Making every case a typical one hinges critically on litigation strategy. The Corporate Committee sharing session of Chenggong Law Firm this time was hosted by Lawyer Weng Panming, who delved into a typical dispute involving concurrent claims in contract and tort. This presentation demonstrated Lawyer Weng's team's strategic thinking in handling complex legal relationships to achieve optimal litigation outcomes.
1 Case Background and Basic Facts of the Case
The plaintiff is a state-owned enterprise that owns the ownership of the disputed land. In 2021, the plaintiff signed a "Temporary Land Use Agreement" with Company A, stipulating that Company A would borrow the land under the plaintiff's name to stack temporary spoil generated from the subway ventilation shaft project. The agreement clearly specified that disputes would be resolved through arbitration by an arbitration commission in mainland China, and the plaintiff, due to negligence, failed to raise objections to this clause. After the agreement expired, Company A not only failed to return the land on time but also illegally stacked over 100,000 cubic meters of spoil. Even more seriously, since the spoil was piled near a main road, it posed significant safety hazards during windy or rainy weather.
原告的核心诉求包括：要求A公司清运弃土、返还土地并支付占用费。
团队代理原告，案件策略设计的被告共有四方：
被告一：A公司（国有企业，实际施工方）
被告二：B公司（国有企业，工程业主方）
被告三、四：C1、C2公司（国有企业，总包方）
2 Evolution and Progress of Litigation Strategy 1.Initial Strategy: Considerations of the Arbitration Approach
Initially, the team considered initiating arbitration against Company A with a mainland arbitration commission in accordance with the arbitration clause in the "Temporary Land Use Agreement." However, investigations revealed that Company A had existing enforcement records, indicating significantly insufficient capacity to fulfill obligations. Upon this discovery, Lawyer Weng had a sudden insight and shifted the strategy, exploring alternative legal avenues.
2.Strategy Shift: Application of Concurrent Contract and Tort Claims
The team innovatively adopted the approach of "holding the parent liable for the subsidiary's obligations," noting that Company B, a large state-owned enterprise with strong financial resources, was also Company A's major financial backer. Instead of relying solely on the contract claim, they leveraged the concurrent relationship between contract and tort claims. Acting as the land rights holder, they filed an action for removal of obstruction with the court in Company B's jurisdiction, asserting that both Company A and Company B were jointly liable for tort.
3.Key Highlights of the Strategy:
(1) Lawyer's Letter First: Before filing a lawsuit against Company B, the team first sent a lawyer's letter to it, informing Company B of the infringement facts by Company A and requesting that both Company B and Company A fulfill their obligations as soon as possible. This measure achieved multiple objectives: applying pressure, preserving evidence, and laying the groundwork for subsequent litigation.
(2) Flexible Procedural Response: After navigating the twists and turns of initial case filing, document return, and subsequent re-filing, the team withdrew the lawsuit again through settlement, achieving a multi-pronged effect. This not only nullified the arbitration jurisdiction but also solidified the court's jurisdiction, while effectively reducing the plaintiff's litigation cost expenditures.
(3) Second Filing Strategy: After withdrawing the lawsuit, the team re-filed a lawsuit against Companies A and B and added Defendants C1 and C2. This ultimately achieved a breakthrough in the case. Under pressure from Companies B and C, Company A arranged for spoil transport vehicles to work around the clock to remove the dumped soil. Over three months, all clearance work was completed before the court hearing, fully satisfying the client's claims.
3 Exploration of Core Legal Issues Issue 1: Determination of Jurisdiction in Concurrent Contract and Tort Claims
(1) Legal Basis:
Article 24 of the Civil Procedure Law: Jurisdiction over contract disputes lies with the people’s court at the defendant’s domicile or the place of performance of the contract. Article 29 of the Civil Procedure Law: Jurisdiction over tort disputes lies with the people’s court at the place where the tort occurred or the defendant’s domicile.
(2) Divergence in Judicial Practice:
One view emphasizes “autonomy of will,” holding that agreed jurisdiction should apply. Specifically, when a tort arises from a contract, the jurisdiction clause agreed in the contract should govern, unless both parties explicitly exclude litigation based on tort arising from the contract.
Reference Case: (2017) Supreme People’s Court Civil Application No. 4996: The Supreme Court held that when a tort stems from contract performance (distinct from general torts), the jurisdiction agreed by the parties should be respected. It emphasized that if the agreed jurisdiction clause does not explicitly exclude litigation based on tort arising from the contract, the agreed jurisdiction shall apply.
Another view advocates “statutory jurisdiction,” arguing that tort jurisdiction rules should apply. Under this view, the agreed jurisdiction clause only pertains to contract disputes and does not automatically extend to tort disputes.
Reference Case: (2023) Supreme People’s Court Civil Jurisdiction No. 142: The Supreme Court determined that although a contractual jurisdiction agreement existed, it only applied to contract disputes and not to the tort disputes between the parties. Thus, statutory jurisdiction should apply.
(3) Practical Insights:
When handling such concurrent claims, lawyers should carefully examine the wording of jurisdiction clauses in contracts, assess the degree of connection between the tortious act and contract performance, and select the most favorable jurisdiction basis based on the case’s specific circumstances and judicial trends.
Issue 2: Evolution in Judicial Practice Regarding Conflicts Between Arbitration and Litigation Jurisdiction in Joint Tort Cases
Traditional practice has been for the court to exercise jurisdiction over the entire case, as the arbitration agreement cannot bind all parties, and joint tort cases fall under necessary joint lawsuits that should not be handled separately. However, recent trends in handling such cases involve resolving them separately. This approach argues that joint tort cases can be treated as divisible lawsuits: disputes between the plaintiff and defendants bound by arbitration agreements are resolved through arbitration, while disputes between the plaintiff and defendants not bound by arbitration agreements are adjudicated by the court. The advantage of this trend is that it not only respects the parties' intent to arbitrate but also safeguards their litigation rights.
4 Summary of Takeaways This case may seem like a simple land return dispute, but the reason Lawyer Weng’s team turned it into a typical one lies in their adept use of strategic thinking when navigating complex legal relationships:
First, before filing suit, a comprehensive analysis of the legal relationships between each defendant and the plaintiff is critical, as is assessing how separate case handling impacts the overall strategy. By choosing the most favorable mix of dispute resolution methods based on client interests, the team demonstrated flexibility in applying the law—from shifting from a straightforward contract claim to a tort claim, and further to a joint tort assertion.
Second, procedural law is not merely a "tool" but a strategic resource. Skillfully leveraging procedural rules can create tangible value for clients. Through a combination of lawyer’s letters, settlement talks, and withdrawal-and-re-filing tactics, the team reduced litigation costs and improved resolution efficiency.
Third, mastering the art of communication as dispute coordinators is key. Communicating with the client ensures a full grasp of the commercial context and true needs; engaging with opposing parties applies reasonable pressure via lawyer’s letters; and liaising with the court involves articulating claims lawfully and orderly to avoid confrontation. The team also timed negotiations well, seeking settlement at the right moment—preserving litigation leverage while creating room for compromise.
Finally, innovative approaches to legal application worked here: transforming contract disputes into tort claims, circumventing arbitration clause limits, adding financially strong defendants, and boosting enforcement prospects.
Only by continuously learning, honing the ability to analyze cases from multiple angles, breaking free from fixed mindsets, and using multi-dimensional solutions to transcend narrow thinking can lawyers achieve the best legal outcomes in case handling.
Group Photo for Keepsake
Lecturer of This Issue
