tegwick
11f2dc3a6d
Executes all remaining shared jurisdictions across both workplans: Germany/EU (deepened contract-law angle), US (deepened), UK (deepened), Argentina, India, China, Africa (South Africa + OHADA), and Asia-Pacific (Singapore, Japan, Australia) - 13 new history/ research artifacts. Highest-priority findings: - Australia's Unfair Contract Terms regime (expanded Nov 2023) covers standard-form contracts with any business under 100 employees/$10M turnover by default - the CUA is exactly such a contract, and most realistic Customers fall within this threshold. Unlike every other jurisdiction's consumer carve-out, this is not an edge case. - China requires a "foreign-related" contract even to select foreign governing law, subject to a vague public-interest override even then - confirms a dedicated China rider is needed for both the License/CUA and the Enforcement Partner Agreement, not a shared global clause. - India flatly prohibits advocate contingency fees (no exception gates, stricter than Germany) while explicitly permitting third-party litigation funding - the cleanest confirmation yet that the Litigation Funder/Local Counsel split-role model is both necessary and legal there. - Japan's Article 12 fee-splitting rule means even the split-role fallback needs jurisdiction-specific structuring - the first case where the workaround itself, not just the original mechanism, has an open compliance question. - Contingency Share ceilings vary widely where available: UK 50% (exact match), South Africa 25%, Argentina 35% (50% only with risk assumption), China 18% down to 6% on a sliding scale that shrinks as claims grow. - Recurring cross-jurisdictional pattern (Germany, EU, US via CCPA, Argentina): B2B governing-law/liability clauses are respected, but an individual/sole-proprietor Customer's consumer-protection status is the operative risk everywhere, not a one-off edge case. Updates specs/EnforcementNetworkConcept.md §8.1 with a full 12-jurisdiction findings table and three cross-cutting conclusions. Updates both V1C1 documents' Appendix A items (governing law, liability cap, data protection) with the most consequential findings. Both workplans now have only their human-gated synthesis tasks (T09-T10 / T10) remaining. Co-Authored-By: Claude Sonnet 5 <noreply@anthropic.com>
4.8 KiB
TRSL Jurisdiction Research: China
Document status: Research artifact, Stage 0 (workplans/TREV-WP-0004-global-jurisdiction-research.md T06)
Not legal advice. Findings drawn from web research (searched 2026-07-29).
1. Foreign governing law is only available for "foreign-related" contracts, and is discretionarily overridable
Confirmed as a hard constraint, not a drafting nicety: under PRC law, parties may only choose a foreign governing law if their contract is legally "foreign-related" (涉外); a domestic Chinese contract cannot opt into foreign law regardless of what the parties write. Even where a foreign law is validly chosen, PRC law will displace it if applying the foreign law would "offend PRC's public interest" — a term research describes as vague and under-defined, meaning any governing-law selection is potentially subject to override on a ground that is hard to predict in advance. Practical guidance found in this pass recommends, for contracts intended to be enforced in China, specifying a Chinese court and Chinese governing law directly, since contracts drafted in English or under foreign law face "substantial hurdles" and courts equipped for their own legal system tend to produce less favorable outcomes for the foreign party when foreign elements are introduced.
Direct implication: this confirms the recommendation already anticipated in workplans/TREV-WP-0004-global-jurisdiction-research.md T06's original task description — China very likely needs its own governing-law/venue addendum, not the same clause used elsewhere. A single global governing-law clause (whatever License Appendix A item 6 / CUA Appendix A item 1 eventually settles on) should not be assumed to apply to Chinese Customers; the realistic path is a China-specific rider naming Chinese law and a Chinese venue, consistent with the pattern already emerging for the Enforcement Partner Agreement (history/260729-TREN-Jurisdiction-China.md §3).
2. PIPL cross-border data transfer: three mandatory pathways, no informal option
China's Personal Information Protection Law (PIPL) Article 38 requires any of three specific compliance pathways before personal information may leave China: (1) a CAC-organized security assessment (for higher-risk transfers), (2) certification by a professional institution under a framework finalized as recently as October 2025 (effective January 2026), or (3) a CAC-standard-format contract with the overseas recipient, filed with the provincial CAC after a self-assessment. Regardless of pathway, the transferring entity must separately notify affected individuals, obtain separate consent specifically for the cross-border transfer, and conduct a personal information protection impact assessment.
Direct implication: this is categorically stricter than every other data-protection regime found in this research program (GDPR, UK GDPR, Argentina's PDPL, India's permissive "negative list" DPDPA). CUA §11's eventual Data Processing Addendum cannot use a single shared clause for a Chinese Customer — PIPL requires its own dedicated compliance pathway (most likely the standard-contract route for an ordinary commercial relationship, given the security-assessment route is reserved for higher-risk/high-volume transfers), separate consent language, and a mandatory impact assessment with no informal alternative.
3. Summary for the WP-0004 feasibility matrix (T10)
| Question | China |
|---|---|
| Foreign governing law/venue enforceable? | Only for "foreign-related" contracts, and even then subject to a vague "public interest" override — practical guidance recommends Chinese law/venue directly for contracts meant to be enforced there |
| Liability cap / indemnification enforceability | Not researched in this pass — flag as open |
| Data protection regime | PIPL — three mandatory pathways (security assessment, certification, or standard contract), separate consent required, no informal option; strictest regime found in this program |
| Recommended structure | Dedicated China-specific governing-law/venue rider and a dedicated PIPL-compliant Data Processing Addendum, not shared clauses |
4. Open items for T10 synthesis
- Liability-cap and indemnification enforceability under Chinese contract law were not researched in this pass — needed before a China rider can be drafted.
- Confirm which of PIPL's three transfer pathways best fits an ordinary CUA data relationship (likely the standard-contract route) with a dedicated follow-up pass before drafting the addendum.
- This is now the second jurisdiction (after Germany for TREN) where this research program's default assumption — one shared clause can serve most jurisdictions — clearly breaks down. T10's synthesis should treat "which jurisdictions need a dedicated rider vs. a shared clause" as a first-class output, not an afterthought.