Transnational Litigation Planning

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. 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?”


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.


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.


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.

If only they actually made these. (OttomanJackson, via Wikimedia Commons)

A few months ago, I offered up a nightmare scenario to illustrate the importance of properly serving under the Hague Service Convention.  After I mentioned it in a CLE lecture (about legal blogging, of all things), a colleague asked me a question that compelled me to revisit the issue.  “Here’s a thought,” he said… “what if somebody wins the lottery?”  Alarm bells started going off in my head.  Holy cow, I thought.  That’s an even bigger nightmare than I’d envisioned.

My original hypo suggested a divorce case, wife a U.S. citizen, husband an undocumented Mexican immigrant.  He goes back to Mexico, and she petitions for divorce, but doesn’t serve properly (she mails it, rather than going through Mexico’s Central Authority for the Convention).  The court enters a default in her favor despite the ineffective service, and she gets sole custody of the kids, quiets title to the house, and gets back out into the world as a woman unencumbered by an absent spouse.

But the husband shows up on her doorstep a few years later, only to find that she’s married again– this time to a very nice fellow she met at the Piggly Wiggly.  The husband is justifiably angry that his kids are addressing Piggly-Wiggly-Guy as “Dad” and finds a really good lawyer to reverse the carnage.

What result?  Well, I imagine that the husband would get his house & kids back, unless the judiciary loses its collective mind.  And I also imagine that counsel for the petitioner is going to be hauled before OCDC… and then into a malpractice suit.  Not fun for the lawyer.

Now add a state-sanctioned jackpot wad to the story.  Let’s say the wife throws a sawbuck into an office lottery pool.  She and her officemates split a $300 million prize– after taxes, she has a nice, tidy twenty mill to play with.

Mightn’t that constitute marital property?  Of course it might.

But in which marriage?  Not the one with Mr. Piggly-Wiggly-Guy in it.  The malpractice stakes just got a bit higher, no?

Point is, it’s up to the petitioner to properly serve the respondent.  If the petitioner’s lawyer doesn’t do the cursory research to learn the right way, he’s not only doing his client a disservice, he’s exposing his practice to some very nasty risk.

Readers here can very easily find a how-to primer about the countries most frequently served by U.S. and Canadian litigants, both within the Hague community and without.  Just scroll up to the top of this page and type the country name.  Go ahead… we’ll be here for you when you get back.

Coolcaesar via Wikimedia Commons.
Coolcaesar via Wikimedia Commons.

“Right” is an arguable concept in this instance, but bear with me.

Among the alternative methods articulated in Article 10 of the Hague Service Convention is service by “postal channels.”  In other words… good old mail service.  Tthat generally includes private couriers like FedEx, UPS, and DHL, who are just as reliable as (if not more reliable than) the U.S. Postal Service.  The Postal Service actually uses FedEx as its overseas contractor, so most of us just cut out the middleman in the rare instance that we do use mail to serve abroad.*

Of course, I’ve railed before against the inclination to use mail as anything but a last resort.  Regardless of its legal efficacy, mail presents factual challenges (ie: prove it, pal) that may not be so easily overcome.  It only seems the easiest/cheapest/quickest way to go on its face.  Sure, it may be cheaper at the outset, but if it cannot be proven up, not only is the shipping cost wasted, but so too is the time taken up before concluding that it’s not going to work.

But if you must serve abroad by mail—and sometimes you really must—do it the right way.

In his latest post on the very excellent Letters Blogatory, Ted Folkman delves into the linguistic weeds over the meaning of Article 10 in tandem with FRCP 4 and the recent Water Splash v. Menon decision.  Article 10(a) permits litigants to serve by postal channels, absent objection by the destination state (think Mexico, China, Germany, and more).  Water Splash resolves a circuit split to definitively state that 10(a) is not nullified by a drafting error.

But neither of these expressly authorizes mail service.  That is, neither 10(a) nor Water Splash point to the local post office and say “yes, counsel, go there, regardless of forum rules.”

This an incredibly picky distinction, but it’s a critical one.  In Ted’s analysis (with which I agree wholeheartedly), the fact that the Convention permits mail service assumes that it must be valid under forum rules to begin with.  If a particular state’s rules do not specifically empower a litigant to serve by mail in New York or Nevada, then the Convention does not magically make it so in the Netherlands.

Water Splash doesn’t get into the weeds—and Ted rightly criticizes Justice Alito’s otherwise spot-on opinion for avoiding the authorization/permission question.  Then again, Water Splash was a Texas state court case, so the question wasn’t truly at the heart of the dispute.  [Some dicta would’ve been nice.]

Article 10(a) likewise does nothing affirmative.  The text of Article 10 really says that, as long as the destination state doesn’t object, the Convention won’t interfere with a litigant’s use of mail service.  It does not say that a litigant may use it.

But FRCP 4(f)(2(C)(ii) does say that a litigant may use it.  Under certain conditions.

So the question for real practice is this:  how do you do it the right way?  It’s necessary to parse Rule 4(f), particularly 4(f)(2).

Now, 4(f)(1) really just codifies the Schlunk decision—essentially, if the Hague Service Convention applies, adhere to it.  And it uses the word “authorizes”, but that’s fairly useless, because the Convention only authorizes Central Authority service (though I’m not 100% sure it even does that).  Again, it doesn’t authorize mail—it just declines to interfere with it.

So 4(f)(2) is the operative part:  “if there is no internationally agreed means, or if an international agreement allows but does not specify other means…”

Sections (A) and (B)… not really applicable here, because the whole point of the Convention is to define how the destination state wants it done, and render Letters Rogatory unnecessary.  The former puts you into Article 10(b) or 10(c), while the latter is moot in Hague situations.

But (C) is where the rubber meets the road, folks.  Specifically:

using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt

Pretty straightforward stuff there.

The practice tip takeaway… follow 4(f)(2)(C)(ii) and GO THROUGH THE CLERK.

Okay, it’s marginally arguable that you have to.  Okay, the clerk may look at you like you have three heads.  Okay, you might prevail over the defendant’s 12(b)(5) motion [assuming that you can overcome a massive fact problem].

But it’s a hell of a lot cheaper to just do it right in the first place.  Just get the documents together for the clerk, print a shipping label, and hand them the envelope unsealed.  They’ll take care of the rest.

* Sometimes, mail really is the only reasonable option, so my criticism of it is not absolute.  And to be sure, I charge more for mail service that I do for regular Article 5 service– it requires a whole lot more care and feeding.

Public beach below 'Quai des États-Unis' in Nice, French Riviera. Myrabella, via Wikimedia Commons. (Yes, this picture was taken in August. All those people are from up north.)
Public beach below ‘Quai des États-Unis‘ (how’s that for irony?), Nice, France.  Myrabella, via Wikimedia Commons. (Yes, this picture was taken in August. All those people are from up north.)

(Hint: foreign holidays trump the judge.)

The prevailing rule: a plaintiff’s lawyer has to get things done in a timely manner (ie: yesterday) or the court gets irritated.  The judge wants a brief before she goes to bed.  The clerk’s office reminds you that they’re closing early in honor of Truman’s birthday tomorrow (in Missouri, we’re just wild about Harry).  It’s on you, counsel, to make sure things get executed in a timely manner, or your case gets kicked to the curb.  But when you’re serving a defendant overseas, you can’t always do that.

Now, it can sometimes be done quickly and under pretty odd circumstances.  My guys in London served a defendant in the midst of massive congestion six blocks from the London apartment building fire last Wednesday—as the event unfolded.  Once in a while, speed is possible, but it can almost only happen quickly in (1) other common law jurisdictions that (2) don’t prohibit the use of a private process server.  Throughout most of the civil law world, service can only be effected by a judicial officer pursuant to a request to a Hague Central Authority.  And depending on where that Central Authority finds itself, service could take weeks, months, even a year or more.  (<– That is not a typo.)

Judge Haller has zero tolerance for your crap.
Judge Haller has zero tolerance for your crap, Mr. Gambini.  He is not a jolly fellow.

To make matters worse, certain holiday seasons extend the wait even more.  Several come to mind, and they can really delay things, even more than the timetable that would normally frustrate the judge.

A little one and three big ones:

(1) The bank holiday

Occasionally, the United Kingdom and other members of the Commonwealth shut down their banking systems and tell the financiers to take a day off, Nigel– the money needs a moment to breathe.  To be sure, bank holidays are a thinly-veiled strategy to maintain religious holidays (Easter Monday, various saints’ feast days, etc.) in a secular way, but still… when speed is called for and possible in common law jurisdictions, things can be derailed a bit.

In a way, some bank holidays are no different from MLK Day or Presidents’ Day in the U.S.—they’re specific to our calendar, and nobody else observes them.  Not a huge delay, but a bump in the road that frustrates litigants who expect service to be effected on an English defendant first thing in the morning.

(2) Août

France shuts down in August.  No, I mean roll up the sidewalks, Margaret, we’re closed.  They have a very un-American view of relaxation time, re-booting the senses, and flushing out all the stress and frustration that make the American economic engine just hum along.  The whole country takes the month of August and goes to the beach.  True, somebody has to work the beach, but they import people for that.  And Pierre, the new guy, gets to stay home and run the shop while the boss and all the other staffers are recharging their batteries.  [Sorry, Pierre, the Americans didn’t get the memo and came to Paris anyway, so someone still has to drive the tour bus.]

What does this mean to U.S litigants who file Hague requests in France?  Simple: your paperwork will be delayed at least a couple of weeks—even if you get it submitted before Bastille Day (July 14th).  If you expect a proof within three months, better make it four in the late summertime.

Christmas Market, Cologne. Daderot via Wikimedia Commons.
Christmas Market, Cologne. Daderot via Wikimedia Commons.

(3)  Weihnachten

Christmas is huge in Germany (and in Italy and Switzerland and throughout Europe, really, but they don’t put the brakes on the procedure like the Germans).  So huge that, contrary to the stereotype of Teutonic efficiency, Germany turns rather French around the middle of December, and they don’t show up for work again until January 7th.  They celebrate all twelve days, complete with the partridges and pear trees and ladies dancing.

Like August in France, tack on another couple of weeks, at least, until you get a Hague Certificate back from German authorities.

(4) 春节 (PRC), 春節 (Taiwan)

The Chinese New Year or, as the Chinese themselves call it, Spring Festival.  Imagine a billion and a half people trying to get home for dinner, all at the same time.  The worst nightmares of U.S. holiday travel are multiplied by a factor of four, because everybody is compelled by tradition and respect and obligation not only to go see Mom, but to go and pay respects to their ancestors as well.  It’s like somebody took Mother’s Day, Father’s Day, Grandparents’ Day, Memorial Day, Thanksgiving, and Christmas, and crammed them together into a two-week party culminating with a Lantern Festival.  It’s big.

Now, to be sure, the Chinese don’t take off the entire two weeks (they espouse the same work-until-you-drop-dead-on-the-factory-floor philosophy that made America great), but it slows things down a bit when you need to file a request for service… they get delayed, much to the chagrin of your judge.

Yet not all is lost.

Federal Rule 4(m) and all but a couple of states provide a safety valve for service outside the United States (sorry, Wisconsin & Michigan—you guys will have to get creative, so call me).  Plaintiffs’ counsel is usually held to a reasonable diligence standard rather than a strict, hard-target deadline for service; a very nice shield against dismissal.  But that doesn’t necessarily keep the judge happy, and it doesn’t necessarily keep clients happy either if they think service should happen in their case just like it does in the movies.

* One more lesser-known holiday:  The Feast of the Ascension.  Latter part of May, forty days after Easter.  It’s a big day in the Christian calendar, but celebrated mostly by Roman Catholics—ardently so in Belgium.  They take the whole week off.

As if the earth-shattering scandal surrounding Volkswagen’s EPA “defeat device” were old news, we have become accustomed to story after story of the company’s wrongdoing.  When the spotlight was cast on VW subsidiary Audi earlier this year, the story didn’t make many waves, seemingly because it was expected.  If the parent did it, why not the sub, too?

Next, we learned that yet another European conglomerate sought to defraud U.S. environmental regulators.  Fiat Chrysler Automobiles, N.V. (FCA) was also caught in the proverbial net, with perhaps more to follow.

Of course, the litigation floodgates opened, with suits brought by consumers and state attorneys-general across the United States.  Unfair and deceptive marketing practices, specific violations of merchandising practices statutes, conspiracy, pervasive fraud…

Last week, a newly-released study alleged that the hub of the wheel in the whole scandal was Robert Bosch GmbH*, the massive German engineering & electronics firm.  According to researchers at UC-San Diego and Ruhr University-Bochum, Bosch wrote the code that got the automakers around EPA testing and allowed them to achieve better scores on emissions tests than more scrupulous competitors.  The thought that such a highly respected company would undertake such a massive campaign of underhandedness makes American car-buyers wonder who else was involved.  And so the lawsuits come.

This poses specific, though not insurmountable, challenges to plaintiffs’ lawyers across the country.  All three automakers, as well as Bosch, are chartered and domiciled in nations that are party to the Hague Service Convention.  When they are sued in U.S. courts, service of process must be effected according to very specific guidelines mapped out in the Convention, or the effort to bring suit is a colossal waste of time.

In the case of FCA (now the parent company of Chrysler), the best way to go is pretty straightforward:  serve in England, even though it’s originally an Italian company now chartered in the Netherlands.  Fiat’s head office is in London.

As for the others—VW, Audi, Bosch—it’s Germany.  All Germany, all the time.  And folks over there are very particular about the application of the Hague Service Convention.  Simply put, folks, ain’t but one way to do it.  At least, ain’t but one way to do it right.  And that’s the key.

Specific on How to Serve Process in Germany can be found here.  It’s a fairly regular procedure, but the machine has lots of intricate and finely tuned moving parts.  Be meticulous about it.

* GmbH in Germany = LLC in the United States.  [Whereas N.V., the entity type selected by the creators of Fiat Chrysler, is a Dutch corporation.  A great Wiki defines just about any foreign type of entity you can imagine.]




Thomas Hobbes, the guy who foisted the sovereignty concept on generations of political philosophy nerds. John Michael Wright - National Portrait Gallery (thus Public Domain) - via Wikimedia Commons.
Thomas Hobbes, the 17th century English guy who foisted the sovereignty concept on generations of political philosophy nerds.  Let’s all blame him for this, shall we?   John Michael Wright – National Portrait Gallery (thus Public Domain) – via Wikimedia Commons.

Your defendant is a foreign government.  Or a monarch.  Or a foreign diplomatic mission.  A consul with a diplomatic passport.  A company owned (at least in part) by a foreign state.  (You get the point.)  You’ve done all the analysis necessary to convince a court that jurisdiction is appropriate under the Foreign Sovereign Immunities Act (28 U.S.C. §§1330, 1602 et seq.)– the terrorism exception and the commercial activity exception come to mind– but in order to start the proceedings, you have to put the defendant on notice of the claim.  So, how do you get them served?

Honestly, it’s not markedly different from serving a foreign individual or private company based abroad.  But there are a few particularities involved, and they can all be found in 28 U.S.C.  §1608.

The first question:  is the defendant a government (either a state* or one of its political subdivisions), or is it an instrumentality (a seemingly private entity owned by the state)?

Governments are served under §1608(a), and instrumentalities under §1608(b).  Each section lays out a hierarchy of steps.  Simply start with #1 and march your way down the list until you hit an option that works.  If you reach the end of the list and don’t have it done, we should chat, because you’ve probably missed something and are likely facing dismissal.

§1608(a): Government Defendants

  1. If the government has made a special arrangement for service, such as in a contract, follow that arrangement and it’s done.  These are pretty rare, but if the drafting attorneys know about the first item in my big list of Five Things, it might make things awfully easy.  No arrangement?  On to #2.
  2. If a treaty relationship exists with the foreign country, follow the treaty– usually by sending a request to a Central Authority where the Hague Service Convention applies– and be sure to include a translation if called for in the foreign country’s declarations.  Be advised, though, that Central Authorities may refuse to serve their own governments on sovereign immunity grounds, especially if they don’t share the U.S. view of the commercial activity exception.
  3. If that doesn’t work, or if no treaty is in place, try mailing it.  A translation into the foreign country’s primary language is required by the FSIA, and it must be sent by a method requiring a signed receipt.**  Now, you may or may not get that receipt… I wouldn’t bet the farm on it.
  4. If 30 days have passed, and you don’t have a delivery receipt, fill out a Notice of Suit (available from the State Department) and send duplicate copies of everything, including translations, to the State Department for transmittal by diplomatic note.  This is particularly hairy if the defendant lacks diplomatic relations with the U.S.

[Here ends the list.  No more options.]

§1608(b):  Instrumentality Defendants

  1. If the instrumentality has made a special arrangement for service, such as in a contract, follow that arrangement and it’s done.  These are less rare than with governments, especially if the drafting attorneys know about the first item in my big list of Five Things.  No arrangement?  On to #2.
  2. If the instrumentality has a U.S. agent or officer that can be served in the U.S., hand them the documents.  Alternatively, if a treaty relationship exists with the foreign country, follow the treaty just like above.
  3. If neither of those work, (A) try a Letter Rogatory, (B) try mailing it– with the same warnings as above, or (C) “as directed by the court consistent with the law of the place where service is to be made.”  Honestly, I don’t see how (C) is going to work if none of the above fit the bill, but more odd things have happened in my line of work.

[Here ends the list.  Options just as limited.]

There’s more to it, of course, but fortunately, the lion’s share of suits against foreign governments will begin and end with the Hague Service Convention.  On the surface, it might seem daunting, but not that much more complicated than a private defendant.


* “State” here refers to a sovereign.  Rather an odd concept for Americans, who conceptualize sovereignty on a split-screen basis.  Yeah, Missouri is a sovereign state, but it’s not a nation.  Yeah, the U.S. is a nation and a sovereign, but it derives its sovereignty from the consent of the governed through the respective 50 st…  ah, heck, I could ramble on all day.  Point is, in most other countries, “the state” means the national government.  And when we talk about “states-party” in treaty-speak, we mean member nations.

** In federal cases, remember the Rule 4(f)(2)(C)(ii) requirement that the mailing originate from the Clerk of Court, rather than from counsel.  Remember, too, that if mail service is precluded under the foreign country’s declarations to the Hague Service Convention, it’s invalid for this step.