Our handy-dandy “How to Serve Process in China” guide has been posted for quite some time. Pretty straightforward stuff, given that the Chinese declarations to the Hague Service Convention eliminate Article 10’s alternative methods from the equation. There’s only one way to get it done, and that is by filing a USM-94 with the Ministry of Justice in Beijing. On its face, a seemingly simple undertaking… rock & roll that thing on over to the PRC.
Not so fast, though. It’s always been a bit more complicated than that. For starters, the Chinese bureaucracy is excruciatingly slow– historically, they’ve taken six to nine months to return a proof of service. Lately, though, more than a year passes, and there are rumblings in the transnational litigation community that they’ve stopped executing U.S. requests altogether. But Hague strictures remain mandatory doctrine in U.S. procedure [see Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) for more], so you have to at least attempt it. And unlike their counterparts in Russia, the Chinese have not expressly stated that they will not execute U.S. Hague requests. Instead, China assesses a reciprocal fee of $95 per request– as a countermeasure to the U.S. fee charged due to Congress’ outsourcing of the Justice Department’s Central Authority function.*
But recently, two critical developments have come to light, and practitioners need to know about them:
First, the reciprocal fee can no longer be submitted by check. The fee has to be wired to our friends in Beijing, and a wire transmittal confirmation must accompany the Hague request instead of a bank draft.
Second, they moved! And they didn’t tell anybody for a couple of months. The new address for China’s Hague Central Authority:
Ministry of Justice of China
International Legal Cooperation Center
No.33 PingAnLi XiDaJie
Xicheng District, Beijing,100035
People’s Republic of China
Critical information right there. And there’s been no official notification to the Hague Conference for a website update– as of this writing, the Conference’s site still shows the old address (which is summarily walled off, my courier tells me) and it can only be updated upon official notification from Beijing. An update is coming eventually, I’m confident, but meanwhile a good many requests could be lost in the ether.
* I still happen to think the Russians are completely justified in their recalcitrance. I also think the Chinese are completely justified in their reciprocal fee requirement. The Convention prohibits fees, but we charge one anyway because Congress decided we didn’t need all those gubmint employees drawing a paycheck. Now, to be sure, the Central Authority function is outsourced to a top-flight organization– and I’m a huge advocate of outsourcing where it’s reasonable. But the United States charges foreigners a fee for something that ought to be a routine government function, provided at public expense.