Complete with screenshots!
Last spring, I did something that a cynic might call monumentally stupid: I published the recipe to the Secret Sauce of serving process abroad. Literally, a step-by-step guide to the procedure, right there for all to see.
“Are you out of your (expletive deleted) mind?” one of my close friends asked me.
Well, it would seem so. I left a six-figure sales job to go to law school. Draw what conclusion you will.
But a bit like McDonald’s and the Big Mac, I’m not worried about a do-it-yourself lawyer reading my blog and then doing it. Nobody makes Big Macs at home. Too much hassle. It’s much easier–not to mention cheaper–to just hit the drive-through.
But many among us insist on self-sufficiency, so another friend suggested that I elaborate on the ten steps in the recipe with a separate post for each step. As it turns out, either (1) I’ve already done so, or (2) it’s pretty straightforward stuff if you just click on the link indicated in each.
But for several steps, I linked to the website for the Hague Conference on Private International Law. It dawns on me that a DIY lawyer might run into a wall when looking things up on that site. So here’s a handy guide to getting country-specific information from the Service Convention section. Feel free to
sing play along at home. [Apologies to phone/tablet readers… you really need a big screen to get the full effect.]
To start, click here (the main page for the Convention text) , and then choose “Status Table” as indicated below. (The right-hand menu appears throughout the Service Convention section, so the site is pretty easy to navigate.)
Note that there are two tabs in the status table… this merely reflects the fact that a country need not be a member of the Conference in order to join a treaty. (The converse is also true—of some three dozen Hague Conventions, the U.S. is party to only a few.)
The status table indicates not only whether a country is in the treaty, but also how it joined, when it ratified, and when the treaty entered into force for that country. For the sake of illustration, we’re going to highlight Belgium here– it’s high up on the list, so grabbing screenshots is much easier than, say, Vietnam (the newest member). The table is handy for determining if a country has signed the treaty, but not ratified or put it into force (example: the U.S. has signed, but not ratified, the Choice of Court Convention).
Belgium (my adopted boyhood home*) signed the Service Convention January 21, 1966, ratified it September 19, 1970, and put it into force January 18, 1971 (note the “D” on the right—that indicates that declarations apply).
Now click the “Authorities” button in the side menu (the orange arrow in the figure above). Sticking with Belgium, click on Central Authority & practical information.
The coming page really does tell you everything you need to know about its application in a particular country.
The elements to look for:
- The name & address of the Central Authority. This is where you send your USM-94.
- The Central Authority’s email address. Some will answer you, some won’t. It’s not personal. It’s just business.
- Languages spoken by staff. This can be deceiving—even though they might say they speak English, they often don’t, in which case it’s a bit difficult to get an update.
- Translation requirements (Art. 5(3)). Exactly what it says. This entry, too, can be deceiving. Even though the Central Authority might not require it, in non-English-speaking countries, the judicial officer executing your request might refuse to serve it without a translation. When in doubt, translate. Note that in Belgium, the proper language of the translation depends on locality.
- Costs relating to the execution of the request (Art. 12). The Convention prohibits the assessment of fees for serving process…
The service of judicial documents coming from a Contracting State shall not give rise to any payment or reimbursement of taxes or costs for the services rendered by the State addressed.
The applicant shall pay or reimburse the costs occasioned by —
a) the employment of a judicial officer or of a person competent under the law of the State of destination,
b) the use of a particular method of service.
Seems pretty straightforward if you ask me—service is supposed to be free, unless you directly engage a judicial officer/competent person or request that a particular method be used by the Central Authority.
But (and it’s a big but)… many countries, including the United States, wiggle out of the fee prohibition by using the judicial officer or competent person method as a matter of course. The US Central Authority (USDOJ) outsources its function to a private company, which then charges $95 to serve. This frustrates other countries, who retaliate by either assessing a reciprocal fee (China) or rejecting US requests outright (Russia).
Back to our story…
- Judicial officers or other competent persons (Art. 10(b)). These are the folks you can contact directly to serve on your behalf (in Anglophone Canada, go to the Yellow Pages, of all places!). In Belgium, you see here… contact the National Chamber of Bailiffs (hussiers de justice).
- Declarations as to Articles 10(a), 10(b), and 10(c). Many countries object outright, so Article 5 is your only available channel (eg: China, Mexico, Germany). Belgium, like the United States, opposes none of them. Japan objects to 10(b) but sort of not to 10(a)… let’s just say it’s complicated in the Land of the Rising Sun.
Be incredibly cognizant of the destination state’s opposition to the alternative methods in Article 10. Opposition means don’t even try it, pal, because declarations of opposition are part of a treaty. Treaties, in turn, override the Federal Rules of Civil Procedure, and they override state law.
That, friends, is key to the whole service of process puzzle.
Hopefully, this gets you where you need to be on the HCCH website. The Permanent Bureau is a tremendous resource for all of the Conventions, but the website provides all but the most intricate guidance for the Service Convention and others.
And if you run into a snag, gimme a call.
* In 1977, my dad was a few years into a career driving a desk for the U.S. Army. That summer, our family went on a grand, three-year adventure in Europe. The old man was assigned to Allied Headquarters in Belgium. President Carter said go, we went, and I developed a life-long obsession with perfectly fried potatoes.