By far– and I’m talking miles here– the single most frequent question to hit my inbox: “hey, Aaron, any update yet?” Most of the time, the answer is no.
In many cases, the question comes from a lawyer who needs to calm an anxious litigant who just doesn’t understand that (1) things don’t work abroad the way they do here and, (2) consequently, things take longer— a lot longer in some cases. Sure, I told the lawyer at the outset that it would take X months, and he told the litigant that it would take X months, but the litigant either wasn’t listening or didn’t believe him. [In mercifully rare cases, it’s my lawyer client who wasn’t listening or didn’t believe me.]
In still other cases, it’s an impatient judge or clerk of court trying to throw his or her weight around, and they just don’t get that U.S. courts don’t call the shots overseas. They also don’t realize that federal rules negate service deadlines outside the U.S. (a reasonable diligence standard applies instead). If state court rules don’t simply track the federal, they almost universally give wide latitude to extend.
None of that seems to matter when it’s been several months and not a peep has been heard from overseas. The question isn’t unreasonable– it’s perfectly expected, in fact– but the explanation behind the “no, not yet” is rarely simple.
Something to bear in mind…
There are three types of Central Authorities in the Hague Service Convention community:
- the highly responsive ones,
- those who respond but are at the mercy of a massive bureaucracy (and once the stuff leaves their office, tracking is not a thing), and
- those who just ignore us completely– or whose contact information on the Hague Conference website generates a disconnect notice.
The Authorities in category 1 are relatively fast– these are the ones who don’t take very long anyway– and status updates aren’t really necessary. Before counsel starts to worry, we have proof in hand, so the question only rarely arises.* Think Switzerland and Korea.
In category 2, well, the folks at the Central Authority would love to help, but the system in which they operate is so ponderous that they really can’t tell us anything. The moment the request package is forwarded on to local authorities (courts or sheriffs/bailiffs) for processing, the Central Authority is just as much in the dark as I am. Think China and Mexico here. Occasionally, we’ll get confirmation that a Request has been forwarded on to local authorities, but never anything truly substantive that gives any forecast of a timeline.
As for category 3, what can I say? Everything is in the hands of a foreign sovereign– a foreign sovereign who is under precisely zero obligation to answer to U.S./Canadian courts, or especially U.S./Canadian lawyers. They don’t give a tinker’s cuss, and it shows.
It’s the second and third categories that cause so much consternation. But there’s nothing we can do about it.**
* It does happen from time to time, but mostly as a function of overburdened government offices where things simply fall through the cracks. It’s not because of corruption or ineptitude.
** At least, there’s nothing we can do about it after the fact. In countries where faster alternatives are available, I advise my clients to spend a little more to take advantage of that speed. Sometimes the price tag drives the strategy, and they go with the slower official method. To their consternation. The biggest culprits here? Canada and Australia, of all places. Their Central Authorities are frustratingly slow. But private service is available in both, and well worth the extra cost.