How To Sue A China Company (Part 1)

What are some of the challenges of litigating against Mainland Chinese companies?

What should you do if you are owed money by or have been wronged by a Mainland Chinese company? Bring a lawsuit against the Chinese company, of course. But how?

Mainland Chinese courts do not enforce U.S. judgments. Therefore, it will probably be a waste of time for you to bring a lawsuit in a U.S. court against a Chinese company that does not have assets in either the United States or in a country that enforces U.S. judgments. However, it is important that you research where the “Chinese” company is actually based because Mainland China, Hong Kong, Taiwan, and Macao are different jurisdictions entirely.

This series of posts will discuss the challenges of litigating against Mainland Chinese companies and will offer guidance in overcoming these challenges, both in the United States and in China.

Jurisdiction. Jurisdiction will usually be the first issue you will need to resolve in formulating your litigation strategy against a Chinese company. Suing a Chinese company in the United States requires the typical contact inquiry involved in suing any foreign company. See Asahi Metal Industry Co. v. Superior Court of California, Solano Cty., 480 U.S. 102 (1987); Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114 (9th Cir. 2002).

An American company usually faces no jurisdictional bar to suing a Chinese company in Mainland China. Articles 3 and 237 of the Civil Procedure Law of the People’s Republic of China grant Chinese courts jurisdiction over international cases involving a foreign plaintiff against a Chinese company. Though suing in China is usually possible, it obviously should not be done without a better understanding of what it will actually entail.

If a U.S. court has jurisdiction over a Chinese company, suing that Chinese company in a U.S. court typically will differ from suing a domestic company on: service of process; discovery; litigation strategy; and the already mentioned enforcement of judgment.

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Service of Process. China is party to the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters. Thus, service on a Chinese company must comply with this Convention. Service under the Hague Convention on Service is effected through the designated Chinese Central Authority in Beijing, which is the Bureau of International Judicial Assistance, Ministry of Justice of the People’s Republic of China.

A U.S. company suing a Chinese company in a U.S. court must submit the following to China’s Ministry of Justice:

  1. A completed United States Marshal Form USM‐94.
  2. The original English version of the documents to be served. The summons must have the issuing court’s seal.
  3. The Chinese translation of all documents to be served. Because the USM-94 will not be served, that form does not need to be translated.
  4. A photocopy of each of the above documents.

Though China did not make a specific reservation regarding translations when it acceded to the Hague Convention on Service, China’s Ministry of Justice has advised the U.S. Embassy in Beijing that documents to be served in China must be translated into Mandarin Chinese. Since China’s Ministry of Justice is the government entity that effects service of process in China, it only makes sense to comply with its requirements.

China’s Ministry of Justice will send your service of process documents to the appropriate local court and that court will effect service. In our experience, Chinese courts are fairly slow (and getting slower) to send out service. If the Chinese company being sued is a powerful local entity, service may be even slower. Repeatedly calling and emailing both the court itself and the Ministry of Justice usually expedites service. You should figure on service taking three to six months.

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China formally objected to service by mail under Article 10(a) of the Hague Convention on Service and U.S. courts have held that objection valid. 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).

In Part 2 of this series, I will discuss how to conduct discovery against a Chinese company you have sued in a U.S. Court. Part 3 will focus on litigation strategies when suing a Chinese company and enforcing U.S. judgments against such companies. Part 4 will discuss arbitrating against Chinese companies and suing them in China.


Dan Harris is a founding member of Harris Moure, an international law firm with lawyers in Seattle, Chicago, Beijing, and Qingdao. He is also a co-editor of the China Law Blog. You can reach him by email at firm@harrismoure.com.