Most of us in the U.S. have a fairly warped image of Colombia in our heads– usually something to do with cocaine or a big emerald the size of your hand. If it’s not Pablo Escobar in (pick a movie about the drug trade), it’s Michael Douglas sliding down a rain-soaked hillside after Kathleen Turner in Romancing the Stone.
Oh, yeah, and then there’s Shakira… whose Hips Don’t Lie. She’s Colombia’s biggest export of late.
But there’s quite a bit more to this South American nation than drug trafficking and pop culture, and litigation involving legitimate Colombian companies is picking up lately. For about four years now, serving process in Colombia has been subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.
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 done in Colombia:
Colombia in the Hague Service Convention
The Convention only entered into force for Colombia in November, 2013, and the Colombians have yet to make their declarations known to the Hague Conference. That’s such a short time that they really don’t have much of a track record for Hague Service requests– by comparison, Mexico took a decade to really hit its stride, make its declarations known, and get the job done… but serving there is still not smooth. For my money, you’re best served (very bad pun intended) to stick to what’s known on Colombia. Don’t assume, just because they haven’t said anything, that everything’s jake and you can use Article 10. It ain’t.
In my estimation, there’s really only one practical avenue to service: Article 5.
Article 5 Service
- Translate the documents. Colombia’s declaration to Article 5(3) only says that they’d appreciate having your request completed in Spanish– there’s no real requirement indicated. Seriously– just that they’d appreciate the form being in Spanish– although they recognize that Article 7(2) says it doesn’t have to be. The reality is that if you don’t translate the served documents into Spanish, your request will probably be rejected, if not by the Central Authority, then by the local officials who actually execute the request. Plus that, always keep Due Process/Natural Justice requirements in mind.
- 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 9 months, perhaps a year, from submission to return of proof. The judge is just going to have to accept that fact, because there is no realistic alternative.
Article 10 alternative methods
- Article 10(a) may or may not be available– we don’t know. But even if mail is legally valid, it’s still a bad idea.
- Article 10(b) & 10(c) amount to nothing, because if the Colombians haven’t declared whether they’re opposed or not, they also haven’t declared who is a “competent person.”
Seriously—that’s all there is to it in Colombia, but don’t get excited. Sure, the method is straightforward and simple, but actually making it happen could be anything but easy. It may take an interminably long time, and in many cases, local authorities are decidedly less than motivated to act against large local entities, so service on the local factory boss may not happen at all. Pablo Escobar may be dead, but hometown loyalty is not.
Colombia’s Central Authority information—as well as that 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.
You didn’t seriously think I’d do this without a picture of Shakira, did you?