The Ministry of Justice of the PRC provides clarifications on legal assistance in international civil and commercial cases – Civil Law

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On June 24, 2022, the Ministry of Justice of the People’s Republic of China (“PRC Ministry of Justice”) published an article in the form of questions and answers regarding legal assistance in international civil and commercial cases ( “Q&A”). In this Q&A, the Ministry of Justice of the PRC expressly states, among other things, that a judicial administration (including a court) or an individual in a foreign jurisdiction cannot directly question a witness who is in the territory of CPR, either by phone call, virtual meeting or using any other technology. Instead, the court administration must seek legal assistance in accordance with the Civil Procedure Law of the PRC.

Based on the Q&A, there are only two ways to question such a witness: (i) a country that is a member of the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (“Convention of The Hague on Evidence”) may request the Ministry of Justice of the PRC to provide legal assistance in accordance with the Convention; or (ii) a non-member country may request assistance through diplomatic channels.

In this regard, the Ministry of Justice of the PRC clearly states in the Q&A that it is prohibited for a witness in the territory of the PRC to attend the hearing of a foreign dispute, whether voluntarily or by means of a summons to appear issued by the foreign judicial administration.

The Ministry of Justice of the PRC also points out that due to security requirements for cross-border data transfer, any data information located within the territory of the PRC cannot be provided to a court administration or an agent of a foreign jurisdiction without the approval of the government authority of the PRC. in charge.

An arbitral tribunal does not appear to fall within the scope of “judicial or individual administration”, so it is not clear whether the above rules apply to an arbitration in a foreign jurisdiction.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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