I hate to be the guy who breaks this to you, I said to the client, but there is no chance that you’ll be able to get that notice of hearing served in time.  Not properly, anyway.

Poor fellow was a first-year associate, trying to get a notice of a guardianship hearing served on an absent father.  The judge insisted that he have the guy served personally.  By Tuesday.  “So, please get this done for us.”

The problem:  absent father is in the People’s Republic of China.

Sorry, I said.  It can’t be doneThe Hague Service Convention has to be observed, and when you’re serving in China, that means a request to the government in Beijing (same as in Mexico or Germany or Switzerland or India).  That’ll take months to get through—not hours or days like we’ve come to expect in America.

“Okay,” he said.  “Let me go talk to the partner running the case.”

The story took an unexpected turn when he called me a half hour later to say “the partner told me that you just need to hire a Chinese courier to do it & then send an affidavit.  So can you get it done?”

Oh, where to begin?

For starters, and setting aside the mandatory nature of the Hague Service Convention, China is not a common law country—Hong Kong S.A.R. excepted—and they prohibit service by anybody but judicial officers (this is a characteristic of civil law jurisdictions).  If a courier tried to do what the partner wanted, the courier would be subject to criminal penalties under Chinese law.  You can’t just usurp the government’s authority and walk away clean in such a situation.

If this thing is going to be properly served, we have to file a Hague Request.

The junior associate’s response:  “No, you don’t.  The partner says that because the father isn’t a party to the case, we can serve him ‘normally.’  The Hague Service Convention only applies to process.”

Process?  Just have the partner call me, wouldja?  He didn’t.  And he probably won’t, which is too bad for his client.  And his malpractice carrier.

Normally?!  Does he mean that in China they don’t do things normally?

Folks, this is a massive misconstruction of the Convention, and one I had heard of before, but hadn’t seen actually in play.  To be sure, there is caselaw out there that distinguishes between process and other notification in a Hague context, and those cases hold that Hague strictures don’t apply unless process is being served.*  But those holdings are wrong– or at least arguable– and you don’t want to be the fellow on the losing end when they get overturned.  That’s expensive and unnecessary.  My reasoning…

The word “process” doesn’t even appear in the text (seriously, click here and run a word search on the page).  It doesn’t delve into jurisdictional questions, which is a very big deal if something deals only with process.  In fact, the only mention of jurisdiction in the entire treaty is the flat denial of jurisdiction as a basis for a country’s refusal to serve.

The name of the treaty is the Convention on the Service Abroad of Judicial and Extrajudicial Documents, not the Convention on Service of Process.  And it applies to just about any sort of court-related document you can think of, if that document must be served.**

  • Summons?  Slam dunk.  (“Citation” to our colleagues in the Lone Star State.)
  • Complaint or Petition?   Yep.  They go right along with the summons.
  • Notice of Hearing?  Yeah, buddy.  It’s a judicial document Even if it doesn’t compel someone to show up in court or assert jurisdiction over him, it must still be conveyed to a recipient in a formal, demonstrable manner, in full observance of due process.  The fact that the recipient isn’t a defendant or respondent is immaterial.

Bottom line, if the thing has to be served, then you have to observe Hague Service Convention procedures wherever the Convention applies.

Says who?  Says this lady:

Source: National Archives.
Source: National Archives.

And eight of her friends.

* It isn’t completely unreasonable to conclude what my prospective client did.  Ted Folkman points to dicta from the Schlunk decision as a basis for arguing that the HSC does only apply to process.  He’s a whole lot more diplomatic than I am– although he disagrees with the Hyundai decision he described back in 2012 and in his excellent follow-up column last month (for an even more thorough discussion, see Ted’s chapter in the latest ABA deskbook, International Aspects of U.S. Litigation).  Ted calls it a difficult question, but I see it as pretty straightforward, and Ted’s been at it a whole lot longer than I have.  Still, the Hyundai court bungled it.  You don’t start parsing legislative history and its parallel language to determine intent when there’s no ambiguity in the very text you’re working in.  The HSC is unambiguous– it applies to service.  Rule 4 requires service.  Rule 5 requires service.  If the document has to be transmitted to another Hague member country for service, the Convention applies.  Full stop.

** One huge exception to “just about any sort of court-related document”:  subpoenas.  You can’t serve them abroad.  Full stop.  For my reasoning on that issue, see here.