Bypassed by a Chinese Company: Can an Overseas Broker Recover Unpaid Commission?

Start with the engagement, not the underlying sales invoice

This article concerns overseas businesses and individuals introducing commercial opportunities to Mainland Chinese companies, assuming the relevant PRC rules govern. Check the intermediary agreement’s governing law and forum separately. A sales contract between the introduced parties does not automatically bind a broker who never joined it. Hong Kong, Macao and foreign proceedings require separate analysis.

Under Civil Code Article 961, brokerage concerns reporting a contracting opportunity or providing intermediary services for remuneration. A distributor buying and reselling goods, an agent authorised to contract, a consultant and an employee paid sales incentives may have different claims. Article 15 of the SPC Contract Book interpretation directs courts to assess the actual agreement and performance, rather than its label. This guide does not resolve employment incentives or sector-specific licensing issues.

Four links your claim must establish

Build a transaction-specific claim using these four questions. Any urgent deadline takes priority over this preparation sequence.

• Engagement: Which legal entity requested or accepted your services and agreed to pay? Identify the person communicating and their authority.
• Opportunity: What customer, project, product or negotiation did you introduce, and when? Distinguish new information from an existing independent channel.
• Use and conclusion: How did your services connect to the contract eventually concluded? Sequence alone does not establish that connection.
• Fee and maturity: What amount or formula applies, which event makes payment due, and what has already been paid or deducted?

Direct contracting does not necessarily eliminate the fee

Article 963 requires the client to pay the agreed remuneration when the broker brings about the conclusion of a contract. Article 965 addresses a client who accepts intermediary services, uses the supplied opportunity or services and bypasses the broker to contract directly. Your absence from final signing is therefore not, by itself, a complete answer to a fee claim.

The evidential issue remains substantial: can you show that the actual transaction used your introduction? The company may point to an earlier independent relationship, a different project or another source. A transaction signed through an affiliate also requires analysis of each entity’s role; common ownership alone does not make every group company liable.

Neither Article 965 nor the word 'non-circumvention' automatically gives you commission on all later business with the customer. First orders, repeat orders, renewals and separate projects need to be matched to the agreed customer, product, territory, duration and fee coverage. Do not calculate a claim from speculative lifetime sales.

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An unsigned agreement is a proof problem, not always the end of the claim

Article 469 permits written, oral and other contract forms; retrievable data messages that tangibly record their contents can qualify as writing. Full email exchanges, messaging records, accepted rate proposals and prior settlements may establish an agreement. They must still establish the participants, authority and assent. Your invoice or unaccepted proposal alone does not prove the company accepted your rate.

Article 963 provides a reasonable-remuneration route by reference to the broker’s work where the amount remains uncertain after applying Article 510. It also contains a rule sharing remuneration between the contracting parties where intermediary services brought about their contract. Apply those provisions with the actual engagement and agreed allocation; they are not a licence to charge an unrelated third party or apply your usual percentage without evidence.

Under Article 964, failure to bring about a contract generally prevents a brokerage remuneration claim, although agreed necessary expenses may be recoverable. Genuinely separate ongoing services should be assessed under their own terms. Renaming an unsuccessful introduction as 'consultancy' does not itself establish a debt.

Build the evidence around what each document proves

A spreadsheet of commissions is useful only if each row can be connected to its underlying evidence. Mark unknown figures explicitly.

• Who owes: engagement documents, complete instructions, company details, account identity and authority records.
• What you supplied: the first introduction, dated customer requirements, meeting invitations, quotation history and negotiation work.
• What resulted: contracts, orders, shipment or settlement records and admissions linking the concluded transaction to your services.
• What is payable: the agreed rate and base, currency, taxes or deductions, payment trigger, earlier payments and balance.
• Whether recovery is practical: delivered demands, debt acknowledgments, settlement proposals, proceedings and lawfully obtained asset information.

When the Chinese company holds the order records

PRC civil proceedings do not offer an automatic entitlement to unrestricted disclosure of every customer and sales record. Civil Procedure Law Articles 67–68 place proof and timely submission obligations on the parties. Where evidence cannot be collected for objective reasons, a court investigation request may be available. Identify the document, holder, issue it proves and reason you cannot obtain it; the court assesses the request.

Preserve native files and complete communications already lawfully available to you, including order identifiers. Tell counsel where missing records are held and whether they risk destruction, so that evidence collection or preservation can be assessed. A continuing commercial relationship alone does not establish commission on each order. Unauthorised access to business accounts is not an acceptable substitute for lawful evidence gathering.

Payment triggers and limitation run on different questions

If the relevant PRC limitation rules apply and no special provision displaces them, Article 188 generally provides three years from actual or constructive knowledge of the infringement and obligor. The fee’s due date and any genuine settlement condition matter. Article 594’s four-year period applies to international sales-of-goods and technology import/export contract disputes; a separate brokerage fee does not automatically qualify because the underlying deal was an export.

Article 195 recognises interruption through events including a performance demand, agreement to perform, litigation or arbitration. Preserve the demand’s addressee, contents, delivery and date. Informal conversations or internal chasing notes should not be assumed to protect limitation. Waiting for a complete sales ledger can put an already mature claim at risk.

For urgent pre-action asset preservation, assess the statutory conditions, security and potential liability for a mistaken application. Article 104 of the Civil Procedure Law requires lawful commencement of litigation or arbitration within 30 days after the court takes the measures, otherwise preservation is lifted. That clock is separate from the commission payment date and limitation period.

Choose the next step against the strongest defence

Expect objections about authority, a gratuitous introduction, a pre-existing customer, lack of causation, an unmet receipt-of-payment condition, excluded repeat orders, settlement or limitation. Article 962 also denies remuneration and provides for damages where the intermediary intentionally conceals important contracting facts or gives false information, harming the client. Give counsel the adverse records as well as the helpful ones.

A targeted demand can seek confirmation of specific transactions, the calculation and payment date. A settlement should fix the obligor, balance, instalments and default consequences. Before litigation or arbitration, compare provable recovery with evidence gaps, translation and procedural costs, assets and enforcement. A demand letter or successful decision does not guarantee receipt.

Obtain prompt advice if records may disappear, assets are being moved, the company is closing, a release of all future commission is proposed, several introducers claim the fee or limitation is close. For initial screening, send the party names, amount and currency, a short chronology, fee agreement, introduction evidence and latest response. Urgent deadlines come before completing a perfect document bundle.