Waterfront Dr, Road Town, Tortola. Kevin Stroup via Wikimedia Commons.

We ain’t building rockets here.  But we are building a ship of sorts, and a leaky hull means the cruise ship might not get you to that cabana sheltered rum drink you’ve been craving.  Serving process in the British Virgin Islands is subject to the strictures of the Hague Service Convention, regardless of which U.S. venue* is hearing the matter– in exactly the same way as service in England and Wales.  Still an overseas territory, the United Kingdom has extended the Convention’s coverage to the archipelago.  A critical note, though… that archipelago straddles an international boundary– between the United Kingdom and the United States.  On one side, the BVI, and on the other, the USVI.  Some confusion tends to result when someone calls me to “serve a defendant in the Virgin Islands” and I respond… which Virgin Islands?

If you’re serving in the United States territory, handle it no differently than you would in Puerto Rico or the District of Columbia.

But in the British islands… think Hague methods.

Some background 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 another absolutely critical note: the Hague Service Convention does not confer coercive effect on subpoenas.  Theoretically, you can serve it, but it won’t do much good.

And the nuts & bolts aspect of our show, in case you need to serve a resort or one of the corporations that have set up a figurative (ie: legal) home in the BVI:

Article 5 Service

  • Translate the documents. But the UK’s declaration to Article 5(3) requires that documents be in English, so… game over, right?  Pack up and go home?  Not so fast, counsel… make sure your individual defendant speaks English, because his U.S. Due Process rights follow him, in a sense.  Anybody sued in a U.S. court must be served in a language they understand, so if they don’t speak English, translation is still necessary.
  • 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.
  • Send to the Central Authority.
  • Sit tight. It may take a while—likely several months from submission to return of proof.

Article 10 alternative methods

  • Mail service is available, but it’s a bad idea.
  • Service via private agent (process server) is available to U.S. litigants under Article 10(c). This is absolutely critical—make sure to have the process server instructed by a solicitor, or the attempt to serve is ineffective, as it violates the UK’s position on Article 10.

The UK’s declarations and Central Authority information 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.

* For Canadian litigators, Hague channels are certainly available, but there may be a Commonwealth mechanism that makes the procedure even simpler.

Yeah, cruise ships dock there. A lot. [Prince George Wharf, Nassau Harbor. TampAGS, for AGS Media, via Wikimedia Commons.]
We ain’t building rockets here.  But we are building a ship of sorts, and a leaky hull means the cruise ship might not get you to that cabana sheltered rum drink you’ve been craving.  Serving process in the Bahamas is subject to the strictures of the Hague Service Convention, regardless of which venue is hearing the matter.  No longer an overseas territory of the United Kingdom, the Bahamas adopted an independent constitution in 1968,* and fully implemented the Service Convention thirty years later.  Not even 200 miles off south Florida, the islands get a whole bunch of tourists– and commerce– from the U.S. & Canada, and lawsuits are a natural result.

Some background 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 abroad.  You have to send a Letter Rogatory (the Evidence Convention isn’t in effect in the Bahamas).  Dramatically different from serving a summons or notice.

Now for the nuts & bolts aspect of our show:

Article 5

  • Translation: The Bahamas make no declarations to Article 5(3) of the Hague Service Convention. As a former British Colony, English is the operating language, so game over, right?  Pack up and go home?  Not so fast, counsel… make sure your individual defendant speaks English, because his U.S. Due Process rights follow him, in a sense.  Anybody sued in a U.S. court must be served in a language they understand, so if they don’t speak English, translation is still necessary.
  • 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.
  • Send to the Central Authority, along with the requisite fee.
  • Sit tight. It may take a while—likely three or four months from submission to return of proof.

Article 10

  • The Bahamas do not object to service via Article 10 methods.
  • Mail service is available, but it’s a bad idea anyway.
  • Service via private agent (process server) is available to U.S. litigants under Article 10(b)/10(c).

Central Authority information for the Bahamas and for the other countries in the treaty—can be found here.  Pretty straightforward stuff down there; not a lot of fanfare, if you’re careful and complete the right paperwork.

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.

* Interestingly, the UK didn’t see it that way until five years on, with the “grant” of full independence in 1973, although Queen Elizabeth remains the islands’ sovereign.  Even more interestingly, the Queen’s uncle– who had abdicated, making her father king– was governor of the islands from 1940-45.  Not a bad gig, if you ask me.

Cannon Point, Diego Garcia. Blaine Steinert, via Wikimedia Commons.

Three years before Mauritius gained its independence from the United Kingdom (ie: 1965 and 1968), a chain of tiny islands in the Indian Ocean were separated from the island colony, and still remain under British control five decades later.  On Monday, the International Court of Justice Issued an advisory opinion holding that the UK had illegally separated the archipelago from Mauritius, raising a slew of questions as to the strategic islands’ future.

The history of the case can be found on the ICJ’s website here, with the Opinion itself here, and U.S. Judge Joan Donoghue’s dissent here.

Cold War history buffs will be most familiar with the Chagos Archipelago because of the U.S. military’s lease of the British Airbase on Diego Garcia and the expulsion of native islanders to make way for U.S. personnel in the late 1960s.  The opinion arguably sets the stage for the removal of U.S. and British presence.*

[Hat tip to my friend Tim Lynch, professor of international law at UMKC and former U.S. Navy officer who spent a bit of time on the island, for bringing the opinion to my attention before the New York Times.  Tim characterizes the place as “bliss,” and every picture I’ve seen of it support that assessment.]

* I highly doubt we’ll ever see that come to pass.  After all, the United Kingdom refused to consent to the jurisdiction of the ICJ, and the British don’t take kindly to smaller nations that attempt to kick it off remote islands while a strong-willed female Tory Prime Minister is in office.

Medallion – Signing of The Last WIll and Testament of The Springfield Presbytery @ Cane Ridge Meeting House, Paris, Kentucky. Chris Light, via Wikimedia Commons.

It happens all the time.

I’ll give a lecture or mention what I do at a bar association event, and the colleague I just met will express appreciation for what I do, tell me it’s a really neat niche, and then try to convince himself that our practice areas don’t overlap.  I’m here to tell you that, yes, they do.  But it’s tough to convince highly experienced professionals that something outside their wheelhouse might be a challenge in the not-too-distant future.

The conversation usually goes something like this:

Sorry, Aaron.  I’m an estate planning lawyer. I’ll never need to serve anybody in a foreign country.  But thanks for doing that CLE.  You’re a funny guy.  (Funny how?  I’m a clown?  I amuse you?)  No, I mean I really like how you got that picture of Boromir into your slide deck!

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

Wait a sec, there, pal.  It’s likely that you’ll eventually have to serve abroad someday.  Ever represent a client who wants to contest the Last Will and Testament of an estranged relative?  (Yes.)  How about if that will that leaves the decedent’s prize collection of Elvis Presley memorabilia to his Cousin Seamus in Dublin?  Think someone might have to serve ol’ Seamus?  (Hmmmm.)  Bear with me here…

It doesn’t matter what court is handling the case– estate litigation is still litigation.  And if you need to hale into court an individual heir (or devisee or… whatever the state-specific term is for cousin Seamus) who is outside the United States, you’re going to have to know how to do it the right way.

If you have any sort of adverse party abroad– or even someone whose interest align with your client’s, but who must be served certain notice or pleadings– strict rules must be observed.

Estate litigation is still litigation.

So how do you do that?

It bears repeating.  The Hague Service Convention controls how all this gets done wherever it applies.  It’s a treaty, to which the United States is a party, and which entered into force right about the time my mom graduated from high school.  Thanks to the Supremacy Clause, its strictures trump lesser laws.  A gentle reminder:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.  (Art. VI-2)

(Emphasis mine.)

Serving in Ireland is pretty straightforward.  We prep the documents for service under Article 10(b), send them to my Irish solicitor, and he takes it from there.

The Ha’Penny Bridge, across the River Liffey in Dublin. Odds are, Cousin Seamus walked across this to see Elvis back in the day.
The Peace Palace, den Haag.

Yesterday afternoon, I had the great pleasure of guest lecturing for a friend who teaches international management at the Henry W. Bloch School of Management at UMKC.  The topics we touched on ranged from general knowledge about the dispute resolution process (negotiation, mediation, arbitration, litigation…) to the Foreign Corrupt Practices Act.  A good chunk of my lecture described what I do during within a more broad description of how a lawsuit progresses:  The Hague Service Convention… I live in that treaty.

One student posed an incredibly pertinent question– preceded by the phrase “this is probably a stupid question, but…”

Well, first of all, there’s no such thing, I said.  If something doesn’t make sense, then the lesson is the problem– not your question.

“Okay.  Who is Hague?”

I had to take a beat before answering, because the lesson and the assumptions underlying it were definitely the problem.  I very wrongly assumed that everybody knew what “The Hague” was.  After all, I visited there when I was six years old.  But then, very few people are lucky enough to spend part of their childhood abroad on Uncle Sam’s dime.  I really felt like a jerk.

My answer:  The Hague isn’t a ‘who’– it’s a ‘where’.  A gorgeous little city in the Netherlands, that just happens to be the primary seat of international law.

I went on to describe the International Court of Justice, the Hague Conference on International Law, and the International Criminal Tribunals for Rwanda and the former Yugoslavia.  Somehow the conversation turned to war crimes and international justice, and I was thrilled.  These students were not only highly interested and caring, but pretty knowledgeable to boot.

The feeling that I’d missed something so basic in the lesson was mercifully overcome by a worthwhile and unanticipated discussion.  If these students are any indication, a bit of optimism is in order.

Sleeping Child (circa 1893) by Rosina Emmet Sherwood.

An important term of art arises in Hague analysis, but the definition of the term varies depending on which treaty is being applied, and depending on who is defining it.  Both the Hague Adoption Convention (1993) and the Hague Child Abduction Convention(1980) are in force in the United States.  Both are intended to harmonize disparate legal doctrines in countries with different systems.  And both are intended to provide certainty in the legal protection of children.

In U.S. practice, however, they function quite differently.

The Abduction Convention requires member states to establish procedures for returning a child to his or her country of habitual residence after being removed from that country or wrongfully retained in another country.  Pretty straightforward stuff there– imagine a little girl was born in Korea, but has spent her entire six-year life in Illinois.  Her mother decides to take her back to Korea– and stay there– without her father’s consent.  Korea would be obliged to return the child to the U.S. pursuant to a valid Hague request.  If a German mother sends her son to spend the Christmas holiday with the father in Vermont– but Dad refuses to let him go home to Germany, U.S. authorities should force the boy’s return.  Not a lot of gray area there, although courts occasionally go beyond this straightforward analysis (see here for Fox Rothschild’s excellent criticism of a Third Circuit decision that reached a proper result– but with far too deep an inquiry into best interest).

“Habitual residence” is a pretty straightforward question if plain meaning still carries any weight in statutory construction.  Where does the kid live– or put another way, where does he lay his head each night?  We must read in deeper questions, of course… where did Mom & Dad intend for him to live?  Where has he spent his life?  Has there been a certain event that evidences a change to that location?  Of course, it’s a fact-specific analysis, but the analysis isn’t extraordinarily difficult.

The Adoption Convention uses the same terminology to define what constitutes an “intercountry adoption”.  If a family in Australia seeks to adopt an orphan from Italy, then permission must be sought from the Italian government via a Hague request.  But if the child’s mother emigrates with her to Australia and puts her up for adoption several months later, no such permission is necessary.  The child’s habitual residence changes upon the mother’s entry into Australia, and the Italian Central Authority for the Adoption Convention would rightly scratch its head in wonder, declining to even respond to a Hague request sent by an Australian magistrate.

But that same child is not afforded the same consideration if the mother emigrates to the United States.  U.S. authorities (specifically, the State Department) define habitual residence in a decidedly odd way.  In virtually all cases, the child’s country of habitual residence is deemed to be the child’s country of birth.  A preposterous reading, given the plain meaning of the words.  And that is precisely the way the rest of the world views the United States: preposterous.

In an average state family court, this really isn’t a problematic question.  If a child is in Missouri, and his parents aren’t around to take care of him, he’s under the jurisdiction of Missouri courts– regardless of his national origin or citizenship.  His domicile is Missouri.  As such, if an aunt or uncle or cousin seeks to adopt him, it’s very unlikely that the state would object, and it’s even more unlikely that any of the lawyers involved would invoke the Hague Adoption Convention to slow down the procedure.  Congratulations, new parents, on your new son or daughter.

But when those new parents seek permanent resident status or citizenship for the child, they run into a buzzsaw– a very preposterous buzzsaw.  The Department of Homeland Security (parent organization of the various customs & immigration services) will undoubtedly invoke the Adoption Convention– and the State Department’s incredibly warped definition of habitual residence– to refute the validity of the adoption and, consequently, dash any hope that the child can become an American citizen.

Why is this?  I can only speculate, because the logic put forth in the State Department’s criteria offers little guidance (they say what the criteria are, not why those criteria exist).  But it isn’t hard to reach some very sad conclusions.

State Department photo.

Another “I get this question pretty regularly” post… and the answer is usually pretty good news, in comparison to a parent’s dreaded fear.

The question usually pops up in a listserv or at some bar function, but occasionally in a call from a lawyer who’s stumbled across this blog in a Google search:  “my client’s wife is threatening to leave him and take the kids back to (insert country name here)… what can I do?” 

Well, it depends on where the child is right now.  If she’s here, as indicated in your question, do everything you can to keep her here.  Set aside the threat to take her abroad, and focus on the threat to take her– anywhere.  Know too, though, that if it does happen, the situation may not be as grave as it seems.

In many cases, the inserted country name also happens to be on the list of countries who have implemented the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction— known more commonly as the Hague Child Abduction Convention (HCAC).  While the treaty may not prevent a child being taken out of the country, it aims to provide a streamlined mechanism by which she can be returned home.  So even if the child is taken abroad against the remaining parent’s wishes, the odds are better that she can be returned.  I wrote previously  about the mechanism for return of children once they’ve been abducted– or as the treaty also addresses, taken with permission but not returned as agreed.   That earlier post came about in order to distinguish the Child Abduction Convention from the Hague Service Convention.

In short, I stressed that the way to secure the prompt return of the child is to get local law enforcement to engage HCAC channels, rather than pursuing a custody order in a U.S. court– and enduring all of the procedural delays that such a petition entails.  Instead of treading water while a Hague Service Request is processed, it’s far more effective to raise a HCAC claim.

What I didn’t point out, though, were the preventive measures  necessary to avoid the need for a HCAC claim in the first place.

My first question, when I spoke to the most recent colleague who sought assistance, was “does the kid have a passport?”

If he does, keep it in a secure place– or if the threatening parent has it, notify the police and get them to contact the State Department so the passport can be flagged.

Absent a passport, the threatening parent won’t get very far. Sure, if the child has dual citizenship, a foreign-born (abducting) parent might try to get the other country to issue one, but flags can still be raised with the country’s diplomatic legation and U.S. law enforcement.  Again, if there’s a credible threat of abduction, make a stink about it.  Make noise.  Put both countries’ authorities on notice in the most vocal way possible.

Above all else, petition the local court for a custody order immediately, with whatever form of injunctive relief is available in that jurisdiction, and serve the action before the other parent leaves the U.S., with or without the child.  The more clear the court’s intent, the easier it will be later to demonstrate an abductor’s wrong-doing to foreign authorities.

Ministry of the Interior, Havana. Evaronalotti, via Wikimedia Commons.

With all the fanfare this month over the government shutdown and the Kansas City Chiefs’ coin-toss defeat in the AFC Championship, a little-noticed story out of the Trump Administration could prompt a tsunami of litigation (yeah, I’ve wanted to use that expression for a while now) against offshore companies doing business with Cuba.  I withhold comment here about the broader ramifications of such suits,* but an important element of the puzzle lies squarely within my wheelhouse, and it bears discussion.

Title III of the Helms-Burton Act (HBA) allows U.S. litigants whose Cuban property was expropriated following the 1959 Revolution– for the most part native Cubans who’ve emigrated north– to sue entities who have profited from that expropriated property.  An example: let’s say “Autohersteller GmbH“, a fictional German carmaker, wants to develop a parts plant outside Havana, and the Cuban state grants a 99-year lease to the land on which they build it.  Prior to 1959, the plot of land was owned by a group of citizens loyal to President Fulgencio Batista; after his overthrow, the Castro government seized the land and title thereto.

Sixty years later, those citizens and their kids now live in Fort Lauderdale, and if the Trump Administration reverses a quarter-century of waivers, they’ll be marching into the United States District Court for the Southern District of Florida and filing suit.  Not against the Cuban government– there’s no realistic mechanism for that.**

Instead, they’ll be suing Autohersteller GmbH for damages under Helms-Burton.  Again, set aside any discussion of the practical impacts of the statute; but recognize that the only proper way to serve that company in Germany is by filing a Hague Service Request.  That HBA establishes a cause of action (and, necessarily, jurisdiction) but does not override the procedural rules applicable to serving overseas defendants.  It does not supersede the mandatory and exclusive nature of the Hague Service Convention.  And it does not dispense with the defendants’ due process right to proper notice.

Plaintiffs, do it the right way, and remove at least one obstacle to an eventual verdict.

* Just Google “Helms-Burton III” to see much debate on the issue.  It’s a doozy.

** Cuba is not party to the Hague Service Convention, and it’s highly doubtful that Cuban courts would entertain Letters Rogatory in such a case anyway.

Of all the impactful moments I’ve experienced on overseas CLE programs, one stands out above the rest.  Our group of American lawyers was given a special tour of the Supreme Court of the United Kingdom (yes, they’ve had one for nearly ten years).  We had visited the main courtroom– complete with an invitation to sit in the justices’ chairs– the Privy Council Chamber, the court’s suite of offices… and then, they offered to show us the law library.  Even in the modern age, what with our easy access to millions of texts at our fingertips, it seems like all lawyers enjoy the atmosphere of a library, so it wasn’t a hard sell to get us to follow.

In front of us, inscribed in backlit glass, were some of the great maxims of the law.  From Cicero, Plato, Aristotle, and St. Paul, even Disraeli.  Prominent among them, though, was this, in part:

Moreover, I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial “outside agitator” idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.

At the heart of Westminster, within the seat of Britain’s judicial authority, and just yards from the oldest legislative house on Earth, was Dr. King.  It was– in the very literal sense– breathtaking.  Here was quoted not only an American, but an American prisoner who conveyed his thoughts from an Alabama jail cell, his words the very first thing British justices see when they enter to study.  The magnitude of this cannot be overstated.

This must be our creed, not only as Americans but as members of the wider human polity.  We have to recognize that inescapable network of mutuality, lest our whole garment of destiny unravel.

One of the odd quirks about serving an offshore defendant is the very routine possibility that plaintiff’s counsel could be contacted by the defense before a foreign authority notifies anyone that service has even been effected.   A hypo, to illustrate…

Dieter from Düsseldorf signs a contract with Pete from Peoria to supply Pete’s company with machine parts.  Everybody knows that German manufacturers are incredibly efficient– while their machine parts are of outstanding quality– and Pete is thrilled to have a well-coordinated supply chain.  The parts come as scheduled for about six months, when all of a sudden, bupkiss.  Nothing.  Nichts.  Dieter doesn’t answer the phone, he ignores Pete’s frantic emails (DUDE, WHERE IN THE HELL ARE MY PARTS?!), and Pete has to furlough his entire workforce until an alternate supplier can be found.  The obvious result, given Dieter’s recalcitrance?  A lawsuit.

Pete’s lawyer, Larry, needs to serve the summons & complaint for damages on Dieter in Germany.  He hires me to assist, and we send a properly formatted Hague Request to the Central Authority for Nordrhein-Westfalen.  It arrives on the 8th of January, and the good folks at the Oberlandesgerichts Düsseldorf have service effected about a month later.  On February 14th, Pete’s lawyer gets a curious email from a colleague, indicating that she represents Dieter and would like an extension of the deadline to answer.

Sure, Larry says.  But… hang on a second.

My phone rings, and Larry asks if I can shoot him a copy of the proof of service on Dieter.

Nope, I reply.  Haven’t gotten it yet.

Larry is justifiably perplexed, and Dieter’s lawyer thinks she’s got an advantage.  [Gee, Larry, you don’t even know your defendant’s been served?]

Well, no.  He doesn’t.  He has no way of knowing because the Central Autority hasn’t told anybody.  And this is perfectly normal, especially if the defendant is in China or Mexico or India (my trifecta of “this’ll take a while” countries).

The timeline:

  • January 8– request arrives at the Central Authority
  • February 8– service is effected
  • February 14– opposing counsel contacts Larry
  • March 11– a completed Hague Certificate lands in my mailbox
  • An hour later– Larry has a PDF of the Certificate to file with the forum court

That sequence of events happens all the time, and it has no bearing on the effective date of service or the deadline by which a defendant must answer.

It also doesn’t subject the plaintiff to dismissal if the proof takes several weeks or months to come back from the Authority.*  Rule 4(l)(3) is a nice safe harbor in this regard: “Failure to prove service does not affect the validity of service.” What seems to be a delicate situation really isn’t.  Any time a plaintiff has to rely on the caprices and inefficiencies of a foreign bureaucracy, courts have to give them latitude (thus my affection for FRCP 4 and its recognition of Hague realities).

The takeaway from all this:  relax.  Proof is coming.

* I filed a request in India in September, 2017.  The papers were served in November– a mere two months on, which is surprisingly quick in India.  But the Certificate arrived over Labor Day weekend.  That’s in September, for the uninitiated.  A full ten months elapsed before the plaintiff could prove that the defendant had been served.