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.

iphone, ios, home screen, close up, pixels, retina, smartphone, icon, ios 14, icon, screen, phone, calendar, ical
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.

For real. This is a screenshot of the registry for the biggest company in England. Handy to have when you need to serve.

Say what you will about law professors– the best ones always hammer on the most important mantras that soon-to-be lawyers must internalize even before the bar exam.

  • Don’t have (relations) with your client. [Sadly, yes, it’s still necessary to say this.]
  • Don’t steal your client’s money. [Still necessary to say this, too.]
  • Keep reading. [This is one that I’m constantly telling clients to remind the judge about!]

But the biggest one:

  • BUILD A RECORD. [This one is prescient in my particular niche of niches.]
Continue Reading Always take screenshots of address sources. Always, always, always.

John McArthur via Unsplash

Every once in a while, the Venn Diagram of Treaties overlaps a bit.  In my line of work, it’s usually the interplay of various Hague Conventions– noting that there is no such thing as “The” Hague Convention— which pertain mostly to private international law.  Lots of civil stuff in play with these, the most frequently used examples:

  • Hague Service Convention, 1965
  • Hague Evidence Convention, 1970
  • Hague Child Abduction Convention, 1980
  • Hague Adoption Convention, 1993
  • Hague Child Support Convention, 2007

There is also no such thing as “The” Montréal Convention– there are more than just one– but in common parlance in the litigation world, there’s little doubt which is in play. Continue Reading The Montréal Convention and Hague Service

No.  No, no no… NO.

Stop believing key word results without thinking things through.  Just stop it.

If you Google “Process Server Germany” a whole bunch of hits come back that would lead you to believe that you can simply hire a guy in Frankfurt or Munich or Berlin to walk up to a defendant and serve him.  One search hit says they can get the job done in five days (not legally, they can’t). Heck, there’s even another vendor that says they can handle “Formal Hague” or “informal” service.

No.  No, no no… NO.

Still another says that it can serve abroad for you whether the foreign country has signed the Hague Service Convention* or not!  It just isn’t so, folks.

YOU CANNOT HIRE A PRIVATE PROCESS SERVER TO SERVE FOR YOU IN GERMANY.

PERIOD.

(Hint: they don’t have them.) 

If you don’t believe me, ask this nice lady from Arizona; she’ll give you a straight answer:

Here’s her straight answer: “The present Convention shall apply in all cases… where there is occasion to transmit a judicial or extrajudicial document for service abroad. This language is mandatory…”

I’m serious here.  Lawyers know that taking legal advice from Google is as bad as taking medical advice from Google– every question is too fact-specific to leave it all up to an algorithm, and doing so can be disastrous.  And it’s even worse when your Google search leads you to an abjectly incorrect conclusion of law.  Let me illustrate…

Let’s say you’re in a hurry, you have a grumpy client, and you’re being yelled at by an even grumpier judge.  Your defendant is in Germany, and you need to get him served mach schnell.**  So you Google “Process Server Germany” and come to the results list I railed about a moment ago.  Notice something?  Not a single attorney in the bunch, except one German attorney who agrees that they don’t have process servers, but then erroneously asserts that you can directly engage a German bailiff.  On this side of the Atlantic, just a whole bunch of people who’ve apparently never heard of Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), the case that is as critical to overseas service as Miranda is to criminal defense.

Anybody who knows that case– and who is also familiar with Germany’s declarations opposing the alternative methods under HSC Article 10–knows that there is exactly ONE legal way to effect service on a defendant over there, and it involves a very lengthy wait following a request to an appropriate state authority.  That’s it.  You can’t mail it, you can’t email it (contrary to some very bad case law), and you definitely can’t hire a private agent to do it for you– if you do, that guy could be looking at some trouble for usurping the state’s authority.

But let’s also say you call the process serving agency that lands in the top five (or worse, whoever bid the highest pay-per-click on their AdWords portal) and they tell you it’s no problem getting someone served informally, they do it all the time, and if you’ll just send them a few hundred bucks, they’ll have a proof to you in a few weeks.

Whether that person is here in the United States or in a call center in Hong Kong, don’t buy it.  If you do, your next call should be to your malpractice carrier to make sure you’re paid up on your premiums, because you’re taking bad legal advice from a non-lawyer and potentially injuring your client in the process.

Either follow the HSC or don’t bother filing the suit.

* Hague Service Convention… HSC for our purposes here.

** In short, quickly.  Yesterday.  Tick tock, Clarice.  (Unfortunately, that doesn’t exist in Germany, and there’s no such thing as a service of process emergency anyway.)