A group of artificial intelligence robots answering the question
Mohamed Nohassi, Unsplash

Yep. The time has come to reap the savings offered by technology, but it’s still critical to have competent, professional human linguists involved after the robot generates its product. And that means in many circumstances that those savings just aren’t as dramatic as we might hope.

The internet guys have been telling us since the last century that, in the very near future, you can have a robot translate documents for you in a tiny fraction of the time, and at a tiny fraction of the cost, of traditional human translation. I’ve been beating my head against a wall for well over a decade, trying to convince bargain-hunting clients that, no, you can’t trust machine translation. That’s still true to a point, especially if the machine’s name starts with a G and rhymes with poodle.* See, machines can’t format documents. They can’t sufficiently intuit the sense of complex legal terminology. And they can’t exercise judgment when multiple correct answers are possible but some are superior.

Still, my translation providers have finally reached a level of confidence in their dictionaries** to offer machine translation, but…

  • The big caveat is this: it’s absolutely critical to have a skilled human editor go through the machine translation to correct errors and refine complex text. Omitting professional human judgment from the equation is just as unwise (read: dumb) in a translation context as letting ChatGPT or Copilot write your pleadings without back-checking every cite. The standard is called Machine Translation Post-Editing (MTPE).
  • The second caveat is that, especially if the documents accompany a Hague Service Convention Request or are to be submitted to a court or government agency, layout matters. Formatting is highly important, what with headers and stamps and seals and images to worry about. If the official reading the thing can’t find a word-for-word comparison, game over.
  • The third caveat comes from the professional translation providers I work with: not all languages are ripe for MTPE. There must be a “sufficient corpus of training data,” as one of my providers terms it, for the dictionary to reach a certain level of sophistication. So you’re probably not going to get much depth in Icelandic– which I understand to be a monumentally hard language to learn– but there’ll be plenty of training data for Spanish or Chinese. Accordingly, the AI-generated product is easier to fix. And to boot, with languages like these, there are more skilled editors available to do the cleanup.
  • Dictionaries are proprietary, and they’re not all alike. One provider may have a top-flight library of patent work that they’ve translated into Chinese, but they don’t have much in the way of vocabulary for contract disputes in Swedish. Yet another provider might have a data center in Stockholm that cranks out great work.
  • Last caveat: MTPE puts a much heavier cognitive load on the editor. Sure, these are smart people, but it simply takes longer to review machine product than it does to review human product, and making changes means decision fatigue. That reduces otherwise expected savings– for a few hundred pages, cost reduction will be substantial. But for a ten-page job, MTPE might actually end up costing more than traditional work.
  • There will be more caveats as we get into this.

We are finally at the dawn of the age we’ve hoped for for years, and we can really start seeing bills go down thanks to available technology. We just can’t get too confident about the whole idea just yet. But it’s coming.

Maybe this guy isn’t too far off.

* I use Google Translate all the time. Every single day, because it gives me a pretty good sense of what a foreign-language document says (thanks to Google Lens, I know exactly which gelato to ask for in Rome: Pistacchio, per favore), and it allows me to communicate somewhat competently with someone who doesn’t share a common language with me. I just used it last week to tell a housekeeper at a hotel in Mexico that, “yes, ma’am, we’re checking out, so you can turn the room around for the next guest.” It just can’t provide the level of quality necessary in a legal environment.

** I asked Gemini, Google’s AI platform, to define Dictionary in this sense: “In a Machine Translation Post-Editing (MTPE) context, a dictionary is defined not as a book of definitions, but as a structured digital database used to inject pre-approved, company-specific terminology directly into a Machine Translation (MT) engine.“

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Photo by Henry Be on Unsplash

Several years ago, we started a series of jurisdiction-specific posts outlining the Hague Service Convention and options for serving in each place. How to Serve Process in England and Wales was first published in 2017 and has been periodically updated since– including some of my favorite travel pictures from my CLE adventures every other summer. That post lays out general information about the Convention, the UK’s allowable means of service, and a short description of the benefits and drawbacks of each. Rather than make you read up on the whole thing, I want you to have my quick and to-the-point advice:

Just do it privately.

My rationale is very simple. Going this route works, it doesn’t take very long, and it doesn’t require a herculean effort on the part of plaintiff’s counsel. The act of service itself over there looks exactly like it does in New York or Chicago or San Francisco. You just have to do it the right way, and that’s where it can be challenging.

Yes, mail service is valid, but I contend that it’s a bad idea.

Yes, you can Request (that’s capitalized intentionally) that service be directed by the Foreign Process Section at the Royal Courts (the UK’s Hague Central Authority), but that takes a while– usually several weeks, if not months, until proof comes back. And at that, the FPS sometimes uses registered mail, which often fails for lack of a signature.

But if you rely on the right process server, there’s no need for hand-wringing over strategy. Just make sure the process server is directed by a solicitor, and make sure the proof is written up to reflect the proper Article of the Hague Service Convention.

So how do you go about it?

  • You can do it yourself. Find English counsel to direct their own preferred agent and apply the correct English law.
  • Or just let my people handle the whole thing for you.

Good luck.

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Several years ago, we started a series of jurisdiction-specific posts outlining the Hague Service Convention and options for serving in each place. How to Serve Process in France was first published in 2017 and has been periodically updated since– including some of my favorite travel pictures taken in the land I briefly called home for a few months in college. That post lays out general information about the Convention, France’s allowable means of service, and a short description of the judicial officers who serve in French actions. Rather than make you read up on the whole thing, I want you to have my quick and to-the-point advice:

Just use the Central Authority.

My rationale is very simple. Going this route works, the method is unassailable, it doesn’t take very long (comparatively speaking), and it doesn’t require a herculean effort on the part of plaintiff’s counsel. You just have to do it the right way, and that’s where it can be challenging.

Yes, mail service is valid, but I contend that it’s a bad idea.

Yes, you can directly engage a judicial officer, but unless you speak French, you’re going to have a very tough time educating them about what needs to happen and how it needs to be proved up. I speak French fairly well, and it’s excruciating for me to get the point across.

But if you rely on the Central Authority, somebody who knows what they’re doing is going to handle the effort reliably. There’s no need for hand-wringing over strategy.

So how do you go about it?

  • You can do it yourself. Any attorney can sign the necessary Hague Request (see here for a step-by-step guide).
  • Use a sort of “assisted DIY” platform called Hague Envoy. It will walk you through completing the Request yourself. (Disclaimer: my wife built the thing by picking bits of information out of my lawyer brain.)
  • Or just let my people handle the whole thing for you.

Good luck. Er… bonne chance.

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Claudio Schwarz, Unsplash

To many colleagues in the IP community, the Kangol case issued by the Seventh Circuit last week, along with with its cousins, Smart Study (2d Cir. 2025) and Lahr (3d Cir. 2024), seems to slam the door shut on intellectual property owners who seek to assert their rights against various Chinese infringers. Dozens, hundreds, even thousands of online retailers use platforms like Amazon and Alibaba and Walmart to peddle wares that blatantly copy trademarks and patents, yet the owners of those marks and patents face an uphill climb to get the bad guys’ storefronts taken down. Admittedly, it can be a tough process, but hopefully, I can soothe some anxiety here among intellectual property litigators, because things aren’t as dire as they seem.

Two years ago, in A Hague-compliant roadmap for service on “Schedule A” defendants, I laid out the necessary progression of steps to achieve proper service. Rather than offering guidance, though, in retrospect I see that it was more an attack on what I considered terrible judicial logic. It really was terrible judicial logic, and the 3d, 2d, and 7th Circuits agree with me, but that’s beside the point. Here’s a much more trimmed down, nuts & bolts guide to how it’s done.

Step 1: Identify the Defendant

First shot out of the gate is to see if the target has a seller profile on Amazon. They’re supposed to, of course, but not all of them do. If they do, great. If not, shoot a subpoena over to Amazon. If even Amazon can’t tell you the target’s true identity, that makes it a whole lot easier to get them taken down. Yes, it’s counterintuitive, but if Amazon can’t identify who’s flooding the market with counterfeits, make Amazon the target of the suit and see how quickly they delete the seller’s storefront.

Step 2: Find ’em.

Address research is critical, as the most frequent failure reasoning we receive from Chinese authorities is “no such defendant at the address provided”. That puts us in a but of a pickle– did we get the name wrong (see Step 1)? Did we get a bad address? Both?

See my 2024 post Chinese company names, flawed addresses, and the high likelihood of Hague Service failure. (Unless you do your homework.) for a rundown on why this is so crucial a step.

Step 3, presuming successful address research:
Send the Hague Request…

… content in the knowledge that you did your homework. Our experience over the past several years is that the research we did in Step 2 not only increases our odds of success– and dramatically so– it also speeds things along. While we usually anticipate having to wait a year or two (<– not a typo) until we receive proof, researched Hague Requests have been coming back in around six months.

Step 3.1, presuming address failure: go 4(f)(3).

It’s counterintuitive, but being unable to ascertain an address actually speeds things up. After a diligent but failed search, you’ll be able to show the court that you tried. The next step is to ask for an electronic service order under Rule 4(f)(3).

Now, I’ve been saying for years that e-service conflicts violently with the Hague Service Convention, but there’s a beautiful safety valve built into Article 1: the Convention doesn’t apply if you don’t know the bad guy’s address. No applicability, no conflict, Bob’s your uncle.

And e-service is due process valid.

No more steps.

Seriously. That’s it.

I hate to get too sales pitchy, but we can take care of all of them. You don’t have to go it alone.

The unabashed Schedule A Crazy Train has come to a stop in Chicago thanks to the U.S. Court of Appeals for the Seventh Circuit. The court has finally said definitively that serving a Chinese defendant by email doesn’t fly except in certain circumstances. Sorry to mix transportation metaphors there.

The Third Circuit already reached that correct conclusion in 2024,** and a comparable Second Circuit decision came down just before Christmas, 2025 (see Ted Folkman’s rundown on Smart Study here— if you now have Baby Shark stuck in your head, you’re welcome). But the Seventh is the one that matters because, in that magical Chicago fashion, the Crazy Train started at Adams and Dearborn Streets, right in the heart of The Loop. The 2d and 3d Circuit opinions have been panned all over the place by lawyers who seemingly don’t accept:

  • the power of the Supremacy Clause.
  • Or treaty text construction.
  • Or that Justice O’Connor and her colleagues hold more sway over what we do than the Advisory Committee for the Federal Rules of Civil Procedure.

Tsk. Tsk. Tsk.

This is not me gloating– this is me wondering in print how anybody who ever took ConLaw could think otherwise. I’m seriously baffled by any lawyer, especially one who wears a black robe and bangs a little wooden hammer on his or her desk, can willfully disregard the Schlunk decision and conclude that, yeah, e-service is just fine in these situations.

On Friday, the Seventh stepped in and sealed the deal. To that, I say… huzzah.

The court’s holding in Kangol v. Hangzhou Chuanyue Silk Import & Export is pretty straightforward:

“After default judgment was entered, Hangzhou eventually appeared and moved to vacate the judgment for lack of proper service. The court denied Hangzhou’s motion, reasoning that the Hague Service Convention permits service by email in China. We conclude the opposite; the Convention prohibits email service in China.”

To be sure, plaintiff’s counsel made a great point in oral argument as to the timeliness of the motion to vacate. I had more than a bit of indigestion at the thought that he might prevail on grounds other than the Hague issue, but the court disposed of that idea because Kangol hadn’t raised timeliness until the appeal. That question notwithstanding, the argument that “well, there was no email in 1965, so it must be perfectly permissible today” just doesn’t hold water. And it misses the point of Schlunk entirely. It simply doesn’t fly– and I’ll get to why in a minute.

By way of background, a bit of basic structure of the Convention serves as a primer for those unfamiliar with it:

ARTICLE 5. THIS IS THE WAY.

The primary and almost universal service method within the Convention is Article 5, pursuant to which a U.S. or Canadian plaintiff’s counsel asks the foreign country’s government– specifically its Hague “Central Authority“– to effect service according to its internal law. Very straightforward stuff in theory, although in practice, this can be maddening because it takes some Central Authorities years (<– not a typo) to produce proof. The resulting frustration provides the basis for the Crazy Train rendered invalid by Kangol.

ARTICLE 10. ALTERNATIVES TO THE WAY.

Provided the destination state doesn’t object, plaintiff’s counsel can serve offshore defendants by:

  • Postal channels, which includes mail and courier services (UPS, FedEx, DHL, etc.), but now also includes electronic mail, or…
  • Direct engagement of “competent persons” in the foreign country. This includes local counsel, private process servers, judicial officers and bailiffs, etc. Who is competent depends on the foreign jurisdiction.
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ANYTHING ELSE IS NOT THE WAY.

Seriously, that’s an exhaustive list– so sayeth O’Connor, J.– unless a plaintiff resorts to an old-fashioned Letter Rogatory, which the Hague Service Convention was specifically designed to render unnecessary.***

But let’s focus on the bold italic above: provided the destination state doesn’t object.

If the foreign country opposes Article 10 alternatives, they are off the table for that country. Period, end of discussion. And it’s not me saying that– it’s Sandra Day O’Connor. In Volkswagenwerk v. Schlunk (I call it Schlunk to differentiate this seminal precedent from all the myriad cases involving VW) she articulated clearly and forcefully that:

O’Connor’s exclusivity doctrine is completely whiffed by every lawyer who says “pffft, it wasn’t forbidden, so it must be permitted.”

And the Seventh Circuit– until last week the roundhouse of the Schedule A Crazy Train– said…

NOPE. NOPE. NOPE.

Last February, just before the Seventh heard oral arguments in Kangol, a bunch of IP lawyers criticized Smart Study. One even offered that, “(t)he Second Circuit imported a hierarchy into Rule 4(f) when there was not one.” This, along with demonstrably routine and recurring delays in China service, has been the basis for 4(f)(3) e-service orders in Schedule A cases for years. It does take forever in many cases. And it’s costly to boot. That commenter was absolutely right, because there truly is no such hierarchy in Rule 4(f).

Still, none of those contentions justify disregarding Schlunk, and they don’t support the argument that the Supremacy Clause doesn’t still reign, well, supreme. There IS a hierarchy in U.S. law generally, and it places treaties and SCOTUS opinions above the FRCP. In fact, the same critic went on to say that “Volkswagenwerk is irrelevant to the issue that was before the Second Circuit.”

I don’t even know what to say to that. But the Seventh does.

Indeed, starting with Société Nationale, the Supreme Court has consistently understood the Hague Service Convention to be exclusive. In Schlunk, 486 U.S. 694, the Court stated that compliance with the Convention “is mandatory in all cases to which it applies” and that it “provide[s] the exclusive means of valid service.” Id. at 705–06. And most recently, in Water Splash, Inc. v. Menon, 581 U.S. 271 (2017), the Court reaffirmed that “the Hague Service Convention specifies certain approved methods of service and ‘pre-empts inconsistent methods of service’ wherever it applies.” Id. at 273 (quoting Schlunk, 486 U.S. at 699). Thus, the Convention’s language and the Supreme Court’s understanding of that language make clear that—where the Convention applies—it sets out the permitted methods of service and excludes all others.

‘Nuff said. (Full opinion here.)

So how does this affect Schedule A cases going forward? Plaintiffs still have (1) to make a diligent effort to identify infringing online vendors, and (2) to make a diligent effort to find them. If they can’t accomplish both, then e-service is just fine (ie: no crazy train because the Convention doesn’t apply).

* At least, where the defendant can be properly identified and located.

** SEC v. Lahr. Okay, this one was Switzerland and didn’t entail such egregious silliness as the China cases, but the structural logic of the opinion is on all fours. Worth noting is that, just days before Lahr was handed down, the Special Commission of the Hague Conference on Private International Law upended one of that opinion’s points– that the Convention must expressly authorize e-service in order for the method to be valid. Not so. The Convention permits alternatives in countries that do not object to Article 10, and that vindicates email as a postal channel under 10(a).

*** They’re necessary for service in Russia, I’m afraid. Valid under the Convention because they’re conveyed via consular channels pursuant, which fall under Article 9.

Hong Kong Skyline
Daniam Chou, Unsplash

The hits just keep on coming, y’all. I recently fielded a call from a lawyer in Notkansascity who needed help serving a defendant in Hong Kong. Or at least, he said, he needed help getting his summons and complaint translated into Mandarin– it seems his process server was already taking care of “that Hague thing.”

A lovely quartet of things are very wrong with that statement.

For starters, no, a process server isn’t authorized to sign Hague Requests, contrary to what a whole bunch of process servers may try to tell you. I’ve railed about this and don’t want my face to turn blue. Your process server cannot “take care of that Hague thing” unless the venue court specifically appoints him for the purpose.

Second, you don’t translate into Mandarin. That is a spoken dialect, so you interpret it (those two verbs are terms of art). It’s also not the dialect spoken in Hong Kong anyway– they speak Cantonese. And even if you did nail down the two main written languages, simplified and traditional, the former is used on the mainland, and the latter in Hong Kong.

Good grief, the ignorance.

And at that, if the process server is taking care of that Hague thing, why wouldn’t he handle translation has a part of that effort? Makes no sense to piecemeal it.

But worst of all? Unless you’re suing an individual who isn’t demonstrably competent in English, it’s not necessary to translate documents to be served in Hong Kong in the first place. It’s certainly not required under China’s declarations (regarding Hong Kong) to the Hague Service Convention. The Chinese have maintained the old British judicial structure and anglophone business community… simply put, the status quo of 1997 continues today. If the judge in Springfield, USA can understand it, you’re solid.

When your process server starts giving you advice on legal requirements overseas, just walk away.

Sales pitch time. For the record, we do handle that Hague thing. That’s all we do, with the occasional exception of service in non-Hague jurisdictions like Taiwan and New Zealand. We also take care of translation– when it’s necessary. It’s outsourced, of course, but we work with the pros from Dover, providers who understand what’s necessary for the Hague thing Service Convention. And ultimately, we’re not process servers. We’re a law firm, and as such, are specifically authorized to sign Hague Requests. If the guy had listened to me, he wouldn’t have had to wait six months for a proof, or worse, fallen into this fun little trap. We could have done it privately and quickly, no muss, no fuss.

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Matt Benson, Unsplash

In six semesters of law school, including two of Civil Procedure, the only time I remember ever hearing a professor mention service of process was in Business Organizations class (known elsewhere and in earlier times as Corporations). That was it.

My BusOrg professor, known to frequent readers of this blog as Big Tony, was a seasoned litigator before joining the ivory tower, so we thought he had considerably more street cred than other faculty who had never practiced. Well, Big Tony hammered into our brains that, if you’re going to sue an entity, you damn sure better name it properly, and you damn sure better serve it properly.

Then we moved on to other things, like formation and resident agents and winding up. Service of process wasn’t mentioned again. Ever. In any class. The Hague Service Convention certainly never came up, until the very last paper I completed as a 3L– and that was for an independent study.

Now, I went to a third-tier, red-headed stepchild law school– a state institution that constantly takes a back seat to the flagship of the system two hours to the east (and of dubious superiority). But my alma mater prides itself to this day on producing nuts and bolts lawyers who can handle day-to-day practice. We had fantastic training in trial advocacy skills, client counseling, and drafting of instruments– for clients, rather than just for appellate courts (though we got huge doses of that, too). The one nut & bolt combination that was left out of the training, though, was the very first step in a lawsuit after the thing gets filed. Service was just taken as assumed– and I doubt highly that my alma mater is any different than the rest of the legal academy.*

Don’t make service an afterthought. It’s like choosing your place kicker after the draft because you don’t want to waste a pick (never mind that the top twenty-five scorers in NFL history are all place kickers). Service is the kickoff in litigation, and without a good kickoff, the game is lost before it starts. It’s not a given, and it’s dangerous to consider it so. Valid service is a cornerstone of due process (see Mullane), and without it, the case goes nowhere.

I really shouldn’t complain about the gaping hole in our legal training– it’s impossible for law professors to imbue their students with all the knowledge necessary to practice. And my stockbroker makes a payment on his boat every month thanks to litigators who recognize what they don’t understand and should hand off to someone else to execute.

But this one is important. So if you’re a law professor, especially one who teaches CivPro, take five minutes out of the 2,100 allotted to you in the semester,** and discuss it.

If you’re a litigator, remember that service is step ONE once you have a case number and an issued summons. Don’t make it an afterthought.

* I had a moment of glee a few years into practice. I was giving a CLE lecture in a conference room in Paris, talking about the fun I have working with the Hague Service Convention. As I dug into the substantive stuff, it dawned on me that, to my left was the associate dean who taught my first semester of CivPro. On the opposite side of the room from him was the associate dean who taught my second. They were both fantastic teachers, but “good grief, guys. One of you could have at least mentioned this stuff!”

** Fourteen weeks in a semester, three credit hours, 150 clock minutes a week, 2,100 total. And you thought lawyers couldn’t math.

The latest lawsuit trend we’re seeing involves class actions on behalf of farmers and co-ops accusing various fertilizer producers– including several outside the United States– of price fixing. They’re surely destined for MDL designation, quite possibly right here in Kansas City, but for now, they still have to be served in accordance with FRCP 4(f) and the Hague Service Convention. To elaborate, the Hague Law Blog welcomes Julie Maciel Rozani, who joined Viking Advocates in early 2024. Julie is admitted to practice in another agricultural powerhouse, Brazil, and found out just two days ago that she passed the Texas bar exam. What follows is Julie’s guide to service in fertilizer price-fixing suits.

It would be an understatement to say that the latest trend in American lawsuits regarding fertilizers and price fixing addresses a topic that is both highly significant and complex.

Don’t get scared, though — we have good news for you: service in those cases must happen exactly the same way as it would if we were talking about a divorce or personal injury case.

The countries in which most of these fertilizer producers are located are signatories of the Hague Service Convention – which means: “thou shalt serve pursuant to the Hague Service Convention”. Now you may ask: how is service effected in those jurisdictions, pursuant to the Hague Service Convention?

The countries involved in this discussion are usually Norway, Canada, England, and France. Click on these links, and you will find a very detailed guide on service in each of these jurisdictions.

In summary, Norway is the only country on this list where you would have only one method of service – service through a Central Authority, based on Art. 5(a) of the Hague Service Convention. The others allow private service, pursuant to Article 10(b), which is usually a much quicker way to serve.

You may also ask: do I need to translate the documents that need to be served? Those links will answer that for you too. The answer for this question will depend on the country. For Norway and France, if you want to avoid any possible headaches, yes, translate the whole thing and move on – a nice thing to remember: attorneys do not get paid by the word – but guess who does.

Therefore, fortunately, there is no extraordinary procedure for service on fertilizer producers. Unless the defendant’s attorneys accept or waive service, you will just need to serve them exactly the same way you would do it for any other matter.

Julie’s Note: As per Aaron’s introduction, agriculture (or “agro,” as we would refer to it in Brazil) is one of the greatest drivers of the Brazilian economy. A Brazilian TV advertising campaign promoted the agricultural sector with the slogan “Agro is tech, agro is pop, agro is everything.” (Brazilians will know what I am talking about). All tools that contribute to making this great machine work are relevant and heavily affect the economy.

Of course, “agro is pop” extends to several other economies and, ultimately, globally, and one of the most important tools in this context is fertilizers. We are talking about a huge segment of the world’s economy that impacts, in many ways, the result of this business: the products that reach supermarket shelves and people’s homes, and consumers’ pockets.

Just Mad
Andre Hunter, Unsplash

Sorry to be so loud with that.

Well, no, actually. I’m not sorry. I tried to lay all this out last spring, but here we go again.

At least once a month– still– I’ll hear from a very well-meaning client, seeking to rein in costs and save his/her client a boatload of cash and time, asking me for help in a motion to serve by alternative means. My answer is always no.

What they mean by alternative means, unfortunately, is alternatives to the Hague Service Convention, and that’s just not tenable.*

I hate to be the bearer of bad tidings, but there are no alternatives to Hague service unless you’re seeking alternative means within the United States— or, if you’re a Canadian litigator, within Canada. If you’re doing that, the Hague Service Convention doesn’t apply anyway.

A couple of things to keep in mind:

  • There are alternative means within the Convention itself, but they’re only available if the destination jurisdiction hasn’t declared opposition to them.
  • Using those alternatives within the Convention is still compliant with the Convention. Direct access to a Dutch bailiff? Still Hague Service. Private service in England at the direction of a solicitor? Still Hague Service. Service by mail in Italy? Technically, still Hague Service– though I contend that it’s a bad idea when better options are available.

Yet we’re still seeing case after case where counsel pulls an abjectly, horrifically wrong-headed trial court order from a prior case, and uses that order as a basis for an alternative service motion. The biggest culprits: (1) seeking an order to serve via U.S. counsel pursuant to Rule 4(f)(3), and [2] electronic service pursuant to the same rule because “it’s just too hard, your honor.” Taking each in turn:

4(f)(3) service via U.S. counsel

I’ve said it ’til I’m blue in the face. Rule 4(f) applies to service at a place not within a judicial district of the United States. It’s linguistically impossible to tie 4(f)(3), then, to service on U.S. counsel. Nonsensical. Misguided. Dare I say… ? No, I won’t say what I’m really thinking. I elaborate on the nonsense here.

If you’re going for U.S. counsel, either it’s a straight-up agency argument under 4(e)(2)(C) for individuals– 4(h)(1)(B) for entities– or it’s valid under applicable state law. You’d better come loaded for bear with either argument.

E-service in China, India, Mexico…

This is the big one, because it is so ridiculous as to warrant scorn.** All of these efforts are based on some earlier court’s erroneous conclusion that (1) Rule 4(f) doesn’t lay out a hierarchy, and (2) the Hague Service Convention doesn’t expressly prohibit electronic service, so go ahead and serve that Chinese/Indian/Mexican defendant by email. Good on ye, counsel.

Well, it’s true that 4(f) isn’t a hierarchy of steps (contrast it with 28 U.S.C. § 1608, which does lay out a hierarchy for service on foreign governments and agencies). But that’s not the end of the analysis. Last I checked, U.S. Supreme Court opinions carry more weight than mere procedural rules, so Volkswagen v. Schlunk puts Hague strictures above 4(f) in the power rankings. There definitely is a hierarchy, and dammit, thou shalt follow it, so sayeth O’Connor, J.

And yes, the Hague Service Convention does prohibit electronic service– at least in countries that object to Article 10 (like China, India, Mexico… what I refer to as “5-O countries“).

Sure, it doesn’t specifically mention electronic service, because that wasn’t a thing in 1965 when the treaty was signed. Wanna know what else wasn’t mentioned? Stuff that was a thing in 1965. Carrier pigeons. Smoke signals. A message in a bottle (gratuitous homage to 70’s quasi-punk here).

Yet the aforementioned Madam Justice also said that the methods articulated in the Hague Service Convention constitute an exclusive list. SO DON’T GET CUTE.

Baseless rationale

But it’s just too hard, your honor. It’s expensive. It takes a long time.

(Yes, whining is implied in that.) Well, sorry, the judge should say. I’m not going to contradict clear precedent from One First Street– precedent that hasn’t been seriously questioned in almost forty years.

Just do it– and do it the right way.

* See “Do I have to go through the Hague?”

** See A caution to my clients: electronic service conflicts with the Hague Service Convention. Violently. See also Ted Folkman’s take following the 2d Circuit getting it right in December.

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Aurélien Lemasson-Théobald, Unsplash

The U.S. Department of State and Global Affairs Canada each designate “Forwarding Authorities” who are legally competent to sign Requests pursuant to the Hague Service Convention. In Canada, the designation is pretty succinct, setting out a specific list, including various government officials, judicial officers, and “Members of the law societies of all provinces and territories”. Put another way… certain public servants and lawyers (including huissiers de justice in Québec).

In the U.S., things appear to be a bit more loosey-goosey:

The persons and entities within the United States competent to transmit service requests abroad pursuant to Article 3 include any court official, any attorney, or any other person or entity authorized by the rules of the court. 

Any court official. So the judge or clerk of court can sign these things. Got it– easy to see.

Any attorney. Plaintiffs’ counsel, defense counsel bringing in a third-party defendant, a group of attorneys in Kansas City who do nothing but Hague Service (hint, hint), or really, anybody among us crazy enough to pass a bar exam. Check.

But what of “any other person or entity authorized by the rules of the court“? There’s where we get into problems. Why? Because a whole bunch of process servers look to FRCP 4(c)(2) and somehow see an authorization to sign Hague Requests. That takes a massive leap in logic and willful disregard for the distinction between what is authorized and what is permitted.  Process servers are neither in this regard, because Rule 4 says nothing about the Hague mechanism except to say an overseas defendant may be served in accordance with the treaty. Even that drafting is incomplete, because if the Hague Service Convention applies, it’s mandatory doctrine by virtue of the Supremacy Clause. The FRCP are irrelevant to the question.

But 4(c)(2) says precisely nothing about the Convention or service abroad. Here it is verbatim:

By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint.

Hmmm. That’s not even authorization to serve domestically. It’s permission (may serve). And why is that permission there? Because service of federal process was once within the exclusive purview of the United States Marshals, and an Advisory Committee thought that should be opened up to folks outside federal law enforcement. It still doesn’t get to who is authorized to sign a Hague Request– 4(c)(2) just says who may serve.*

Who may serve in a foreign country is not determined by the FRCP. It’s determined by the foreign government in its municipal law, modified by its declarations to the Convention. Our rules go out the window. Looking again to the U.S. designation of Forwarding Authorities, it’s necessary to go elsewhere to find authorization. For this specific function, the FCRP are silent, but the court has inherent authority to appoint specific persons to act on its behalf.

Now, to be sure, many non-law firms (process servers) do it the right way– they ask for a commission from the forum court, and only sign Requests under that authorization. Others just cut to the chase and hire a lawyer (or lawyers) to be on staff– that’s how I got into this business in the first place. Both approaches satisfy the U.S. designation. Nobody involved in that procedure, including the lawyers, are actually authorized to serve the thing in the foreign country.

But the non-lawyers who sign them without specific authorization from the forum court? Nope. Not valid, so don’t take their word for it that “sure, it’s all good, we’ve been doing this for years.”

That’s only because no defendant has ever taken it up on appeal. I’m pretty confident you don’t want to be on the receiving end of that benchslap.

* The distinction between “authorized” and “permitted” is fleshed out in the Syllabus of Water Splash v. Menon (2017): “The fact that Article 10(a) encompasses service by mail does not mean that it affirmatively authorizes such service. Rather, service by mail is permissible if the receiving state has not objected to service by mail and if such service is authorized under otherwise-applicable law.”

A note to defense counsel: always question the validity of Hague Service Requests. So your offshore client was ostensibly served by judicial officials in its/his/her home country? Validity of service under that country’s laws is not the end of the analysis. If it’s not a valid Request to begin with, think fruit of the poisonous tree from Crim Pro.