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Evidence gathering challenges in Chinese business litigation

On Behalf of | Feb 5, 2018 | Uncategorized

On paper, China is a signatory to several international treaties intended to facilitate access to justice when commercial disputes arise and trigger business litigation. Those experienced in the process, though, will confirm that resolving such disputes is not a simple one.

Merely collecting evidence is often hampered by government restrictions. Once that compliance is met, cultural tradition can serve as a hurdle to achieving litigation success. To obtain needed information, the necessity of having legal counsel that understands the array of procedural and cultural obstacles is clear.

It’s about more than technicalities

The basic steps for successful depositions involving foreign witnesses and business entities are widely understood in the legal community. They include:

  • Having a willing witness
  • Securing a friendly forum
  • Engaging an interpreter who appreciates potential vernacular differences

That last point is particular notable regarding U.S.-Chinese interactions. Not only can translations of common language be difficult, there is the likely added challenge of making legal terms of art understood across the verbal and written divide so that material gleaned is usable in court.

Standards for conducting depositions in China are so restrictive that they bear little resemblance to the format typically employed in the U.S. American-style depositions tend to allow the posing of questions across a broad range of topics.

Not only does China follow the rules of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters that require attorneys to provide advance notice and get government approval for a deposition, it does not allow U.S. attorneys to conduct the depositions. If the rules are violated, serious sanctions could follow — including deportation, arrest and detention of participants.

All these factors taken in combination reinforce how important it is to work with someone with deep cultural and legal experience when undertaking business litigation.