Serving Process on Chinese Companies in US Litigation

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Hundreds of billions of dollars' worth of goods and services flow between the United States and China every year, and all of that commerce gives rise to disputes.  While we at FITCH usually recommend entering into International Arbitration agreements when contracting with parties in Chinasometimes that is not an option, such as when Chinese companies creates knock-off products and sell them online to U.S. consumers.  While U.S. courts will have jurisdiction over these disputes, just serving process on Chinese companies or individuals can be bedeviling. 

 

Service in China

 

Both China and the United States are parties to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents (the "Hague Convention").  The Hague Convention applies to any commercial case when service must be made in China and when the address of the person or corporation to be served is known. It requires that service be made via the Chinese Ministry of Justice, which is China's central authority under the Hague Convention (China has also objected to any service outside of its Ministry of Justice).  

 

In order to serve process, you need to translate all of the documents into simplified written Chinese, wire $95 to the Ministry of Justice, fill in form USM-94 (a form with simplified Chinese is available here), and send it all to the Ministry of Justice.  Make sure that everything is absolutely accurate (particularly the address) or the Chinese authorities may reject your request.  Then you must wait, with the Ministry of Justice saying that service may take 4-6 months, and some litigants looking at two years before the Ministry even returns proof of service.

 

While this can be a very long and frustrating process, the Hague Convention does allow for interim relief in cases of urgency, such as temporary restraining orders and preliminary injunctions.  And, if the Chinese authorities have not served process within six months, a court can authorize alternative service under Rule 4(f)(3), which allows for service by any means not prohibited by international agreement so long as the service comports with due process.

Other Methods

If you cannot find any address for the Chinese entity or if there is a U.S. subsidiary or U.S. counsel already involved on their behalf so that the documents may not need to be transmitted abroad, then you may be able to avoid going through the Hague Convention process and request that the court authorize that the initial service take place under Rule 4(f)(3).  The appropriate service under Rule 4(f)(3) will depend upon the situation, but may be by e-mail, fax, online message (via Amazon, eBay, or some other platform) or even online publication in a place frequented by the defendant.

Counsel suing Chinese entities would be well advised to start thinking about service issues early on in the case, since they can result in a long delay before service is made.  But by starting early and following up with the courts in the United States if service is unacceptably slow, parties can bring Chinese entities before the U.S. courts to seek justice.  

 

If you have any questions about international service of process or service on Chinese entities, please reach out to the experienced international dispute attorneys at FITCH to talk to us about these issues.

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