Question: Dear lawyer, we are an UK company, several months ago we find one vendor in Alibaba.com, and placed an order to them via Alibaba website, and we prepaid half of cargo payment, however, the cargo was to delivered 2 months ago and we should receive it one month ago, but we did not receive the cargo till today; we raised the dispute to Alibaba, but they just asked us to await weeks more, can I sue Alibaba please?
Answer:
As a background, we all know that Alibaba.com is one well-known international trade business platform, and it’s the beginning of Alibaba emperor today including Alibaba.com, Taobao.com, and even ant financial service. Today Alibaba.com had gone quite far, besides being a platform, it also provide online buyers and sellers with escrow services, trade insurance policy, and even dispute solution. Well, the rule of “let the professionals do professional jobs”, seems not applicable in Alibaba.com, and on this platform, lawyers are not allowed to exist, because providing lawyer’s service is illegal on this platform. But the problem is, alibaba’s staff are just normal company employees, so how can they do the professional job of intermediators or arbitrators without related knowledge, trainings and experiences? So this is the reason that may international traders/importers on Alibaba were finally disappointed and even become angry with Alibaba platform, when they have dispute and alibaba’s staff, as the intermediators or arbitrators of the disputes, cannot provide them with any useful help at all. So this leads to the topic of the article, can the international businessman sue Alibaba.com when they have dispute with sellers on Alibaba.com?
The answer is, in some situations, the international businessman (buyers) can sue Alibaba, but in situations stated above, in fact Alibaba company does not have any fault on your dispute with the seller, so it’s not easy to win the litigation against them; in this situation, Alibaba staff are just incapable of their duty and job as a intermediator or arbitrator, but it’s hard to said they had done anything wrong and infringed the legal rights of the buyers, so the buyer should sue the seller directly. And on contrary, Alibaba.com did some good job after all, on this aspect, that Alibaba actually provided the seller and buyer with a purchase contract, in which there is one arbitration clause, and the buyer can hence raise an arbitration case against the seller in the arbitration organization. This aribtration clause is very helpful for buyer to protect their own legal rights.
Then in what situations, can the international businessman (buyers) sue Alibaba company? Well, we need to come to one new law in China called “E-commerce Law of the People's Republic of China”(“Law”), which had come into force on 1 January 2019. In this Law, Alibaba company is called “e-commerce platform business operators”(“platform operator”), while seller and buyer on the platform called “e-commerce business operators”(“business operator”). As per this law, in some situations, the platform operators shall be liable to the business operators. For example, article 38 and 42, details as follows:
Article 38 Where e-commerce platform business operators know or should know that commodities or services sold or provided by on-platform businesses do not comply with requirements for personal or property security, or otherwise violate consumers’ legitimate rights and interests, and do not take necessary measures, they shall jointly and severally be liable together with such businesses in accordance with the law.
Article 42 Where intellectual property rights holders perceive infringement of their intellectual property rights, they have right to notify e-commerce platform business operators to take necessary measures such as deleting, blocking or disconnecting links and terminating transactions or services. The notices shall include preliminary evidence that the infringement is constituted. Upon receiving such notices, e-commerce platform business operators shall promptly take necessary measures and forward the notices to on-platform business operator; and where necessary measures are not taken promptly, e-commerce platform business operators shall be jointly and severally liable together with such businesses for any increase in damages. Where any error in a notice causes harm to on-platform businesses, e-commerce platform business operators shall assume civil liability in accordance with the law. Where any erroneous notice is issued maliciously and causes harm to on-platform businesses afterwards, e-commerce platform business operators shall assume liabilities that are doubly incumbent on them.
While these two articles are in Section 2 E-commerce Platform Business Operators of Chapter II E-commerce Business Operators. And more content similar please refer the law itself.