When facing a commercial dispute with a Chinese company, the first step is determining the appropriate jurisdiction for the litigation. It is essential to verify where the company is actually headquartered, as Mainland China, Hong Kong, Taiwan, and Macau are entirely distinct jurisdictions.
Suing a Mainland Chinese company in a foreign court may be ineffective if the company holds no assets abroad or in jurisdictions whose judgments Chinese courts enforce. For example, Mainland Chinese courts do not enforce judgments rendered by United States courts. Therefore, the feasibility of enforcing a judgment must guide the initial strategy.
Jurisdiction and China’s Civil Procedure Law
Jurisdiction—a court’s authority to hear and decide a case—is the first issue to address. If a plaintiff chooses to sue abroad, courts will require proof of sufficient ties between the foreign company and the chosen forum.
On the other hand, there is generally no jurisdictional bar to suing a Chinese company directly in Mainland China. Articles 3 and 237 of the Civil Procedure Law of the People’s Republic of China grant Chinese courts jurisdiction over international cases involving a foreign plaintiff against a Chinese company.
Rules for Cross-Border Service of Process
If the lawsuit is filed outside China, service of process (the formal notification of legal proceedings to a defendant) must follow strict rules. China is a signatory to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.
Service under this Convention is conducted through the designated Central Authority in Beijing: the International Judicial Assistance Office of the Ministry of Justice of the People’s Republic of China. The procedure requires submitting specific forms, original documents bearing the issuing court’s seal, and their respective translations. Although China did not enter a formal reservation regarding translations upon acceding to the Convention, the Chinese Ministry of Justice requires all documents served in China to be translated into Mandarin Chinese.
The service process is often lengthy, taking six to nine months. Furthermore, China formally objected to service by postal channels under Article 10(a) of the Hague Convention, making direct mail service invalid.
Restrictions on Evidence Gathering
The evidentiary stage also presents challenges. China prohibits taking depositions within its territory for foreign proceedings, even with the deponent’s consent. In its declaration of accession to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, China declared that it would not be bound by provisions allowing consular officers to supervise depositions.
Conducting a deposition in China for foreign proceedings can lead to arrest or expulsion. Even taking testimony by telephone from a witness located in China likely violates Chinese law.
Practical Considerations
The decision to litigate against a Chinese company requires careful analysis of where the company is based, judgment enforceability, and strict adherence to international treaties on service of process and evidence gathering. Non-compliance with these rules can halt proceedings or invalidate gathered evidence.
This content is for informational purposes only and does not constitute legal advice. For guidance on specific matters, consult a qualified lawyer.
Deixe um comentário