I have been speaking fairly frequently of late regarding litigating and arbitrating against Chinese companies. One of the things I always hear at these talks is how difficult it is to serve Chinese companies with complaints. In fact, much of the time, some lawyer will proclaim it impossible.
This is flat out wrong. My law firm has never once failed to effect service on a Chinese company.
This post sets out how to serve Chinese defendants under the Hague Convention Rules on service of process. If you follow all of the rules you will succeed. The following are the rules as they apply to serving Chinese companies in a United States Court. I presume the rules will be similar for other country’s courts. You must follow each and every one of these rules to the letter to succeed in serving complaints on Chinese companies.
China is party to the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters. Therefore, service on a Chinese company must fully comply 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.
The US company must submit the following to the Ministry of Justice: (1) a completed United States Marshall 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 (although China did not make a specific reservation regarding translations when it acceded to the Hague Convention on service, China’s Central Authority has advised the US Embassy in Beijing that documents to be served in China must be translated into Mandarin Chinese. Since it is China’s Central Authority that effects service of process, the best approach is to comply with its requirements); and (4) a photocopy of each of these documents. Note that because the USM‐94 will not be served, a translation of that document is not necessary.
In addition to the documents, a payment of approximately USD$100 by an international payment order must be sent with the service request, payable to the Supreme People’s Court of the People’s Republic of China. The Ministry of Justice will then send the service documents to the appropriate local court, and that court will finally effect service.
In our experience, Chinese courts are often slow to send out service. If the Chinese company being sued is a powerful local entity, the service may be even slower. However, repeatedly calling and emailing both the court itself and the Ministry of Justice nearly always will expedite service. Service normally takes around two to four months.
Service on a Chinese company by mail is not effective and US courts have held that China’s formal objection to service by mail under Article 10(a) of the Convention is valid.
Chinese companies will oftentimes “refuse” service. In these circumstances, you must draft an affidavit or declaration explaining to the US Court what transpired and the US court invariably will deem service to have occurred.
Tomorrow, I will discuss why it oftentimes makes no sense to sue Chinese companies in US courts, but also set forth some situations where it makes all the sense in the world.