As Chinese lawyers, we have received a lot of queries about whether a foreign company or foreigner can file a lawsuit with the Chinese court, especially when they are not in China, against a Chinese company or individual and how to do so. Based on our experience of assisting foreign clients with dispute resolution, we will offer answers in general to the most-consulted questions in this article.
Q1: Can a foreign company or foreigner file a lawsuit against a Chinese company or individual if they are not in China?
A1: Yes. And a foreign company or foreigner can do so without coming to China.
Q2: Can a foreign company or foreigner engage a lawyer in their countries to file a lawsuit in China on their behalf?
A2: No. A foreign company or foreigner has to be represented by a lawyer licensed to practice in China.
Q3: Where should a foreign company or foreigner file the lawsuit in China?
A3: First, you may refer to your contract to check whether you have made relevant provisions on the jurisdiction. If such provisions are not against the Chinese laws, you may bring the action to the competent court as agreed in the contract. It is noteworthy that the location of the agreed court must have substantial connection with the dispute, which means it can be either party’s domicile, place of registration, place of business operations, or the place where the contract is signed or performed or the subject matter of the contract is located.
Some ask whether the agreed jurisdiction will be deemed ineffective if the parties so choose because the legal system is better in this country or region or is favorable to one party but the place chosen has no substantial connection with the dispute. The answer is yes, as proven by cases from the Supreme People’s Court in China. Therefore, when you are stipulating the agreed jurisdiction, you have to take substantial connection into consideration.
Second, normally it is in your discretion to choose Chinese or foreign courts for jurisdiction in the contract. But the Chinese courts have exclusive jurisdiction over the following disputes: real estate disputes, disputes arising from harbor operations, inheritance disputes, disputes arising from performing in China the Chinese-foreign equity joint ventures contracts, Chinese-foreign cooperative joint ventures or contracts for Chinese-foreign joint exploration and exploitation of natural resources.
Third, if you have no agreement on the jurisdiction, in principle the courts in the place where the Chinese defendant is located have jurisdiction.
Fourth, in addition to the location, you need also to consider the level of courts. For your information, we have introduced the “four levels” court system in the “Debt Collection: How to Get Your Money Back Legally in China”. Generally speaking, the jurisdiction of different levels of courts is associated with the amount in dispute. The more the plaintiff claims, the higher level the competent courts will be.
In practice, the jurisdiction over some cases involving foreign elements can be more complicated and has to be analyzed on a case-by-case basis. The analysis above in this section is offered in general for your reference. If you are involved in a complicated case, please consult a Chinese lawyer.
Q4: What should a foreign company or foreigner prepare for the litigation?
A4: Generally speaking, in a case involving foreign elements, special requirements are provided for the following documents: power of attorney, certificate of incorporation and identity document of the representative (applicable to foreign companies) and certain evidence produced outside the territory of the PRC. These documents are to be notarized in the local notary and then authenticated by the Chinese embassy or consulate in the country, or authenticated as otherwise stipulated in the treaty entered into by the country and the PRC.
As for the representative, if the certificate of incorporation shows the representative or the authorized signatory of the company, such representative or authorized signatory may sign the power of attorney on behalf of the company. If not, the board of directors of the company may appoint a representative in writing and the representative appointed will sign the power of attorney.
As for the evidence, as per Article 16 of the Several Provisions of the Supreme People’s Court on Evidence in the Civil Procedure (2019 Amendment), if the public documents are produced outside the territory of the PRC, such evidence should be notarized by the local notary, or authenticated as otherwise stipulated in the treaty entered into by the country and the PRC. If the evidence concerning identity relationships is produced outside the territory of the PRC, such evidence should be notarized by the local notary and then authenticated by the Chinese embassy or consulate in the country, or authenticated as otherwise stipulated in the treaty entered into by the country and the PRC. In other words, such notarization and authentication procedures will be waived for evidence other than public documents and identity relationship-related evidence produced outside the PRC.
Q5: How long does a litigation take approximately?
A5: From our experience, the entire case generally takes around 6 to 12 months from serving of documents to obtaining judgment in the first instance. An appeal usually takes around 4 to 8 months to judgment. These depend on the complexity of the case and the workload of the competent court. Introduction of the “two instances” trial system can be found in the “Debt Collection: How to Get Your Money Back Legally in China”.
It is noteworthy that there is no clear limit on the trial period of a case involving foreign elements, irregardless of whether it’s the first instance or second instance. So it may take longer if the case is more complicated. Still we would recommend filing the lawsuit when necessary. From our experience, under the pressure of litigation, sometimes it’s more likely to reach a settlement.
Q6: Can a foreign company or foreigner seek injunctive relief in China?
A6: No. But there is a similar system in China named property preservation, through which you can prevent the other party from transferring its properties and force the other party to reach a settlement. Most courts require clues about the other party’s property if you want to apply for property preservation.
If you have the information of the other party’s property (e.g. bank account, the address of the real estate), you can apply to the court for property preservation before or after the case is filed. The latter one is easier to be accepted by the court. In order to apply for property preservation, you will be required to provide certain guarantee for such measure (e.g. security deposit, guarantee letter issued by guarantee companies).
Q7: Will it help to send a Letter of Demand (“LOD”) before filing the lawsuit?
A7: Not necessarily. It depends on the conditions of each case. In some cases, sending a LOD can suspend the statute of limitation. In some other cases, it can be counterproductive if as the situation demands, you need to file the lawsuit and apply for property preservation as soon as possible. Nevertheless, LOD is still a way to solve the problem at a reasonable cost. If you are interested, please refer to the “Lawyer’s Letter: Resolving Your Dispute in China” for more information.
Q8: What costs may be incurred during litigation in China?
A8: The following costs and fees may be incurred:
(1) lawyer’s fee
(2) court fee. According to Measures on the Payment of Litigation Costs, the amount under the litigation claim in a property case shall be paid by adding up to the amounts within the following rate brackets:
(3) translation fee. Evidence in foreign language should be translated into Chinese by a qualified translation company.
(4) costs of preservation and guarantee fee (if applicable). If you apply for preservation at the same time as filing the case, you will have to pay the costs of preservation to the court, which will not exceed RMB 5,000. If a guarantee company is required to issue a letter of guarantee when applying for property preservation, the guarantee company will also charge a corresponding guarantee fee for issuing the letter of guarantee.
Except the above, other costs, such as travel expenses, can be incurred.
This article provides general information for reference only and is not intended to provide legal advice or guarantee any results. If you are considering filing a lawsuit against a company or individual in China, we are pleased and ready to help. Please feel free to contact us via email@example.com.