By: Akanksha A. Panicker
[1.0] Internationa China Maco Process Service
International service of process in China can be completed through both the Hague Service Convention’s formal method and the informal method of service via an agent.
The Hague Convention governs China Maco Process Service. China has formally rejected Article 10 of the Hague Service Convention, which indicates service is never authorized via postal channels. China does not allow for an informal method of service and will not uphold any ruling or judgment where service has not been completed through the formal method, since they have also voiced opposition to several other service methods offered under Article 10 and even can be quite reluctant in the processing of letters of request for judicial assistance. No service is accessible through any other networks apart from explicitly mandated. The Central Authority of China refers the document to the competent court responsibluting for executing using direct service to the addressee or any individual liable to receive the documentation. However, if personal and direct service cannot be done, the domestic Civil Procedure Law’s provisions will kick in. Service on a Chinese company by mail is not effective, and U.S. courts have held that China’s formal objection to service by mail under Article 10(a) of the Convention is valid.
China also has implied that depositions can only be provided through requests submitted in China’s central authority under the Convention. Furthermore, depositions for use in foreign courts cannot be done by American attorneys who are situated in the receiving country.
Translation of the documents is mandatory wherein the Central Authority will not entertain any request that is not properly translated. Consequently, all translated documents need to be translated into simplified written Chinese. The appropriate forwarding authorities are [A.] the Ministry of Justice, [B.] Higher People’s Court, and [C.] five province authorities: Beijing, Shanghai, Jiangsu, Zhejiang, and Guangdong.
If translated right, the appropriate forms and payment will be attached to the Central Authority in China. The plaintiff will get intimation only when the proof of service or non-service has been established. Although China did not make a specific reservation regarding translations when it acceded to the Hague Convention on service, China’s Central Authority has advised the U.S. Embassy in Beijing that documents to be served in China must be translated into Mandarin Chinese. Payment is made on a reciprocal basis, which often means that a fee of USD 95 must be sent.
It is imperative to identify the defendant’s address to be served since an incorrect address could result in the return of documents, which would mean that the plaintiff would have to serve the documents via Letters Rogatory all over again. Consequently, due diligence must be exercised in identifying whether the defendant actually resides in that same address and whether it is formatted correctly. Furthermore, a complete and concise USM-94 (United States Marshall Form) must be submitted as well as signed by a court official or an authority.
It came into existence to give litigants a reliable and efficient means of serving the documents on parties living, operating, or based in another country. This applies to service provisions f the process in civil and commercial matters but not criminal matters. The Convention shall not apply if the person’s address to be served with the document is not known.
Hong Kong accepts service of process under the Hague Service Convention. Under this Convention, the contracting states are instructed to designate a central authority to accept incoming service requests. A judicial officer who is competent to serve process in the state of origin is permitted to send a service request directly to the state’s state’s state’s state’s central authority where service is to be made.
Hong Kong process service allows the service of documents as effected by the Chief Bailiff of the Court. Since formal and direct service is highly preferred, it is necessary to either [A.] complete personal service on addressee if the addressee is a natural person or [B.] leave the registered office documents to address if the addressee is a limited company or corporation. To determine the company’s address, limited company, or corporation, the Companies Registry provides a repository of the entities in Hong Kong. Service can also be done personally on an officer of the company or corporation if the addressee is a limited company or corporation; the registered office is no longer occupied or used by the addressee.
Upon receiving the request, the receiving state’s central authority arranges for service in a manner permitted within the receiving state, typically through a local court. Once service is effected, the central authority sends a service certificate to the judicial officer who made the request.
Unlike the reciprocal system in China, Hong Kong does not enforce any fee to execute requests under the Convention. However, if the plaintiff specifically requests a service method, they must reimburse the costs of said method of service. For example, if enacts service an advertisement enacts service in the newspaper, the charges must be reimbursed. Ordinarily, service is affected by the Bailiff. The time taken for the completion of service can be carried out in three months or so.
Furthermore, the charges made by solicitors or attorneys nominated to serve process by foreign judicial officers, officials, or other competent persons are not regulated by the Government, which allows them to charge on a casewise basis and follow the services required and time is taken to execute the request.
Article 5(2) Service: The Chief Bailiff also carries out the informal deliveries can even be carried out by a particular method as requested by the applicant unless such a method is incompatible with the local law.
The original documents served need to be either in English or Chinese. However, if this is not the case, it is necessary to translate the documents into either language.
A recent development in the Hong Kong Process Service between countries is implementing the Arrangement for Mutual Service of Judicial Documents in Civil and Commercial Cases between the Hong Kong Special Administrative Region and the Macao Special Administrative Region. The Arrangement was first signed in December 2017 and came into force from 1st August 2020. It overcomes limitations in the indigenous civil procedure rules that rendered litigants from Hong Kong reliant on merely private means to affect individuals’ service Macao. While previously litigants in Macao have to rely on service like engaging attorneys to serve process therein, the Arrangement allows designated authorities to transmit and execute requests for service of judicial documents in civil and commercial proceedings. Service requests may be made through the Court of Final Appeal of Macao and Hong Kong’s High Court.
The arrangement also provides the type of documents that can be shared between the countries. Article 2 of the document allows judicial documents from Hong Kong that provide for service of duplicate copies of originating process and notices of appeal, summonses, pleadings, affidavits, judgments/decisions/rulings, notices, court orders, certificates of service, and their relevant attachments. However, it is necessary to produce a letter of request detailing the types of documents attached. It is imperative that this request either be in Chinese or be translated into the same.
The special administrative regions (SAR) are one type of provincial-level administrative division of the People’s Republic of China directly under the Central People’s Government. As a region, they possess the highest degree of autonomy in China. Despite the relative autonomy that the Central People’s Government affords special administrative regions, the National People’s Congress can unilaterally write laws in secret for special administrative regions that are not read publicly until they are passed.
Consequently, the china maco process service requirements in Macao is different. The main forwarding authorities for Macao’s documents are the judge in charge of the instant process and the Procuratorate of the Macao Special Administrative Region.
Macao is a former colony of the Portuguese Empire after Ming China leased the territory as a trading post in 1557. Portugal paid an annual rent and administered the territory under Chinese sovereignty until 1887, when it gained perpetual colonial rights in the Sino-Portuguese Treaty of Peking. The colony remained under Portuguese rule until 1999, when it was transferred to China. Macao is a special administrative region of China, which maintains separate governing and economic systems from those of mainland China under the principle of “one country, two systems”
After receiving the service request, the Central Authority needs to forward the request to the above authorities of the Macau SAR. The domestic Civil Procedure Code also allows for service to be made using a registered letter, attached with a judicial officer’s personal contact, or a reception notice as left with the addressee. The service using personal contact falls lower in the hierarchy than the service by registered letter and can only be enacted after its failure. The judicial officer must supply the relevant documents to the recipient, whereupon the recipient must sign a certificate acknowledging that the documents have been delivered.
In certain cases, the attorney can provide the service to be done. Another attorney can complete the service he instantly appoints or by another individual who is duly registered to render forensic services.
The declaration made by the People’s Republic of China and the Macao Civil Procedure Code specifies that the documents as communicated must be either written in Chinese or Portuguese or must have an accompanying translation in Chinese or Portuguese.
Unlike with the China People’s Republic Process Service, no charge is incurred in a service request. Furthermore, the request is liable to be executed in three to four months.
For information on serving legal papers, click here or call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST. If you found this article helpful, please consider donating. Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us! We also invite you to check out the Hague Services Convention Articles’ complete breakdown by clicking here.
1. Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters,
2. Article 10
Provided the State of destination does not object, the present Convention shall not interfere with –
a) the freedom to send judicial documents, by postal channels, directly to persons abroad,
b) the freedom of judicial officers, officials, or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials, or other competent persons of the State of destination,
c) the freedom of any person interested in a judicial proceeding to directly affect service of judicial documents through the judicial officers, officials, or other competent persons of the State of destination.
3. The specific articles opposed to by China includes:
• Article 8(2)
• Article 10(a)
• Article 10(b)
• Article 10(c)
4. Formal Service (Art. 5(1)(a)):
The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either –
a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory,
5. See DeJames v. Magnificence Carriers, Inc., 654 F.2d 280 (3d Cir. 1981), cert. den., 454 U.S. 1085; Dr. Ing H.C. F. Porsche A.G. v. Superior Court, 123 Cal. App. 3d 755 (1981)
6. USM-94, Request for Service Abroad of Judicial or Extrajudicial Document: (USMS), U. (n.d.). U.S. Marshals Service. Retrieved December 11, 2020, from https://www.usmarshals.gov/process/foreign_process.htm
7. [available at http://www.usmarshals.gov/forms/usm94.pdf] (2) t
9. Article 5, Hague Service Convention:
The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either –
a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or
b) by a particular method requested by the applicant, unless such a method is incompatible with the State’s law.
Subject to subparagraph (b) of the first paragraph, the document may always be served by delivery to an addressee who accepts it voluntarily.
If the document is to be served under the first paragraph above, the Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed.
In the form attached to the present Convention, which contains a summary of the document to be served, that part of the request shall be served with the document.
10. Order 69, Rule 3, Rules of High Court, Chapter 4A, Laws of the Hong Kong Special Administration Region:
1)If the request is in a language other than either or both of Hong Kong’s official languages, it shall be accompanied by a translation of the request in either of Hong Kong’s official languages, 2 copies of the process and, unless the court or tribunal of a country or place outside Hong Kong certifies that the person to be served understands the language of the process, 2 copies of the translation of the process. (L.N. 39 of 1999)
(2)Subject to paragraphs (3) and (5) and any enactment providing for the manner of service of documents on corporate bodies, the process shall be served by the process server’s leaving a copy of the process and a copy of the translation or certificate, as the case may be, with the person to be served.
(3)The provisions of Order 10, rule 1(2)(b) regarding service by insertion through a letter-box shall apply to the service of process from a country or place outside Hong Kong as they apply to the service of writs, except that service may be proved by an affidavit or by a certificate or report in such form as the Registrar may direct. (L.N. 39 of 1999)
O69, Rule 3.
(4)The process server shall send to the Registrar a copy of the process and an affidavit, certificate, or report proving due service of process or stating the reason why service could not be affected, as the case may be. It shall, if the Court so directs, specify the costs incurred in effecting or attempting to effect service.
(5)Order 65, rule 4 (substituted service) shall apply to the service of process from a country or place outside Hong Kong as it applies to the service of writs, except that the Registrar may make an order for substituted service of process from a country or place outside Hong Kong-based on the process server’s affidavit, certificate or report, without an application being made to him in that behalf. (L.N. 39 of 1999)
(6)The Registrar shall send a certificate, together with a copy of the process, to the consular or other authority, the judicial authorities, or the Chief Secretary for Administration, as the case may be, stating— (L.N. 362 of 1997; L.N. 39 of 1999; L.N. 25 of 2020)
a)when and how service was effected or the reason why service could not be affected, as the case may be;
(b)where appropriate, the amount certified by the taxing master to be the costs of effecting or attempting to effect service.
(7)The certificate under paragraph (6) shall be sealed with the High Court’s seal for use out of the jurisdiction. (25 of 1998 s. 2)
11. Article 3
The authority or judicial officer competent under the law of the State in which the documents originate shall forward to the Central Authority of the State addressed a request conforming to the model annexed to the present Convention, without legalization other equivalent formality.
The document to be served or a copy thereof shall be annexed to the request. The request and the document shall both be furnished in duplicate.