Originially from: World Arbitration and Mediation Review (WAMR)

CHINA ACCEDES TO HAGUE CONVENTION
ON SERVICE OF JUDICIAL DOCUMENTS
By Michael J. Moser and Clifford Borg-Marks, Baker & McKenzie, Hong Kong
On March 2, 1991, the Standing Committee of the Seventh National People’s
Congress of the People’s Republic of China adopted a Decision to Approve
China’s Accession to the Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters (the “Convention”).
Once China’s accession becomes effective, the Convention will greatly simplify
and expedite the procedures for service of process on parties in China who are
involved in legal proceedings in countries which are parties to the Convention.
The Convention
The Convention, done at The Hague on November 15, 1965, is intended to
facilitate the transmission of judicial and extrajudicial documents in connection
with civil or commercial matters arising in one contracting State for service on
parties in another contracting State. To date, 27 States have ratified or acceded to
the Convention, including France, Germany, Italy, Japan, Sweden, the United
Kingdom and the United States. The Convention is extended to Hong Kong by
virtue of a United Kingdom declaration.
One of the principal features of the Convention is the provision that judicial and
extra judicial documents may be served by an authority or judicial officer in the
State where the documents originate through the “Central Authority” of the State
where the party intended to receive the documents resides. In its Decision to
Approve Accession, China stipulated that the Ministry of Justice shall be
designated as the “Central Authority” for purposes of the Convention.
The Convention requires that documents transmitted to the Chinese Ministry of
Justice must be sent under cover of a standard form Request which is annexed to
the Convention. The Ministry of Justice is empowered by the Convention to
require that any document which it has been requested to serve under the
Convention must be translated into Chinese.
Pursuant to Article 13 of the Convention, China may not refuse to comply with
a Request unless it deems that compliance would infringe its “sovereignty or
security”. The Convention makes clear that refusal to comply with a Request is
not justified solely on the ground that, under Chinese law, a Chinese People’s
Court would claim exclusive jurisdiction over the subject matter of the action or
that Chinese law would not permit an action on which the application is based.