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Process serving is essential in nearly every single legal action, including civil litigation. This is also true when it comes to the serving of extraterritorial court papers in civil and commercial cases within the mainland Chinese territory of the PRC. A service that is not properly performed may not only delay the underlying extraterritorial procedures, but it may also result in the denial of recognition and enforcement of the ensuing decision as well.
The most basic modes of service
Documents in civil and commercial proceedings that are served extraterritorially shall be served in accordance with the procedures specified by international treaties to which China is a party. 79 countries have signed the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Service Convention), which prescribes a variety of methods of service, including transmission by a designated central authority, as well as delivery through consular, diplomatic and postal channels. China is one of the 79 countries that have signed the Hague Service Convention.
China, on the other hand, expressed its clear opposition to the transfer of information via postal mail and other means under article 10 when it signed the agreement. In reality, service of extraterritorial court papers in China under the Convention on the Service of Extraterritorial judicial Documents essentially entails transmission by the authorised central body.
If a request for service is received from a state or area that has signed a treaty on mutual legal aid with China, the terms of that treaty will take precedence. As of right now, the technique of transmission via central authority has been defined in almost all of the international treaties that China has signed.
The central authority transmits an extraterritorial judicial document to be served in China by following the procedures outlined below:
The Ministry of Justice (MOJ), the central body appointed by China, has been formally requested to investigate. The Hague Service Convention and the laws of the People’s Republic of China provide that a request for service abroad may be submitted directly by the competent authority or judicial officer of a contracting party, or it may be transmitted via the party’s embassy or consulate in China. The seeking party may file and monitor a request for assistance via www.ilcc.online, an online portal operated by the Ministry of Justice’s International Legal Cooperation Centre, which is accessible 24/7.
The Ministry of Justice is conducting an investigation. If the request is found to be compliant with the Hague Service Convention or a convention on mutual legal aid, the Ministry of Justice will submit the request to the Supreme People’s Court for consideration (SPC). Otherwise, the Ministry of Justice may reject or demand correction of a non-conforming request.
The SPC will conduct an investigation. After evaluating the request from the Ministry of Justice, the SPC will submit a cover letter to the High People’s Court in the location of the person who will be served, together with the papers that will be served on that individual.
The case will be heard by the Supreme Court. The high court will send a cover letter and the papers to be served to the intermediate or primary court located closest to the location of the person who needs to be served if the request has been found to be acceptable. The papers may also be served by the high court on its own initiative..
The intermediate or main court will review and serve the document. Finally, the papers that have been deemed acceptable will be served by the intermediate or main court.
Certificate of service or non-service, depending on the situation. In addition to the proof of service (or non-service), the intermediate or primary court shall send a cover letter along with the 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 making an attempt to serve the documents. Following a review, the SPC will send the document to the Ministry of Justice. The Ministry of Justice will then create and provide a certificate of service (or non-service) to the party who has requested it.
If a request for service originates from a country that is not a contracting party to the Hague Service Convention nor a party to any convention on mutual legal aid, China may be willing to comply with the principle of reciprocity and provide service via diplomatic or consular channels.
A provision of the Civil Procedure Law expressly prohibits the service of judicial documents in mainland China by any foreign authority or individual without first obtaining the permission of the Chinese authorities. This prohibition does not apply to service through mutual legal assistance or diplomatic channels, nor to service by a foreign embassy or consulate in China on the citizens of that country.
Documents pertaining to the courts of Hong Kong, Macau, and Taiwan. Both the High Court of Hong Kong and the Court of Final Appeal of Macau have the authority to entrust the service of judicial documents to the high courts of mainland China, in accordance with the agreement on the service of judicial documents in civil and commercial matters between the mainland and Hong Kong and Macau (the “Arrangement”).
According to the Cross-Strait Agreement on Co-operation in Combating Crime and Mutual Legal Assistance and its relevant judicial interpretations, judicial documents from Taiwan shall be served by courts on the mainland upon entrustment by courts on the island, which is silent on the level of entrusting or entrusted courts.
The most important takeaways
Service in mainland China via mail, email, fax, or publishing is not allowed under any circumstances. Methods of serving extraterritorial judicial papers (including those from Hong Kong Special Administrative Area, Macau Special Administrative Region, and Taiwan region) in mainland China that are not expressly allowed would be considered undesirable. This implies that extraterritorial court papers cannot be served by a manner that has not been specifically defined by the treaty or legislation, such as service by mail, email, fax, or public publishing.
Parties are not permitted to “opt out” of the Hague Service Convention. On April 10, 2020, the Supreme Court of California decided in Rockefeller Technology Investments (Asia) VII v Changzhou Sinotype Technology Co. that the parties’ agreement on service by mail takes precedence over the Hague Service Convention.
Following that, Sinotype filed a petition with the United States Supreme Court for a writ of certiorari, which was rejected on October 5, 2020 by the Court. On September 27, 2020, China’s Ministry of Justice (MOJ) sent a letter to the US Department of Justice, expressing its opposition to the ruling on the grounds that: (1) the Hague Service Convention is mandatory in terms of service abroad between member states; and (2) the central government had declared its opposition to service by mail when it acceded to the convention. Due to this procedural flaw, any subsequent decision (if any) will not be recognised by Chinese courts and is subject to cancellation.
Chinese courts will refuse to recognise and enforce judicial papers that have not been properly served on the appropriate party. The letter from the Ministry of Justice above shows that delivery via inappropriate methods may result in procedural errors and even the non-recognition of the resulting decision in certain cases.