Is Discovery Available in Chinese Commercial Litigation Proceedings?

Introduction

One of the most fundamental differences between common law litigation (as practiced in the United States, England, and other common law jurisdictions) and Chinese civil procedure is the approach to evidence gathering. Foreign companies that are accustomed to broad pre-trial discovery — including document requests, depositions, interrogatories, and requests for admission — are often surprised to learn that Chinese commercial litigation operates on a fundamentally different evidentiary model.

This FAQ explains whether discovery is available in Chinese commercial litigation, how the Chinese evidentiary system works, what tools exist for obtaining evidence from the opposing party and third parties, and what foreign litigants should expect when gathering evidence for a commercial dispute in Chinese courts.

The Short Answer: No Formal Discovery Exists

Chinese civil procedure does not have a formal discovery mechanism comparable to the US Federal Rules of Civil Procedure or UK disclosure practice. There is no general right to demand documents from the opposing party, no depositions, no interrogatories, and no routine requests for admission. Instead, Chinese litigation follows a “who claims, who proves” (谁主张, 谁举证) model, based on the principle that each party bears the burden of proving the facts it asserts.

This principle is codified in Article 64 of the Civil Procedure Law of the People’s Republic of China (民事诉讼法), which provides: “A party shall have the burden to provide evidence in support of its own allegations.” The court does not typically assist a party in gathering evidence — each party must independently collect and present the evidence on which it relies.

Why No Discovery?

The absence of discovery in Chinese civil procedure is rooted in several fundamental characteristics of the Chinese legal system:

1. Civil Law Tradition

China’s legal system belongs to the civil law (continental European) tradition, as opposed to the common law tradition. Civil law systems generally place less emphasis on adversarial pre-trial procedures and more emphasis on documentary evidence submitted by the parties and, where necessary, investigation by the court. The judge plays a more active, inquisitorial role compared to the passive umpire role of a common law judge.

2. No Jury System

Chinese commercial litigation does not involve juries. All fact-finding is conducted by professional judges. The absence of a jury reduces the need for the elaborate pre-trial procedures that common law systems have developed to prevent trial by ambush. In China, the judge is expected to actively question witnesses and examine evidence during trial, making extensive pre-trial disclosure less critical.

3. Emphasis on Documentary Evidence

Chinese civil procedure strongly emphasizes documentary evidence (书证) over testimonial evidence. The Civil Procedure Law identifies eight types of evidence: documentary evidence, physical evidence, audio-visual materials, electronic data, witness testimony, expert opinions, inspection records, and party statements. Documentary and electronic evidence are given the greatest weight. Because parties are expected to submit documents voluntarily, the need for compulsory discovery is reduced.

Alternatives to Discovery in Chinese Commercial Litigation

While formal discovery does not exist, Chinese law provides several mechanisms through which a party can obtain evidence held by the opposing party or third parties:

1. Court-Ordered Evidence Production (举证令)

Article 112 of the Judicial Interpretation of the Civil Procedure Law provides that where a party has evidence in its control but refuses to produce it without legitimate reason, and the other party asserts that the content of the evidence is unfavorable to the holder, the court may draw an adverse inference against the holder. This is the closest Chinese procedure comes to common law discovery.

To invoke this mechanism, the requesting party must:

1. Specify the exact document or category of documents sought
2. Explain why the documents are relevant and necessary to the case
3. Demonstrate that the documents are in the opposing party’s possession
4. Provide a reasonable basis for believing the documents would support the requesting party’s position

The court then has discretion to order production. If the opposing party refuses, the court may draw an adverse inference — but it cannot compel production through fines, contempt, or other coercive measures. This is a significant limitation compared to common law discovery sanctions.

2. Court Investigation and Evidence Collection (法院调查取证)

Under Article 64 of the Civil Procedure Law and related judicial interpretations, a court may investigate and collect evidence on its own initiative or at a party’s request in two situations:

• Ex officio investigation: The court may collect evidence when it considers it necessary for the resolution of the case, particularly where the evidence involves matters of public interest or national security
• Party-requested investigation: Where a party cannot collect evidence due to objective reasons (e.g., the evidence is held by a government agency that will not release it to a private party), the party may apply to the court to investigate and collect the evidence

In practice, Chinese courts are cautious about exercising their investigatory powers. Applications must specify the exact evidence sought, its relevance, and why the party cannot obtain it independently. Courts generally only grant such requests where the evidence is held by government authorities, financial institutions, or other entities that are not accessible to private parties.

3. Notarial Preservation (公证保全)

One of the most practical tools for evidence gathering in China is notarial preservation. Under Chinese law, notarial offices (公证处) can certify and preserve evidence. This is particularly useful for:

• Website content and online activities (e.g., a competitor’s infringing product page)
• Physical evidence at a factory or warehouse
• Electronic communications (e.g., WeChat messages, emails)
• Patent or trademark infringements in the marketplace

Notarial preservation has the advantage of creating officially certified evidence that carries strong evidentiary weight in Chinese courts. Foreign litigants should engage a Chinese notarial office as early as possible when evidence of a potential breach or infringement is identified.

4. Pre-Litigation Evidence Preservation (诉前证据保全)

Article 81 of the Civil Procedure Law permits a party to apply for evidence preservation before filing a lawsuit, where there is a risk that evidence may be destroyed or lost, or where obtaining the evidence would otherwise be difficult. The court may order preservation measures including sealing, seizure, or copying of evidence. This is analogous to a preliminary injunction for evidence purposes.

To obtain pre-litigation evidence preservation, the applicant must:

• Provide prima facie evidence of the claim
• Demonstrate urgency — i.e., that the evidence is at risk of destruction or loss
• Provide security (bond) to cover potential damages if the preservation is later found to be unjustified

Pre-litigation evidence preservation is most commonly used in intellectual property cases, where a party may need to seize counterfeit goods or preserve infringing materials before the infringer can destroy them.

5. Asset Preservation (财产保全)

While not strictly a discovery tool, asset preservation can indirectly support evidence gathering. When a court freezes a defendant’s bank accounts or seizes assets, the defendant’s financial records may be disclosed in the preservation process, providing valuable evidentiary information. Asset preservation is available both before and during litigation under Articles 100–105 of the Civil Procedure Law.

The Role of Notarization and Legalization

Foreign-origin documents — those created outside China — generally require notarization in the country of origin and legalization by the Chinese embassy or consulate (or, if both countries are parties, apostille under the Hague Convention on Apostille, effective in China since November 2023). This requirement adds time and cost to evidence preparation in cross-border commercial litigation.

For the 1961 Hague Convention, China acceded on 8 March 2023, and the convention entered into force on 7 November 2023. For documents from contracting states, an apostille from the competent authority in the country of origin replaces the traditional legalization chain. This simplifies but does not eliminate the procedural requirements for foreign documentary evidence.

Discovery in Chinese Arbitration

The discovery landscape is somewhat different in arbitration proceedings seated in China. International arbitration institutions in China (CIETAC, SHIAC, SCIA) and regional hubs (HKIAC in Hong Kong, SIAC in Singapore) typically apply the IBA Rules on the Taking of Evidence in International Arbitration, which provide for limited document production. Under these rules:

• A party may request specific documents or narrow categories of documents
• The requesting party must demonstrate relevance and materiality
• The tribunal may order production if the documents are relevant and material to the case outcome
• The tribunal has authority to draw adverse inferences from non-production

This is far more limited than US-style discovery but significantly broader than Chinese court litigation. For foreign companies engaged in China-related commercial disputes, arbitration often provides a more favorable evidentiary environment than Chinese court litigation.

Practical Considerations for Foreign Litigants

Strategies for Evidence-Driven Litigation

Foreign companies contemplating litigation in Chinese courts should adopt an evidence-first strategy:

Before the dispute arises: Maintain comprehensive records of all communications, contracts, amendments, notices, and payment records. Ensure contractual rights to inspect the other party’s records and facilities. Require periodic reporting from counterparties, and preserve those reports as ongoing documentary evidence of the relationship.

At the first sign of breach: Engage a Chinese notarial office to preserve online evidence, website content, and electronic communications. WeChat messages, a common form of business communication in China, can be preserved through notarial certification and have been accepted as evidence by Chinese courts.

Before filing: Work with Chinese counsel to identify the critical evidence elements of each claim and determine whether court-ordered evidence production, court investigation, or pre-litigation evidence preservation will be necessary.

During litigation: Be prepared to submit all supporting evidence at the time of filing or within the court-ordered evidence submission deadline. Chinese courts generally do not accept evidence submitted after the deadline unless there is a legitimate reason for the delay.

Conclusion

Formal discovery as understood in common law litigation is not available in Chinese commercial litigation proceedings. The Chinese system operates on a party-produces-evidence model, supplemented by limited court-ordered production, court investigation, and pre-litigation preservation mechanisms.

For foreign companies, the absence of discovery underscores the importance of proactive evidence management: strong contractual provisions that create ongoing documentary records, notarial preservation at the first sign of dispute, and careful pre-filing evidence preparation with experienced Chinese counsel. For complex cross-border disputes where document production is critical, arbitration before a recognized international institution provides a more favorable evidentiary framework than Chinese court litigation.