Notarization and Authentication Matters for Foreign Companies Participating in Litigation in China
1. Identity - related Documents (Company Registration Certificate, Certificate of Identity of the Legal Representative)
1.1 Company Registration Certificate
First, submit the document to the local notary office for notarization. Subsequently, if the country is a contracting state of the Convention, the process can be simplified by directly applying for the "Apostille". If it is a non - contracting state, it is necessary to complete the authentication at the Chinese embassy or consulate in the local area.
1.2 Certificate of Identity of the Legal Representative
Foreign companies do not have the concept of a "legal representative", and the names of the company's chairman or directors are not recorded on the company registration certificate. Therefore, it is necessary to notarize the company's articles of association or the list of the board of directors to confirm the person with signature authority. This person can then sign a certificate of identity of the legal representative. The subsequent procedures are the same as those for the company registration certificate.
2. Signature - related Documents such as Power of Attorney and Statement of Claim
2.1
After determining the person with signature authority according to the above - mentioned identity - related documents, the power of attorney should be signed. This power of attorney also needs to go through local notarization, authentication at the Chinese embassy or consulate in the local area (if it is a non - contracting state), or the Apostille procedure of the Convention (if it is a contracting state).
2.2
If it is confirmed that a non - Chinese lawyer is entrusted to represent a foreign enterprise or organization in litigation, this person (in the case of a foreign natural person) needs to notarize his/her identity locally as required, and go through the authentication at the Chinese embassy or consulate in the local area (if it is a non - contracting state) or the Apostille procedure of the Convention (if it is a contracting state).
[Explanation of Legal Provisions]
Paragraphs 2 and 3 of Article 521 of the "Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China" (2022 Amendment) state: "For a foreign enterprise or organization participating in litigation, the identity - related documents submitted to the people's court shall be notarized by the notary office of the country where it is located and authenticated by the embassy or consulate of the People's Republic of China in that country, or go through the certification procedures specified in the relevant treaties concluded between the People's Republic of China and the country where it is located.
The person representing a foreign enterprise or organization in litigation shall submit to the people's court a certificate proving his/her authority to participate in litigation as a representative. This certificate shall be notarized by the notary office of the country where it is located and authenticated by the embassy or consulate of the People's Republic of China in that country, or go through the certification procedures specified in the relevant treaties concluded between the People's Republic of China and the country where it is located."
Notarization and Authentication Matters of Evidence from Abroad in Chinese Litigation Procedures
Evidence from abroad refers to evidence provided by parties in civil and commercial litigation that is formed outside the territory of the People's Republic of China. The "Guidelines on Several Issues Concerning the Review of Evidence from Abroad in Civil and Commercial Litigation (Tianjin)" promulgated by the Higher People's Court of Tianjin on January 15, 2018, further states that "although the evidence involves abroad during its formation process, due to factors such as receipt, acquisition, arrival, and completion, if it is finally and irrevocably formed within the territory of the People's Republic of China, this evidence may not be recognized as evidence from abroad." According to the judicial practice of the Supreme People's Court, if a party believes that the evidence in dispute is evidence from abroad, it needs to provide evidence to prove this.
1. Public Documentary Evidence
Public documentary evidence includes judgments and rulings made by foreign courts, documents issued by foreign administrative agencies, and documents such as commercial registrations, birth and death certificates, and marital status certificates issued by foreign public institutions.
1.1
Before and after the entry into force of the Convention, for public documentary evidence, it only needs to be notarized by the notary office of the country where it is located, and there is no need to go through the consular authentication procedure (nor the "additional instruction" process).
1.2
When the authenticity of relevant public documentary evidence can be verified through the Internet or when both parties recognize it, theoretically, there is no need to go through the notarization and authentication procedures.
[Legal Basis]
Paragraph 1 of Article 16 of the "Provisions of the Supreme People's Court on Evidence in Civil Litigation" (2019 Amendment) (Fa Shi [2019] No. 19): "If a public documentary evidence provided by a party is formed outside the territory of the People's Republic of China, this evidence shall be notarized by the notary office of the country where it is located, or go through the certification procedures specified in the relevant treaties concluded between the People's Republic of China and the country where it is located."
Article 16 of the "Minutes of the National Symposium on Foreign - related Commercial and Maritime Trial Work of the People's Courts" on January 24, 2022: "The public documentary evidence specified in Article 16 of the 'Provisions of the Supreme People's Court on Evidence in Civil Litigation' includes judgments and rulings made by foreign courts, documents issued by foreign administrative agencies, and documents such as commercial registrations, birth and death certificates, and marital status certificates issued by foreign public institutions, but does not include documents issued by private institutions such as foreign appraisal agencies. If a public documentary evidence is formed outside the territory of the People's Republic of China, it shall be notarized by the notary office of the country where it is located, or go through the corresponding certification procedures, except when the authenticity of the public documentary evidence can be verified through the Internet or when both parties have no objection to the authenticity of the public documentary evidence."
2. Evidence Related to Personal Relationships
The law does not clearly define which evidence belongs to evidence related to personal relationships. Referring to Article 461 of the "Civil Code", Article 264 of the "Civil Procedure Law of the People's Republic of China", Article 523 of the "Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China", and relevant judicial practices, such evidence may include evidence related to adoption, guardianship, employment, labor, and entrusted agency relationships.
2.1
Before the entry into force of the Convention, for evidence related to personal relationships, it was necessary to first notarize it at the notary office of the country where the evidence is located and then complete the authentication at the Chinese embassy or consulate in the local area.
2.2
After the entry into force of the Convention, for evidence related to personal relationships, first notarize it at the notary office of the country where the evidence is located, and then go through the authentication at the Chinese embassy or consulate in the local area (if it is a non - contracting state) or the Apostille procedure of the Convention (if it is a contracting state).
[Legal Basis]
Paragraph 2 of Article 16 of the "Provisions of the Supreme People's Court on Evidence in Civil Litigation" (2019 Amendment) (Fa Shi [2019] No. 19): "Evidence related to personal relationships formed outside the territory of the People's Republic of China shall be notarized by the notary office of the country where it is located and authenticated by the embassy or consulate of the People's Republic of China in that country, or go through the certification procedures specified in the relevant treaties concluded between the People's Republic of China and the country where it is located."
3. Other Evidence from Abroad
Before and after the entry into force of the Convention, notarization and authentication procedures are not mandatory, except when the court deems it necessary.
[Legal Basis]
Article 39 of the "Minutes of the Second National Foreign - related Commercial and Maritime Trial Work Conference" (Fa Fa [2005] No. 26): "For evidence formed outside China provided by the parties, the people's court shall handle it differently according to different circumstances: 1. For evidence proving the subject qualification for litigation, relevant notarization, authentication, or other certification procedures shall be carried out; 2. For other evidence, the party providing the evidence can choose whether to carry out relevant notarization, authentication, or other certification procedures, except when the people's court deems it necessary."
4. Consequences of Failure to Notarize or Authenticate Evidence from Abroad
For evidence formed abroad that has not undergone notarization or authentication, the court cannot determine the evidence to be invalid solely for this reason. The court should still organize the parties to cross - examine the evidence and review and determine it in combination with the parties' cross - examination opinions. However, in practice, some courts directly exclude such evidence from cross - examination and authentication. It is recommended to communicate with the court in a timely manner to safeguard the right to present evidence.
[Legal Basis]
Article 39 of the "Minutes of the Second National Foreign - related Commercial and Maritime Trial Work Conference" (Fa Fa [2005] No. 26): "For evidence formed outside China, regardless of whether notarization, authentication, or other certification procedures have been carried out, the people's court shall organize the parties to cross - examine the evidence and review and determine it in combination with the parties' cross - examination opinions."
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