This can most fairly be categorized under “how to not have to hire Viking Advocates”, but here’s a great practice tip:

If a cooperative defendant is outside the United States, don’t have them accept service.  Instead, have them waive service.

I’ll grant you, this is a distinction that only a lawyer could love, but it will matter down the road.  Let’s get into the hair splitting:

• Waive means “nah, don’t worry about serving me. I acknowledge that I am on notice of the suit, but I do not expect you to have to jump through a bunch of hoops to confirm it for the court.”
• Accept means “send it on over and I won’t hassle the process server or quibble about it later on.”

With the former, there’s no occasion to transmit, because it’s unnecessary.  With the latter, transmission still has to happen. That is, service must still be properly effected, so Hague rules apply.  Everybody involved may think acceptance is okay, but in reality it could still violate the destination country’s declarations to the Hague Service Convention.  Consequently, it violates U.S. law, no matter what the forum court’s rules might say.

The magic words: “occasion to transmit”, straight out of Article 1 of the Hague Service Convention.  Without such an occasion, the Convention is inapplicable, so there are no hoops to jump through.  No occasion means no worries.  Hakuna matata.

But if the defendant is only willing to accept service in the other country, the hoops remain, and they are on fire.*  You may still have to request service via a Central Authority.  In fact, there’s no question that you have to file a USM-94 in countries that object to Article 10 methods—and even in those that don’t object, the alternatives don’t necessarily work in the manner you might expect.  The waiver eliminates all questions.

Another thought:  in federal court, defendants are required to waive service anyway [see Rule 4(d)(1)].  You have to formally ask them to waive—complete with a SASE.  And that request does not amount to service.  All defendants—at least, theoretically—are so obliged.  The fee-shifting rule in 4(d)(2) isn’t compulsory for foreign defendants, but that does not alter 4(d)(1).  That’s the stick.

The carrot?  Well, 4(d)(3) gives defendants extra time to answer.  Rather than the usual 21 days in a garden-variety summons, U.S. defendants get sixty days from the waiver request… ninety days if they are abroad.  A handy little negotiating tool.

If they do waive, you don’t have to hire me to get you through the flaming hoops.

Just promise that you’ll call me about that subpoena you want to serve in Germany.

* Y’know, if you Google images for “flaming hoops”, lots of tigers appear in the results.  Gotta feel sorry for those critters.  Really.  [This tiger image is borrowed from a completely unrelated, yet thoughtful article by Michael Hurley, which I found on the Google rabbit trail.  I have no idea if he had the right to post it or not.]

[Author’s note:  this series distills the Convention as it applies to practitioners in the United States—it is not a definitive analysis of the treaty in a broader sense.  Call it a primer, if you will.  Parts One and Two focus on the treaty’s main operative articles, Part Three provides background, and Part Four, which follows here, delves into articles that, while important, have a bit less practical application to everyday practice.]

Article 13 sets out the only two bases for a Central Authority’s refusal to execute a request for service:  a violation of its sovereignty, and a threat to its security.  A country cannot deny a request just because it thinks its own courts should have jurisdiction over a dispute.

Article 16 allows for a default judgment only after six months from a request’s arrival at a Central Authority.  Elaboration on this idea is far too complicated for this space.

Article 18 allows countries with federal systems to decentralize their Central Authority function (yes, this seems counterintuitive).  We don’t.  That is, the U.S. doesn’t have a separate Central Authority for Maine, Minnesota, and Montana.  But Germany, Canada, and Switzerland all do.  They divide their Central Authorities geographically, and determining the right one can get pretty complex, especially where language is an issue.

Article 19 allows for service by additional methods other than those indicated in Articles 5 & 10 if the methods are used in the receiving country’s courts and are specifically made available to foreign plaintiffs.  I don’t know of any country whose law sets out a specific additional method.  (To be sure, Norway does not have a statute that says “hey, even though we object to Article 10, it’s okay for foreign plaintiffs to hire a private eye to serve process for them.”  Yet that’s what was argued once.)

That’s all, folks.  At least, that’s all for the Cliff’s Notes version of the Service Convention.  Questions are, of course, always welcome, as are comments.  Don’t be bashful.

[Author’s note:  this series distills the Hague Service Convention as it applies to practitioners in the United States—it is not a definitive analysis of the treaty in a broader sense.Parts One and Two focus on the treaty’s main operative articles, Part Three, which follows here, provides a good bit of background, and Part Four delves into articles that, while important, have a little less application to everyday practice.]

Article 1, essentially, says where the Convention applies and where it doesn’t.

• It applies if a plaintiff has “occasion to transmit (…) for service abroad”. That is, if you can serve the defendant in the U.S., the Convention doesn’t apply.  So don’t worry about it.  You may have enforcement issues later on, but for the purpose of putting the defendant on proper notice under U.S. law, you’re okay.
• It applies if the defendant’s address is known. That is, if you don’t know the defendant’s whereabouts, the Convention doesn’t apply.  So don’t worry about it.  That said, if you can’t locate the defendant, you have bigger problems than Hague analysis.  Also, there’s a difference between not being able to find the guy and not even trying.  So don’t be lazy.

Article 3 indicates who can file a request under Article 5 (a “Forwarding Authority”), and what the request must consist of.  Important to note is that “the authority or competent judicial officer” making the request is defined by the country in which the case is being heard, and that definition is found in each country’s declarations to the treaty.  An Article 5 request sent from the U.S. must be signed by a court official or an attorney—it cannot be signed by just anybody authorized to serve process in the forum court.

Article 4 requires the receiving Central Authority to answer a request promptly if it is denied for formatting.  “Promptly” is a very loose term.

Article 9 allows requests to be conveyed to the Central Authority by diplomatic officials of the country hearing the claim.  Don’t spend much energy on this one, because using diplomats to convey a request defeats the purpose of the Convention in the first place.  Plus, U.S. diplomats won’t handle Hague Requests anyway—instead, they’ll just look at you funny and send you on your way.  Still, Article 9 is important to be aware of, just in case somebody tells you to just “call the State Department and have them do it.”  Sorry, pal.  Doesn’t work that way.

Tomorrow, we conclude the series with discussion of a few articles that aren’t frequently addressed, but that occasionally pop up in discussion of proper Hague Service.

[Author’s note:  this series distills the Hague Service Convention as it applies to practitioners in the United States—it is not a definitive analysis of the treaty in a broader sense.  Parts One and Two focus on the treaty’s main operative articles, Part Three provides a bit of background, and Part Four delves into articles that, while important, have a bit less practical application to everyday practice.  This is Part Two, focused on Alternative Methods articulated in the Convention.]

There’s no such thing as “serving through the Hague Convention”.  For starters, you’ve got to get the name of the treaty right.  Here, we’re talking about the Hague Service Convention, not to be confused with the three dozen other treaties that are known as Hague Conventions.

Additionally, I sometimes have a lawyer-client say, “I have to serve a defendant in (Country X), but I don’t want to do it through the Hague.  That’s just too much hassle.”

Sorry, I say.  You don’t have a choice in the matter.  But that doesn’t necessarily mean what you think it means.  We just need to define ‘the Hague’.

What they really mean to say is that they don’t want to file a request with the foreign country’s Central Authority (see Part One).  Fortunately, in many countries, you have options beyond the Central Authority, and they come from the Convention’s Article 10.

Article 10 is at once a source of confusion and salvation.  Confusion because they aren’t available everywhere, salvation because they can be a far superior avenue to effective service.  Provided the country you’re serving in doesn’t object to the specific methods, Article 10 lets a plaintiff go beyond the Article 5 procedure and utilize the following“Alternative Methods”:

10(a):  Service by Postal Channels, which is to say, good old U.S. Mail (or FedEx, UPS, DHL—to be sure, the Post Office uses FedEx for its overseas courier deliveries, and I’ve never seen one rejected because “you used FedEx instead of the Post Office”).  Still, I argue that service by mail is a bad idea.

10(b):  Service via direct access to “judicial officers, officials or other competent persons” of the country you’re serving in.  In short, this means process servers in common law jurisdictions (except England/Wales), and it means officers akin to bailiffs in civil law systems.  This is ordinarily the quickest way to get things done.  It’s usually not the cheapest, but it’s fast—and it’s just as legally valid as an Article 5 request.

10(c):  Service via “Interested persons.”  For the most part, this one is swallowed up by the “other competent persons” designation of 10(b), except in England & Wales, whose declarations specify that 10(c) is the article applicable to the use of process servers.  Critical to note, though—the English/Welsh also require that a solicitor instruct the process server, so we Americans can’t just pick up the phone and hire some guy we know in Liverpool.

That’s it in a nutshell.  Stay tuned tomorrow for the background articles, which inform the operative portions of the Convention.