CIA World Factbook, via Wikimedia Commons.

This blog carries a good many posts about country-specific procedures under the Hague Service Convention, and that’s completely intentional.  But until now, there hasn’t been a consolidated list of them, easy to click and access.  Here’s a handy index of “how to” posts for serving in the most prevalent countries in the Hague community:

And a trio of non-Hague countries for good measure (just because they aren’t Hague signatories doesn’t mean all is lost):

Curious about a particular country that isn’t listed here?  Check the search bar above, and if I haven’t written anything about it, by all means, tap me on the shoulder at hlb@vikinglaw.us with a suggestion.

RalphGL, via Wikimedia Commons.

Due Process isn’t solely an American idea.  It goes by other names in other countries (natural justice in Canada), but it is still a bedrock concept in most judicial systems that espouse fairness and the rule of law.  Germany, in particular, views due process rights as inherent and inviolable (this is the central tenet of its Basic Law, arising as a reaction to the horrors of Nazi tyranny).  Accordingly, when German authorities receive a Hague Service Request accompanied by a “date certain” summons, they are meticulous about ensuring that a defendant has sufficient time to retain foreign counsel to litigate.

Put another way, if a summons demands a German defendant’s appearance in a U.S. court on a specific date, the request for its service has to arrive at least two or three months in advance.  The bureaucratic wheels must turn and the defendant must be afforded time to answer.

Example:  the summons indicates a hearing date of June 1st.  The defendant should reasonably expect at least three or four weeks’ answer time,* so it has to be served by May 1st, if not earlier.  But that isn’t the date the request should arrive in Munich or Berlin or Freiburg.  Anticipate at least a two-month processing time by the German authority– preferably three (or even four).  This means that if the forum court demands the defendant’s appearance on June 1st, the request can’t arrive later than March 1st.   February 1st is better, and January 1st is better still.

An even more problematic variation:  any summons containing self-expiring language, such as a bankruptcy court summons to an adversarial proceeding.  “This summons shall expire 30 days following its issuance” is especially difficult to handle, as it leaves no latitude for the plaintiff to adhere to the mandatory nature of the Hague Service Convention.  In just about all cases, these summonses die sitting on the desk of a clerk– awaiting processing.

The only solution there is to remove all “date certain” deadlines or expiry language, if possible.  If the forum court won’t work with you, you’re in a Catch-22 situation.  Not fun.

And the only practical solution to the “date certain” dilemma:  push the thing out far enough to allow the Germans to do their job.  For Mexico, India, China, and Venezuela… give it at least a year.  No, seriously.  I mean it.

 

* NB: ordinary U.S. federal summonses carry a 21-day answer deadline (and most states between 21- and 90-day deadlines), but these are not problematic, as the required answer period relies on the date of service– not the court’s calendar.  These sorts of summonses usually sail through without any raised eyebrows.

Seriously, this is a nice way to spend an hour & a half. It’s no Citizen Kane, but who cares?

My wife gives me incessant grief because I enjoy romantic comedies.  I’m kind of a sap.  One rom-com that I absolutely adore is My Life in Ruins, a fun little film by Donald Petrie, set in Greece and starring Nia Vardolos (of My Big Fat Greek Wedding fame).   An essential element of the plot is the insistence by Vardolos’ character that they do everything far too slowly in Greece.  Personally, I don’t think so.  They’re simply more relaxed than the rest of us.

Okay, by common law standards, sure, Greece is pretty pokey.  But compared to other civil law jurisdictions, service of process in Greece is comparatively quick.  The procedure is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.

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.

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

Article 5 Service

  • Translate the documents. Greece’s declaration to Article 5(3) requires it and, although the defendant may speak flawless English, omitting translated documents will prompt the Central Authority to reject your request.
  • 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 to the appropriate Central Authority.
  • Sit tight.  It may take a while—likely four months or more from submission to return of proof (although in our experience as of Spring 2024, Greek authorities are getting things done even more quickly!).

Article 10 alternative methods

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

Seriously—that’s all there is to it.  Greece’s declarations and Central Authority information can be found here.

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

“Wet ink”: exactly what you think it means.  (I like fountain pens.  They make my scribbly handwriting look almost elegant.)

An interesting quandary popped up a few weeks ago.  My client (all of my clients are fellow lawyers) told me that he’d just received the translations of the documents he needed to serve in China, and was about ready to file them with the court.

I was a bit puzzled.  What do you mean?  File the translations with the court?

“Well, yeah,” he replied.  “You told me I needed a wet ink* signature on the summons.  I needed the translation so the clerk could sign it.”

My response:  Yes, the clerk needs to sign the summons itself.  Not the translation.

Translations are required– or at least, necessary– for service in just about every country in the world that wasn’t once a British colony.  It’s even necessary in one jurisdiction that was once a British colony (je te regarde, Québec!).  But the translation is only sent so that the foreign government and the defendant know what the operative English documents say.  The translated copies are not operative in and of themselves.  As such, they don’t have to be filed with the venue court in the United States, and they don’t need to carry the same signatures & stamps as the originals.  They just need to tell a foreign reader what the stamps say.

In short, translate after you have everything filed.

Think of it this way– if the documents aren’t ready to hand to a process server in Pennsylvania or Idaho, they aren’t ready to hand to a translator.  They also aren’t ready to hand to someone like me for submission of a Hague Request.

Now, to be sure, there are a whole bunch of issues to keep in mind when selecting the right linguist.  There are many out there, both good and bad, so don’t just go for the low bid, because it really could come back to haunt you.  Keeping translation costs down is a challenge, but that’s under your control, Mr. or Ms. Litigator– not the translation provider.

Regardless, the timing of the translation is exceedingly straightforward: do it after you have the documents assembled, as if the defendant is in Pennsylvania or Idaho.  Everything that would be handed to a defendant here at home must be handed to a defendant in a foreign country– and if translation is necessary, every page, every word, and every text-bearing image must be formatted in the foreign language.

* Some Central Authorities in the Far East– especially in India & China– are skeptical of laser print copies of service documents.  They don’t necessarily view those copies as authoritative or as “bearing the imprimatur of the court.”  I think that’s with pretty good reason, frankly– anybody can print a document from PACER if they have access, so a little skepticism is warranted.  Still, the easiest way to overcome the skepticism is to have the court issue a summons over a “wet ink” signature, preferably with a stamp or embosser or a pretty red ribbon like they still have in some places.

This means the clerk has to actually pick up a pen (gasp!) and sign her/his name to the document.  This also means the clerk will look at you like you have three heads (it’s 2018, counsel– are you nuts?).  Just explain that, because the documents are going to a foreign country, they have to imagine it’s 1978 again.  Or point them to this blog.

Peace Garden– Manitoba/North Dakota border.  [Bobak Ha’Eri , via Wikimedia Commons.]
This blog is primarily geared toward U.S. and Canadian attorneys who need to serve documents off-continent.  For the most part, there’s no difference between what a U.S. lawyer must do and what a Canadian lawyer must do to serve in Asia or Europe or many other parts of the world.  Our systems are incredibly similar, and so are our respective declarations to the Hague Service Convention.  In short, if I say that “a Hague request must be filed with the appropriate Central Authority in (Country X),” that requirement applies whether the action is being heard in Manitoba or Mississippi.  What I haven’t addressed– until now– is how Canadian actions must be served in the United States.  So, for my colleagues north of the border, 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 will, 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 pertain to subpoenas.  Repeat after me—you can’t just SERVE a subpoena abroad.  At least, not if you want it to have any teeth.  You have to file a Letter Rogatory.  Dramatically different from serving a summons or notice.  But in the U.S., even that isn’t necessary.  It’s far quicker and more effective to hire U.S. counsel (I suggest you contact Ted Folkman for help) to file a request under 28 U.S.C. § 1782 in whichever federal district the evidence (or deponent) is located.

As to serving Canadian process in the U.S.:

Article 5 Service

  • Translate the documents. The U.S. declaration to Article 5(3) requires that documents be in English.  For most Canadian actions, that’s no problem, but if the action is being heard in Québec, then the documents are probably in French.  That triggers a natural justice question (due process in the U.S.), so it’s highly advisable.  To be sure, the U.S. Central Authority does not require translation of French documents, but if the defendant isn’t a French speaker, big problems follow.
  • Fill out a Hague Service Request, referred to down here as a USM-94 (use the Hague Envoy platform for a sort of assisted do-it-yourself option). Be very careful about ensuring that it is complete and concise, and make sure that it is signed by an authorized person (this is an exhaustive list)…

– Attorney General for Canada
– Attorney General, Ministry of the Attorney General or Minister of Justice of a province or territory
– Clerks of the courts and their deputies for a judicial or a court district.
– Central Authority for Alberta
– Deputy Minister of Justice, Northwest Territories
– Huissiers and sheriffs
– Local registrars
– Members of the law societies of all provinces and territories
– Members of the Board of Notaries of the Province of Québec (for non-litigious matters only)

Article 10 alternative methods

  • Mail service is available, depending on the venue court’s rules, but it’s a bad idea anyway.
  • Service via private agent (process server) is available to Canadian litigants under Article 10(c).  Technically, it doesn’t even have to be a professional process server, although that’s a good idea– if you have “the plaintiff’s cousin Todd” do it, there’s a pretty good chance Cousin Todd will screw things up, and you don’t want that hanging over your head.  Easiest way to find a pro: just Google “process server (city where the defendant is located)” and you’re good to go.  Just make sure that you write the affidavit in a form used by the venue court.

The U.S. declarations and Central Authority information can be found here.

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

Thomas Luny – A British Frigate Backing Her Sails (public domain, via Wikimedia Commons)

Pardon the very esoteric pun.  For the uninitiated, see here.  You know the tune.  But most of us Yanks don’t know the words:

Rule, Britannia!
Britannia, rule the waves:
Britons never will be slaves.

Bear with me here.  From time to time, a problem will come across my desk that is simply baffling.  And frustrating.  American lawyers still occasionally fail to inquire about the proper procedure to serve an overseas defendant, preferring to simply do it the way they do it around home.  But it doesn’t work that way.  France governs how to serve process in France.  China dictates how to serve process in China.  And Britannia rules the ways a defendant can be served in Britannia.  (I’ll move on to an illustration.)

Billy Bob Baggins, an attorney in Bree, Missouri (the county seat of Eriador County), has the idea that, well, his case is being heard in the District Court for the 236th Judicial District of Missouri, so the Missouri Code of Civil Procedure* governs the manner in which a defendant must be served.  The MCCP says you should serve an out-of-state defendant by affixing a copy of the summons and petition to the door of his residence with blue masking tape (not red, not white, not battleship gray… blue).

Just inside the gate at St. Edmund Hall.**

When Billy Bob finds out his defendant, Jimmy Aragorn, is a Rhodes Scholar living in Oxford, England, he gets on the internet and finds the yellow pages for Oxford.  He finds a fellow he likes and instructs the fellow to print off the documents and take them to the defendant’s address, St. Edmund Hall, Queen’s Lane, Oxford OX1 4AR.  The process server knows full well that this situation is pretty silly– St. Edmund Hall is one of the colleges of Oxford University, and it houses well over a thousand students.  All of them have the same address– and they’re cloistered, protected by a security guard that isn’t about to let just anybody in the gate. –>

Despite the silliness, having been denied entrance to the college by the guard in the porter’s lodge (yeah, they still have those in Oxford), the process server dutifully pulls out the roll of blue masking tape he picked up at the Boot’s on High Street, and plasters the papers to the door of the porter’s lodge, with Jimmy’s name in big block letters on the front.

SUCCESS, he reports to the Missouri lawyer.  Tally ho, good chap… proceed with the hunt.  That’ll be a few hundred quid.

But it’s all for naught.

See, serving process in England is governed by the Hague Service Convention.  The Convention– and the seminal case regarding the Convention, Volkswagenwerk Aktiengesellschaft v. Schlunk (1988)– requires deference to the law of the location where a defendant is served.  And that requires plaintiff’s counsel to not only read the treaty, but also the destination country’s declarations thereto.

The law of the forum doesn’t apply.  And why?  Because the Supremacy Clause says so.

This is disconcerting to the judges of Missouri’s 236th Judicial District, because they keep their dockets moving like a well-oiled machine (really, they do!) and they don’t need some prissy Brit telling them how to run their courtroom.  Their ire is to no avail, because the U.K. has made pretty clear that American lawyers are welcome to hire a private process server– they just have to make sure the process server is instructed by a solicitor.  Their rules also require a bit more respect for due process than the blue tape method would provide.  College students are college students, so this particular defendant’s summons has a life expectancy of about thirty-eight seconds once a group of undergrads sees it on their way home from the Eagle & Child.**  In short, Jimmy never gets actual notice, and English law isn’t respected, so Billy Bob, back home in Bree, is out of luck.  The service he thought was solid, really isn’t.

Pity there isn’t a search engine that could guide him to the right way.

 

* Okay, so I tweaked the terms a bit.  We have trial court circuits in Missouri, not districts.  And our Rules of Civil Procedure aren’t referred to as a “Code”, so this MCCP is purely fictional.
** St. Edmund Hall, or “Teddy Hall” to those in the know, is the site of UMKC’s annual summer CLE Abroad program on English Law.  A heck of a nice way to spend two weeks in August.  The Hall sits less than a mile from The Eagle & Child— reputedly, J.R.R. Tolkien’s favorite pub, where he invented Hobbits and Orcs over several pints with C.S. Lewis.

The Eagle & Child, St Giles’ Street, Oxford.
PXL_20251213_075431904
Sagrada Familia, Barcelona. Photo by the author.

Once we get past the romantic mental images of bullfights and Picasso, or of Hemingway running through cobbled streets in a white shirt & red scarf, Spain is rightly seen as a highly industrialized society– one with many of the same problems shared by its Mediterranean neighbors, and much of the same sunny, sophisticated allure.  Serving process in Spain is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.

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.

Here’s how service is effected in Spain:

Article 5 Service

  • Translate the documents. Spain’s declaration to Article 5(3) sort of requires it and, although the defendant may speak flawless English, omitting translated documents will prompt the Central Authority to reject your request.*
  • 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 to the Central Authority.
  • Sit tight. It may take a while—anywhere from nine to twelve months, from submission to return of proof.

Article 10 alternative methods

  • Mail service may be available, depending on your venue, but it was a bad idea even pre-pandemic, and even worse now.
  • Service via local counsel is available under Article 10(b)– a procurador (a Spanish attorney, roughly akin to a French hussier de justice**) seeks the assistance of a local court to effect service without the involvement of the Central Authority.  It can save a couple of months or more, but the cost in many cases outweighs the speed.  If time is of the essence, though, this can be a fantastic option.  Just make sure local counsel is adept at Hague issues.

Seriously—that’s all there is to it in Spain, but don’t get excited.  Sure, the method is straightforward and simple, but it’s going to take a while, even if you have a lawyer handling things for you in-country.  The wheels just move more slowly than they do over here.

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

* Technically, it’s not an outright requirement.  But the declaration is so vague as to essentially make it mandatory.  Rather like saying, “yeah, we’re not saying you have to, but don’t expect results if you don’t.”

**  I said roughly akin.  Not identical, not parallel…

A field of opium poppies in… England? (Andrew Smith, via Wikimedia Commons)

Cities, counties, and states across the country are launching an avalanche of lawsuits directed at pharmaceutical manufacturers who allegedly colluded to overprescribe and overdistribute narcotic pain medications.  They’re joined by health insurance carriers, unions,  pension funds, and other interest groups in perhaps the most massive group of cases in history.  See here for just the latest (at the time of this writing) New York Times story on the issue.  I have to disagree with the Times on one point: this is far bigger than the tobacco litigation of the 1990s.

The big name defendants:  Amerisource Bergen, Pudue Pharma, Mallinckrodt, Jansen, even Johnson & Johnson (yeah, the baby shampoo guys!).

But a little less known are the foreign companies named in many of the suits… Allergan plc (formerly Actavis plc), Mallinckrodt plc, and Teva Pharmaceutical Industries Limited.  These defendants, barring an agreement to waive or accept service of process here in the United States, still have to be served pursuant to the Hague Service Convention.  Litigation teams cannot just assume that, because they’re already litigating other cases, it isn’t necessary to serve them.  Proper formalities must still be observed, and that means different things in different countries.

Specifically:

  • Allergan plc… Ireland
  • Mallinckrodt plc… England
  • Teva Pharmaceutical Industries Limited… Israel

Fortunately, none of those three countries are particularly arduous, but it is still important to know the differences between them.  They don’t all work the same– and they certainly don’t work the same as northern Ohio!

Public Domain, Wikimedia Commons.

An attorney called me last week from Chicago.*  He said that his client’s five year-old son had been plucked out of Illinois by his father and taken to the father’s home country, Poland.**

The lawyer’s two questions:  (1) how quickly can I get the father served with a summons and custody petition under the Hague Convention, and (2) how difficult will it be to get the Polish courts to enforce the order once Cook County issues it?

Well, to answer your questions, (1) a few months, and (2) it’ll be difficult and costly. 

But those aren’t the right questions.  If I read you correctly, the primary objective is to get the child back, right?  (“Of course,” replied he.)

Then I have some good news for you.

See, in any matter involving a cross-border dispute, you’ve got to work in the right treaty– child custody questions are no different.  But “the Hague Convention” doesn’t exist.  Poland and the United States are indeed party to the Hague Service Convention, and that’s the treaty the lawyer had in mind.

The right question here is “what is the proper procedure for securing the return of an abducted child under the Hague Child Abduction Convention?”  That’s where the good news lies, because much of the world shares our view that the speedy return of a child to his home shouldn’t have to wait on lengthy and arduous court proceedings, especially where those court proceedings could take months to even initiate given the strictures of the Service Convention.  Poland and the U.S. are also party to the HCAC, which provides a more expeditious mechanism for securing a child’s return home than regular transnational litigation can offer.   [Important follow-up post, 7/8/2020:   The Hague Child Abduction Convention: who to call.]

Under the Abduction Convention, a court proceeding isn’t entirely necessary.  If it can be demonstrated that a child has been removed from his or her country of habitual residence without the consent of a parent– or if a child is taken abroad with consent but not returned as expected— then the matter is reduced to cooperation among law enforcement agencies rather than a question of judicial comity.  Put another way, it’s a quasi-administrative matter, rather than judicial procedure.

Step 1:  contact local law enforcement.  They’re the first actors in the drama, as it were, and they should handle most of the heavy lifting, thus saving the U.S. parent substantial costs.  The police will work through the U.S. Department of State to coordinate with law enforcement in the other country, with a single goal in mind: get the child home.  All of the wrangling over custody orders and child support comes later.  You’re not going to serve a custody petition, litigate the matter, and drag things out to an eventual order… that’s not the optimum course of action.

Notice that there’s no Step 2.  That really depends on what the police and State Department are able to do on the other end of the line.  (The State Department’s FAQ site can be accessed here.  Lots of preventive and remedial measures are available.)

Of course, this is an awfully reductionist view of the process– there’s far more to it than can appropriately fit in this space.  The bottom line is that securing the return of an abducted child does not require the same procedure as getting a divorce or winning a tort judgment.  A specific international legal doctrine provides for “the prompt return of children wrongfully removed to or retained…” ***

Handy stuff.  And cause for at least a bit of relief for parents whose children have been taken abroad against their wishes.

* No, it wasn’t really Chicago.  Names have been changed to protect the innocent.

**  No, it wasn’t really Poland.  This is illustrative.

*** The Convention doesn’t apply only when a child is taken without a rightful parent’s consent.  It also applies when the child is taken with parental consent, but not returned as agreed.  The typical scenario: little girl goes to Germany to spend the summer with Oma & Opa, and they (or the other parent) refuse to bring her home before school starts in the fall.

 

Via Wikimedia Commons.

On at least three separate occasions in as many weeks, a client or client’s paralegal has asked me for guidance on the issuance of a summons.  In each case, the clerk of court insisted that (1) a special summons was necessary in order to comply with “Hague Convention requirements”, and that (2) the foreign Central Authority had to be appointed as a special process server.

Ahem, no.  Neither is accurate.

For starters, there’s no such thing as THE Hague Convention.  There are more than three dozen of them.  Now, here, it’s obvious they mean the Service Convention, but still… just naming the proper treaty seems to be a challenge.  [For elaboration, see Überpicky Vocabulary Distinctions, Volume 2: Get the name of the treaty correct.]  More importantly, though, there isn’t a single phrase in the Hague Service Convention that requires a special version of a summons.  Not one.  If you’re suing three defendants in Chattanooga and two in China, the same summons will work for all of them.  You don’t need a different form for the offshore targets, because they do precisely the same thing: command the defendant’s answer and appearance at court.

If the clerk says otherwise, the clerk doesn’t understand the mechanics of the procedure.  The Convention addresses the manner of service [the heart of a 12(b)(5) motion] rather than the substance of the service documents [which falls under 12(b)(4)].  In short, Hague doesn’t care what gets served– just how.* Some Authorities in Asia may ask for “wet ink” summonses (that is, signed and stamped by hand– as if it’s 1987 again), but no special form is necessary.

As to the U.S. court appointing a Central Authority as a special process server, again… no.  The how is not determined by forum rules when a defendant is located outside the United States.  The laws of the country and locality in which they’re served govern the manner of service, and our courts must defer to those foreign laws.  The assertion by a U.S. court that it has the power to appoint a foreign Central Authority to serve in that Authority’s own jurisdiction… borders on insult.  Not only that, but it completely disregards the Supremacy Clause.

Now, the clerk may have a vague understanding that Hague forms must be signed by a court official, an attorney, or someone designated by the court.  That’s another matter entirely, and it misses the point that the lawyer can handle the entire thing.

* Two exceptions:

  1. Summonses that expire by their own terms.  See here for how that applies in bankruptcy court, and here for how that applies in several state courts.  In those situations, know that it usually takes longer to serve than the summons lives.
  2. Subpoenas.  They aren’t process, but then again, the Service Convention isn’t limited to process.  It covers the service of “Judicial and Extrajudicial Documents.”  To common law lawyers, that necessarily includes subpoenas, but not to the civil law community.  Subpoenas are governed by a different treaty– the Hague Evidence Convention.  A wildly different creature, that one.