Contracting in China: Comparative Observations on Freedom of Contract, Contract Formation, Battle of Forms and Standard Form Contracts

Nicole Kornet


Trade between the EU and China has increased dramatically. 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 the Chinese Contract Law of 1999 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.



Cite as: Nicole Kornet, Contracting in China: Comparative Observations on Freedom of Contract, Contract Formation, Battle of Forms and Standard Form Contracts, vol 14.1 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (May 2010), <http://www.ejcl.org/141/art141-1.pdf>.

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