A Guide for Foreign Parties on Appointing a Chinese Lawyer for Litigation in Mainland China

Parties to cross-border litigation include foreign nationals, residents of the Hong Kong Special Administrative Region (SAR), Macao SAR, and the Taiwan region, mainland Chinese citizens who are habitually resident abroad or in the aforementioned regions, as well as enterprises and organizations registered abroad or in those regions.

For foreign individuals or enterprises located outside of mainland China who wish to appoint a Chinese lawyer to file a lawsuit against an individual or enterprise in mainland China, a series of legal procedures must be followed to ensure the validity of the relevant legal documents. The core requirements are to verify the authenticity and legal standing of the principal and the litigation entity, and to grant the Chinese lawyer the authority to act as their legal agent. Under Chinese law, foreign nationals, stateless persons, foreign enterprises, and organizations must appoint a practicing lawyer of the People's Republic of China to act as their agent in litigation before Chinese courts.

Before initiating legal proceedings, the following core documents must be prepared:

I. Preparation of Core Documents

1. Power of Attorney (PoA): This is one of the most critical documents. It explicitly defines the scope of authority granted to the Chinese lawyer to conduct litigation activities on behalf of the principal within China.

2. Proof of Identity and Legal Status (Subject Qualification Documents):

  • For foreign individuals: A passport or other valid identification document is typically required.

  • For foreign enterprises: Business registration documents, a certificate of incorporation, or similar official records are needed to prove the company's legal existence and good standing.

3. Certificate of Legal Representative: If the litigant is a foreign enterprise, documentation is required to prove that the person signing the Power of Attorney is authorized to represent the company.

4. Evidence: All evidence relevant to the case, such as contracts, agreements, email correspondence, payment records, photographs of goods, etc.

II. Notarization and Authentication of Documents

Since the above-mentioned documents are executed outside of China, they must undergo a rigorous notarization and authentication process to be legally valid in Chinese courts. This process varies depending on whether the country where the documents are executed is a contracting state to the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (the Hague Apostille Convention). China formally acceded to this convention on November 7, 2023.

Contracting states to the Hague Convention include (this is a partial list; the full list can be found at the reference link below):

  • Asia: China (including Hong Kong and Macao), India, Japan, South Korea, Singapore, Philippines, Kazakhstan, Turkey, Israel, etc.

  • Europe: Germany, France, Italy, Spain, United Kingdom, Russia, etc.

  • North America: United States, Canada.

  • South America: Argentina, Brazil, Chile, etc.

  • Oceania: Australia, New Zealand, etc.

1. If the document is from a Hague Convention Member State:
The procedure is relatively streamlined and typically involves two steps:

  • Local Notarization: First, the relevant documents are notarized by a Notary Public in the country of origin.

  • Apostille: The notarized documents are then submitted to the designated competent authority of that country (often the Ministry of Foreign Affairs) to obtain an "Apostille" certificate.

2. If the document is from a Non-Hague Convention Member State:
The traditional, three-step "consular legalization" process is required:

  • Local Notarization: First, the documents are notarized by a local Notary Public.

  • Authentication by the Foreign Ministry: The notarized documents are then sent to the foreign affairs ministry of that country for authentication.

  • Legalization by the Chinese Embassy or Consulate: Finally, the authenticated documents are submitted to the Chinese Embassy or Consulate in that country for final consular legalization.

3. Translation of Documents
All documents submitted to a Chinese court must be translated into Chinese.

III. Alternative and Expedited Procedures for Authorization

In addition to the traditional notarization and authentication procedures, Chinese law provides several more convenient alternatives for completing the authorization process, particularly when the party or their representative is able to travel to China or utilize modern technology:

  • Witnessing by a Judge: If a foreign individual or the legal representative of a foreign enterprise can travel to China, they may sign the Power of Attorney in the presence of a Chinese judge at the court.

  • Notarization within China: The party or their representative can also have the Power of Attorney notarized at a notary office within mainland China.

  • Online Video Witnessing: In accordance with relevant regulations from the Supreme People's Court, parties to cross-border litigation may apply to the court to complete the authorization process via online video conferencing, witnessed by a judge.

IV. Engaging a Chinese Lawyer and Filing the Lawsuit

Upon completion of the document preparation and the necessary notarization and authentication procedures, the original copies of these documents should be sent to the chosen lawyer in China. After receiving and reviewing the documents, the lawyer will draft the Statement of Claim (Complaint) and other necessary legal instruments to formally initiate the lawsuit at a competent Chinese court (typically the court in the defendant's locale).

In summary, appointing a Chinese lawyer from abroad to initiate litigation in China is a procedurally rigorous process. The key is to ensure that the Power of Attorney and the proof of identity and legal status undergo the proper legal procedures of notarization and authentication to be recognized by the Chinese judicial authorities. It is highly recommended to communicate thoroughly with the selected Chinese lawyer before commencing the process to ensure all documents and procedures comply with Chinese legal requirements.

References: