This is the Secret (okay, technically “Special”) Sauce recipe for the vaunted Big Mac. Really, the formula is not so secret, but replicating the sauce is not for the faint of heart. And as much as Mom tried to copy it at home to save a few cents, it just couldn’t compare to the Golden Arches.
Yes, counsel, you really can handle service of process abroad by yourself. All it takes is a few hours of research to pinpoint the applicable rules for serving wherever your defendant is located. You can replicate it, but call in help instead, because it will save you quite a bit of headache, it will save your client quite a bit of money, and it could just save your case from dismissal due to preventable error.
The recipe for Hague Secret Sauce:
- Step One: Determine whether the foreign country is a member of the Hague Service Convention; you can find that out here. If it is a Hague country, you have no choice but to adhere to the treaty’s strictures.
- Step Two: Read the Hague Service Convention itself. Go on.
- Step Three: Look at the foreign country’s declarations regarding Article 10. If they object, you have no choice but to avail yourself of Article 5, which is available everywhere, except in Russia.
- Step Four: If they don’t object, then you have to determine what constitutes a competent person under the foreign country’s law. Its declarations will point you in the right direction—contact that competent person to arrange for service.
- Step Five: If you select mail service under Article 10(a), be sure that Hague mail service is acceptable in your jurisdiction. [Be wary of FRCP 4(f)(2)(C)(ii), too.]
- Step Six: If you determine that Article 10 channels are unavailable, then determine the appropriate Central Authority to receive your request under Article 5. (Germany and Switzerland are fun to discern.)
- Step Seven: Determine whether translation of the documents is necessary by consulting the foreign country’s declarations. If it is not a former British colony, you will most likely have to translate. And don’t forget the defendant’s right to due process—if they don’t speak English, you’ll have to translate anyway, even if they’re in Toronto or London.
- Step Eight: Have the documents translated by a trustworthy service. [For the love of Adlai Stevenson, don’t use Google Translate, and don’t have your paralegal do it just because she spent a summer in Paris in college. She is probably not qualified, and even if she is, her time is better spent on paralegal work anyway.]
- Step Nine: Fill out Form USM-94, either on your own or with a bit of help from the Hague Envoy platform, then compile the documents to be served (with their translations, as applicable) and send the request to the appropriate Central Authority.
- Step Ten: Wait. In some cases, wait several months—or even a year—for a response from the foreign authority. FRCP 4(m) gives you safe harbor from dismissal for time, as long as you aren’t dilatory.
To be sure, this series of steps assumes a perfect world, and it does not account for the particularities of each foreign jurisdiction contacted.
- Hong Kong? Part of China. But it still functions under the old British system. Then again, don’t put Hong Kong on an equal linguistic footing with the PRC. Bad things happen if you name the jurisdiction carelessly.
- Israel? Allows you to hire an agent to serve, but only if that agent is specially appointed by the Jerusalem Directorate of Courts.
- Canada? Sure, you can find a process server in the Yellow Pages (the what?). Except in Quebec, which is not a common law jurisdiction.
- India? Over 1.25 billion people. And only one of them works in the Hague Central Authority. Good luck.
- Austria? Not a Hague member. And they’re sticklers for doing it their way. (Seriously… don’t even think about tackling this one yourself.) Update, 2020: yeah, they’re a Hague jurisdiction now, but they’re still sticklers!
- Taiwan? Not a Hague member either. Not technically a state, in the eyes of the world.
- Mexico? Just… wow, the headaches that lie ahead.
That’s just to name a few. This can be a labyrinth.
[Photo: that is a Big Mac, the most glorious fast food item in history. We, as a firm, are huge fans of the Big Mac, and encourage its purchase. We hope that our endorsement will prevent a C&D letter from McDonald’s Corp. demanding that we take down the photo. Although we would comply, two all-beef patties, special sauce, lettuce, cheese…]
This post was originally published on Viking Advocates’ firm site. It’s been modified slightly to remove the sales-pitchy stuff.
Update, November 30, 2016. Michael Delligatti, the man who brought you the Big Mac, has died. He was 98.