I say all the time that we aren’t building rockets here. But we are building a ship of sorts, and if the vessel is leaky, we won’t make it to port and the captain will be grumpy. Woe be his kids who are running around town singing nonsense songs and wearing drapes.*
Do it the right way, and your journey is smooth. Beginning September 12, 2020, serving process in Austria is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter– and that looks to make things easier– and significantly cheaper– than it was before. 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 help with subpoenas. Repeat after me—you can’t just SERVE a subpoena abroad, at least, not if you want it to have much effect. Instead, you have to file a Letter Rogatory, roughly similar to a Hague Evidence Request (although Austria is not a 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 service is effected in Austria, noting that Austria has not fully expressed its wishes regarding certain issues arising under the treaty:
Article 5 Service
- Translate the documents. Under the pre-Hague regime, Austria not only required a translation into German– they insisted that their own certified translators do the work. Although the defendant may speak flawless English, omitting translated documents will prompt the Central Authority to reject your request. (And to be sure, they may still require the work to be done in Austria, even though this arguably conflicts with the treaty. Absent more guidance, it’s impossible to say.)
- 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 appropriate Central Authority. In the case of Austria, it’s the Bundesministerium für Justiz (Ministry of Justice).
- Sit tight. It may take a while—likely several months from submission to return of proof.
Article 10 alternative methods
- Alternatives are not available, because Austria objects to Article 10 in its entirety. Service in Austrian actions is within the purview of the court– not plaintiff’s counsel– and statute prohibits service of foreign process by mail, so Article 5 is the only way it can be done. Austria filed its declarations with the Dutch government months ago, but this information has yet to post to the information site at the Hague Conference on Private International Law.
Seriously—that’s all there is to it. The method is straightforward and simple. The declarations and Central Authority information of all the other countries in the treaty—can be found here. Once more substantial guidance is issued, this space will be updated.
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.
* For the uninitiated, Austria is home to the legendary Von Trapp family, the subject of one of my favorite musicals. I don’t sense that the real Captain Von Trapp was as grouchy as Christoper Plummer made him out to be. Until a couple of years ago, I had two mental images of Austria. One was bucolic Salzburg “in the last golden days of the thirties”—that of the Von Trapps and The Sound of Music.
The second was the snowy Vienna of Amadeus—that of footlit operas, a clownish genius in Tom Hulce’s portrayal of Mozart, and an Emperor who looked a little too much like the vice-principal from Ferris Bueller’s Day Off.
In 2015, Woman in Gold changed that… the list now includes the works of Gustav Klimt and an epic legal battle arising from the Nazis’ theft of priceless art works. I watched the film on a transatlantic flight and was thrilled, but bemused, because the young lawyer handling the case (Ryan Reynolds) walked into Austria’s consulate in Los Angeles with his client (Helen Mirren) and served process by sliding a summons through a banker’s window to a receptionist.
Alarm bells started going off in my head, because for one thing, you shouldn’t hire Deadpool to represent you. Not even Wade Wilson can just walk into a consulate and drop a summons on the receptionist’s desk. The Foreign Sovereign Immunities Act says otherwise. (To be sure, I tried to contact Randy Schoenberg, the lawyer played by Reynolds, to see how he actually did it. No answer. Either he did it some other way and Hollywood embellished, or defense counsel didn’t know how easy it was to get that thing kicked.)
In any event, a fantastic movie with a compelling story, and a stunning work of art at the center of it all.