Serving litigation documents abroad effectively
Authors: Zhang Guanglei / Cai Xiaoxia
(This article was first published on China Business Law Journal column "Cross-border dispute resolution", authorised reprint)
The Civil Procedure Law and relevant judicial interpretations provide that litigation documents can be served to foreign countries through the way specified in treaties, by diplomatic channels, by embassy or consulate, by mail, by fax or e-mail, and by public notice, and that besides service by public notice, the court can take a variety of ways to improve service efficiency.
Service by mail is common and it should also be the most convenient and efficient way of service to foreign countries. However, in judicial practice, many courts are conservative on the way of serving documents abroad and prefer to directly use the service methods of central authorities’ transmission or diplomatic channels under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, which takes more than a year on average, seriously affecting the efficiency of litigation.
We believe it necessary to sort out and summarise the norms and practices of service by mail abroad to provide reference for judicial practice.
Applicable premise of service by mail
If the country of the addressee is a member of the convention, and there is no reservation on article 10(a), that is, service by mail, it can be deemed that the country allows service by mail. For example, in Case [2016] Min 02 Min Chu No.1232, the domicile of the two defendants was Thailand. Xiamen Intermediate People’s Court sent the two defendants the complaint, notice of hearing and other materials by mail after finding that “Thailand is a member of the Convention, and Thailand has not made a reservation on article 10(a) of the Convention”. Because the two defendants did not appear in court, the court finally decided that they refused to appear without justifiable reasons after being legally summoned, and made a default judgment according to law.
For the addressee in the country that has declared objection to service by mail, the service of judicial documents by mail has no legal effect. For example, the Supreme People’s Court stated in its [2010] Min Si Ta Zi No.81 reply that the judgment delivered by the state court of Offenburg in Germany to the PRC company by mail had no legal effect, and the conditions for the applicant to apply for recognition and enforcement of the judgment were not met and the application should be rejected as the PRC opposes the service to it in the way specified in article 10(a) of the convention.
There are exceptions to the above principles in practice. In Case [2019]Zui Gao Fa Min Zhong No.395, the Supreme People’s Court held that the convention was private law in nature, and if the parties explicitly agreed to accept the service by mail from foreign courts, it was their own disposal of procedural rights, and therefore, despite Japan’s reservation on service by mail, the appellant provided its mailing address in Japan in writing, and clearly indicated it would accept the service by mail, thus the court’s mailing of relevant judicial documents was in line with due process.
Nevertheless, the PRC still maintains a conservative attitude on service by mail by foreign courts to parties located in the PRC. After the Supreme Court of California made the judgment on the case of Rockefeller Technology Investments (Asia) v Changzhou SinoType Technology, where the service by mail agreed by both parties was approved, the Ministry of Justice of the PRC sent a letter to the Department of Justice of the U.S. in September 2020, clearly stating its opposition and pointing out that the relevant judgment would not be recognised and enforced by PRC courts.
How to judge whether it is effective service by mail
The court should attach a receipt of delivery when it serves documents by mail, and the date of signing on that receipt will be the date of service. If the addressee fails to sign the receipt, the validity of service may be judged as follows:
(1) If the addressee signs on the postal receipt, service should be deemed completed. In practice, if the receipt/tracking number shows that the document has been signed for receipt, service should be deemed completed.
(2) If, after three months from the date of mailing, no proof of service has been received, but the circumstances justify the assumption that the service has been made (for example, the addressee mentioned the contents of the documents to the court or the addressee has fulfilled the contents of the documents, etc.), the service should be deemed completed upon the expiration of the said period. In Case [2012] Yue Gao Fa Min San Zhong Zi No.120, the court of first instance served the responding materials to the defendant by mail who then entrusted an agent ad litem and went through the certification process at the PRC Consulate General in Los Angeles. The court of second instance held that although the defendant did not sign the receipt it could be considered that the relevant responding materials had been served.
(3) If the litigation document is returned because the address provided or confirmed by the addressee is inaccurate or the addressee refuses to sign receipt of the document, service should be deemed completed on the date of return. In Case [2019]Wan 03 Min Zhong No.2383, the court mailed the summons and receipt of delivery to the Australian address provided by the appellant, but service failed after three deliveries and the receipt showed “customer unknown”. The court thus determined that the summons had been legally served, and since the appellant did not appear in court, its appeal was withdrawn.
(4) If, after three months from the date of mailing, no proof of service has been received, and the circumstances cannot justify the assumption that the service has been made, it will be deemed that the document cannot be served by mail.
How the parties promote service by mail
To improve the efficiency of litigation, when parties conclude an agreement, they may specify the service addresses of both parties and agree that judicial documents can be served by mail. In litigation, the parties can find out whether the other party’s country has reservations about service by mail through the Hague Conference on Private International Law website and submit relevant evidence to the court.
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作者介绍
合伙人
010-5809 1515
zhang.guanglei@jingtian.com
张光磊律师毕业于中国政法大学，获法学学士、民法学硕士和商法学博士学位。此外，获美国乔治华盛顿大学法学硕士学位，为哥伦比亚大学法学院访问学者。张律师拥有中国及美国纽约州律师资格，为香港国际仲裁中心在册仲裁员，中国政法大学法律硕士学院和对外经济贸易大学法学院兼职导师。
张律师的主要业务领域为争议解决，在民商事诉讼、仲裁、调解等领域拥有丰富的经验和良好的声誉，于2018年被CLECSS评选为“中国十大杰出青年律师”，于2020年被《商法》（CBLJ）评选为“A-List法律精英100强”，于2021年被《亚洲法律杂志》（ALB）评选为“中国十五佳诉讼律师”。在香港国际仲裁中心主办的2019国际仲裁中文赛中，张律师带领竞天公诚律师事务所获得北京赛区冠军和全国亚军，其个人在所有场次比赛中均被评为最佳律师。
张律师曾代表境内外客户处理中国国际经济贸易仲裁委员会及其分会、北京仲裁委员会、上海国际仲裁中心、深圳国际仲裁院、珠海国际仲裁院、香港国际仲裁中心、国际商会国际仲裁院等仲裁机构及中国不同层级法院的数百宗民商事案件，涉及行业领域包括房地产、金融、证券、国际贸易、医药、融资租赁、环保、文旅、教育、电信、征信、互联网、工业制造等。
张律师特别擅长处理投融资领域的争议，曾为客户成功处理业绩对赌、股权转让、公司控制权、董事和高管责任、员工股权激励、基金募集管理等投融资领域的多种争议。张律师也擅长在跨境交易纠纷中为客户制定整体解决方案，并多次在美国、新加坡、香港等地的诉讼和仲裁程序中担任中国法顾问及专家证人。
张光磊律师历史文章
3. The Judicial practice of forum non convenien
5. New provisions on extraterritorial public documentary evidence
7. Applying New York Convention’s ‘public policy’ clause in China
9. Document No.29 and the validity of cross-border guarantees
10. 中国司法实践中的境外法查明
11. Ascertainment of foreign law in Chinese judicial practice
12. 争议解决条款重点问题（二）——涉外合同中的争议管辖条款
14. 争议解决条款重点问题（一）——涉外合同中的法律适用条款
16. 回顾外滩地王案——股东优先购买权规范穿透适用的斟酌因素
17. 违约与侵权竞合对争议管辖的影响 ——以必要共同诉讼为主要视角
18. 法人人格否认的实务观察
律师
010-5809 1243
cai.xiaoxia@jingtian.com
蔡晓霞律师毕业于中国政法大学和美国北卡罗莱纳大学，分别获得法学学士和法学硕士学位，拥有中国律师执业资格。蔡律师的执业领域为争议解决，曾代表境内外客户处理过数十宗民商事诉讼仲裁案件，并曾为多家知名企业提供常年和专项法律服务。
蔡晓霞律师历史文章
2. The Judicial practice of forum non conveniens
3. 争议解决条款重点问题（一）——涉外合同中的法律适用条款
4. Ascertainment of foreign law in Chinese judicial practice
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