On 24 June 2022, the Ministry of Justice of the People's Republic of China ("PRC Ministry of Justice") published an article in Question & Answer format in respect of legal assistance in international civil and commercial cases ("Q&A"). In this Q&A, the PRC Ministry of Justice expressly states, among other things, that a judicial administration (including a court) or an individual in a foreign jurisdiction cannot directly enquire a witness who is located within the territory of PRC, either by phone call, virtual meeting or using any other technology. Instead, the judicial administration has to apply for legal assistance in accordance with the PRC Civil Procedure Law.
Based on the Q&A, there are only two ways to question such a witness: (i) a member country to the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters ("Hague Evidence Convention") may request the PRC Ministry of Justice to provide legal assistance in accordance with the Convention; or (ii) a non-member country may request assistance through the diplomatic channel.
In this regard, the PRC Ministry of Justice makes it clear in the Q&A that a witness within the territory of PRC is prohibited from attending the hearing of a foreign litigation, whether voluntarily or through a subpoena issued by the foreign judicial administration.
The PRC Ministry of Justice also highlights that due to the security requirements for cross-border data transfer, any data information located in the territory of PRC cannot be provided to a judicial administration or officer of a foreign jurisdiction without the approval of the PRC governmental authority in charge.
An arbitral tribunal does not appear to fall within the scope of "judicial administration or individual", therefore it is unclear whether the abovementioned rules apply to an arbitration in a foreign jurisdiction.
