Business Litigation, Service of Process on Defendant(s) in China

Serving a defendant in China generally requires following the Hague Convention process through China’s Ministry of Justice, which involves translated documents, specific forms, and a wait that can take several months to over a year. In some situations, courts may allow alternative service methods, such as email or service through an online platform, if traditional service proves too slow or impractical.

At LA Law Group, we provide services to business and individuals who have causes of actions both against domestic and international defendants.

Where the defendant is out of the United States, service can be a challenge and we advise our clients early on in the case to take this into consideratin.

We recently were retained to assist a client in a claim against a Defendant in China.

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.

Parties suing Chinese entities would be well advised to consider service issues early on in the case, since they can result in a long delay before service is made.  Nonetheless, 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.