Image by user “chaitawat“, WIkimedia Commons.

My May 18, 2018 post “How to Serve Process in China… important updates”  highlighted a pair of developments in the submission of Hague Service Convention requests to the Central Authority for the People’s Republic of China.  In short…

  1. They moved.
  2. You can’t send a fee check anymore.  Wire transfers only.

Not great news, but hopefully the post helped clear up a bit of confusiion.

Well, today I learned that the Chinese are leading the charge into the 21st century (yeah, the one we’ve been in for almost two decades) by establishing an online portal for submission of requests.  No more printing, no more FedEx or UPS delays, and no more wondering if the paperwork actually reached the right desk in Beijing. From the folks at the International Legal Cooperation Center, a unit of the Ministry of Justice in Beijing:

Dear Colleagues,

To improve the efficiency of judicial assistance in civil matters, our Ministry has developed an online Civil and Commercial Judicial Assistance System. We invite you to use this newly launched system to submit any request for judicial assistance in civil and commercial matters in the framework of Hague Service Convention, Hague Evidence Convention and bilateral treaties signed between foreign countries and China.

Please log onto www.ilcc.online, register and use.

We hope to see your requests coming onto the system very soon.

For the record, I’ve signed up but have yet to use it– I sent a couple of traditional hard copy requests over just last week– but will update this space as soon as I have a basis to comment.

And for an even more important record, other countries ought to follow China’s lead and do likewise.*

* In my original version of this column, I opined that the U.S. should especially follow China’s lead.  Turns out, we already do that, and we did it first.  ABC Legal, the company designated to process requests on behalf of the U.S. Department of Justice, provides just such an online portal.  My apologies to both for not knowing that– I don’t handle inbound requests, obviously, and I should have looked into the matter before lodging a criticism.

The Supreme Court, Manila. Aerous, via Wikimedia Commons.

Watch this space for updates… nothing really to say just yet, as I usually just advise clients to serve by mail if their defendants are in the Republic of the Philippines.  There’s currently no treaty in force, Letters Rogatory take seemingly forever, and I have yet to find a private agent or law firm there who (1) understands fully what I seek, (2) is willing to take the project on for less than an outrageous fee, and (3) I trust to actually do what needs to be done.*  Remember that old lawyers’ saying “you want good, cheap, and fast… pick two of those.”  That’s pretty much been my approach to service in the Philippines for the past five years.

But the official Philippines News Agency made a significant announcement today:

The Philippines will soon accede to the Hague Service Convention, a treaty that simplifies the process of serving court documents on parties living in another state, Foreign Affairs Undersecretary Eduardo Malaya bared  (sic) Thursday.

This is tremendous news, especially for the many individual litigants whose attorneys contact me for service in divorce actions, but also for the many business owners involved in disputes with Philippine parties.  I don’t see any indications as yet whether the Republic will object to Article 10 and its alternative methods, but this space will be updated as soon as the answers to that question and others are made available.

Stay tuned.

* The Department of State offers that “service of process in the Philippines may be effected by mail, by agent, such as a local attorney, or through letters rogatory.  Litigants may wish to consult an attorney in the Philippines before pursuing a particular method of service of process, particularly if enforcement of a U.S. judgment is contemplated in the future.”  Enforcement is right at the top of my list of concerns where a litigator chooses a simplistic means of service– particularly mail, which I generally recommend against— but in the Philippines, it’s usually the only realistic method.

When a U.S. litigator sues a Chinese defendant, they very rightly hop on Google seeking information on how to serve process in China.  Luckily for me, they quickly find my post on the subject, and they get up to speed.

Why is it lucky for me?  Because although many litigators follow my step-by-step guide to Hague requests and do it themselves, others conclude that a DIY approach is not the best way to go, and they bring me on board to handle the Hague procedure for them.  The engagement usually comes after they’ve filed the suit, which tells me that they’re committed to keeping the litigation stateside– and that they’ve identified the defendants’  U.S. assets.  As such, I have no real hesitation to jump right in and assist.  But there are pre-filing situations where I question the strategic rationale for litigating here in the land of E Pluribus Unum.

That’s a fun conversation to have with a plaintiff’s attorney who makes his/her living bringing lawsuits.  “Hey, might your client be better off suing the bad guys in China rather than in the United States?”

Yesterday,  my friend and colleague, Dan Harris, posted again on (the ever-entertaining, often controversial, and always compelling) China Law Blog that “(s)ince Mainland Chinese courts do not enforce U.S. judgments, it is usually (but not always) a waste of time and money to bring a lawsuit in a U.S. court against a Chinese company that does not have assets in either the United States or in a country that enforces U.S. judgments.”  This conclusion is from a guy who makes a good chunk of his living bringing lawsuits in U.S. courts against Chinese companies.  How to Sue a Chinese Company: The 101 is a pretty powerful missive.  Essentially, Dan points out what is obvious to those of us in the transnational field, but not so apparent to the thousands of litigators who don’t often pursue foreign defendants– those foreign defendants could be turnips.*  And then he delves into the intricacies of serving Chinese defendants, which is my bailiwick (see How to Serve Process in China, which carries Dan’s message of caution, and How to Serve Process in China… important updates for a primer).

The bottom line is that serving Chinese defendants is far more complicated than some folks would have you believe.  Oh, it’s just a form to fill out, they say.

Um, okay, good luck with that, I say in return.

Litigating with Chinese defendants– or offshore defendants in general– isn’t for the faint of heart, and it must not be undertaken unadvisedly.  Undertaking it advisedly might just mean doing it in an overseas court.

* As in “can’t get blood out of a… .”  That is, a U.S. litigator (or litigant) could bear thousands of dollars in costs to litigate all the way up to a decent judgment, only to find that it’s not a collectible judgment.  It ain’t over ’til the client gets a check.

Baggage claim at Schiphol. Image: kevingessner, via Wikimedia Commons.

I flew into this mess on July 24th at Schiphol Airport in Amsterdam.  We sat on the tarmac for two hours waiting for a gate to clear for us, and another half hour at the gate waiting for a qualified jetway driver to provide a means of egress.  Then the real fun started.  Three more hours in the baggage claim area, before coming to the unfortunate conclusion that Icelandair had somehow misplaced my gear.  No worries, I thought.  They’ll get this mess sorted out and bring my suitcase to my hotel in The Hague tomorrow.  My most important meeting isn’t until the next day.

Whoa, was I wrong.  I went to my most important meeting in cargo shorts and hiking shoes that I’d been wearing for three days.  Thank goodness for quick dry fabric and the clean undershirt the airline gave me in a nice toiletry kit.  To this day, they still can’t tell me if my bag was still in Kansas City or if it got misdirected in Reykjavik or if, in the most logical scenario, it was caught up in The Great Schiphol Airplane Gas Station Fiasco of 2019.  (Further research dictates that you must identify a year on such an event, because it seems to happen regularly there.)  It wasn’t until six days later that my bag was finally delivered to me… in England, where I’d ventured for a CLE seminar at Oxford University.

As I was grousing to my wife about the inconvenience– it really wasn’t tragic, as my newly formed Zen Self* had concluded– she mentioned that waiting for my lost luggage sounded a lot like the conversation I often have with my clients from time to time.  Clients who are highly agitated that they haven’t received word that their defendant had been served, and who are beside themselves with stress because procedures are going far more slowly than they thought they should.**

Absolutely, I thought.  That’s an apt analogy.

When a U.S. or Canadian litigator tries to have a defendant served here in North America, things usually go pretty smoothly, in a matter of days, if not hours.  But when the defendant is overseas, things just don’t move as quickly, so patience is not only a virtue– it’s a critical part of staying sane.  Especially in Latin America and the Far East, the wheels of justice grind slowly, and given the mandatory nature of the Hague Service Convention, those same U.S. and Canadian litigators can only just sit and deal with it.  Be Zen, just as if they’re waiting for the airline to get a lost piece of luggage to them.

Why?

Because there’s nothing to be done about it.

Pestering the foreign Central Authority isn’t going to make them move any faster and, truth be told, it might actually make them slow the process down even further.

So a bit of Zen is in order.  Just relax, and have a little faith that it’s coming.

Even the judge is just going to have to chill a bit.

* I recommend this book by a great Glaswegian named Gary John Bishop.  The greatest lesson in that book landed on my head just days before my fateful landing in the Netherlands, providing an excellent opportunity to implement the theory.  In short… when a crummy situation happens, we don’t truly get angry that it happened (it doesn’t help anyway).  We get angry because the situation conflicts violently with our expectations.  Modify your expectations, and the crummy situation is revealed to be not so bad after all.

** I try really hard to advise clients in advance that this is going to take forever.  The advice doesn’t always stick.

Go to Holland and escape that brutal July heat that typifies life in Kansas City, I thought.  It’s always nice in the Netherlands.  That’s why its people are so happy.

Ahem, not this week– although the people here are still just as friendly as ever.  The typically bright and sunny Dutch personality hasn’t waned this week, despite the hottest day EVER in the Netherlands (102.5 Fahrenheit yesterday)* and the fuel system fiasco at Schiphol (Amsterdam) Airport, which I landed smack in the middle of on Wednesday.**

The beauty of this place is striking, especially as I enjoy the house Pale Ale at Instock, right next to the Prison Gate and across Buitenhof from Parliament.  This is a very neat idea, and I stumbled across the place after finding, to my horror, that Hometown Coffee & More, where I first launched this blog three years ago, is under renovation (not closing, mercifully).  Instock’s mission is to reduce food waste by using only remaindered food from one of the country’s largest supermarket chains.  The Pale Ale is outstanding, even though it took me a moment to wrap my head around the fact that it’s brewed from potatoes that nobody wants.  My new mantra: ugly potatoes make outstanding beer.  There.  Your lesson for the day.

I can happily report that The Hague is still a nice place to be, and it’s still carrying a critical mandate: harmonize the world’s legal systems so they can work together, and make the world a better place in general.

* Climate change deniers are idiots– it’s that damned simple.  And their idiocy should be called out at every turn, especially if they hold public office and control policy decisions.  Spare me the moronic snowball arguments (oh, it’s snowing, so climate change is bunk!).  If it’s almost as hot in Amsterdam as in Phoenix, there’s a whole lot more going on than just a freak weather pattern.  The truth, though, is that it’s been very nice, despite the thermometer reading.  Low humidity and ocean breezes tend to mitigate the suffering.

** As of this writing on Friday afternoon, I still don’t have my luggage.  I really want to blame Icelandair, who doesn’t have a digital tracking system (it’s 2019, guys), but there’s no way to know whose problem it is.  I’ve become very zen in the past 48 hours!

Yeah, they had to submit a customs declaration.

On Saturday (July 20th), we celebrated the fiftieth anniversary of mankind’s giant leap, our footfall on the dusty surface of the moon.  Just about every blogger over the age of forty made mention of it last week or over the weekend.  I didn’t, because as great an achievement as landing on the lunar surface was, the greater goal was achieved at 12:50pm EDT on July 24, 1969.  The men who walked on the moon returned safely to the earth, fulfilling President Kennedy’s mandate to do so.  I am very fortunate to have been born during the Apollo era, and even more fortunate to have grown up during an age when space shots were still awe-inspiring.

I watched the first Space Shuttle Columbia launch in my fourth grade classroom.  The Right Stuff came out when I was in junior high.  The Challenger disaster (I was a high school freshman) sadly gave my generation its first shared sense of loss, not to be matched until a bright Tuesday morning in September fifteen years later.

The common thread in all of that: we had heroes once.  Identifiable, known, and despite their real human flaws, inspiring.  How I wish we could get that back.

With the space program in the latter half of the 20th century, we had a shared purpose, a discernible goal as a society and, arguably, as a species.  But we seem to have lost that, too.  How I wish we could get it back.

This isn’t to say we can’t.  I remain convinced that we can– and we must.  A shared purpose is where heroes come from– if we can rediscover one, we get the other.  We have to do the other things; not because they are easy, but because they are hard.  It’s time to start dreaming again.  It’s time to find some heroes again… Neil Armstrong and Gus Grissom and and Christa McAuliffe.  We also need heroes like Janet Armstrong and Betty Grissom and Steven McAuliffe… they’re pretty inspiring themselves.

We need them again.  And we need the sense of purpose they shared.

Just my two cents’ worth on the true anniversary of Apollo 11.

Courtroom 1, Supreme Court of the United Kingdom.

The most critical question in serving a defendant is “WHERE?”  More specifically…

Where is the defendant located?
Where can you serve him/her/it?
Where must you serve him/her/it?
Where in the world is Carmen San Diego?

Today’s cartographic dilemma: The British Isles.  Essentially, two massive islands off the northwestern coast of the European continent– Great Britain and Ireland– surrounded by hundreds of little ones.  The timing today is just right… The Championships 2019 (more commonly known simply as Wimbledon) got underway yesterday and will continue for the traditional fortnight.

The United Kingdom

Ah, where to begin?  Well, for starters, the UK is not a single country or jurisdiction.  Its official name is The United Kingdom of Great Britain and Northern Ireland.  It’s actually four countries, with three distinct judiciaries:

  1. England & Wales are separate countries, but with a unified legal system.
  2. Scotland is entirely separate in terms of judicial structure.  And in terms of culture.  And history.  And temperament.  And… oh, jeez, just watch this, for crying out loud.
  3. Ireland– the island— is entirely separate, too.  But with a decidedly more complicated history.  (We’ll get to this one momentarily.)

Volumes have been written about this stuff, so I won’t go much further– just Google “difference between the UK and Great Britain” (and click through to the videos) for more.  Suffice to say that, although sending a request to the wrong Authority may not derail your case entirely, it can certainly delay it unnecessarily.  If your defendant is in Glasgow or Belfast, but you send your Hague Service Request to London– the Royal Courts will likely just forward it on to the proper venue.  What they probably won’t do, however, is forward your request to serve a defendant in Dublin or Cork.

The Republic of Ireland and Northern Ireland

The Ireland split is where the geography gets really hairy.  I won’t get into the whys and wherefores of Ireland’s division (I remain strictly agnostic as to the politics thereof– for a number of reasons), but it is critical to understand a bit of history in order to understand the geography that drives the procedural requirements of cross-border litigation.

See, for centuries, the whole of Ireland was governed by the British crown.  Just after the First World War, the Irish Free State was created, and after the Second World War, the Free State became a Republic.  Yet the six counties in the northeast of the island remained part of the United Kingdom (see here for elaboration on the partition of Ireland) and saw incredible strife and violence during three decades of “The Troubles“.  With the Good Friday Agreement of 1998, the violence came to an end, and the Six Counties have enjoyed relative prosperity and a cautious peace.*

The Four Courts, Dublin.

Hague Service Requests

Again, I can’t stress enough the critical nature of the defendant’s location.  Here’s the breakdown of the proper destinations for Hague Service Requests:

Easy to avoid delays & rejections with a solid plan.

 

* I fear that the impending departure of the UK from the European Union puts the peace at risk… here’s hoping it doesn’t.

** The Irish Central Authority has historically just not gotten the job done.  If this has changed in recent years, please let me know in the comment section below, because I haven’t had a client choose that avenue when I can be confident that my solicitor will get the job done.

“The Blue Marble”, by the crew of Apollo 17, on December 7, 1972.

The most critical question in serving a defendant is “WHERE?”  More specifically…

Where is the defendant located?

Where can you serve him/her/it?

Where must you serve him/her/it?

Where in the world is Carmen San Diego?*

Let’s face it– we Americans collectively suck at geography, despite the valiant efforts of Carmen San Diego’s creators.  Many of us can’t find Russia or China on a map, but whoa, do we either love or hate them.  Geography has never gotten its due in the educational realm– it’s just something you have to suffer through, like P.E. or Home Ec (both utterly vital to societal health).  It was simply not a priority in the days after Sputnik and Yuri Gagarin frightened the living bejeebers out of us and prompted the first shift toward STEM, and it’s still not a priority.  Consequently, it’s little wonder that even highly educated professionals (I’m looking at you good folks in the practicing bar) today have trouble visualizing where one place sits in relation to another.

I guess I shouldn’t complain.  If everybody knew this stuff, I wouldn’t have a job.  But if you can’t tell me where the defendant is, I can’t get them served.  It’s just that simple.  To go a step further, if you can’t give me a location, I can’t even tell you what options are available to you.

Several geographical distinctions are absolutely critical in determining how to properly serve an overseas defendant, and they all go to the question “where?”

Next week, we begin a new series that focuses less on how to operate under the Hague Service Convention, and more on “the where driving the how.”  The areas we’ll address, in no particular order:

  • The British Isles
  • Canada
  • Switzerland
  • Belgium
  • Israel and the Palestinian Territories
  • China in general
  • The Pearl River Delta in particular

Suggestions about additional places are welcome.  Stay tuned.

* For the record, I was a massive geography nerd as early as five– after all, Uncle Sam sent our family to a far-flung part of the globe called Belgium.  I could name all the capitals of Europe by the age of six.  The Carmen San Diego game didn’t come out until I was in high school, and the TV show when I was in college, so I couldn’t ever say I was a fan– and I really couldn’t tell you a thing about the game or the show beyond “um, yeah, it’s all about teaching kids geography.”

An Alsatian calendar from long ago (it was part of Germany then).  Bibliothèque nationale et universitaire of Strasbourg, via Wikimedia Commons.

Last week, I went on a bit of a rant— my thinking was sparked by a highly informative post by Dan Harris at the China Law Blog, in which he rebooted an older column in Four Essential Principles of Emerging Market Success.  His original (2004) commentary is even more prescient today as manufacturers and investors shift away from China and seek new opportunities in other emerging economies like Vietnam, Turkey, and Indonesia, just to name a trio.  As it turned out, when I read Dan’s update, I had just seen a prospective client walk away from a discussion because he didn’t like the bad news I had to give him.  That news went to the heart of Dan’s thoughts on doing business anywhere abroad, namely: Things will be different. Very different.

Applying those thoughts to what I do, my rant pressed the hard truth that, despite what we Americans might think, other countries do things differently.  Their systems of justice are often markedly different, and their viewpoints almost always divergent from our own.  We American lawyers have an obligation to recognize this fact when we pursue litigation involving offshore defendants and third-parties.

An additional piece of Dan’s advice to business people seeking to operate abroad:  Exercise Extreme Patience.

[E]verything takes twice as long as you think it will. If it takes twice as long in the West, triple that in emerging market countries.

That bit of wisdom has even more bearing on what I do.  But his math doesn’t begin to describe the disparity between American practice and that of our friends abroad.  A quartet of my own posts touch on the issue of time in serving defendants under the Hague Service Convention:

The takeaway from all of those is: relax.  This is gonna take a while, and very often there’s nothing you can do about it.

In our own system, service of process can be done in a matter of hours.  Literally– you can sometimes measure the time from engaging a process server to proof-in-hand with a stopwatch.  But when you’re serving in Germany, Switzerland, or Korea, that stopwatch becomes a calendar.  When you’re serving a defendant in China, India, or Mexico, that calendar becomes two or three calendars: (1) this year, (2) next year, and (3) maybe even the year after.

Point is, attorneys are an impatient breed.  An old friend (a retired Army JAG officer) once called us the most helpless race of people on the planet.  Put those two thoughts together and the long time required to serve overseas drives us nuts, and we want to lash out like a temperamental four-year-old.  We’ve got to get over it, because it can’t be circumvented.

Fortunately, it also can’t be held against us.  As long as we’re reasonably diligent in getting the procedure rolling along, Rule 4(m) gives ample safe harbor.  State doctrine almost always reaches the same result, whether by rule or by case law (sorry, Michigan & Wisconsin… you guys have a challenge).

But we must embrace the fact that the American demand for DO THIS RIGHT NOW OR I WILL HOLD MY BREATH UNTIL I TURN BLUE simply doesn’t fly “over there.”

They just giggle a bit and move our request to the back of the line.  And they know we’ll start breathing again when we pass out.

Ahem… nope.

Ansgar Koreng, via Wikimedia Commons.

 

Supreme Court of the Republic of Cyprus. Seksen iki yüz kırk beş, via Wikimedia Commons.

I say all the time that we ain’t building rockets here.  But we are building a ship of sorts, and a leaky vessel means the cargo may not make it to its destination.  Serving process in Cyprus is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.  Cyprus has a rather complicated history, even in recent decades– and the island has been divided between Greek and Turkish ethnicities in the south and northeast, respectively, since the 1960s and ’70s.  Though not as bitter as several decades ago, the division nonetheless remains, and service in the Turkish region may not be as straightforward as in the Greek.  The following focuses mainly on the Greek portion of Cyprus, although Greek and Turkish officials may cooperate to effect service on behalf of foreign applicants.

Some background on the Convention is in order, if you’re so inclined, before we cut to the chase.

  • The roadmap to the overall process—the recipe to our Secret Sauce.
  • The structure of the Convention itself is discussed in this four-part series.
  • And an absolutely critical note: the Hague Service Convention does not confer coercive effect on subpoenas.  Repeat after me—you can’t just SERVE a subpoena in Cyprus.  At least, not if you want it to actually work.  Instead, you have to file a Hague Evidence Request.  Dramatically different from serving a summons or notice.

Here’s how service is accomplished:

Article 5 Service

  • Translate the documents.  Although Cyprus’ declaration to Article 5(3) does not specifically require translation into Greek or Turkish, defendants may reject documents not provided in a language that they understand.  As such, omitting translations could mean failure.
  • Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney.  If it is not, make sure that the person signing is commissioned by the court.
  • Wire €21.00 to the Central Authority in Nicosia.  If your bank is like mine, it’ll cost you more to send the wire than the wire itself.
  • Send the hard-copy USM-94 and service documents to the Authority, in duplicate.
  • Sit tight. It may take a while—likely 3-5 months from submission to return of proof.

Article 10 alternative methods

  • Mail service is available, depending on where you are, but it’s a bad idea anyway. If you do select this route, pay particular attention to the venue court’s rules about how mail service is initiated—in federal cases, adhere strictly to FRCP 4(f)(2)(C)(ii).
  • Cyprus also allows applicants to directly avail themselves of judicial officers and other competent persons to serve, but the Cypriot declarations are mute as to who is and is not competent.  Frankly, the Central Authority is pretty good, so I couldn’t strongly suggest going this route.

Cyprus’ declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.

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