Service of process is key in almost every single legal proceeding. This is equally true when it comes to service in mainland China of extraterritorial judicial documents in civil and commercial matters. A service that is not properly effected may not only impede the underlying extraterritorial proceedings, but also mean the resulting judgment is denied recognition and enforcement.
Primary methods of service
Extraterritorial judicial documents in civil and commercial matters should be served by the methods prescribed by international treaties to which China is a party. China is one of 79 contracting parties to the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Service Convention), which prescribes multiple methods of service, including transmission by a designated central authority, or through diplomatic, consular or postal channels.
However, when acceding to the convention, China explicitly objected to the transmission by postal and other methods under article 10. In practice, the service of extraterritorial judicial documents in China under the convention basically means transmission by the designated central authority.
If a request for service comes from a state or region that has concluded a mutual legal assistance treaty with China, such treaty shall prevail. Currently, the method of transmission by central authority has been codified in most of such treaties concluded by China.
An extraterritorial judicial document to be served in China is transmitted by the central authority through the following steps:
- Formal request to the Ministry of Justice (MOJ), the central authority designated by China. According to the Hague Service Convention and PRC law, a request for service abroad may be presented by the competent authority or judicial officer of a contracting party directly, or forwarded by their embassy or consulate in China. The requesting party may submit and track a request for service via www.ilcc.online, an online platform administered by the MOJ’s International Legal Cooperation Centre.
- Review by MOJ. If, upon review, the request conforms to the Hague Service Convention or a treaty on mutual legal assistance, the MOJ will forward such a request to the Supreme People’s Court (SPC). Otherwise, the MOJ may deny a non-conforming request or require rectification.
- Review by the SPC. The SPC, after reviewing the request from the MOJ, will send a cover letter to the High People’s Court at the place of the person to be served, along with the documents to be served.
- Review by the high court. On finding the request satisfactory, the high court will send a cover letter along with the documents to be served to the intermediate or primary court at the place of the person to be served. The high court may also decide to serve the documents by itself.
- Review and service by the intermediate or primary court. Finally, the intermediate or primary court will serve documents that are found satisfactory.
- Certificate of service or non-service. The intermediate or primary court shall send a cover letter along with the proof of service (or non-service), proof of service by mail (if the court decided to serve by mail), and documents that were not served (if applicable) to the higher-level court, and finally to the SPC, after attempting the service. After a review, the SPC will forward the same to the MOJ. The MOJ will then prepare and transmit a certificate of service (or non-service) to the requesting party.
Service through diplomatic or consular channels may be acceptable to China, pursuant to the principle of reciprocity, if the request comes from a state that is neither a contracting party to the Hague Service Convention nor a party to any treaty on mutual legal assistance.
The Civil Procedure Law expressly prohibits service of judicial documents in mainland China by any foreign authority or individual without the Chinese authority’s permission, other than service through mutual legal assistance or diplomatic channels, or service by a foreign embassy or consulate in China on its own nationals.
Judicial documents from Hong Kong, Macau and Taiwan. Both the High Court of Hong Kong and the Court of Final Appeal of Macau may entrust the high courts in mainland China to serve judicial documents pursuant to the arrangement on the service of judicial documents in civil and commercial matters between the mainland and Hong Kong and Macau.
Judicial documents from Taiwan shall be served by courts of the mainland upon entrustment by courts of Taiwan, according to the Cross-Strait Agreement on Co-operation in Combating Crimes and Mutual Legal Assistance and its relevant judicial interpretations, which are silent on the level of entrusting or entrusted courts.
Service in mainland China by mail, email, fax or publication is unacceptable. For serving extraterritorial judicial documents (including those coming from Hong Kong SAR, Macau SAR and Taiwan region) in mainland China, methods that are not explicitly permitted would be deemed unacceptable. This means that extraterritorial judicial documents cannot be served by a method unspecified by the treaty or law, such as service by mail, email, fax or publication.
Parties may not “opt out” of Hague Service Convention. In Rockefeller Technology Investments (Asia) VII v Changzhou Sinotype Technology Co., the Supreme Court of California ruled, in April 2020, that the parties’ agreement on service by mail shall prevail over the Hague Service Convention.
Subsequently, Sinotype filed a petition with the US Supreme Court for writ of certiorari, but was denied on 5 October 2020. On 27 September 2020, China’s MOJ sent a letter to the US Department of Justice, asserting its opposition to the ruling on the grounds that: (1) the Hague Service Convention is mandatory in terms of service abroad between the member states; and (2) when acceding to the convention, the central government had declared its objection to service by mail. Such service will be deemed a procedural defect, and the following judgment, if any, will not be recognised by Chinese courts.
Judicial documents not properly served will be denied for recognition and enforcement by Chinese courts. The above letter from the MOJ demonstrates that service by improper means may give rise to procedural defects and even render the resultant judgment unrecognised.
Zhang Guanglei is a partner and Zhang Jinhui is an associate at Jingtian & Gongcheng. Zhang Guanglei is also an arbitrator of the Hong Kong International Arbitration Centre and Shanghai International Arbitration Centre
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