Introduction
According to the provisions of the Civil Procedure Law of China, when a plaintiff, appellant, or applicant for enforcement submits case - filing materials to the court for suing a Chinese company, they need to submit a Chinese subject qualification certificate. If they entrust an agent, they need to submit a power of attorney. If the plaintiff is a Chinese citizen, a copy of their ID card should be submitted. If the plaintiff is a Chinese legal person, a copy of the legal person's business license, a certificate of the legal representative, and a copy of the legal representative's ID card are required. Then, if the plaintiff is a foreign company, what kind of subject qualification certificate documents and power of attorney should be submitted to the court?
As a Chinese lawyer, the author has handled many cases where foreign enterprises sue Chinese companies. When applying for case - filing in the court, I guided foreign companies to prepare notarized and authenticated subject qualification documents and entrustment procedures. Now, I would like to share with you the precautions and insights on how foreign enterprises should submit subject qualification documents and entrustment procedures when suing Chinese companies.
Subject Qualification Certificate Documents of Foreign Enterprises
Foreign enterprises refer to those registered outside the People's Republic of China. Their subject qualification certificate documents are issued by the competent authorities of their registration place, similar to the business licenses of Chinese domestic enterprises. The names of the subject qualification certificate documents of foreign enterprises vary, and their contents also differ in complexity, but they have something in common. At least, they all include the name, registration date, and registration authority of the foreign enterprise.
According to 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>", when a foreign enterprise or organization participates in a lawsuit against a Chinese company and submits an identity certificate document to the People's Court of China, it shall be notarized by the notary organ of the country where it is located, and authenticated by the embassy or consulate of China in that country, or go through the certification procedures stipulated in the relevant treaties concluded between China and the country where it is located.
Therefore, the identity certificate document of a foreign enterprise needs to be notarized by the notary organ of the country where it is located and authenticated by the embassy or consulate of China in that country.
Authorization Representative Certificate Documents of Foreign Enterprises
When Chinese enterprises participate in litigation, in addition to the business license, they also need to submit a certificate of the legal representative. However, foreign enterprises generally do not have the concept of a legal representative, and the official seals of foreign enterprises are not engraved in accordance with Chinese laws and do not have the same legal effect as those of Chinese enterprises. Therefore, foreign enterprises generally authorize an authorized representative to sign documents on behalf of the company. This authorized representative can be a director of the company, or other senior executives or staff members. The authorization representative certificate document needs to clearly state who is entrusted as the authorized representative of the company and specify their authorization authority.
In practice, people often ask whether the registered list of directors plus the official record or the director's resolution signed in front of a notary can prove that the director has the right to sign on behalf of the enterprise. In fact, without the authorization of the company, the director does not naturally have the right to sign legal documents on behalf of the company. Only when the company clearly designates who the authorized representative is and issues an authorization representative certificate document can the authorized representative sign on behalf of the company.
Regarding the authorization authority of the authorized representative, if it is for a single case, the authorization authority can be written more clearly and specifically to avoid abuse of power. If it involves multiple cases, the authorization authority can be written more broadly, for example, to fully represent the company to sign all legal documents. The authorization representative certificate document with broad authorization authority can be used in multiple litigations, without the need to re - handle the authorization representative certificate document in other litigations, which can save time and money for the parties.
The authorization representative certificate document is a document formed outside the country. Like the subject qualification certificate document of a foreign enterprise, it needs to be notarized and authenticated abroad. Of course, it can also be combined with the subject qualification certificate document of a foreign enterprise into one notarized and authenticated document.
Identity Documents of the Authorization Representative
Just as Chinese enterprises need to submit a copy of the ID card of the legal representative, foreign enterprises, in addition to submitting the authorization representative identity certificate document, also need to submit the identity document of the authorized representative. If the authorized representative is not of Chinese nationality, a passport or other valid identity documents can be submitted.
When foreign enterprises entrust litigation agents for suing Chinese companies, they need to sign a power of attorney. As mentioned above, the authorized representative can sign documents on behalf of the company, including the power of attorney.
If the authorized representative is abroad, the power of attorney signed by them is a document formed abroad. Similar to the previous subject qualification certificate document and authorization representative identity certificate, it needs to be notarized and authenticated abroad.
If the authorized representative is in China, according to 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>": "Where the representative of a foreigner, foreign enterprise or organization signs a power of attorney in the presence of a judge of the People's Court to entrust an agent to conduct civil litigation, the People's Court shall recognize it." Article 524: "Where the representative of a foreigner, foreign enterprise or organization signs a power of attorney within the territory of the People's Republic of China to entrust an agent to conduct civil litigation and it is notarized by a notary institution of the People's Republic of China, the People's Court shall recognize it." The power of attorney can also be signed by the authorized representative in the presence of a judge or signed and notarized within China.
Conclusion
On November 7, 2023, the "Convention Abolishing the Requirement of Legalization for Foreign Public Documents" (the Hague Convention of 5 October 1961 Abolishing the Requirement of Legislation for Foreign Public Document, hereinafter referred to as the "Convention") officially came into force in China. China and 124 countries officially exempted the consular authentication procedures, accounting for about three - fifths of the total number of countries and regions in the world, including EU countries, the United States, Japan, South Korea, Germany, Australia, Russia and other major trading partners of China and most of the countries participating in the Belt and Road Initiative.
The "Convention" is an international treaty with the widest scope of application and the largest number of contracting members under the framework of the Hague Conference on Private International Law. It aims to simplify the cross - border transfer process of public documents, replace traditional consular authentication with a more convenient certification method, and promote international economic and trade and people - to - people exchanges. Since November 7, for public documents sent from China to other contracting states for use, only the Apostille specified in the "Convention" needs to be handled, and they can be sent to other contracting states for use without going through the consular authentication of China and the embassies and consulates of the contracting states in China. For public documents of other contracting states sent to the Chinese mainland for use, only the Apostille of that country needs to be handled, without going through the consular authentication of that country and the Chinese embassies and consulates in that place.
Based on this, the author believes that the subject qualification certificate documents and authorization representative identity certificate documents submitted by foreign enterprises when suing Chinese companies fall into the category of public documents of other contracting states sent to the Chinese mainland for use. According to the provisions of the "Convention", the Apostille of that country can replace the original consular authentication. Of course, currently, the "Convention" has just come into force, and the court's case - filing review is relatively strict. How to specifically replace the original consular authentication with the Apostille in litigation practice, and whether the Apostille needs to be notarized in the local contracting state? We look forward to the early introduction of relevant regulations of the court regarding this matter when filing cases, and also encourage everyone to try to replace the original consular authentication documents with the Apostille in practice.
Appendix: Relevant Legal Provisions
Interpretation of the Supreme People's Court on the Application of the "Civil Procedure Law of the People's Republic of China"
Article 521: When a foreigner participates in litigation, they shall submit to the Chinese court a passport or other documents used to prove their identity. When a foreign enterprise or organization participates in litigation, the identity certificate document submitted to the Chinese court shall be notarized by the notary organ of the country where it is located, and authenticated by the embassy or consulate of China in that country, or go through the certification procedures stipulated in the relevant treaties concluded between China and the country where it is located. The person representing a foreign enterprise or organization in participating in litigation shall submit to the Chinese court a certificate of their authority to participate in litigation as a representative. This certificate shall be notarized by the notary organ of the country where it is located, and authenticated by the embassy or consulate of China in that country, or go through the certification procedures stipulated in the relevant treaties concluded between China and the country where it is located. The "country where it is located" referred to in this article means the country where the foreign enterprise or organization is established and registered, or it can also be a third country where business registration procedures have been completed.
Article 523: Where the representative of a foreigner, foreign enterprise or organization signs a power of attorney in the presence of a judge of the Chinese court to entrust an agent to conduct civil litigation, the Chinese court shall recognize it.
Article 524: Where the representative of a foreigner, foreign enterprise or organization signs a power of attorney within the territory of China to entrust an agent to conduct civil litigation and it is notarized by a notary institution of China, the Chinese court shall recognize it.
Several Provisions of the Supreme People's Court of China on Evidence in Civil Litigation (Amended in 2019), Fa Shi [2019] No. 19
Article 16: If a public document submitted by a party is formed outside the territory of China, this evidence shall be certified by the notary organ of the country where it is located, or go through the certification procedures stipulated in the relevant treaties concluded between China and the country where it is located. Evidence involving personal relationships formed outside the territory of China shall be notarized by the notary organ of the country where it is located and authenticated by the embassy or consulate of China in that country, or go through the certification procedures stipulated in the relevant treaties concluded between China and the country where it is located. If the evidence submitted by a party to the Chinese court is formed in Hong Kong, Macao, or Taiwan regions, relevant certification procedures shall be completed.
"Regulatory Opinions of the Beijing High - level People's Court of China on the Requirements for Case - Filing Materials in Civil Cases"
Article 55: The plaintiff shall submit materials to prove their litigation subject qualification:
(1) If the plaintiff is a foreigner, they shall submit a passport or other identity and entry - exit certificate documents to prove their identity. If the plaintiff cannot come to the Chinese court to file a lawsuit abroad, they shall submit a notarized and authenticated copy of their identity certificate. If the plaintiff is a Hong Kong, Macao, or Taiwan resident, they shall submit a copy of their personal identity document (Hong Kong, Macao, or Taiwan resident ID card, return permit). For a Hong Kong resident without a domicile on the Chinese mainland who cannot come to the Chinese court to file a lawsuit outside the Chinese mainland, they shall submit a copy of their identity certificate notarized by a Hong Kong lawyer (entrusted by the Ministry of Justice of China). For a Macao or Taiwan resident without a domicile on the Chinese mainland who cannot come to the Chinese court to file a lawsuit outside the Chinese mainland, they shall submit a notarized copy of their identity certificate.
(2) If the plaintiff is a foreign enterprise or organization without a domicile within the territory of China, they shall submit notarized and authenticated materials proving its legal establishment. If a representative office of a foreign enterprise in China sues or appeals on behalf of the company, it shall submit a notarized and authenticated power of attorney of the company. If the plaintiff is a Hong Kong enterprise or organization without a domicile on the Chinese mainland, it shall submit a certificate of its legal establishment notarized by a Hong Kong lawyer (entrusted by the Ministry of Justice of China). If the plaintiff is a Macao or Taiwan enterprise or organization without a domicile on the Chinese mainland, it shall submit a certificate of its legal establishment.
Article 56: If the plaintiff is a foreign party without a domicile within the territory of China and entrusts a Chinese lawyer or others to act as an agent in litigation, the power of attorney mailed or delivered from outside the territory of China shall be notarized by the notary organ of the country where it is located, and authenticated by the embassy or consulate of China in that country, or go through the certification procedures stipulated in the relevant treaties concluded between China and the country where it is located. For Hong Kong residents, enterprises, and organizations without a domicile on the Chinese mainland who entrust mainland lawyers or other agents to file a lawsuit, the power of attorney mailed or delivered from outside the Chinese mainland must be notarized by a Hong Kong lawyer (entrusted by the Ministry of Justice of China) and stamped with the special seal for the transfer of Hong Kong notarized documents by China Legal Service (Hong Kong) Limited. For Macao and Taiwan residents, enterprises, and organizations without a domicile on the Chinese mainland who entrust mainland lawyers or other agents to file a lawsuit, they shall submit a notarized power of attorney.
Article 57: Where the representatives of foreigners, foreign enterprises or organizations, and parties from Hong Kong, Macao, and Taiwan sign a power of attorney in the presence of a judge of the Chinese court to entrust an agent to conduct civil litigation, the Chinese court shall recognize it.
Article 58: Where the representatives of foreigners, foreign enterprises or organizations, and parties from Hong Kong, Macao, and Taiwan sign a power of attorney within the territory of China to entrust an agent to conduct civil litigation and it is notarized by a notary institution of China, the Chinese court shall recognize it.
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