New Orleans, Louisiana— I’ve written previously about my insistence that lawyers should outsource their international work.  I’ve also modified my thinking a bit, at least as far as nomenclature of the idea, opting instead to call it subcontracting.  At ClioCon this morning, Clio’s CEO, Jack Newton, offered a brief synopsis of his company’s 2017 Legal Trends Report.  A frightening set of statistics jumped off the screen as he went through his slide deck, and they really bring into focus my insistence about subcontracting.

Imagine a lawyer puts in an eight-hour day (just imagine it’s only eight, would ye?).  Of those eight hours, only 2.3 are spent on actual legal work.  The remainder is tied up in building business (critical, no doubt), non-billable learning (read: research the client won’t pay for) or administrative tasks.  And of the 2.3, only 1.6 actually results in dollars going into the firm’s operating account.  Twenty percent.

So how do we, Jack asked, turn those other six hours or so into dollars?  Any which way you can– especially if technology can streamline what we do.

That got me thinking more about the argument for subcontracting out work that isn’t profitable for a firm.  It reminded me of the Big Firm Partner who was incredulous that his firm would dare to look outside for help.  On anything.  Well, if Jack’s statistics are to be believed, Mr. Incredulous now has simple math to guide him.  If you’re only getting paid for twenty percent of your work, you’ve got to rethink things, man.  Really.

Law firms are under tremendous budgetary pressure, and only those who take advantage of every possible efficiency will survive the tsunami that’s been battering our little guild for going on a decade.

Prime Minister Winston Churchill announcing the surrender of German forces, May 8, 1945. Imperial War Museum photo.
Prime Minister Winston Churchill announces the surrender of German forces on the BBC, May 8, 1945. Imperial War Museum photo.

Very few of us alive today remember the elation of May 8, 1945.  My parents weren’t even born yet, and my grandparents are no longer alive to tell the story.  But that doesn’t mean the celebration is lost to time.  For just a moment, pause to reflect on what was done, and what was still left to be done on that spring morning 72 years ago.

Perhaps* the greatest-ever threat to humanity had finally been vanquished after six long years.  Millions of survivors could again pursue their hopes and creams.  We could envision happiness once again, rather than destruction and bloodshed.

Public Domain (via Wikimedia Commons)
Public Domain (via Wikimedia Commons)

And still, the job wasn’t done.  The Empire of Japan would hold on for another three months (or four, depending on how you calculate), only surrendering after two strikes of the most terrible weapon devised by humankind.

But despite that, VE Day will always be one of my favorite commemorations.  It’s not a holiday, but it is certainly cause for a smile and quiet contemplation of the optimism that finally dawned on Europe, after the darkness was defeated.

Perhaps it is no small coincidence that the French Republic yesterday beat back a latter-day iteration of the same ideology that gripped Italy in the 1920s and Germany in the 1930s.  Kudos to France for recognizing the modern xenophobic trend for what it is: fascism– pure and simple.  A vigilant watch is the only way to prevent its return to power.

My congratulations to President-Elect Macron (who shares my birthday)…

Bonne chance, monsiuer.  Gardez bien la démocratie et la liberté.


* I always feel it necessary to point out that Stalin, not Hitler, was the great butcher of Europe in the 1930s and 1940s.  This is not to cast Hitler in a positive light– not at all.  But Stalin frequently gets a pass because we were allied with the Soviets; without them on our side, Hitler would have run the table, and a swastika would still fly over Buckingham Palace.  I’m still not sure who was worse.

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!]

 

Another real lifer here… why should you outsource your international work instead of keeping it within your firm’s cloistered walls?  Simple.  Because your clients will be better off if you go outside.  Because you don’t know what you don’t know—and what you don’t know can’t be ascertained from a Westlaw search.

Bear with me.

Think back to those idiotic fact patterns on the bar exam, in which “Oscar conveys his farm to his brother’s son Ned, and then Ned deeds the farm to Carl, his second-cousin on his mother’s side, and then Carl fathers six children but dies intestate, and neither Ned nor Carl ever record either conveyance.  What result?”

Our collective groan at the mere thought:  just record the damned deed, man.  It’s not that difficult.

But as it turns out, those fact patterns weren’t really so idiotic.  A while back on Next Door, a woman in my neighborhood posted:  “Need a recommendation for a lawyer.  I just got married and I want to put my wife’s name on the deed to my house.”

Apparently, every software developer and barber and realtor** within a twenty-block radius is suddenly an expert on marital property law.

Now, to be sure, a whole bunch of people offered the names of several top flight firms in town, big and small.  One of the lawyers even said, very diplomatically “my firm can help you with that.”  But among the suggestions from the (non-lawyer) instant experts:

  • Just do a quit claim deed.  (Several of these, including from the realtor, who ought to know better.)
  • They have the forms on the county website.
  • Call a title company instead of a lawyer.
  • Second most cringe-worthy comment on the thread: “Don’t pay more than a $100.” (sic)
  • Most cringe-worthy comment on the thread: “You CAN do this yourself, you know.  Just look it up online.  All you have to decide is whether you want a joint tenant or joint tenant with right of survivorship.”  (Missouri is a tenancy-by-the-entirety state, which fact is completely unknown to the lay experts in my neighborhood.)

Now, every lawyer who read the original question had flashbacks to Property 1 and the words “I convey Blackacre to the second daughter of my landscaper, Felipe, on the condition that she marries on the evening of a harvest moon and only gluten-free beer is served at the reception.”  This hypo raises a host of questions.

  • What if Felipe doesn’t have a second daughter?
  • What if Felipe is no longer the owner’s landscaper?
  • What kind of estate is created in the second daughter—a life estate?  A leasehold?  Fee simple?
  • What if Brookside Wine & Spirits is out of gluten-free beer?!

Back to the real-lifer.  Let’s say Next Door’s blushing bride ignores the lawyers, does what the laypersons recommend, and simply makes the conveyance with a quit-claim.

  • What if there’s a divorce?  Does she want a contingency for that?
  • What if the newly-powerful Alt-Right succeeds in rolling back Obergefell, and Missouri courts subsequently nullify marital defaults for same-sex couples?
  • What if the question-asker’s new wife dies and the wrong tenancy causes the question-asker to lose half the interest in the house to her new in-laws who hate her?
  • What if she wants her new wife only to have a life estate, but intends the remainder to go to the Saint Helen of the Blessed Shroud Orphanage in Calumet City, Illinois?
That big chase scene in the Blues Brothers? Yeah, she made that happen.
Seriously?  You’d want this woman involved?

It’s a parade of horribles, truly.  And every single person with a law license looks at such a situation and emits a silent scream at the absurdity of someone not contacting a lawyer for an hour of advice.

Yet every day, how many lawyers say to themselves “oh, this is just a matter of filling out a couple of forms” when they need to serve process on a defendant located in another country?  (Yes, you CAN do it yourself, but in most cases, shouldn’t.)

Or worse, “pffft, just mail it.”  (Bad idea.)

Or worse still, they recognize that they’re out of their element, but decide to hire Bob the Process Server to handle the forms because Bob is cheaper than an actual lawyer who handles this stuff.  (Call your malpractice carrier.)

Until I’m blue in the face, I’m going to continue the argument…  outsource this stuff, y’all.  You don’t know what you don’t know, and your client will suffer for it.  Just like the newlywed in my ‘hood.  If she doesn’t talk to someone who can ask the right questions, she’ll never be able to say what the right answer is.

[Spoiler: she talked to a lawyer.  Score one for the good guys.  And simple sense.]


* Version 1.0 here, and Version 2.0 here.

** Yep, the realtor weighed in with the preface “I’m not a lawyer, but in my opinion…” before suggesting something other than she’d requested.  I mean, I’m not a doctor, but in my opinion… you can cure psoriasis with a hefty dose of Arthur Bryant’s Original Barbecue Sauce.  Okay, I am a doctor, but a Doctor of Jurisprudence.  Not the kind that can speak authoritatively about dermatological cures.

[Published 24 hours before Inauguration.]

Calm down, folks.  No President can just cancel a treaty, so cool it.

Many of my liberal brethren are beside themselves at the thought of the Trump Foreign Policy Juggernaut running roughshod ’round the realms, tearing up treaties (don’t practice your alliteration on me).  Many security hawks and business-oriented Republicans, especially in the export community, are likewise fearful.  Of course, given the rhetoric of the campaign trail, it’s not a completely irrational fear; Candidate Trump alluded to as much on numerous occasions, and he has reiterated his disdain for NATO in the transition.  But by the same logic, Guantanamo Bay (the prison camp, not the naval base) would have been vacant years ago, we would have pulled out of Iraq by the end of 2009, and Wall Street’s bankers would have been fully brought to heel twenty minutes later. None of that happened, because the campaign rhetoric did not match the reality of governing in a republic.

Look, I’m disappointed that President Obama couldn’t get those things done.  But such shortcomings (not failures—shortcomings) should give solace to liberals and fearful Republicans, and at the same time give pause to those who gleefully anticipate the shredding of a stack of international agreements.  Even with a sympathetic majority, no president can just ramrod his agenda through the Congress.  He can’t foist laws on an unwilling legislature, and he can’t unilaterally overturn statutes.  That is the very nature of separation of powers.  The President takes an oath to uphold the Constitution—and that means upholding the Laws of the United States.  The Laws of the United States include treaties, which are even harder to get rid of than are statutes.  Two reasons…

First, the Supremacy Clause, which gives treaties just as lofty a position in the hierarchy as federal statutes.  In order for a nation’s treaty obligations to end, the treaty must be denounced, which necessitates the repeal of its enabling statute—which in turn requires a concerted effort by a cohesive majority on Capitol Hill.  It might as well require delivery of the printed text on a golden chariot pulled by a team of six unicorns.  It’s that unlikely.

Why?  Because on the issues of trade (NAFTA, GATT), collective security (NATO), and less sexy* issues like private international law, which I handle, there is no such thing as a cohesive majority on the Hill that is intent on abrogating our treaty obligations—partisan statistics notwithstanding, and notwithstanding criticism from both sides of the aisle that our treaty partners don’t shoulder a fair share of various burdens.

In short, no repeal, so no denunciation, so no unilateral change to our obligations.

Second, the language of most treaties keep them in force for a period of time following denunciation.  Even if Congress does hand a President an Alexandrian sword (it won’t), this Gordian Knot can’t be severed in a clean stroke.

Look no further than Brexit as an example.  Until the Prime Minister pulls the trigger, the clock doesn’t start, and it remains to be seen whether the referendum held last June must be ratified (for want of a better word) by Parliament; as recently as Tuesday, the Prime Minister tacitly acknowledged that parliamentary action is necessary: “And it is why, as we repeal the European Communities Act, we will convert the ‘acquis’ – the body of existing EU law – into British law.” (Italics mine.)  Even if the government had the authority to withdraw from the 1957 Treaty of Rome without Parliamentary action, it must give two years’ notice to Brussels before the UK can bolt the EU.  For the time being, the Kingdom is still very much intertwined with the Continent.

Pertinent to the United States, the North Atlantic Treaty requires a full year of notice before a member state is allowed out of NATO.  NAFTA, six months.  The GATT and related WTO agreements, also six months.

My bailiwick, the Hague Service Convention?  Up to 54 months, depending on how you read Article 30.  Likewise my other bailiwick, the Evidence Convention (Article 41).

So, even if the incoming government succeeds in passing repeal/denunciation measures, the treaties at issue will remain in force at least briefly.  Chaos won’t ensue, just as it hasn’t come about in London or Edinburgh (or Cardiff or Belfast) in the wake of the Brexit referendum.  We’ll have time to answer the thousand questions remaining (ahem, “what comes next?“), because the entire purpose of a withdrawal clause is to prevent such chaos.  Sort of a prenuptial agreement, if you will.**

Now, all this is not to say the President can’t violate a treaty.  Presidents have done so often, and with scant repercussions (tell me I’m wrong and I’ll counter with the Bureau of Indian Affairs), so President Trump might envision a series of violations without consequence.  But I give him far more credit than that.  After all, he beat the hell out of my candidate, and turned my mental electoral prediction machine into a rotary telephone (sure, it conjures up nice memories, but it can’t do its intended job anymore).

Berthold Werner, via Wikimedia Commons.
Berthold Werner, via Wikimedia Commons.

Whether a violation or a denunciation, the legal and economic ramifications of bailing out of modern treaty obligations—obligations to strong and sophisticated partners—are potentially catastrophic.  That is a reality that the new President’s inner circle surely understood long before Election Day (he has spectacularly good lawyers, I assure you), whether or not the reality correlates to the rhetoric.  That sympathetic majority in Congress won’t stay sympathetic if their constituents’ export numbers are facing the muzzle of a Howitzer.

What seems more likely is a series of retaliatory measures taken within treaty frameworks.  An example:  reciprocal taxes to offset the disadvantages American exports suffer due to value-added taxes when they reach foreign markets.***  The question remains whether such reciprocal taxes are viable or permissible under WTO agreements, but they are a far cry from attempts to shred those treaties.

Campaign rhetoric aside, our legal regime remains solid.  It may be attacked, but it can withstand attack.  It may be altered, but it will be altered according to a procedure and a timeline.

It won’t be shattered like so many teacups in a bull-infested China Shop.


Al Lettieri as Virgil Solozzo in the greatest film ever made. Petitions on behalf of Mr. Welles may be lodged in the comment section below.
Al Lettieri as Virgil Solozzo, in the greatest film ever made.  Contrary petitions on behalf of Mr. Orson Welles may be lodged in the comment section below.

* My apologies to the Hague Conference on Private International Law.  You guys are aces in my book, but your treaties are pretty non-controversial, so they aren’t exactly fodder for political turmoil.

** Nobody likes to talk about a divorce at the engagement party, but we usually do in treaty negotiations.  See Professor Laurence Helfer’s 2012 article, Terminating Treaties, for a far more in-depth and scholarly discussion of the pre-nup and its execution (his analogy, not mine—like Solozzo the Turk, I’m not that clever).

*** For more developed thoughts on a tougher trade stance, follow Bill Perry’s blog, US-China Trade War.  Bill seems optimistic.  I don’t share his optimism, but I am also not a complete pessimist regarding Trump trade policy.


Full disclosure:  I’m a liberal Democrat who voted twice for Hillary Clinton (primary and general).  I disagree with the incoming administration on just about everything, but trade policy is one area where I might find some common ground with the new government.  Renegotiate NAFTA?  You bet—I’d like to see Chapter 11 blown to hell.  Renegotiating the GATT will never happen, but we don’t need to renegotiate it; we can have a pretty good scrum within the WTO’s Dispute Settlement framework.

Ah, bar association Christmas parties… such fun.  No, really, I do enjoy them.

Last month, over a glass of heavily spiked eggnog, a friend introduced me to a senior partner from a big firm that happens to be one of my clients.  An excellent client, actually, so I thanked him for the firm’s business and told him that I really appreciated the chance to support such a great outfit.

“How do you mean, we’re a client?” he asked.

Oh, I’m what you’d call a consulting attorney.  I handle cross-border procedural issues, and your litigators call me when they need to serve process or compel evidence production in a different country.

What?!  They’re supposed to use internal resources to do that—they aren’t supposed to look outside.”  He seemed a tad incredulous.  I couldn’t shake the mental playback of Wilford Brimley subtly admonishing Tom Cruise to do what’s right for The Firm.

Which in turn made me a tad incredulous.  This is not Bendini Lambert & Locke.  It’s a real and highly successful law firm that has gotten that way precisely because they project an innovative image. In hindsight, I’m guessing (hoping?) he merely thought that I meant his litigators called me before even talking to each other.  Surely, if the folks down the hall don’t know, it’s okay to call me, right?

So I told him, y’see, the stuff I do is in an awfully tight niche.  It ends up being much less costly for your clients if I handle something, rather than billing ten hours for an associate to research how to serve a subpoena in Germany, just to get it wrong.  (Spoiler: you can’t. Das ist verboten.)

Mr. Incredulous Big Firm Partner (IBFP) walked away grumbling, and I couldn’t chalk up his incredulity to drinking too much eggnog.  He probably just hadn’t read my prior post on why law firms should outsource this kind of stuff.   (Spoiler: because clients.)

My point here is this: harnessing efficiency is the great challenge before the practicing bar in this new year—and likely will be for many more.  Really, it’s a matter of changing mindsets more than anything.  Lindsay Griffiths’ excellent piece in Zen and the Art of Legal Networking came up on my radar last week by way of our mutual blogging platform, Lexblog.  She highlighted the 2016 Altman Weil Law Firms in Transition report and, more pertinent to my conversation with Mr. IBFP, AW’s latest Chief Legal Officer Survey.

The recurring theme in both (not to boil everything down too much):  law firms are still not efficient, and their clients (especially corporate clients) want them to be.  CLOs take their business elsewhere or they move it back in-house because the old cost model (read: billable hours) just ain’t working for them anymore.

But back to Mr. IBFP, who is not that stodgy old grouch who could’ve clerked for Clarence Darrow, who regards the billable hour as sacrosanct, and who still can’t cotton to women in the profession.

Lexblog desperately needs a sarcasm font.
Lexblog desperately needs a sarcasm font.

This fellow is comparatively young, still very much in the game, and very much aware of the pressures all firms are facing.  I’m pretty confident that he meant he wants his litigators to handle things internally if they can.  That would make perfect sense, really.

But here’s my sales pitch, which extends beyond just what I do…

When you need to serve process or compel evidence production in a different country, you’ve got to call me.  Or call one of my competitors.  Just call somebody.  When you have an issue on your desk that will require a massive amount of new learning to get it right, call somebody.  When you are completely out of your element, call somebody.

Of course, the first somebody is the wise old sage down the hall (not the misogynistic Harumpf guy up there^^^).  Use internal resources first—Mr. IBFP was absolutely correct about that.  But the sage may not know, and might just tell you to call somebody like me.

To be sure, much of what I do is billed hourly—my gripe here is not with the billable hour.  In fact, I still think it’s as fair a way to gauge legal work than any.  My gripe is with the persistent belief that bills, rather than client benefit, must be maximized.  Client dissatisfaction shouldn’t strike fear in the hearts of the IBFPs of the world.  It should, however, spark a new way of looking at client service, and create a golden opportunity to forge lasting relationships.  By harnessing the efficiency offered by technology, outsourcing, AFAs… those clients will stick around, and over time will be worth far more than that ten-hour bill.

So here’s hoping Mr. IBFP calls me for a consult.  I’d really like to show that guy what I can do.

 


It certainly wasn’t a slow weekend in global politics.  New Zealand’s exceedingly popular Prime Minister announced his retirement, Austria’s voters barely shunned a return to power by the hard right, and Italians rebuffed an arguably critical spate of constitutional reforms, prompting the resignation of their own popular PM.  So, what to make of these stories here in America?  Like many things, that depends on your perspective.  Much as I opined after the Brexit vote in June, not much will change in terms of how U.S. litigants must interact with foreign parties.

NEW ZEALAND

Frankly, precious little is going to change in Auckland—Prime Minister Key says he’s leaving at the top of his game.  When a PM retires, his party usually remains in power, so the agenda doesn’t change dramatically.  Look for New Zealand to continue arguing about sheep and rugby and whether to remove the Union Jack from their national flag, all while continuing to fortify their defenses against Saruman and his Orc army.

Not exactly the best image of New Zealand culture.
Not exactly the best image of New Zealand culture.

I kid, of course.  New Zealand is high on my bucket list of places to visit, because the place is objectively stunning (so the perfect location to portray Middle Earth).  They have a host of challenges before them, just like the rest of us: wealth inequality, racial tension, affordable housing, the occasional earthquake.  But in terms of relations with the U.S., status quo continuum (or however that should be conjugated).

And I don’t foresee any changes in serving process or compelling evidence down there.  It’s a common law system that, despite its absence from the Hague Service & Evidence Conventions, is not much more complicated than those in other common law countries.

Like the U.S., New Zealand is a member of the Hague Apostille, Child Abduction, and Adoption (1993) Conventions.  Especially the Apostille Convention makes life a little bit easier for litigants (and litigators).

AUSTRIA

Score one for the good guys on Sunday.  ‘Nuff said on that issue.

sound-of-music
Gratuitous picture of everybody’s favorite Austrian.

Truly, no more is going to change due to Austria’s electoral results than to New Zealand’s change in leadership.  That is, not much from a U.S. litigation perspective.  More pertinent to forthcoming changes is Austria’s expected accession to the Hague Service Convention, which has been approved by the Council of Europe (Herr Van der Bellen, we’re waiting patiently).

amadeus 2
Okay, maybe this guy is everybody’s favorite Austrian.

Austria is already a party to the Apostille, Adoption (1993), and Child Support (2007) Conventions, but its absence from the Service Convention means that a litigant’s only option to serve an Austrian defendant is an old-fashioned Letter Rogatory.  Expensive and time-consuming, that device.  And if it’s not worded correctly, highly problematic.  [Watch this space for updates as the HSC enters into force for Austria.  We’ll be on top of it.]

ITALY

Personally, I think the Italians get a bad rap.  The trains run pretty efficiently (a lonely bright spot in the horrible legacy of Benito Mussolini), the wine is both good and cheap, and that Pavarotti fellow is still yyyuuuuge there.  I really do love traveling in Italy—and I’ve returned to Rome several times, having never tossed any lira/euros into that fountain.  This is notwithstanding the fact that I’d do pretty much anything Anita Ekberg asked me to (still, that scene is completely implausible—even at 3am, there are hordes of tourists crowded around).

On Sunday, a massive slate of constitutional changes was rejected by the Italian electorate, whose turnout numbers ought to shame every American.  So status quo continuum (please, somebody conjugate that correctly?).  The very popular (and young) Prime Minister Matteo Renzi pinned his political future to this ballot, and resigned as promised.  The amendments were criticized as, ostensibly, a huge power grab by the PM, but “fake news” arguably had a huge influence on the vote (well played, Mr. Putin… well played).  The bottom line, 63 governments in 70 years was not sufficiently frustrating to warrant the changes advocated by Renzi.

Still, for U.S. litigants, Italy is actually quite smooth to navigate, and looks to remain so.  Like us, Italy does not object to alternative methods of service in the HSC, and is party to the Apostille, Evidence, Child Abduction, Adoption (1993) and Child Support (2007) agreements.  That’s all six Hague Conventions that the U.S. has ratified (soon to be seven, if you include Securities!).  A relatively good place for U.S. litigants, if you can believe it.

And my wife loves the place, so we’re going back.

20151113_130128
Peggy and me in Venice, 2015.

One does not simply walk into Mordor.  Likewise, one does not simply read a treaty and call it good.  In order to ascertain the full scope of an international agreement, you’ve got to dig deeper and look to the reservations a country makes when it signs on to a treaty.

At its core, a treaty is really just a contract, albeit a very special one.  No, really… that’s all it is—a contract.  [Google Foster v. Neilson, 27 U.S. 253 (1829), if you don’t believe me.]

But because it’s a very special sort of contract, its construction is governed by very special rules.

The Vienna Convention of the Law of Treaties (VCLT) was adopted in 1969 and entered into force eleven years later.  The United States signed on in 1970 (thanks, Nixon), but has yet to ratify (thanks, boneheaded Senate).  Technically, then, we haven’t given full assent to be bound by its conditions, but it is no less binding on our behavior, as it stands as a sort of restatement of the law.  Now, I still have nightmares about restatements from 1L Contracts class (my professor was out of his tree, so you can understand), but they really do set forth a solid picture of applicable law.

On the global stage, that’s critical, because customary practice informs international law almost as much as specific treaties.  Look at it this way: customary international law is analogous to the “usages” we learned in Contracts:  course of performance, course of dealings, and usage in trade.  That is, repeatedly acting a certain way over time binds a person to a certain construction of contractual language.  Where no specific language governs behavior, we still apply certain standards based on past practice.

The fact that we participate in (lead?) the community of nations can be equated to going along with a contract without actually signing the paperwork.  You can still be bound to the terms if you’ve acted & enjoyed the benefit of the bargain—and you can’t defend a breach by saying “nope, I never signed anything.”

Vienna waits for you.
Vienna waits for you.  Try the schnitzel.

In terms of treaty interpretation, this means the Vienna Convention applies universally because nobody really disputes its content.  We accept the agreement because, frankly, going against it is monumentally stupid.  It’s so succinct and so widely acknowledged by the global community that it governs without much argument.

A critical component of the VCLT is spelled out in Articles 19 through 21.  In short, when a country signs on to a treaty, it can lodge reservations to specific parts of that treaty.  If a proposed accord lists 15 obligations and we intend to only accept twelve of them, we reserve the other three.  When we do so, those three passages are ineffective as to our participation in the agreement.  [Alternatively, a reservation can also be called a declaration, which speaks either negatively or positively about specific articles.  We declare either opposition to or applicability of a particular clause.  In short, “nope—we don’t like XYZ” or “yeah, buddy, we’ll sign on to ABC!”]*

This is pertinent to lawyers in every U.S. jurisdiction, especially in light of the Hague Service and Evidence Conventions.  These two treaties harmonize disparate doctrines of law between signatory countries, and they smooth the way for some of the most critical procedures in litigation.

The Service Convention spells out in Article 10 several alternative methods of service, provided the destination state (the country where the defendant is found) doesn’t object.  Declarations are negative in this sense; in short, “nope—we don’t like these alternative methods.”

The Evidence Convention, conversely, includes a rather controversial article (Art. 23), which requires a positive declaration of applicability.  Essentially, this is a “no fishing” clause that allows countries to reject evidence requests merely because they look like pre-trial discovery maneuvers.  In short, “yeah, buddy, we’ll sign on to flashing a big middle finger to American litigators!”  (The shortcomings of the Evidence Convention are the subject of several more rants to come.)

Accordingly, a practitioner can’t just read one of these Conventions and draw conclusions from the text in isolation.  You have to read into the declarations to form a full understanding of the applicable law.

 


*Some treaties specifically prohibit reservations, so they’re an “all or nothing” prospect.  They’re not so much contracts of adhesion as they are unseverable.

Image #2:  My favorite Billy Joel album.  Primarily because of Brender and her ex-husband, Eddie (who’d had it already by the summer of ’75) but also because… Vienna.  Slow down, you crazy child

No, really.  The Hague Convention is a myth.  Likewise the Geneva Convention and the Vienna Convention.  There are more than one of each, and referring to one of them that way is ambiguous.  (Yes, yes, if you mention the full name earlier in a text, you’re okay to truncate.)

Of course, we lawyers love ambiguity—it’s our stock in trade.  But we ought to avoid it ourselves, especially when citing authority.  In truth, there are about three dozen Hague Conventions, although the United States is party to only a few (Service, Evidence, Adoption ’93, Apostille, etc.).  They cover a range of issues, and their administration is supported by a top flight organization called the Permanent Bureau of the Hague Conference on Private International Law (the image above is a screenshot of the Conference’s website, linked here).

Using the right Convention is awfully important.

Several months ago, a lawyer called me and said he needed to “serve a notice under the Hague Convention.”  Okay, I said, thinking he meant the Hague Service Convention (HSC).  Pretty routine in my line of work; not a lot of fanfare if you have a handle on the quirks of various countries.

After about fifteen minutes of explaining the procedure necessary under the HSC, he told me I was wrong.

Now, Stubborn Aaron wanted to get belligerent and say “well, gee, smart guy… why in the hell did you call me if you know so much about it?”  I could feel my blood pressure rising.

Diplomatic Aaron took over, fortunately (we all have mood swings—don’t judge me quite yet).  “How so?  What’s your understanding of the procedure?”

He said the State Department and Customs & Immigration required that notice be served on the government of the country where the child was born.

“Hmmmm,” said Diplomatic Aaron.  “What sort of notice?”  Turns out, it was an adoption notice, that (State & CIS said) had to be served on the foreign government, requesting certification that it did not object to the adoption.

Ah, I concluded.  Not the Service Convention, but the Hague Adoption Convention (1993).

[As an aside, the State Department contention that such certification is necessary under the Adoption Convention is bollocks.  It’s merely a way to keep out immigrant kids, and foreign countries wonder if we Americans have a collective drug problem when they get such requests.  State’s interpretation is really that goofy.]

The confusion could have been avoided if I had only asked the right question:  which Hague Convention?

Live & learn.


[This post follows my earlier rant about the same subject, and was originally published on LinkedIn, April 7, 2016.]

Write this down.  There is no such thing as “The Hague Convention”.*

It’s like a unicorn or the Tooth Fairy or Rodents of Unusual Size.

Sorry, but it just doesn’t exist, so citing “The Hague Convention” is more than just sloppy vocabulary.  That sloppiness can make the wheels fall off the procedural wagon, especially if a lawyer tries to apply the wrong treaty.

Actually, there are about three dozen Hague Conventions, although the United States is party to only a few.  Identifying the right treaty is critical to the correct application of international law in a U.S. case.

  • Have to serve a summons?  You need the Hague Service Convention.
  • Need to authenticate an Italian marriage certificate?  The Hague Apostille Convention.
  • Serving a subpoena?  Not so fast.  You can’t just serve the thing, so get the thought out of your mind.  But know that the Hague Evidence Convention will govern what you seek to accomplish.  And watch out for Article 23, as it can really make you miserable.
  • Notice of Motion to Terminate Parental Rights?  The Service Convention, again… but if the TPR is in advance of an adoption, then the Hague Adoption Convention comes into play.  But be sure to be even more specific in naming, as there are two of them.  Only the 1993 Convention is applicable here, as the U.S. is not a party to the 1965 treaty, but I once spent fifteen minutes trying to convince a client that ’65 wasn’t applicable.

Getting under the proper treaty is only the first step… they all have quirks & foibles to them, so call in some expert help.  Your client and your professional liability carrier will appreciate it.


* Likewise, there’s no such thing as “The Geneva Convention”.  With all due respect to the greatest TV comedy ever, it isn’t as simple as just referring to the city where they signed the thing.


[Originally published on LinkedIn, March 11, 2016.  Update:  I go off on the subject again here.]