For foreign and domestic parties alike, collection of evidence within China can raise some interesting and specific issues. Such evidence may be foundational for a dispute before a PRC court or arbitral institution, a foreign lawsuit which has Chinese elements, or for a party seeking to identify assets within China.
In some situations, foreign parties will have access to the evidence on which they seek to rely to support their allegations. In other cases, attempting to gather evidence within China requires a party to navigate what can be a seemingly difficult legislative and administrative tapestry. This is particularly so given discovery is not a process that is directly reflected in the Chinese Civil Procedure Law (CPL) and that under Chinese law, lawyers are not permitted to take depositions in China for use in foreign courts.
Depending on the purpose for which the party requires the evidence, foreign parties may be required to consider:
- the powers of the PRC courts and arbitral tribunals to investigate and collect evidence on behalf of the parties; and
- whether the foreign party can request mutual legal assistance and, if so, under which route.
Power of courts and tribunals
In China, where a party has been unable to obtain sufficient evidence, an opposing party is rarely required to produce evidence to support the party’s claim. As a result, parties may have to rely on the court or arbitral tribunal’s power to investigate and collect evidence on behalf of the parties.
“Units” and individuals who are approached by the court when exercising this investigative function must not refuse to provide information or evidence (CPL, article 65). The court also has certain powers regarding the obtaining of expert evidence, including the power to refer a technical matter to expert evaluation (CPL, article 76).
The processes surrounding the investigation and collection of evidence within Chinese arbitral tribunals are similar. One notable difference relates to when a party seeks to make an application to preserve evidence. In this case, parties are required to apply to the arbitral tribunal, which will forward the application to the court.
Private investigators and investigation companies are not empowered to collect evidence under Chinese law. In practice, foreign parties and their agents may use means to collect evidence in China for a foreign court proceeding or make arrangements to take evidence from a witness in Hong Kong. Such methods, however, are not permitted under Chinese law and may impact the ultimate enforceability in China of a judgment founded on such evidence.
Mutual legal assistance
A party to a foreign legal proceeding may seek evidence within China by way of:
Bilateral treaty. An example of a bilateral treaty is the treaty between Australia and China on Mutual Legal Assistance in Criminal Matters which took force in 2007. A request for mutual assistance is sent to the Ministry of Justice, where it is examined and reviewed to determine whether it violates the legal principles and interests of China, and whether the request is otherwise valid.
International conventions. Relying on the provisions of a relevant international convention to which China is a party, including the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters. Under the Hague Convention, Letters of Request for the taking of evidence are transmitted from the requesting court to the Central Authority of the home jurisdiction which then transfers the request to its counterpart Central Authority in China, the Ministry of Justice, rather than via diplomatic channels.
Some jurisdictions – including the UK, the Czech Republic, Denmark, France, Germany, Greece, Norway, Poland and Sweden – allow the requesting court to transfer the request directly to the foreign central authority. In China, five provincial-level High Courts – located in Beijing, Shanghai, Guangdong, Zhejiang and Jiangsu– have the power to put forward and transfer letters of request directly to, but not receive letters of request directly from, a foreign central authority.
Following receipt by the Ministry of Justice, the Letter of Request is then sent to the Supreme Court for review, which may take six to 12 months. If approved, the request will be sent to a lower court for execution.
Diplomatic channels. taking evidence at a foreign embassy or consulate from its citizens, provided it is not against Chinese law and no compulsory measures are taken (CPL, article 277).
Co-operation. A request can be made by a foreign country for evidence through informal channels such as the police or the anti-corruption authorities. Any assistance rendered would be on the basis that these authorities would receive assistance in return. Police assistance may be given under the Interpol co-operation framework. Similar channels of co-operation exist in relation to customs and immigration matters.
If a request for assistance in the investigation and collection of evidence is made by a foreign court, a PRC court is not required to render the assistance requested by the foreign court if it is considered harmful to China’s sovereignty, security or social and public interests (CPL, article 262). The Supreme Court may also refuse to execute a Letter of Request issued for the purpose of obtaining pre-trial discovery if the documents are not clearly enumerated in the Letters of Request or if the request fails to establish a direct and close connection with the subject matter of the litigation.
While there are multiple avenues open to foreign parties seeking to obtain evidence within China, some of these avenues can be lengthy and costly to pursue. Parties who are required to obtain evidence from China in relation to a proceeding or arbitration commenced in China or abroad are advised to seek advice early as to their prospects of obtaining the evidence, and the way in which they should go about the evidence gathering process.
Liu Yuwu (Anthony) is a partner and Zhang Jun (James) is an associate at King & Wood Mallesons in Beijing. Louise England is a solicitor at the firm in Melbourne Note: this article was originally published on Business Law.