Last week, I went on a bit of a rant— my thinking was sparked by a highly informative post by Dan Harris at the China Law Blog, in which he rebooted an older column in Four Essential Principles of Emerging Market Success. His original (2004) commentary is even more prescient today as manufacturers and investors shift away from China and seek new opportunities in other emerging economies like Vietnam, Turkey, and Indonesia, just to name a trio. As it turned out, when I read Dan’s update, I had just seen a prospective client walk away from a discussion because he didn’t like the bad news I had to give him. That news went to the heart of Dan’s thoughts on doing business anywhere abroad, namely: Things will be different. Very different.
Applying those thoughts to what I do, my rant pressed the hard truth that, despite what we Americans might think, other countries do things differently. Their systems of justice are often markedly different, and their viewpoints almost always divergent from our own. We American lawyers have an obligation to recognize this fact when we pursue litigation involving offshore defendants and third-parties.
An additional piece of Dan’s advice to business people seeking to operate abroad: Exercise Extreme Patience.
[E]verything takes twice as long as you think it will. If it takes twice as long in the West, triple that in emerging market countries.
That bit of wisdom has even more bearing on what I do. But his math doesn’t begin to describe the disparity between American practice and that of our friends abroad. A quintet of my own posts touch on the issue of time in serving defendants under the Hague Service Convention:
- There is no such thing as a service of process emergency
- Foreign Holidays and Your Judge’s Timeline
- Proof takes longer than you think
- Speed and serving abroad
- Hague Service Certificates… a bit like waiting for lost luggage.
- (And then an update from a later post… You’ve got a friend in 4(m).)
The takeaway from all of those is: relax. This is gonna take a while, and very often there’s nothing you can do about it.
In our own system, service of process can be done in a matter of hours. Literally– you can sometimes measure the time from engaging a process server to proof-in-hand with a stopwatch. But when you’re serving in Germany, Switzerland, or Korea, that stopwatch becomes a calendar. When you’re serving a defendant in China, India, or Mexico, that calendar becomes two or three calendars: (1) this year, (2) next year, and (3) maybe even the year after.
Point is, attorneys are an impatient breed. An old friend (a retired Army JAG officer) once called us the most helpless race of people on the planet. Put those two thoughts together and the long time required to serve overseas drives us nuts, and we want to lash out like a temperamental four-year-old. We’ve got to get over it, because it can’t be circumvented.
Fortunately, it also can’t be held against us. As long as we’re reasonably diligent in getting the procedure rolling along, Rule 4(m) gives ample safe harbor. State doctrine almost always reaches the same result, whether by rule or by case law (sorry, Michigan & Wisconsin… you guys have a challenge).
But we must embrace the fact that the American demand for DO THIS RIGHT NOW OR I WILL HOLD MY BREATH UNTIL I TURN BLUE simply doesn’t fly “over there.”
They just giggle a bit and move our request to the back of the line. And they know we’ll start breathing again when we pass out.