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:
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.
