Hague Service of Process on Chinese Defendants

[Randy W]

Hague Service of Process on Chinese Defendants

PUBLISHED: SEPTEMBER 1, 2022

This article is from the Harris-Bricken Law Firm's website China Law Blog, and is about suing Chinese companies in China in American courts.

For divorcing a non-responsive wife in China, it MIGHT be needed to serve papers on your ex-wife, but I doubt it - American courts recognize signature-required methods of serving notice, while China will recognize your American divorce.

Service on a Chinese company by mail is not effective and U.S. courts have held that China’s formal objection to service by mail under Article 10(a) of the Convention is valid. See DeJames v. Magnificence Carriers, Inc. and Dr. Ing H.C. F. Porsche A.G. v. Superior Court.

2. How to Properly Effect Hague Service of Process on a Chinese Defendant

China is party to the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, usually called the Hague Service Convention or the Hague Convention on Service. This means service on a Chinese company must comply fully with this Convention. Service under the Hague Convention on Service is effected through the designated Chinese Central Authority in Beijing, which is the Bureau of International Judicial Assistance, Ministry of Justice of the People’s Republic of China.

This means a United States plaintiff must submit the following to China’s Ministry of Justice:

1.  A completed United States Marshals Service Form USM-94.

2. The original English version of the documents to be served (the summons must have the issuing court’s seal).

3. The Chinese translation of all documents to be served.

4. A photocopy of each of these documents.

Note that because the USM-94 will not be served, translation of this document is not necessary. In addition to the documents, a payment of approximately US$95 via wire must be sent with the service request. The Ministry of Justice then sends the service documents to the appropriate local court, and that court will effect service. Chinese courts are slow to send out service. If the Chinese company being sued is a powerful local entity, the service may be even slower. We find that having one of our China attorneys repeatedly call and email both the court itself and the Ministry of Justice expedites service. Generally, both the court and the Ministry of Justice prefer dealing with lawyers (not translators or even paralegals) who both speak and write in Chinese.

It is imperative you get all of the above 100% correct as our international litigators are often retained by law firms that did not even learn why service was not occurring until 6-12 months into the process, at which time they had to start again. Neither China’s Ministry of Justice nor its official court servers will tell you if you made a mistake; they will instead simply not serve your complaint and wait for you to call them. . . . or not.

Service has lately been taking from four to six months, which (somewhat shockingly) is the time frame China’s Ministry of Justice gives on its official website!

Chinese companies and individuals often will “refuse” service. In these circumstances, you usually should have whomever you are using for service draft an affidavit or declaration explaining to the U.S. Court what has transpired by way of service of process in China and the U.S. court almost invariably will deem service to have occurred. The potential need for an affidavit or declaration is yet another reason not to just use just anyone to effect service of process for you in China.

 

 

 

Edited September 1, 2022 by Randy W (see edit history)

[Randy W]

See also CFL topic - 

CHINA ACCEDES TO THE HAGUE APOSTILLE CONVENTION

effective Nov. 7, 2023