Suing Chinese companies is a growth area. What it takes to litigate against Chinese companies is one of my favorite speaking topics because so many are surprised to hear what it takes to get it right. Rule number one is do not just go off and sue in a United States court assuming that a U.S. court judgment has any value in terms of actually collecting money. The problem is that Chinese courts do not enforce U.S. court judgments. For more on this issue, check out the following:
Many years ago, I wrote an article for the Wall Street Journal entitled, Chinese Companies Court Disaster: Doing business in America means also learning how to navigate the U.S. legal system. That article focused on the increasing number of lawsuits brought by foreign companies against Chinese companies and on how Chinese companies handle those lawsuits. If you are involved in a lawsuit against a Chinese company or even just considering one, I urge you to read that article.
This post deals with something far more basic. This post is for when you have already sued a Chinese company in the United States and now you need to figure out how to serve process on that company in such a way that will work for the U.S. Courts and, in some cases, for whatever foreign court where you may want to eventually enforce your U.S. judgment.
How to Effect Service of Process on a China Company under the Hague Convention
China is party to the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters. This means that service on a Chinese company must comply fully 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 U.S. company must submit the following to the Ministry of Justice:
1. A completed United States Marshals Service 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.
4. A photocopy of each of these documents.
Note that because the USM‐94 will not be served, translation of this document is not necessary. In addition to the documents, a payment of approximately US$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. It is imperative that you get all of the above 100% correct as we have heard (and been retained by) law firms that did not even learn of why service was not occurring until six months into the process, at which time they had to start again.
The Ministry of Justice then sends the service documents to the appropriate local court, and that court will effect service. Chinese courts are often fairly slow to send out service. If the Chinese company being sued is a powerful local entity, the service may be even slower. We find that repeatedly calling and emailing both the court itself and the Ministry of Justice expedites service. Generally, both the court and the Ministry of Justice greatly prefer dealing with lawyers (not translators or even paralegals) who both speak and write in Chinese, though this too can vary.
Service usually takes anywhere from one to five months months.
Service on a Chinese company by mail is not effective and U.S. courts have held that China’s formal objection to service by mail under Article 10(a) of the Convention is valid. See DeJames v. Magnificence Carriers, Inc. and Dr. Ing H.C. F. Porsche A.G. v. Superior Court.