Case review:

a company in Tianjin, the buyer, sent emails to the suppplier,a company in Istanbul , The email was attached with a contract without signature/stamp. both parties did not seal the contract with signature or stamp. The supplier, Istanbul company, then sent goods. But till now the buyer didn’t pay. The dispute arises. In the contract without signature, there is an arbitration clause that disputes shall be submitted to cietac, do you think we as the supplier should go to cietac for arbitration or directly file litigation to local court of the buyer

Analysis:

Under PRC law and CIETAC practice, the key issue is whether the unsigned contract — especially the arbitration clause — can be deemed accepted through performance.

Based on the facts you described, there is a meaningful risk that a Chinese court or CIETAC would find the arbitration clause valid, because:

• the buyer sent the contract by email;
• the supplier received it and performed by shipping goods;
• the transaction was carried out substantially according to that contract;
• there may be supporting evidence such as POs, invoices, packing lists, correspondence, LC drafts, or references to contract numbers.

Under Chinese law, a contract can be formed without signatures/stamps if conduct demonstrates acceptance. The arbitration clause may also become binding if the main contract is considered concluded through performance.

Therefore, if you directly sue in the Tianjin court, the buyer will very likely raise a jurisdiction objection based on the CIETAC arbitration clause.

Possible outcomes if the supplier sue in court:

1. The court accepts initially, then dismisses or transfers after jurisdiction challenge.
2. The court suspends proceedings pending determination of arbitration validity.
3. You lose time and limitation periods become strategically messy.
4. The buyer uses the objection tactically to delay payment.

However, the arbitration clause is not automatically valid merely because goods were shipped. Its enforceability depends on:

• whether the clause was sufficiently clear;
• whether the emails show acceptance of the contract terms;
• whether both parties consistently referred to that contract;
• whether there were later modifications;
• whether the contract version containing the arbitration clause can be proven to have been received.

Important distinction:
Under PRC arbitration law, arbitration agreements require a clear “meeting of minds.” Courts sometimes refuse arbitration clauses in unsigned contracts if evidence of assent is weak.

So your strategic analysis should be:

Situation A — Strong documentary chain

If:

• the supplier replied to the email attaching the contract;
• shipment documents reference the contract number;
• invoices reference the contract;
• there are emails discussing contract clauses;
• no objection was ever raised to the arbitration clause;

then CIETAC is probably safer.

Situation B — Weak documentary chain

If:

• only one-sided emails exist;
• supplier never expressly accepted the contract;
• shipment occurred based on PO/proforma only;
• parties never referenced the arbitration clause;
• contract terms were not consistently followed;

then litigation in Tianjin court may still be viable because you can argue no valid arbitration agreement was formed.

From a practical China litigation strategy perspective, many suppliers in this situation first evaluate:

• whether asset preservation is urgently needed;
• whether arbitration filing speed is acceptable;
• whether foreign-related arbitration costs are proportionate;
• whether they need interim preservation from Chinese courts anyway.

For a foreign supplier, CIETAC often has advantages:

• easier enforcement internationally under the New York Convention;
• judges are less likely to interfere procedurally;
• foreign parties usually receive more neutral treatment;
• English evidence handling is somewhat more standardized.

But disadvantages include:

• higher arbitration fees;
• no easy appeal;
• sometimes slower constitution of tribunal.

A tentative recommendation based on the facts:

• If the documentary evidence strongly links performance to that unsigned contract, filing directly with the local court carries real jurisdictional risk.
• In that case, commencing arbitration at China International Economic and Trade Arbitration Commission is generally safer.
• If the arbitration clause evidence is weak or fragmented, you may strategically initiate court litigation first and see whether the buyer can actually prove a valid arbitration agreement.

A very important procedural point:
Before deciding, Chinese counsel should review:

• the exact wording of the arbitration clause;
• the full email chain headers;
• whether the contract attachment can be authenticated;
• whether the supplier ever replied “accepted” or performed expressly under that contract;
• all references to contract numbers in shipping/payment docs.

Those details often determine jurisdiction in China.

_______________________________________________________

If an additional information on this case was added, the analysis may differentiate.

That additional fact materially strengthens the argument against the validity of the arbitration clause.

If the contract expressly states that it “takes effect after signing and stamping by both parties,” and neither side signed or sealed it, you now have a stronger basis to argue:

1. the contract itself never became effective; and
2. the arbitration clause inside it also never became effective.

Under PRC judicial practice, this clause is very important because Chinese courts often distinguish between:

• a contract formed through conduct/performance; versus
• a contract that the parties expressly agreed would only become effective upon signature/seal.

If parties explicitly set signing/stamping as the condition for effectiveness, courts may hold that performance alone does not automatically activate all written terms — especially dispute resolution clauses.

This creates two competing legal theories:

Buyer’s likely argument

The buyer will argue:

• both parties actually performed;
• goods were delivered and accepted;
• therefore the contract was established by conduct;
• consequently the arbitration clause should also bind both parties.

Supplier’s counterargument

The supplier can argue:

• the parties themselves agreed that signature/stamp was the condition precedent to effectiveness;
• that condition never occurred;
• shipment only created a de facto sales relationship, not acceptance of every written term;
• therefore no valid arbitration agreement was ever concluded.

This argument has real force in Chinese jurisdiction disputes.

In practice, Chinese courts are often stricter regarding arbitration clauses than ordinary commercial terms because arbitration removes court jurisdiction. If there is ambiguity, some courts tend to retain judicial jurisdiction unless the arbitration agreement is clearly proven.

Therefore, compared with your earlier facts, you now have a significantly better chance of maintaining court jurisdiction if you sue in Tianjin.

Strategically, this changes the balance:

• Before this new fact: CIETAC looked safer.
• After this new fact: local court litigation becomes substantially more defensible.

That said, risk still remains because Chinese courts sometimes apply the doctrine that:

• although the main contract did not formally take effect,
• the arbitration clause can survive independently if the parties substantially performed.

Some courts and tribunals rely on the “separability” principle of arbitration clauses.

However, separability does not automatically solve the formation problem. If the supplier never accepted the unsigned contract as binding at all, the buyer may still struggle to prove mutual consent to arbitrate.

From a tactical standpoint, many Chinese litigators in your fact pattern would seriously consider:

• filing first in the Tianjin court;
• simultaneously preparing opposition against any jurisdiction objection;
• emphasizing:
  • the unsigned/unstamped status,
  • the express effectiveness clause,
  • absence of written acceptance,
  • lack of assent specifically to arbitration.

If the court accepts jurisdiction, that may place significant pressure on the buyer.

One additional practical point:
Before filing in court, counsel should carefully check whether:

• invoices,
• packing lists,
• B/Ls,
• customs declarations,
• emails,
• or payment discussions

explicitly referenced the contract number or wording like “according to Contract XXX.”

If those references are extensive, they may weaken the “contract never effective” argument.

But purely on the legal theory, your newly added clause materially improves the supplier’s position for court litigation in China.