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LLS recently received a rejection notice from the Chinese Central Authority for service on a Chinese manufacturer.

Below, we tease out the significance of this notice and what it reveals about the practice of international law, especially in the Peoples Republic of China.

A Unique Circumstance

The first thing of note about this notice of rejection is how long it took the Chinese Central Authority to render its decision. Of late, the Chinese Central Authority — if it intends to reject a service — will inform LLS within two to three months. In this instance the notice was significantly delayed.

Moreover, the rejection was predicated on Article 13 of the Hague Service Convention, which in itself was unusual.

Last, but not least, the notice itself demonstrates that the Chinese Central Authority read every word of the request for service and deliberated carefully in drafting its reply.

The obvious question that occurs to us here at LLS is why this particular case was outside the norm.

An Overview of the Case

Because this case is ongoing, we’ll provide only generic facts.

The Plaintiff in this case is an “agricultural” company that is the successor to a company whose holdings in Cuba were confiscated by the Castro government in 1959.

With the newly enacted private right of action to the Helms-Burton Act, the Plaintiff sought to recover its losses from the Cuban government.

Also named in the complaint was a Chinese manufacturer who provided technology for processing the agricultural product at issue.

The only other legally relevant fact in this case is that the Chinese manufacturer’s services were secured by a Purchase Money note from a Chinese bank.

Plaintiff’s Request for Service Rejected by the Chinese Central Authority

The Plaintiff in this case complied with the Hague Service Convention’s rules and transmitted the pleadings along with the Hague request forms (in English and Chinese) to the Chinese Central Authority. After six months the Chinese Central Authority rejected service based on Article 13.

As previously stated, this was an exceptionally long time for the Chinese Central Authority to take to reject a request for service.

Article 13 of the Hague Service Convention, in its entirety, states:

Where a request for service complies with the terms of the present Convention, the State addressed may refuse to comply therewith only if it deems that compliance would infringe its sovereignty or security.

It may not refuse to comply solely on the ground that, under its internal law, it claims exclusive jurisdiction over the subject-matter of the action or that its internal law would not permit the action upon which the application is based.

The Central Authority shall, in case of refusal, promptly inform the applicant and state the reasons for the refusal.

The complaint reads as a straightforward commercial transaction – one that should be covered by the Hague Service Convention. Accordingly, at first glance it is hard to see where China has a “sovereignty or security” issue at stake in this case.

What’s the Plaintiff’s Next Step?

One possibility would be to appeal the Chinese Central Authority’s decision to the appropriate Peoples’ Court. But such an action is not likely to go very far.

Due to the unique circumstances of this rejection notice (see above), we can infer that the Chinese Central Authority had some behind the scenes discussion with either the Chinese government or judiciary.

Either way, it seems unlikely that a People’s Court will overturn the rejection notice.

Alternatively, the Plaintiff could address the Article 13 rejection notice in the forum court. But, based on the only published case making a decision regarding Article 13, this is also unlikely to bear fruit.

In Zhang v. Baidu. com Inc.,[1] a case with more obvious sovereignty and security issues for China, the Court basically accepted the rejection at face value holding that because the defendant was not properly served, the court lacked jurisdiction and would not issue an order for service by alternative means.

Indeed, the  Zhang court stated:

it is not clear whether a court may authorize an alternative means of service pursuant to Rule 4(f)(3) where, as in this case, the receiving nation has declined to effect service pursuant to Article 13 of the Hague Convention. Compare Gurung, 279 F.R.D. at 218 (stating that if a country refused to complete service pursuant to Article 13, “such a refusal would preclude service of the complaint as contrary to the terms of the Convention and therefore impermissible under Rule 4(f)(3)”), and In re S. African Apartheid Litig., 643 F.Supp.2d 423, 437-38 (S.D.N.Y.2009) (noting, in authorizing service pursuant to Rule 4(f)(3), that the receiving country had not invoked Article 13), with Devi v. Rajapaska, No. 11 Civ. 6634(NRB), 2012 WL 309605, at *1 (S.D.N.Y. Jan. 31, 2012) (citing Manoharan v. Rajapaksa, No. 11-235(CKK) (D.D.C.), as a case in which the Court had authorized an alternative means of service despite the invocation of Article 13), and Bleier v. Bundesrepublik Deutschland, No. 08 C 6254, 2011 WL 4626164, at *6 (N.D. Ill. Sept. 30, 2011) (noting that the Court had earlier authorized alternative service pursuant to Rule 4(f)(3) notwithstanding the receiving country’s invocation of Article 13).

Our recommended next step in this case — if the matter warrants the time and money — would be to challenge the Chinese Central Authority’s rejection asserting that Zhang, which concerns “pro-democracy political speech,” is a fundamentally different case from the case at hand.

What possible sovereign concerns could China have in a commercial (and non-weapons) transaction that took place halfway around the world?

Political Implications and Future Problems

If the case at hand is about China’s food supply, then allowing a Chinese manufacturer Article 13 protection just because it’s involved with the Chinese food supply would indicate a dangerous expansion of the phrase “sovereignty or security.”

If this theory has merit, LLS might recommend requesting the forum court to authorize service of process for the limited purpose of determining jurisdiction: The Defendant could provide the Court with some indication of how its activities in Cuba impact China’s sovereignty or security.

One might speculate that the manufacturer is affiliated with a powerful political institution such as the PLA (People’s Liberation Army), which is know to have interests in a number of industries.

That said, experience tells us that the Chinese Defendants would ultimately ignore such serve.

An interesting — though fraught — example of politics intruding into an area that should be settled by extant rules of law.

How LLS Can Help

If you require assistance serving process in China, (or any other country), contact the professionals at LLS today. With more than 35 years of experience, we are the US’s premier source of international litigation support. What’s more, we also offer professional translation services for any documents which require translation before service.

Call us today at 1-800-755-5775 or simply fill out our free quote form.

 

Notes
[1] 932 F. Supp. 2d 561 (SD NY 2013); cf: UNITED STATES EX REL. BUNK v. BIRKART GLOBISTICS GmbH & CO., Nos. 1:07cv1198(AJT/TRJ), 1:02cv1168(AJT/TRJ) (ED VA 2010)(dismissed on other grounds).

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