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:

1. the highly responsive ones,
2. 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
3. those who just ignore us completely.

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.**

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* 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.

Over the past decade I’ve submitted dozens– if not hundreds– of Hague Service Requests to the People’s Republic of China. It takes quite a while for proof of service (or failure) to come back, usually many months but sometimes as long as two years. That’s not a typo, and it’s incredibly frustrating for U.S. and Canadian litigators. The frustration doubles when a request fails after so much time has passed, and it doubles again when we see this reason for failure:

No such defendant at the address provided.

Harumpf. Harumpf harumpf. I mean a Mel Brooks-style harumpf harumpf.

Pretty ambiguous, that statement. Did we not properly name our defendant? Do we have a bad address? Did we strike out on both?

Every single time clients ask me to have a Chinese company served, I recommend that they undertake– at additional cost, of course– some research to look into that company and make sure it’s properly named and located. Just like we’d do with a corporate defendant here in North America.

Every. Single. Time.

When a client declines to avail her/himself of a little advance intelligence, the odds of failure literally skyrocket. To be sure, the investigation is no guarantee that service will be executed– it takes so long to get the thing pushed through the system that defendants often move before local officials get around to serving. We’re always dealing with the caprices of local officials who may not be entirely honest or motivated, or a judicial officer who might simply be in a bad mood because he had a fight with his wife at breakfast. There are about 137 variables that can throw the train off the tracks, an incorrect or incomplete address being just one. And this doesn’t apply solely to China– it’s the same calculus anywhere we rely on officials to effect service.

But a little homework at the beginning eliminates the single biggest problem in China.

The big questions surrounding that homework…

What?

What’s necessary? Nothing truly onerous. Just a reasonable inquiry into the defendant, to make sure you’re doing everything you can to serve successfully, hale the defendant into court, and make your client whole.

Why?

Why be so persnickety about this? Well, Big Tony (my 2L Business Organizations professor in law school) hammered into us on Day 1 that, if you’re going to sue an entity, you’d better name it properly, or your cause of action is dead before it leaves the starting gate.

That’s a vital, but not incredibly tricky, question in China. Chinese companies have to follow a recipe when they set up shop and paint a name on the door. Writes my friend and fellow global legal tour guide, Dan Harris, over at the China Law Blog about setting up a WFOE (Wholly Foreign-Owned Enterprise):

• In China, only the Chinese language name has any legal status; as a legal matter, the English is not relevant. This means you can use any English language name you want.
• Chinese company names follow this rigid structure: [City of formation] Company Name [business type] [Company Ltd.]
• So, an English equivalent of a typical Chinese company name would be: Shenzhen ABC Consulting Co. Ltd.
• The elements in [] square brackets are fixed by the local government. This means the only thing we need determine now is the Company Name. Since as you can see, company names can get rather long, it is usually best to limit the Company Name part to 3 or 4 Chinese characters at most.

For the record, Dan’s outline tracks with everybody else out there who writes about corporate naming conventions in the PRC. Take this to the bank, and recognize that, if your defendant’s trade name is “Chairman Mao’s Widgets” you can be assured of failure if that’s the name you slap on your summons and Hague Request.** Chairman Mao’s Widgets might be the name the company holds forth to the world in English, but the legal Chinese name literally translates to Shanghai Mao Rocks Widget Manufacturing Co. Ltd.

Sometimes the name starts in English but gets translated very poorly (ie: phonetically, Pidgin) into Chinese. As Dan stressed, a company can use any English name it wants, but the Chinese name is the only legally relevant moniker.

(To be sure, the necessity of an accurate name applies to individual defendants as well– but they’re a lot harder to track down absent a listing in a corporate filing or high internet profile. You can bet a request to serve Dave Xiaoping is going nowhere when his real name is Deng Xiaoping.***)

When?

When should it be done? The best time to undertake the investigation is before the suit is even filed. It saves a huge hassle to pinpoint the name in the first place, because you still have that single bite at the amendment apple that doesn’t need justification with the court. But if you’re already filed, you still absolutely must have the correction made before translation and before you send the Hague Request to Beijing. At that point, it’s all over but the shouting. There are no requests to amend over there. No mulligans, no do-overs. no take-backs.

You’re back to square one, starting over with a whole new Request and the additional costs that entails.

Who?

Hire a reputable, professional investigator in China. Yes, they have them, on the mainland and in Hong Kong. Don’t just call your usual guy that skip traces U.S. defendants for you, because it’s just not the same undertaking. And if your usual guy doesn’t speak and read simplified Chinese, well, how accurate do you think his result is going to be?

If an actual Chinese investigator provides the name and address of your defendant, it may differ from an SEC filing or Bill of Lading, but those documents don’t necessarily identify the proper address for service. That gets to the next question…

Where?

“Where?” is the most important question in serving any defendant– not just in China, but anywhere, at home or abroad. The single, most important piece of information in serving a properly identified defendant is his/her/its location.  Without the “where,” nothing else matters. 

The research we do at the outset gives us not only an accurate name and correct address for a Hague Service Request– it also gives us ammunition for alternative service in the rare instance that a Request fails. I once worked a case where my client (plaintiff’s counsel) took my advice and paid for an inquiry into the company defendant. My investigator came back with an address that appeared not only on the entity’s website, but also in its registry. Unquestionable intel that went straight into the Hague Request. A year later… “No such defendant at the address provided.” So we asked for — and were granted– a 4(f)(3) order to serve electronically. Now, that would have conflicted violently with the Hague Service Convention, but the Certificate of Nonservice was an official statement from the Central Authority that we didn’t know the defendant’s address. That negated applicability of the Convention.

Defense counsel (herself a Chinese lawyer admitted in the U.S.) argued until she was blue in the face that we violated the treaty. She contended that we had the right address, the company website and the registry agreed, and we agreed. The Central Authority called the shots, though, so it would be silly to think that it would work a second time. That didn’t matter, she insisted, telling me to resubmit and just tell the Chinese authorities to go back and do it properly.

Um, huh? Have you ever been able to order the Chinese government around?

The judge was not amused. He told defense counsel to shut up and stop being silly… all because we knew what we were doing and had done our homework in the beginning.

Wrapping up

No exaggeration here– just attempting to serve a defendant in China costs thousands of dollars and a year or two of a litigant’s life. Spending a few hundred extra dollars early to mitigate the odds of failure is always a worthwhile expenditure.

I cannot recommend an investigation strongly enough.

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* I did not name this outfit. NECIPS is a silly-sounding acronym, but they tell me it sounds awesome in Chinese.

** This applies to Hong Kong as well, but with even more peculiarity. Take a read of A Hong Kong Cautionary Tale for more.

*** Set aside the fact that Deng is his surname.

Terrible news to wake up to this morning– a massive container ship, some three football fields long, crashed into a pier of the Francis Scott Key Bridge spanning the Patapsco River and serving Baltimore Harbor. Around 1:30am, the central span collapsed, causing, at this writing, at least a half dozen vehicles to plunge into the river and closing off traffic to a critical commercial artery.

Stories abound concerning the ship and its safety record, so in addition to wrongful death and personal injury lawsuits, we anticipate significant litigation over property damage and disruptions to an already tenuous supply chain across many industries.

That litigation, notwithstanding the expected loss of life and impact on the Baltimore economy, will still be subject to the same procedural requirements as any other. Namely, whether the defendants are to be served in Denmark (Maersk) or Singapore (Synergy Marine) or elsewhere, adherence to the Hague Service Convention remains mandatory.

Above all, here’s hoping the loss of life and limb is limited, and that the disruption to the Baltimore community is resolved quickly.

(Author’s Note: this post was held for publication in honor of Justice Sandra Day O’Connor, who passed on Friday at the age of 93.)

Until this fall, serving process in the tiny-but-thriving nation of Singapore entailed a similar approach to serving in another U.S. state or Canadian province. That is, as a former British colony, it maintains a common law judicial system. As long as a competent process server was involved, and Singapore’s rules were followed in tandem with the forum court’s rule, it was smooth sailing (I always used a solicitor to direct the process server, just to ensure legal validity on both sides of the ocean).  As of December 1, 2023, serving process in Singapore is now subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter. Yet that doesn’t necessarily mean the seas have become rough.

You’ve got three ways to go:

1. Tap us on the shoulder for bespoke attention—and probably some amusing commentary to boot (see the upper right if you’re on a desktop, or way down below if you’re on a phone/tablet),
2. Cruise over to the Hague Envoy platform at USM94.com to automate the completion of your forms in perhaps twenty minutes or so, or
3. If you’re feeling froggy & would like to handle the whole thing yourself, keep reading.  This lays out the framework you’ll need.

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 frequently help with subpoenas.  Repeat after me—you can’t just serve a subpoena in Singapore. At least, not if you want it to have much effect.  Instead, file a Hague Evidence Request.  Dramatically different from serving a summons or notice.

Now, here’s how service is effected in Singapore:

Article 5 Service

• Translate the documents? Well, no. Again, in a former British colony– especially one so immersed in international commerce– English is still the prevalent, official language and English is required for all documents and requests sent to the Central Authority. But that isn’t the end of the analysis– if your defendant isn’t demonstrably competent in English, U.S. due process (in Canadian parlance, natural justice) necessitates that process be served in a language the defendant understands.*
• 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 it to the Central Authority along with the requisite fee.
• Sit tight. It may take a while—likely several months from submission to return of proof, although Singapore is brand new to the treaty so there’s no track record yet.

Article 10 alternative methods 

• They simply aren’t available, because Singapore objects to them all. Article 5 is the only way it can be done.

Seriously—that’s all there is to it.  The method is straightforward and simple. 

Singapore’s declarations and Central Authority information can be found here.

Bonus practice tip #1: if the idea is strategically sound, ask the defendant to waive service.  Note that I didn’t say accept— I said waive.  There’s a very important difference.

Bonus practice tip #2: if you’re defense counsel, always question the validity of service effected on your overseas client.  The plaintiff may not have done it correctly.