I say all the time that we aren’t building rockets when serving process abroad. For the most part, that’s correct… until it comes time to sue a Chinese party. It often makes absolutely no sense to sue on this side of the Pacific, and litigators would be wise to talk to Dan Harris at Harris Bricken before going to the trouble. Dan is the publisher of the China Law Blog, and his feel for the intricacies of China law are unparalleled.*
If you do proceed with a suit, know that serving process in China is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian court is hearing the matter. But it isn’t so simple as the procedure outlined below might lead you to believe; geography matters. If your defendant is in Hong Kong, your Hague options are more varied than in the rest of the PRC (thus a more complex decision lies before you), but considerably faster, easier, and more likely to lead to an enforceable judgment. For Hong Kong, see here, because the Hague regime there is more British than Chinese.
On the mainland, you’ve got three ways to go:
- Tap us on the shoulder for bespoke attention—and probably some amusing commentary to boot (see the upper right if you’re on a desktop, or way down below if you’re on a phone/tablet),
- Cruise over to the Hague Envoy platform at USM94.com to automate the completion of your forms in perhaps twenty minutes or so, or
- If you’re feeling froggy & would like to handle the whole thing yourself, keep reading. This lays out the framework you’ll need.
Some background is in order, if you’re so inclined, before we cut to the chase.
- The roadmap to the overall process—the recipe to our Secret Sauce.
- The structure of the Convention itself is discussed in this four-part series.
- And an absolutely critical note: the Hague Service Convention does not confer coercive effect on subpoenas. Repeat after me—you can’t just SERVE a subpoena abroad. At least, not if you want it to actually work. You have to file a Hague Evidence Request. Dramatically different from serving a summons or notice. But don’t get overly excited… Evidence Requests to China are usually a massive waste of time.
Now, for the chase scene.
Here’s how it’s done in the People’s Republic of China:
Article 5 Service
- Translate the documents. China’s declaration to Article 5(3) requires it and, although the defendant may speak flawless English, omitting translated documents will prompt the Central Authority to reject your request. And for crying out loud, get the right written form of Chinese, which is simplified.
- No, Mandarin is not what I mean. Yes, the thing will be in the Mandarin dialect, sort of, but you need simplified written Chinese. If your translation provider doesn’t know what that means, find a different translation provider.
- If the defendant is a company, hire an investigator to ascertain the appropriate address for service. It may not appear anywhere in the documents you’ve exchanged already, and if you flub the address, the Central Authority can reject your request. Or the local officials can reject your request. Or the guy delivering the documents can be very slipshod about the way he does it. In any of these circumstances, no dice.
- If it’s a U.S. action, wire $95 to the Central Authority. The Convention arguably prohibits the assessment of fees, but we charge $95, so China returns the favor on a reciprocal basis. (Unlike Russia, which rejects U.S. requests as a matter of course. It’s retaliation, no question, but I happen to think they’re right.)
- Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney. If it is not, make sure that the person signing is commissioned by the court.
- Send to the Central Authority.
- Sit tight. It may take a while—likely 12 months from submission to return of proof, if not more. [Update: The Covid-19 pandemic has extended this projection to nearly two years in some cases.]
Article 10 alternative methods
- They simply aren’t available, because China objects to them all. Article 5 is the only way it can be done.
Seriously—that’s all there is to it in China. The method is straightforward; it’s a matter of a simple procedure with complicated implementation. A tip worth noting is that China assesses a $95 fee for execution of service requests from the U.S. This runs specifically counter to the “no fees to execute a service request” clause of Article 12, but they only do it to us because we do it to everybody. It’s a better shake than the Russians give us, to be sure.
China’s declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.
Bonus practice tip #1: if the idea is strategically sound, ask the defendant to waive service. Note that I didn’t say accept— I said waive. There’s a very important difference.
Bonus practice tip #2: if you’re defense counsel, always question the validity of service effected on your overseas client. The plaintiff may not have done it correctly.
The best practice tip of all: call Dan Harris. No, really. If your defendant doesn’t have assets in a country that is willing to enforce a U.S. judgment, you’re wasting time suing here. Dan and his China lawyers can advise you on a strategy to litigate in the PRC.
UPDATE, May 14, 2018: a couple of important additional issues are discussed on a new post here.
And another UPDATE, September 5, 2019: another development discussed here.
* Dan has been an invaluable guide to me as I’ve launched my own practice and this esoteric little blog… anybody who does business in the Far East should follow his writing religiously, and any lawyer who wants to see how blogging is done should do likewise. [Dan also knows where to find the best Chinese food in Seattle. No—not that anglicized stuff they make for the gringos. I’m talking a crowded hole-in-the-wall type of place where we’re the only white guys in the room.]