At a recent international conference with law firms and lawyers from foreign countries we met several overseas lawyers who are curious about the ins and outs of serving legal documents from a foreign country in China.
This is primarily an issue of international law, but there are unique local considerations. The matter is governed internationally via the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, dated November 15 1965. China became a member of this Convention on January 1, 1992.
According to this Convention and other related Chinese laws and regulations foreign courts shall send the legal documents to China’s Ministry of Justice via the originating state’s own embassies and consulates in China. The China Ministry of Justice would then send the documents to the Supreme People’s Court, via which the documents can be sent to the local people’s court with jurisdiction over the Chinese party’s address.
In the Case there are no bilateral agreements between China and the other country or the other country is not a member of the Convention mentioned above, legal documents may be served via diplomatic channels in accordance with the principle of reciprocity and efficiency. Legal documents shall be sent by the country’s embassies in China to China’s Foreign Ministry’s Consular Affairs, by which the documents would be sent to the related Higher People’s Court, and then sent to the related Intermediate People’s Court before sending to the addressee. In this case, if Chinese parties are unable to serve documents on parties in the originating country, then you can expect to encounter “difficulties” with effective service in China.
In general, the embassy or a consulate to the People’s Republic of China of a foreign state may serve legal documents only to citizens of the country to which such embassy or consulate belongs, provided that the law of the People’s Republic of China is not violated and that no compulsory measures are adopted.