For most of my childhood, Vietnam was considered an enemy state– run by a totalitarian regime worthy of America’s scorn. My parents’ generation fought a brutal war there, and endured a bitter division about that war here at home. The whole idea of Vietnam was a painful wound in our nation’s psyche. Mercifully, that changed in 1995 when Senator John McCain (R-Ariz.), who had spent seven years as a prisoner of war in the infamous “Hanoi Hilton”, argued successfully that we should normalize relations. It was (and remains), after all, a country filled with amazing people and a culture that goes back millennia. [Around the time President Clinton did normalize relations that same year, I discovered my all-time favorite lunch at a great little family joint in my hometown. See above.] But I digress. On to business…
Since October, 2016, serving process in Vietnam 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, at least, not with any coercive effect. Repeat after me—you can’t just SERVE a subpoena in Vietnam. You have to file a Letter Rogatory, roughly similar to a Hague Evidence Request (although Vietnam is not party to the Hague Evidence Convention). The same Cardinal Rules apply—this is dramatically different from serving a summons or notice.
Now, here’s how it’s done in Vietnam:
Article 5 Service
- Translate the documents, and provide a signed certification from the translator. Vietnam’s declaration to Article 5(3) requires it and, although the defendant may speak flawless English, omitting translated documents will prompt the Central Authority to reject your request.
- 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 in Hanoi.
- Sit tight. It may take a while—likely several months from submission to return of proof.
Article 10 alternative methods
- Mail service is available, provided the delivery requires a signed receipt, but I’ve always argued that it’s a bad idea anyway for precisely that reason. If you do select this route, pay particular attention to the venue court’s rules about how mail service is initiated—in federal cases, adhere strictly to FRCP 4(f)(2)(C)(ii).
- Engaging “other competent persons” under Article 10(b) or 10(c)? Nope. Sorry.
Seriously—that’s all there is to it in Vietnam. The method is straightforward and simple.
Vietnam’s declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.
Bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client. The plaintiff may not have done it correctly.
(My contact info is in the upper right ↗↗↗ if you’re on a desktop. Or down below ↓↓↓ if you’re on a phone or tablet. Just sayin’.)