We ain’t 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; this could be a frightening concept if, like me (at the age of eight), you believe in the mythology surrounding the Bermuda Triangle.
Serving process in Bermuda is subject to the strictures of the Hague Service Convention, regardless of which U.S. venue is hearing the matter. The tiny island is an overseas territory of the United Kingdom, which has extended the treaty’s effect to most of the remaining parts of its former Empire; this includes the UK declarations.* A fair number of U.S. tourists spend time in Bermuda, just a few hundred miles off North Carolina, and a whole bunch of financial houses are chartered there thanks to a highly favorable tax structure. That means a fair amount of U.S. litigation involves entities on the tiny island.
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 pertain to subpoenas. Repeat after me—you can’t just SERVE a subpoena abroad. You have to file a Hague Evidence Request. Dramatically different from serving a summons or notice.
Now, for the chase scene. Here’s how service is effected in Bermuda:
Article 5 Service
- Translate the documents. The UK’s declaration to Article 5(3) requires that documents be in English. Game over, right? Pack up and go home? Not so fast, counsel… make sure your defendant speaks English, because his U.S. Due Process rights follow him, in a sense. Anybody sued in a U.S. court must be served in a language they understand, so if they don’t speak English, translation is still necessary.
- 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 three or four months from submission to return of proof.
Article 10 alternative methods
- Mail service is available, but it’s a bad idea anyway.
- Service via private agent (process server) is available to U.S. litigants under Article 10(c). This is absolutely critical—make sure to have the process server instructed by a solicitor, or the attempt to serve is ineffective, as it violates the UK’s position on Article 10.
Bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client. The plaintiff may not have done it correctly.
* Declarations (also called reservations in treaty law) frustrate the hell out of U.S. practitioners who aren’t aware that they change the effect of statutory text. If a country declares its opposition to Article 10 (Germany and China do, for example), then Article 10 does not exist between it and the United States. The methods described there aren’t even part of the agreement.
Following the death of Queen Elizabeth II, much speculation has been thrown around, concerning whether certain members of the Commonwealth of Nations might jettison their membership, kick out the monarchy, and go it alone as a republic. That’s not in the cards for Bermuda– it’s not an independent state. It’s a British Overseas Territory.