Yes, counsel, you do have to translate that thing—at least, if you’re sending it to a non-English-speaking country.  There are a couple that don’t require translation, but that doesn’t mean it isn’t still necessary.  [Click here to see why.]

That said, getting a translation is not as simple as a Google search to find a guy who speaks Chinese.  Why?  A whole bunch of reasons—all of them potentially fatal to your ultimate goal, which is a check that your client can cash.  Always, always, always, address these issues with your translator, and if s/he doesn’t know what you’re talking about, find a different translator.

We discuss these issues in a two-part series.  Part 2 is here, and addresses physical formatting and money, inter alia.

INTERPRETATION VS. TRANSLATION

Simple distinction:

  • Written words are translated.
  • Spoken words are interpreted.

Full stop.  These are terms of art among linguists.  You’re a lawyer.  You understand.

LOCALIZATION

The destination of your translated documents has significant bearing on the flavor, if you will, of the language you’re translating into.  Geography is everything.  Bear with me here…

There is no such thing as barbecue.*  No, really.

  • There’s Kansas City Barbecue.  This is the superior form—and the subject is not open to debate.  (My blog, my rules.)
  • There’s Memphis Barbecue.  Only slightly inferior to Kansas City.  Memphis had Otis Redding, so we’ll call it a push.
  • There’s Carolina Barbecue.  A questionable technique, in which they use everything but the squeal.  Tasty nonetheless.
  • And there’s Texas Barbecue.  Yeah, their beef’s tasty, but the whole idea is abhorrent in light of the total absence of pork.  This violates the Holy Gospel of St. Arthur**, Chapter 4, Verse 12.

Point is, what constitutes “barbecue” depends on where find yourself (and to be sure, I dig on some Texas ‘Cue).  Like barbecue, languages aren’t neatly pigeonholed into single categories.  After all, look at English.  What we speak in the Midwest (again, superior) is different from that of the American South, Australia, Scotland, New England, Old England…

  • French is fairly standard worldwide, but if your documents are going to Québec, you’re wise to use a Québecois translator to localize the text according to that province’s common vernacular.
  • Dutch isn’t Dutch everywhere.  What they speak in Aruba and what they still speak in Indonesia are different, and the northern part of Belgium, right next door to the Netherlands, uses a specific dialect called Flemish.
  • Portuguese in Portugal… not the same as in Brazil or Macao.
  • How about Spanish?  Ask someone in Mexico City to tell you what a fellow from Barcelona is saying.  In fact, ask the fellow from Mexico City to pronounce Barcelona.  Mexican Spanish is different from Castilian Spanish, in both spoken and written forms.  (The C in Barcelona sounds like a soft “th” in Spain, but like an “s” in Mexico. Bar-thel-OWN-uh, or Bar-sell-OWN-uh.)
  • Chinese… we’ll get to that in a moment.  It’s more involved than a barbecue analogy can illustrate.

For your documents to be well received, you’ll want to localize them for the locality that you’re sending them to.  Not observing this seemingly inconsequential step could raise hackles on the other side.

CORRECT WRITTEN ALPHABET (CHINESE)

The Chinese language has dozens, if not hundreds, of dialects.  Mandarin is the dominant dialectic group used in the People’s Republic of China (PRC), but it is spoken, rather than written.  It’s also the spoken form of Chinese that has become the most common throughout the Chinese-speaking world (and the futuristic ‘verse of Firefly, but I digress).  Mandarin Chinese is not a language to translate into (see interpretation vs. translation above).  Rather…

  • Documents on their way to Taiwan must be translated into TRADITIONAL Chinese.
  • Documents going to the PRC should be translated into SIMPLIFIED Chinese.

What’s the difference?  Well, not much in terms of cost to translate.  But the simplified form is a creature of Chairman Mao’s efforts to consolidate and standardize the language used across all of China.  Its use in Taiwan virtually guarantees that someone will be offended, and may give a Taiwan court an excuse to reject a Letter Rogatory or, eventually, decline to enforce a judgment.

With roles reversed, the PRC is less likely to take offense than Taiwan.  (An analogy: New York Yankee fans are fairly ambivalent when you discuss the Boston Red Sox.  The ire of Sox fans, conversely, burns with the heat of a thousand suns at the mere mention of the Bronx.)  Still, operate according to the destination country’s preference, lest the guy processing your paperwork in Beijing is a Yankee fan who once got beaten up outside Fenway.

Really, everybody speaks Chinese in the future.
Seriously.  Everybody speaks Chinese in the future.

WRAPPING UP

Above all, don’t mess around with this subject, and don’t cheap out on it.  Just don’t.  This is the easiest variable in all of litigation to disaster-proof, and it’s the hardest to explain away when your client asks why he just lost his case.  Hire a reputable company with a track record (or at least a webpage, for crying out loud!), preferably one that hires linguists with the appropriate vocabulary expertise (legal, scientific/engineering, medical, cultural).  Don’t assign the job to Timmy the Mailroom Intern because he spent a semester in Paris, and for crying out loud, DON’T USE GOOGLE TRANSLATE.

Just because you can get a low-cost translation doesn’t mean you should.

* Don’t confuse barbecue with grilling.  Barbecue is low & slow—low temperature over many hours, primarily to make a crappy cut of meat taste good.  Grilling is hot and fast.  Again, these are terms of art.  You’re a lawyer…

**Arthur Bryant has been canonized by the Holy Church of Smoked Meats and is chief among its saints.  Calvin Trillin once called Bryant’s the best restaurant in the world.  He was wrong.  It’s the most wonderful place in the Solar System.

France_Paris_EXT2_944_1
U.S. Embassy, Paris (State Department photo)

We have a pretty straightforward view of notarization in the U.S. and Canada … you sign a document, and a notary stamps & signs the same document, pointing to your signature and saying “yep, that’s the person who signed this.”  It’s a handy tool for verification whenever the document needs to be used in court or submitted to a government agency.  But what if the signing happens overseas?  How do you get it notarized?

Two ways, one easy, one not so easy.

The harder way:  get it notarized, then get it legalized.  That is, have one more official—or several more officials in a chain—point to the notary’s signature and say “yep, that’s a valid notary signature.”  In the best case scenario, this is done in a single step, the affixing of an Apostille.

The easy way:  the Consular Affairs section at the United States Embassy or Consulate, or a Canadian Embassy or Consulate if you intend to use a document north of the border.  Both countries’ diplomatic missions provide this function by appointment (some even take walk-in traffic) and for not a huge fee (around fifty bucks in most cases).

Simply Google “(U.S. or Canada) Embassy Notary (foreign country)” and you can go straight to the right link.  “Canada Embassy Notary Germany” will tell you that the Embassy in Berlin as well as Consulates in Munich, Stuttgart, and Düsseldorf all provide them.

“U.S. Embassy China Notary” would lead you to believe that our consulates in China don’t notarize… just Google the specific consulate and you’re there.  Easy peasy, lemon squeezy.

When a Canadian consular officer notarizes a document in Berlin, that document has legal effect from Vancouver and Yellowknife clear out to the Maritimes.  When a U.S. consular officer in Shanghai notarizes a document, it has legal effect in all fifty states without exception.

Image by "Mattes" via Wikimedia Commons.
Image by “Mattes” via Wikimedia Commons.

If you go the route of a foreign notary, it gets a little more more complicated, and probably more costly to boot.  (See here for more about the Apostille process.)

Not oppressively so, but it’s not quite as simple as the Embassy option.

Rishichhibber, via Wikimedia Commons.
Rishichhibber, via Wikimedia Commons.

Lawyers love analogies, and a good one tickled my brain as I listened to a bright young homebuilder speak during a panel discussion on entrepreneurship hosted recently by the Kansas City Business Journal.  She talked about how vital it is to have the right subcontractors in place in order to achieve the best product and cost basis.  The right culture, the right base of knowledge… in order to harness innovation.

I’m always squawking about how lawyers should outsource their international work—and why wouldn’t I?  I’m what’s known in the industry as an LPO… a legal process outsourcer.    My whole practice exists as a way for litigators to keep certain work off their desk, saving their clients and their firms a significant amount of money, time, and frustration.

But the outsourcing analogy strikes me as not quite accurate.  It seems that outsourcing is something you do merely to cut costs.  The better analogy: subcontracting, because it doesn’t only cut costs– it increases quality.

Let’s say you’re a homebuilder, a general contractor, and you’re known throughout your community for great design, solid construction, and a highly personalized system that involves new homeowners at every stage of the process.  You stand by your work, and because you make a concerted effort to know the people handing you hundreds of thousands of dollars, you sell lots of houses.

A family comes to you, wanting a four-bedroom house with all the bells & whistles that state-of-the-art technology can provide.  The contracts are signed and you begin amassing the money and materials necessary to build this family’s dream home.

But that’s not all you need to amass.  You aren’t a landscaper.  You aren’t a plumber, or an electrician, or a hardwood floor guy.

You’re a GC, so how do you get it all done?  You subcontract the specialty work.

Why?  Because it’s efficient, and because the quality of your work product is significantly higher.  Each discrete component of the construction process is handled by somebody with deep, specialized knowledge of his own discipline.

Lawyers provide a service not unlike that of a homebuilder.  Hundreds of thousands of dollars are on the line, professional expertise is vital, and trust is the foundation of every transaction.

Yet lawyers have an incredibly hard time subcontracting the work that they don’t specialize in—like serving process or compelling production of evidence in another country.  And that is to their own detriment.

One of my law school professors always loved to say “hey, it’s tough out there” any time somebody complained about one obscure doctrine or another.  And he was absolutely right.  It’s tough out there for litigators—and there are minefields in procedural law that can be easily avoided when lawyers are willing to consult with someone who has deeper knowledge.

Litigators who are tough themselves know that they can’t do it all, just like that homebuilder knows she can’t do the tile and plumbing and wiring work all by herself.  She assembles a team, and that makes all the difference.

High Tauern National Park – view from Stappitz in the Seebach Valley. Uoaei1 via Wikimedia Commons.

Update:  see here for the NEW AND EXCLUSIVE way to serve in Austria, beginning September 12, 2020.  The Hague Service Convention has entered into force in Austria.  Its declarations are yet to be posted to the HCCH website (they are on the Dutch government’s treaty database…), but the system will work, effectively, the same as in Germany… but without decentralized authorities.

Accordingly, the following is no longer effective information!

Until a couple of years ago, I had two mental images of Austria.  One was bucolic Salzburg “in the last golden days of the thirties”—that of the Von Trapps and The Sound of Music.  The second was the snowy Vienna of Amadeus—that of footlit operas and an Emperor who looked a little too much like the vice-principal from Ferris Bueller’s Day Off.

Tell me I'm wrong.
Tell me I’m wrong.

In 2015, Woman in Gold changed that… the list now includes the works of Gustav Klimt and an epic legal battle arising from the Nazis’ theft of priceless art works.  I watched the film on a transatlantic flight and was thrilled, but bemused, because the young lawyer handling the case (Ryan Reynolds) walked into Austria’s consulate in Los Angeles with his client (Helen Mirren) and served process by sliding a summons through a banker’s window to a receptionist.

Alarm bells started going off in my head, because for one thing, you shouldn’t hire Deadpool to represent you.  Not even Wade Wilson can just walk into a consulate and drop a summons on the receptionist’s desk.  The Foreign Sovereign Immunities Act says otherwise.  (To be sure, I tried to contact Randy Schoenberg, the lawyer played by Reynolds, to see how he actually did it.  No answer.  Either he did it some other way and Hollywood embellished, or defense counsel didn’t know how easy it was to get that thing kicked.)

Woman in Gold, Gutav Klimt, 1907
Woman in Gold, Gustav Klimt, 1907

In any event, a fantastic movie with a compelling story, and a stunning work of art at the center of it all.

In a nutshell, there’s one way to properly effect service in Austria:  a Letter Rogatory, with a couple of twists:

  • Proper translation.  You can’t just send the Letter Rogatory and call it good.  It must be translated into German (along with the summons, complaint, and appendant documents—literally everything handed to the defendant) by an Austrian court-certified translator.  That’s a little guild monopoly* that increases costs usually by a factor of two or three.
  • Proper transmittal.  The Letter must be conveyed via diplomatic channels, upping the ante by another $2,275 fee payable to the State Department.

Two predictions that I anticipate when the Hague Service Convention kicks in…

  • Austria will most likely object to Article 10 methods—they already prohibit them by statute, as I understand it, so I doubt highly that their treaty declarations will indicate otherwise. Australia** joined the treaty only recently, and its declarations mirror its practice before accession to the Convention.  I imagine Austria will do likewise.
  • I also anticipate that the guild monopoly on translation will go away; Mexico has a similar requirement that has been, for the most part, overridden in practice by the Convention.

(My contact info is in the upper right ↗↗↗  if you’re on a desktop.  Or down below ↓↓↓  if you’re on a phone or tablet.  Just sayin’.)

* Seriously—do we lawyers have a right to complain about guild monopolies?

** Don’t mix these up.

[They take opposite views of Article 10 methods, given the common law/civil law divide.]

Nope.  We’re not building rockets here.  But we are building a ship of sorts, and a leaky vessel means the cargo may not make it to its destination.  When we talk about cargo ships, there’s a significant chance the name Hanjin is painted on the side.  It’s among the biggest shippers on the seven seas, and it gets its cargo to destination.  It’s also often the defendant in lawsuits, and serving the conglomerate at its Seoul headquarters requires adherence to some particular rules.

Serving process in the Republic of Korea is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.  (Don’t bother with the South or North distinction.  We really only deal with the south… unless there’s a very crazy saber rattling somewhere on the other side of the DMZ.  For our purposes, just “Korea” will do.)

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, for the chase scene.]

Here’s how service is effected in Korea:

Article 5 Service

  • Translate the documents. Korea’s declaration to Article 5(3) suggests it and, although the defendant may speak flawless English, omitting translated documents will prompt the Central Authority to reject your request.  To be sure, they say a translation should be attached to the service documents… in the words of that shoe company in Oregon, just do it.  [On the flip side, a little practice tip… you’re going to have to translate the proof, because the Central Authority in Seoul doesn’t respond in English.  Whether service is successful or not.]
  • 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—likely 4-5 months from submission to return of proof.

Article 10 alternative methods

  • None.  Korea objects to all of them, so Article 5 is the single avenue to proper service.

That’s all there is to it in Korea.  There’s only one way to do it.  Iconic brands like Samsung, LG, Hyundai… if you’re suing any of them, this is the route to take.  Korea’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.

Not specifically Eric's jacket.
Not specifically Eric’s jacket.

For many Americans, our most lasting image of Korea is the final episode of M*A*S*H in 1983.  My most lasting image of Korea was a kid named Eric in the 4th grade.  Eric’s dad was a staff NCO like my dad, and had met Eric’s mom in her hometown outside Seoul.  My classes in those days looked like a UN conclave, but this guy really stood out– not because he was half Korean, but because he had this cool blue satin jacket with a dragon embroidered on the back and “KOREA” in big gold letters above it.  I was nine at the time, so that thing rocked.

Complete with screenshots!

Last spring, I did something that a cynic might call monumentally stupid:  I published the recipe to the Secret Sauce of serving process abroad.  Literally, a step-by-step guide to the procedure, right there for all to see.

“Are you out of your (expletive deleted) mind?” one of my close friends asked me.

Well, it would seem so.  I left a six-figure sales job to go to law school.  Draw what conclusion you will.

But a bit like McDonald’s and the Big Mac, I’m not worried about a do-it-yourself lawyer reading my blog and then doing it.  Nobody makes Big Macs at home.  Too much hassle.  It’s much easier–not to mention cheaper–to just hit the drive-through.

But many among us insist on self-sufficiency, so another friend suggested that I elaborate on the ten steps in the recipe with a separate post for each step.  As it turns out, either (1) I’ve already done so, or (2) it’s pretty straightforward stuff if you just click on the link indicated in each.

But for several steps, I linked to the website for the Hague Conference on Private International Law.  It dawns on me that a DIY lawyer might run into a wall when looking things up on that site.  So here’s a handy guide to getting country-specific information from the Service Convention section.  Feel free to sing play along at home.  [Apologies to phone/tablet readers… you really need a big screen to get the full effect.]

To start, click here (the main page for the Convention text) , and then choose “Status Table” as indicated below.  (The right-hand menu appears throughout the Service Convention section, so the site is pretty easy to navigate.)

HCCH 1Note that there are two tabs in the status table… this merely reflects the fact that a country need not be a member of the Conference in order to join a treaty.  (The converse is also true—of some three dozen Hague Conventions, the U.S. is party to only a few.)

HCCH 2

The status table indicates not only whether a country is in the treaty, but also how it joined, when it ratified, and when the treaty entered into force for that country.  For the sake of illustration, we’re going to highlight Belgium here– it’s high up on the list, so grabbing screenshots is much easier than, say, Vietnam (the newest member).  The table is handy for determining if a country has signed the treaty, but not ratified or put it into force (example: the U.S. has signed, but not ratified, the Choice of Court Convention).

Belgium (my adopted boyhood home*) signed the Service Convention January 21, 1966, ratified it September 19, 1970, and put it into force January 18, 1971 (note the “D” on the right—that indicates that declarations apply).

HCCH 3

Now click the “Authorities” button in the side menu (the orange arrow in the figure above).  Sticking with Belgium, click on Central Authority & practical information.

HCCH 4

The coming page really does tell you everything you need to know about its application in a particular country.

HCCH 5

The elements to look for:

  1. The name & address of the Central Authority. This is where you send your USM-94.
  2. The Central Authority’s email address. Some will answer you, some won’t.  It’s not personal.  It’s just business.
  3. Languages spoken by staff. This can be deceiving—even though they might say they speak English, they often don’t, in which case it’s a bit difficult to get an update.

HCCH 6

  1. Translation requirements (Art. 5(3)). Exactly what it says.  This entry, too, can be deceiving.  Even though the Central Authority might not require it, in non-English-speaking countries, the judicial officer executing your request might refuse to serve it without a translation.  When in doubt, translate.  Note that in Belgium, the proper language of the translation depends on locality.
  2. Costs relating to the execution of the request (Art. 12). The Convention prohibits the assessment of fees for serving process…

Article 12

The service of judicial documents coming from a Contracting State shall not give rise to any payment or reimbursement of taxes or costs for the services rendered by the State addressed.

The applicant shall pay or reimburse the costs occasioned by —

a) the employment of a judicial officer or of a person competent under the law of the State of destination,
b)  the use of a particular method of service.

Seems pretty straightforward if you ask me—service is supposed to be free, unless you directly engage a judicial officer/competent person or request that a particular method be used by the Central Authority.

But (and it’s a big but)… many countries, including the United States, wiggle out of the fee prohibition by using the judicial officer or competent person method as a matter of course.  The US Central Authority (USDOJ) outsources its function to a private company, which then charges $95 to serve.  This frustrates other countries, who retaliate by either assessing a reciprocal fee (China) or rejecting US requests outright (Russia).

Back to our story…

  1. Judicial officers or other competent persons (Art. 10(b)). These are the folks you can contact directly to serve on your behalf (in Anglophone Canada, go to the Yellow Pages, of all places!).  In Belgium, you see here… contact the National Chamber of Bailiffs (hussiers de justice).

HCCH 7

  1. Declarations as to Articles 10(a), 10(b), and 10(c). Many countries object outright, so Article 5 is your only available channel (eg: China, Mexico, Germany).  Belgium, like the United States, opposes none of them.  Japan objects to 10(b) but sort of not to 10(a)… let’s just say it’s complicated in the Land of the Rising Sun.

Be incredibly cognizant of the destination state’s opposition to the alternative methods in Article 10.  Opposition means don’t even try it, pal, because declarations of opposition are part of a treaty.  Treaties, in turn, override the Federal Rules of Civil Procedure, and they override state law.

This is Boromir. It is not Ned Stark.
Hey, look!  It’s that guy from Game of Thrones Lord of the Rings!

Yes, that supremacy applies to the Hague Service Convention.

That, friends, is key to the whole service of process puzzle.

Hopefully, this gets you where you need to be on the HCCH website.  The Permanent Bureau is a tremendous resource for all of the Conventions, but the website provides all but the most intricate guidance for the Service Convention and others.

And if you run into a snag, gimme a call.

* In 1977, my dad was a few years into a career driving a desk for the U.S. Army.  That summer, our family went on a grand, three-year adventure in Europe.  The old man was assigned to Allied Headquarters in Belgium.  President Carter said go, we went, and I developed a life-long obsession with perfectly fried potatoes.

 

 

 

 

 

 

Nope.  We’re not building rockets here.  But we are building a ship of sorts, and a leaky vessel means the cargo may not make it to its destination.  Serving process in Japan is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.

There’s only one valid way to serve in Japan, but you’ve got three ways to approach that method:

  1. Tap us on the shoulder for bespoke attention—and probably some amusing commentary to boot,
  2. Cruise over to the Hague Envoy platform at USM94.com to automate the completion of Request forms for your signature and dispatch 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 (hint: there’s really no secret).
  • The structure of the Convention itself is discussed in this four-part series.
  • And an absolutely critical note: the Hague Service Convention does not confer coercive effect on subpoenas.  Repeat after me—you can’t just SERVE a subpoena abroad.  At least not if you want it to work. You have to file a Hague Evidence Request in most instances– or a Letter Rogatory in Japan, which isn’t part of the Evidence Convention.  Dramatically different from serving a summons or notice.

[Now, for the chase scene, from You Only Live Twice.]

Here’s how service is effected in Japan:

Article 5 Service

  • Translate the documents. Japan’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 Central Authority.
  • Sit tight. It may take a while—likely 6 months or more, from submission to return of proof.

Article 10 alternative methods

  • The Japanese object to Article 10 entirely, so there are no alternatives.  None.

That’s all there is to it in Japan.  There’s really only one way to do it, and… Japanese efficiency is a thing.  Iconic brands like Toyota, Honda, Sony, Mitsubishi, Canon, Fujitsu (maker of the greatest piece of office equipment ever!)… if you’re suing any of them, this is the route to take.

Japan’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.

When I was five years old, my dad (career Army, hoo ah) came home from work one day with a stack of records under his arm. 

  • What are those, Dad?
  • Those are Berlitz records, son.
  • What’s burr-BITZ?
  • Berlitz.  They’re going to help us learn to speak Japanese.
  • What’s Japanese? Is that like mayonnaise?  (I was five.)
  • No, it’s the language they speak in Japan. We’re moving there.

So off we went along a very short-lived linguistic journey.  Ko-NEE-chee-wah.  Are-ee-GAH-toe. 

Two weeks later, another stack of Berlitz records came home under the old man’s arm (he was 25 himself, so “old” is relative).  This time, they were French, because his orders got changed.  Instead of Camp Zama, we went to Allied Headquarters in Europe, so Shōgun ended up being my first exposure to Japanese culture.  It aired back in the states right after we got home from Belgium.  Oh, the irony.

One of my great regrets is that I haven’t been to the Land of the Rising Sun. 

Yet.

Yeah, we never got there.
Yeah, we never got there.
1024px-Luther_College_Farm_Decorah_IA_060
Luther College Farm, Decorah, Iowa (the college recorded the deed, I'm guessing). Image by Karen Noecker. via Wikimedia Commons.

Another real lifer here… why should you outsource your international work instead of keeping it within your firm’s cloistered walls?  Simple.  Because your clients will be better off if you go outside.  Because you don’t know what you don’t know—and what you don’t know can’t be ascertained from a Westlaw search.

Bear with me.

Think back to those idiotic fact patterns on the bar exam, in which “Oscar conveys his farm to his brother’s son Ned, and then Ned deeds the farm to Carl, his second-cousin on his mother’s side, and then Carl fathers six children but dies intestate, and neither Ned nor Carl ever record either conveyance.  What result?”

Our collective groan at the mere thought:  just record the damned deed, man.  It’s not that difficult.

But as it turns out, those fact patterns weren’t really so idiotic.  A while back on Next Door, a woman in my neighborhood posted:  “Need a recommendation for a lawyer.  I just got married and I want to put my wife’s name on the deed to my house.”

Apparently, every software developer and barber and realtor** within a twenty-block radius is suddenly an expert on marital property law.

Now, to be sure, a whole bunch of people offered the names of several top flight firms in town, big and small.  One of the lawyers even said, very diplomatically “my firm can help you with that.”  But among the suggestions from the (non-lawyer) instant experts:

  • Just do a quit claim deed.  (Several of these, including from the realtor, who ought to know better.)
  • They have the forms on the county website.
  • Call a title company instead of a lawyer.
  • Second most cringe-worthy comment on the thread: “Don’t pay more than a $100.” (sic)
  • Most cringe-worthy comment on the thread: “You CAN do this yourself, you know.  Just look it up online.  All you have to decide is whether you want a joint tenant or joint tenant with right of survivorship.”  (Missouri is a tenancy-by-the-entirety state, which fact is completely unknown to the lay experts in my neighborhood.)

Now, every lawyer who read the original question had flashbacks to Property 1 and the words “I convey Blackacre to the second daughter of my landscaper, Felipe, on the condition that she marries on the evening of a harvest moon and only gluten-free beer is served at the reception.”  This hypo raises a host of questions.

  • What if Felipe doesn’t have a second daughter?
  • What if Felipe is no longer the owner’s landscaper?
  • What kind of estate is created in the second daughter—a life estate?  A leasehold?  Fee simple?
  • What if Brookside Wine & Spirits is out of gluten-free beer?!

Back to the real-lifer.  Let’s say Next Door’s blushing bride ignores the lawyers, does what the laypersons recommend, and simply makes the conveyance with a quit-claim.

  • What if there’s a divorce?  Does she want a contingency for that?
  • What if the newly-powerful Alt-Right succeeds in rolling back Obergefell, and Missouri courts subsequently nullify marital defaults for same-sex couples?
  • What if the question-asker’s new wife dies and the wrong tenancy causes the question-asker to lose half the interest in the house to her new in-laws who hate her?
  • What if she wants her new wife only to have a life estate, but intends the remainder to go to the Saint Helen of the Blessed Shroud Orphanage in Calumet City, Illinois?
That big chase scene in the Blues Brothers? Yeah, she made that happen.
Seriously?  You’d want this woman involved?

It’s a parade of horribles, truly.  And every single person with a law license looks at such a situation and emits a silent scream at the absurdity of someone not contacting a lawyer for an hour of advice.

Yet every day, how many lawyers say to themselves “oh, this is just a matter of filling out a couple of forms” when they need to serve process on a defendant located in another country?  (Yes, you CAN do it yourself, but in most cases, shouldn’t.)

Or worse, “pffft, just mail it.”  (Bad idea.)

Or worse still, they recognize that they’re out of their element, but decide to hire Bob the Process Server to handle the forms because Bob is cheaper than an actual lawyer who handles this stuff.  (Call your malpractice carrier.)

Until I’m blue in the face, I’m going to continue the argument…  outsource this stuff, y’all.  You don’t know what you don’t know, and your client will suffer for it.  Just like the newlywed in my ‘hood.  If she doesn’t talk to someone who can ask the right questions, she’ll never be able to say what the right answer is.

[Spoiler: she talked to a lawyer.  Score one for the good guys.  And simple sense.]

* Version 1.0 here, and Version 2.0 here.

** Yep, the realtor weighed in with the preface “I’m not a lawyer, but in my opinion…” before suggesting something other than she’d requested.  I mean, I’m not a doctor, but in my opinion… you can cure psoriasis with a hefty dose of Arthur Bryant’s Original Barbecue Sauce.  Okay, I am a doctor, but a Doctor of Jurisprudence.  Not the kind that can speak authoritatively about dermatological cures.

Helms
U.S. Senator Jesse Helms (R-NC), 1973-2003 [Official photo.]

[UPDATE, April 21, 2019…  National Security Advisor Jonathan Bolton on Wednesday announced the Trump Administration’s decision to implement Title III:  “Americans who have had their private and hard-earned property stolen in Cuba will finally be allowed to sue,” as quoted by the BBC and described further by the Miami Herald.  Accordingly, the tsunami now begins.]

[UPDATE:  A mere four hours after this post went live, the Miami Herald published a story asserting that Secretary Kerry notified Congress on January 4th of President Obama’s intent to suspend Helms-Burton actions for another six months.  The suspension, it seems, took effect on the 19th, but I cannot find any other verification that the suspension indeed happened. The State Department website is utterly mute on the subject.  That said, President Trump may yet rescind the suspension as part of the Administration’s wholesale review of Cuba policy.  Stay tuned here for more information as it comes out.]

Subchapter III of the Helms-Burton Act (22 U.S. Code § 6081 et seq., 1995) provides a private cause of action for parties whose property was expropriated by the Cuban government following the Castro Revolution in 1959.  To be sure, the Cuban government is not the defendant.  Rather, foreign persons who have profited from the expropriation are subject to suit.

A hypothetical, to illustrate:  say the Hernandez* family has owned land in Cuba since 1898.  After the 1959 Revolution, the land is seized by the Castro government, and the family flees to the U.S.  Thirty years on, the land is given by the Castro government to Petróleos de Venezuela S.A., the Venezuelan national oil company, who builds a refinery on the land.  (You may be more familiar with Citgo, the U.S. oil conglomerate which is owned by PDVSA.)

Under Helms-Burton, the Hernandez heirs have a statutory claim against PDVSA for its profits from that land, and if they can get the case into court, they can collect damages.  But the Act is subject to suspension every six months by the President, and since 1995, they haven’t been able to get into court.

Cuban Prime Minister Fidel Castro (1959-1976
Cuban Prime Minister Fidel Castro (1959-1976), visiting the United Nations.  [Public domain, via Wikimedia Commons.]
Bill Clinton suspended it immediately on enactment, George W. Bush suspended it throughout his two terms, as did Barack

Obama.  The Donald Trump Administration, however, has not issued a suspension, so the door is currently open to the cause of action.

Aggrieved owners of Cuban property—like the hypothetical Hernandez family—may now file suits against the various individuals and companies around the world who have benefited from the expropriations.

But contrary to a quick read of Helms-Burton, there is no special method of serving the defendants, no matter where they may be.  Rule 4(f) still controls the manner, but it is affected by two other pieces of federal law:  the Foreign Sovereign Immunities Act (FSIA) and the Hague Service Convention (HSC).**

U.S. Rep. Dan Burton (R-IN), 1983-2013
U.S. Rep. Dan Burton (R-IN), 1983-2013  [Official photo.]
Rule 4(f)

Rule 4 provides the general framework for service of process in federal actions.  Helms-Burton does not effect its structure.  Of greatest import is 4(f)(1), which specifically names the Hague Service Convention as the appropriate channel to serve a defendant in another Hague country.  Frankly, this tacitly codifies the 1988 Schlunk decision, in which Justice O’Connor and eight of her colleagues (do the math there) mandate such Hague application.  Even more frankly, the language of 4(f)(1) does not go far enough to reflect the Convention’s mandatory character.  But that doesn’t mean it goes away.

Foreign Sovereign Immunities Act

The service provisions of 28 U.S.C. §1608 provide a hierarchy of steps necessary to serve foreign governments and their instrumentalities.***  This code section, too, refers to the HSC, though not by name, in requiring service “in accordance with an applicable international convention on service of judicial documents”.  1608(a)(2) and 1608(b)(2).  Again, under Schlunk, the HSC is mandatory where it applies, so FSIA doesn’t have any real effect.

The Hague Service Convention

There’s really not much to say here.  If the Convention applies, follow it—neither Helms-Burton nor the FSIA purport to abrogate it.

In our hypothetical, PDVSA must be served via the Central Authority (yeah, good luck with that) or by a Venezuelan judicial officer (a bit more likely , but still doubtful).  That’s it.  You can’t mail it, because Venezuela specifically objects to HSC Article 10(a).  You can’t send a guy to the general counsel’s office because they don’t define the terms of 10(b) or 10(c)—you have to approach the matter as if the action is filed in a Venezuelan court.

Elsewhere, be it in China or Vietnam or Russia or other countries that have historically enjoyed good relations with Cuba since 1959, Hague doctrines must be observed.  As you might expect, this means different things in different jurisdictions.  (Give us a shout to discern those different things.)

* The name Hernandez is chosen here solely for illustrative purposes, owing to its commonality among Cubans.  This doesn’t refer to specific persons at all.  Citgo and PDVSA, though real entities, are likewise chosen solely for illustrative purposes.

** Yes, the Convention is U.S. law.  Don’t make me throw the Supremacy Clause at you again, pal.

*** For a more thorough discussion of service abroad under FSIA, see The Foreign Sovereign Immunities Act’s Crippling Effect on United States Businesses, in the Michigan State International Law Review.

Chrysler_building-_top
New York's iconic Chrysler Building. [PB: Leena Hietanen, via Wikimedia Commons.]

[It dawned on me during a commercial break in the second half of Super Bowl LI that the Fiat acquisition of Chrysler was never about Fiat.  After all, you can only sell so many CinqueCentos in the North American market.  What they really want to increase on American and Canadian roads is the sportier, cooler, suaver, debonair-er (?) little brother of Fiat: Alfa Romeo.  Following is the blog I’d planned, until that epiphany between Bud Light and Doritos convinced me that the merger was about bringing Alfa back to this side of the pond.]

Fiat.  A classic brand, and the biggest car company in Italy, but without a significant toehold in North America.

Chrysler.  A once great American company that fell on tough times, was bought and spun off by the Germans (remember Daimler Chrysler?), and needed a big infusion of capital to stay alive.

Put the two together, and you have a going concern—an international conglomerate with renewed strength in the marketplace:  Fiat Chrysler.  Chrysler gets financial backing, and Fiat gets a slew of dealer relationships across the United States and Canada.  Seems to be pretty good match, given all those little CinqueCentos (CHIN-kwa CHEN-tos) running around.

That's Italian for "Five Hundred". As in "how many miles can I get on a tank of gas?" PB: Redneutro, via Wikimedia Commons.
Cinque Cento… Italian for Five Hundred. As in “how many miles can I get on a tank of gas?” [PB: Redneutro, via Wikimedia Commons.]
So, when you sue you know exactly where to serve process, right?  New York and Milan!

Hold up, there, Scooter.  I have a surprise for you.

For one thing, don’t let the big Manhattan skyscraper fool you.  Chrysler (technically, FCA USA LLC) isn’t even there.  It’s headquartered in Auburn Hills, a Detroit suburb.  And Fiat’s HQ isn’t in Milan.  It’s in Turin (Torino, in Italian).  Maybe you’re thinking Alfa Romeo.

More importantly, both automakers are part of a parent company registered in (get this) the Netherlands.  That’s right.  Fiat Chrysler Automobiles N.V., better known to the world as simply FCA, is a Dutch entity (Dutch!), and it has its corporate office in London, of all places.

So, where do you serve ’em?  Tough to say, but personally, I’d go to England.  You don’t need translation into Italian or Dutch, and things go pretty quickly under English rules.  But be wary…

  • If you’re going after the Chrysler subsidiary, you still have to go to Michigan.
  • Fiat itself?  Torino.
  • Alfa Romeo?  There’s your Milan connection (and your big winner in the Super Bowl LI advertising sweepstakes).
  • Maserati?  Modena.

You get the idea.

Just as with any big multinational, be sure to name the parent company properly and then be sure to serve them properly.  If you don’t, Ned Stark has a warning for you…

THIS is Ned Stark.
Seriously.

Here’s the list of “how to’s” for serving in the three countries mentioned above, all pursuant to the Hague Service Convention:

Courtesy Wikipedia.
Courtesy Wikipedia.