Another statement we hear regularly from colleagues who very legitimately seek to save costs– and others who just want to shortcut the process in a super-cheap, super-quick way without worrying about proper procedure:

We’re going to serve alternatively instead of using the Hague.

Impossible to let that one go by without some discussion. Why? Because unless service happens (1) here in the U.S. or (2) in a Hague Service Convention jurisdiction that makes Article 10 available…

THERE ARE NO ALTERNATIVES

Let me elaborate.

This isn’t one of Aaron’s off-the-cuff, smart-aleck exclamations (though there are many of those). It comes from no less an authority than a very nice lady from Arizona, the Honorable Sandra Day O’Connor. You might have heard of her. In Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), Justice O’Connor made very clear that:

  • if the Convention applies, thou shalt adhere to it (at 699), and
  • the methods outlined in the Convention constitute an exclusive menu of options (at 706), so thou shalt not get cute.

The Convention lays out a primary method of serving defendants abroad: a Request pursuant to Article 5, sent to the designated Central Authority tasked with executing such requests. Article 10 offers alternative avenues to valid service, provided the state of destination does not object. Where the destination state does object, no alternatives are available within the confines of the treaty.*

Notice the condition of the first holding, though: if the Convention applies. That’s a complex issue. Here’s the roadmap to addressing it:

  1. Threshold question: do you have to serve (term of art), or just provide notice?  The Hague Service Convention doesn’t govern mere notice—just service.  So if you only need to notify a party, don’t sweat the Convention.**
  2. Do the documents absolutely, positively have to go to the foreign country to be served?  Article 1 is pretty clear: “The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.”  (Emphasis mine.) If the docs have to cross a border, you’re probably on the hook.
  3. Can you serve your offshore defendant via his/her/its agent here in the United States?  If so, you’re off the hook.***  If you can’t get it done here, keep reading.
  4. Is the destination country a Hague Service Convention signatory? If no, don’t sweat the Convention. If yes, keep reading.
  5. Do you have the defendant’s address?  If so, you’re definitely on the hook.  The Convention applies, so follow Justice O’Connor’s directive.  If not, “This Convention shall not apply where the address of the person to be served with the document is not known.”  Don’t sweat the Convention—alternatives, including electronic service, are just fine.  Just know that you can’t simply shrug and disavow any knowledge of the defendant’s whereabouts.  You still have to be diligent in trying to find the guy.
  6. Does the destination country object to Article 10 alternatives? (This gets to O’Connor’s second holding.) If not, then you’re still limited to that country’s allowable options, but those can be pretty flexible. But in what I call “5-O” countries, sorry. Your only avenue to valid service runs through that country’s Hague Central Authority.

So let’s say you’ve gone through that roadmap and determined that yes, you do have to serve in Korea or Mexico or Switzerland or Brazil or China or any other 5-O country.  You don’t have a choice in the matter.

So don’t get cute.

* Letters Rogatory are always available– and they don’t flout the Convention, which opens the door wide to service via diplomatic channels. But considering them an “alternative” is a bit off-bubble. Who would go to even more trouble than the Convention requires? (Well, turns out, there may be a place where it’s necessary.)

** Language geek note here: the English version of the treaty just addresses service. The equally applicable French version differentiates between notification and signification, but that is a civil law distinction that I argue isn’t germane to common law matters. It reflects various degrees of formality that we just don’t get into and they do.

*** This includes service via the defendant’s U.S. counsel, but pay heed: such service doesn’t happen pursuant to a 4(f)(3) order— it has to arise by agency theory.