Nope. We’re not building rockets here. But we are building a ship of sorts, and a leaky vessel means the cargo may not make it to its destination. Serving process in Japan is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.
You’ve got three ways to go:
- 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),
- Cruise over to the Hague Envoy platform at USM94.com to automate the completion of your forms in perhaps twenty minutes or so, or
- 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 confer coercive effect on subpoenas. Repeat after me—you can’t just SERVE a subpoena abroad. At least not if you want it to work. You have to file a Hague Evidence Request in most instances– or a Letter Rogatory in Japan, which isn’t part of the Evidence Convention. Dramatically different from serving a summons or notice.
[Now, for the chase scene, from You Only Live Twice.]
Here’s how service is effected in Japan:
Article 5 Service
- Translate the documents. Japan’s declaration to Article 5(3) requires it and, although the defendant may speak flawless English, omitting translated documents will prompt the Central Authority to reject your request.
- 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 to the Central Authority.
- Sit tight. It may take a while—likely 6 months or more, from submission to return of proof.
Article 10 alternative methods
- The Japanese object to direct access to a judicial officer, so that’s out.
- Mail service is sort of available (maybe, kinda, could be), because the Japanese don’t specifically object to service by mail. They also say it might not be valid either. Given the ambiguity, you probably don’t want to try it. Frankly, I don’t think the ambiguity matters, because Hague mail service is a bad idea anyway.
[The Japanese language, I’m told, does not have a direct counterpart to the English “no”. Ever mindful of not being rude, the Japanese say “different from yes”, in order to avoid an off-putting appearance. This can create a whole bunch of ambiguity that drives westerners nuts. That is precisely what we have with mail service.]
UPDATE, December 21, 2018: The Japanese Government has clarified its position. It is opposed to Article 10(a). Never mind all that language parsing up there… mail is out.
That’s all there is to it in Japan. There’s really only one way to do it, and… Japanese efficiency is a thing. Iconic brands like Toyota, Honda, Sony, Mitsubishi, Canon, Fujitsu (maker of the greatest piece of office equipment ever!)… if you’re suing any of them, this is the route to take.
Japan’s declarations and Central Authority information—as well as those of all the other countries in the treaty—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.
When I was five years old, my dad (career Army, hoo ah) came home from work one day with a stack of records under his arm.
- What are those, Dad?
- Those are Berlitz records, son.
- What’s burr-BITZ?
- Berlitz. They’re going to help us learn to speak Japanese.
- What’s Japanese? Is that like mayonnaise? (Lighten up. I was five.)
- No, it’s the language they speak in Japan. We’re moving there.
So off we went along a very short-lived linguistic journey. Ko-NEE-chee-wah. Are-ee-GAH-toe.
Two weeks later, another stack of Berlitz records came home under the old man’s arm (he was 25 himself, so “old” is relative). This time, they were French, because his orders got changed. Instead of Camp Zama, we went to Allied Headquarters in Europe, so Shōgun ended up being my first exposure to Japanese culture. It aired back in the states right after we got home from Belgium. Oh, the irony.
One of my great regrets is that I haven’t been to the Land of the Rising Sun.