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Serving Complaints on Chinese Companies under the Hague Convention

Hague Service of Process China

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.

14 responses to “Serving Complaints on Chinese Companies under the Hague Convention”

  1. This is a very odd and contradictory article. “Serving Complaints (In The United States) On Chinese Companies” is relatively easy as you point out. But you then go on to say service is often refused and additionally point out it makes little sense to persue in the US anyway. So what’s the point of your article then?

  2. The process may be straightforward, but if it takes 1-3 months that’s “difficult” in my book. How long does this take in other countries?

  3. I’m interested in knowing, through experience, how local companies normally react to a service once it is effectuated, as well as how long. I’m sure the responses vary, but in general there must be some underlying themes when being served by a foreign (or non-Chinese) entity.

  4. @Wang Chung
    Did you miss this part:
    In these circumstances, you draft an affidavit or declaration explaining to the U.S. Court what transpired and the U.S. court invariably will deem service to have occurred.

  5. This post is very informative. It seems that in China, as opposed to the West, the litigation field is “broken” and many rules and regulations are unknown. Thank you for sharing this

  6. @James G – But having an affadavit registered with the court achieves nothing, except getting a lawyers bill. Its largely a pointless exercise witht the intention to get money from clients on the pretext progress in gaining satisfaction from a Chinese company is being made. Yet its not worth the paper its printed on. The procedure described is a total waste of time and money as the affadavit is not even recognised in China. Its a shameful process aimed at the gullible.

  7. When you say that the Original Complaint must be translated to Chinese, does that include all documents attached to the OC?

  8. Is there any requirement on how to send our complaint to the Ministry of Justice? Sorry for posting an elementary question, but from everything I’ve read (including on this blog) every little detail is significant. Thanks!

      • Basically. After gathering the required documents and translating those necessary to be translated, is it as simple as just mailing it to the Ministry of Justice as you would mail regular international mail? Thanks for your help.

        • It has all gotten much more difficult since we wrote the above post. Now, whenever possible, we send a Chinese lawyer to talk with the Ministry AND the Court Clerk (where the papers will eventually go) to personalize and speed up the whole process and so that when our China lawyer subsequently has to call, there is that recognition. Failing that, I would at least send it via FedEx or some other overnight courier service that will record receipt.

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