By David Gao

In China, the procedures for foreign-related civil cases could be different from domestic litigation procedures. Part IV of Civil Procedure Law of People's Republic of China provides centralized provisions on foreign-related civil litigation procedures, including general principles, jurisdiction, service period, judicial assistance, etc. When handling foreign-related civil cases, we often face the issue of legalization requirement on relevant documents from other countries. This article provides general guideline on documents legalization regarding foreign-related civil litigation cases in China. 
 
Generally speaking, three types of documents from overseas shall be legalized before submitting to Chinese courts. They are respectively 1) Documentation regarding legal entities; 2) power of attorney; 3) evidences. I will provide a brief introduction to each type in the following sections:
 
Part One: Legal entities documentation 
Foreign litigants in China can be divided into two categories: (1) foreign natural persons; (2) foreign enterprises or other organizations.

1. For foreign natural persons 
Paragraph 1 of Article 523 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China (hereinafter referred to as “Interpretation” stipulates:

" Foreigners participating in litigation shall submit their passports and other documents to prove their identity to the People's Court."  

According to the above regulations, foreigners who participate in litigation cases in Chinese courts, whether as plaintiffs, defendants or third parties, need to submit a copy of their documents proving their identity. The most common document is his/her passport. Since foreigners, as natural persons, are inherently mobile, they could submit their passport copies in the following ways:

a. Foreigners living in China can personally appear at court to file a case on site and appear in court hearing personally in the future. In such case, there is no need to perform additional legalization procedures for their passports.

b. For foreigners outside China, if they are unable to come to China to file a case and appear at court personally, they need to have their passports notarized in the country where they are located, and then authenticated by the Chinese embassy/consulate or complete Apostille procedure. After that, the documents could be admitted to court.

c. Some foreigners can apply for online verification through the court handling the lawsuit (see below for further explanations).
 
2. For foreign enterprises or other organizations:
Paragraph 2 of Article 523 of the Interpretation stipulates:
“The identification documents submitted by foreign enterprises or organizations to the People’s Court when participating in litigation shall be notarized by the notary authority of the country where they are located, and authenticated by the embassy or consulate of the People’s Republic of China in that country, or perform the certification procedures stipulated in the relevant treaties concluded between the People's Republic of China and the host country.”
According to the above provisions, foreign enterprises or organizations that participate in litigation cases in China should submit documents proving their identity as a litigation party.
 
There is also the issue of proving the identity of the legal representative of the litigant. Only after determining who is the legal representative of the company can we determine who has the authority to sign on documents such as the power of attorney, which will be mentioned later.
In China, when a company files a case, one of the documents to be submitted is the "Certificate of Identity of the Legal Representative." Chinese company's business license and official registration record have a special column, which clearly records name of the legal representatives of each company. But foreign companies are different. First of all, the company registration authorities in each country are different. Foreign companies generally do not have the concept of legal representatives. Many foreign companies’ incorporation certificate do not bear the names of the company’s chairman or directors. In some cases, it may take some trouble to prove who can sign litigation documents on behalf of the company.
 

Part Two: Power of Attorney
When foreign corporate entities participate in litigation in China, they can either appoint their own employees to participate in the litigation or entrust Chinese lawyers to represent them in the cases. No matter who is entrusted to participate in the litigation, the notarization and certification of the power of attorney will be involved.
 
1. POA to Chinese lawyer
Article 264 of the Civil Procedure Law of the People's Republic of China stipulates:
" If foreigners, stateless persons, foreign enterprises and organizations without domicile within the territory of the People's Republic of China entrust a Chinese lawyer or other person to represent them in litigation, the power of attorney sent or entrusted from outside the territory of the People's Republic of China shall be certified by the notary public in the country where it is located and authenticated by the embassy or consulate of the People's Republic of China in that country, or completing the certification procedures stipulated in the relevant treaty between the People's Republic of China and the country where it is located."
 
2. Employee participants appointed by the company:
Paragraph 2 of Article 523 of the Interpretation stipulates:
“ A person who participates in litigation on behalf of a foreign enterprise or organization shall submit to the people’s court a certificate proving that he or she has the right to participate in the litigation as a representative. This certificate shall be notarized by the notary authority of the country where he or she is located and authenticated by the embassy or consulate of the People’s Republic of China in that country, or perform the certification procedures stipulated in the relevant treaty between the People's Republic of China and the country where it is located. "
According to the above provisions of the Civil Procedure Law and judicial interpretations, whether you entrust a Chinese lawyer or appoint your employees to participate in the litigation, the appointment documents must go through notarization and certification procedures.
 
In addition, the interpretation also provides several flexible options for foreigners or representatives of foreign enterprises/organizations in China regarding signing a power of attorney:

a. Judge witnesses signature
Article 525 of the Interpretation stipulates:
"If a foreigner, representative of a foreign enterprise or organization signs a power of attorney under the witness of a judge of the People's Court and entrusts an attorney to conduct civil litigation, the People's Court shall recognize it."

b. Notarization in China
Article 526 of the Interpretation stipulates:
"If a foreigner, representative of a foreign enterprise or organization signs a power of attorney within the territory of the People's Republic of China and entrusts an agent to conduct civil litigation, and it is notarized by a notary office of the People's Republic of China, the people's court shall recognize it."

For foreigners who are temporarily staying in China during the stage of entrusting a lawyer and would leave China soon, they can choose this method and go to a China notary office to notarize the power of attorney before leaving China. The time and monetary cost are generally much lower than going through legalization procedure abroad.

c. Online witness

On February 3, 2021, the Supreme People's Court issued a decree named Provisions of the Supreme People's Court on Providing Online Case Filing Services for Cross-Border Litigants. Article 6 of this Provisions states:

"Parties in cross-border litigation who have passed identity verification and entrust China mainland lawyers to represent them in litigation can apply for online video witnessing from the court being sued. "

Since the prerequisite for video witnessing is that the parties involved need to pass identity verification first, and identity verification mainly relies on the National Immigration Administration’s entry-exit document identity authentication platform for online verification, foreigners who have not had entry records in recent years may not be able to pass the online verification process.
 
Part Three: Evidences
In China, judicial practice has gone through a process of evolution regarding the rules for notarization and authentication of evidence produced from outside China.
In 2001, a Supreme Court Interpretation named Provisions of the Supreme People's Court on Evidence in Civil Litigation (2001 Edition) adopted the one-size-fits-all principle. Article 11 of it stipulates:

“ If the evidence provided by the parties to the People’s Court was formed outside the territory of the People’s Republic of China, the evidence shall be certified by the notary authority of the country where it is located and authenticated by the embassy or consulate of the People’s Republic of China in that country, or perform the certification procedures stipulated in the relevant treaties concluded between the People's Republic of China and the host country.”
 
From the above provisions, we can conclude that all evidence formed outside the Chinese territory shall be notarized and authenticated. But this approach could bring some problems in legal practice. For example, two Chinese entrepreneurs went to the United States for a business trip. During their staying in the United States, they discussed the cooperation issues between their Chinese companies and signed an agreement. Technically speaking, this agreement was formed extra-territorially. However, except for the fact that the agreement was signed at a hotel in the United States, all its contents are about the cooperation between two Chinese companies and the both parties involved are Chinese entities. In case of a dispute arising due to the performance of the agreement, it is obviously unrealistic to require either party to produce a copy of the agreement notarized in U.S and certified by Chinese Embassy or consulate.

Therefore, in subsequent judicial practice, the Supreme People's Court gradually took a more flexible approach and carried out corrective actions on the above-mentioned judicial interpretations by issuing meeting minutes and publishing cases.
 
On December 26, 2005, the Supreme People's Court issued Minutes of the Second National Foreign-related Commercial and Maritime Trial Work Conference.  Article 39 of the minutes stipulates the following:

“For evidence provided by the parties and formed outside Chinese territory, the People's Court shall handle it as follows according to different circumstances: 1) For evidence proving the identification of the litigation participant, relevant notarization, authentication or other certification procedures shall be performed; 2) For other evidence, the party providing the evidence shall choose whether to go through relevant notarization, authentication or other certification procedures, unless the People's Court deems it necessary.For evidence formed outside China, regardless of whether notarization, authentication or other certification procedures have been completed, the People's Court shall organize the parties to conduct cross-examination, and conduct review and determination based on the cross-examination opinions of the parties.”
According to the above provisions, whether evidence generated outside the Chinese territory needs to be notarized and authenticated shall be handled according to different situations:

(1) Evidence proving the identify qualifications of the litigation parties shall be notarized and authenticated;

(2)  For other evidence, it is up to the parties to choose whether to undergo notarization and authentication unless required by courts. It also made clear that cross-examination must be conducted regardless of whether the evidence is notarized or not.
The above opinions were also reflected in some subsequent Supreme Court cases.
 
Supreme Court Interpretation in 2019
On October 14, 2019, the Supreme Court issued the latest revision of the "Provisions on Evidence in Civil Litigation," which took effect on May 1, 2020 . Article 16 of the "Provisions on Evidence in Civil Procedures" (revised in 2019) stipulates:

“If the public documents and evidence provided by the parties were formed outside the territory of the People’s Republic of China, the evidence shall be certified by the notary office of the country where it is located, or perform the certification procedures stipulated in the relevant treaties concluded between the People's Republic of China and the host country ”

“Evidence involving identity relationships formed outside the territory of the People’s Republic of China shall be certified by the notary public of the country where it is located and authenticated by the embassy or consulate of the People’s Republic of China in that country, or shall fulfill the requirements stipulated in the relevant treaty between the People’s Republic of China and the country where it is located. Certification procedures.”

It can be seen from the above provisions that evidence formed outside the territory can be divided into three categories:

a. For public documents formed outside the territory, such as foreign court judgments, notarization procedures must be performed locally, or complete the legalization procedures stipulated in the relevant treaties between the People's Republic of China and the country where the country is located.

b. For evidence involving identity relationships formed outside the territory, such as a marriage certificate, must be notarized locally and authenticated by Chinese embassy or consulate abroad, or perform the legalization procedures stipulated in the relevant treaties between the People's Republic of China and the host country.  

c. There are no mandatory notarization and authentication requirements for other evidence generated outside the Chinese territory.
 

Part Four: The impact of China’s accession to Apostille Convention

On March 8, 2023, China acceded to the above Convention of 5 October 1961 Abolishing the Requirement of Legalization for Foreign Public Documents (hereinafter referred to as the Convention). The Convention has entered into force in China on November 7, 2023.

1. First, let’s look at the scope of public documents and certification stipulated in the Convention. Article 1 of the Convention provides:

The present Convention shall apply to public documents which have been executed in the territory of one Contracting State and which have to be produced in the territory of another Contracting State. For the purposes of the present Convention, the following are deemed to be public documents:
a) documents emanating from an authority or an official connected with the courts or tribunals of the State, including those emanating from a public prosecutor, a clerk of a court or a process-server ("huissier de justice");
b) administrative documents;
c) notarial acts;
d) official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures.
 
 
Judging from the above provisions, the public documents stipulated in the Convention include judicial documents, administrative documents, notarial deeds and official certifications of private documents (such as power of attorney) etc., basically covering nearly all types of documents from abroad in the domestic litigation process. 

After the Convention entered into force for China on November 7, 2023 , for public documents and certificates from abroad, first we need to check whether the country of origin of the public documents and certificates is a party member to this Convention. Apostille under the Convention is applicable only if it comes from a contracting country. For those from non-contracting countries, the original notarization and certification procedures are still used. It is worth noting that although India is also a party, this Convention does not apply to China and India.


For more information, please contact David Gao
Email: gaohexin@163.com