Whether you are an attorney with a key witness in China or that key witness domiciled in China, you should know that China does not permit attorneys to take depositions in China for use in foreign courts. (link to: https://travel.state.gov/content/travel/en/legal-considerations/judicial/country/china.html).
Specifically, Article 277 of China's Civil Procedure Law provides that:
“The request for and provision of judicial assistance shall be conducted through the channels stipulated in the international treaties concluded or acceded to by the People's Republic of China; where no treaty relations exist, the request for and provision of judicial assistance shall be conducted through diplomatic channels.
The embassy or consulate in the People's Republic of China of a foreign state may serve documents on, investigate, and take evidence from its citizens, provided that law of the People's Republic of China is not violated and that no compulsory measures are adopted.
Except for the circumstances set forth in the preceding paragraph, no foreign agency or individual may, without the consent of the competent authorities of the People's Republic of China, serve documents, carry out an investigation or take evidence within the territory of the People's Republic of China.”
Thus, generally, China prohibits the taking of evidence on its land by agencies or individuals—foreign and domestic—for governmental use that is other than its own, unless, there is consent of a relevant Chinese authority. Furthermore, China has made it clear that it will refuse any request to take discovery which it deems may violate the sovereignty, security, or social and public interest of China.
Moreover, under its Declarations and Reservations to the Hague Evidence Convention and subsequent diplomatic communications, China has indicated that taking depositions and obtaining other evidence in China for use in foreign courts may, as a general matter, only be done through requests to its Central Authority under the Hague Evidence Convention. This is the case whether a deposition is voluntary or compelled by the court in a foreign jurisdiction. Consular depositions require permission from the Central Authority on a case-by-case basis and the Chinese Department of State will not authorize the involvement of consular personnel in a deposition without receiving this permission.
Article 5(1)(a) of the guide drawn up by China's Ministry of Justice for Formal Service states:
“[t]he Central Authority of China refers the document to the competent court. The court will serve the document directly to the addressee or the person who is entitled to receive the document. Where direct service is impracticable in some cases, other methods may be employed in accordance with the Civil Procedure Law.”
The guide goes on in Article 5(2), to discuss Informal Delivery, by stating: “[t]here is no such method in Chinese domestic law, and the addressee may refuse to accept it in any case.” Finally, “Service by a particular method” (Article 5(1)(b)) states that “[i]n such cases, the Central Authority of China forwards the documents to the competent court. The competent court may execute the service to the extent not contrary to Chinese domestic law.”
Despite the fact that these formal, official vehicles for obtaining discovery exist, according to U.S. officials, in more than 30 years under the Consular Convention and 13 years under the Hague Convention, China has only granted permission for taking such a deposition on one occasion. In fact, those who participate in unauthorized depositions can result in serious sanctions ranging from arrest, detention, or deportation.
If you have a willing witness in China, the best practice in most cases would be to ask the witness to travel voluntarily to the United States for the deposition. Not only would this be more convenient and cost-effective for U.S. lawyers, it will also guarantee a friendly forum and avoid many of the obstacles placed in obtaining depositions for a U.S. court. Alternatively, you may elect to have your witnesses deposed in a location close to China – such as Hong Kong or Macau – that would permit depositions for an American lawsuit. However, you should check to ensure that electronic depositions are permissible in your jurisdiction (e.g. NY CPLR § 3113). If you have an unwilling witness, it may be harder to convince them to travel, and you may need to get creative: One online lawyer's forum dedicated to discussing this issue suggested scheduling depositions near a Disney park as added incentive for reluctant witnesses to travel.
When participating in cross-jurisdictional litigation, it is important to consider the rules and regulations of each jurisdiction. As this blog post has indicated, failure to do so could result in serious consequences far beyond the scope of your lawsuit.
Please note that this article is for informational purposes only and does not constitute legal advice. If you have questions regarding your particular situation, please contact a qualified attorney.