Lawsuits against Chinese opponents? Public service of documents facilitates legal proceedings before German courts.

Service of Proceedings on Chinese Companies: A New Possibility for Public Service in Germany

Anyone in Germany seeking to bring proceedings against a company in China faces a practical hurdle even before the issue of subsequent enforcement arises: service of the statement of claim is complex, time-consuming and fraught with uncertainty. This can be particularly problematic where a limitation period is about to expire or where swift action is required for other reasons. However, a recent decision of the Regional Court of Frankfurt am Main (LG Frankfurt a.M., order of 15 January 2025 – 2-06 O 426/24) marks an important turning point: public service of a statement of claim on a Chinese defendant may be possible without first having to undertake months of conventional attempts at service.

The Conventional Route: Service in China Takes Time – and Can Hold Up Proceedings

As a general rule, service of documents in the People's Republic of China takes place pursuant to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention).

Service of German court documents is permitted exclusively via the International Legal Cooperation Center (ILCC) of the Chinese Ministry of Justice in Beijing, acting as the Chinese Central Authority. The request for service then goes through a further procedure on the Chinese side, which regularly causes significant delays: the Supreme People's Court forwards the documents to the relevant higher-level and intermediate people's courts, which in turn pass them on to the competent people's court for service on the specific recipient.

Postal service is not permitted due to China's objection to Article 10 of the Hague Service Convention. Furthermore, pursuant to China's reservation under Article 5(3) of the Convention, formal service of a statement of claim is permitted only in the Chinese language.

The processing time regularly exceeds one year and may take even longer. During this period, the proceedings may effectively be brought to a standstill. There is also an ongoing risk that the Chinese authorities may refuse or delay service without giving reasons – particularly where the defendant is subject to state influence or in patent disputes. According to publicly available sources, approximately half of requests for service from abroad are reportedly rejected due to formal deficiencies.

Requirements for Public Service under Section 185 No. 3 of the German Code of Civil Procedure

Pursuant to Section 185 No. 3 of the German Code of Civil Procedure (ZPO), public service may be ordered where service abroad is “not possible” or “does not hold out any prospect of success”.

This requirement is not limited to situations in which, for example, no mutual legal assistance treaty exists with the relevant state or the requested authority has refused legal assistance. It may also be satisfied where service would take an unreasonably long time.

A careful balancing of the circumstances of each individual case is required. The claimant's interest in effective access to justice may, in an individual case, outweigh the defendant's interest in safeguarding its right to be heard under Article 103(1) of the German Basic Law (Grundgesetz), where there is no realistic prospect of completing service within a reasonable period.

In proceedings for interim relief, public service has already been permitted where service was unlikely to be completed within the enforcement period prescribed by Section 929(2) ZPO. In ordinary proceedings on the merits, however, previous case law has generally regarded waiting periods of several months, and in some cases up to a year, as reasonable.

Other circumstances may also be relevant, including the length of time for which the claimant itself had delayed pursuing its claim.

The Frankfurt Decision: The Way Is Now Open for More Efficient Proceedings

In the case now decided, the Regional Court of Frankfurt am Main permitted public service of a statement of claim on a Chinese company.

The claimant had demonstrated that conventional service abroad in China frequently fails and, even where successful, takes significantly more than one year. Referring to the experience of other German courts, which was consistent with the deciding chamber's own experience – including Higher Regional Court of Munich (OLG München), BeckRS 2020, 4267, para. 10, and Regional Court of Munich I (LG München I), BeckRS 2021, 3995, paras. 31 et seq. – the Frankfurt court concluded that service in the People's Republic of China takes an unreasonably long time.

The LG Frankfurt a.M. therefore confirmed, for the first time in the context of ordinary proceedings on the merits, that public service may also be ordered in respect of Chinese defendants.

Previously, the courts had at times been reluctant to permit public service. Instead, claimants were referred to the possibility of appointing an authorised recipient for service in Germany pursuant to Section 184 ZPO. However, this does not resolve the underlying problem, as such an arrangement may itself require service abroad.

In the present case, by contrast, the chamber adopted a welcome and pragmatic approach. Having authorised public service, the court simultaneously required the claimant to notify the defendant informally of the authorisation of public service – by email and through the other contact details known to the claimant.

New Options in German-Chinese Civil Litigation

The decision of the LG Frankfurt a.M. provides claimants bringing proceedings against Chinese defendants with a realistic means of initiating proceedings swiftly and with greater legal certainty, without necessarily having to navigate the lengthy and uncertain diplomatic channels involved in conventional service.

For companies involved in disputes in China or with Chinese contractual counterparties, this represents a significant practical development.