Dear Ted,

In China, if a foreign defendant who has neither domicile/habitual residence nor a competent agent in China, Chinese courts will use the Hague Service Convention. In Chinese Civil Procedure Law, public announcement is the last resort for service but I do not think it can be applied to a foreign defendant in the above situation.

I guess the defendants in the Liu Li case were in California so the court could use public announcement for service of process.

Jeanne, thanks for your comment, and congratulations on your report! I trust you’ll keep of posted on any additional Chinese decisions along the lines you mention here.

One point of clarification: the domicile of the Chinese defendants shouldn’t determine whether the Convention applies. If the method of service chosen does not require transmission of the document to China for service, then the Convention doesn’t apply no matter where the defendants live. Is that how Chinese courts see things?

It is still unclear whether the Chinese court should make an independent determination of whether service was appropriate in the judgment rendering court. Further, which law that Chinese court should apply to determine the appropriateness of the service. The Liu Li court simply accepted the U.S. court’s decision that substituted service by publication was appropriate. HOWEVER, the Liu Li court also found that the two respondents’ habitual residence was in China. Therefore, the question is whether the Chinese court should apply the Hague Service Convention instead of the U.S. law to determine whether the service of process in the U.S. court is appropriate.

Moreover, the Liu Li court does not make an independent determination of whether the U.S. court has jurisdiction and also which law should be applied to make such determination. Under Australian common law, Australian courts apply Australian law to determine whether the judgment rendering courts have international jurisdiction. In contrast, the Liu Li court does not examine the U.S. court’s jurisdiction at all.

Chinese Supreme People’s Court should provide guidance to lower courts in these aspects.