Over the past decade I’ve submitted dozens– if not hundreds– of Hague Service Requests to the People’s Republic of China. It takes quite a while for proof of service (or failure) to come back, usually many months but sometimes as long as two years. That’s not a typo, and it’s incredibly frustrating for U.S. and Canadian litigators. The frustration doubles when a request fails after so much time has passed, and it doubles again when we see this reason for failure:

No such defendant at the address provided.

Harumpf. Harumpf harumpf. I mean a Mel Brooks-style harumpf harumpf.

Pretty ambiguous, that statement. Did we not properly name our defendant? Do we have a bad address? Did we strike out on both?

Every single time clients ask me to have a Chinese company served, I recommend that they undertake– at additional cost, of course– some research to look into that company and make sure it’s properly named and located. Just like we’d do with a corporate defendant here in North America.

Every. Single. Time.

When a client declines to avail her/himself of a little advance intelligence, the odds of failure literally skyrocket. To be sure, the investigation is no guarantee that service will be executed– it takes so long to get the thing pushed through the system that defendants often move before local officials get around to serving. We’re always dealing with the caprices of local officials who may not be entirely honest or motivated, or a judicial officer who might simply be in a bad mood because he had a fight with his wife at breakfast. There are about 137 variables that can throw the train off the tracks, an incorrect or incomplete address being just one. And this doesn’t apply solely to China– it’s the same calculus anywhere we rely on officials to effect service.

But a little homework at the beginning eliminates the single biggest problem in China.

The big questions surrounding that homework…

What?

What’s necessary? Nothing truly onerous. Just a reasonable inquiry into the defendant, to make sure you’re doing everything you can to serve successfully, hale the defendant into court, and make your client whole.

Why?

Why be so persnickety about this? Well, Big Tony (my 2L Business Organizations professor in law school) hammered into us on Day 1 that, if you’re going to sue an entity, you’d better name it properly, or your cause of action is dead before it leaves the starting gate.

That’s a vital, but not incredibly tricky, question in China. Chinese companies have to follow a recipe when they set up shop and paint a name on the door. Writes my friend and fellow global legal tour guide, Dan Harris, over at the China Law Blog about setting up a WFOE (Wholly Foreign-Owned Enterprise):

  • 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.
  • Chinese company names follow this rigid structure: [City of formation] Company Name [business type] [Company Ltd.]
  • So, an English equivalent of a typical Chinese company name would be: Shenzhen ABC Consulting Co. Ltd.
  • The elements in [] square brackets are fixed by the local government. This means the only thing we need determine now is the Company Name. Since as you can see, company names can get rather long, it is usually best to limit the Company Name part to 3 or 4 Chinese characters at most.

For the record, Dan’s outline tracks with everybody else out there who writes about corporate naming conventions in the PRC. Take this to the bank, and recognize that, if your defendant’s trade name is “Chairman Mao’s Widgets” you can be assured of failure if that’s the name you slap on your summons and Hague Request.** Chairman Mao’s Widgets might be the name the company holds forth to the world in English, but the legal Chinese name literally translates to Shanghai Mao Rocks Widget Manufacturing Co. Ltd.

Sometimes the name starts in English but gets translated very poorly (ie: phonetically, Pidgin) into Chinese. As Dan stressed, a company can use any English name it wants, but the Chinese name is the only legally relevant moniker.

(To be sure, the necessity of an accurate name applies to individual defendants as well– but they’re a lot harder to track down absent a listing in a corporate filing or high internet profile. You can bet a request to serve Dave Xiaoping is going nowhere when his real name is Deng Xiaoping.***)

When?

When should it be done? The best time to undertake the investigation is before the suit is even filed. It saves a huge hassle to pinpoint the name in the first place, because you still have that single bite at the amendment apple that doesn’t need justification with the court. But if you’re already filed, you still absolutely must have the correction made before translation and before you send the Hague Request to Beijing. At that point, it’s all over but the shouting. There are no requests to amend over there. No mulligans, no do-overs. no take-backs.

You’re back to square one, starting over with a whole new Request and the additional costs that entails.

Who?

Hire a reputable, professional investigator in China. Yes, they have them, on the mainland and in Hong Kong. Don’t just call your usual guy that skip traces U.S. defendants for you, because it’s just not the same undertaking. And if your usual guy doesn’t speak and read simplified Chinese, well, how accurate do you think his result is going to be?

If an actual Chinese investigator provides the name and address of your defendant, it may differ from an SEC filing or Bill of Lading, but those documents don’t necessarily identify the proper address for service. That gets to the next question…

Where?

“Where?” is the most important question in serving any defendant– not just in China, but anywhere, at home or abroad. The single, most important piece of information in serving a properly identified defendant is his/her/its location.  Without the “where,” nothing else matters

The research we do at the outset gives us not only an accurate name and correct address for a Hague Service Request– it also gives us ammunition for alternative service in the rare instance that a Request fails. I once worked a case where my client (plaintiff’s counsel) took my advice and paid for an inquiry into the company defendant. My investigator came back with an address that appeared not only on the entity’s website, but also in its registry. Unquestionable intel that went straight into the Hague Request. A year later… “No such defendant at the address provided.” So we asked for — and were granted– a 4(f)(3) order to serve electronically. Now, that would have conflicted violently with the Hague Service Convention, but the Certificate of Nonservice was an official statement from the Central Authority that we didn’t know the defendant’s address. That negated applicability of the Convention.

Defense counsel (herself a Chinese lawyer admitted in the U.S.) argued until she was blue in the face that we violated the treaty. She contended that we had the right address, the company website and the registry agreed, and we agreed. The Central Authority called the shots, though, so it would be silly to think that it would work a second time. That didn’t matter, she insisted, telling me to resubmit and just tell the Chinese authorities to go back and do it properly.

Um, huh? Have you ever been able to order the Chinese government around?

The judge was not amused. He told defense counsel to shut up and stop being silly… all because we knew what we were doing and had done our homework in the beginning.

Wrapping up

No exaggeration here– just attempting to serve a defendant in China costs thousands of dollars and a year or two of a litigant’s life. Spending a few hundred extra dollars early to mitigate the odds of failure is always a worthwhile expenditure.

I cannot recommend an investigation strongly enough.


* I did not name this outfit. NECIPS is a silly-sounding acronym, but they tell me it sounds awesome in Chinese.

** This applies to Hong Kong as well, but with even more peculiarity. Take a read of A Hong Kong Cautionary Tale for more.

*** Set aside the fact that Deng is his surname.

Terrible news to wake up to this morning– a massive container ship, some three football fields long, crashed into a pier of the Francis Scott Key Bridge spanning the Patapsco River and serving Baltimore Harbor. Around 1:30am, the central span collapsed, causing, at this writing, at least a half dozen vehicles to plunge into the river and closing off traffic to a critical commercial artery.

Stories abound concerning the ship and its safety record, so in addition to wrongful death and personal injury lawsuits, we anticipate significant litigation over property damage and disruptions to an already tenuous supply chain across many industries.

That litigation, notwithstanding the expected loss of life and impact on the Baltimore economy, will still be subject to the same procedural requirements as any other. Namely, whether the defendants are to be served in Denmark (Maersk) or Singapore (Synergy Marine) or elsewhere, adherence to the Hague Service Convention remains mandatory.

Above all, here’s hoping the loss of life and limb is limited, and that the disruption to the Baltimore community is resolved quickly.

Latest trend in litigation nationwide: tire manufacturers, worldwide, sued in the United States for price fixing. These suits are huge, wrangling some of the world’s best known manufacturers from Italy to Germany to Finland to Japan… but the fact that they’re brought under the Sherman Act has no connection to the method by which they must be served. Simply put, if the defendant manufacturers are in Hague Service Convention jurisdictions, they have to be served in a very particular manner, almost always involving translation, and very often with methodology limited to what I term “Five-O” service.

These cases affect anybody who drives a car, rides in a car, rides a bus, flies in an airplane, trains like this guy, eats anything harvested with a tractor… you get the idea. It’s everybody. When tire price collusion involves so many manufacturers, all of us pay for it. And we want to hold the bad guys responsible.

But from a service of process perspective, these cases are nothing special. There aren’t special rules for them, and there’s not an exemption from Hague requirements unless somebody in the United States waives or accepts for the offshore defendants.

Over the years, I’ve posted in this space a couple of diatribes about the wisdom– or really, lack thereof– in a strict DIY (do-it-yourself) mentality in the practice of law. See here and here if you’re interested. Yes, I have a pecuniary interest, but I contend that a DIY approach to the Hague Service Convention can have disastrous results for a litigator, just as DIY investigations and DIY translations can. I stick to my guns on that, but was reminded today of another reason not to keep hold of every little piece of the litigation puzzle. Just give yourself a break, counsel. Don’t carry the world upon your shoulders.

I serve on the Community Mission Board of my local YMCA. This afternoon we had a meeting of all the Y boards across Kansas City and its environs, and the Executive Director asked how many of us had used GPS to get to the meeting. Most of the hands in the room went up, so he asked how many of us already knew where we were going, and used GPS anyway. Just about all the hands stayed up. He rhetorically asked why, and offered a simple explanation: it’s easy. It let us concentrate on other things, like making sure we didn’t rear-end the Nissan Altima in front of us (it was rainy, so…). What a great analogy to use when asking donors to sign up for auto-draft contributions.

That prompted a little self-analysis… I’m one of those who uses sat-nav even when I know where I’m going just so I don’t have to think about it. Like many of my fellow lawyers, I frequently have thought fatigue— a term I either made up on the spot (a variant of decision fatigue, which is different) or I heard it somewhere else, can’t remember, and I am thus unable to properly attribute credit.

Now, I’m a MAP NERD. Navigating is a fun game, especially in foreign countries where planning is critical. I love pondering alternative routes to wherever I’m going, and I frequently override Google when she (Google is a she on my phone, and she has a beautiful English accent, almost like a stern schoolteacher) gives directions. She’s awfully grouchy, but sometimes, I just have to let her into my heart.

It’s the same with certain aspects of litigation. Many pieces of the puzzle can and should be handed off to somebody else. Lawyers can’t expect to handle every single aspect of a case or we’ll drive ourselves nuts.

Outsource it. Then you can start to make it better.

[Just let the video play. You know you’ll be singing by the end of it.]

Nope. Pull it.

A habit I got into a few years ago: yank the second page of the standard federal Summons in a Civil Action (Form AO440) before sending it overseas for service. That’s the Proof of Service page– a simple set of check boxes and blanks that are completed by a process server when it’s served in Philly, Boston, or Baltimore.

Why do I pull it? Simple. It’s not the proper form to prove service abroad, whether pursuant to Article 5 of the Hague Service Convention or not.

Continue Reading If it’s going abroad, pull the second page of the AO440.

At least once or twice a month, when I deliver the bad news that service on an offshore defendant will cost several thousand dollars and take several months– if not a couple of years— a prospective client will decide that the better way to go is to seek an order for alternative service, usually electronic service, under Rule 4(f)(3) or its state analogs. This is a flat-out bad idea, and I’m going on record with it now so it doesn’t seem like a brand new thing I just made up to keep the fees rolling in. Truly, if there’s a way to get the job done without having to hire my firm* and hit your client for a four- or five-figure bill, I will tell you— that’s just the way we roll around here at Viking Advocates.

But there’s a whole bunch of horrible, terrible, no-good case law out there that says “nah, don’t sweat it– electronic service is fine. You needn’t worry about the Hague Service Convention.”

Do not rely on this case law. Seriously. It’s going to get smacked down in the very near future, and I don’t want my people to be on the receiving end of the smackdown. Some savvy, belligerent, and very deep-pocketed defendant is going to take this issue up on appeal, and they’re going to win.

The only way that service by e-mail (or social media or text message or… pick an electronic medium that involves a fiber optic line and a bunch of ones and zeros) can possibly fit into a Hague context is if it’s deemed a “postal channel”, and I don’t know of a single Hague authority on the planet that has deemed it so. But even assuming, arguendo, it is a postal channel, it is nonetheless invalid if the destination country objects to Article 10. That encompasses most of the countries where e-service would be handy anyway. Most notably: China, Russia, Mexico, India, Pakistan, Vietnam, Venezuela.

How does the bad case law arise? Simple– courts view the service methods listed in Rule 4(f) as co-equal. That is, federal courts do not view the list as a hierarchy, in which option 1 must be attempted before option 2 is available and so on.** That’s a sensible view of 4(f)’s structure.

And from a due process perspective, electronic service is perfectly acceptable. It’s a means reasonably calculated, in many circumstances, to give a defendant notice of the claim against him/her/it and an opportunity to be heard. For crying out loud, we’re a quarter of the way into the 21st century… email is the way we communicate, and it stands to reason that e-service is so calculated.

But what makes the case law so bad? Well, in order to see electronic service in a Hague context as valid, courts must consciously disregard the word of a very nice lady from Arizona:

Source: National Archives.

You might have heard of one Sandra Day O’Connor, author of the Court’s opinion Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988). She passed away in December after a life that every lawyer in America sees as rock-star level success.

The Schlunk decision contained two pertinent holdings:

Yet that horrible, terrible, no-good case law I mentioned above relies on the idea that the Hague Service Convention doesn’t expressly prohibit email service, so that makes it okay.

Well, it doesn’t expressly prohibit service by carrier pigeon or message-in-a-bottle– technologies which actually existed at the time of the Convention’s adoption in 1965. That doesn’t validate them as service options.

Saying that a method is valid just because the Hague Service Convention doesn’t expressly prohibit that method gets the question backward. Justice O’Connor was clear: a method is valid only if it is expressly authorized or permitted by the Convention.

Litigators avoid Hague strictures at their peril.


* Notably, if you can convince the court to deem U.S. counsel as a foreign defendant’s agent for service. To be sure, this happens under Rule 4(h)(B)(1), and not 4(f)(3).

** Contrast this with 28 U.S.C. §1608, the service section of the Foreign Sovereign Immunities Act, which is specifically a hierarchy.


Author’s Note: this is not to say that electronic service isn’t constitutionally valid from a due process perspective. It clearly is— I mean, come on. It’s the 21st century, for crying out loud. This is how we communicate. This is to say that it’s constitutionally invalid from a Supremacy Clause perspective. The phrase “and all treaties made” should ring a bell.

(Author’s Note: this post was held for publication in honor of Justice Sandra Day O’Connor, who passed on Friday at the age of 93.)

Until this fall, serving process in the tiny-but-thriving nation of Singapore entailed a similar approach to serving in another U.S. state or Canadian province. That is, as a former British colony, it maintains a common law judicial system. As long as a competent process server was involved, and Singapore’s rules were followed in tandem with the forum court’s rule, it was smooth sailing (I always used a solicitor to direct the process server, just to ensure legal validity on both sides of the ocean).  As of December 1, 2023, serving process in Singapore is now subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter. Yet that doesn’t necessarily mean the seas have become rough.

You’ve got three ways to go:

  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.

  • 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 frequently help with subpoenas.  Repeat after me—you can’t just serve a subpoena in Singapore. At least, not if you want it to have much effect.  Instead, file a Hague Evidence Request.  Dramatically different from serving a summons or notice.

Now, here’s how service is effected in Singapore:

Article 5 Service

  • Translate the documents? Well, no. Again, in a former British colony– especially one so immersed in international commerce– English is still the prevalent, official language and English is required for all documents and requests sent to the Central Authority. But that isn’t the end of the analysis– if your defendant isn’t demonstrably competent in English, U.S. due process (in Canadian parlance, natural justice) necessitates that process be served in a language the defendant understands.*
  • 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 it to the Central Authority along with the requisite fee.
  • Sit tight. It may take a while—likely several months from submission to return of proof, although Singapore is brand new to the treaty so there’s no track record yet.

Article 10 alternative methods 

  • They simply aren’t available, because Singapore objects to them all. Article 5 is the only way it can be done.

Seriously—that’s all there is to it.  The method is straightforward and simple. 

Singapore’s declarations and Central Authority information can be found here.

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.

O’Connor, J.

Sisters in Law, by Linda Hirshman, has been on my shelf for a couple of years, constantly pestering me to sit down on a snowy weekend and read of legends. My own sister, a professional musician, recommended it when she was toying with idea of turning it into a rock opera, along the lines of what Lin-Manuel Miranda did with Chernow’s Hamilton. (You think the first Treasury Secretary is a ripe story for the Broadway stage? Imagine the tale of two absolute judicial rock stars, one from the right and the other from the left. I would pony up a fair chunk of change to see that.)

My phone buzzed during a mediation this morning, with news that Sandra Day O’Connor had passed at 93. A heck of a life– a life well lived, by any metric– come to an end along with a bunch of other other 90+ contemporaries lately, including Henry Kissinger and the amazing Rosalynn Carter.

This isn’t much of an obit. If you seek that, check out the Times, the Post, the other Times, the other Post, the other other Times… they’re far more qualified to provide retrospectives. I’m simply another lawyer who is continually awed by her career, her kindness, her skill, and even though I come from the other side of the aisle and the Federalist Society guest list, her sense of reason. Yes, she was a Reagan appointee and a Republican, but she came from a generation of politically astute lawyers who recognized the dangers of politics on the bench.

With the possible exception of Robert H. Jackson (author of Mullane, just a couple of years after his stint as Nuremberg war crimes chief prosecutor), Justice O’Connor has had more impact on my practice than any other jurist at any level. Her opinion in Volkswagenwerk AG v. Schlunk is seminal in my practice, and it provides the foundation of Hague Service Convention work like Gideon and Miranda underpin criminal defense. No exaggeration there. Pertinent:

“The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” (…) This language is mandatory (…)

Additionally:

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.

I give you the bedrock on which my practice rests.

Thanks, Madam Justice.

Once or twice a month, a client will call or email me expressing incredulous frustration that it takes Swiss or French or German authorities two or three months to return a proof of service following a Hague Service Convention request. Or even worse, that it takes Mexican or Chinese or Indian authorities a year or two. (<– Not a typo.)

“WHY?!” they scream, silently. At least, that’s the subtext of their question– in the lion’s share of cases, subtext arising from haranguing by a grumpy judge or senior partner (or litigant) who simply doesn’t get it.

On those occasions, at least once or twice a month, I have to tell that client to “get out of your American lawyer head” (all of my clients are attorneys). Because American lawyers view service of process abroad in the same way that civilians (ie: those smart enough to not take a bar exam) view service of process here at home… they don’t understand what goes into it.

Just Google “service of process in the movies” and you’ll get the idea.* Contrary to popular belief, a defendant can’t just refuse to take an envelope from a process server and avoid service. Constitutionally speaking, all a plaintiff has to do is make a reasonable effort, so if the process server has to drop the summons at the defendant’s feet, the defendant is still on the hook.

And lawyers get that.

But what they often don’t get is the harsh reality that things just don’t work “over there” in the same way they work here. And they take longer– they just do. No amount of haranguing from a grumpy judge or senior partner (or litigant) is going to change that.

No, in most of the world, it doesn’t happen the way Hollywood makes it out. In fact, if you ask a U.S. or Canadian process server, they’ll tell you that it doesn’t even happen that way here. But in the parts of the world where the Union Jack** didn’t used to fly, service of judicial papers isn’t up to the parties. That function is undertaken by judicial officials of varying sorts, rather than by private agents.

And there is nearly always a bureaucracy involved. Therein lies the source of the delay.


* The most inaccurate Hollywood depiction I’ve ever seen is, sadly, in Woman in Gold, which chronicled a Holocaust survivor’s successful quest to recover a famous painting stolen from her family by the Nazis. It’s a fantastic film, truly one of my favorites, but they completely bungled the service of process scene. I discuss that utterly ridiculous depiction with much chagrin in Dropping docs on a desk at the Consulate… not effective, counsel. Still, I’ve had the honor of managing proper service in several Nazi-theft-of-art cases, and those efforts have been among the most rewarding parts of my career.

** I always gripe that a flag cannot fly at half mast unless it’s on a ship– it’s at half staff on land. Likewise, some argue that the Union Jack flies above the ships of the Royal Navy and various other watercraft of the United Kingdom, while the Union Flag flies on land. Buckingham Palace validates the use of either, so I’m sticking with it, despite the Palace’s confusion about masts. With all respect to linguistic accuracy, this is poetic license at work– Jack has more pop to it.

Send your request in duplicate to the Central Authority.

Read that to yourself again, but this time, do it in the accent of General Alexei Anatoly Gogol.*

Send your request in duplicate to the Central Authority.

No, this is not a command from a Soviet spy chief. It’s just what we need to do when submitting a Request for service pursuant to Article 5 of the Hague Service Convention, instruction taken quite literally from Article 3. The term Central Authority merely refers to the agency (or agencies) designated by member countries to receive those requests. It shouldn’t conjure images of some nefarious Cold War-era black ops outfit behind the Iron Curtain, like the Stasi or KGB. In just about all countries, the designated Central Authority is a regular government agency, usually a court or counterpart to the U.S. Departments of State or Justice.

Continue Reading What is a Central Authority?