Both English and Chinese legal writing deal with this problem by using specific terms with precise meanings and avoiding terms that have ambiguous meanings, but you have to be pretty specialized to know what those terms are.

Also, there are concepts that don't carry across well. "Consideration" is a concept in common law that doesn't exist in Chinese law. Also there are terms that mean completely different things. My favorite is "unilateral contract."

The broader question is in what circumstances would you want an arbitration/foreign forum clause in a contract with a Chinese OEM? If the chips hit the fan, you will pretty much always be either be suing for money and/or injunctive relief, which only a Chinese court can meaningfully provide if the OEM is like 99% out there that have no real assets outside of China.

I agree with your comments on the Chinese language issue and the hourly law firm malarky wholeheartedly.

(p.s. it's between "us" parties)

So true.... So true of translating in every language. There are incredibly few people who can do legal translations well.

You are absolutely right on both counts. Any contract that wants US law to apply, should (almost always) set forth the particular state law it wishes to see applied. We have litigated contracts that call for US law and the way the courts have handled those is to figure out which state's law is most appropriate, but even that leads to unnecessary fees and costs.

Here's another thing that needs to be considered. Even if the contract calls for US court jurisdiction, the US courts will not assume jurisdiction for this reason alone. There has to be some basis for involving a US court. In other words, if a Russian and a Chinese company engage in a product transaction that has nothing to do with the United States, even if the contract calls for US court jurisdiction and US law, the US courts usually won't touch it. And yet, I have seen these contracts too and they seem to happen with foreign companies that do not understand the difference between arbitration and litigation.

You also raise a good point about the need to be careful about calling for application of a foreign law. It is generally not a good idea to call for US law to apply with the Chinese courts as the selected forum, and vice versa. About all you are doing there is confusing just about everyone....

What you are proposing IS a litigation carve out. I do not know why Chinese courts do not like injunctive relief carve outs. Good question.

I will.....

WRONG. We are not really translating anything. We are writing the contracts strictly in Chinese and then providing an English language version strictly for our own clients. For purposes of China, there has never been a translation. All China knows is that there is a Chinese language agreement, just like any other Chinese language agreement. The Chinese language agreement makes no mention of the English language translation we gave to our client and that English language translation is completely irrelevant legally.

In common law, injunctive relief and damages occur under two different legal systems, and so when you go to a court, you have to specify which one you want.

In Chinese law, the court can offer either injunctive or monetary damages after it has been established that there has been an injury. So you have a chicken and egg situation. You want to send the case to a Chinese court instead of an arbitration panel to get an injunction, but you really don't know if you are entitled to an injunction until after you've gone through the arbitration panel.

So you go to the court asking for an injunction. The counterparty can then say, well I think we do ow them something, but we'll pay damages, and which point the Chinese judge will send the case to arbitration.

This illustrates the land mines in legal translation. Even the term "injunctive relief" or even "law" is hard to translate sometimes.

According to my handy dictionary:
injunctive relief=强制令救济
(That's also the only translation given for the term)
law, however has 5 that I would translate as such, and another that I would translate differently. The 5 are (法，律，法律，法则，法度). The one I would do differently is 国法。

Source:
英汉－汉英双向法律词典
主编：程超凡
出版社：法律出版社

Cheers!

What you said about certified translation is actually a situation when a Chinese has to show a translated document to US agencies such as visa office or DMV in order to apply for visa or driver's license.

The contract is initiated in Chinese. So no translation involved at all. English version is only for internal reference.

So: have Chinese contracts. AND have Chinese patents.