Who are the parties to a contract or litigation?
This is the first issue to consider when asked to help with legal matters. We tend to think it’s obvious—that all one has to do is look at the contract to see who the parties are—but in our experience this is often a problem.
Be especially careful when dealing with overseas companies, unlisted companies, and small and medium-sized companies.
To give a few examples, there was a Japanese company that was supposed to have signed a contract to do business with a Korean corporation, but somewhere along the way, the Korean corporation went bankrupt, and the former representative of the corporation continued the business as a sole proprietor. The Japanese company continued doing business with them without noticing what had happened.
In this case, the governing law and the jurisdiction clause of the contract it concluded with the Korean corporation were both Japanese law, which was advantageous for our client, the Japanese company, but they had to give up on the application of law.
In one case, a company in one country and a company in another country used exactly the same English name, and it was unclear to the Japanese company which one they were dealing with. One representative was a relative of the other representative, and both had virtually the same management and the same sales representatives, but it was difficult to determine which company in which country should be billed.
In addition, there was a dispute regarding an English contract concluded by a company, but despite the fact that the company is a registered Hong Kong company, there was no mention of Hong Kong in the contract, and the preamble said “[Company Name] Holdings, a company administrated in Singapore”. In this case, we did not have any trouble because the Hong Kong company was our client, but if our client had been the other party to the English contract and had asked to file a lawsuit with the above Hong Kong company as the counterparty, we would have had a hard time identifying the other party.
Even Japanese companies sometimes conclude contracts in English where the party name in the contract (e.g., Kuroda Corporation) is different from their commercially registered trade name (e.g., Kuroda Co., Ltd.).
As described above, the names and locations of the parties listed in contracts (particularly English contracts) may not be the official ones.
In addition, another corporation (individual) may use the same name. Since it may not be possible to confirm after a dispute, it is important to thoroughly confirm the registration when starting business dealings and to continuously monitor them.
When drafting a contract, the original spelling of the trade names and addresses should be accurately stated somewhere in the contract so that the parties can be identified, even if the names of the parties are written in English. If the company is a company in Japan, the exact trade name, head office, and executives, including the representative director, can be confirmed by checking the commercial registration.
Also, in some countries and areas, company information can be viewed for free (the URLs are all working at the time of writing this article).
China: Industry and Commerce Bureau of each area (Chinese; free)
Taiwan: Department of Commerce, Ministry of Economic Affairs [經濟部商業司] (Chinese; free)
Hong Kong: Companies Registry [公司註冊處] (Chinese/English; free, but information on executives costs extra)
Japan: Foundation for Civil Legal Association [一般財団法人民事法務協会] (paid)
In addition, if the company is a Japanese company, you can get accurate information from the reports on corporate information obtained from credit bureaus such as Teikoku Databank and Tokyo Shoko Research.
For overseas companies, you can get the Dun Report, a report prepared by Dun & Bradstreet (D&B).