Another hat tip to Ted Folkman for pointing out a great “Case of the Day” last summer. Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. (S. Ct. 2018) was handed down in June, and at once clarifies and muddies an important part of Hague Service doctrine. For the authoritative statement, I give you my favorite Justice,* writing for the Unanimous Nine:
A federal court should accord respectful consideration to a foreign government’s submission, but is not bound to accord conclusive effect to the foreign government’s statements.
Italics mine. This holding is pertinent to service of process abroad, but I’m unsure just what effect it will have (read Ted’s post for a nice rundown of the facts and procedural posture). In short, the Chinese government gave a conclusory statement that its law required price collusion among manufacturers of Vitamin C. But China’s amicus brief failed to cite any particular code language or prior public policy statement, and was actually refuted by earlier public assertions by Beijing.
The gist of the opinion: yeah, trial courts should give a fair amount of deference to a foreign government’s statement of its own law, but that deference isn’t absolute. A pretty reasonable rule, giving trial courts much needed latitude to reject specious statements by less-than-friendly governments or low-level officials who really don’t know what they’re talking about.
So what effect does that have on the almost bulletproof quality of Hague Certificates? Well, maybe nothing.
And, yet, maybe quite a bit.
In Northrup King v. Compania Productora Semillas (1995), the 8th Circuit declined to “look behind” a Hague Certificate, accepting as facially conclusive a foreign Central Authority’s statement that service had been effected in accordance with that country’s own law. This widely accepted deference gives considerable– perhaps unassailable– weight to the Certificate’s conclusions. In short, if the foreign Authority says process has been served, for the purpose of U.S. law, it’s served. And if a defendant wants to refute that conclusion, they must attack the Certificate in the foreign country’s court. The Northrup King holding has long been the basis for my constant assertion that the Certificate is like a Willy Wonka Golden Ticket,** the keys to the castle, bulletproof.
I still contend that defense counsel should always question the validity of a Hague Certificate, but for different reasons— not the least of which is that not just anybody can sign a Hague request. I’m no longer as sure about the Kevlar-like quality of even a valid Certificate.
That said, Northrup King accepted not just a conclusion of law, but of fact. And it’s the factual conclusion that distinguishes the two cases, so the bulletproofness (yes, I made up that word) should still overcome a motion to quash. I can’t say with certainty whether Animal Science Projects calls that into question.
Still, it’s arguable, and worth watching the interplay of these two cases.
* The Honorable Ruth Bader Ginsburg, known in the wider zeitgeist as The Notorious RBG. I met Justice Ginsburg in April, 2017, about an hour after being admitted to the Supreme Court Bar. I highly recommend the experience, even if you never think you’ll argue there.
** Not my original thought. I really don’t know whose it was.