Serving litigation documents abroad effectively

By Zhang Guanglei and Cai Xiaoxia, Jingtian & Gongcheng
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The Civil Procedure Law and relevant judicial interpretations provide that litigation documents can be served to foreign countries through the way specified in treaties, by diplomatic channels, by embassy or consulate, by mail, by fax or e-mail, and by public notice, and that besides service by public notice, the court can take a variety of ways to improve service efficiency.

张光磊, Zhang Guanglei, Partner, Jingtian & Gongcheng
Zhang Guanglei
Partner
Jingtian & Gongcheng

Service by mail is common and it should also be the most convenient and efficient way of service to foreign countries. However, in judicial practice, many courts are conservative on the way of serving documents abroad and prefer to directly use the service methods of central authorities’ transmission or diplomatic channels under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, which takes more than a year on average, seriously affecting the efficiency of litigation.

We believe it necessary to sort out and summarise the norms and practices of service by mail abroad to provide reference for judicial practice.

Applicable premise of service by mail

If the country of the addressee is a member of the convention, and there is no reservation on article 10(a), that is, service by mail, it can be deemed that the country allows service by mail. For example, in Case [2016] Min 02 Min Chu No.1232, the domicile of the two defendants was Thailand. Xiamen Intermediate People’s Court sent the two defendants the complaint, notice of hearing and other materials by mail after finding that “Thailand is a member of the Convention, and Thailand has not made a reservation on article 10(a) of the Convention”. Because the two defendants did not appear in court, the court finally decided that they refused to appear without justifiable reasons after being legally summoned, and made a default judgment according to law.

For the addressee in the country that has declared objection to service by mail, the service of judicial documents by mail has no legal effect. For example, the Supreme People’s Court stated in its [2010] Min Si Ta Zi No.81 reply that the judgment delivered by the state court of Offenburg in Germany to the PRC company by mail had no legal effect, and the conditions for the applicant to apply for recognition and enforcement of the judgment were not met and the application should be rejected as the PRC opposes the service to it in the way specified in article 10(a) of the convention.

There are exceptions to the above principles in practice. In Case [2019]Zui Gao Fa Min Zhong No.395, the Supreme People’s Court held that the convention was private law in nature, and if the parties explicitly agreed to accept the service by mail from foreign courts, it was their own disposal of procedural rights, and therefore, despite Japan’s reservation on service by mail, the appellant provided its mailing address in Japan in writing, and clearly indicated it would accept the service by mail, thus the court’s mailing of relevant judicial documents was in line with due process.

Nevertheless, the PRC still maintains a conservative attitude on service by mail by foreign courts to parties located in the PRC. After the Supreme Court of California made the judgment on the case of Rockefeller Technology Investments (Asia) v Changzhou SinoType Technology, where the service by mail agreed by both parties was approved, the Ministry of Justice of the PRC sent a letter to the Department of Justice of the U.S. in September 2020, clearly stating its opposition and pointing out that the relevant judgment would not be recognised and enforced by PRC courts.

蔡晓霞, Cai Xiaoxia, Associate, Jingtian & Gongcheng
Cai Xiaoxia
Associate
Jingtian & Gongcheng

How to judge whether it is effective service by mail

The court should attach a receipt of delivery when it serves documents by mail, and the date of signing on that receipt will be the date of service. If the addressee fails to sign the receipt, the validity of service may be judged as follows:

(1) If the addressee signs on the postal receipt, service should be deemed completed. In practice, if the receipt/tracking number shows that the document has been signed for receipt, service should be deemed completed.

(2) If, after three months from the date of mailing, no proof of service has been received, but the circumstances justify the assumption that the service has been made (for example, the addressee mentioned the contents of the documents to the court or the addressee has fulfilled the contents of the documents, etc.), the service should be deemed completed upon the expiration of the said period. In Case [2012] Yue Gao Fa Min San Zhong Zi No.120, the court of first instance served the responding materials to the defendant by mail who then entrusted an agent ad litem and went through the certification process at the PRC Consulate General in Los Angeles. The court of second instance held that although the defendant did not sign the receipt it could be considered that the relevant responding materials had been served.

(3) If the litigation document is returned because the address provided or confirmed by the addressee is inaccurate or the addressee refuses to sign receipt of the document, service should be deemed completed on the date of return. In Case [2019]Wan 03 Min Zhong No.2383, the court mailed the summons and receipt of delivery to the Australian address provided by the appellant, but service failed after three deliveries and the receipt showed “customer unknown”. The court thus determined that the summons had been legally served, and since the appellant did not appear in court, its appeal was withdrawn.

(4) If, after three months from the date of mailing, no proof of service has been received, and the circumstances cannot justify the assumption that the service has been made, it will be deemed that the document cannot be served by mail.

How the parties promote service by mail

To improve the efficiency of litigation, when parties conclude an agreement, they may specify the service addresses of both parties and agree that judicial documents can be served by mail. In litigation, the parties can find out whether the other party’s country has reservations about service by mail through the Hague Conference on Private International Law website and submit relevant evidence to the court.

Zhang Guanglei is a partner and Cai Xiaoxia is an associate at Jingtian & Gongcheng. Zhang is also an arbitrator of Hong Kong International Arbitration Centre

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