The Peace Palace, The Hague. (This shot was taken in December, 2019, as the Rohingya genocide case was being argued before the ICJ.)

“They tell me I have to serve through The Hague.”

I hear that phrase at least three or four times a month, and while I forego the inclination to offer that Hague requests don’t actually get sent to Holland (unless they’re being served there), I do have to clarify a couple of thoughts on the matter very early in every conversation.  Above all, if a defendant is to be served in a fellow Hague Service Convention jurisdiction, the service has to comply with the Convention– simple as that.  And if anybody tells you otherwise, introduce them to the Honorable Sandra Day O’Connor and Article VI of the U.S. Constitution.

More specifically, tell them to read Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988). It’s a humdinger.

Beyond that, the concept of “Hague Service” can mean quite different things depending on where the defendant is located.

To my callers’ original point, yes– service in a Hague country must comply with the treaty.  But that means different things in different places.  In some jurisdictions, that compliance doesn’t necessitate the involvement of a foreign government.  In others, the involvement of the foreign government isn’t just a good idea; it’s compulsory.  Once you’ve identified where the docs are going, a bit of strategic analysis may be necessary.  Such analysis also may not be possible.  Some examples:

  • China (other than Hong Kong and Macao):  forget any analysis, because there’s only one way to properly do it… an Article 5 request, using a standard Hague Request Form, commonly called a USM-94 here in the states.
  • Germany: likewise.  USM-94 or forget it.
  • Switzerland: ibid.
  • Mexico: same.
  • Japan, Korea, India, Greece, Norway… yep.  Getting the picture?

There are many others where mail service is available under Article 10(a)– although I contend that it’s a horrible idea under the Convention,* latched onto only by lazy or cheap lawyers who aren’t overly concerned about actually proving service.  In many places, you really can just hire a process server or local counsel or a local bailiff to serve.  Among them:

It bears repeating… the most important bit of information in serving process is “where?”  Nothing else matters unless the defendant can be located.  And once located, analysis of options may or may not be possible.

* In some rare situations– only in non-Hague jurisdictions– mail is actually the best starting point, but only because no truly better options exist.