You want to sue your Chinese supplier: arbitration or the courts?

The case, in five lines

What is brought

Choosing the forum and bringing proceedings there: a claim before the sección civil del Tribunal de Instancia (the civil section of the court of first instance), a request for arbitration before the agreed institution (CIETAC, the China International Economic and Trade Arbitration Commission, or another) or a claim in China; with interim measures over the supplier's assets; and, once the case is won, recognition and enforcement in China under the 1992 Treaty (judgment) or the New York Convention (foreign award).

Before which court

With a submission to the Spanish courts, or without a clause if the obligation was to be performed here, the sección civil del Tribunal de Instancia (the civil section of the court of first instance; art. 25 of the Brussels I bis Regulation; arts. 22 bis and 22 quinquies of the LOPJ, Spain's Organic Law of the Judiciary). With an arbitration agreement, the arbitral tribunal of the agreed institution. To enforce in China, the Intermediate People's Court with jurisdiction under Chinese procedural law (art. 18 of the Treaty); for an award made outside China, the court of the debtor's domicile or of the place where its assets are (art. 88 of China's Arbitration Law). In Spain, a foreign award is recognised by the Sala de lo Civil y Penal del Tribunal Superior de Justicia (the Civil and Criminal Chamber of the regional High Court of Justice) and enforced by the civil section of the Tribunal de Instancia.

Deadline

To bring the claim, four years if Chinese law governs (art. 594 of the Chinese Civil Code) and five if Spanish law governs (art. 1964(2) of the Spanish Civil Code). A request to negotiate interrupts the limitation period and, with no reply or no agreement, it serves as the prerequisite for suing for one year from the date the supplier received it or from the date the negotiation ended without agreement (Organic Law 1/2025, art. 7). Service in China takes about six months. After interim measures sought before the claim, the claim must be filed within twenty days (art. 730(2) of the Ley de Enjuiciamiento Civil, Spain's Civil Procedure Act), a period that is suspended while the prior negotiation lasts or, if the measures were granted during it, runs from the date it ends without agreement (art. 7(3) of Organic Law 1/2025). Setting aside an award made in Spain: two months (art. 41(4) of Arbitration Act 60/2003); one made in China, three months and only there. Opposing in Spain the exequatur of a Chinese judgment: thirty days (art. 54 of Law 29/2015).

Who can bring it

The buying company that signed the order, against the seller named in it, whether the factory, a trading company or a Hong Kong company. In Spain it acts through a lawyer and a procurador (court representative). Before the Chinese courts, a lawyer qualified in China acts, whom we coordinate from Spain with our partners there.

Financial risk

Winning before a court that lacked jurisdiction under the Treaty, or by default after service that was not properly made, leads China to refuse its recognition and enforcement (arts. 21 and 22 of the Treaty). An arbitration agreement that names no institution is void in China unless it is completed by a supplementary agreement, except in foreign-related disputes that are maritime or between companies in free trade zones (art. 82 of its Arbitration Law). And even with a valid enforceable title, collecting depends on the supplier having assets that can be traced: nobody can promise you that you will recover the money.

Before choosing where to sue, think about where you will collect

Your Chinese supplier has its accounts, its factories and its customers in China. A Spanish judgment that cannot be enforced there is useful, at most, for attaching whatever it has in Spain, which is usually little or nothing. That is why the forum is chosen backwards: first you look at where the assets are and which titles the courts of that place recognise, and only then at where to litigate. There are three routes: the Spanish courts, arbitration (seated in China, in Hong Kong, in Madrid or in another country) and the Chinese courts. Each has its own jurisdiction rule, its own way of serving documents and its own enforcement route.

What nobody tells you is that there is in fact a treaty between Spain and China. The Treaty on judicial assistance in civil and commercial matters, signed in Beijing on 2 May 1992 and in force since 1 January 1994, obliges each country to recognise and enforce the other's civil and commercial judgments, except those on bankruptcy and insolvency and on nuclear damage (art. 17), so reciprocity does not have to be proved. The application is filed directly by the interested party with the Intermediate People's Court ("Media Instancia" in the Spanish text of the Treaty), which does not review the merits (arts. 18, 19 and 23(2)). The documents need no legalisation (art. 26), come with a translation into Chinese, French or English (art. 20(5)), and a Spanish company cannot be required to give security for costs because it is foreign (art. 1). Since 1 January 2024, Chinese procedural law also refers to the applicable treaty for recognising a foreign judgment.

The Treaty does not recognise just any judgment: the Spanish court must have had jurisdiction under its art. 21, the judgment must be final and the defendant must have been properly summoned if it did not appear (art. 22). And it has to be read with the correction published in the Boletín Oficial del Estado (Spain's Official Gazette) of 11 March 1994, which added the grounds most useful to an importer: a defence on the merits without challenging jurisdiction, and a contract signed, performed or to be performed in Spain (art. 21.I, paragraphs 4 and 5). The merits of your claim, if the goods do not conform or never arrived, are almost always governed by the 1980 Vienna Convention, and we explain them in "Your Chinese supplier delivers magnets or parts that are not as agreed" and in "You paid your Chinese supplier and nothing shipped, or you paid a fake account".

When you can sue it in Spain

The Brussels I bis Regulation confers no jurisdiction over a defendant domiciled in China (art. 6(1)), with one important exception: a clause submitting disputes to the courts of a Member State is valid whatever the parties' domicile (art. 25). Without a clause, the LOPJ (Ley Orgánica del Poder Judicial, Spain's Organic Law of the Judiciary) governs: in contractual matters, the Spanish courts have jurisdiction if the obligation on which the claim is based was or should have been performed in Spain (art. 22 quinquies(a)). If you claim over delivery, what was agreed matters: with an Incoterm that delivers the goods at a Chinese port, the obligation is performed in China and that ground does not help you; with delivery at your warehouse in Spain, it does. The judgments of the Court of Justice of the European Union on the place of delivery, such as Car Trim (C-381/08, 25 February 2010) or Electrosteel (C-87/10, 9 June 2011), only apply against defendants domiciled in the Union.

The Spanish courts also have jurisdiction if the supplier appears without challenging jurisdiction (art. 22 bis(3)). Conversely, if the contract submits disputes to the Chinese courts, the Spanish judge stays the proceedings and only hears the case if those courts decline (art. 22 ter(4)). It is also worth checking that the Spanish ground fits art. 21 of the Treaty, because otherwise the judgment will not be recognised in China: an express written submission fits (paragraph 3), and so does a contract that was to be performed in Spain (paragraph 5). The case is decided by the sección civil del Tribunal de Instancia (the civil section of the court of first instance). The court fee for a legal person is 300 euros in ordinary proceedings and 150 in the juicio verbal (simplified oral proceedings) (Law 10/2012, art. 7(1), following Constitutional Court judgment STC 140/2016).

Before suing in Spain, an appropriate dispute resolution method (medio adecuado de solución de controversias, MASC) must be attempted, also in a cross-border dispute and also against a Chinese company (Organic Law 1/2025, arts. 3(1) and 5(1)). Direct negotiation, or negotiation between lawyers, is enough, provided its subject matter matches that of the claim. What nobody tells you: the request to negotiate interrupts the limitation period from the date on which the attempt to deliver it is recorded, and it may be sent by the electronic means the parties used in their dealings (art. 7(1)), that is, the email address you always used with the supplier. If the first meeting is not held or there is no written reply within thirty calendar days, time starts running again, and the attempted negotiation remains valid as the prerequisite for suing for one year from the date the supplier received the request or from the date it ended without agreement (art. 7(3)). It is not needed to seek interim measures before the claim, preliminary disclosure (diligencias preliminares) or an enforcement claim (art. 5(3)), nor for arbitration.

Service in China: about six months and no shortcuts

China is a party to the 1965 Hague Service Convention and, for its mainland territory, objects to the direct channels in its art. 10. A burofax (certified letter) or a courier is not valid service, and email is not a channel under the Convention. The request is made by the Spanish central authority (art. 6(1) of the Treaty) and received by China's Ministry of Justice, the only receiving authority, and the Hague Conference's official practical information for China estimates around six months to execute it. Hong Kong and Macao have their own declarations, which must be checked if the seller is a company from there.

The 1992 Treaty makes it simpler and cheaper: the request uses the Hague Convention form, in duplicate, with a translation into Chinese, French or English (art. 6(2)), and service is free of charge (art. 9). If at least six months after dispatch no certificate has arrived despite reasonable efforts, the Spanish judge may give judgment, because Spain made the declaration under art. 15(2) of the Convention, as did China.

That shortcut has a price nobody tells you about: in China, a judgment given against a party that was not properly summoned and did not appear is not recognised (art. 22(4) of the Treaty), and Chinese procedural law also refuses recognition when the defendant was not lawfully summoned or had no reasonable opportunity to defend itself. A default judgment without a certificate may work for you in Spain and be useless in China. That is why the claim is prepared with enforcement in mind: a careful translation, the supplier's exact registered name and address, which our partners in China check, and follow-up of the request until the certificate comes back.

Arbitration: CIETAC, Hong Kong or Madrid

Arbitration does not go through the prior negotiation required by Organic Law 1/2025 or through court service in China, and its award travels better than a judgment: the 1958 New York Convention has 172 States parties. China applies it only to awards made in another contracting State and in commercial matters; Spain applies it without reservations, and the 1992 Treaty refers to it (art. 24(2)). An award made outside China is enforced through an application to the Intermediate People's Court of the debtor's domicile or of the place where its assets are (art. 88 of China's Arbitration Law). What nobody tells you: in cases with a foreign element, a Chinese court that wishes to refuse recognition or declare the arbitration agreement void cannot do so alone; it must refer the matter up the court hierarchy and can only decide with the approval of the Supreme People's Court, a prior-reporting system in force since 1 January 2018.

With a seat in China, the Arbitration Law revised on 12 September 2025, in force since 1 March 2026, requires the agreement to designate the institution; if it names none, or names one ambiguously, and there is no supplementary agreement, it is void (arts. 27 and 29). Ad hoc arbitration (without an institution) seated in China is only possible in maritime matters and between companies in free trade zones (art. 82), and the seat is agreed in writing (art. 81). In exchange, the people's court may order the preservation of assets and evidence and order the factory to do or refrain from doing something, even before the arbitration in urgent cases (arts. 39 and 58), and the 2024 CIETAC Rules allow the arbitral tribunal itself to grant interim measures (art. 23(3)). That award can only be set aside in China, within three months (art. 72); in Spain it is recognised by the Sala de lo Civil y Penal del Tribunal Superior de Justicia (the Civil and Criminal Chamber of the regional High Court of Justice) under the New York Convention (arts. 8(6) and 46 of Arbitration Act 60/2003), and it cannot be set aside here.

Hong Kong offers something Madrid does not have today: under the Arrangement of 2 April 2019 between the Supreme People's Court and Hong Kong, in force since 1 October 2019, a party to an arbitration seated in Hong Kong before a listed institution may apply, before the award, for interim measures to the Intermediate People's Court of the supplier's domicile, of its assets or of the evidence; if it applies before the arbitration is accepted, the measures are lifted if the acceptance certificate does not arrive within thirty days. For an arbitration seated in Madrid, China's Arbitration Law provides no equivalent express route. On the other hand, with a Madrid seat Arbitration Act 60/2003 applies: the award can only be set aside by the High Court of Justice, within two months (arts. 8(5) and 41(4)), through an external review that does not reopen the merits (Constitutional Court judgment STC 46/2020, of 15 June) and without stretching public policy unreasonably (STC 50/2022, of 4 April), and it is enforced in China under the New York Convention. Whatever the seat, a Spanish court may grant interim measures over what the supplier holds in Spain (art. 11(3) of Arbitration Act 60/2003 and art. 722 of the Civil Procedure Act).

If the contract has no clause, or a badly drafted one

The most common situation is supplier standard terms with a bare "arbitration in China". In China that agreement is void because it names no institution, unless there is a supplementary agreement (arts. 27 and 29 of China's Arbitration Law). In Spain it may not be: in an international arbitration it is enough for the agreement to comply with the law chosen for it, the law governing the merits or Spanish law (art. 9(6) of Arbitration Act 60/2003), and Spanish law does not require an institution to be named (art. 9(1)). The result is awkward: if you sue in Spain, the supplier may raise the agreement through a declinatoria (jurisdictional objection) within the first ten days of the time to answer (art. 11(1)), and if you seek arbitration in China, the agreement is of no use to you. The way out is a supplementary agreement naming the institution and the seat, or agreeing now, once the dispute has arisen, an express written submission to a forum.

Without a clause, you have three options. Sue in Spain, if the obligation claimed was to be performed here or if the supplier accepts the forum. Propose arbitration once the dispute has arisen: the agreement may cover disputes that have already arisen (art. 9(1)) and must be in writing, with email or any means that leaves a record being sufficient (art. 9(3)). Or sue in China, at the supplier's domicile, where nothing needs to be recognised afterwards; there the Spanish company enjoys the same judicial protection as a Chinese one and gives no security for costs because it is foreign (art. 1 of the Treaty), and it acts through a lawyer qualified in China, whom we coordinate from Spain with our partners there.

Without a governing law clause, the Spanish judge applies the Vienna Convention and, for what it does not govern, the seller's law, that is, Chinese law (Rome I Regulation, art. 4(1)(a)); a Chinese court or arbitrator will apply its own conflict rules. That changes the clock: Chinese law gives four years to sue or start arbitration over an international sale (art. 594 of its Civil Code); Spanish law gives five, interruptible by an out-of-court claim (arts. 1964(2) and 1973 of the Spanish Civil Code). And if it is the supplier that wins in China, in Spain its judgment goes through the Treaty and only subsidiarily through Law 29/2015: you have thirty days to oppose it, with a lawyer and a procurador (art. 54), on the grounds in art. 22 of the Treaty, such as defective service or the Chinese court's lack of jurisdiction under its art. 21.

Evidence and assets are sought in China, before paying the balance

No forum can rescue a case without evidence. The firm works with partners with offices in China and with expert engineers in Spain and in China, who inspect the goods and their specifications at origin before shipment, on arrival and, if a claim has to be made, as the basis of the expert evidence. That inspection fits the Vienna Convention, which requires the buyer to examine the goods, or cause them to be examined, within as short a period as is practicable and allows this to be deferred until arrival where the goods are carried (art. 38). In a trial in Spain, the expert report is signed by an expert holding the relevant official qualification, under an oath of objectivity, and is filed with the claim (arts. 335, 336 and 340 of the Civil Procedure Act); the reports, photographs, samples and tests carried out in China are its basis, not a substitute for it. In an arbitration seated in China, the arbitral tribunal may order an expert appraisal (art. 56 of China's Arbitration Law).

Assets are also sought in advance. If the supplier holds goods in storage in Spain, a warehouse or receivables from Spanish customers, a preventive attachment (embargo preventivo) may be sought before the claim, by alleging and proving urgency, with security and without any need to negotiate first (art. 5(3) of Organic Law 1/2025). The claim itself does require a prior attempt to negotiate and must be filed within twenty days of the order (art. 730(2) of the Civil Procedure Act); that period is suspended while the negotiation lasts and, if the measure was granted with the negotiation already under way, it runs from the date the negotiation ends without agreement (art. 7(3) of Organic Law 1/2025). The twenty days do not apply in institutional arbitration, where it is enough to set the arbitration in motion (art. 730(3)). In China, with an arbitration seated in China or in Hong Kong, preservation is sought there. And if the case is won, our partners in China help trace the debtor's assets for enforcement, although nobody can guarantee that they exist or that they will be collected. And enforcement is best sought without delay: the enforceable title should not be left sitting in a drawer.

The best leverage, however, lies before the dispute: the balance you have not yet paid. Agreeing that the balance is paid against the origin inspection report gives you evidence produced in China and leverage that no court will give you later. The clause that would have prevented almost all of this states which law governs and whether the Convention applies; which institution administers the arbitration and what the seat is, in writing; the language and the number of arbitrators; or, if you prefer the Spanish courts, an express written submission, which fits art. 21 of the Treaty; the email address for notices and negotiation; and the inspection at origin with access to the factory. If you also leave moulds or tooling at the factory, we deal with that in "The Chinese factory is holding your moulds or using them for others".

How we run the case, step by step

1. 1

   Read the clause and choose the forum working back from enforcement

   With the order, the standard terms and the correspondence, we identify the governing law, the forum or the arbitration agreement and its validity in Spain and in China, and decide where to litigate according to where the supplier has assets and which titles are recognised there.

2. 2

   Secure the evidence in China and in Spain

   We coordinate our partners with offices in China and our expert engineers in Spain and in China: inspection of the goods and their specifications, preservation of samples and, if a claim is needed, the expert report signed by an expert with the relevant official qualification.

3. 3

   Request to negotiate with a defined subject matter

   A letter to the supplier through the email used in the relationship and by courier with proof of delivery: what is claimed, how much and why. It interrupts limitation and meets the Organic Law 1/2025 requirement if the claim is later brought in Spain; before an arbitration it serves as a formal demand.

4. 4

   Interim measures where the assets are

   If there are assets in Spain, a preventive attachment before the Spanish court, also in support of an arbitration abroad. If the arbitration is seated in China or Hong Kong, preservation of assets or evidence before the people's court, which we coordinate with our partners in China.

5. 5

   Claim or request for arbitration

   A claim before the civil section of the Tribunal de Instancia, with a lawyer and a procurador, and service through the central authority with a translation into Chinese, English or French; or a request for arbitration before the agreed institution. If the forum is Chinese, the claim is filed there by a lawyer qualified in China, coordinated by the firm.

6. 6

   Recognise and enforce where the assets are

   With the final judgment or the award, an application to the competent Intermediate People's Court (for an award made outside China, the court of the debtor's domicile or of the place of its assets), with the documents required by art. 20 of the Treaty or by the New York Convention, through a lawyer qualified in China; our partners there help trace the assets.

The law that applies

• Arts. 22 bis, 22 ter y 22 quinquies de la LOPJ. The Spanish courts have jurisdiction if the parties expressly submitted to them, in writing or by a durable electronic record, or if the defendant appears without challenging jurisdiction. Without a submission, in contractual matters they have jurisdiction when the obligation on which the claim is based was or must be performed in Spain, even if the defendant is not domiciled here. A choice-of-court agreement in favour of a foreign court requires a stay, unless that court declines. BOE-A-1985-12666
• Arts. 1, 6, 9 y 17 a 26 del Tratado entre España y China sobre asistencia judicial en materia civil y mercantil (1992). Equal judicial protection and no security for costs for being foreign. Service between central authorities on the Hague Convention form, with a translation into the language of the requested State, French or English, free of charge. Civil and commercial judgments are recognised and enforced on direct application by the interested party, without review of the merits, if the court of origin had jurisdiction under art. 21 (as corrected on 11 March 1994), they are final and the defendant was properly summoned; no legalisation. Awards, under the New York Convention. BOE-A-1994-2077
• Arts. 1, 8, 9, 11, 41 y 46 de la Ley 60/2003, de Arbitraje. It applies to arbitrations seated in Spain and, in part, even if the seat is abroad. An international agreement is valid if it complies with the law chosen for it, the law governing the merits or Spanish law, and must be in writing, electronic means included. It is invoked by a jurisdictional objection within the first ten days of the time to answer and does not prevent court interim measures. An award made in Spain is set aside on limited grounds within two months; a foreign award is recognised by the Civil and Criminal Chamber of the regional High Court of Justice under the New York Convention. BOE-A-2003-23646
• Arts. 2, 52 y 54 de la Ley 29/2015, de cooperación jurídica internacional en materia civil. Treaties and European Union rules prevail, and the Act applies only subsidiarily. Exequatur is sought before the civil court of the domicile of the party against whom it is requested, today the civil section of the Tribunal de Instancia, with a lawyer and a procurador, and the respondent has thirty days to oppose it. BOE-A-2015-8564
• Arts. 722, 724, 727 y 730 de la Ley de Enjuiciamiento Civil. They allow interim measures, such as a preventive attachment, to be sought from a Spanish court in support of an arbitration or of proceedings abroad, before the court of the place where the award is to be enforced or, failing that, where the measure is to take effect. Before the claim they are sought on grounds of urgency or necessity and lapse if the claim is not filed within twenty days, a time limit that does not apply in institutional arbitration and is suspended while the prior negotiation lasts (art. 7.3 of Organic Law 1/2025). BOE-A-2000-323
• Arts. 335, 336 y 340 de la Ley de Enjuiciamiento Civil. A party's expert report is filed with the claim or the defence, under an oath of objectivity, and is signed by an expert holding the official qualification relevant to the subject and with recognised expertise in it. BOE-A-2000-323
• Arts. 3, 5 y 7 de la Ley Orgánica 1/2025. Before bringing a civil claim, an appropriate dispute resolution method must be attempted, also in cross-border disputes; direct negotiation or negotiation between lawyers is enough. It is not required for an enforcement claim, interim measures before the claim or preliminary inquiries. The request interrupts limitation or suspends time bars, and, with no reply or no agreement, the attempt counts as the prerequisite for suing for one year from receipt of the request or from the end of the negotiation. BOE-A-2025-76
• Arts. 1964.2 y 1973 del Código Civil. If the law of the contract is Spanish, personal actions without a special period are time-barred five years after performance could be demanded, and limitation is interrupted by a claim in court, by an out-of-court claim and by acknowledgement of the debt. BOE-A-1889-4763

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

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