[Author’s Note: The following information is soon to become inaccurate, because Austria has announced its intent to join the Hague Service Convention. How soon is dependent on the European Union authorizing Austria’s signature and ratification. Frankly, any delay is pretty silly, because Austria is the only EU member that is not already party to the Service Convention, but stay tuned. This space will be updated when the treaty enters into force for Austria and the Austrians state their declarations.]
Until a couple of years ago, I had two mental images of Austria. One was bucolic Salzburg “in the last golden days of the thirties”—that of the Von Trapps and The Sound of Music. The second was the snowy Vienna of Amadeus—that of footlit operas and an Emperor who looked a little too much like the vice-principal from Ferris Bueller’s Day Off.
In 2015, Woman in Gold changed that… the list now includes the works of Gustav Klimt and an epic legal battle arising from the Nazis’ theft of priceless art works. I watched the film on a transatlantic flight and was thrilled, but bemused, because the young lawyer handling the case (Ryan Reynolds) walked into Austria’s consulate in Los Angeles with his client (Helen Mirren) and served process by sliding a summons through a banker’s window to a receptionist.
Alarm bells started going off in my head, because for one thing, you shouldn’t hire Deadpool to represent you. Not even Wade Wilson can just walk into a consulate and drop a summons on the receptionist’s desk. The Foreign Sovereign Immunities Act says otherwise. (To be sure, I tried to contact Randy Schoenberg, the lawyer played by Reynolds, to see how he actually did it. No answer. Either he did it some other way and Hollywood embellished, or defense counsel didn’t know how easy it was to get that thing kicked.)
In any event, a fantastic movie with a compelling story, and a stunning work of art at the center of it all.
In a nutshell, there’s one way to properly effect service in Austria: a Letter Rogatory, with a couple of twists:
- Proper translation. You can’t just send the Letter Rogatory and call it good. It must be translated into German (along with the summons, complaint, and appendant documents—literally everything handed to the defendant) by an Austrian court-certified translator. That’s a little guild monopoly* that increases costs usually by a factor of two or three.
- Proper transmittal. The Letter must be conveyed via diplomatic channels, upping the ante by another $2,275 fee payable to the State Department.
Two predictions that I anticipate when the Hague Service Convention kicks in…
- Austria will most likely object to Article 10 methods—they already prohibit them by statute, as I understand it, so I doubt highly that their treaty declarations will indicate otherwise. Australia** joined the treaty only recently, and its declarations mirror its practice before accession to the Convention. I imagine Austria will do likewise.
- I also anticipate that the guild monopoly on translation will go away; Mexico has a similar requirement that has been, for the most part, overridden in practice by the Convention.
* Seriously—do we lawyers have a right to complain about guild monopolies?
** Don’t mix these up. Austria: How do we solve a problem like Maria? Australia: How do we solve a problem like Crocodiles? Or Crocodiles? [They take opposite views of Article 10 methods, given the common law/civil law divide.]