International Service of Process in Cross-Border Commercial Litigation: What Happens If a Foreign Party Does Not Receive Court Documents?

In cross-border commercial transactions, businesses may become involved in court proceedings because of disputes concerning payments, agency or distribution arrangements, OEM/ODM cooperation, technology licensing, service agreements, investment cooperation, or intellectual property rights. In addition to addressing court jurisdiction, governing law, evidence, and litigation costs, these cases involving foreign elements present another frequently overlooked but highly important procedural issue: how court documents are served on foreign parties.

Service refers to the legal procedure through which a court delivers a complaint, hearing notice, ruling, judgment, or other litigation document to a party. Service is not merely an administrative task. It affects whether a party has an opportunity to learn that proceedings have commenced, prepare a defense, appear in court to present its position, and whether a future judgment can take full effect.

Service in Cases Involving Foreign Elements Is Not Ordinary International Mail

In ordinary commercial dealings, businesses may be accustomed to notifying the other party by email, courier, registered mail, or messaging software. In litigation, however, the service of court documents must comply with legal requirements. Particularly when a defendant, opposing party, or other person involved in the proceedings is located abroad, proper service generally cannot be determined simply by stating that "I sent it" or that "the other party should have received it."

Under Taiwan's current Code of Civil Procedure, service in a foreign country must generally be entrusted to the competent authorities of that country or to a Republic of China embassy, consulate, other institution, or organization located in that country. If service cannot be entrusted through the foregoing methods, the document to be served may be sent through a postal agency by registered mail with return receipt, and the return receipt must be attached to the court record.

The Method of Service May Differ When a Foreign Party Has a Business Office or Representative in Taiwan

If a foreign company has an office or business office in Taiwan, or has a representative or manager in Taiwan, the Code of Civil Procedure provides that service on a foreign legal entity or organization with an office or business office in the Republic of China shall be made on its representative or manager in the Republic of China.

Cross-border service is therefore not required in every case involving foreign parties. If a foreign business has a branch, representative office, representative, or actual management contact in Taiwan, the business initiating proceedings should confirm the registration and business information of the opposing party in Taiwan before filing suit. This may affect the efficiency of service, the speed of court proceedings, and the possibility of subsequent enforcement.

When a Foreign Party Cannot Be Served, Service by Publication May Be Used

If service in a foreign country cannot be completed under Article 145 of the Code of Civil Procedure, or if it is known in advance that service under that provision would be ineffective, the court may permit service by publication upon application. When necessary to prevent delays in the proceedings, the court may also order service by publication on its own initiative.

Service by publication does not involve mailing the documents to the other party. Instead, the court handles the documents or notices to be served through legally prescribed public announcements. Under the current Code of Civil Procedure, service by publication generally involves posting the announcement at the court's designated notice area and publishing it on the court website. When the court considers it necessary, it may also order publication in an official gazette or newspaper.

Under Article 152 of the Code of Civil Procedure, service by publication intended for service in a foreign country takes effect after 60 days. In other words, when the statutory requirements are satisfied, service may take legal effect through publication even if the foreign party has not personally read the court documents.

A Foreign Party's Failure to Actually Receive the Documents Does Not Necessarily Invalidate the Proceedings

Businesses may intuitively believe that "if the other party did not personally receive the documents, the proceedings cannot continue." In practice, however, two matters must be distinguished: first, whether the court completed lawful service in accordance with the law; and second, whether the party actually became aware of the contents of the documents.

If the court completes effective service under the Code of Civil Procedure, such as service on a representative in Taiwan, service entrusted abroad in accordance with the law, service by registered mail with return receipt, or service by publication under the applicable statutory conditions, the proceedings may continue.

Conversely, if the method of service does not comply with legal requirements or fails to provide the party with a reasonable opportunity to prepare a defense, it may affect the proceedings and the effect of the judgment and may even become an issue during subsequent recognition and enforcement proceedings.

Defects in Service Are an Important Review Issue When a Foreign Judgment Is Presented for Recognition in Taiwan

Service issues arise not only when a Taiwanese court serves documents on a foreign party but also when a foreign judgment is presented for recognition and enforcement in Taiwan.

Under Article 402 of the Code of Civil Procedure, a final and binding judgment rendered by a foreign court will not be recognized if any of the statutory circumstances apply. One important circumstance is where the unsuccessful defendant did not appear in the proceedings, unless the notice or order initiating the action was lawfully served within a reasonable period in that country or was served through judicial assistance under the laws of the Republic of China. Otherwise, the foreign judgment may not be recognized in Taiwan.

The purpose of this requirement is not to allow a defendant to avoid a foreign judgment merely by failing to appear. Instead, it ensures that the defendant was lawfully and timely notified during the foreign court proceedings and had a reasonable opportunity to exercise the right of defense.

Judicial Practice: Courts Emphasize Whether the Right of Defense Was Protected

According to publicly available judicial materials, Supreme Court Civil Judgment No. 109, Tai-Shang, 2008, indicated that service in a foreign country does not necessarily have to be made personally on the party and that service on a legal representative or litigation representative may also be accepted. However, if a substitute method of service under the laws of that foreign country is used, the court must still carefully investigate whether the method of service sufficiently protected the right of defense and whether the party had an adequate opportunity to prepare for the proceedings. Because these matters had not been sufficiently investigated, the case was remanded to the High Court for further proceedings.

Other judicial materials record that, in Taiwan New Taipei District Court Civil Judgment No. 372, Jian-Shang, 1998, the court determined that the foreign judgment at issue was a default judgment, that the defendant had not appeared to respond, and that the plaintiff had failed to prove that service on the defendant had been completed through judicial assistance under the laws of the Republic of China. The court therefore declined to recognize the effect of the foreign judgment under the relevant provisions of Article 402 of the Code of Civil Procedure.

These judicial views demonstrate that service in litigation involving foreign elements is not merely a question of whether documents were formally sent. More importantly, the service procedure must adequately protect the right of the party to receive notice and exercise a defense.

Common Risks in Cross-Border Service

Common Situation	Potential Impact	Matters Businesses Should Consider
The address of the foreign company is incomplete or has changed	Failed service, procedural delays, or requests for supplementary information.	Retain company registration information, business addresses, email addresses, contact persons, and addresses for service when signing the contract.
The other party is notified only by email or courier	This may not satisfy the requirements for court service procedures.	Court documents must still be served in accordance with the Code of Civil Procedure or the method directed by the court.
The foreign party has a branch or representative in Taiwan	Service may be made on its representative or manager in Taiwan.	Before filing suit, confirm the registration, business locations, and representative information of the opposing party in Taiwan.
The foreign party refuses service or cannot be served	It may be necessary to use registered mail with return receipt, judicial assistance, service by publication, or another procedure.	Retain records of failed service, returned mail, address verification, and communications.
A foreign default judgment is presented for enforcement in Taiwan	If service was not lawful and timely, the judgment may not be recognized in Taiwan.	Confirm whether proof of service for the complaint, summons, or order in the foreign proceedings is complete.

Businesses Can Reduce Service Risks in Advance Through Cross-Border Contracts

Service issues involving foreign parties are often noticed only after a dispute arises, but many risks can be managed during the contracting stage. International sales agreements, agency or distribution agreements, technology licensing agreements, and OEM/ODM agreements can clearly specify notification addresses, email addresses, authorized recipients, agents for service, court jurisdiction, governing law, and dispute-resolution methods.

For long-term cooperation or high-value transactions, businesses can also require the other party to periodically update its company registration information, business address, legal representative, and contact person. The contract may also provide that if an address change is not reported, notices sent to the originally specified address will have contractual notice effect. Although contractual provisions cannot replace all legal requirements for court service, they can reduce risks relating to commercial communications, formal demands, evidence preservation, and litigation preparation.

Cross-Border Legal Practice Recommendations

AIPT Group recommends that businesses treat service procedures as part of their litigation strategy when handling cross-border commercial litigation or disputes involving foreign elements, rather than viewing service merely as the mailing of documents.

• Retain complete party information when signing contracts: This includes the registered company name, address, legal representative, business locations, email address, and primary contact person.
• Specify notification and service information in the contract: The contract may specify notification addresses, email addresses, agents for service, and obligations to report address changes.
• Before filing suit, confirm whether the foreign party has a representative or business office in Taiwan: If the other party has a branch, representative office, or manager in Taiwan, this may affect the method and efficiency of service.
• Retain demand and communication records: Emails, courier delivery receipts, returned-mail records, and information showing that the other party refused delivery or ceased communications may all provide a basis for procedural determinations and risk assessments.
• Consider foreign-language documents and translation requirements: Cross-border service frequently involves foreign-language addresses, company information, contracts, and supporting documents. Necessary translations and certifications should be prepared in advance.
• Review proof of service before seeking enforcement of a foreign judgment in Taiwan: If the defendant did not appear in the foreign proceedings, whether notice of the action was lawfully served within a reasonable period will be an important issue in Taiwan's review of the foreign judgment.

Conclusion

International service procedures in cross-border commercial litigation directly affect whether proceedings can continue successfully, whether the right of defense is protected, and whether a future judgment can be recognized and enforced. A foreign party's actual failure to receive court documents does not necessarily invalidate the proceedings. However, if the method of service does not comply with legal requirements or fails to provide the party with a reasonable opportunity to respond, it may create procedural defects and even affect the validity of the judgment.

For businesses, the best approach to risk control is to establish complete contractual information, notification provisions, service information, and document-retention mechanisms at the beginning of a cross-border transaction. When a dispute arises, the service route, court jurisdiction, evidence, and possibility of enforcement should also be assessed at an early stage to prevent procedural issues from interfering with the realization of substantive rights.

Sources: National Laws and Regulations Database｜Code of Civil Procedure
Judicial Yuan Special Report｜Methods of Serving Judgments Abroad
Lawbank｜Recognition of Foreign Court Judgments—Focusing on Article 402, Paragraph 1, Subparagraph 2 of the Code of Civil Procedure
Winkler Partners｜Recognition of Foreign Judgments