Job Discussion Forums

[cheekygal]

Just sharing. I actually like that part. Are these normal conditions in the contract? I have been working for the same company for 3 years so I don't have much experience in signing contracts: my contract was automatically extended and didn't really change with the time.
Anyway, here it goes:

13. Language.

This Agreement is written in the English language only. The English language also shall be the controlling language for all future communications between the parties hereto concerning this Agreement.


14. Dispute Resolution.

Any dispute, controversy or claim arising out of or relating to this Agreement shall be settled by arbitration administered by the International Chamber of Commerce in accordance with its International Arbitration Rules. The arbitration shall be the sole and exclusive forum for resolution of such dispute, controversy or claim, and the award rendered shall be final and binding.


I must add, the chain of kindergartens I am siging the contract with doesn't have any foreign manager but has other foreign teachers. So far I didn't find any loop-holes in it. And it is written in both logically and grammatically correct English

[Sheep-Goats]

Of course, just because it's in a contract doesn't necessairly mean it's legal...

[Roger]

This is news indeed. First thing: Where is this "Arbityration Chamber" or whatever located? Is it recognised as supreme arbiter by the powers-that-be? In that case, it is furthermore interesting to note they accept ENGLISH as the SOLE language of arbitration; I do have doubts that this is legally binding.
What if you do take a case to that Chamber and it arrives at a verdict to the detriment of your employer? Could they take it further? If not, why not?
But then again, this may just be a little dose of placebo - tp keep a potentially cantankerous, litigious FT quiet. In reality, a contract should be in two languages, the national one being the binding one.
Do they offer you a work visa?

[cheekygal]

I already have a work visa valid until the end of October. The supposed to provide other documents. Let's see how it unrolls. I can always leave

[scoobydo]

I'm no expert on Chinese law although I am a British law graduate. I have been studying up on Chinese law for the last couple of months.


"13. Language.

This Agreement is written in the English language only. The English language also shall be the controlling language for all future communications between the parties hereto concerning this Agreement."

The "Contract Law of the People's Republic of China 1999" does not mention the language to be used in a contract.

However according to China's Foreign Economic Contract Law it was permissible to sign contracts in Chinese or English or both and to choose either language as the governing language should disputes arise.

The foreign economic contract law however tended to be more geared towards Western businesses doing business in China. However if you are on a Z visa you fall under the "Foreign Experts" umbrella which was really designed for engineers and the like. I suspect the use of English is valid.


"14. Dispute Resolution.

Any dispute, controversy or claim arising out of or relating to this Agreement shall be settled by arbitration administered by the International Chamber of Commerce in accordance with its International Arbitration Rules. The arbitration shall be the sole and exclusive forum for resolution of such dispute, controversy or claim, and the award rendered shall be final and binding."

It is normal to have a dispute resolution clause in a Chinese contract (in fact the 1999 contract law expects it as a normal part of a contract). They do indeed prevent the parties from going to court.

The above dispute resolution clause is almost certainly binding. Chinese courts have however shown themselves willing to disregard the dispute resolution clause and accept a case if fraud is alleged.

To summarise:

English as the controlling language - probably valid

Dispute resolution clause - almost certainly valid (but see below to read the ICC's own reservations on their own jurisdiction being accepted in China). I'm 99% sure that if one party is not Chinese then the ICC will be a valid "Court" of Arbitration.



Who are the International Chamber of Commerce?

see http://www.eurolegal.org/arbitration/arbodies.htm#ICC


A European arbitration body.

International Chamber of Commerce - International Court of Arbitration


The International Chamber of Commerce is a not for profit private association. Its membership comprises businesses, chambers of commerce and others with an interest in international trade. It has a Court of Arbitration. The expression "court" is a misnomer, because the institution is not a "court" in any legal sense of that term. It is an appointing authority for the nomination of arbitrators with a support secretariat. The ICC will appoint arbitrators to act according to its own procedures, or according to UNCITRAL Rules.

The ICC Rules of Arbitration have been very popular and have gained widespread acceptance in international trade disputes. However the increasing importance of the UNCITRAL Rules may well signify that the use of the ICC Rules will diminish.

In default of special arrangements in the arbitration clause, the ICC will appoint a sole arbitrator unless it appears that the dispute is such as to warrant the appointment of 3 arbitrators. The ICC Rules provide for the remuneration of the arbitrators as a function of the sum in issue. This may make an ICC arbitration more costly than proceeding under UNCITRAL Rules with another appointing authority.


"The ICC Rules provide for the remuneration of the arbitrators as a function of the sum in issue."

My interpretation of this is that the fees are calculated on say a percentage basis of the claim rather than as a flat rate.


See their website: http://www.iccwbo.org/index_court.asp

See their China provisions: http://www.iccwbo.org/court/english/news_archives/2005/china.asp


Under the 1994 Arbitration Law of the People�s Republic of China, one of the conditions for the validity of an arbitration agreement is a reference to the zhongcai weiyuanhui or arbitration commission selected by the parties to conduct their arbitration. Although there is some uncertainty as to whether foreign arbitration institutions qualify as arbitration commissions within the meaning of the law, it would in any case be prudent for parties wishing to have an ICC arbitration in Mainland China to include in their arbitration clause an explicit reference to the ICC International Court of Arbitration, so as to avoid the risk of having the standard ICC clause declared null and void for lack of a sufficiently explicit reference to the arbitration institution of their choice.

It is therefore suggested that such parties adapt the wording of the standard ICC arbitration clause as follows:

�All disputes arising out of or in connection with the present contract shall be submitted to the International Court of Arbitration of the International Chamber of Commerce and shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.�

Tell your employer they need to revise the wording of their clause and refer explicitly to the ICC International Court of Arbitration. That should get them wondering who you have been talking to.

All said and done though is any foreign teacher going to go to the bother of calling in an International Arbitration commission? I doubt it which means in effect you are left with no practical legal recourse at all. Cunning, very cunning.

Having said that at least you would get a fairer hearing and probably win. The hearing can take place in China so it maybe is a viable option.

By the way the reason I have spent the time to do this is because I should be studying Chinese law. A classic case of "I should be studying but oh I think the grass needs cut..."

[ChinaMovieMagic]

scoobydo
Useful INFO.
PRO BONO seed-planting you've done!
Thanks!!!