TL;DR… be patient. It’s a process.

Several years ago, I published a pair of posts that are even more important to keep in mind now, in a post-pandemic world:

The spring of 2019 seems like a decade ago when you “carry the Covid”. But the point I tried to make in those posts is even more critical today. Regardless of who sits in the big chair at 1600 Pennsylvania Avenue, the United States continues to withdraw its leadership in the world and, correspondingly, its global security guarantees. This means we’re consciously abandoning many of our prior claims that we can tell everybody else what to do.

So how is that relevant to what I do? Well…

One of my favorite clients referred a colleague to me recently. The colleague engaged us to serve a defendant in Notamerica,* a jurisdiction that allows private service under certain conditions. The primary of those conditions: the Republic of Notamerica determines precisely who can serve, and how those people can serve, within its borders. We can’t hire just anybody to do the job. Notamerica is particularly straightforward and relatively easy in the Hague Service world, but things have to be done just so.

Now, any time a client sends someone my way, I try just a skosh harder to be gentle with reality checks. It’s not just my reputation on the line, but the reputation of the person who thinks highly enough of me to send me business.

When I told the new colleague that it would take a couple of weeks to get the job done, he was incensed. The plaintiff was barking at him to get the litigation underway, so he barked at me to get it done faster. He just couldn’t fathom that service couldn’t be done RIGHT DAMN NOW and insisted that I make it happen.

Sorry, replied I. It just doesn’t work that way. Quoting Archbishop Gilday from The Godfather Part III, I said… we have rules– we have very old rules.

Chief among those very old rules is one that American lawyers must internalize:

We do not call the shots over there.

Wherever “over there” is.

Colleagues, you can only properly advise your client when they go after an overseas defendant if you have the right mindset first (it also becomes much easier to manage expectations). And when you’re dealing with treaty doctrines and offshore procedural rules, that means setting aside any assumption that U.S. standards or expectations apply. A tough pill to swallow for a nation that (1) beat the Nazis, (2) beat the Empire of Japan, (3) established the Bretton Woods Order and the seven-odd decades of relative peace and prosperity that flowed from it, and (4) brought down the Soviet Union without killing a whole bunch of Soviets.

The reality is that we do not call the shots in Ireland or New South Wales or Ontario. And those are places run by people who actually like us. We also don’t call the shots in Guangdong or Anatolia or Caracas, where they definitely don’t like us.

When we American lawyers are more cognizant of how things work overseas, and accepting of the fact that we aren’t in charge, litigating across borders suddenly become a lot less frustrating.

That still doesn’t mean it’s easy, but it’s less frustrating.

* Notamerica is a fictional place, used here to protect the innocent among the practicing bar. Don’t be silly.

For starters, it’s officially been simply Czechia since 2016 (see here). Peggy and I were just there a couple of weeks ago, and even the Czechs still call it the Czech Republic and Czechia interchangeably; admittedly, so do I. What they don’t call it anymore: Czechoslovakia– that nation ceased to exist three decades ago, and frankly, was a made up concept anyway.

Service of process in Czechia is subject to the strictures of the Hague Service Convention.  This holds true regardless of which U.S. or Canadian venue is hearing the matter.  You’ve got three ways to get it done:

  1. Tap us on the shoulder for bespoke attention—and probably some amusing commentary to boot (see the upper right if you’re on a desktop, or way down below if you’re on a phone/tablet),
  2. Cruise over to the Hague Envoy platform at USM94.com to automate the completion of your forms in perhaps twenty minutes or so, or
  3. If you’re feeling froggy & would like to handle the whole thing yourself, keep reading.  This lays out the framework you’ll need.

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

Here’s how it’s done in the Czech Republic:

Article 5 Service

Article 10 alternative methods

  • Czechia objects to Article 10 in its entirety, so its alternatives are simply off the table.

Seriously—that’s all there is to it.  The method is straightforward and simple.  Czechia’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.  [That actually happened once, with a defendant in Norway, and her lawyers were smart enough to fight the issue.  The Washington Court of Appeals erroneously thought going outside the Central Authority was okay, but their Supreme Court saw the matter differently.]

If you have a chance to visit Prague, I highly recommend it. Simply a wonderful city with wonderful people and scenery, not to mention a very colorful history.

US dollar banknotes
engin akyurt, Unsplash

The Dutch– an exceedingly practical and direct people– have a saying: Goedkoop is Duurkoop. Cheap is expensive. We of the anglophone persuasion have a variation on that theme: you get what you pay for.

But the Dutch version captures reality far more forcefully. Cheap is expensive is an apt way of articulating the constant tension between price and value. That tension pops up its head in everyday household shopping, high-stakes litigation, and everything in between.

Plaintiffs’ lawyers seeking to serve defendants abroad have myriad choices in how to go about getting the job done:

  • They can DIY that thing (I don’t recommend it).
  • They can call their usual process server (occasionally a good idea, frequently a bad idea).
  • They can use a document automation system to fill out the right forms in the right way (shameless plug right here). A sort of “assisted do-it-yourself” option.
  • Or they can hire one of the few lawyers who handle overseas service on a regular basis (wink, wink).

All of those options bring different costs to the party, but choosing the right way necessarily includes a price versus value analysis. I can tell you categorically that my firm will not offer you the lowest price tag. And no, we aren’t K-Mart,* so we don’t price match. I don’t say that out of hubris– I say it because price matching presumes like-for-like, mass produced, fungible goods. That’s not what we provide. [It’s not what translators provide either, but that’s the subject of a different post.]

If you’re a beer guy, you know that Heileman’s Old Style cans cost a third of what a local craft brew costs. If you’re mowing the lawn on a hot Saturday afternoon, Old Style does you just fine (I actually prefer it). But if you’re gathering around a green felt table for a game of cards with some law school buddies later that evening, you want something better (I highly recommend Kansas City’s own Boulevard Pale Ale, but that’s just me). The value proposition is key.

Flying to Seattle for a meeting with a client? Sure, you could fly a bargain airline for $99, but they’ll nickel & dime you for everything from carry-on space to emergency oxygen in case of sudden depressurization. For $299 on one of the Big Three, you get an actual seat belt, a real safety briefing, and if you’re kind to the gate agent, maybe a free checked bag. Even on the same plane, you can plunk down an extra fifty bucks for a bit more legroom (I’m 6’4″ and have to do that anyway) and a bigger cookie at snack time. Again, value versus price tag, based on your needs and resources.

Litigation is no different, really. You don’t want to hire the cheapest expert witness, do you? You don’t want to skimp on printing & binding for your appellate filing (I found that one out the hard way early in my career). And you don’t staff your firm with underqualified people because you can pay them less than you would pay an experienced crew. Those are all critical elements of a litigation practice, and value trumps price tag.

Ultimately, this isn’t something to shop around for, anymore than a litigant shopping around and choosing a law firm whose hourly fee is lower than the firm down the hall.  They choose you (I hope!) because you could provide competent counsel and litigate vigorously on their behalf. 

So why leave your overseas complexities to the low bidder? Or worse, why try to do it yourself? Truly, it may end up costing you more than you think.

Above all– don’t cheap out. Spend the extra money on address investigation in China. Pay a proper translation provider to handle your linguistic work. And for Kresge’s sake, don’t try to serve by email when you know darn good and well where your defendant is located.

Goedkoop is Duurkoop.

* Anybody else miss K-Mart? Blue Light Specials were awesome back in the 1970s, and in the 1990s, K-Mart Store #4465 gave me a great place to work as a college student.

This was long before I was in college.
scrabble, scrabble pieces, lettering, letters, wood, scrabble tiles, white background, words, quote, letters, type, typography, design, layout, focus, bokeh, blur, photography, images, image, puzzle, missing letter, blank, blank tile, z, zee, substitute,
Brett Jordan, Unsplash

At least once a month, one of my clients will say “we have a translator that we work with– they take care of us pretty well.” That sets my teeth on edge, because extraordinarily ugly things can result, especially if the translator is merely the lowest bidder but lacks specific legal expertise.

On occasion, the provider is fortuitously somebody I already work with myself, so I’m not concerned. I’m even encouraged– and I’ve even been introduced to some highly qualified providers by such clients.

But less seldom, the client will say they want to handle the translation in-house. That’s a bit like a plumbing company saying they want to handle their own taxes. Disaster usually awaits.

The top variations… with my responses:

  • “Well, we have an Italian lawyer on staff– she can do the translation.” Why in the heck would you waste a lawyer’s time on translation? Lawyers cost more per hour and we’re less efficient at linguistic work than actual, professional linguists.*
  • “My assistant is from Juarez, and she speaks fluent Spanish.” That’s all fine and good, but is she trained in translation? More importantly, does her bilingual fluency also apply to legal vocabulary?
  • “Our mailroom clerk, Timmy,** spent a semester in Paris, so we’re just going to have him do it.” Wow. Do you let him draft your pleadings because he took the LSAT once?
  • “Oh, we’ll just use Google Translate. That should be fine.” Well, thanks for calling, but you should find somebody else to help you because it ain’t gonna be me. Oh, and call your malpractice carrier, because you’re way too fond of shortcuts.

Of course, I understand the budgetary pressures that litigants put on law firms, but translation is a critical piece of the Hague Service Convention puzzle. It should be done by a reputable, professional provider that is not only qualified in the linguistic field, but specifically well versed in legal translation. All those Latin terms of art like res ipsa loquitur and respondeat superior and sua sponte might easily translate into French or Italian, but how about Korean or Lithuanian? Even at that, “vicarious liability” and “joint & several” and “third-party” aren’t even familiar to most English speakers. How could they be familiar to a random translator?

This isn’t something to cheap out on, and it’s the surest way to prompt rejection of your request by foreign authorities. Just don’t.

* A few months ago, I hired a Brazilian attorney to fill a paralegal position until she gets her U.S. license. She’s awesome. Yes, she speaks fluent Portuguese. Yes, she has a professional grasp of legal terminology in both languages. But I would be wasting her talents and our firm’s resources to have her translate the documents we send to Brazil and Portugal (and occasionally Macao!).

** I was Timmy at one time, for the record. Only it wasn’t Paris. It was Caen, Normandy. I hold a Diplôme d’études françaises– “mention passable” (Diploma of French Studies– “woefully mediocre performance”). Along with five bucks at my local Roasterie, that will get me a cup of coffee. It doesn’t mean I’m qualified to translate legal documents.

At long last, the 1965 Hague Service Convention has entered into force in El Salvador. As of today, October 1, 2024, service there is subject to the strictures of the Convention, regardless of which U.S. or Canadian venue is hearing the matter.

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 pertain to subpoenas.  Repeat after me—you can’t just SERVE a subpoena abroad. You’ll need a Hague Evidence Convention Request to ask a Salvadoran court to compel production– dramatically different from serving a summons or notice.

Here’s how service is done in El Salvador…

In my estimation, there’s really only one practical avenue to service: Article 5.

Article 5 Service

  • Translate the documents. A Spanish translation is mandated by El Salvador’s declaration to Article 5(3). Don’t omit it, simple as that– even if your defendant grew up in North Dakota and graduated from Yale.
  • 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, perhaps even a year, from submission to return of proof.  The judge is just going to have to accept that fact, because there is no realistic alternative.

Article 10 alternative methods

  • Article 10(a) may or may not be available– we don’t know because no position on the option has been indicated.  But even if mail is legally valid, it’s still a bad idea.
  • Article 10(b) & 10(c) amount to nothing, because if the Salvadoran authorities haven’t declared whether they’re opposed or not, they also haven’t declared who is a “competent person.”

Seriously—that’s all there is to it in El Salvador, but don’t get excited.  Sure, the method is straightforward and simple, but actually making it happen could be anything but easy.  Most countries take a while to set out a workable procedure when the join the Convention, so we may not know how El Salvador does things for quite some time.  

Bonus practice tip #1: if the idea is strategically sound, ask the defendant to waive service.  Note that I didn’t say accept— I said waive.  There’s a very important difference.

Bonus practice tip #2: if you’re defense counsel, always question the validity of service effected on your overseas client.  The plaintiff may not have done it correctly

At long last, the 1965 Hague Service Convention has entered into force in the Dominican Republic (DR). As of today, October 1, 2024, service there is subject to the strictures of the Convention, regardless of which U.S. or Canadian venue is hearing the matter.

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 pertain to subpoenas.  Repeat after me—you can’t just SERVE a subpoena abroad. You’ll need a Letter Rogatory to ask a Dominican court to compel production– dramatically different from serving a summons or notice.

Here’s how service is done in the DR…

In my estimation, there’s really only one practical avenue to service: Article 5.

Article 5 Service

  • Translate the documents. Just do it. It’s required. I’d also wager that it’s just like the rest of Latin America, in that they’d appreciate having your request completed in Spanish. There’s no such requirement indicated, but it’s still a good idea.
  • 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, perhaps even a year, from submission to return of proof.  The judge is just going to have to accept that fact, because there is no realistic alternative.

Article 10 alternative methods

  • Article 10(a) may or may not be available– we don’t know because no position on the option has been indicated.  But even if mail is legally valid, it’s still a bad idea.
  • Article 10(b) & 10(c) amount to nothing, because if the Dominican authorities haven’t declared whether they’re opposed or not, they also haven’t declared who is a “competent person.”

Seriously—that’s all there is to it in the DR, but don’t get excited.  Sure, the method is straightforward and simple, but actually making it happen could be anything but easy.  Most countries take a while to set out a workable procedure when the join the Convention, so we may not know how the DR does things for quite some time.  

Bonus practice tip #1: if the idea is strategically sound, ask the defendant to waive service.  Note that I didn’t say accept— I said waive.  There’s a very important difference.

Bonus practice tip #2: if you’re defense counsel, always question the validity of service effected on your overseas client.  The plaintiff may not have done it correctly.

squirrel with nut
Dušan veverkolog, Unsplash

Our firm routinely handles service in complex cases involving multiple defendants in multiple countries, nearly always pursuant to the Hague Service Convention. In many of those cases, two or three (or even more) defendants are domiciled at the same address– especially in cases involving several subsidiaries of global conglomerates. One would think that should produce some economies of scale, and in jurisdictions where a private method of service is available pursuant to Article 10(b), that’s usually the case. If my overseas process servers or bailiffs can tag multiple defendants in a single trip, they charge me less, and I pass those savings right along to my litigator clients. And even in what I term “Five-O countries,” where service can Only be effected pursuant to Article 5, we can rein in costs a bit thanks to commonality of the paperwork involved. Having the defendants served at the same address really doesn’t factor into it.

One would also think that, if we have multiple defendants to serve at the same address, they’re going to be served at the same time by the same official, who will generate proofs simultaneously and transmit them back to me in the same envelope.

Except, no. That’s not how bureaucracies work. Sure, it occasionally happens, if every single official in the chain of custody is on the ball. Even a blind squirrel finds a nut once in a while. A broken clock is right twice a day. You get the idea.

More often than not, when my requests land on an official’s desk in Berlin or Seoul or New Delhi, they’re going to get separated and eventually sent to different judicial officers for service. And if Deurwaarder Dave is having an awesome day but Deurwaarder Doug had a nasty fight with his wife at breakfast, they’re probably going to get done at markedly different times. Early last February, I got proof on a request that I’d filed in Korea in September… it had been served in late October. Quick turnaround in my experience.

The one I sent with it? Served at the end of December. Two months after the first one. The Requests arrived in Seoul in the very same FedEx envelope, and the defendants were both housed on their parent company’s corporate campus. Yet they were served two months apart.

This is not to grouse, but to illustrate a little quirk of bureaucracies generally, and Hague Article 5 Service specifically. It’s perfectly normal, and not at all surprising.

Sarah Justine Welty @wafflecrisp
Taylor Brandon, Unsplash

Shortly after I hung out my shingle, I posted that defense counsel should always question the validity of Hague Service. Why?

Conversely, I’ve also posted that we know what we’re doing over here. Yes, defense counsel, I said you should question the validity of Hague Service Requests… but don’t be silly about it.  If a complete analysis tells you it’s valid, file an appearance and let it go.  Don’t make questionable arguments that have no merit. The simple fact is, your client has notice of the pendency of the claim and your client has an opportunity to be heard. That means the plaintiff’s Mullane obligations have been fulfilled.

Lately, lots of defense attorneys have grasped at straws to try to make cases go away– cases that we’ve had served pursuant to both Article 5 and Article 10(b) of the Hague Service Convention.

For Article 5 situations

… the argument usually goes something like this: “this wasn’t served according to German law so the case should be dismissed.” The thing is, a German court issued a Hague Certificate saying it was served according to German law, and if the foreign government says it’s served… it’s served.  Game over, kids.  A U.S. court isn’t competent to go behind the Certificate to reach a conclusion of German law contrary to a conclusion by the German judiciary. For crying out loud– Kentucky can’t say Tennessee gets Tennessee law wrong… how can a U.S. court say Germany gets German law wrong?! *

For Article 10(b) serves

…the defense sometimes tries to say the only valid way to serve is through a Central Authority. While that’s correct in China or Mexico or Switzerland, it’s patently false in Ireland, Ontario, Bermuda, etc. And the proof documentation we provide for those 10(b) jurisdictions lays out the doctrine under which the defendant is served. That doctrine is usually where the defense directs its fire.

  • You didn’t serve correctly under FRCP 4(f)(1). [Right. We didn’t. But we did serve correctly under 4(f)(2)(A): “as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction.”]
  • You didn’t serve an officer or director like it says in Ontario Rule 16.02(1)(c). [Right. We didn’t. We did serve the receptionist who wouldn’t bother to pick up the phone and call somebody– and who was clearly in control of the place. Just like 16.02(1)(c) says.]
  • You didn’t translate the documents into Flemish. [Right. We didn’t. And we don’t have to. Your client is clearly competent in English, and the Belgians don’t require translation. Nor do the Dutch, the Danes,** the francophone Canadian province of Québec…]

Historically, incorrect arguments have been exceedingly rare, but for some reason lately, defense attorneys have ramped up their attacks on what we do. That’s bothersome but understandable– in a hyper-agitated world, combative litigators try everything they can to protect their clients. But if their incorrect arguments aren’t called out… big problems.

More bothersome is the plaintiff’s lawyer who won’t fight back. Who won’t respond to B.S. arguments by calling them B.S. arguments. Y’all, you’ve gotta cowboy up on this stuff. You have to make the argument. Bring a little Rip Wheeler to the party (my wife says to cowgirl up and bring some Beth Dutton to the party, and she’s right).

Don’t just accept what the more aggressive lawyer says. I can arm you with the logic you need, but you have to make the fight.

* Interestingly, a German court recently spit back a series of Hague requests that I’d sent for service on Bayer, the parent company and co-defendant of Monsanto, which is headquartered in my home state of Missouri. The German court said that, because Missouri is a split recovery state, the cases being heard in a different (non-split recovery!) state entirely might mean damages go to the state instead of the plaintiff. That, they said, yanked the cases out of the “civil” realm to which the Hague Service Convention applies. A German court reaching a completely incorrect conclusion of U.S. law.

** Denmark doesn’t require translation. The Danes do require their serving officers to tell defendants they can reject untranslated docs. A bit odd compared to the rest of the continent.

Kilchurn Castle, Scotland
Connor Mollison, Unsplash

Whenever I receive a Hague Service Certificate from a foreign authority, I pass it along to my client with a few pieces of advice– all sketched out in various blog posts.  This is merely a consolidation of a few things to keep in mind on the back end of Hague service…

Questions?  Give a shout.  We’re happy to elaborate any time.

Amazon delivery box with gifts in front of a Christmas tree.
Wicked Monday, Unsplash

Just getting the address right is only half the battle, y’all.

A huge hat tip to my friend and fellow law blogger, Ted Folkman, for his Case of the Day post last week about Peanuts Worldwide v. The Partnerships and Unincorporated Associations Identified on Schedule A (N.D. Ill. 1:23-cv-02965).* He very deftly connected the dots between a real, nuts & bolts case and an issue we both rant about, frequently and loudly. I like to think I bring just the right amount (ie: lots) of sardonic humor to my writing, but Ted is the master of the subtle, having penned a pitch-perfect haiku several years ago to illustrate that service by email is just plain wrong in light of the Hague Service Convention perspective.

Limited methods.
Email is not on the list.
The plaintiff’s sad tears.

The only possible way that electronic service flies in a Hague airspace is if it is (1) considered a postal channel, which is a tenuous conclusion, and (2) the destination country doesn’t object to Article 10(a)’s permissiveness toward postal channels. The bottom line of Ted’s Charlie Brown post was that electronic service is a no-no when the defendant’s address is known to the plaintiff (and it’s in a country that objects to 10(b)). He didn’t come right out and say the judge bungled it, but I will. The Peanuts court was– and every other court that holds similarly is– dead wrong in green-lighting electronic service merely because “the Hague Service Convention doesn’t prohibit it.”

Sure, it doesn’t explicitly or specifically prohibit it, but that’s because email didn’t exist outside the minds of a bunch of scientists at DARPA when the thing was written (1965). The Convention doesn’t prohibit service by carrier pigeon or smoke signals or message-in-a-bottle either, but whatever… In holding that the Convention’s silence as to email service validates it, numerous courts bizarrely and consciously disregard no less an authority than the late Sandra Day O’Connor.

Unbelievably, writes the judge in Peanuts, “(s)imply put, the Court has never held that the Convention prohibits email—or that its listed means of service must be treated as exclusive.”

Except, yeah, the Court did precisely that in Volkswagen v. Schlunk (at 706)!

Those who eschew its procedures risk discovering that the forum’s internal law required transmittal of documents for service abroad, and that the Convention therefore provided the exclusive means of valid service.

Irony of ironies– many of the judges in these cases, including Peanuts, cite Schlunk on background issues, but seemingly don’t read the whole case. It’s truly baffling.

But there’s an even bigger problem with the whole question of suing these online merchants: with only one or two exceptions, the “Partnerships and Unincorporated Associations Identified on Schedule A” aren’t actually identified! If a defendant’s true identity can be pinpointed, the odds skyrocket that its address can be found and, ultimately, that it can be served via Hague channels. But most of these are just impossible as they exist. Here are just a few of the targets on the docket sheet, I would assume drawn directly from their showcases on Amazon or Walmart or AliBaba:

  • Electrician Guy (huh?)
  • Riccu1000 Store
  • Shop1102298440 Store
  • TongLing Metal Tin Store
  • W-AKL Store
  • Wholesale Small items Store
  • A3ASBOPFT71WGM (what?)
  • Nice To Meet You Plush Store
  • Pretty Girls biubiubiu Store (really?!)

None of them show the hallmarks of an actual Chinese company (one of which is the word “Company” or “Co.”). All of these are 99.44% guaranteed to result in Hague failure. They’re just not identified in a way that will get them past the Chinese gatekeepers– and believe me, those gate keepers scrutinize everything.

The Peanuts court spent a fair amount of time chastising the plaintiffs for knowing where “Electrician Guy” is located, but ultimately said e-service was okay anyway. But whatever– I’m suddenly transported back to my law school Corporations class (my alma mater did things right and called it Biz Org, but many don’t), and one of my favorite professors, Big Tony. Big Tony pounded into our brains that if you don’t properly name your defendant, you don’t have a case. That’s been holy writ in the litigation world since Blackstone was a 1L. Don’t call your defendant Dennis when her name is really Denise. Don’t sue Budweiser when Anheuser-Busch is the actual entity at fault (allegedly). Don’t call it a corporation when it’s really an LLC.

In these Amazon/Walmart/AliBaba cases involving Chinese sellers of copyright- or patent-infringing goods– and they’re almost universally cases involving Chinese sellers– it’s critical to recognize that getting a solid address is only half the battle. In my recent post, “Chinese company names, flawed addresses, and the high likelihood of Hague Service failure“, I hit on both sides of a potentially ugly coin. See, the most frequent basis we see for failed Hague requests to China is this:

No such defendant at the address provided.

More than just a tad ambiguous, that. Do we have an incorrectly named defendant? Do we have a bad address? Did we whiff both questions? We’ll never know.

In that “failure” post, I quoted another friend and fellow law blogger, Dan Harris, over at the China Law Blog:**

  • In China, only the Chinese language name has any legal status; as a legal matter, the English is not relevant. This means you can use any English language name you want.

So if you just indicate “Pretty Girls biubiubiu Store” as your defendant in a Hague Service Request, the address is going to be pretty inconsequential. I’m not saying Pretty Girls biubiubiu Store doesn’t actually exist on AliExpress– it unquestionably does (AliExpress is the consumer side of AliBaba). I am saying that you have to dig deeper to find out just who is behind that store. If you don’t, you can forget about effecting valid Hague service.

So here’s the roadmap.

If Amazon/Walmart/AliBaba won’t (or can’t***) tell you, we can investigate the seller. One of three outcomes results:

  1. We successfully identify and locate a different defendant name, so you amend your pleadings, then we translate and initiate Hague Service.
  2. We confirm the name and address you already have, so no amendment is necessary– we just translate everything and initiate Hague Service.
  3. We can’t find any discernible entity or individual behind the goofy seller name, but the diligence you’ve spent provides a solid foundation for a 4(f)(3) motion (electronic service is okay in such an instance because the Hague Service Convention doesn’t apply!) and a takedown order forcing Amazon/Walmart/AliBaba to stop providing a conduit for the infringing goods. And isn’t that the real goal anyway?

Seriously. That distills it all down. None of this is cheap, but a little homework at the beginning goes a very, very long way.

* If you subscribe to this blog and not to Letters Blogatory, repent and correct your wicked, sinnin’ ways, friend.

** If you don’t subscribe to the China Law Blog, ibidum.

*** Seems to me that the online marketplace is part of the problem in such an instance. Full disclosure: I’m a loyal, usually quite happy Amazon customer, and I’m afraid to tally up just how much I’ve spent just loading up my Kindle over the past few years. Never mind the actual merchandise or my Amazon Prime credit card.