Public Service of Process in International Legal Matters – Special Considerations in Lawsuits Against Chinese Companies
The international service of lawsuits presents significant challenges for parties in civil proceedings whenever the opposing party is located abroad. If the defendant company is based in the People’s Republic of China, additional procedural hurdles arise. As a result, the practice of public service of process is becoming increasingly important, as highlighted by a recent decision of the Regional Court of Frankfurt am Main dated February 7, 2025 (Case No. 2-06 O 426/24).
International Service of Process: Procedural Mechanisms and Obstacles
Regular Methods of Service
The starting point for judicial service of process involving a foreign element is the application of international conventions and national procedural law. The Hague Service Convention of 1965 (HSC) serves as the primary framework, to which the People’s Republic of China is also a party. It governs the transmission of judicial and extrajudicial documents abroad and requires the designation of a central authority in the receiving state. The German judiciary has established procedures for this: transmission by court, involvement of the German central authority, and forwarding into the foreign proceedings.
Practical Difficulties with China
The real challenge arises in relation to the People’s Republic of China: there, the procedural requirements for foreign judicial assistance requests are often restrictive. Chinese authorities scrutinize requests for service extremely strictly and refuse cooperation in a significant number of cases. This applies, for example, in situations where domestic service is considered inadmissible for political or substantive reasons. The consequence is a significant delay in the proceedings or, as frequently reported, service of process that ultimately proves ineffective.
Public Service of Process as a Last Resort
Requirements and Procedure
If proper service abroad fails or appears hopeless, the German Code of Civil Procedure (ZPO) provides the option of public service in accordance with § 185 ZPO. However, the attempt to exhaust the respective international service procedures always takes priority.
In the underlying order of the Regional Court of Frankfurt am Main, public service of process for a lawsuit against a company based in China was ordered after the conventional avenues of service had demonstrably been unsuccessful. The court based its decision on the fact that service according to the HSC was unlikely to succeed and a further attempt would not increase the prospects of success. The required conditions of failure and unreasonableness of alternative methods of service were therefore met.
Balancing Procedural Interests
The court examined in detail whether public service was nevertheless justified in light of the principle of the right to be heard and fair trial requirements. The decision makes clear that formal requirements and actual circumstances must be weighed. The protection of the defendant against a “pro forma” service is taken into consideration just as much as the legitimate interest of the plaintiff in enforcing their rights in court. Public service therefore remains limited to exceptional situations in which legally prescribed service has demonstrably failed.
Legal Consequences of Public Service in the German-Chinese Context
Commencement of Deadlines and Entry into Legal Force
With public service, the document is considered to have been served and the procedural deadlines begin, even though actual knowledge by the defendant abroad is generally not assured. In the international context, particularly when the defendant company has its registered office in the People’s Republic of China, this may affect the actual awareness of defense rights. This is known to the German legislature and the courts, which is why admissibility is only recognized under clearly documented circumstances.
Recognition and Enforcement Abroad
Another area of conflict lies in the question of whether a judgment obtained in Germany against a Chinese company can be recognized and enforced in China. The circumstances of public service may, in individual cases, lead the Chinese authorities to refuse application of the foreign judgment if they regard the procedural safeguards as insufficient. This is particularly important to keep in mind if subsequent enforcement in China is sought.
Conclusion and Outlook
The decision by the Regional Court of Frankfurt am Main underscores the ongoing complexity of international legal enforcement, especially in commercial disputes involving China. The options for public service of process provide a means of achieving legal protection but remain subject to stringent requirements. It is always decisive that all reasonable and provided methods of service have been exhausted and that repeated attempts are expected to provide no additional benefit.
The development of international service of process law, especially regarding economic relations with companies in China, remains a dynamic field with significant procedural particularities. It is therefore advisable to seek expert assistance in cross-border disputes and related questions of service.
For further information and individual assessment, the lawyers of MTR Legal support you nationwide and internationally—always with consideration for the latest developments and the legal framework conditions.
