In our previous post, Mr. Chenyang Zhang introduced the documents that foreign companies need to prepare for litigation in China.
Mr. Chenyang Zhang mentioned in Foreign Companies Prepare for China’s Civil Litigation:
Apart from pleadings and evidence, foreign companies in Chinese courts need to complete a series of formalities, which can sometimes be somewhat cumbersome. Therefore, it is necessary to spare sufficient time (and costs) to get ready.
Specifically, If you are a foreign company, then you need to prepare the following documents:
- Business license of your company, to indicate who you are;
- Bylaws or resolution of the board of directors of your company, to indicate who is your company’s legal representative or authorized representative in this lawsuit;
- Certified documents, to indicate what is the name and position of your company’s legal representative or the authorized representative;
- Passport or other identity documents of your company’s legal representative or the authorized representative;
- Power of attorney, to mandate a Chinese lawyer and signed by your company’s legal representative or the authorized representative;
- Notarization and authentication documents, to prove the authenticity of these materials as described above.
It will take you some time and cost to prepare the above documents.
Mr. Chenyang Zhang described these documents in more detail:
1. Certificates of Subject Qualification: ‘who am I’ and ‘who represents me’
To participate in China’s civil litigation, the certificates of subject qualification that foreign companies need to submit include:
- Business License, or the certificate document on good standing issued by enterprise registration authority;
- Documents certifying the status of the legal representative or the authorized representative (e.g. the company‘s bylaws, resolution of the board of directors, etc.);
- Documents certifying the identity (“identity certificate”) of the legal representative or the authorized representative, including his/her name and position;
- Passport or other identity documents of the legal representative or the authorized representative.
If a foreign company has a legal representative, like a Chinese company’s registered ‘legal representative’, he or she may also participate in the litigation on behalf of the company. In order to certify his or her status, the foreign company generally needs to submit its bylaws or other similar documents.
As for the foreign company without a legal representative, it is required to specifically empower an ‘authorized representative’ to participate in the lawsuit. In this respect, the foreign company needs to submit a related board resolution made pursuant to its bylaws.
2. Power of attorney: ‘who is my lawyer’
The foreign companies often need to mandate Chinese lawyers, and hence need to submit the power of attorney to the courts. The power of attorney shall be signed by the legal representative or the authorized representative as described above.
3. Notarization and authentication: ‘my instruments are authentic’
Most of the subject qualification documents and the authorization procedures of foreign companies are formed outside the territory of China. In order to confirm the authenticity of these materials, Chinese laws require that the content and the formation process of the materials be notarized by a local foreign notary (the step of “notarization”), and then be authenticated by the Chinese embassy or consulate in that country so as to certify that the signature or seal of the notary is true (the step of “authentication”).
The time and cost you will spend on notarization and authentication depend on the notary and the Chinese embassy or consulate where you are located. We suggest you consult your local lawyer or notary.
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Contributors: Meng Yu 余萌