Practical tips for offshore litigation and the People’s Republic of China
On this month’s episode of Take 10, Asia Managing Partner Ian Mann is joined by Shanghai Managing Partner Vicky Lord to discuss the nuances and practicalities of offshore litigation from within the People’s Republic of China (PRC).
Our lawyers in Shanghai provide advice to clients in the PRC on their offshore dispute matters. The PRC has a number of foreign law firms within its borders, all regulated by the Ministry of Justice of the People's Republic of China, providing foreign law advice to clients on the ground in the PRC. At Harneys, our lawyers advise on BVI, Cayman and Bermuda* law.
Hong Kong and Singapore differ from Shanghai in that they have common law systems, as do the offshore jurisdictions. In contrast, Shanghai and the PRC is governed by a civil law system.
Clients in the PRC use offshore vehicles for their international business transactions which qualify as foreign related transactions and are therefore capable of being governed by a foreign law.
The PRC is a member of the Hague Service Convention, however it has objected to Article 10 of the Convention, and therefore service through postal channels is not permitted. Service can still occur within the PRC through the Central Chinese Authority, but certain criteria must be met.
PRC law explicitly forbids foreign lawyers and other foreign personnel from carrying out judicial acts (such as taking depositions) in the territory of the PRC. As a result, witnesses travel to other jurisdictions outside of the PRC if they need to provide evidence in foreign litigation.
In the PRC, affirmations can be declared before a notary public and can be affirmed directly in Chinese; however, if it is in English, some notaries may require a full translation of the affirmation; or indeed it may not be possible at all. Different regions in the PRC have different approaches.
Unless an affirmation is required, for the purposes of commercial claims, witness statements are acceptable to support interim applications and are therefore an efficient and preferred method.
*Bermuda law advice is provided through Zuill & Co., an independent Bermudian law firm in exclusive association with Harneys.
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