Editor's Note: The Third Seminar of the International Commercial Expert Committee of the Supreme People's Court and Reappointment Ceremony of the First Group of Expert Members was held successfully on Augest 25, 2022. Over 40 experts from more than 20 countries and regions focused on the theme of the Development, Challenges and Countermeasures of Cross-Border Commercial Disputes during the seminar. Extensive and in-depth discussions were held within the framework of four specific issues. The texts of speeches delivered by the participants would be posted on the CICC's website. 

UPDATE ON TRENDS IN CIVIL INTERNATIONAL JUDICIAL ASSISTANCE AND ITS CHALLENGES

Susan Finder

Distinguished Scholar in Residence, Peking University School of Transnational Law, 

member of the first group of International Economic Experts appointed by the Supreme People's Court

I have been asked to focus on civil international judicial assistance. My brief article addresses some of the larger trends in relation to the following major issues, as each relates to Hague Conference on Private International Law (HCCH) conventions.

A. Cross border taking of evidence, including remote methods, linked to the Hague Conference on International Law (HCCH)'s Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (Hague Evidence Convention);[1]

B. Cross-border service of process, including electronic methods, linked to the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention);[2] and

C. Substitutes for complicated legalization procedures, linked to the Convention of 5 October 1961 Abolishing the Requirement of Legalization for Foreign Public Documents (Apostille Convention).[3]

My suggestion is that if China is seriously considering harmonizing cross-border dispute resolution, as I understand to be the case, there are reasons for doing the detailed analysis needed concerning the following: 

1) Making some specific adjustments in relation to the Hague Evidence and Service Conventions; and

2) Considering acceding to the Apostille Convention.

I am aware that China has made reservations for mainland China in relation to the first two and has not ratified the third for mainland China. I will not provide a detailed discussion of the related issues, but rather provide a general overview of my thinking as a neutral observer to encourage the further research and analysis needed before any policy decision is taken.

A. Cross-border Taking of Evidence and the Hague Evidence Convention

The practical background for this topic, as most professionals are likely aware, is that over the past 10 or more years, cross-border taking of evidence has increasingly become more technological, both the nature of the evidence and the way in which the entities designated as the Central Authorities interact with one another and with parties. "Central Authorities" under the Hague Evidence Convention are those entities identified as performing that function.[4] Another aspect of the practical background is that the Chinese economy is integrated into the global economy. Among the consequences are that many more Chinese companies are doing business overseas and establishing affiliates. Chinese individuals are doing the same and some also go abroad to work for some of these Chinese companies. I'll identify the following international developments and issues related to the taking of evidence: 

1) increasing number of cases involving evidence located in China in the courts of China's trading partners and other courts where Chinese companies do business or in which the business of a company organized abroad in which access to evidence located in China is in controversy; 

2) Relatively new guidance from the HCCH related to the Hague Evidence Convention plus new German legislation changing Germany's absolute reservation concerning one article of the Hague Evidence Convention; and

3) Increasing number of cases in the Chinese courts involving evidence abroad including possibly testimony of experts and other witnesses abroad.

1. Cases in foreign (extra-territorial) courts involving evidence located in China

Many cases in foreign courts (extra-territorial) fall into this category. Some I am referring to cases either involving a Chinese party or with Chinese elements, in which access to evidence including, sometimes, witness testimony are principal issues. There are many in the United States, in both the federal and state courts and therefore quite a few articles by both academics and practitioners. Note that there are cases in courts of many other jurisdictions, such as Australia, Cayman Islands, Ghana, Nigeria, Congo, South Africa and I believe there are many more, including in an increasing number of countries that are China's partners in the Belt & Road Initiative. 

Many issues arise. One of the most common is whether if the jurisdiction has acceded to the Hague Evidence Convention and if so, whether local legislation intends is the Hague Evidence Convention to be the sole means of taking evidence abroad. Cases have arisen overseas in which parties have argued that the Data Security Law and Personal Information Protection Law and other related legislation (Chinese data legislation) block them from cooperating with local (foreign) court orders to provide evidence located in China.

a) Whether the Hague Evidence Convention is of mandatory character

On the first sub question, as to whether the Hague Evidence Convention is the sole guide to taking foreign evidence abroad, courts in several jurisdictions have ruled that the fact that a jurisdiction has acceded to the Hague Evidence Convention does not foreclose the application of local (foreign) civil procedure law to authorize evidence collection. The HCCH so notes in one of its publications: "Contracting Parties remain divided as to whether the Convention is of a mandatory character (i.e., whether the Convention needs to be applied whenever evidence is to be taken abroad, be it in person or by video-link).[5] Although the United States is often cited, it is not the only jurisdiction. On this point, the American Society of International Law's Bench book on International Law states:

Use of this treaty [Hague Evidence Convention] is not mandatory. Rather, as the Supreme Court explained in Société Nationale Industrielle Aerospatiale v. U.S. District Court, 482 U.S. 522, 536 (1987):

[T]he Convention was intended as a permissive supplement, not a pre-emptive replacement, for other means of obtaining evidence located abroad. Discovery may be sought either directly, because the court has personal jurisdiction over the entity in possession of the relevant information, or indirectly, by way of a request for assistance to a foreign court embodied by a letter rogatory. 

In either instance, the district court should determine on a case-by-case basis whether comity – by which courts, out of concern for friendly relations among countries, exercise discretion to conform to an international legal norm – militates in favor of resorting to the Convention's procedures rather than U.S. discovery rules.

There has been a great deal of litigation in the U.S. involving Chinese parties on this. Some U.S. courts order discovery irrespective of whether it conflicts with foreign laws, including Chinese law. There are many issues, including whether the evidence is in the possession of a party to the litigation or a third party. There has been a great deal of writing on this.[6] There is ongoing work among the federal courts, practitioners, and academics on the specialized topic of cross-border discovery in U.S. patent and trade secret cases that sometimes involve Chinese parties. The work includes best practices for counsel, parties, and the courts on case management where cross-border discovery is necessary. The best practices incorporate guidance that courts and counsel can use to plan for and streamline issues that arise because with cross-border discovery slows the litigation process.[7] Novel issues continue to arise, such as whether certain US legislation is intended to be applied extraterritorially. There is recent scholarly discussion of that point as well, as summarized in this brief article and in longer scholarly literature.[8]

b) Local Civil Procedure Law and Chinese data legislation

In the near term, I surmise that Chinese parties will raise a conflict between local law and recent Chinese data legislation as a reason for refusing to provide documents in litigation. Rather than cite U.S. cases, I will mention several decisions by the Grand Court of the Cayman Islands that address the argued conflict. According to Section 238(8) of the Cayman Islands Companies Law, a shareholder who dissents from a merger or consolidation of a Cayman company under the statutory merger provisions contained in Part XVI of the Companies Law are to be paid "the fair value of his shares." Several the cases involve companies with operations in China that are organized in the Cayman Islands, and several cases involve the question of whether the dissenting shareholder can obtain discovery of documents by dissenters from the company. Cases involve most recently Sina.com, with earlier cases involving Qihoo, Shanda Games, and Qunar.[9] The cases tend to require the companies to comply with discovery orders, such as the one involving Sina.com.  The Grand Court emphasized the critical importance of Sina's discovery in Section 238 proceedings, which is necessary to ensure a fair and proper trial, and to reach a fair value determination and encouraged Sina to obtain any necessary regulatory approvals but was not prepared to stop the discovery process. Sina was accordingly ordered to either comply with its discovery obligations within 70 days or to apply to the Court as soon as it perceived that it was not able to do so.[10] Professor Maggie Gardner has shown that U.S. courts have consistently refused to limit discovery requests in deference to foreign blocking statutes, and I would note that it is not an approach especially tailored in relation to China. A recent case in the U.S. federal courts is also relevant.[11]

2. Hague Evidence Convention-related developments

a) New Guidance of the HCCH

Second, I would like to introduce relatively new guidance by the HCCH relating to taking evidence. It is relevant to larger developments in cross-border dispute resolution, including those in the Chinese courts.  From my own research, it relates to what some Chinese courts have been doing in recent years, as well as guidance that a few Chinese courts have issued. 

In late 2020, the HCCH published a guide to good practice on the use of video-link[12] (the Good Practice Guide) under the Hague Evidence Convention. The Good Practice Guide reviews the latest developments in relation to the use of video-link in the taking of evidence under the Hague Evidence Convention and outlines good practices that could be followed by its member states. The Good Practice Guide emphasizes that the main objective of using a video-link is to ensure that it is held in a manner which is as close as possible to proceedings in a physical courtroom. Chinese law permits this in relation to video-links with foreign witnesses and I have seen related discussions in articles by Chinese judges.[13]

The Good Practice Guide discusses two different practices that have emerged in relation to the taking of evidence abroad by video link: taking evidence "directly" or "indirectly," depending on the authority which is taking the evidence.

a. the authority before which proceedings are pending (or a member of judicial personnel of that authority or a representative) conducts the witness examination by video-link with the permission and assistance of an authority of the State in whose territory the witness is located–in this sense, evidence is taken "directly" by video-link; and

b. an authority of the State in whose territory the witness is located conducts the witness examination and permits the requesting court (as well as the parties and / or their representatives) to be "present" at and / or participate in (but not conducting) the examination by video-link–in this sense, evidence is taken "indirectly" by video-link.[14]

It is a question whether Chapter I of Hague Evidence Convention permits direct taking of evidence by video link—different jurisdictions take different views, with most Asian, Latin American states as well as the United States answering the question in the negative. The Good Practice Guide discusses interpretation and well as many other associated matters, including technical matters. I surmise that worldwide we will see more evidence taken through video link. From some brief research on cases in the US courts, I can see that some cases involve Chinese plaintiffs who would like their witnesses located in China to testify by video link.[15]

Video link testimony from China already happens in international commercial arbitration. I can anticipate making a formal legal change is a matter for the Ministries of Foreign Affairs, Justice and the Supreme People's Court to research further in light of Chinese law and policy. I suggest, it could be possible to pilot any contemplated formal changes.

b) Pre-trial discovery and Article 23 of the Hague Evidence Convention

Next, I turn to developments relating to Article 23 of the Hague Evidence Convention, an article that relates to pre-trial discovery. That article enables contracting states at signature, ratification or accession to declare that "they will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries."[16] About 30 countries have an absolute reservation and almost 20 have a more limited form of reservation. 

On reservations to Article 23 of the Hague Evidence Convention, I would note that according to a recent amendment to German law that has recently become effective, Germany has changed its previous absolute reservation to a more limited one, following a recommendation of a Special Commission of the Hague Conference.[17] The German legislation permits German courts to execute requests for pre-trial discovery of documents if five conditions are met, including meeting German law requirements on personal data transfer and the request not violating fundamental principles of German law. It is early days to assess whether the German courts are being overburdened with requests for assistance in pre-trial procedures from the United States, United Kingdom and other common law jurisdictions, but in my assessment, it bears monitoring by Chinese observers. My reason for bringing this up is that I surmise that in the short to medium term, litigants in Chinese courts will seek assistance from foreign courts in obtaining pre-trial discovery of documents. It is my understanding that pre-trial proceedings in China have become increasingly important. 

3. Foreign evidence and expert witnesses in the Chinese courts

This observation draws from my own research and writing and relates to the increasing importance of foreign evidence and expert witnesses in the Chinese court. These cases are found both in Chinese arbitration and the courts and relate to disputes between two or more Chinese parties but linked with a project in a Belt & Road Initiative country. Based on my research, these cases have increased in recent years and will continue to increase, as more projects undertaken by Chinese contractors overseas encounter unanticipated problems and enter dispute settlement proceedings with one or more foreign counterparties and thereafter seek to claim their losses from their Chinese subcontractors (or sub-subcontractors) or suppliers or prevent their banker from paying out under a demand guarantee (or counter-guarantee).[18] According to articles I have read and professionals I have contacted, these cases are challenging for both arbitral tribunals and the courts to hear, particularly if much of the evidence is outside of China and especially if technical expertise is needed. It is yet another argument for having multilateral rules that enable video links.

B. Hague Service of Process Convention

From my own research, modernizing service of process is especially important in the Covid-19 era and is a concern worldwide. Therefore how to modernize service of process in a way that is acceptable to a variety of jurisdictions that view service of process through different lenses and implement different systems is important. As one of the leading experts on Hague Service Convention has written, although it is designed to be "technology-neutral, electronic communications make up a greater and greater share of the world's important correspondence. So, there is a felt need to make the Convention more modern."[19] From my own research, I can see that this is a topic that Chinese courts are exploring, as Chinese civil procedure law permits electronic service of process in foreign-related cases. This is also being explored in the Greater Bay Area. On the topic of the Hague Service Convention and new developments, I can point to some new cases and some recent thinking of the HCCH. I am aware that for Article 10, the Chinese government has declared that it "oppose[s] the service of documents in the territory of the People's Republic of China by the methods provided by Article 10 of the Convention."[20] Those methods include 10(a), the postal channel. This has been the subject of litigation in the United States and further litigation is likely, in my view.[21]

The questions most often discussed relate to service by private courier and email. Recent articles discuss whether private couriers such as DHL or Federal Express or SF Express would be considered the "postal channel," concluding that under US domestic law it should be considered so, but it is less clear internationally. Service by email raises a number of questions, including whether it should be considered the "postal channel." There have been cases decided both ways involving Chinese (and other) parties in the U.S. courts.[22] One practitioner I spoke with suggested email and a supplementary form of service by the Central Authority, additional actual service. From the 2019 HCCH a Bridged event on the Service Convention in the Era of Electronic and Information Technology, it is clear that the HCCH is rethinking approaches to service of process.[23] One of the suggested approaches discussed at the event was an electronic platform linking the Central Authorities, but the person addressing that issue, Katerina Ossenova of the U.S. Department of Justice, was not optimistic that such an approach would be successful. Another person who addressed that event discussed the possible use of blockchain. 

My suggestion is that a research team look more closely into the topics discussed at that 2019 event, engage with the HCCH more closely on the latest developments and to learn whether the organization plans an updated Handbook to the Hague Service Convention. If the Chinese courts serve process by email or other electronic platforms abroad but do not permit it on an incoming basis, it would appear inconsistent to the foreign observer. The Chinese courts could pilot electronic service with one or more jurisdictions before making any more significant changes.

C. Simplifying Legalization Matters

Four years ago, when I spoke at the first expert seminar, I mentioned the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalization for Foreign Public Documents, often known as the "Apostille Convention," because as a consequence, local authorities issue an Apostille. I note that the Supreme People's Court's judicial interpretation on evidence has more flexible provisions on overseas notarization and legalization as compared with prior law.

The Apostille Convention has over 120 contracting parties, including many jurisdictions that are part of the Belt & Road Initiative. I am aware that this matter is a particular concern of the Ministry of Justice and the Ministry of Foreign Affairs as notarization and legalization is not the primary responsibility of the courts. Therefore I will mention it briefly.

The purpose of the Convention is to abolish legalization of public documents (as defined by the Convention) with the issuance of a single Apostille certificate by entities identified to the HCCH as a Competent Authority in the place where the document originates.[24] This has become particularly important during the pandemic, as many public offices do not operate as they did before the pandemic, inconveniencing not only litigants but many others that need to provide officially authenticated public documents in another jurisdiction. The HCCH launched the electronic Apostille Programme (e-APP) in 2006 to support the electronic issuance and verification of Apostilles around the world. The HCCH has many assets on its website explaining the details of the Apostille Convention along with a great deal of practical guidance.[25] Therefore I suggest that the Apostille Convention be examined in detail, particularly its practical aspects.

The reason I mention it again is that appears, from my own research, I can see that several Chinese provincial bureaux of Justice are experimenting with foreign-related electronic notarization, to better convenience overseas Chinese, who find it difficult to return to China during the Covid-19 pandemic. It appears that Guangdong and Zhejiang are among the provinces taking the lead. 

Acceding to the Apostille Convention and the e-App in particular has been identified by the World Bank as a way of improving the doing business climate.[26] It has been designed in a way that maintains the integrity of public document authentication and can also continue to maintain a revenue stream for jurisdictions that charge fees for authentication services. I can recognize that acceding to the Apostille Convention would involve a significant investment in retraining notaries all over the country, amending legislation, and educating all of those in the legal profession, including public security, procuratorate, and courts in how to distinguish an authentic from a fraudulent Apostille or e-App. It would also have an impact on the revenue stream relating to the notarization and legalization process. Finally, it would have an impact on existing laws, regulations, and judicial interpretations. It would mean a great deal of work in reviewing a large number of items of legislation that mention the requirement of notarization and legalization for matters relating to jurisdictions outside of mainland China. At the least, I would recommend a further detailed review of the legal impact of acceding to the Apostille Convention. If China does not take steps toward acceding to it, it means that China is out of step with most jurisdictions in the world in an area where harmonization is possible.

D. Conclusion

I will end my repeating the suggestion that I made in the beginning: if the Chinese government is seriously considering harmonizing cross-border dispute resolution and taking a more prominent role on the international law stage, as I understand to be the case, please consider the reasons I provided above for doing the detailed analysis needed concerning the following: 

1) making some specific adjustments in relation to the Hague Evidence and Service Conventions, so as to make cross-border evidence collection and service of process more efficient, while protecting China's interests;

2) considering acceding to the Apostille Convention, which will eventually be of the most benefit to Chinese companies and individuals.

[1] https://www.hcch.net/en/instruments/conventions/specialised-sections/evidence  This page links to the full text of the Hague Evidence Convention and many other materials.

[2] https://www.hcch.net/en/instruments/conventions/full-text/?cid=17; This page links to many assets related to the Hague Service Conventions https://www.hcch.net/en/instruments/conventions/specialised-sections/service

[3] This page links to the full text of the Apostille Convention and many other assets https://www.hcch.net/en/instruments/conventions/specialised-sections/apostille .

[4] Those are listed at the following location: https://www.hcch.net/en/instruments/conventions/authorities1/?cid=82

[5] 1970 Evidence Convention, Guide to Good Practice, the Use of Video-Link, https://www.hcch.net/en/news-archive/details/?varevent=728, 2020, at 43.

[6] https://www.anjielaw.com/en/news/1428.html and https://www.clearyenforcementwatch.com/wp-content/uploads/sites/487/2020/05/Bank-of-China-Gucci-Case-Study-FINAL.pdf. This article combines analysis by the well-known law firm Cleary Gottlieb Steen & Hamilton with advice by the Tian Tong Law Firm. 

[7] Commentary on Cross-Border Discovery in U.S. Patent and Trade Secret Cases, Sedona Conference, May 2021, https://thesedonaconference.org/sites/default/files/publications/Cross-Border%20Discovery%20in%20US%20Patent%20and%20Trade%20Secret%20Cases%20%28May%202021%29.pdf

[8] Throwback Thursday, American Banana and the Presumption Against Extraterritoriality, TLB, July 14, 2022, https://tlblog.org/throwback-thursday-american-banana-and-the-presumption-against-extraterritoriality/

[9] International Corporate Rescue, Published by: Chase Cambria Company (Publishing) Ltd, https://www.conyers.com/wp-content/uploads/2018/06/2018_03_CAY_Article_In_the_Matter_of_Qunar_Cayman_Islands_Ltd.pdf

[10] Cayman Court extends the timing of factual evidence in section 238 proceedings until third party disclosure is completed, Ogier, May 25, 2022, https://www.ogier.com/publications/snapshot-cayman-grand-court-considers-section-238-valuation-date-and-impact-of-prc-laws

[11] William Dodge, Court Holds that China’s Data Privacy Law Does Not Bar U.S. Discovery, July 6, 2022, 

 https://tlblog.org/court-holds-that-chinas-data-privacy-law-does-not-bar-u-s-discovery/

[12] Supra note 6.

[13] “一带一路”倡议和全球疫情常态化下我国域外取证制度之完善——以引入视听传输技术为中心, https://www.chinalaw.org.cn/portal/article/index/id/31035/cid/990999.html；越秀区法院发布《境外证人远程在线作证的指引》,https://news.dayoo.com/guangzhou/202112/14/139995_54140161.htm

[14] Supra note 6 at 47.

[15] Shenzen Synergy Dig. Co. v. Mingtel, Inc., casetext,https://casetext.com/case/shenzen-synergy-dig-co-v-mingtel-inc

[16] Supra note 2.

[17] Britta Grauke and Gero Pogrzeba,Recent Changes to German Administrative Practice on the Taking of Evidence: Art. 17 of the Hague Evidence Convention, December 9, 2021, https://european-disputes-blog.weil.com/germany/recent-changes-to-german-administrative-practice-on-the-taking-of-evidence-art-17-of-the-hague-evidence-convention/

[18] Susan Finder, Invisible Belt & Road Disputes, June 22, 2021, Supreme People’s Court Monitor blog, https://supremepeoplescourtmonitor.com/2021/06/22/invisible-belt-road-disputes/

[19] Ted Folkman, Service by Email and the Hague Service Convention, April 4, 2022, https://tlblog.org/service-by-email-and-the-hague-service-convention/

[20] 14: Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, HCCH, https://www.hcch.net/en/instruments/conventions/status-table/?cid=17

[21] Ted Folkman, Case of the Day, Rockefeller v. Changzhou Sinotype, April 13, 2020, https://folkman.law/2020/04/13/case-of-the-day-rockefeller-v-changzhou-sinotype/; see also Ted Folkman, Changzhou Sinotype v. Rockefeller, More Developments, September 29, 2020, https://folkman.law/2020/09/29/changzhou-sinotype-v-rockefeller-more-developments/

[22] David Zaslowsky, Serving by Email Under the Hague Convention for cases in the US Courts, August 4, 2021, 

https://www.ibanet.org/serving-by-email-under-hague-convention-us-courts

[23] The HCCH Service Convention in the Era of Electronic and Information Technology, HCCH a Bridge Edition 2019, Nov. 22, 2019, https://assets.hcch.net/docs/24788478-fa78-426e-a004-0bbd8fe63607.pdf

[24] 12: Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, HCCH, https://www.hcch.net/en/instruments/conventions/authorities1/?cid=41.

[25] 14: Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, HCCH, https://www.hcch.net/en/instruments/conventions/full-text/?cid=17 

[26] World Bank, FDI Regulations and the Hague Apostille Convention, June 27, 2013, http://mddb.apec.org/Documents/2013/EC/WKSP3/13_ec_wksp3_012.pdf 

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*The original text is Chinese and has been translated into English for reference only. If there is any inconsistency or ambiguity between the Chinese version and the English version, the Chinese version shall prevail.