Dear Mark,

 

Re:     Written Submissions

 

Since the hearing of 14 February 2001, we have prepared the Written Submissions in Chinese.  I now enclose a copy of the Written Submissions (in Chinese) and I set out below the main points of the submissions for your consideration:-

 

 

1.               On or about [20 August 1999]

 

2.               On or about []

 

3.               …

 

 

 

 

 

1.             It is apparent from the true intent of the parties and the contents of the Letter of Commitment that the nature of the Letter of Commitment is a contract for providing intermediary services and accordingly, the Plaintiff had to provide intermediary services.

 

 

Clause 1 of the Letter of Commitment expressly provided […]

 

The above Clause was the crux of the Letter of Commitment and determined the nature of the contract, laid down its purpose and set out the duties and obligations of the Plaintiff.  According to Article 125 of Contract Law, the true meaning expressed by a contract shall be “ascertained and determined by the words and expressions used in the contract, the related provisions, the trade practices and the principle of good faith.”

 

As apparent from the above Clause, the duties and obligations of the plaintiff were [……..]  According to Article 424 of Contract Law, a contract for the provision of intermediary services is a contract whereby the intermediary will report to the principal on opportunities for the conclusion of contracts or will provide intermediary services for the conclusion of contracts.  In other words, the purpose and features of a contract for the provision of intermediary services are that an intermediary is to report on opportunities for the conclusion of contracts or provide intermediary services leading to the conclusion of contracts with a third party.  In light of the definition of a contract for the provision of intermediary services laid down in Contract Law and the purpose and features of the Letter of Commitment, the Letter of Commitment is clearly a contract for the provision of intermediary services.

 

 

It is apparent from the above analysis that the true intent of the parties was that the Plaintiff was to provide intermediary services.  This is also reflected by the matters pleaded in the Statement of Claim.  […]

 

Although there is an issue between the parties as to whether the Plaintiff has fulfilled his duties and obligations, it is common ground between the parties that there was in existence a contract for the provision of intermediary services.  It was not until after the submission of the Defence that the Plaintiff’s lawyers discovered that the contract for the provision of intermediary services contained in the Letter of Commitment had contravened the Tender Law and the Plaintiff had never provided the intermediary services contracted for and thus could not adduce evidence to substantiate his case.  As a result, the Plaintiff attempted to change his case completely and alleged that the Letter of Commitment was a contract for the provision of consultancy services and not intermediary services.  We strongly object to the Plaintiff changing his case for the following reasons:-

 

(i)                                    the evidence adduced by both parties focuses on the issue of the contractual relationship for the provision of intermediary services detailed in the Letter of Commitment and pleaded in the Statement of Claim which was an expression of intention at the relevant time and should not be altered without sufficient cause;

 

(ii)                                  the phrase “consultancy services” used in the Letter of Commitment could not alter the nature of the contract which is determined with reference to the words and expressions used in the contract, the related provisions, the trade practices and the principle of good faith explained above.

 

2.             The lawful provision of intermediary services leading to the conclusion of contracts are conditions to be fulfilled prior to payment of remuneration.

 

Article 424 of Contract Law provides that “a contract for the provision of intermediary services is a contract under which the intermediary reports to the client on opportunities for the conclusion of contracts or provides intermediary services for the conclusion of the contracts, and the client pays remuneration to the intermediary.”  Article 426 of Contract Law further provides that “a principal shall pay remuneration to the intermediary in accordance with the provisions of the contract upon the intermediary procuring the conclusion of contracts”.  By reason of the above stipulations, the services to be provided by an intermediary are the reporting to the principal on opportunities for the conclusion of contracts or the provision of intermediary services for the conclusion of contracts.  It is only upon the fulfillment of the above duties and obligations leading to the conclusion of contracts that the intermediary will become entitled to remuneration.

 

In other words, the intermediary shall, in accordance with the above stipulations, provide the following intermediary services:-

 

 

 

[]

 

 

 

 

[]

 

 

    As regards the evidence adduced by the Plaintiff, we further submit that:-

 

(i)                                    [];

 

(ii)                                  [];

 

(iii)                                [].

 

At any rate, the services provided above do not amount to services within the ambit of a contract for the provision of intermediary services and could at best amount to consultancy services, being services agreed to be rendered pursuant to the Letter of Appointment.  Under these circumstances, the Plaintiff failed to render the services required under the Letter of Commitment and would not be entitled to seek payment of remuneration from the Defendant 

 

 

 

As discussed this afternoon, the PRC Court verbally pressed for the early submission of the Written Submissions.  Accordingly, I should be obliged if you could please go through this letter carefully and let me know if any amendments should be made to the Written Submissions hopefully by tomorrow so that they can be lodged with the PRC Court on 21 February 2001.  I much regret for the urgency but the request of the PRC Court is somewhat unexpected. 

 

Kind regards,

 

Yours sincerely,