Perhaps it looks a bit too much like The Eye of Sauron to take seriously?  I took this during the total eclipse.  With my phone, if you can believe it.

Like many of our fellow humans, my wife and I took a few hours away from our respective offices yesterday to watch something that hasn’t happened in Kansas City since before the first intrepid Frenchmen paddled up the Mighty Mo seeking beaver pelts.  Just after noon CDT, we donned some funny cardboard glasses and watched a total solar eclipse for about 45 seconds.  This sort of event has been monumental in history, cajoling warring factions to the peace table, and offering a backdrop for great literature.  And we had an absolute ball.  I really didn’t think it would have an emotional impact on me, but it did.  As the sky darkened, the temperature tanked, crickets began chirping as if it were dusk, and the streetlights came on.*

Our soundtrack was a whole lot of fun, too…

Now enter The Honorable Steven D. Merryday of the Middle District of Florida, who took my Carly Simon reference to completely new heights with a tongue-in-cheek order regarding a government motion for continuance.  The AUSA’s offered grounds?  The key FBI agent had already bought plane tickets to Charleston (or Nashville or Kansas City or Portland) to see the event.

Now, as I started to read the thing, I thought to myself “outstanding– a judge who recognizes the monumental events here.”  But a few para’s into it, I caught on to his logic.  By the end, it was pretty apparent that somebody in the Justice Department played fast & loose with the facts.  Motion denied.

I have to think that if they hadn’t just pulled assertions out of a hat, His Honor might have granted the motion.  Who knows?  (Read the order on Scribd here.)

So what does this have to do with Hague service?  Not a thing.  Unless you recognize that pulling assertions out of a hat is dangerous in the law.  Sooner or later the judge is going to get wise to your antics and smack you.

Examples of such antics:

Far better to do it right the first time and not become the subject of listserv discussions** across a wide swath of the country.


* Thanks to my good friend and law school classmate Carl Scarborough (and his wife, Doreen) for letting us camp out in the zone of totality.

** And a hat tip to my colleague David Ransin for bringing the M.D. Fla. order to my attention on the Solo & Small Firm Listserv of the Missouri Bar.

Federal Reserve image.

My practice area is a pretty goofy little niche, and explaining it to colleagues gets me into the occasional comedy of errors.  Really, odd conversations tend to follow my CLE lectures.

Or bar association happy hours.

Or tours of farwaway legislative chambers.

It happens all the time.  I’ll mention what I do, and the colleague I just met will express appreciation for what I described, tell me it’s a really neat niche, and then try to convince himself (or herself) that our practice areas don’t overlap.

I’m here to tell you that, yes, they do.  The banter usually goes something like this:

Sorry, Aaron.  I handle creditors’ rights, not immigration.  But thanks for doing that CLE.  You’re a funny guy.  

Well, I appreciate that, Stewie.  I’m glad you enjoyed it.  (But inside:  Funny how?  I’m a clown?  I amuse you?)

No, I mean I really like how you got that picture of Ned Stark into your slide deck!

Wait a sec, there, pal.  First of all… immigration?  You’re kidding, right?  You did just sit through my lecture on international law, right?  Those are not the same concepts.  (He’s not kidding, sadly.*)

This is Boromir, from the Fellowship of the Ring. It is not Ned Stark.

More importantly, though, what I do has direct bearing on your debt collection practice.  A huge impact, especially in places where lots of foreign citizens borrow from local and national lenders.  Allow me to illustrate…

Let’s say your client is a bank or a mortgage outfit.  Let’s also say they’re in Branson, Missouri (or pick just about any in-demand resort area, whether in the Ozarks or out on the coast).  They specialize in lending to folks who want a vacation property on a picturesque waterfront.  The bank loans a huge chunk of money to a Ukrainian fellow who just can’t get enough of the Baldknobbers (it’s a thing in southwest Missouri… just trust me) and the comedic stylings of Yakov Smirnoff.  It seems this guy’s wife fell in love with a beautiful six bedroom cabin on Table Rock Lake, so they cashed in a few savings bonds and bought the place.

Thirteen months into the mortgage, Mrs. Ukrainian Lady decides that Kiev is more to her liking than Branson, so the couple hightails it east toward their homeland.  They stop making mortgage payments, and a year later, your client wants to cut its losses.  What do you do?

Well, the first thing you have to do is get a foreclosure suit filed (this illustration really could be any kind of collection action, but if I can promote tourism in my state with some down-home flavor, all the better).  All Missouri counties now have e-filing, so that’s not a tough undertaking.

Next, you get the court to issue a summons to the borrower.  The clerk is happy to e-mail you the thing via CaseNet.

And now things get interesting.  Service of process, you say?

Sure, it’s an in rem action, but you can’t just nail the summons to the front door of the cabin and say you’ve served process.  You also can’t serve by publication until you’ve made a reasonable effort to serve personally.  Your defendant has gone back to Ukraine, and you have to at least try to serve him there, because your client didn’t think to have him designate an agent for service in the mortgage agreement.  You find out that Ukraine is party to the Hague Service Convention, which is mandatory doctrine if you’re serving a defendant in a country that’s signed onto it.  Ukraine objects to service by mail, so that option’s off the table, and your only remaining choice is a request to Ukraine’s Hague Central Authority.

Fortunately, the Ukrainians are pretty liberal about the language issue, so you may not have to shell out a thousand bucks for a translation.  And they get the job done when you ask nicely (unlike their Russian counterparts).  But you still have to fill out your USM-94 correctly.  That’s a big one.  Very important, the USM-94.

Then you sit and wait, while your client sits on a mortgage they can’t foreclose for at least six more months.  And if you don’t even try to get him served, you’ll have a tough time getting the judge to proceed without that indispensable defendant.

This is Ned Stark.

 


* A huge segment of the practicing bar thinks that international law is immigration law, and immigration law is international law.  My local bar association even conflates the two ideas in its committee structure.  This is so baffling that both the international lawyers and the immigration lawyers in town have given up trying to convince everybody else.

Glasgow Central Station.  They all meet under the clock, just like we do in Kansas City.  Or at least, like we did when we traveled by train.

It’s been a quiet couple of weeks at the Hague Law Blog– I just returned last weekend from a lengthy trip to Québec, England, and Scotland; and it was a doozy.

For lawyers who haven’t had the opportunity, I’ll say again that foreign lands are the best possible place to get your CLE hours.  Take one of your favorite humans along (daughters take mothers and vice versa, wives take husbands and vice versa… one guy who traveled to Turkey with us a few years ago brought his whole family).  Visit places you’ll never get to see on the regular tour.  Connect with colleagues from back home and abroad.

Insert here yet another shameless plug here for my alma mater, the University of Missouri-Kansas City, and its overseas CLE programs.  That’s how I got to Oxford.

The House of Commons, Palace of Westminster (official photo).

And it’s how I came to stand in a place that has witnessed greatness so many times that they’ve literally stopped hyping it.  Before the majority side despatch box (yes, it’s spelled that way) in the House of Commons.  Where Gladstone and Disraeli battled each other, in alternating stints as PM.  Where Thatcher rallied a country ’round the first war I remember.  Where Tony Blair fostered hope and later disappointment.  Where Winston Churchill talked of the blood, toil, tears, and sweat necessary to defeat Nazi tyranny.  How ironic that my visit there came just days before the sadness of Charlottesville and the renewed rise of fascist apologists.

Yet even that sadness does not wholly diminish the joy of the trip.  I was able to see old friends in Glasgow after more than two decades apart, I had a pint in the birthplace of Bilbo Baggins, and I sat in a chair occupied by justices of the Supreme Court of the United Kingdom.

To top it off, I learned a whole lot, met people face-to-face that I work with regularly only via the internet, and satisfied quite a bit of intellectual curiosity.

All that said, it’s good to be home.

St. Edmund Hall, Oxford. Founded in A.D. 1226, the oldest college at Oxford University and the site of our CLE conference.
The view from the Justices‘ seats, UK Supreme Court.
The Eagle and Child, Oxford. The place where J.R.R. Tolkien concocted the world we know as Middle Earth.

The Hague Law Blog is not entirely about law this week—I am traveling for two different conferences, and taking in the sights, sounds, smells, and feelings of different lands.

This week, I finally got to visit the fourth largest French-speaking city in the world (sorry, Marseille and Lyon—you don’t even crack the top ten—African cities take the #2, #3, and the rest of the top ten spots after Montréal).

In college, I majored in French, in large part because I lived in Belgium for three years as a kid (Army Brats unite!) and gained a curiosity about languages very early.  The entire province of Quebec was always a curiosity, and Montréal even more so, because they were right next door to my homeland, and offered a taste of French life without having to leave the continent.  My expectations of this place were exceeded by leaps and bounds—within mere hours of our arrival.

On the Metro Sunday afternoon, I heard no less than seven different languages spoken within earshot at the same time.  And that wasn’t the most impactful moment of the day I shared with my wife…  as we left the Oratory of St. Joseph, I was stunned by a trio of Sikh men, turbans and all, entering a Roman Catholic church for no reason but to behold the grandeur of an incredibly spiritual and holy place.  They were quiet, and respectful, and reverent, and behaved exactly as I would have expected from people of faith—any faith.  It really warmed my heart to have a long-held belief vindicated: it doesn’t matter what philosophy a person espouses.  As long as we respect each other, humanity is on the right track.

Reserved for pilgrims climbing on their knees.

As Peggy and I walked outside to descend the hill and return to our hotel,* we passed several women, ascending the steps to the Basilica on their knees.  That they were ascending on their knees wasn’t the fact that struck me—I’ve been to Rome; I’ve watched pilgrimages happen—what struck me was that they were from India.  Praying in Hindi as they took each step, knee by knee.

If only I had that kind of faith.  If only I had that kind of dedication and fervent knowledge.

Peggy and I continued our descent hand in hand, both smiling, and not saying a word.

Professionally, the trip has been productive.  Personally, it’s been nothing short of wonderful.  The biggest reason?  The people of Montréal are warm, welcoming, and (above all) they embrace other human beings no matter their origin.  That tends to restore my faith in the world.

Merci, Montréal. T’es belle.


* Even our hotel was a curiosity.  The Fairmont Queen Elizabeth… famous for this little event, upstairs in Suite 1742.

Pixel.la via Wikimedia Commons

The Supreme Court issued a decision in May that seems, at least on its face, to be absolutely groundbreaking in transnational litigation.  And a few otherwise cogent blogs have posited recently that it will mean great things in the discovery field, now that subpoenas can be served by mail.  Both of those statements are quite incorrect.  The decision will have minimal effect anywhere but perhaps Houston and Kansas City, and it will have zero effect on discovery, electronic or otherwise.  Zero.

For starters, the Water Splash opinion is anything but groundbreaking.  It merely resolved a circuit split that didn’t amount to a whole lot.  The 5th & 8th Circuits, along with a number of federal districts, had previously held mail service under the Hague Service Convention to be invalid.  The 2d and the 9th, where substantially more lawsuits target foreign defendants, took the opposite (correct) view.  My take on the whole thing: big deal.  Mail service is usually a bad idea regardless of its legal validity.

More flawed, though, is the idea that the Hague Service Convention, in light of Water Splash, allows for service of subpoenas by mail.  It doesn’t.  It never did.  It never will.

Because subpoenas aren’t considered judicial or extrajudicial documents covered by the Service Convention.*

Subpoenas are a construct of the common law, and even other common law countries don’t use them nearly as often as we Yanks do.  In civil law countries, they’re unheard of, because evidence is not produced at a lawyer’s demand.  It’s produced because the judge wants the evidence and issues an order saying so.  I say this repeatedly:  you can’t simply serve a subpoena abroad.  You can’t.  Period.  There is no variance on this.

And if you can’t serve it, the Service Convention isn’t what you look to in determining how to make the witness or custodian cough up the information you seek.  The Hague Evidence Convention provides the avenue, and it does a rather poor job of it by U.S. standards.**

To compel production for a U.S. action in a fellow Hague country a Hague Letter of Request is necessary.  And a word of caution: STOP CALLING IT DISCOVERY.  It’s evidence taking–or more accurately, evidence compulsion in most cases.  Call it discovery, and your request will be rejected by the foreign judge without so much as a thank you.

You can get to the evidence.  It just requires significantly more effort than dropping a subpoena in the mail.

Water Splash’s effect on the undertaking:  Nada.  Zip.  Zilch.


* A clarification is in order– and I thank Ted Folkman of Letters Blogatory for pointing it out:  yes, a subpoena is unquestionably a judicial document.  In the United States.  Elsewhere, it’s viewed as a tool of all-too-zealous lawyers who (in the view of our common law brethren) overreach, or who (in the view of our civil law cousins) usurp the authority of foreign courts by barking demands at their citizenry.

** That is not to say it’s a bad treaty.  It just doesn’t do much for U.S. litigators in the way that we might hope.  In reality, it only knocks down a couple of procedural barriers that hamper the old fashioned Letter Rogatory procedure.  At its core, everything is still up to the foreign judge, in a manner governed by foreign law.  This makes U.S. judges quite happy, of course (<– sarcasm).  Article 23 constitutes a big, ugly middle finger to American lawyers who need documents located in a file cabinet somewhere in Europe.

Not the Paris you’re thinking of.      Jeanne Boleyn, via Wikimedia Commons.

I fielded an interesting phone call last week.  It seems the caller rather enjoyed the august pages of my blog—thanks to a quick Google search on how to serve process in Italy—and rang me up to make sure he was doing things the right way.  Excitedly, he told me that he’d gotten his documents translated, just like I suggested.  He said he’d identified the correct Hague Central Authority, just like I suggested.  The paperwork was all pulled together and ready to go—but he was a bit uncertain.

As a courtesy (which I’m always happy to provide), I told him to email me the documents and I’d take a look at them for nothing.  I’d only charge him if I saw glaring errors that needed to be fixed.  After I looked at them, I gave him a thumbs-up and reassured him.

Ye did it right, counsel.

“Whew.  Good,” he said.  “That would have been a huge chunk of my life wasted if I hadn’t.”

How many hours do you have into it? I asked.

“Sheesh.  At least ten.  And I’m still not done.”

Hmmm.  You could’ve saved a whole lot of heartache and just had me handle it for you.

“Oh, you’re admitted in New York, too?”

Um… no.  Why?

“Well, don’t you have to be admitted in New York to do this on a New York case?”

Nope.  Just admitted somewhere.  I’ve got the Show Me State.

Poor fellow was incredulous.  “You mean I could have just hired you and saved myself all the trouble?”

Yep.

It isn’t necessary to be admitted in the court hearing the case to sign a Hague Request.  It is necessary to be a licensed attorney, but the U.S. declaration to Article 5(3) of the Hague Service Convention says any attorney can do it.  Any.

Yes, counsel.  That means you, too.  I’ve posted several times that service abroad is something that you can do yourself.  But that doesn’t mean you have to—or even should.  After all, you wouldn’t serve process yourself in Paris, Texas, so why should you handle service yourself in Paris, France?

The one you’re thinking of. Waithamai via Wikimedia Commons.

You wouldn’t send your junior associate to serve a defendant in Queens, so why would you have that same junior associate worry about serving in Queensland, Australia?

Short answer:  don’t.  Just outsource it.  To illustrate, I don’t represent DWI defendants.  Yes, I’m officially qualified, but it would take hours of research, and questions to the various listservs I subscribe to, just to figure out the choreography of the hearing.  And that’s before I even delve into the substantive law.  Fortunately, when my favorite aunt calls me to say that my (idiot) cousin Ernie* blew .11 on his way home from the bar, I have friends I can send her to.  That is, friends I can send Ernie to.

Short rationale: it will save you a whole bunch of time, and it will save your clients a whole bunch of money.  Service in Vienna, Virginia is something you hire someone else to handle… it makes sense to do likewise in Vienna, Austria.

If you have overseas defendants or overseas witnesses or you need to enforce a U.S. judgment overseas, give us a call… it’s what we do. **


* Ernie is an idiot on his own merits.  This condition is not a predicate to his DWI charge, but it certainly makes the situation worse.

** Finally, I get to work William Shatner into a post.  I celebrate his entire catalog (even T.J. Hooker), but Shatner’s best work is when he’s lampooning Shatner.

 

Smart folks here. Those terminals? That’s who you talk to when you get home. CBP photo.

I’m off to Montreal this week– a much-anticipated trip– for meetings and a conference, then on to Oxford next week to give a CLE lecture.  When I come back, I anticipate a bit of a smoother return because of a Customs & Border Protection program called Global Entry.  The scheme is designed primarily for frequent travelers, but even for people who venture abroad only once in a while, it’s awfully handy, and if nothing else, pays for itself in time saved.

Costs:

  • Twenty minutes to fill out the form.  Have your passport and driver’s license handy.
  • $100 for a five-year clearance.  Credit cards accepted (preferred?).
  • A trip to the airport (at least, the nearest airport with international connections) for an interview and fingerprint scan.  Yes, they’ll validate your parking.  Yes, CBP’s officers are regular people just like you and me.  It’s painless.

Benefits:

  • TSA Pre-Check is automatically included.  Keep your shoes on, keep your belt on, leave your laptop and liquids in your carry-on.  Did I mention that TSA Pre-Check is already $85?
  • No line at the port of re-entry into the United States (see the picture above).  You simply scan your passport and prints, enter your declarations on the touchscreen, and doors magically open for you.  This can save a half-hour’s wait (if not more) as the CBP officers process everybody else on your crowded flight.  Now, to be sure, U.S. citizens usually have a shorter wait than foreign visitors anyway, but your time is still worth it.
  • Partner programs for Canada and Mexico.
  • Easier access to China and the Far East.  As my interviewing officer explained, the People’s Republic of China and a few other east Asian nations have a comparable program, available to U.S. citizens with Global Entry clearance, that pre-clears known travelers for immigration and customs.  Apparently, the lines in Beijing are nightmarish, so if you plan to go to  the PRC more than once, it’s an even greater time-saver.
  • Easier renewals.  Much like your passport, renewing the thing is far easier than getting it in the first place.  Yes, you have repeat costs, but at twenty bucks a year, it’s a slam dunk.
These folks didn’t get the memo. I’ve waited in that line.  CBP photo.

Drawbacks:

  • Nobody from the United States government says “welcome home” to you.  Seriously– that’s awfully nice to hear after a lengthy sojourn abroad.  Here, it’s a touchscreen.  You literally get more love from your laptop.
  • That about covers it.

Even if you only fly abroad once every few years, get on this program instead of Pre-Check.  In any industry that views time as a valuable commodity (I’m talking to you, lawyers), this thing pays for itself in a single trip anywhere– not just abroad.  Road warriors, take note– if you spend a couple of hours of your life now, you’ll save several later on.  That will make you far more willing to go abroad and look your clients in the eye.

Poor fellow got stabbed right when things were getting interesting. Coke Smyth, Folger Shakespeare Library Digital Image Collection.

Before he was Bilbo Baggins, Sir Ian Holm brought Polonius to life in Mel Gibson’s 1990 screen adaptation of Hamlet (long before Mel went stone cold nuts, but that’s a different story).  For the uninitiated, Polonius was a loyal advisor to the slain king, very much like a second father to Hamlet the Prince.  Who killed him.

Polonius is my favorite character in the Pantheon of Shakespeare’s personalities– if for no other reason, because of this line:

Therefore, since brevity is the soul of wit,
And tediousness the limbs and outward flourishes,
I will be brief: your noble son is mad:
Mad call I it; for, to define true madness,
What is’t but to be nothing else but mad?
But let that go.

Brevity is the soul of wit.

My wit often forgets its soul, and I become tedious, much like my other favorite Shakesman, the constable Dogberry from Much Ado About Nothing.*  I am a lawyer, and I fall victim to the Lawyer’s Curse: that we think we’re getting paid by the word.  More words, more money.  Yay, lawyers.

Except, no.  Although we’re not trying to be witty, we don’t get paid by the word.  We get paid by the hour, and even that seems somehow perverse in a profession that prides itself on the best interest of the client.  Translators, on the other hand, do get paid by the word.  So when Germany’s declarations to the Hague Service Convention mandate translation of all documents to be served, it becomes pretty important for plaintiff’s counsel to keep things short, sweet, and to the point.

This is particularly difficult in patent infringement cases, although I have a theory I’d love to see tested.**  Nevertheless, it really is critical to keep the pleadings brief, even in fact-pleading jurisdictions.  Nearly all of our major trading partners require translation of service documents into their own language (the Netherlands and Israel being notable exceptions).

This above all: to thine own client be true.  

Remember that you don’t get paid by the word, but translators do.

Draft accordingly.

*  I still can’t decide whether I enjoyed Michael Keaton‘s or Nathan Fillion‘s Dogberry more.

** Patents are a matter of public record, and they’re accessible at the PTO’s website.  So why must they be attached to a complaint as exhibits rather than incorporated by reference?  I honestly don’t know the answer to that question, and I welcome feedback in the comments below.  Notice pleading (see FRCP 8(a)(2)) requires a short and plain statement of the claim.  Four hundred pages of dense patent language tends to violate that idea.  And those four hundred pages are incredibly costly to translate into Swedish.  Consequently, I argue that they ought to be left out, in order to avoid unnecessary costs.  (I may be wrong, and don’t mind being told so.)

DoD photo (thus, public domain). Via Wikimedia Commons.
DoD photo (thus, public domain). Via Wikimedia Commons.

Litigation is civilized combat.

That’s not my original thought, but forgive the lack of appropriate credit.  I don’t recall where I first heard it.

Sure, it’s an oft-criticized concept– thinking of litigators as warriors, hired guns, Viking marauders, etc.  But it offers perspective on how to approach a dispute once diplomacy and negotiation break down.  In this particular analogy, I offer a sport that has intrigued me for years, although I’ve never gotten into it: fencing.

Think of a lawsuit as a fencing bout.*  A thrust is an offensive move—literally trying to strike your opponent with your blade.  A parry is defensive in nature—either a block to the thrust, or a simple change in position—rendering the thrust ineffective– and when followed by a riposte, turns around on the aggressor.  In a suit, service of process is the opening thrust, and if it’s done incorrectly, it is easily parried away, and can be turned into a fatal riposte (dismissal!).

Last month, Nathan Park’s Asia in U.S. Courts blog (which I highly recommend if you’re at all interested in the Far East and its interplay with the U.S. judiciary) highlighted a parry that went wrong for the plaintiff—in a completely preventable way.  She alleged that a piece of medical equipment had injured her, and sued the manufacturer in California.  The defendant is Japanese, but has a subsidiary in Illinois.  With me so far?

Counsel served the Japanese parent by delivering the documents to the Illinois sub.

Sorry, ma’am– not valid, said the court.  The subsidiary wasn’t sufficiently shown to be an agent of the parent company.

Now, Illinois has a statute that allows precisely that sort of service, but the statute only applies to Illinois state court actions.  This statute was at the heart of Schlunk, the seminal, end-all-be-all, Great White Whale opinion in Hague Service Convention matters,** which held that the Convention was mandatory where it applied, but because the defendant (Volkswagen) could be served in Illinois, the Convention was inapplicable.

It seems that, perhaps somebody misread Schlunk and thought “hey, let’s tag the Illinois sub based on that opinion.”  That the California court based its ruling on other grounds doesn’t validate the way the plaintiff tried to serve.

To their credit, counsel also undertook a belt-and-suspenders tactic: directly notifying the Japanese defendant by FedEx.  But they didn’t follow 4(f)(2)(C)(ii), and subsequently insisted that it wasn’t service, but merely delivery of a courtesy copy.  When the judge rejected the Illinois method, they did pursue the proper mail procedure.

But again… not so fast.  That doesn’t necessarily suffice– and it could be disastrous if the plaintiff has to enforce a judgment overseas.

For starters, serving abroad by mail presents significant factual challenges:  it’s hard to prove.  It’s also hard to demonstrate that it made it upstairs to the defendant’s actual office, even though FedEx or the Post Office might get the thing to an office building’s mailroom.  Beyond that, although the legality of the method is solid in federal court here in the U.S., it’s questionable in Japan.

Article 10(a) of the Convention offers “postal channels” as a viable option, provided the destination state does not object.  Canada, the UK, the US… we don’t object.  Germany, China, Switzerland, Mexico… they all do.

The Japanese, though, are stereotypically measured in their position.

“Japan has not declared that it objects to the sending of judicial documents, by postal channels, directly to addressees in Japan. As the representative of Japan made clear at the Special Commission of April 1989 on the practical operation of the Service and Evidence Conventions, Japan does not consider that the use of postal channels for sending judicial documents to persons in Japan constitutes an infringement of its sovereign power.”

“Nevertheless, as the representative also indicated, the absence of a formal objection does not imply that the sending of judicial documents by postal channels to addressees in Japan is always considered valid service in Japan. In fact, sending documents by such a method would not be deemed valid service in Japan in circumstances where the rights of the addressee were not respected.”

Um… huh?  They don’t object because it doesn’t infringe on their sovereignty (service of process is a sovereign function), but it might be a violation of the defendant’s rights under local law, which means the law triggers an objection?  (Which might put it in conflict with 4(f)(2)(C)!)

In other words, different from yes?

Several years ago, I was told by a friend who was studying Japanese that the language lacks a direct translation for “NO”.  They say “different from yes” as a means of not offending the listener.  And that’s what we have here.  Out of fear of offending a foreign partner, the Japanese statement on 10(a) creates a really murky situation.  Combine that with the fact challenges of mail service, and only one motivation can possibly justify using mail to Japan:  saving a few bucks.  It can’t be called a valid method of service with sufficient certainty.

The best course is, without question, a request to the Japanese Central Authority pursuant to Article 5.  They don’t take that long, and– if you’re judicious in your drafting (ie: brief)– they don’t cost much to undertake.

Back to the fencing match.  Service of process is the very first thrust a plaintiff brings to the arena.  Mail service is a pretty weak way to lead off the bout.  And there’s not a lot of justification for it when the primary method is so straightforward.


* A fencing match is called a bout.  I had to look that up.  Cool wiki on fencing terminology here.  Thrust is replaced by the more specific lunge.  Still, fun to learn new stuff.

** Although the rule laid down by the Supremes (unanimously) didn’t apply to that particular case, this was back when the Court had a little forethought and decided to fashion a rule in an opinion even though it might not apply to the case at bar.  If only they’d done so in Water Splash.

The Summer Palace and Kunming Lake, Beijing. Daniel Case via Wikimedia Commons.

News broke on Monday that a White House statement issued during the G-20 summit referred to Xi Jinping as President of the Republic of China.

Oops.

Mr. Xi is the leader of the People’s Republic of China (PRC), the communist mainland, as distinguished from the Republic of China (ROC) government.  That regime fled the mainland in 1949 to the island of Formosa– more commonly known as Taiwan– and remained the Chinese government recognized* by most of the world until 1971.  [To be sure, the State Department apologized for the gaffe… once the Chinese piped up and said, “um, did you guys ever take a history class?”  Perhaps this is why it’s not such a bad thing to have “professional politicians” in Washington.]

This is an elementary mistake that just shouldn’t happen at the highest levels of government.  It also shouldn’t happen in legal proceedings, but occasionally, such errors slip through, and they can be fatal to requests for service of process sent to foreign jurisdictions.  Three names to watch for– all China-centered:

  1. CHINA, PEOPLE’S REPUBLIC OF.  Again, the PRC is not to be confused with the older regime (the Kuomintang) which ruled China until Mao’s Communist Revolution.  This one is the mother ship, Big Red, the 1.3 billion people who make most of the stuff you buy at K-Mart.**  They not only have four times our population, but they also have nukes and a permanent seat (with veto) on the UN Security Council.  Safest bet– just call it China.  Full stop.
  2. CHINA, REPUBLIC OF.  This is not the mother ship.  And if you ask one of its residents, they’ll tell you that they’re still Chinese, but they haven’t been able to bring down the usurpers who’ve been running the mainland for nearly 70 years.  The ROC had the Chinese seat at the UN until 1971, when the UN accepted the reality that was the PRC.  To be safe in court documents, just call the ROC simply Taiwan and leave it at that.  Don’t elaborate and don’t get into the republican weeds in your pleadings, because it will only cause problems.
  3. HONG KONG, SPECIAL ADMINISTRATIVE REGION (SAR).  A British colony for a century, Hong Kong today maintains its common law legal system even though it became part of the PRC two decades ago.  If several sovereign states are named (China, Japan, the United States, even Missouri) or referred to in the pleadings, then Hong Kong must be modified to reflect its status.  Call it either “Hong Kong, China” or “Hong Kong, SAR” in order to differentiate it from sovereigns (which it’s not).

To Americans, this stuff doesn’t seem like a big deal.  To the Chinese– a culture that views “saving face” as an essential part of human existence– it’s downright critical.  If you’re going to play in their sandbox, you’re advised to adhere to their rules.  If you want them to serve process for you, or if you want to compel evidence, or if you hold out hope that they’ll ever enforce your judgment, you’re advised to pay close attention to nomenclature.


* Recognition is a very tenuous subject– so much so that the U.S. no longer formally recognizes any other country outright. We may send ambassadors, and the status of diplomatic relations may ebb & flow, but Rex Tillerson won’t step up to a lectern to say “the United States recognizes Country XYZ.”

** A little homage to a once-great company.  I spent two summers working there in college and enjoyed it thoroughly.