A. Introduction
The collection of evidence in China in support of U.S. litigation is
governed by the Hague Evidence Convention,1 the Vienna Convention on
Consular Relations,2 and the United States-China Consular Convention.3
This framework is reflected in Article 277 of China’s Civil Procedure
Law (CPL), which provides three avenues to obtain evidence in China:
judicial assistance as provided by international treaties, including
the Hague Evidence Convention (to which China became a
signatory in 1998) and numerous bilateral judicial assistance
treaties that China has signed with other countries;
judicial assistance via diplomatic channels based on the doctrine
of reciprocity, if judicial assistance via international treaties is not
available; and
foreign embassies or consulates collecting evidence from a
nation’s own citizens.4
Article 277 of the CPL goes on to provide that, with the exception of
the above three instances, “no foreign organization or individual may,
1. Convention on the Taking of Evidence Abroad in Civil and Commercial
Matters, 23 U.S.T. 2555; T.I.A.S. No. 7444; 847U.N.T.S. 231; reprinted
in 8 I.L.M. 37 (1969) [hereinafter Hague Evidence Convention].
2. Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77;
T.I.A.S. No. 6820; 596 U.N.T.S. 261.
3. Consular Convention Between the United States of America and the
People’s Republic of China, Sept. 17, 1980, 33 U.S.T. 2973, T.I.A.S. No.
4. Zhonghua renmin gongheguo minshi susongfa, (󰨶甄鵩炫󰭴󰷥鵩蓬󴊱
󴊤󲎽) [Civil Procedure Law of the People’s Republic of China]
(promulgated by Nat’l People’s Cong., Apr. 9, 1991, effective Apr. 1,
2008), available at,
art. 277 [hereinafter CPL].
Obtaining Discovery Abroad
without the consent of the competent authorities of the People’s Republic
of China, serve documents or make investigations and collect evidence
within the territory of the People’s Republic of China.”5 Despite that, there
is no report available on application of the exception provision for
obtaining evidence in China.
China, like other jurisdictions, also has statutes that would serve to
impede the collection of evidence conducted via the above framework or
the Federal Rules of Civil Procedure. Generally, these statutes fall within
three categories: (1) blocking laws such as those relating to state secrets,
banking secrecy, and export controls; (2) laws relating to privacy and trade
secrets; and (3) professional privileges such as those for accountants and
lawyers. As discussed further below, parties subject to the personal
jurisdiction of U.S. courts have had limited success in resisting discovery
pursuant to such blocking statutes, as courts tends to find in favor of the
requesting party after conducting a comity analysis.
Like other civil jurisdictions, the concept of U.S.-style discovery is
foreign to the Chinese legal system. In China, the parties concerned during
a trial bear no burden of providing evidence at the opposing party’s request.
Nevertheless, the court, rather than the opposing party, is entitled to collect
evidence where a party is incompetent in doing so for objective reasons or
the court deems it necessary under the Chinese Civil Procedure Law.6 As
such, prior to discussing the limitations imposed by Article 277 and other
Chinese laws, some background regarding the use of evidence in Chinese
civil procedure will provide context to the main inquiry at issue.
B. Chinese Civil Procedure
The concept of U.S.-style discovery does not exist in China. Parties
are responsible for providing evidence in support of their own claims or
defenses7 except as specifically provided in sub stantive laws, for example,
5. It is unclear what the scope of “foreign organization” (弸嚔閖蛭 or waiguo
jiguan) is under Article 277 of the CPL, namely whether its exclusionary
language is limited to judicial bodies in line with the Hague Evidence
Convention, or whether it would also include administrative bodies such
as the SEC and DOJ or non-governmental bodies. In the absence of
guidance, it is likely that the Chinese authorities will apply a broad
interpretation of “foreign organization” provided that there is an interest in
enforcing the strictures of Article 277.
6. CPL, supra note 4, art 64.
7. Zuigao renmin fayuan guanyu minshi susong zhengju de ruogan guiding,
(鏘珽朝褊堙㾱蛭昼褊宙晷揥斝蓼󰯘󱍞烟󲛵) [Some Provisions of the

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