Nope. Pull it.

A habit I got into a few years ago: yank the second page of the standard federal Summons in a Civil Action (Form AO440) before sending it overseas for service. That’s the Proof of Service page– a simple set of check boxes and blanks that are completed by a process server when it’s served in Philly, Boston, or Baltimore.

Why do I pull it? Simple. It’s not the proper form to prove service abroad, whether pursuant to Article 5 of the Hague Service Convention or not.

Continue Reading If it’s going abroad, pull the second page of the AO440.
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At least once or twice a month, when I deliver the bad news that service on an offshore defendant will cost several thousand dollars and take several months– if not a couple of years— a prospective client will decide that the better way to go is to seek an order for alternative service, usually electronic service, under Rule 4(f)(3) or its state analogs. This is a flat-out bad idea, and I’m going on record with it now so it doesn’t seem like a brand new thing I just made up to keep the fees rolling in. Truly, if there’s a way to get the job done without having to hire my firm* and hit your client for a four- or five-figure bill, I will tell you— that’s just the way we roll around here at Viking Advocates.

But there’s a whole bunch of horrible, terrible, no-good case law out there that says “nah, don’t sweat it– electronic service is fine. You needn’t worry about the Hague Service Convention.”

Do not rely on this case law. Seriously. It’s going to get smacked down in the very near future, and I don’t want my people to be on the receiving end of the smackdown. Some savvy, belligerent, and very deep-pocketed defendant is going to take this issue up on appeal, and they’re going to win.

The only way that service by e-mail (or social media or text message or… pick an electronic medium that involves a fiber optic line and a bunch of ones and zeros) can possibly fit into a Hague context is if it’s deemed a “postal channel”, and I don’t know of a single Hague authority on the planet that has deemed it so. (Aside/update, July 2024: Prof. Maggie Gardner takes a deeper philosophical dive in the issue at the Transnational Litigation Blog, and consensus is emerging among Hague signatories’ diplomatic legations that email is indeed a postal channel. For more, see Ted Folkman’s excellent two-part treatment of the Conclusions and Recommendations of the Special Commission convened in The Hague earlier this month. Part 1 can be found here and Part 2 here. Taking the C&R as guidance, the conflict can be resolved.)

But even assuming, arguendo, it is a postal channel, it is nonetheless invalid if the destination country objects to Article 10. That encompasses most of the countries where e-service would be handy anyway. Most notably: China, Russia, Mexico, India, Pakistan, Vietnam, Venezuela.

How does the bad case law arise? Simple– courts view the service methods listed in Rule 4(f) as co-equal. That is, federal courts do not view the list as a hierarchy, in which option 1 must be attempted before option 2 is available and so on.** That’s a sensible view of 4(f)’s structure.

And from a due process perspective, electronic service is perfectly acceptable. It’s a means reasonably calculated, in many circumstances, to give a defendant notice of the claim against him/her/it and an opportunity to be heard. For crying out loud, we’re a quarter of the way into the 21st century… email is the way we communicate, and it stands to reason that e-service is so calculated.

But what makes the case law so bad? Well, in order to see electronic service in a Hague context as valid, courts must consciously disregard the word of a very nice lady from Arizona:

Source: National Archives.

You might have heard of one Sandra Day O’Connor, author of the Court’s opinion Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988). She passed away in December after a life that every lawyer in America sees as rock-star level success.

The Schlunk decision contained two pertinent holdings:

Yet that horrible, terrible, no-good case law I mentioned above relies on the idea that the Hague Service Convention doesn’t expressly prohibit email service, so that makes it okay.

Well, it doesn’t expressly prohibit service by carrier pigeon or message-in-a-bottle– technologies which actually existed at the time of the Convention’s adoption in 1965. That doesn’t validate them as service options.

Saying that a method is valid just because the Hague Service Convention doesn’t expressly prohibit that method gets the question backward. Justice O’Connor was clear: a method is valid only if it is expressly authorized or permitted by the Convention.

Litigators avoid Hague strictures at their peril.

* Notably, if you can convince the court to deem U.S. counsel as a foreign defendant’s agent for service. To be sure, this happens under Rule 4(h)(B)(1), and not 4(f)(3).

** Contrast this with 28 U.S.C. §1608, the service section of the Foreign Sovereign Immunities Act, which is specifically a hierarchy.

Author’s Note: this is not to say that electronic service isn’t constitutionally valid from a due process perspective. It clearly is— I mean, come on. It’s the 21st century, for crying out loud. This is how we communicate. This is to say that it’s constitutionally invalid from a Supremacy Clause perspective. The phrase “and all treaties made” should ring a bell.

Lights shone on the Merlion as it overlooks Singapore's iconic Marina Bay Sands. During the Formula 1 Grand Prix night race, lights were projected onto the Merlion and the 'boat' of Marina Bay Sands.
Joshua Ang, Unsplash

(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.

O’Connor, J.

Sisters in Law, by Linda Hirshman, has been on my shelf for a couple of years, constantly pestering me to sit down on a snowy weekend and read of legends. My own sister, a professional musician, recommended it when she was toying with idea of turning it into a rock opera, along the lines of what Lin-Manuel Miranda did with Chernow’s Hamilton. (You think the first Treasury Secretary is a ripe story for the Broadway stage? Imagine the tale of two absolute judicial rock stars, one from the right and the other from the left. I would pony up a fair chunk of change to see that.)

My phone buzzed during a mediation this morning, with news that Sandra Day O’Connor had passed at 93. A heck of a life– a life well lived, by any metric– come to an end along with a bunch of other other 90+ contemporaries lately, including Henry Kissinger and the amazing Rosalynn Carter.

This isn’t much of an obit. If you seek that, check out the Times, the Post, the other Times, the other Post, the other other Times… they’re far more qualified to provide retrospectives. I’m simply another lawyer who is continually awed by her career, her kindness, her skill, and even though I come from the other side of the aisle and the Federalist Society guest list, her sense of reason. Yes, she was a Reagan appointee and a Republican, but she came from a generation of politically astute lawyers who recognized the dangers of politics on the bench.

With the possible exception of Robert H. Jackson (author of Mullane, just a couple of years after his stint as Nuremberg war crimes chief prosecutor), Justice O’Connor has had more impact on my practice than any other jurist at any level. Her opinion in Volkswagenwerk AG v. Schlunk is seminal in my practice, and it provides the foundation of Hague Service Convention work like Gideon and Miranda underpin criminal defense. No exaggeration there. Pertinent:

“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.” (…) This language is mandatory (…)

Additionally:

Those who eschew its procedures risk discovering that the forum’s internal law required transmittal of documents for service abroad, and that the Convention therefore provided the exclusive means of valid service.

I give you the bedrock on which my practice rests.

Thanks, Madam Justice.

Coleraine Magistrates Court
Geoffrey Moffett, Unsplash

Once or twice a month, a client will call or email me expressing incredulous frustration that it takes Swiss or French or German authorities two or three months to return a proof of service following a Hague Service Convention request. Or even worse, that it takes Mexican or Chinese or Indian authorities a year or two. (<– Not a typo.)

“WHY?!” they scream, silently. At least, that’s the subtext of their question– in the lion’s share of cases, subtext arising from haranguing by a grumpy judge or senior partner (or litigant) who simply doesn’t get it.

On those occasions, at least once or twice a month, I have to tell that client to “get out of your American lawyer head” (all of my clients are attorneys). Because American lawyers view service of process abroad in the same way that civilians (ie: those smart enough to not take a bar exam) view service of process here at home… they don’t understand what goes into it.

Just Google “service of process in the movies” and you’ll get the idea.* Contrary to popular belief, a defendant can’t just refuse to take an envelope from a process server and avoid service. Constitutionally speaking, all a plaintiff has to do is make a reasonable effort, so if the process server has to drop the summons at the defendant’s feet, the defendant is still on the hook.

And lawyers get that.

But what they often don’t get is the harsh reality that things just don’t work “over there” in the same way they work here. And they take longer– they just do. No amount of haranguing from a grumpy judge or senior partner (or litigant) is going to change that.

No, in most of the world, it doesn’t happen the way Hollywood makes it out. In fact, if you ask a U.S. or Canadian process server, they’ll tell you that it doesn’t even happen that way here. But in the parts of the world where the Union Jack** didn’t used to fly, service of judicial papers isn’t up to the parties. That function is undertaken by judicial officials of varying sorts, rather than by private agents.

And there is nearly always a bureaucracy involved. Therein lies the source of the delay.

* The most inaccurate Hollywood depiction I’ve ever seen is, sadly, in Woman in Gold, which chronicled a Holocaust survivor’s successful quest to recover a famous painting stolen from her family by the Nazis. It’s a fantastic film, truly one of my favorites, but they completely bungled the service of process scene. I discuss that utterly ridiculous depiction with much chagrin in Dropping docs on a desk at the Consulate… not effective, counsel. Still, I’ve had the honor of managing proper service in several Nazi-theft-of-art cases, and those efforts have been among the most rewarding parts of my career.

** I always gripe that a flag cannot fly at half mast unless it’s on a ship– it’s at half staff on land. Likewise, some argue that the Union Jack flies above the ships of the Royal Navy and various other watercraft of the United Kingdom, while the Union Flag flies on land. Buckingham Palace validates the use of either, so I’m sticking with it, despite the Palace’s confusion about masts. With all respect to linguistic accuracy, this is poetic license at work– Jack has more pop to it.

Gogol

Send your request in duplicate to the Central Authority.

Read that to yourself again, but this time, do it in the accent of General Alexei Anatoly Gogol.*

Send your request in duplicate to the Central Authority.

No, this is not a command from a Soviet spy chief. It’s just what we need to do when submitting a Request for service pursuant to Article 5 of the Hague Service Convention, instruction taken quite literally from Article 3. The term Central Authority merely refers to the agency (or agencies) designated by member countries to receive those requests. It shouldn’t conjure images of some nefarious Cold War-era black ops outfit behind the Iron Curtain, like the Stasi or KGB. In just about all countries, the designated Central Authority is a regular government agency, usually a court or counterpart to the U.S. Departments of State or Justice.

Continue Reading What is a Central Authority?

When I send a Certificate* to a client so s/he can prove up service pursuant to the Hague Service Convention, I usually include a link to my earlier post, The Hague Certificate– all the proof you need. Sometimes, when the Certificate is generated by the foreign government on its own blank, rather than the one on the reverse side of my Request form, I’ll also link to The Hague Service Certificate… not necessarily on the form you provide.

Usually, that’s that– it’s a done deal.

At least once a month, though, I’ll get a note back two or three days later, asking how much more it will cost to have the Certificate translated to satisfy court requirements.

Um, huh?

“Yeah, the Clerk said your proof is in German so we have to have it translated. How much will that cost?”

Not a penny. Because it isn’t necessary.

Mercifully, the good folks at the Hague Conference on Private International Law anticipated just such a situation, so they made the Certificate multilingual. The standard is either English-French or French-English, but there are trilingual versions in German (see the mockup above), Italian, Spanish, Russian, Portuguese, Chinese… the list goes on. In some Swiss cantons, they use a Certificate in four languages: French, English, German, and Italian.

To be sure, the western eye disregards Chinese characters naturally, so English is the very next one up. Likewise the Cyrillic alphabet on Ukrainian and Kazakh forms (forget the Russians— they don’t respond with anything but rejection).

But when the form uses the ordinary western alphabet, it can be a bit tricky, and the English font is almost always smaller than the form’s primary language. But that’s okay… all the necessary language is there, in English. The Clerk just needs to look more closely...

* Note that Certificate is capitalized. That isn’t coincidental. The Certificate is prescribed by Article 6 of the Hague Service Convention and it supersedes all lex fori proof formatting requirements.

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Brett Jordan, Unsplash

Every once in a while, long after a Hague Service Request has been submitted to a foreign Central Authority, the foreign defendant will agree to waive service. That is always good news, because it means everybody is more likely to play well in the sandbox. When it happens, my clients will email me and say “hey, good news– defendant agreed to waive in exchange for extra time to answer. Cancel the service, my good man.”

As much as I’d love to, sometimes there’s no way to pull the thing back, especially in countries that serve more slowly than others. Here’s the normal sequence of events (noting that the sequence does vary a bit by country):

  • Our request package lands at the Central Authority.
  • The Central Authority sends it out to some regional official.
  • The regional official sends it to a local official.
  • The local official assigns the matter to some office within its administrative structure.
  • It ultimately gets handed to a judicial or administrative officer for service.
  • Into the defendant’s hands the documents go.
  • And then all the relevant proof paperwork wends its way backwards, in the same bureaucratic chain, until a Certificate lands on my desk.

Navigating that whole chain of custody is a months-long procedure, and by the time it gets to the third or fourth link, none of the earlier links know where it is. This truly is a bureaucratic quagmire in many countries. Imagine how long it takes to navigate a bureaucracy here… now multiply that several times over, and my earlier post “Things take longer overseas, get used to it” becomes very, very real.

Unfortunately, there’s precisely nada/zip/zero/zilch we can do about it after a certain point, but take heart. When the other side starts working with you, let them know that the request is too far gone to stop, and if service happens despite their willingness to cooperate, it’s only down to delayed action by foreign authorities. It’s not a combative gambit and it’s certainly not a sign of disrespect– it’s a practical truth in transnational litigation, and they should understand that.

Their clients are keenly aware of that truth, I promise.