Elgar Asian Commercial Law and Practice series
Chapter 5: SELECTED PROCEDURAL ISSUES IN FOREIGN-RELATED LITIGATION IN CHINA
Although this book focuses on private international law questions, it cannot avoid some important procedural issues in foreign-related actions. These issues are closely connected to foreign-related actions and the implementation of private international law. Even if a Chinese court has jurisdiction and is willing to exert jurisdiction to hear a dispute, the proceedings cannot be commenced, nor can the purpose of the proceedings be achieved, if the defendant cannot be served, if the court cannot take evidence abroad, if the foreign claimant is required to provide security for cost and cannot pay, if one of the parties needs judicial aid but cannot acquire it, if the defendant continues the alleged wrong or infringement, or if the defendant hides or removes assets out of the jurisdiction. This chapter discusses these important procedural matters in foreign-related litigation in the Chinese courts. After the claimant commences legal proceedings in China, the Chinese court should serve process on the defendant. Service of process is an exercise of judicial sovereignty. As a result, Chinese law provides restrictive rules on extraterritorial service, focusing on the protection of national and judicial sovereignty instead of pragmatic convenience and efficiency. If the defendant has no domicile in China, the court could serve the claim form through any means approved in Article 267 of the CPL. Article 267 provides eight authorized ways to serve judicial documents on defendants with no domicile in China.
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