RalphGL, via Wikimedia Commons.

Due Process isn’t solely an American idea.  It goes by other names in other countries (natural justice in Canada), but it is still a bedrock concept in most judicial systems that espouse fairness and the rule of law.  Germany, in particular, views due process rights as inherent and inviolable (this is the central tenet of its Basic Law, arising as a reaction to the horrors of Nazi tyranny).  Accordingly, when German authorities receive a Hague Service Request accompanied by a “date certain” summons, they are meticulous about ensuring that a defendant has sufficient time to retain foreign counsel to litigate.

Put another way, if a summons demands a German defendant’s appearance in a U.S. court on a specific date, the request for its service has to arrive at least two or three months in advance.  The bureaucratic wheels must turn and the defendant must be afforded time to answer.

Example:  the summons indicates a hearing date of June 1st.  The defendant should reasonably expect at least three or four weeks’ answer time,* so it has to be served by May 1st, if not earlier.  But that isn’t the date the request should arrive in Munich or Berlin or Freiburg.  Anticipate at least a two-month processing time by the German authority– preferably three (or even four).  This means that if the forum court demands the defendant’s appearance on June 1st, the request can’t arrive later than March 1st.   February 1st is better, and January 1st is better still.

An even more problematic variation:  any summons containing self-expiring language, such as a bankruptcy court summons to an adversarial proceeding.  “This summons shall expire 30 days following its issuance” is especially difficult to handle, as it leaves no latitude for the plaintiff to adhere to the mandatory nature of the Hague Service Convention.  In just about all cases, these summonses die sitting on the desk of a clerk– awaiting processing.

The only solution there is to remove all “date certain” deadlines or expiry language, if possible.  If the forum court won’t work with you, you’re in a Catch-22 situation.  Not fun.

And the only practical solution to the “date certain” dilemma:  push the thing out far enough to allow the Germans to do their job.  For Mexico, India, China, and Venezuela… give it at least a year.  No, seriously.  I mean it.

 


* NB: ordinary U.S. federal summonses carry a 21-day answer deadline (and most states between 21- and 90-day deadlines), but these are not problematic, as the required answer period relies on the date of service– not the court’s calendar.  These sorts of summonses usually sail through without any raised eyebrows.

  • Krista

    One year?! 😮

    Another great post, Aaron. I am glad there are intrepid and patient souls like yourself to practice international law. Chiefly a state appellate practitioner myself, I am used my cases wrapping up in one year’s time. I do not have the fortitude to do what you do!

    • Thanks, Krista. I appreciate the feedback.

      Yep. A year *or longer* in some cases. That’s just the time it takes to get a proof of service…