One of the many things that makes suing Chinese companies and individuals so difficult is the requirement that service be done according to the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, to which China is a party. Service of an entity or person in China under the Hague Convention on Service must be done 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. To accomplish this, the US party must submit the following to China’s Ministry of Justice:
- a completed United States Marshall Form USM‐94
- the original English version of the documents to be served (the summons must have the issuing court’s seal)
- a Mandarin Chinese language translation of all documents to be served
- a photocopy of each of these documents. N
- a payment of approximately US$100 by an international payment order, payable to the Supreme People’s Court of the People’s Republic of China.
China’s Ministry of Justice will then send the service documents to the appropriate local court. That local court will, in turn, finally effect service. In our experience Chinese courts are sometimes fairly slow to send out service. If the Chinese company or person you are suing is “powerful” service may be even slower. Repeatedly calling and emailing both the court itself and the Ministry of Justice can often expedite service. Service normally takes around one to three months.
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., 654 F.2d 280 (3d Cir. 1981), cert. den., 454 U.S. 1085; Dr. Ing H.C. F. Porsche A.G. v. Superior Court, 123 Cal. App. 3d 755 (1981).
In International Service of Process in Taiwan? Relax, it’s FedEx the International Technology Law Blog describes what is required for service in Taiwan and it is (at least compared to China) a piece of cake. This is because Taiwan is not a party to the Hague Convention. The International Technology Blog notes how in the recent case of SignalQuest v. Chou, the New York District Court judge affirmatively answered its own question of “When service of process absolutely, positively has to be effected on a Taiwanese defendant pursuant to FRCP 4(f)(2)(C)(ii), is Federal Express enough?”
The Court held that because Taiwan was not a signatory to the Hague Convention on service, Federal Rule of Civil Procedure (FRCP) Rule 4 would control. Rule 4 authorizes foreign service of process by letters rogatory or under the foreign country’s own laws on domestic service of process. But as the International Technology Blog points out, “the letters rogatory process takes months to complete, as it requires the assistance of courts and government offices in both countries.” Service under Taiwan’s domestic requirements would have been “no less cumbersome, because Taiwan’s law requires service to be made by the clerk of Taiwan’s court.”
So the plaintiff in SignalQuest served the Taiwan defendant by Federal Express and argued that was proper under FRCP 4(f)(2)(C)(ii), “which permits process to be served on a foreign defendant – unless prohibited by the foreign country’s law.” The defendant then moved to dismiss the case, arguing that because service by overnight courier is not permitted under Taiwan law, it must be deemed prohibited, for purposes of FRCP 4(f)(2)(C)(ii). “The court disagreed, holding service is not prohibited under foreign law unless it is expressly prohibited and it found the service by FedEx was proper.”
Sounds great, right? Well International Technology Blog astutely points out one potentially massive flaw in serving a Taiwan company via Federal Express:
As a practical matter, service by FedEx may have been an acceptable solution for SignalQuest, where plaintiff was seeking only a declaratory judgment of [patent] non-infringement in the U.S., but a plaintiff should think twice before attempting such a tactic in a case where enforcement may be required in the defendant’s country. In Taiwan, a foreign judgment cannot be enforced until it has been recognized by a Taiwan court and there’s a fair likelihood Taiwan courts may refuse to recognize any judgment where service was made by mail, e-mail or other unorthodox means.
It would seem then that in most cases, a plaintiff suing a Taiwan company should do so through the clerk of Taiwan’s court, which also no doubt requires that the complaint be translated into Chinese.