Litigation on International Trade：Represented Pakistani MUHAMMAD in winning the lawsuit in China

【案件簡介】2018年，巴基斯坦MUHAMMAD向樓某訂購一批水鉆，雙方約定適用FOB，先付款后發(fā)貨。MUHAMMAD委托第三方支付全部貨款后，樓某卻遲遲不發(fā)貨。經(jīng)多次與樓某溝通無果，MUHAMMAD決定提起訴訟。

In 2018, Pakistan MUHAMMAD ordered a batch of rhinestones from Mr.Lou , the two sides agreed to apply FOB, first payment before delivery. After MUHAMMAD entrusted a third party to pay for the entire payment, Mr.Lou refused to deliver the goods. After repeatedly communicating with Lou to no avail, MUHAMMAD decided to file a lawsuit.

【代理情況】接受MUHAMMAD委托后，我們詳細(xì)了解了案件情況，向MUHAMMAD逐條講解與案件有關(guān)的我國法律和雙邊條約/協(xié)定。我國與巴基斯坦沒有簽訂民商事訴訟案件的司法協(xié)助協(xié)定或條約，也沒有共同加入涉及民商事司法協(xié)助的國際公約，即我國和巴基斯坦法院的生效判決無法在對方國家申請對判決的承認(rèn)和執(zhí)行。從最終實(shí)現(xiàn)債權(quán)的目的，我們建議MUHAMMAD在中國提起訴訟。對于我國涉外案件的審理程序、涉外證據(jù)在我國訴訟中的有效形式也都給予充分的說明，并聯(lián)系巴基斯坦律師協(xié)助準(zhǔn)備MUHAMMAD在巴基斯坦的付款憑證和委托手續(xù)的公證、認(rèn)證材料。

After being entrusted by MUHAMMAD, we went through the case in detail and explained to MUHAMMAD about our laws and bilateral treaties/agreements related to the case, article by article.There is no agreement or treaty between China and Pakistan on mutual legal assistance in civil and commercial litigation cases, nor have we jointly acceded to the international conventions dealing with mutual legal assistance in civil and commercial matters, i.e., the valid judgments of China and Pakistani courts cannot be applied for recognition or enforcement in the other country. For the purpose of ultimate realization of the claim, we recommended MUHAMMAD to file the lawsuit in China. We also gave full explanation on the trial procedure of foreign-related cases and the valid form of foreign-related evidence in Chinese litigation, and contacted Pakistani lawyers to assist in the preparation of notarized and certified documents for MUHAMMAD's payment vouchers and power of attorney procedures in Pakistan.

案件開庭之前，在法官的主持下雙方進(jìn)行了調(diào)解。樓某在調(diào)解中承認(rèn)收到全額貨款以及未發(fā)貨的事實(shí)。因樓某無法給出合理的退款期限和金額，雙方?jīng)]有達(dá)成調(diào)解一致。

Before the case went to trial, the two parties undertook mediation under the auspices of the judge. In the mediation, Mr. Lou acknowledged the fact that he had received the full payment for the goods and had not shipped them. But Lou could not give a reasonable refund period and amount, the parties did not reach a conciliation agreement.

【案件審理一波三折】案件開庭審理中，樓某完全推翻了在調(diào)解中的陳述，否認(rèn)收到貨款，否認(rèn)與MUHAMMAD之間存在國際貨物買賣合同關(guān)系，認(rèn)為是佶鷗飾品公司向MUHAMMAD采購的貨物。我方指出雖然貨款不是MUHAMMAD賬號支付的，但在雙方的微信聊天中，樓某承認(rèn)收到第三方轉(zhuǎn)賬支付的本合同下的全額貨款，結(jié)合調(diào)解過程中樓某的自認(rèn)，充分證明樓某收到全額貨款的事實(shí)。關(guān)于樓某是否是賣方的問題，因與MUHAMMAD簽訂國際貨物買賣合同的是樓某，貨款支付等合同履行過程都是直接與樓某聯(lián)系、確認(rèn)，樓某雖主張是代表佶鷗飾品公司簽署合同，因合同簽署時樓某沒有告知代表行為，我方也不知道佶鷗飾品公司的存在，直至庭審樓某都沒有提供代表佶鷗飾品公司的勞動合同等相關(guān)證據(jù)，故我方的合同相對方就是樓某。即便樓某確是代表佶鷗飾品公司簽訂合同，樓某在微信聊天中承諾退還全部貨款的行為表明樓某自愿加入本案債務(wù)，其仍需要承擔(dān)貨款返還責(zé)任。在我方強(qiáng)有力的證據(jù)面前，樓某愿意就全部貨款返還達(dá)成和解一致。雙方簽署調(diào)解書后，樓某積極履行了返還貨款責(zé)任。我方代理MUHAMMAD取得了完全勝利。

During the trial, Mr. Lou completely disproved his statement in the mediation, denied receiving the payment, denied the existence of an international sale contract with MUHAMMAD, and claimed that the goods were purchased from MUHAMMAD by Yiwu Jiou Import & Export Co., Ltd. We pointed out that although the payment was not made from MUHAMMAD's account, in the WeChat chat between the two parties, Lou acknowledged that he received the full payment from a third party, which, combined with Lou's self-confession during the mediation, fully proved that Lou received the full payment. On the question of whether Mr. Lou was the seller, since Mr. Lou was the one who signed the international sale contract with MUHAMMAD, the payment and other contractual processes were all confirmed directly with Mr. Lou. Although Mr. Lou claimed that he signed the contract on behalf of Yiwu Jiou Import & Export Co., Ltd. Since Mr. Lou did not inform us of the representative behaviour when signing the contract, MUHAMMAD was not aware of the existence of Yiwu Jiou Import & Export Co., Ltd. Until the trial, Mr. Lou did not provide any evidence of the employment contract on behalf of Yiwu Jiou Import & Export Co., Ltd,therefore, the counterparty to our contract is Mr. Lou. Even if Lou signed the contract on behalf of Yiwu Jiou Import & Export Co. Ltd, the fact that Lou promised to return the full payment in the WeChat conversation shows that Lou voluntarily joined the debt,and he is still responsible for the return of the payment. In front of our strong evidence, Lou was willing to reach a agreement on a full refund. After both parties signed the agreement, Mr. Lou actively fulfilled his obligation to return the purchase price. Under our agency, MUHAMMAD achieved a completely victory.

【心得】巴基斯坦伊斯蘭共和國是“一帶一路”沿線重要國家，我們兩國有很多商事往來。商人在商事交往中免不了發(fā)生糾紛。糾紛發(fā)生時，只要商人保持清醒的頭腦，采用合法途徑尋求幫助，就能有效解決糾紛、化解矛盾。本案雙方在訴訟中達(dá)成和解，即節(jié)約了訴訟時間，又讓債務(wù)履行化被動為主動，充分體現(xiàn)了我國糾紛調(diào)解機(jī)制的優(yōu)勢。

Islamic Republic of Pakistan is an important country along the“one belt one road” . Our two countries have many business. Merchants can't avoid disputes in daily business. When disputes occur, as long as businessmen keep a clear mind and seek help through legal channels, they can effectively solve disputes and resolve conflicts. In this case, both parties reached a settlement in the litigation, which not only saved the litigation time, but also turned the debt performance from passive to active, fully reflect the advantages of China's dispute mediation mechanism.