Sydney Opera House and Harbour Bridge. Jacques Grießmayer, via Wikimedia Commons.
Sydney Opera House and Harbour Bridge. Jacques Grießmayer*, via Wikimedia Commons.

Many of us have a certain image of Australia pressed into our minds because of Hollywood.  It’s either Crocodile Dundee or The Crocodile Hunter or… hang on, is there just something about crocodile guys with Down Under accents that make Americans part willingly with cash?  There’s so much more to this curious country continent that it’s, well, too much for Hollywood to accurately portray, even though Mel Gibson (who is American) grew up there.  For others among us, it’s the formidable structures surrounding Sydney Harbour– the Opera House, the Harbour Bridge, the dentist’s office where Dory found Nemo.  (Sorry, I couldn’t resist talking about that adorable little fish and his forgetful protector.)

Despite so many differences and curiosities and cinematic stereotypes, Australia is strikingly similar to the U.S. and Canada* in terms of legal structure.  All are former British colonies, all have deep-rooted common law systems in place at the national and state/provincial level, and all have a fairly liberal attitude to serving process in civil lawsuits.  But that liberality doesn’t mean that certain procedures don’t have to be followed.

Service in Australia is governed by the Hague Service Convention, which means some background is in order before we get to the “how to” portion of our show.

  • The roadmap to the overall process—the recipe to our Secret Sauce.
  • The structure of the Convention itself is discussed in this four-part series.
  • And an absolutely critical note: the Hague Service Convention does not pertain to subpoenas.  Repeat after me—you can’t just SERVE a subpoena abroad.  In Australia, you have to file a Hague Evidence Request, governed by the Hague Evidence Convention.  Three Cardinal Rules apply—this is dramatically different from serving a summons or notice.

Now for the “how to” of serving Down Under:

Article 5 Service

  • Translate the documents? Logically, if service is effected in an English-speaking country, documents must be in English.  So, game over, right?  [Yay!  Pack up and go home!]  Not so fast, counsel… make sure your defendant speaks English, because his U.S. Due Process rights follow him to Australia.  Anybody sued in a U.S. court must be served in a language they understand, so if they don’t speak English, translation is still necessary.
  • Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney.  If it is not, make sure that the person signing is commissioned by the court.
  • Send to the appropriate Central Authority, in this case the Attorney-General.  Be sure to remit the proper fee for service, even though service fees seem to violate Article 12 of the Convention.
  • Sit tight. It may take three or four months from submission to return of proof.

Article 10 alternative methods

  • Mail service, under Article 10(a), is available.  But it’s a bad idea.  And it’s only available in Australia if it’s valid in the locality where it’s served.  Good luck determining that for sure.
  • Service via private agent (process server) seems to be available to U.S. litigants under Article 10(b).  Australia’s declarations do not articulate precisely who is and who is not authorized to serve process, and the issue has not ripened in Australia’s courts (at the state or federal level) to provide a jurisprudential conclusion.  However, the Attorney-General has indicated that foreign litigants may avail themselves of private process servers just as they did prior to Australia’s accession to the Convention in 2010.

Again, awfully straightforward stuff, much like serving U.S. documents in Canada.

Bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client.  The plaintiff may not have done it correctly.


* For the uninitiated, and completely unrelated to serving in Australia, the letter ß is not a fancy German B.  It’s a different way of writing a double-S in the middle of a word.  Straße is not pronounced “Straybe”, as Clark W. Griswold would have us believe.  It literally says Strasse, pronounced “SHTRAH-suh”.  Just a little orthographic/linguistic trivia to brighten your day.

** Commonwealth procedures may govern the manner in which Canadian process should be served in Australia.  The author is not admitted to practice in any non-U.S. jurisdiction, so although the information presented here may be accurate, Hague channels may not be the only way to properly serve in Canadian causes of action.

Singapore's Merlion, Bjørn Christian Tørrissen via Wikimedia Commons
Singapore’s Merlion, Bjørn Christian Tørrissen via Wikimedia Commons

At the far south end of the Malay Peninsula lies a tiny city state that occasionally makes the news for seemingly odd reasons.  Caning and imprisonment as a punishment for vandalism.  A ban on chewing gum (seriously).  A ban on spitting (well, let’s face it… it’s rude).  But rather than a center of arguably harsh rules on public behavior, the nation is more rightfully known as an economic juggernaut.  Anchoring the SIJORI Growth Triangle, Singapore’s manufacturing sector is huge, but financial services take an even bigger share of GDP.  North America’s commercial interconnection with Singapore is massive, and this inevitably leads to a fair amount of litigation against Singaporean companies and nationals by plaintiffs on this side of the Pacific.

Singapore is not party to the Hague Service Convention (HSC), although it has acceded to the Hague Evidence* and Child Abduction Conventions (it is also party to the Choice of Court Convention, which is not effective in either the U.S. or Canada).  Notwithstanding its absence from the HSC, serving documents in Singapore is relatively straightforward, owing to its status as a former British colony and current member of the Commonwealth of Nations.  It maintains a healthy common law system, so it should not be unfamiliar to American or Canadian** lawyers.

Service of U.S. process can be effected (1) by mail, if permissible under forum court rules, (2) by Letter Rogatory, or (3) via local counsel.  In all cases, enforcement of a judgment must be kept in mind– and it is in that light that I recommend Door #3 for just about all cases.  Addressing each in turn:

  1. Mail:  Most U.S. courts, where service is allowable by mail to begin with, allow mail service on foreign defendants only where it is not prohibited by the rules of the foreign jurisdiction.  Singapore’s Rules of Court do not specifically prohibit mail service, but they really don’t contemplate the issue.  Order 10, Rule 1(1) states that “a writ must be served personally on each defendant” (emphasis added), which opens up the question to far more argument than mail service ostensibly prevents (in short, does mail ever constitute personal service?).  I recommend against mail service except in very limited circumstances anyway– even if it stands on solid legal ground, it’s a bad idea from a factual perspective.  Moreover, if you ever seek to enforce your judgment in Singapore (or anywhere else overseas), the foreign court will undoubtedly question why you didn’t adhere strictly to Order 10.
  2. Letter Rogatory:  an official request from the forum court for judicial assistance from a Singaporean court.  Costly and time consuming, this instrument really isn’t all it’s cracked up to be (see here for elaboration on what it is).  For starters, budget a $2,275 fee to the Department of State just to convey the thing.  Then anticipate several months of waiting before a response comes back through diplomatic channels.  A Letter Rogatory simply isn’t necessary to ensure that service is effected according to Singaporean law.
  3. Local Counsel:  Potentially costly, but no more so than a Letter Rogatory, and certainly on a more solid legal footing than mail.  A Singapore solicitor can ensure that local rules are followed, thus ensuring that the manner of service will not give a court cause to reject an enforcement action later.  Just make sure that the proof of service demonstrates compliance with both bodies of law (Singapore and the forum court).

Some non-Hague jurisdictions present significant problems with service.  Singapore is definitely not one of them— indeed, it is among the simplest places to serve, either within or outside the Hague community.


* Recall that subpoenas are not viewed as “service” documents in most of the world.  Compulsion of evidence in Singapore for use in U.S. courts must be sought via a Hague Evidence Request.

** Commonwealth procedures may govern the manner in which Canadian process should be served in Singapore.  The author is not admitted to practice in any non-U.S. jurisdiction, so although the information presented here may be accurate, it should not be presumed to be applicable in Canadian causes of action.

South Harbor, Helsinki. Pöllö via Wikimedia Commons.
South Harbor, Helsinki. Pöllö via Wikimedia Commons.

I say all the time that we ain’t building rockets here.  But we are communicating.  And if your phone doesn’t work correctly, you have problems.  The sturdiest cellphone I ever owned was a decade ago– in the pre-smartphone days.  It was a Nokia 6610 candy bar– manufactured in China, I’m sure, but designed in Finland.  You could throw the thing off a five-story building onto solid concrete, walk downstairs, and call your mom.  The thing was a beast.  Had Nokia kept up with the smartphone revolution, I’d still be using their stuff today.*

I digress.

Serving process in Finland is subject to the strictures of the Hague Service Convention.  This holds true regardless of which U.S. or Canadian venue is hearing the matter.  Some background is in order, if you’re so inclined, before we cut to the chase.

Here’s how it’s done in Finland:

Article 5 Service

  • Translate the documents… maybe.  Finland’s declaration to Article 5(3) does not require translation of service documents, but that doesn’t make things easy.  They also allow individual recipients to reject untranslated service, which can really throw a Mjölnir-sized monkey wrench into the works.  Companies that do business outside Finland, however, are deemed competent in English.
  • Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney.  If it is not, make sure that the person signing is commissioned by the court.
  • Send to the appropriate Central Authority, in Finland’s case the Ministry of Justice.
  • Sit tight. It may take a while—likely to or three months from submission to return of proof.

Article 10 alternative methods

  • Mail service is available, depending on where you are, but it’s a bad idea anyway. If you do select this route, pay particular attention to the venue court’s rules about how mail service is initiated—in federal cases, adhere strictly to FRCP 4(f)(2)(C)(ii).
  • Finland also allows direct access to “judicial officers or other competent persons” under Article 10(b), but they make no definitive statement in their declarations about who those people are.  Moreover, no authority is Finland is obliged to assist foreign litigants, so it may be a nonstarter.  And in any event, the Finnish Central Authority is pretty quick.

Seriously—that’s all there is to it in Finland.  Its declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.

And remember… if you’re defense counsel, always question the validity of service effected on your overseas client, because the plaintiff may not have done it correctly.  That actually happened once, with a defendant in Norway, and her lawyers were smart enough to fight the issue.  The Washington Court of Appeals erroneously thought going outside the Central Authority was okay, but their Supreme Court saw the matter differently.


The 6610, a beast if ever there was one. Really.
The 6610, a beast if ever there was one. Really.

* Worth noting is that Microsoft acquired Nokia a couple of years ago and the company still exists as MS’ Finnish subsidiary.  When you’re suing them, you still have to serve properly, and serving the U.S. parent company will be just as ineffective as serving a U.S. sub of a foreign parent.

And lest I be remiss, I have to link the silliest reference to Finland in the known universe: Monty Python’s homage to the wintry land.

Brandenburg Gate, Ondřej Žváček via Wikimedia Commons.
Brandenburg Gate, Ondřej Žváček via Wikimedia Commons.

An interesting Catch-22 sometimes faces U.S. lawyers when they try to serve a complaint with punitive damages on a German defendant.  Germany’s public policy disdains punitive damages– indeed, until recently (that is, until the last couple of decades), they didn’t even conceptualize punitives in their legal thought process.  But an increase in American litigation has made the idea part of the zeitgeist, as it were.

The scenario:  lawyer files product liability suit against U.S. company and its German parent.  Suit is fairly straightforward and routine, including actual and punitive damages, no different than a garden-variety personal injury case.  Lawyer knows that she has to properly serve the German company, so she calls me or somebody like me, and we get a Hague request submitted to the appropriate German authority.  Three weeks later, a letter arrives that says “sorry, R.A.* Lukken, but we will not serve these documents because Missouri has a split-recovery statute.”

“Huh?” she and I both say in response.

I’ve seen rejections that include punitive damages, and I’ve seen requests including punitives make it through the process without a second glance.  Ted Folkman has addressed the issue many times at Letters Blogatory.  It was in connecting the dots between a Ted post and a recent split recovery rejection that I realized… in order to get around the problem, a bit of nuance illustrates why the Germans reject some, but  not all, punitive damage requests.  I leave the theoretical/jurisprudential analysis to Ted– this is about the nuts & bolts of how to get around the problem.

It is not that Germany disdains punitive damages.  Truly, such a rejection would violate the terms of the Hague Service Convention, which sets out two bases for rejection:  (1) you screwed up your paperwork,  and (2) the request somehow violates the destination state’s national sovereignty or security.  End of list.

  • “Sorry, but we think we have jurisdiction here”… not a valid basis for rejection.
  • “What you say they did?  Yeah, that’s not a bad thing, so we’re not going to serve this.”  Also not a valid basis for rejection.
  • “That company is owned by the state.”  Not technically valid, and the Germans will reluctantly serve as requested (although I’ve seen these get rejected, too).

So the “we won’t serve a complaint that includes punitive damages” is, on its face, also not a valid reason for rejection.  They will reluctantly serve those.  The question doesn’t turn so much on the scope of the verdict as on cui bono— who benefits– from it.

Who benefits from split recovery?  The state— usually to the detriment of the plaintiff and often of the lawyers who bore the cost to bring the matter to trial (bravo to Utah, which recently found split recovery unconstitutional).  This makes the civil suit seem not solely like a civil suit, but one with an element of criminal or (at least) administrative retribution to it.  And that is where foreign governments find the easiest basis to reject.  If it’s a criminal or administrative proceeding– thus leading to a fine or penalty, rather than compensation for a tort victim– it falls outside the scope of the Hague Service Convention.  Why?  Because the Convention pertains to Civil or Commercial Matters.

Simply put, in the German equation:

  1. This complaint will not only benefit the plaintiff, but the state of Missouri (or one of 9 others) as well.
  2. Such a retributive penalty falls outside the scope of a civil or commercial lawsuit.
  3. As it falls outside that scope, it also falls outside the Convention.
  4. Result: we aren’t going to serve it via the Hague procedure.**

The net result?  The nuts & bolts way around the problem?  Don’t worry about Hague channels.  Serve by an alternative method under the regular rules of the court.  That actually makes things easier in some cases.

Just make sure you have a plan for enforcing the judgment down the road.


*  R.A. stands for Rechtsanwalt— attorney– and lawyers are addressed as such.  In fact, we’re addressed formally in lots of places.  (R.A. stood for Resident Assistant during my sophomore year in college, but that was long ago and far away.)

** Egypt, historically, has rejected service requests for divorce petitions on similar grounds, determining that divorce is a family and religious law issue rather than a civil one.  We make no such distinction, but they do.  Since the fall of the Mubarak regime, Egypt’s judiciary has waffled a bit– and has allowed a few dissolutions to get through.

Nyhavn Waterfront, Copenhagen. Niels Bosboom via Wikimedia Commons.
Nyhavn Waterfront, Copenhagen. Niels Bosboom via Wikimedia Commons.

I say all the time that we ain’t building rockets here.  But we are building a ship, and a leaky ship means that your people could not possibly reach North America from Europe.  Do it the right way, and you’re the FIRST EUROPEANS TO REACH NORTH AMERICA.  That’s right, I said it.  Scandinavians got here first.  Er, well, we didn’t get here first.  But we beat Columbus to the punch by about five hundred years.

Aaaaaanyhew… I often joke about those “evil Danes who kept my Norwegian ancestors under their thumb for centuries” but the truth is, Scandinavia is made up of several (three or four, depending on who you talk to) wonderful and kindred cultures, and I look to Danes as family.  We all answer to the Viking Horn and we all know intuitively that Valhalla awaits us in the afterlife.  And deep down, we all reeeeally love playing with Legos– perhaps Denmark’s greatest export.  To this day.

I digress.

Serving process in Denmark is subject to the strictures of the Hague Service Convention.  This holds true regardless of which U.S. or Canadian venue is hearing the matter.  Some background is in order, if you’re so inclined, before we cut to the chase.

Here’s how it’s done in Denmark:

Article 5 Service

  • Translate the documents. Denmark’s declaration to Article 5(3) does not require documents to be translated, but the judicial official serving them is required to offer them a chance to reject untranslated process.  Now, I have yet to meet a Dane who doesn’t speak English as well as I do, but it’s not a fight worth having, if you ask me… just translate it.
  • Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney.  If it is not, make sure that the person signing is commissioned by the court.
  • Send to the appropriate Central Authority, in this case Ministry of Justice in Copenhagen.
  • Sit tight. It may take a while—likely three or four months from submission to return of proof.

Article 10 alternative methods

  • Mail service is sort of available (maybe, kinda, could be), because the Danes don’t specifically object to service by mail. They also say it might not be valid either.  Given the ambiguity, you probably don’t want to try it– and even if you want to try it… bad idea.
  • Denmark also allows direct access to “judicial officers or other competent persons” under Article 10(b), but they make no definitive statement in their declarations about who those people are.  Frankly, it doesn’t matter because Denmark’s Central Authority is pretty efficient.

Seriously—that’s all there is to it in Denmark, whose declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.

And remember… if you’re defense counsel, always question the validity of service effected on your overseas client, because the plaintiff may not have done it correctly.  That actually happened once, with a defendant in Norway, and her lawyers were smart enough to fight the issue.  The Washington Court of Appeals erroneously thought going outside the Central Authority was okay, but their Supreme Court saw the matter differently.


Little Mermaid statue, visitcopenhagen.com
Little Mermaid sculpture in Copenhagen Harbor, by Edvard Eriksen.  See more about her story at visitcopenhagen.com.

Ever see Disney’s The Little Mermaid?  Yeah, she’s Danish, sprung from the imagination of Hans Christian Andersen.  And this is what she really looks like. –>

Yale Law Library... where the rules live. PENG Yanan via Wikimedia Commons.
Yale Law Library… where the rules live.  PENG Yanan via Wikimedia Commons.

An interesting and seemingly Hague-related case came to light this week, and it came specifically to my attention thanks to the NorCal IP Blog by the guys at Orrick Herrington.*   As it turns out, it isn’t a Hague case after all.  It’s a straight-up civil procedure question.

The case, in a nutshell:  Japanese company, Godo Kaisha IP Bridge 1 (Godo for our purposes here, but the judge calls them IPB), sues American company Xilinx  (ZY-links?) for patent infringement in E.D. Tex., the current hotbed of IP litigation.

Xilinx, as luck would have it, sued Godo for patent infringement in N.D. Cal.– the mother ship of IP litigation– the very next day, and asked the judge for leave to serve Godo via Godo’s U.S. counsel.  Motion granted.

The judge’s order, as you can see here, explores the interplay of Rule 4(f)(3) and the Hague Service Convention, but it misses a critical point in the analysis:  the Convention applies “where there is occasion to transmit a judicial or extrajudicial document for service abroad.”  It’s right there in Article 1.

If you can serve a foreign defendant in the U.S. (whether via a subsidiary or via its U.S. counsel), the Hague Service Convention is inapplicable.  Utterly irrelevant.  Moot.

But even more critical… so is Rule 4(f).**  It only applies to service at a place outside the U.S., not here at home.  If service is to be effective via a foreigner’s U.S. counsel, it must be pursuant to Rule 4(h)(1)(b)… that is, “by delivering a copy of the summons and of the complaint to (…) any other agent authorized by appointment or by law to receive service of process.”

The salient question, which I avoid exploring here, is whether U.S. counsel can be appointed by the judge hearing the case.  Ultimately, this shouldn’t even have been a Hague question– it should have been an analysis of Rule 4, its overseas procedures excepted.  Had the judge denied the motion, then plaintiff’s counsel would have been forced to serve in Japan, and only then would Hague procedures be implicated.

[Don’t even get me started on why everybody ought to just waive in the first place.  Sure, you wouldn’t have to hire me, but still…]


Update, 4/13/17:  Ted Folkman posted on a similar opinion out of the same district on this morning— the latest in a line of cases he’s explored over the years.  As Ted points out in the comments below, only one case, out of E.D. Mich., has gotten it right, but he squares the circle for the others quite nicely in his thoughts on the Michigan opinion.  I commend those thoughts to you.


* Hat tip to Daniel Justice (could there be a better surname for a lawyer?) and George Kanabe.

** Rule 4(f), in its entirety [applicable to corporations thanks to 4(h)(2)]:

(f) Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served at a place not within any judicial district of the United States:

(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;

(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:

(A) as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction;

(B) as the foreign authority directs in response to a letter rogatory or letter of request; or

(C) unless prohibited by the foreign country’s law, by:

(i) delivering a copy of the summons and of the complaint to the individual personally; or

(ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or

(3) by other means not prohibited by international agreement, as the court orders.

I hate to be the guy who breaks this to you, I said to the client, but there is no chance that you’ll be able to get that notice of hearing served in time.  Not properly, anyway.

Poor fellow was a first-year associate, trying to get a notice of a guardianship hearing served on an absent father.  The judge insisted that he have the guy served personally.  By Tuesday.  “So, please get this done for us.”

The problem:  absent father is in the People’s Republic of China.

Sorry, I said.  It can’t be doneThe Hague Service Convention has to be observed, and when you’re serving in China, that means a request to the government in Beijing (same as in Mexico or Germany or Switzerland or India).  That’ll take months to get through—not hours or days like we’ve come to expect in America.

“Okay,” he said.  “Let me go talk to the partner running the case.”

The story took an unexpected turn when he called me a half hour later to say “the partner told me that you just need to hire a Chinese courier to do it & then send an affidavit.  So can you get it done?”

Oh, where to begin?

For starters, and setting aside the mandatory nature of the Hague Service Convention, China is not a common law country—Hong Kong S.A.R. excepted—and they prohibit service by anybody but judicial officers (this is a characteristic of civil law jurisdictions).  If a courier tried to do what the partner wanted, the courier would be subject to criminal penalties under Chinese law.  You can’t just usurp the government’s authority and walk away clean in such a situation.

If this thing is going to be properly served, we have to file a Hague Request.

The junior associate’s response:  “No, you don’t.  The partner says that because the father isn’t a party to the case, we can serve him ‘normally.’  The Hague Service Convention only applies to process.”

Process?  Just have the partner call me, wouldja?  He didn’t.  And he probably won’t, which is too bad for his client.  And his malpractice carrier.

Normally?!  Does he mean that in China they don’t do things normally?

Folks, this is a massive misconstruction of the Convention, and one I had heard of before, but hadn’t seen actually in play.  To be sure, there is caselaw out there that distinguishes between process and other notification in a Hague context, and those cases hold that Hague strictures don’t apply unless process is being served.*  But those holdings are wrong– or at least arguable– and you don’t want to be the fellow on the losing end when they get overturned.  That’s expensive and unnecessary.  My reasoning…

The word “process” doesn’t even appear in the text (seriously, click here and run a word search on the page).  It doesn’t delve into jurisdictional questions, which is a very big deal if something deals only with process.  In fact, the only mention of jurisdiction in the entire treaty is the flat denial of jurisdiction as a basis for a country’s refusal to serve.

The name of the treaty is the Convention on the Service Abroad of Judicial and Extrajudicial Documents, not the Convention on Service of Process.  And it applies to just about any sort of court-related document you can think of, if that document must be served.**

  • Summons?  Slam dunk.  (“Citation” to our colleagues in the Lone Star State.)
  • Complaint or Petition?   Yep.  They go right along with the summons.
  • Notice of Hearing?  Yeah, buddy.  It’s a judicial document Even if it doesn’t compel someone to show up in court or assert jurisdiction over him, it must still be conveyed to a recipient in a formal, demonstrable manner, in full observance of due process.  The fact that the recipient isn’t a defendant or respondent is immaterial.

Bottom line, if the thing has to be served, then you have to observe Hague Service Convention procedures wherever the Convention applies.

Says who?  Says this lady:

Source: National Archives.
Source: National Archives.

And eight of her friends.


* It isn’t completely unreasonable to conclude what my prospective client did.  Ted Folkman points to dicta from the Schlunk decision as a basis for arguing that the HSC does only apply to process.  He’s a whole lot more diplomatic than I am– although he disagrees with the Hyundai decision he described back in 2012 and in his excellent follow-up column last month (for an even more thorough discussion, see Ted’s chapter in the latest ABA deskbook, International Aspects of U.S. Litigation).  Ted calls it a difficult question, but I see it as pretty straightforward, and Ted’s been at it a whole lot longer than I have.  Still, the Hyundai court bungled it.  You don’t start parsing legislative history and its parallel language to determine intent when there’s no ambiguity in the very text you’re working in.  The HSC is unambiguous– it applies to service.  Rule 4 requires service.  Rule 5 requires service.  If the document has to be transmitted to another Hague member country for service, the Convention applies.  Full stop.

** One huge exception to “just about any sort of court-related document”:  subpoenas.  You can’t serve them abroad.  Full stop.  For my reasoning on that issue, see here.

 

 

 

This morning marks the 100th anniversary of the United States’ entry into the First World War, and the center of the commemorations is my adopted hometown, Kansas City, Missouri.  After the war, Kansas City was the first community to build a memorial to her fallen sons– indeed the fallen sons of all communities thrust into the fight– and somehow, that memorial became a repository for artifacts sent from across the nation by soldiers, sailors, Marines… even a few airmen here & there.  A fundraising drive in 1919 took in $2.5 million.  (In today’s money, think thirty or forty million, depending on which elected official you talk to.)

In the space of ten days.

Because that’s what speed do.

Eventually, our city became the home of the National World War One Museum, and it is one of my favorite places to reflect on, at once, the horrors of war and the courage needed to face those horrors.

Tomb of the Unknowns, Arlington National Cemetery, April 2, 2017.
Tomb of the Unknowns, Arlington National Cemetery, April 2, 2017.

At this commemoration, we do not glorify combat– anyone who has seen it first hand will tell you that there is not a single positive thing about it.  But we do honor the sacrifice and bravery of those men and women (yes, women bore the brunt of the battle, too) who put life on hold for a time– and in many cases, forever– to answer the call to duty.  Today we set aside the reasons for this war, because each of those reasons is monumentally stupid.  We set aside arguments about “justified” conflict.  We simply pause to celebrate courage and remember sacrifice.

B-2, 509th Bomb Wing, Whiteman AFB, over Liberty Memorial, Kansas City, Missouri, April 6, 2017.
B-2, 509th Bomb Wing, Whiteman AFB, over Liberty Memorial, Kansas City, Missouri, April 6, 2017.

We also pause to remember that the war had raged for nearly three years before our entry, and our allies are represented today by the Patrouille de France, the French counterpart to the U.S. Air Force’s Thunderbirds.  (A nos alliés de l’Armée de l’Air de la France… vous êtes bienvenus ici.)

Also present: Belgium, Austria, Hungary, Australia, Italy, Canada, England… probably others that I’m just not aware of.  Because we were all in it together, regardless of which side we were on.  Sons of American mothers were forced to kill sons of German mothers, and vice versa.  There is simply no glory in that.

But there is plenty in the willingness of those sons to fight for their country, whatever its flag.

Fortunately, the Museum had a live feed of the event on the internet, and saved it for posterity.  Watch the ceremony here.


IMG_20170406_083520I am honored to have attended the ceremonies with Maj. James Hohensee, U.S. Army (JAG, Ret.), a valued friend and mentor.  

Jim’s wife, Sally, got tickets to the event, and invited me to join them.  That’s touching by any metric.

Olso Harbor. Hylgeriak, via Wikimedia Commons.
Olso Harbor. Hylgeriak, via Wikimedia Commons.

I say all the time that we ain’t building rockets here.  But we are building a ship, and a leaky ship means that your people could not possibly reach North America from Europe. Do it the right way, and you’re the FIRST EUROPEANS TO REACH NORTH AMERICA.  That’s right, I said it.  Scandinavians got here first.  Er, well, we didn’t get here first, but we beat Columbus to the punch by about five hundred years.   Aaaaaanyhew…

Serving process in Norway, if you can get past the stunning topography, is subject to the strictures of the Hague Service Convention.  This holds true regardless of which U.S. or Canadian venue is hearing the matter.  Some background is in order, if you’re so inclined, before we cut to the chase.

Nærøyfjorden, Bergen. Arian Zwegers, via Wikimedia Commons.
Nærøyfjorden, Bergen. Arian Zwegers, via Wikimedia Commons.

Here’s how it’s done in Norway:

Article 5 Service

  • Translate the documents. Norway’s declaration to Article 5(3) requires documents to be submitted in Norwegian, Swedish, or Danish (a big cost saver if you have defendants elsewhere in Scandinavia) unless it can be established in advance that the defendant speaks English.  Now, I have yet to meet a Norwegian who doesn’t speak English as well as I do, but it’s more hassle to establish the fact than to just translate and be done with it.
  • Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney.  If it is not, make sure that the person signing is commissioned by the court.
  • Send to the appropriate Central Authority, in this case the Royal Ministry of Justice and Public Security.
  • Sit tight. It may take a while—likely five or six months from submission to return of proof.

Article 10 alternative methods

  • They simply aren’t available, because Norway objects to them all. Article 5 is the only way it can be done.

Seriously—that’s all there is to it in Norway.  The method is straightforward and simple. Its declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.

And remember… if you’re defense counsel, always question the validity of service effected on your overseas client, because the plaintiff may not have done it correctly.  That actually happened once, with a defendant in Norway, and her lawyers were smart enough to fight the issue.  The Washington Court of Appeals erroneously thought going outside the Central Authority was okay, but their Supreme Court saw the matter differently.


* Løkken Verk
Løkken Verk, a century ago.

Author’s note: my ancestral homeland we’re talking about here.  If family lore and frequent mispronunciation are any guide, our name was originally Løkken, a Viking-sounding name if ever there was one.  I would call it an Ellis Island name, but Ellis didn’t open until well after my great-great grandparents arrived in the 1880s.  It wasn’t until they reached the frozen tundra of the Upper Midwest that they felt truly at home– notwithstanding the fact that they were over a thousand miles from an ocean.  

Then again, the village of Løkken is inland, about forty miles southwest of Trondheim.  In the 1880s, that was quite a journey over hill & dale.

My Norwegian ancestry is the reason I named the firm Viking Advocates.  Obviously.

IMG_20170403_073611
This is how my day started.

This morning at about 10:20 eastern time, I had the overwhelming honor of being sworn into the Bar of the Supreme Court of the United States.  I don’t post this completely non-Hague-related news to brag.  Rather, I post it to encourage every lawyer who ever has a chance to do this… do it.  Anyone who has been through it will tell you that it is emotional, fulfilling, and something we all deserve as advocates and professionals.

As I sat in the Courtroom, I couldn’t help but drink in the majesty of the place.  For eight decades, it has been the crucible in which some of our most treasured rights have been forged.

I couldn’t help but suffer a bit of imposter syndrome, wondering how I got to this place with several dozen attorneys who are far more capable and experienced than I am.

I couldn’t help but smile when I thought of my favorite teachers– from junior high civics (Wayne Kurle) to U.S. Constitution in college (Ed Shoemaker) to ConLaw (Doug Linder).

I couldn’t help but be humbled by the giants who had sat behind that bench– Earl Warren, Hugo Black, Thurgood Marshall, Sandra Day O’Connor, Antonin Scalia (yes, that one)– and the diminutive powerhouse from PS 238 in Brooklyn who sat there now– I was mere feet from Ruth Bader Ginsburg.

I couldn’t help but shed a tear when I thought of my grandfather, just two years older than Justice Ginsburg.  Clyde didn’t graduate from high school until he was just a shade older than I am now, but he spent more hours than I can count fighting to vindicate the rights of his co-workers.  What would he think of all this?

IMG_20170403_114146I couldn’t help but smile when I recognized again and again that the love of my life was sitting just a few rows behind me in the visitors’ gallery, no doubt beaming with pride.  And she should, because this journey wouldn’t have happened without her.  (I could hear Peggy stifle a squeal of delight when, an hour later, RBG herself walked into the private room the Court had set aside for us… just for a moment, to say hello and to welcome us to the Bar.  It was better than meeting a Beatle.)

Each one of us has a journey as professionals, and believe me when I tell you– that journey is incomplete without this bar admission.  It is a day I will carry with me into every courtroom I enter from now on.

I do not exaggerate.  Every lawyer owes it to herself or himself to take this in.  Give yourself this experience.

[And if you need a signature on your app, I know some people!]