No exaggeration here– be afraid. Be very afraid.
… you simply cannot listen to overseas counsel unless they understand the nuances of the Hague Service Convention as it as it applies in North America.
A couple of years ago, I posted a reboot of an even earlier post about the easiest way to find local counsel in foreign countries (see Finding foreign counsel). In a nutshell, if you search the website of the U.S. or Canadian embassy in Country XYZ, you’ll find a list of attorneys who have identified themselves to consular staff as welcoming U.S. or Canadian clients (see the State Department’s guidance on the subject here). Having someone overseas to advise you on the nuances of judgment enforcement or evidence compulsion is absolutely critical– foreign counsel are perfectly competent to comment on their own countries’ procedures. (Well, one would hope, anyway.)
But in several conversations since that post, easily once a month, colleagues have told me that “well, counsel in (Country XYZ) told me we can just petition the local court to have the defendant served, so why do we need to worry about the Hague Service Convention?”
For starters, the word “just” is a red flag in the law to begin with. “Just petition the local court” is a years-long concept in much of the world, and could even be slower than conventional channels. More importantly, though, adherence to the Convention is mandatory doctrine in U.S. law. Says who, you ask? Says Sandra Day O’Connor. (It’s also mandatory under Canadian provincial rules as well, as I understand it, but I’m not qualified to elaborate.)
Beyond that, I’ve seen nightmare scenarios involving foreign counsel’s patently bad advice– and one conversation last fall bore that out. The lawyer had already spent several thousand of his client’s dollars to petition a German* court to serve U.S. process, because a German lawyer said that was the way to go.
Noooooooo! That’s terrible advice.
I hate to be so blunt, folks, but you simply cannot listen to overseas counsel unless they understand the nuances of the Hague Service Convention as it applies in North America, and that can be tough. Here in the U.S. & Canada, lawyers are largely unfamiliar with the Convention because it doesn’t come up in their practice often. They’re so unfamiliar with it that they often seek outside/consulting counsel (hint, hint) who can handle the issue for them.**
Most foreign lawyers, however, are wholly unfamiliar with the Convention because they don’t work with it. Ever. They don’t have to, because only judicial officers or government officials can sign Hague Requests in their systems. The U.S. and Canada (and Ireland, I’ve recently come to learn) authorize lawyers to sign Hague Requests, and that’s an exhaustive list of member states.*** No other country turns its attorneys loose with Article 5 requests.
As such, before you hire anybody, you’ve got to grill foreign counsel about their expertise with the Convention (which grilling is predicated on your own expertise), and then fully train them on it. Good luck with that– this is my bailiwick, and I’ve pulled my hair out in frustration at some foreign lawyers. To be sure, I also have colleagues in India, Ireland, England… (the list goes on) who are simply fantastic, and we’ve worked together for years. I’ve had large corporate clients ask to have their foreign counsel weigh in, much to my delight– those lawyers already knew where some of the landmines are buried.
Again, there are a slew of reasons to bring foreign counsel on board, but deciding whether to adhere to the Convention is not one of them– Justice O’Connor made that abundantly clear. So any foreign lawyer who tells you “nah, don’t worry about it” doesn’t know what in the hell he’s talking about, so run far and run fast. [If nothing else, run to usm94.com and do it yourself.]
In jurisdictions that do not oppose Article 10 methods, it might be beneficial to have foreign counsel handle the boots-on-the-ground work. It might even be handy to have foreign counsel lend a hand on Article 5 requests if it speeds up a lengthy process (referring here to my awesome crew in India). But both of those situations open up minefields, procedurally and ethically.
… allows plaintiffs’ counsel to directly engage “competent persons” in the destination jurisdiction to either direct service by a private agent (see England, Ireland, Hong Kong) or to file an original petition for a local court to order service by judicial officer. Both options negate the need for the involvement of a Central Authority, and some are a slam dunk, while others are just not worth the trouble (see here for an expanded discussion of why). Just make sure foreign counsel is properly instructed and fully understands that their role is to ensure compliance with their own country’s law. They do not represent the litigant, they have no authority to negotiate with the defendant, and they should be able to clear conflicts on record, well in advance of engagement. Additionally, they should play no role in analyzing the interplay of the Hague Service Convention with your court’s rules.
In some 10(b) countries, like Italy and Spain, we can’t go directly to a judicial officer (neither specifies who is a competent person) but we can have foreign counsel petition a local court to order its officers to get the job done. Problem is, Spanish and Italian court systems are incredibly slow to begin with, so the time saved is minimal, while the cost can be sky high. It’s usually not worth the expense– but when it is worth it, you must have the right foreign counsel on board.
Above all, I usually only involve foreign attorneys in common law 10(b) jurisdictions. Elsewhere, it’s usually either not necessary or just not productive.
… necessitates that a request be filed with an appropriate Central Authority designated by the destination state to direct the service procedure. In many “Five-O” countries, as I call them (Article 5 Only— they oppose Article 10), the Central Authority is pretty efficient, so it’s completely unnecessary to have boots on the ground (see Germany, Switzerland, Korea, Japan).
But in other Five-O’s (India, Mexico, China), service– or rather, return of proof– takes so blasted long that litigants often want their own counsel in that Five-O country to handle everything. That’s a huge, blaring, warning siren (my trepidation has been both confirmed and allayed in various cases). For starters, foreign counsel has no authority to act unless the Requesting Authority (ie: the U.S./Canadian lawyer or court) designates them. But even when they are so designated, they can do more harm than good — often serious damage– to the effort if they don’t know how the thing is supposed to work.
Again, lawyers in the U.S. & Canada only touch this treaty once in a blue moon, but lawyers in Five-O countries NEVER handle the procedure unless someone here brings them into the mix. Everywhere else on the planet, the authority to sign Hague requests lies with court or government officials; counsel for the litigants has nothing to do with it. So how can they be of any assistance with a Request going in the opposite direction? I have seen solid Hague requests entirely thwarted because counsel in the destination country rankled the local authorities so badly that they just sent a rejection to back the applicant.
Don’t be that applicant.
Due diligence goes a very long way.
Again, I have highly trustworthy counsel in a lot of places around the world. Some of them I literally stumbled across or found through embassy resources. Others I’ve met through other colleagues or on my various travels. All of them do a great job for me and for my clients. But I’ve vetted them– or at least, they’ve been endorsed by people whose endorsements I can take to the bank. If I can’t vet them, I can’t use them.****
* This issue applies to ANY country that objects to Article 10, and it applies to most countries that don’t object.
** My financial planner finds that idea simply delightful.
*** In international parlance, the word state means something different than we thing of it here in ‘Murica. The U.S. and Canada are Hague Service Convention member states.
**** One additional, massive concern to keep in mind when you involve foreign counsel: the Foreign Corrupt Practices Act. Discussion of that concern goes well beyond the scope of this post, but the bottom line is that where foreign counsel acts as your agent, if they do something that violates it, you’re on the hook for civil and criminal penalties. Even activities that are perfectly legal and routine in the foreign country could be illegal here in the U.S., so again, be wary.