How to File Foreign-related lawsuits with China Courts?
Time:2024-02-02 15:40:50Source:Click:次
How to File Foreign-related Lawsuits with China Courts?
In light of the 2023 amendments to the Civil Procedure Law of the People's Republic of China and the implementation of new regulations such as the "Convention on the Abolition of the Requirement of Legalization for Foreign Public Documents," we have sort out mostly common asked questions regarding fling lawsuits to a Chinese court involving foreign parties.
1. How does the Chinese courts determine a case to be foreign-related civil and commercial disputes?
According to the interpretations of the Supreme People's Court regarding the application of the Civil Procedure Law and the Law of the People's Republic of China on the Application of Law to Foreign-related Civil Relations, foreign-related civil and commercial disputes primarily involve parties, subject matter, and legal facts with foreign elements. These elements include:
·* One or both parties being foreign nationals, stateless persons, foreign enterprises, or organizations, or having habitual residence outside the territory of China.
·* The subject matter of the dispute being located outside the territory of China.
·* The legal facts giving rise to, changing, or extinguishing civil legal relationships occurring outside the territory of China.
2. What primary qualification documents are required for foreigners to file civil suits?
Foreigners participating in litigation must submit identity documents such as passports for authentication.
3. What primary qualification documents are required for foreign enterprises and organizations to file civil suits?
Foreign enterprises or organizations without a domicile in China must submit identity documents authenticated by the notary office of their home country and certified by the Chinese embassy or consulate in that country, or follow the certification procedures specified in relevant treaties between China and that country. Additionally, these foreign-language documents must be translated by a qualified translation agency before submission to the court.
4. What are the requirements for signing power of attorney in foreign-related cases?
For foreign individuals or entities without a domicile in China, power of attorney sent from outside China to authorize mainland Chinese lawyers or representatives must undergo appropriate notarization and certification procedures or comply with relevant treaty requirements between China and the foreign country. Alternatively, authorization can be witnessed by a judge at the court's registration and litigation service window.
5. How do Chinese citizens residing abroad sign power of attorney?
Chinese citizens residing abroad must have their power of attorney sent from abroad certified by the Chinese embassy or consulate in that country. If there is no embassy or consulate, certification can be obtained from the embassy or consulate of a third country that has diplomatic relations with China, or from a local patriotic overseas Chinese organization.
6. How can parties in cross-border litigation authorize mainland Chinese lawyers for litigation representation through online video witnessing?
Parties in cross-border litigation, along with their authorized legal representatives, can apply for online video witnessing through the "China Mobile Micro Court" WeChat mini-program or computer interface to the court handling the case. During the online video witnessing, the judge, parties in the cross-border litigation, and the authorized lawyers will be present simultaneously. The proceedings will be conducted in the Chinese language. After the video witnessing, the authorized lawyers can proceed with online filing and payment on behalf of the parties.
7. What are the differences after the implementation of the Convention on Abolishing of the Requirement of Legalization for Foreign Public Documents?
Since the implementation of the convention on November 7, 2023, the legalization process for foreign public documents has been simplified and expedited. Parties involved in disputes in China no longer need consular authentication for documents issued in the territory of another contracting state. Instead, they only need to provide an additional certificate issued by the contracting state in compliance with the convention's requirements. This facilitates the requirement for submitting power of attorney by parties without a domicile in China to participate in litigation through appointed representatives.
8. What are the avenues for initiating proceedings in foreign-related civil and commercial disputes?
Plaintiffs in foreign-related civil and commercial disputes, who have already completed notarization and certification procedures for primary materials or complied with the requirements of relevant international treaties, can submit their lawsuit materials by mail or through appointed representatives who have completed notarization and certification procedures.
If the parties are within China, they can appear in person at the court with jurisdiction, certify their identity, and submit relevant lawsuit materials.
Non-plaintiffs in foreign-related civil and commercial disputes can submit their lawsuit materials through window filing, mailing, or online filing.
9. Can pre-litigation mediation be conducted for foreign-related civil and commercial disputes?
Yes, pre-litigation mediation is permissible for suitable foreign-related commercial disputes. With the consent of the parties, the court can appoint mediation organizations to conduct mediation before or after filing a case and confirm the legal effect of the mediation agreement according to the regulations.
10. Can small claims procedures be applied to foreign-related civil and commercial disputes?
No, small claims procedures cannot be applied to foreign-related cases. Cases involving foreign elements are not eligible for small claims procedures under Article 166 of the Civil Procedure Law. If foreign elements are discovered during the trial, the case may be transferred to summary or ordinary procedures for trial.
11. Which types of foreign-related civil and commercial disputes fall under the exclusive jurisdiction of the People's Courts?
The amended Civil Procedure Law expands the scope of foreign-related civil and commercial cases under the exclusive jurisdiction of the People's Courts. These cases include:
* Disputes concerning the establishment, dissolution, liquidation, or validity of legal persons established within China's territory.
* Disputes related to the validity of intellectual property rights granted within China's territory.
* Disputes arising from contracts for Sino-foreign joint ventures or cooperative business operations, and contracts for Sino-foreign cooperative exploration and development of natural resources performed within China's territory.
12. What are the rules regarding special territorial jurisdiction in foreign-related cases?
In cases where the defendant, who has no domicile within China's territory, is sued for matters other than personal status, the Civil Procedure Law specifies several jurisdictional bases, including the place of contract conclusion, place of contract performance, location of the subject matter of the lawsuit, location of attachable property, place of tort, and residence of representative offices. Additionally, the amended Civil Procedure Law, Article 276, allows People's Courts to exercise jurisdiction over foreign-related civil disputes that have other appropriate connections with China.
13. Can one party initiate proceedings in a foreign court while the other party initiates proceedings in a Chinese court for the same dispute?
In cases where both parties initiate parallel proceedings in two countries for the same dispute, if the People's Court has jurisdiction in accordance with the Civil Procedure Law, it may accept the case. If the parties have agreed to the exclusive jurisdiction of a foreign court and such agreement does not violate the provisions of the Civil Procedure Law regarding exclusive jurisdiction, sovereignty, security, or public interests of China, the People's Court may decide not to accept or reject the lawsuit.
In accordance with the principle of international comity, the amended Civil Procedure Law also stipulates that if a foreign court has already accepted the case before the People's Court, the People's Court may, upon application, suspend the proceedings, unless the parties have agreed to the jurisdiction of a Chinese court, or the case falls under the exclusive jurisdiction of a Chinese court, or the People's Court finds it convenient to exercise jurisdiction.
14. How does the People's Court establish jurisdiction in foreign-related civil and commercial litigation?
In foreign-related cases, if the plaintiff files a lawsuit with a court that does not have jurisdiction over the case, and the defendant does not object to the jurisdiction and responds to the lawsuit or files a counterclaim, the People's Court is deemed to have jurisdiction.
15. How does an agreement between parties on jurisdiction in foreign-related civil and commercial disputes differ from non-foreign-related disputes?
An agreement on jurisdiction in foreign-related civil disputes does not require a factual connection between the chosen court and the dispute. The amended Civil Procedure Law does not require an actual connection between the dispute and the court chosen in the agreement. In effect, it extends the provisions of Article 8 of the Special Maritime Procedure Law of the People's Republic of China to all foreign-related civil disputes, whereby if the parties to a foreign-related civil dispute agree in writing to the jurisdiction of a People's Court, the People's Court may exercise jurisdiction.
Parties can agree to the jurisdiction of foreign courts that have an actual connection with the dispute. However, in cases falling under the exclusive jurisdiction of Chinese courts, the parties may not agree to the jurisdiction of foreign courts, except in cases where arbitration is agreed upon.
In the absence of clear indications, an agreement is presumed to be exclusive. If the jurisdiction agreement signed by the parties clearly specifies the jurisdiction of a court in a particular country but does not specify that the agreement is non-exclusive, the agreement is presumed to be exclusive.
Asymmetric jurisdiction agreements are generally considered valid. If the parties to a foreign-related contract or other property rights dispute sign an agreement specifying that one party may bring a lawsuit in the court of one or more countries while the other party can only bring a lawsuit in the court of a specific country, and a party claims that the agreement is invalid due to manifest unfairness, the People's Court will not support such claims, except in cases involving consumer rights, labor rights, or violations of the exclusive jurisdiction provisions of the Civil Procedure Law.
16. Under what circumstances can a China court dismiss a lawsuit and inform the plaintiff to file a lawsuit in a more convenient foreign court when the defendant objects to the jurisdiction in foreign-related cases?
The revised Civil Procedure Law elevates the "inconvenient jurisdiction" rule to a legal provision. In cases where statutory conditions are met and it is significantly inconvenient for the People's Court to hear a case and for the parties to participate in the proceedings, the law moderately defers to the jurisdiction of another country's court. Article 282(1) of the Civil Procedure Law states that in foreign-related civil cases where the defendant objects to the jurisdiction and the following circumstances occur simultaneously, the People's Court may dismiss the lawsuit and inform the plaintiff to file a lawsuit in a more convenient foreign court:
·The basic facts of the dispute did not occur within the territory of the People's Republic of China, and it is significantly inconvenient for the People's Court to hear the case and for the parties to participate in the proceedings.
·(1) There is no agreement between the parties on the jurisdiction of the People's Court.
·(2) The case does not fall under the exclusive jurisdiction of the People's Court.
·(3) The case does not involve the sovereignty, security, or public interests of the People's Republic of China.
·(4) It is more convenient for a foreign court to hear the case.
Furthermore, considering the protection of the parties' interests, a relief provision is added in Article 282(2), stipulating that after the dismissal of the lawsuit, if a foreign court refuses to exercise jurisdiction over the dispute, fails to take necessary measures to hear the case, or fails to adjudicate the case within a reasonable time, and the parties subsequently file a lawsuit with the People's Court, the People's Court shall accept the case.
17. What are the translation requirements for foreign language documents submitted by parties?
When parties submit written materials in a foreign language to the People's Court, they must also submit Chinese translations simultaneously. If a party objects to the Chinese translation, they should jointly commission a translation agency to provide the translated text. If the parties cannot agree on the choice of the translation agency, the court will make the determination.
Disclaimer: This article is only for academic purpose and not intended for providing any legal advice for any specific cases, individuals or organizations.
