Over the years, I’ve repeatedly had lawyer clients say to me, “I have to serve a defendant in (Country X), but I don’t want to do it through the Hague.  That’s just too much hassle.”

Ahem, sorry, I say to them.  You don’t have a choice in the matter.  But that doesn’t necessarily mean what you think it means.  We just need to define ‘the Hague’.

The bottom line is this: if you have to serve a defendant in a country that is party to the Hague Service Convention, you must observe the strictures of the treaty.  Period.

Why? Because this lady said so:

Source: National Archives.
Sandra Day O’Connor’s swearing in, 1981.  Image source: National Archives.

And eight of her friends backed her up in much of the reasoning.  But again, that doesn’t necessarily limit your options.  It all depends on the country.

First, recognize the mandatory & exclusive nature of the treaty.  Just so you don’t have to brief the case as if you’re in law school again, here’s the skinny on Volkswagenwerk AG v. Schlunk, 486 U.S. 694 (1988), the granddaddy case in overseas service.  Schlunk set forth two absolutes:

  1. If the Convention applies, it’s mandatory, so don’t try to get cute with the methodology, even if the judge says you have to do it his way (at 699).
  2. The methods articulated constitute an exhaustive list (at 706).  Full stop.  Service by drone is not listed, so forget it.*  Delivery by  Hogwarts owl?  Nope.  Stick to the treaty or don’t serve.**

Interestingly, the court held that in the specific facts of Schlunk the Hague Service Convention didn’t apply.  Illinois statute allowed for service on a foreign corporation by delivery to its Illinois subsidiary.  Schlunk sued Volkswagen in Illinois state court, and his counsel appropriately served VW via its U.S. subsidiary’s Chicago headquarters.  Done.

By its own terms, the Convention applies only if there is occasion to send documents abroad for service.  No need to send abroad if you can get them in Chicago.  [Congratulations to the Cubs, while I’m thinking about it.]

Still, the decision is seminal in Hague service by U.S. plaintiffs.  Justice O’Connor was awfully clear in her logic:  if the treaty applies, follow it, but it doesn’t apply here, so the case can proceed.  That being said, the treaty also sets out more than one method for serving, provided the destination state doesn’t object.  Many of them do, so you’re limited in Germany (including Volkswagen), China, and Korea.  You’re kinda-sorta limited in Japan.

But you can hire a process server in Saskatchewan.  Depending on your venue, you can mail service to France (more in a later post on why that’s a bad idea).  You can make a direct request to a gerechtsdeurwaarder if your defendant is a very tall Dutch fellow in Rotterdam.

What my lawyer-clients really meant in all those phone calls was that they didn’t want to have to fill out all the paperwork necessary for a request to a Hague Central Authority.  The hassle is often unavoidable, but in many cases, isn’t required.

 


*Hat tip to Ted Folkman for perfect timing of that post.

** We’ll get into email service in a later post.  It may have only existed in Al Gore’s mind in 1988, but it might just fly under Article 10(a) today.  Might.

  • lexblog

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  • Man, I love verbal yoga (ie: twisting and contorting… in a *good* way). Indeed, a very important nuance you point to.

    Perhaps I should revise slightly to indicate that, once it’s necessary to send abroad for service (the magic words from Article 1), *then* it’s mandatory?