in his/her own name, engaged in trade activities for the benefit of the principal, and the principal pays the remuneration” (Article 412) and “where a contract is concluded between a broker and a third party, the broker shall directly have the rights and assume obligations under the contract” (Article 421). In this respect, the Explanation and Application of Contract Law, which is chiefly edited by Li Guoguang, vice-Presidents of the Supreme People's Court, and written by economic court of the Supreme People's Court, provides that foreign trade agency contracts under the Provisional Rules are essentially brokerage contracts. Opinions by Beijing Municipal Higher People's Court on Several Issues Concerning the Application of Deciding the Validity of Arbitration Agreement and Application for Setting Aside Arbitration Award, which was issued on December 13, 1999, has clarified that “foreign trade agency system, as a specific legal system in China’s foreign trade activities, does not belong to the agency system prescribed in the General Principle of Civil Law. The arbitration clause concluded by the agent in his/her own name has no binding force to the principal (exclusive of in the commission contract under the Contract Law)” Therefore, we think that China’s foreign trade agency contracts are actually brokerage contracts and can not apply to Article 402 of Contract Law to directly bind the unnamed principal. However, given that there are still conflicts on the understanding of this rule, it is advised that parties of such transaction, in particular foreign businessmen, shall have to pay particular attention to above conflicts when signing such import and export contract and as far as possible make necessary arrangement and expression in the contract. After all, Article 402 of Contract Law does not reject the otherwise agreement made between the parties. David Yang Tahota Law Firm Senior Partner, Vice Director Unit A, 27th floor, World Trade Center No.117 Gulou Nan Road, Chengdu, P.R.China Tel: 86-28-86759432 E-mail:yjhlawccpit@126.com
David Yang
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