The legal basis for the outbound transfer of criminal litigation evidence primarily includes the Law on Mutual Legal Assistance in Criminal Matters (hereinafter referred to as the “ICJA Law”), the Provisions on Several Issues Concerning the Implementation of the Law of the People’s Republic of China on International Criminal Judicial Assistance (for Trial Implementation) (hereinafter referred to as the “ICJA Provisions”), as well as bilateral treaties on criminal judicial assistance.

The ICJA Law sets forth the fundamental conditions and procedures for foreign authorities to request investigation and evidence collection within China. Article 4, Paragraph 3 of the ICJA Law stipulates that, without the approval of the competent Chinese authorities, foreign entities are not permitted to engage in criminal litigation activities within the territory of China, and entities, organizations, and individuals within China (collectively referred to as “domestic parties”) are prohibited from providing criminal litigation evidence to foreign parties. The ICJA Provisions further interpret, refine, and supplement the review procedures for the outbound transfer of criminal litigation evidence. Matters such as the authority responsible for signing the request, the language of the request and supporting materials, time limits for processing, and specific procedural requirements may, provided they do not contravene the fundamental principles of Chinese law, be handled in accordance with applicable bilateral treaties on criminal judicial assistance or through consultation between the parties.

It is understood that, with respect to the outbound transfer of criminal litigation evidence, the aforementioned review procedures for such transfers take precedence over the regular procedures for cross-border data transfers. According to the opinions of the Cyberspace Administration of China (hereinafter referred to as the “CAC”) and the Ministry of Justice, if the outbound transfer of criminal litigation evidence has been approved by the Review Office, there is no need to separately apply to the CAC for the regular cross-border data transfer procedures, even if the scale or nature of the evidence meets the reporting thresholds for such procedures.

It is understood that, regardless of the manner in which the outbound transfer of criminal litigation evidence is initiated, if the Review Office, upon examination, decides to reject or not approve the provision of such evidence to a foreign authority, the domestic party may not circumvent this decision by seeking to transfer the evidence through the standard cross-border data transfer procedures administered by the CAC, as such action would be inconsistent with the legislative purpose of the ICJA Law.

In practice, there is another common scenario in which a domestic party, due to concerns over potential legal liability under foreign law or other considerations, is willing to cooperate with a foreign authority in providing criminal litigation evidence, but is reluctant to follow the formal criminal judicial assistance process or fears that the application for outbound transfer may be denied. As a result, the party may attempt to indirectly provide the evidence to the foreign authority—such as through foreign legal counsel or affiliated entities—by disguising the transfer as a standard cross-border data transfer, thereby circumventing the judicial assistance procedure. In our view, criminal justice matters implicate national sovereignty. Where the true purpose of the data export is to serve a foreign criminal proceeding, the requirements of the ICJA Law should be followed. Any circumvention of such procedures may give rise to legal risks under Chinese law.

The legal basis for the outbound transfer of civil and commercial litigation evidence primarily includes the Civil Procedure Law, the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”), bilateral treaties on civil judicial assistance concluded between China and foreign countries, the Provisions of the Supreme People’s Court on Handling Requests for Judicial Assistance in the Service of Judicial Documents, Investigation and Taking of Evidence in Civil and Commercial Cases in Accordance with International Conventions and Bilateral Treaties on Judicial Assistance (the “Civil Assistance Provisions”), and the FAQs on International Judicial Assistance in Civil and Commercial Matters (the “Civil Assistance FAQs”).

Article 293 of the Civil Procedure Law provides that, in accordance with international treaties concluded or acceded to by China, or on the basis of the principle of reciprocity, Chinese courts and foreign courts may request each other to serve documents, collect evidence, and perform other litigation-related acts on their behalf. The Hague Evidence Convention establishes the procedures through which foreign courts may obtain evidence pursuant to the Convention. The Civil Assistance Provisions specify the procedures for Chinese courts to assist in the collection of evidence requested by foreign courts, while the Civil Assistance FAQs clarify a number of specific issues relating to the outbound transfer of civil and commercial litigation evidence.

Chinese law does not provide specific provisions for this scenario. Based on our experience in communicating with the competent authorities in multiple cases in recent years, the enforcement approach in practice has undergone several adjustments.

Prior to 2023, the provision of civil and commercial litigation evidence by domestic parties to foreign courts required review and approval by the Ministry of Justice and other relevant authorities. The scope of such review covered both evidence used in civil and commercial litigation and that used in arbitration proceedings. Before providing civil or commercial evidence abroad, the domestic party was required to submit an application to the Judicial Assistance Exchange Center of the Ministry of Justice. The application materials included a request letter (containing a case overview, information on the parties, and a summary of the case), a list of documents to be submitted (including document titles and purposes), the documents themselves, and a legal opinion prepared by counsel. Upon receipt of the materials, the Judicial Assistance Exchange Center would conduct a joint review in coordination with the Supreme People’s Court and the CAC. Only after the application was approved could the domestic party proceed to provide the evidence to the foreign court.

In 2024, the Judicial Assistance Exchange Center adjusted its operational approach by limiting its review to the outbound transfer of civil and commercial litigation evidence only, and ceased accepting applications for the outbound transfer of evidence related to civil and commercial arbitration. The application materials and review procedures for the outbound transfer of litigation evidence remain consistent with prior practice. As for the outbound transfer of arbitration evidence, it is now subject to the standard procedures for cross-border data transfers and is handled through the competent cybersecurity authorities.

In recent communications with the Judicial Assistance Exchange Center, the Center confirmed that it no longer accepts matters related to the outbound transfer of civil and commercial litigation evidence. If the evidence to be submitted does not involve state secrets, it must be processed in accordance with the standard procedures for cross-border data transfers, regardless of whether the recipient is a foreign court or an overseas arbitration institution. Under these standard procedures, foreign courts or arbitration institutions may be unwilling to cooperate with Chinese entities in completing the required formalities. In such cases, consideration may be given to designating an overseas affiliated entity or law firm as the recipient of the evidence.

Requests for the outbound transfer of civil and commercial litigation evidence submitted by foreign courts through international judicial assistance channels—whether pursuant to the Hague Evidence Convention or bilateral treaties—are reviewed and approved by the people’s courts. Once approved, such evidence may be transferred abroad without separately apply to the cybersecurity authorities for the standard cross-border data transfer procedures.

Where a domestic party proactively provides civil and commercial litigation evidence to a foreign court, the standard procedures for cross-border data transfers shall apply. If the data contained in the evidence meets the reporting thresholds under the standard procedures, the domestic party must apply to the cybersecurity authorities for a security assessment or file the standard contract for record. If the thresholds are not met, the data may be transferred directly without additional approval.

Given that the enforcement practice has undergone multiple changes, further adjustments in the future cannot be ruled out. It is therefore advisable to consult with the competent authorities for confirmation before providing evidence to parties outside of China.

When Chinese enterprises face civil and commercial evidence collection requests from abroad, they must not only comply with Chinese law but also take into account the requirements of foreign laws, particularly the discovery system under the U.S. legal system.

Rule 26(b)(1) of the U.S. Federal Rules of Civil Procedure establishes the framework for the discovery system. Unless otherwise limited by court order, parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case. In determining whether discovery is proportional to the needs of the case, several key factors must be considered: the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within the scope of discovery need not be admissible in evidence to be discoverable. (Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.）

Under the U.S. discovery system, if a Chinese enterprise refuses to provide evidence in civil or commercial litigation—whether by invoking the Hague Evidence Convention or China’s data protection regulations—there is a risk that such refusal may not be accepted by the U.S. court.