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A multi-jurisdictional team of lawyers from global law firm Baker McKenzie and its Shanghai Free Trade Zone Joint Operation partner, FenXun Partners, has recently represented a Chinese SOE in a civil litigation case in the District Court for the Northern District of California, US, and successfully obtained a favorable judgement.

 

The judgement issued by the US District Court held that principles of international comity militated in favor of deferring to international treaties as opposed to US law in the production of documents and information from Chinese litigants. More importantly, for the first time, the US court held in a published decision that Chinese procedural law bars the voluntary production of China-located evidence in US civil litigation. In recognition of this finding and the totality of the case, the Court granted our client's application to produce evidence located in China through the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters ("Hague Evidence Convention") rather than the Federal Rules of Civil Procedure, with the former generally only permitting more narrow discovery on expressly identified materials.

 

This ground-breaking ruling has major significance, particularly for Chinese companies involved in US litigations, as it provides new legal basis for arguing that the Hague Evidence Convention procedure should be given a chance to apply in the first instance, instead of the Federal Rules which have a more expansive remit.

 

The team was led by Partners Teresa H. Michaud (Los Angeles) and Hang Wang (Beijing), and Senior Associate Alexander Davis (Palo Alto) of Baker McKenzie together with Partner Xi Zhou (Beijing) of FenXun Partners. Other team members include:

 

  • From Baker McKenzie: Partner Colin Murray (San Francisco) and Associate Anne Kelts Assayag (San Francisco)

 

  • From FenXun Partners: Counsel Bing Han (Beijing) and Associate Kai Cheng (Beijing)

 

Commenting on the case, Mr. Wang said: "We are very pleased that we have been able to draw on our US, China and international commercial litigation capabilities and successfully represented our client in this landmark case. This judgement is most significant, as it is a turning point from the past customary practice of the Federal judiciary which has consistently rejected requests to conduct discovery through the Hague Evidence Convention. This ruling sets a new precedent for similar cases in the future and ensures that both the spirit of the law and commerciality are upheld."

 

"This is a welcome development. It will help bring some degree of reassurance to Chinese companies with regard to safeguarding their business interest locally and internationally, particularly in the face of rising  protectionism and nationalism in the United States," Stanley Jia, Chief Representative of Baker McKenzie's Beijing office, said.

 

Mr. Jia continued: "It is also pleasing to see that our Joint Operation platform continues to deliver real, tangible benefits to our clients, for which we have been recognised as having the best overall performance among all Joint Operation Offices in China in a recent industry award. As our Joint Operation approaches its fifth anniversary next year, we look forward to continue enhancing our local and international service offerings to meet our clients' domestic and international business needs."
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