Foreign citizens and legal entities owning intellectual property in China must retain Chinese registered lawyer to take a lawsuit when they find that their IP has been infringed (such as producing or selling counterfeits online or offline) in China.
Understand the Types of Lawyers You Need
China’s legal landscape is diverse, and lawyers specialize in various fields, including intellectual property (IP), corporate law, dispute resolution, real estate, criminal, and more. Before you begin your search, it’s crucial to identify the type of lawyer you need based on your specific legal issue.
Verify the Lawyer’s Qualifications
It’s essential to verify the qualifications of any lawyer you intend to retain in China. Chinese lawyers must hold a law degree and pass the National Judicial Examination, which is a rigorous qualification test.
Additionally, check that the lawyer holds a valid license to practice law in China. Sometimes, they are just a patent agent or trademark agent but not a qualified attorney-at-law actually.
Retaining the Lawyer by Drafting a Retainer Agreement
Once you’ve selected the lawyer who best fits your needs, you will need to formalize the arrangement by signing a retainer agreement. This agreement will outline the scope of the services to be provided, the lawyer’s fees (hourly rates, flat fees, or contingency fees), additional fees (such as court fees, government fees, and translation fees), and any other terms of the engagement.
Prepare the Required Documentation
Besides sharing case details and evidence, foreign clients should also notarize, legalize (apostille or consular legalization, see more about their differences here), and translate the following documents in advance for litigation before a court of China.
By the way, such requirements also apply to other legal matters, such as the incorporation of companies, and police reports. Please consult with your local notaries and authorities about how to process that.
ID Proof
- The client’s passport or national ID card if the party is an individual.
- The client’s business license or incorporation certificate if the party is a legal entity.
The certificate of the legal representative and the representative’s ID
The certificate of the legal representative is a statement issued by the company, proving that XXX is the legal representative.
The legal representative, who may be a CEO or manager rather than an attorney, is entitled to sign a retainer agreement or POA to retain a Chinese lawyer to process the litigation on behalf of the company.
Click here to download the template of the certificate of the legal representative. If you have no corporate seal, please sign this template of board resolution by all the directors instead.
Power of attorney
It is recommended that the authorized matters cover collecting evidence, first instance, second instance, enforcement of judgment (including receiving damages), retrial, etc.
Click here to download the POA template for litigation.
Some Evidence Originating Abroad
- Evidence involving official documents originating outside China’s mainland shall be notarized in the originated countries, such as legal documents (e.g., judgement, award), office documents (such as academic degrees), or certificates issued by authorized organisations.
- Evidence involving identity relationships (such as marriage certificates, adoption papers) originating outside China’s mainland shall also be legalized, but not only notarized.
- Evidence NOT involving official documents or ID relationships has NO above requirements.
Exemption for notarization and legalization
Arbitration
Unlike litigation, in international arbitration proceedings in China, arbitration rules usually do NOT require notarization or legalization of ID proof, POA, certificate of legal representative, and evidence from overseas.
However, for critical disputed evidence, it is better to be notarized and legalized or the evidence provider to notarize and legalize.
Foriengers have domicile in China
Where a foreign company has a representative or branch in China, or a foreign individual has a domicile in China, there is NO need to notarize and legalize their POA.
Foreign individuals are in China
For foreign individuals who do not have a domicile in China but enter China with a legal visa, the POA shall be signed before a judge in person, or notarized by a Chinese notary.
A legal representative of a foreign company is in China
For foreign companies who do not have a domicile in China but their legal representative enters China with a legal visa, the POA shall be signed by the legal representative before a judge in person, or notarized by a Chinese notary.
However, the company’s ID proof and the legal representative’s certificate should still be notarized and legalized.
Three kinds of evidence
Where the evidence can be accessed from an official or public way (patent document), or has been recognized by a Chinese court or an arbitration institution, such kind of evidence is not required for notarization or legalization.
Further Infomation
See more about how to draft arbitration agreements with Chinese suppliers if you want to submit the dispute to an arbitration instead of a court.
Conclusion
Retaining a Chinese lawyer to conduct litigation is a critical step for foreigners seeking justice in China. By following the steps outlined above, you can ensure a smooth and professional engagement, giving your case the best chance of success.
If you need assistance or have questions about retaining Chinese lawyers, contact us today for expert guidance tailored to your specific needs at: contact@gbaiplawyer.com
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