Query from a colleague last week: hey, Aaron, settle a bet for me. Does Switzerland object to Article 10(a) of the Hague Service Convention?
“Emphatically,” I responded. And went on to tell him that if he tried serving his Swiss defendant by mail, the time it would take to quash it could be clocked with an egg timer.
Apparently, there had been much debate within his firm over whether they could simply FedEx the summons & complaint to Zurich, because the Hague Service Convention allows it.
Turns out, he was right, and his officemates were wrong– yes, the Convention does indeed permit* service by “postal channels” in countries that do not object to it. Switzerland objects. End of debate.
But why that’s such a slam dunk conclusion bears repeating. A couple of basic elements at work in the analysis:
where it applies, The Hague Service Convention is mandatory and exclusive.
See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), for Justice O’Connor’s take on the matter. “Where it applies” is pretty critical stuff, but in short, the HSC applies if a plaintiff has to send documents to another Convention country for service (predicated, of course, on knowing the defendant’s address). Need to serve a Swiss defendant in Switzerland? The Convention applies. Period. It’s mandatory doctrine. 486 U.S. at 699. And it’s exclusive doctrine. 486 U.S. at 706.
Fortunately, that gives you some latitude in the form of Alternative Means in Article 10. Namely…
- Art. 10(a) allows service by mail or courier– think FedEx or UPS in addition to the post office. Frankly, I think this is usually a bad idea— not because of its legal validity, but because it presents some pretty steep fact challenges. It’s also very easy to screw up if you ignore Rule 4(f)(2)(C)(ii).
- Art. 10(b) [and in some instances, 10(c)] allows a plaintiff to directly engage a judicial official or “other competent person” who can effect service. This one is awfully handy, and I’m very fortunate to do quite a bit of work under this article with colleagues abroad.
Article 10 Alternatives are available only where the destination country is okay with them.
It’s right there in the text of the Article: “Provided the State of destination does not object, the present Convention shall not interfere with... ” (emphasis added). Put another way, you can’t just read the treaty and call it a day. You have to dig a bit for the destination state’s declarations, because declarations (or, with other treaties, reservations) effect what treaty text is actually in force. If a signatory nation specifically reserves or declares objection to a particular term or article in a multilateral treaty, that particular term or article does not go into effect for that country.
- Between the United States and Canada, Article 10 is wide open– because neither country objects. Mail it,** hire a process server/sheriff/bailiff/etc., and you’re good to go.
- Between either of those countries and India, no dice. India objects, so you can’t “just hire a guy in Mumbai” to serve your client’s soon-to-be-ex-husband.
- Likewise China, Russia, Venezuela, Germany, Japan, Korea.
- If that same soon-to-be-ex-husband flies to Toronto, you’re good to go. See bullet #1 above.
- And back to our original example… mailing to a Swiss address? Nope. Switzerland objects. End of debate.
By its own terms, Article 10 goes out the window if an objection is raised. If you see “No opposition” in the chart for each country’s position on the question, then you’re solid.
BUT even then, “competent persons” are often defined very specifically.
Civil law jurisdictions don’t have process servers– at least, not in the way we common law lawyers understand them. Because service of documents is a prerogative of the court, rather than of the plaintiff, they designate specialized professionals to carry out the act. In most cases, particularly in the Netherlands, Belgium, and France, bailiffs enjoy a statutory monopoly on service. Consequently, a private investigator can’t serve in those countries, like they can in the U.S., Australia, or the English-speaking provinces of Canada.
And it’s not just civil law jurisdictions that restrict who can or cannot serve under Article 10. In Ireland, Northern Ireland, and England & Wales, private process servers can effect service, but they aren’t the “competent persons” referred to in 10(b) and 10(c). That designation applies to solicitors, who then direct process servers as their agents. Absent a solicitor’s involvement, private service in those countries is invalid.
So what happens if Article 10 methods aren’t available?
An easy, though not always a happy, answer: an Article 5 request, dispatched to the destination country’s Hague Central Authority. Or, in the case of a Swiss defendant, to the destination canton’s Central Authority (yes, you’ll need to Google some stuff). I’m also very fortunate to do a significant amount of work under Article 5– and there are lots of nuances there, best saved for another post. Still, it’s truly not that arduous (just time consuming in many cases).
Above all, plaintiff’s counsel has to make sure Article 10 is even possible before proceeding down that path. Quashed service isn’t the only risk– overseas enforcement of a judgment is a losing proposition if service isn’t properly effected under the treaty– and if you “just hire a guy” to serve in China, that guy is looking at a very long prison term for usurping the authority of the state. Chinese prisons aren’t happy places, I’m told.
* Last week, Ted Folkman’s Letters Blogatory carried the latest in a string of “Case of the Day” posts with discussion about the difference between “authorize” and “permit” in Rule 4, as they relate to Hague service. Yet again, Ted is spot-on with his analysis of a distinction only a lawyer could love.
** Still a bad idea in most cases.