The People’s Republic of China (“the PRC”) acceded to the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, also called the Hague Service Convention, on May 6, 1991, and its provisions entered into force on January 1, 1992.
US attorneys seeking service in the PRC would be wise to familiarize themselves with the mandatory character of the Hague Service Convention as set forth in the US Supreme Court case Volkswagenwerk A.G. v. Schlunk (486 U.S. 694 (1988).
The Hague Service Convention offers plaintiffs a number of channels by which service may be accomplished in the foreign country. All of these channels constitute proper “Hague Service” under US law, although there are advantages and disadvantages to each in terms of cost, speed and enforceability.
The most commonly used channels for service under the Hague Service Convention are:
For further information about all of the Hague channels of transmission provided by the Service Convention see below.
The Hague Service Convention provides that service may always be effected through the judicial system of the destination country. This is accomplished by filing a request with the Central Authority designated by that country (as described in Article 5 of the Convention), and requesting either formal also called compulsory service or informal also called voluntary service.
The Hague Service Convention provides that a set of three model forms (“Request,” “Certificate,” “Summary of the Document to be Served,”) and one recommended form (“Notice”) must accompany the documents to be served. These forms are designed to summarize the key contents of the court documents and guide the defendant to the appropriate action.
The Central Authority for the PRC is:
The Ministry of Justice
Department of Judicial Assistance and Foreign Affairs
Division of Judicial Assistance
10, Chaoyangmen Nandajie
People’s Republic of China
Legal Authority for Service. Service through the Chinese Central Authority is authorized by Article 247 of the Civil Procedure Law of the PRC.
Methods of Service. Chinese law provides for several types of service:
At present, service of foreign pleadings by fax or e-mail is not valid in the PRC.
Caveat: Certain types of substituted service and mailbox service which are routinely effected under Chinese law may be deemed insufficient under US law.
Who effects service? A court bailiff, a clerk of the court or a postman (depending upon the method of service employed).
The PRC has filed the following declarations with respect to the alternative channels of Hague service:
With regard to direct service upon nationals of the requesting state or direct service (without compulsion) upon nationals of the destination state via diplomatic or consular agent:
China objects to service in its territory by foreign diplomats upon Chinese nationals. (Pursuant to the Convention, China cannot object to service by foreign diplomats upon nationals of the diplomat’s own state.)
Caveat: US litigants should be aware that US diplomats will generally not serve process abroad and this channel is rarely employed in US civil actions. (For further information, see US Consular Regulations).
With regard to direct service by postal channel:
China objects to service by postal channel.
Caveat: US plaintiffs may not have recourse to direct mail service upon defendants in the PRC. Moreover, even where permitted, mail service pursuant to the Hague Service Convention is fraught with problems, including potential problems with later enforcement of US judgments in the destination state—even when the destination state has not objected to such service. US courts are also split regarding propriety of mail service under the Convention. US plaintiffs are advised to proceed with caution when employing this channel. (For further information, see Service by Mail.)
With regard to direct service by a judicial officer, official or other competent person of the destination state:
China objects to service by judicial officer.
Caveat: US plaintiffs may not have recourse to direct service by judicial officer upon defendants in the PRC.
Furthermore, note that “judicial officer,” “official” or “competent person” are terms defined under the laws of the destination state, not under the laws of the requesting state. Chinese attorneys, detectives, policemen or private persons are not judicial officers and are not empowered to serve process. Private process service is unknown. (For further information, see Service by Judicial Officers.)
The PRC requires a translation into Chinese of all documents to be formally served (that is, served using compulsion) pursuant to Article 5, subparagraph 1 or Article 10(b) and (c).
Note that while Mandarin Chinese is the official spoken dialect of the PRC, the appropriate written language for legal pleadings to be served in Mainland China is Simplified Chinese .
Article 7 of the Hague Service Convention provides that the Hague model forms should be completed in English or in French or may be completed in the language of the destination country.
The PRC does not require translation into Chinese for service effected pursuant to Article 5, subparagraph 2 (voluntary service) or Article 10(a) (mail service); however, note that US notions of due process will always require that the defendant understand the documents with which he or she is being served. US due process is a constitutional right under US law and as such, trumps the requirements of the Convention and foreign law.
For further information on translation requirements under the Hague Service Convention, contact us by phone at 1-800-755-5775 or by email at the International Litigation Support Department of Legal Language Services for a FREE consultation.
US subpoenas are not routinely served upon foreign witnesses pursuant to the Hague Service Convention.
Residents or citizens of the United States located abroad however must be responsive to US subpoenas served upon them. For further information on the issues involved, contact us by phone at 1-800-755-5775 or by email at the International Litigation Support Department of Legal Language Services for a FREE consultation.
On the other hand, any national who is not a resident or citizen of the United States is not required to respond to a US subpoena delivered to him or her in the PRC. In essence, such a subpoena loses its coercive effect once it leaves US borders. Because it is no longer a coercive instrument, and because the witness is not subject to the jurisdiction of the issuing court, the question of “how to properly serve” a subpoena is irrelevant.
LLS can offer you extensive advice on securing such evidence pursuant to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, the Hague Evidence Convention and foreign law. Note that the state of judicial assistance in China is evolving over time. Please contact an LLS consultant for advice on the latest developments.
LLS can also assist you in arranging voluntary depositions of willing witnesses on foreign soil. Although the Chinese government prohibits voluntary depositions in the PRC pursuant to Chapter II the Hague Evidence Convention, LLS has successfully moved Chinese deponents out of the PRC for depositions in Hong Kong and Singapore. LLS can also provide court reporters, videographers, interpreters and videoconferencing for private depositions and formal hearings.
For further information, contact our International Litigation Support Department at (800) 755-5775 (outside the US and Canada: +1.913.341.3167) and ask to speak to a specialist in foreign evidence-taking.
The information provided on this site is for informational purposes only and should not be construed as legal advice. The advice is believed to be accurate at the time of posting; however, LLS is not responsible for any information which may have become outdated or inaccurate.
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