(Author’s Note, March 2026:  A whole bunch of litigators have successfully petitioned U.S. courts for orders to serve in China electronically pursuant to Rule 4(f)(3).  This is a horrible, terrible, very very bad idea.  Why?  Because it conflicts violently with the Hague Service Convention.  Don’t even bother, lest you set yourself up for a benchslap on appeal.  Two years ago I promised that it would happen, the 2d Circuit just did it, and the 7th is about to do it.)

I say all the time that we aren’t building rockets when serving process abroad.  For the most part, that’s correct… until it comes time to sue a Chinese party. As a general suggestion for anybody about to embark on that journey, I recommend skimming the China Law Blog, the authors of which have an unparalleled feel for the intricacies of China law.

If you do proceed with a suit, know that serving process in China is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian court is hearing the matter.  But it isn’t so simple as the procedure outlined below might lead you to believe; geography matters.  If your defendant is in Hong Kong, your Hague options are more varied than in the rest of the PRC (so a more complex decision lies before you), but considerably faster, easier, and more likely to lead to an enforceable judgment.  For Hong Kong, see here, because the Hague regime there is more British than Chinese.

On the mainland, 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 confer coercive effect on subpoenas.  Repeat after me—you can’t just SERVE a subpoena abroad.  At least, not if you want it to actually work.  You have to file a Hague Evidence Request.  Dramatically different from serving a summons or notice.  But don’t get overly excited… Evidence Requests to China are usually a massive waste of time.
  • A bit of advance homework is necessary if you truly want to serve in China.  See here for a bit on the need for corporate research— very straightforward due diligence stuff.

Now, for the chase scene.

Personally, I thought Wai Lin was way cooler than Bond. He couldn't have pulled this one off without her.
Personally, I thought Wai Lin was way cooler than Bond. He couldn’t have pulled this one off without her.

Here’s how it’s done in the People’s Republic of China:

Article 5 Service

  • Translate the documents. China’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.  And for crying out loud, get the right written form of Chinese, which is simplified.  
  • No, Mandarin is not what I mean.  Yes, the thing will be in the Mandarin dialect, sort of, but you need simplified written Chinese.  If your translation provider doesn’t know what that means, find a different translation provider.
  • If the defendant is a company, hire an investigator to ascertain the appropriate address for service. It may not appear anywhere in the documents you’ve exchanged already, and if you flub the address, the Central Authority can reject your request.  Or the local officials can reject your request.  Or the guy delivering the documents can be very slipshod about the way he does it.  In any of these circumstances, no dice.  For more, see Chinese company names, flawed addresses, and the high likelihood of Hague Service failure.
  • If it’s a U.S. action, wire $95 to the Central Authority.  The Convention arguably prohibits the assessment of fees, but we charge $95, so China returns the favor on a reciprocal basis.  (Unlike Russia, which rejects U.S. requests as a matter of course.  It’s retaliation, no question, but I happen to think they’re right.  And I hate agreeing with the Russians on anything.)
  • 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 18 months from submission to return of proof, if not more.  To be sure, that time frame is not fatal to your case– 4(m) is your friend.

Article 10 alternative methods

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

Seriously—that’s all there is to it in China.  The method is straightforward; it’s a matter of a simple procedure with complicated implementation.  A tip worth noting is that China assesses a $95 fee for execution of service requests from the U.S.  This runs specifically counter to the “no fees to execute a service request” clause of Article 12, but they only do it to us because we do it to everybody.  It’s a better shake than the Russians give us, to be sure.

China’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.

The best practice tip of all:  call Dan Harris.*  No, really.  If your defendant doesn’t have assets in a country that is willing to enforce a U.S. judgment, you’re likely wasting time suing here.  Dan and his China lawyers can advise you on a strategy to litigate in the PRC.

UPDATE, May 14, 2018: a couple of important additional issues are discussed on a new post here.

And another UPDATE, September 5, 2019: another development discussed here.

* The publisher of the China Law Blog, Dan has been an invaluable guide to me as I’ve launched my own practice and this esoteric little blog.  Anybody who does business in the Far East should follow his writing religiously, and any lawyer who wants to see how blogging is done should do likewise.  [He also knows where to find the best Chinese food in Seattle.  No—not that anglicized stuff they make for the gringos.  I’m talking a crowded hole-in-the-wall type of place where we’re the only white guys in the room.]

Trafalgar Square, London.

We aren’t 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 England & Wales is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.  To be sure, service in Scotland and in Northern Ireland are handled differently, even though the United Kingdom as a whole signed onto the treaty (similarly, Canada has different methods for service depending on jurisdiction, as does the Republic of Ireland).

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 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.  Dramatically different from serving a summons or notice.

Now, for the chase scene.

top gear

No, not a chase involving those guys.  They aren’t even on the BBC anymore.

But they are on Amazon, so if they crash into your house while taping a new show… here’s how service is effected in England & Wales:

Article 5 Service

  • Translate the documents. The UK’s declaration to Article 5(3) requires that documents be in English.  Game over, right?  Pack up and go home?  Not so fast, counsel… make sure your defendant speaks English, because his U.S. Due Process rights follow him, in a sense.  Anybody sued in a U.S. court must be served in a language they understand, so if they don’t speak English, translation is still necessary.
  • 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 four or five months (maybe more) from submission to return of proof.
  • If your defendant is an individual, there is a significant chance that your Article 5 request will fail. The English Central Authority uses Royal Mail to carry service of process, and if the defendant doesn’t sign for the delivery… no dice.  You get a very pleasant notice from London inviting you to try again.

Article 10 alternative methods

  • Mail service is available, but it’s a bad idea anyway.
  • Service via private agent (process server) is available to U.S. litigants under Article 10(b). This is the only truly viable option for serving individual defendants in England & Wales, but still the better method for serving entities, too.   Either way—and this is absolutely critical—make sure to have the process server instructed by a solicitor, or the attempt to serve is ineffective, as it violates the UK’s position on Article 10.

The UK’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.

A bit on Wales… I finally got to visit the place this summer during a CLE conference in England.  [Each summer, my alma mater, UMKC, hosts a program at Oxford University.  Cardiff is a very short train ride away.]

Inside Cardiff Castle. The Welsh are very proud of being Welsh.
Eggnog
Veganbaking.net, via Wikimedia Commons.

Ah, bar association Christmas parties… such fun.  No, really, I do enjoy them.

Last month, over a glass of heavily spiked eggnog, a friend introduced me to a senior partner from a big firm that happens to be one of my clients.  An excellent client, actually, so I thanked him for the firm’s business and told him that I really appreciated the chance to support such a great outfit.

“How do you mean, we’re a client?” he asked.

Oh, I’m what you’d call a consulting attorney.  I handle cross-border procedural issues, and your litigators call me when they need to serve process or compel evidence production in a different country.

“What?!  They’re supposed to use internal resources to do that—they aren’t supposed to look outside.”  He seemed a tad incredulous.  I couldn’t shake the mental playback of Wilford Brimley subtly admonishing Tom Cruise to do what’s right for The Firm.

Which in turn made me a tad incredulous.  This is not Bendini Lambert & Locke.  It’s a real and highly successful law firm that has gotten that way precisely because they project an innovative image. In hindsight, I’m guessing (hoping?) he merely thought that I meant his litigators called me before even talking to each other.  Surely, if the folks down the hall don’t know, it’s okay to call me, right?

So I told him, y’see, the stuff I do is in an awfully tight niche.  It ends up being much less costly for your clients if I handle something, rather than billing ten hours for an associate to research how to serve a subpoena in Germany, just to get it wrong.  (Spoiler: you can’t. Das ist verboten.)

Mr. Incredulous Big Firm Partner (IBFP) walked away grumbling, and I couldn’t chalk up his incredulity to drinking too much eggnog.  He probably just hadn’t read my prior post on why law firms should outsource this kind of stuff.   (Spoiler: because clients.)

My point here is this: harnessing efficiency is the great challenge before the practicing bar in this new year—and likely will be for many more.  Really, it’s a matter of changing mindsets more than anything.  Lindsay Griffiths’ excellent piece in Zen and the Art of Legal Networking came up on my radar last week by way of our mutual blogging platform, Lexblog.  She highlighted the 2016 Altman Weil Law Firms in Transition report and, more pertinent to my conversation with Mr. IBFP, AW’s latest Chief Legal Officer Survey.

The recurring theme in both (not to boil everything down too much):  law firms are still not efficient, and their clients (especially corporate clients) want them to be.  CLOs take their business elsewhere or they move it back in-house because the old cost model (read: billable hours) just ain’t working for them anymore.

But back to Mr. IBFP, who is not that stodgy old grouch who could’ve clerked for Clarence Darrow, who regards the billable hour as sacrosanct, and who still can’t cotton to women in the profession.

Lexblog desperately needs a sarcasm font.
Lexblog desperately needs a sarcasm font.

This fellow is comparatively young, still very much in the game, and very much aware of the pressures all firms are facing.  I’m pretty confident that he meant he wants his litigators to handle things internally if they can.  That would make perfect sense, really.

But here’s my sales pitch, which extends beyond just what I do…

When you need to serve process or compel evidence production in a different country, you’ve got to call me.  Or call one of my competitors.  Just call somebody.  When you have an issue on your desk that will require a massive amount of new learning to get it right, call somebody.  When you are completely out of your element, call somebody.

Of course, the first somebody is the wise old sage down the hall (not the misogynistic Harumpf guy up there^^^).  Use internal resources first—Mr. IBFP was absolutely correct about that.  But the sage may not know, and might just tell you to call somebody like me.

To be sure, much of what I do is billed hourly—my gripe here is not with the billable hour.  In fact, I still think it’s as fair a way to gauge legal work as any.  My gripe is with the persistent belief that bills, rather than client benefit, must be maximized.  Client dissatisfaction shouldn’t strike fear in the hearts of the IBFPs of the world.  It should, however, spark a new way of looking at client service, and create a golden opportunity to forge lasting relationships.  By harnessing the efficiency offered by technology, outsourcing, AFAs… those clients will stick around, and over time will be worth far more than that ten-hour bill.

So here’s hoping Mr. IBFP calls me for a consult.  I’d really like to show that guy what I can do.

 

Hockey Fan
Image by Voice of America, so it's Public Domain. Irony drips from this photo credit, dunnit?

You’ve served the complaint on all of your defendants, they’ve entered their appearances, and everybody is girded up for battle.  Discovery commences.  In one of your depositions, you learn that one of the defendants was somehow selling a knock-off of your client’s product through a distributor in Manitoba, and you are convinced that somewhere in that company’s vast filing system lies the smoking gun.  The big enchilada  pack o’ Timbits.*  The damning piece of documentary evidence that will vindicate your client’s rights and body-check the defense into the glass.

The announcer in your head:  Plaintiff’s Counsel has the puck…  he shoots, he scores!

[Your heroics rouse up the crowd, and they politely chant your name!]

The announcer, again:  Take off, eh? You’re dreaming again, thinking you’re in the Stanley Cup Finals, but you’re really in a Bob & Doug sketch.

Okay, then.  In the real world, you tell your paralegal to draft a subpoena, and you tell her to run a Google search to find out how to serve that thing on the Canadian company at its office in Winnipeg.  She puts together the subpoena in about twenty minutes, and comes back to you with the name of a guy who says he handles process service in other countries.

Outstanding, you think, and off to the rink you go.  You plunk down $1,000 to have Joe Bob the Process Server pull the paperwork together, and then you wait.

Three months later, you get a polite note from the Ministry of Justice of Manitoba.  “Well, gee, eh?  We’re really soory about this, but no.  You can’t do that.  Soory.”

Sorry? That should read "soory".
Sorry? That should read “soory”.  Manners are nice.

So, where did the wheels fall off?

  • For starters, you let a process server—who does not have a law license—tell you how to handle an intricate transnational legal procedure. He doesn’t know what he’s talking aboot, so yes, you should give your professional liability carrier a heads-up.
  • What Joe Bob didn’t know is that subpoenas aren’t covered by the Hague Service Convention— at least, not with any coercive effect.*  They are, however, covered by the Hague Evidence Convention.  Sort of.
  • Even if they were under the Service Convention, Joe Bob isn’t authorized to sign Hague Service Requests because Joe Bob is not a lawyer.
  • But Canada isn’t a party to the Evidence Convention anyway, so the idea of a Central Authority is out of the question.
  • Regardless, you can’t just serve a subpoena.  It doesn’t work that way– if you want it to actually compel anything.  You have to petition the forum court to issue a Letter Rogatory, and then send it through the appropriate channels to ask a Canadian court in the right province to compel production.
  • Oh, and you didn’t say please.  The Canadians are some of the nicest, most polite people on the planet.  But if you don’t reciprocate (or preemptively offer) that politeness, you’re toast.
  • I kid.  Of course, you said please.  You just didn’t say it to the right person in the right way.  A big pack o’ Timbits* would help.

So, let’s face off again, and try the right approach to getting the puck in the net.

Here are the THREE CARDINAL RULES for Hague Evidence Requests—and they apply equally to Letters Rogatory:

  1. Take the words “any and all”, and eliminate them from your vocabulary.  They are the hallmark of good old ‘Murican discovery, and the rest of the world hates that.  The Germans hate that.  So do the French, the Chinese, the Brits, aaaaaand… the Canadians (yes, the Canadians hate our broad discovery practices, of all people!).  You must be surgically specific in identifying what you seek.
  2. Articulate precisely how that evidence is going to be used at trial.  Not that you think it may lead to other evidence or that you suspect that it might be relevant.  You have to say you need it to impeach a witness’ expected testimony or that it is a critical component of your trial theory…
  3. Hire local counsel. At the front end, they’ll help us/you draft the request and will appear for you in the foreign court.  If you have the right one, you won’t even have to pay the State Department $2,275 to hand the thing off to the Canadians!  It will cost you a few hours of the Canadian lawyer’s time and, probably a pack o’ Timbits.**

Give me a shout if any of this doesn’t make sense.

* Look at it this way: a New York subpoena carries no weight in Missouri until a Missouri court domesticates it.  Just serving it doesn’t magically confer coercive effect.  Likewise, a U.S. subpoena (state or federal) has to involve Canadian judicial authorities to have any teeth.

** If you don’t know Timbits, you ain’t lived, friend.  They’re Canadian crack.

* If you don’t know Timbits, you ain’t lived, friend.
Thanks to Warren Buffett, we might just get them here someday.  The inversion is costing us a whole bunch of tax revenue, but, dude… Timbits.

 

Appellationsgericht Basel-Stadt, one of 26 different Cantonal Central Authorities in Switzerland.

I say all the time that we aren’t 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 (yes, I know Switzerland is landlocked… it’s a metaphor!).  Serving process in Switzerland 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 it’s done in Switzerland:

Article 5 Service

  • Translate the documents. Switzerland’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.  Select the proper language, though, based on the Canton in which the defendant is located.
  • 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.  This is also based on the Canton in which the defendant is located; the Swiss have decentralized their Central Authority function.
  • Sit tight. It may take a while—likely 3 months from submission to return of proof.

Article 10 alternative methods

  • Aren’t available. Switzerland objects to them all.  Article 5 is the only way.

Seriously—that’s all there is to it in Switzerland.  The method is straightforward and simple.  Two tricks, though: identifying the correct Central Authority, and identifying the proper language for translation.  Neither is too tough with Wikipedia and Google Maps at your fingertips.

Switzerland’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.

(Hint: there’s only one valid way to go about it.  One.)

I say all the time that we aren’t building rockets here.  But we are building an airship of sorts, and if you use the wrong kind of stuff to make it go up, bad things happen.  Do it the right way, and your journey is smooth.  Serving process in Germany 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.

  • 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 Germany.  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 Germany:

Article 5 Service

  • Translate the documents. Germany’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. This can be a bit tricky, as the Germans have decentralized their Central Authority function (yes, that is counterintuitive).
  • Sit tight. It may take a while—likely 3-5 months from submission to return of proof.

Article 10 alternative methods 

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

Seriously—that’s all there is to it in Germany.  The method is straightforward and simple.  The real trick is in identifying the correct Central Authority, and that isn’t too tough with Wikipedia and Google Maps at your fingertips.

Germany’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.

*  If “informal delivery” is requested pursuant to Article 5(c), translation can be omitted– but informal delivery isn’t a common law concept.  It is a term of art in civil law systems, and it depends on voluntary acceptance by the defendant… and if they’re willing to accept, why wouldn’t they just waive in the first place?

An important note:  IF YOU ARE IN A SPLIT-RECOVERY JURISDICTION (including federal venue in split-recovery states), your Hague Service Request may be rejected by some German states if you do not expressly waive punitive damages.  See here for more details.

The Arc de Triomphe, Paris. (Photo by the author, November, 2016.)

I say all the time that we aren’t 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 France 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 it’s done in France:

Article 5 Service

  • Translate the documents. France’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.
  • In the “Checkboxes” section of page 1, choose a methodology.  By checking Box (a), you will assent to service by a police officer, directed by the defendant’s local public prosecutor, or in an even less desirable scenario, by a postal carrier.  If you prefer (as I do) that the Central Authority forward the request to a huissier de justice* for the act of service, select Box (b)– and remember to remit the appropriate fee (€48.75 at this writing).
  • Send your package to the Central Authority.  All documents duplicated.
  • Sit tight. It may take a while—likely 3-5 months from submission to return of proof.

Article 10 alternative methods

  • Mail service is available, depending on forum rules, but it’s a bad idea anyway. If you do select this route, pay particular attention to the venue court’s rules about how mail service is initiated—in federal cases, adhere strictly to FRCP 4(f)(2)(C)(ii).
  • France also allows direct access to a huissier de justice (now called a commissaire de justice), the judicial officer who serves process in French actions and Article 5 requests. This method avoids having to wait for processing by the Central Authority, often cutting wait time by a few weeks, but finding a commissaire without speaking French can be a challenge, and even then, finding a bailiff who is cognizant of the Convention may also be tough.  (For the record, we work with a firm of bailiffs in metro Paris, but not elsewhere in the country.)

France’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.

* The huissier is a specialized professional in the civil law system.  A qualified lawyer, whose practice is limited to procedural matters on behalf of the court, the huissier not only serves process, but is also tasked with executing judgments.  For a rough analog in common law systems, imagine a combination of bailiff and sheriff, but with the same level of training as a practicing attorney.  The huissier’s counterpart in Dutch-speaking jurisdictions: the gerechtsdeurwaarder.  In German-speaking areas: the deurwaarder (although, to be sure, this won’t help much, as Germany, Switzerland, and Austria all prohibit access to judicial officers for service requests).

[Author’s note:  I spent the spring semester of 1992 in Caen, Normandy, and got to return last fall on a short day-trip to the D-Day invasion zone during a CLE group tour in Paris.  By the way, if you need CLE hours, holy socks, Batman.  Get them in Europe and justify the trip as a business expense.  You might even get to hear me lecture on the very topic of this column.]

Do Not Pass Go

My BusOrg professor in law school was a bigtime Boston Red Sox fan.  We didn’t hold it against him at the University of Missouri-Kansas City, because we sort of knew the pain Sox fans had felt for so long (they went 86 years between World Series titles; the Royals only went thirty, but still).  Big Tony* was an entertaining fellow with a biting wit, and he drove home some very important points about how to handle business law.  The most important (read: basic) lesson he taught us applies just as much to litigation as to corporate governance… get the company name right.

Name the correct foreign entity
Lots of juniors in the entertainment world…

My variation goes something like this:  say you’re suing a guy named Harry Connick.  Which one?  Senior or junior?  It will matter, I promise you, because the senior is the former (longtime) D.A. in New Orleans, and he knows litigation, pal.  Hoo boy, he knows how to litigate.  Junior didn’t go as far.  He’s just a saloon piano player nobody’s ever heard of, but thanks to the old man, he knows some really top flight lawyers who also know how to litigate.  If you tag the wrong one in the lawsuit, you have a tough road ahead of you.

If you’re suing PwC because they goofed on your taxes, you’re not going to sue Price Water House, Inc.  If you do it correctly, you’re going to sue Pricewaterhouse Coopers LLP.  That’s the correct entity.  Price Water House, Inc. does not exist, so your suit is going nowhere.

Okay, sure, PwC is going to enter the suit anyway—and score some points with the judge in the process by not making her deal with a silly issue—but, bottom line, make sure the right name is on the other side of the V.

If your defendant is a foreign entity, it’s even more critical that you properly name it in the suit.**

Don’t call it a Aktiengesellschaft (AG) when it’s really a Gesellschaft mit beschränkter Haftung (GmbH).  In German, that’s the difference between a corporation (Inc./Corp.) and a Limited Liability Company (LLC).  The distinction applies in Germany, Austria, and eastern Switzerland.

Don’t call it a Société anonyme (S.A.) when you really mean a Société à responsabilité limitée (SàRL).  Same analogy, but in French.  Applies in France, Belgium, western Switzerland…

Why does this matter, if the defendant is going to approach the situation like Pricewaterhouse and appear despite your error?

Because service of process abroad won’t be effected if you misname the defendant.  Here in the U.S. (and maybe Canada), they aren’t going to quibble if you get it close.  Outside the U.S., you’ll have a problem if you name an entity defendant that does not exist—the government authority that serves documents won’t even process your request.  And yes, they do check.  You’ll get a tersely worded note that says “that defendant is not in our registry.”

In short, do not pass Go, do not collect $200, counsel.  You’re back to square one.  And you’re out all of the time & money you spent in the attempt.  So, properly investigate your defendant ahead of time—even better, thoroughly investigate potential business partners during due diligence.

Sox* Gratuitous Red Sox logo just for Tony Luppino, whose tutelage in business law made corporate structures a whole lot less inscrutable.

** I have to look them up all the time.  Check out this really top-flight Wiki on on various entity types around the world.

Parliament House, Victoria, British Columbia.

We aren’t building rockets here.  But we are building a canoe of sorts, and a leaky canoe means you won’t make it upriver to see the big hockey game, eh?  Serving U.S. process in Canada is subject to the strictures of the Hague Service Convention, and that means different things depending on where the defendant sits.  Much like the United Kingdom, Canada has varying methods for service depending on jurisdiction.

Most of Canada is decidedly English—in language and in legality (common law).  Québec, though, is a former French colony, and though it was taken over by the British only recently (in the 1760s!), they’re still militantly French up there. Both in language and in legality (civil law).*

Regardless of where you serve in Canada, this Dominion is without parallel for simplicity—whether serving in Québec or elsewhere, it really is straightforward stuff.  Serving in Manitoba is freakishly similar to serving in Minnesota, and it stands to reason (they’re right next door and they have roughly the same accent, eh?).  Here in the States, we’re bookended by the most and the least effective countries in the Hague Service community (Canada & Mexico, respectively).

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 pertain to subpoenas.  Repeat after me—you can’t just SERVE a subpoena abroad.  In Canada, you have to file a Letter Rogatory, roughly similar to a Hague Evidence Request (although Canada is not a party to the Hague Evidence Convention).  The same Cardinal Rules apply—this is dramatically different from serving a summons or notice.   [Update:  for more on Canadian evidence, see here.]

Here’s how service is effected in Canada:

Article 5 Service in Québec

  • Translate the documents. Canada’s declaration to Article 5(3) no longer requires that initiating documents served in Québec must be translated into French, but the wheels may still fall off anyway if the bailiff tells the defendant that English-only documents can be rejected.
  • 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 Québec Central Authority.  Canada decentralizes its Central Authority (yes, I know that’s counterintuitive).  Each province has one.
  • Sit tight. It may take three or four months from submission to return of proof.

Article 10 alternative methods in Québec

  • Mail service is available, depending on where you are, but it’s a bad idea anyway.
  • Canada allows direct access to a huissier de justice,** the judicial officer who serves process in Québec actions and Article 5 requests. This method avoids having to wait for processing by the Central Authority, often cutting wait time by a month or two.  Handy stuff.

Article 5 Service in Anglophone Canada (everywhere other than Québec)

  • Translate the documents? Logically, if service is effected in Anglophone provinces, documents must be in English.  So, game over, right?  [Yay!  Pack up and go home!]  Not so fast, counsel… make sure your defendant speaks English, because his U.S. Due Process rights follow him north of the border (they call it Natural Justice up there).  Anybody sued in a U.S. court must be served in a language they understand, so if they don’t speak English, translation is still necessary.
  • 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.  Again, Canada decentralizes its Central Authority function.  Again, I know that’s counterintuitive.  Again, each province has one.
  • Sit tight. It may take several months from submission to return of proof, depending on which province is handling things for you.

Article 10 alternative methods in Anglophone Canada

  • Mail service is available.  But it’s a bad idea.
  • Service via private agent (process server) is available to U.S. litigants under Article 10(b). Canada’s 10(b) declaration tells you to go to the Yellow Pages to find one (seriously… the Yellow Pages***).  Just be sure you write up the proper proof.  That’s where it gets complicated.

Canada’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.

* Very important to remember—it’s not Quebec.  It’s Québec, with an accent aigu, merci beaucoup.  Pronounce it KAY-beck, not Kwuh-BECK, or you’re apt to get a hockey puck jammed into your mouth.  That’s also not to be confused with KBEK, which is a radio station in Braham, Minnesota.  Not far from Canada, in terms of either geography or accent.

**The huissier is a specialized professional in French-speaking civil law jurisdictions, with a statutory monopoly on service of process functions.  A rough analog in common law systems:  a combination between a bailiff and a sheriff.

***  This declaration came about before the Googles.  For you young folks, we had these things that told us how to contact businesses—>YP

Wayne_County_Courthouse_(Nebraska)_courtroom_2
Wayne County, Nebraska-- about 50 miles from my hometown. Image by Ammodramus, via Wikimedia Commons.

I’m not a fan of arbitration, as a general rule—especially in consumer contracts.*  That said, arbitration is far superior to litigation in many situations, and for many reasons.

In tort, not a good idea.  Certainly not an appropriate venue for a family law dispute. And consumer contracts?  Just… no.  Only the vendor benefits.*  But arbitration is definitely worth considering in global business and investment.  All of the parties involved have the benefit of counsel—or at least, they should avail themselves of counsel—and they are sophisticated enough to recognize what it means to be bound to a decision.  Or at least, they should be…

Some benefits of international arbitration:

  • It’s far cheaper than litigating a dispute.

    Judge Haller has zero tolerance for your crap.
    The Honorable Chamberlain Haller has zero tolerance for your crap, Mr. Gambini.

In arbitration, the parties pick the rule book. Good luck convincing Judge Haller that he should yield to your client’s preferences as to how things get done in the hearing.

  • Decisions are made by specialized neutrals who are selected by the parties. Honestly, if I’m litigating a contract dispute over drilling rights in the North Sea, I would much rather have the case decided by a specialist than a former prosecutor who got appointed to the bench because he was the governor’s roommate in law school.
  • Depending on the arbitral body, the process looks more like the inquisitorial system used by civil law jurisdictions. This makes enforcement far more likely in those civil law jurisdictions.
  • The process garners more respect from laypersons in civil law jurisdictions, for the same reason.  Consequence: they’re more willing to abide by the decision.
  • Two variations on that… losing parties can be more confident that they didn’t get hometowned, and are more likely to pay on the judgment because punitives are a rarity (remember that parties choose the rulebook!).
  • Sensible evidence production is more likely, again for the same reason. That is, when the arbitrator demands evidence, the parties can’t refuse without seriously harming their chances.  They also won’t just throw everything into a box for the other side to sort out.
  • Arbitral awards are more acceptable to foreign courts if the losing party doesn’t pay up.  Awards won in U.S. litigation… much harder to enforce.  [This is the big one…  it’s critical that you get enforcement, lest the whole ballgame be blown.]
  • We have a treaty basis for cajoling those countries who won’t enforce arbitral awards. The New York Convention on Arbitral Awards (1958) has been acceded to by just about every country we trade with.

Now, to be sure, it isn’t always the way to go.  Dan Harris argues, quite lucidly and from much experience, that arbitration clauses are a waste of time in Chinese contracts.  Despite China’s accession to the New York Arbitration Convention , they don’t follow through on their obligations to enforce awards.  Accordingly, Dan continues, the best thing you can do in China is choose (1) Chinese courts as the venue, (2) Chinese law as the controlling doctrine, and (3) Chinese as the operative language of the contract.

But China is one country.  One.  And, while it’s a biggie, it still isn’t our biggest export market by a long shot.  That distinction still lies with those polite, friendly folks to our north.  The home of Wayne Gretzky, SCTV, and Diana Krall (with whom I am in love, much to Peggy’s amusement and unbeknownst to Elvis Costello—or Diana Krall for that matter).  But I digress.  Mexico buys twice as much stuff from us than the Chinese do.  If you consider the European Union a single market (let’s not argue about that here, m’kay?), they beat China, too.  The only reason China tops the list for total trade: we buy four times what they buy from us.

Point is, our biggest trading partners—China excepted—believe in arbitration, and their courts are far more likely to compel a losing party to pay on an arbitral award than on a verdict.

 

* Forced arbitration clauses in consumer contracts are sinister.  Evil.  Downright rude.  While I can’t say that AT&T Mobility v. Concepcion was completely wrong, I do think that five of the the Nine Wise Souls dropped the ball.  Setting aside all the arguments about Congress occupying the field in interstate commerce with the FAA, they should have given more weight to the policy argument that goes like this:  class actions benefit society not because they make plaintiffs whole, but because they make defendants think twice about behaving badly.  It makes them think twice because, (1) punitive damages are rare, and (2) the publicity of a class action is harmful to their profitability.  But arbitration is usually a private affair, and damages are limited.  Maltreatment of a customer by a cellphone provider, cable company, airline, (insert player from random industry here)… used to be a costly thing.  Not only did the vendor have to write a large check, their clientele knew about it and judged them accordingly.  Now?  Individual claims only.  All hush-hush.  A massive waste of time for the aggrieved party, so they just suck it up and deal with it.

Not only is this not beneficial to the public, it’s harmful and it’s shameful.