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(Wm. Grimes, via Wikimedia Commons.)

Our handy-dandy “How to Serve Process in China” guide has been posted for quite some time.  Pretty straightforward stuff, given that the Chinese declarations to the Hague Service Convention eliminate Article 10’s alternative methods from the equation.  There’s only one way to get it done, and that is by filing a USM-94 with the Ministry of Justice in Beijing.  On its face, a seemingly simple undertaking… rock & roll that thing on over to the PRC.

Not so fast, though.  It’s always been a bit more complicated than that.  For starters, the Chinese bureaucracy is excruciatingly slow– historically, they’ve taken six to nine months to return a proof of service.  Lately, though, more than a year passes, and there are rumblings in the transnational litigation community that they’ve stopped executing U.S. requests altogether.  But Hague strictures remain mandatory doctrine in U.S. procedure [see Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) for more], so you have to at least attempt it.  And unlike their counterparts in Russia, the Chinese have not expressly stated that they will not execute U.S. Hague requests.  Instead, China assesses a reciprocal fee of $95 per request– as a countermeasure to the U.S. fee charged due to Congress’ outsourcing of the Justice Department’s Central Authority function.*

But recently, two critical developments have come to light, and practitioners need to know about them:

First, the reciprocal fee can no longer be submitted by check.  The fee has to be wired to our friends in Beijing, and a wire transmittal confirmation must accompany the Hague request instead of a bank draft.

Second, they moved!  And they didn’t tell anybody for a couple of months.  The new address for China’s Hague Central Authority:

Ministry of Justice of China
International Legal Cooperation Center
No.33 PingAnLi XiDaJie
Xicheng District, Beijing,100035
People’s Republic of China

Critical information right there.  And there’s been no official notification to the Hague Conference for a website update– as of this writing, the Conference’s site still shows the old address (which is summarily walled off, my courier tells me) and it can only be updated upon official notification from Beijing.  An update is coming eventually, I’m confident, but meanwhile a good many requests could be lost in the ether.  [UPDATE:  The Hague Conference website has been updated, as of June, 2018.]

* I still happen to think the Russians are completely justified in their recalcitrance.  I also think the Chinese are completely justified in their reciprocal fee requirement.  The Convention prohibits fees, but we charge one anyway because Congress decided we didn’t need all those gubmint employees drawing a paycheck.  Now, to be sure, the Central Authority function is outsourced to a top-flight organization– and I’m a huge advocate of outsourcing where it’s reasonable.  But the United States charges foreigners a fee for something that ought to be a routine government function, provided at public expense.

Palace of Justice, on Plaza de Bolivar, Bogota. Kamilokardona, via Wikimedia Commons.

Most of us in the U.S. have a fairly warped image of Colombia in our heads– usually something to do with cocaine or a big emerald the size of your hand.  If it’s not Pablo Escobar in (pick a movie about the drug trade), it’s Michael Douglas sliding down a rain-soaked hillside after Kathleen Turner in Romancing the Stone.

Oh, yeah, and then there’s Shakira… whose Hips Don’t Lie.  She’s Colombia’s biggest export of late.

But there’s quite a bit more to this South American nation than drug trafficking and pop culture, and litigation involving legitimate Colombian companies is picking up lately.  Since 2013, serving process in Colombia has been subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.

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 done in Colombia:

Colombia in the Hague Service Convention

The Convention only entered into force for Colombia in November, 2013, and the Colombians have yet to make their declarations known to the Hague Conference — even as late as 2025.  They just say “Ninguna” (none) with regard to Article 10. For my money, you’re best served (very bad pun intended) to stick to what’s known on Colombia.  Don’t assume, just because they haven’t said anything, that everything’s jake and you can use Article 10.  It ain’t.

In my estimation, there’s really only one practical avenue to service: Article 5.

Article 5 Service

  • Translate the documents. Colombia’s declaration to Article 5(3) only says that they request that everything be in Spanish– there’s no real requirement indicated.  The reality is that if you don’t translate the served documents (and the Request itself) into Spanish, your request will probably be rejected, if not by the Central Authority, then by the local officials who actually execute the Request.  Plus that, always keep Due Process/Natural Justice requirements in mind.
  • 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 9 months, perhaps a year, from submission to return of proof.  The judge is just going to have to accept that fact, because there is no realistic alternative.

Article 10 alternative methods

  • Article 10(a) may or may not be available– we don’t know.  But even if mail is legally valid, it’s still a bad idea.
  • Article 10(b) & 10(c) amount to nothing, because if the Colombians haven’t declared whether they’re opposed or not, they also haven’t declared who is a “competent person.”

Seriously—that’s all there is to it in Colombia, but don’t get excited.  Sure, the method is straightforward and simple, but actually making it happen could be anything but easy.  It may take an interminably long time, and in many cases, local authorities are decidedly less than motivated to act against large local entities, so service on the local factory boss may not happen at all.  Pablo Escobar may be dead, but hometown loyalty is not.

Colombia’s 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.

You didn’t seriously think I’d do this without a picture of Shakira, did you?

Shakira looks like my wife’s cousin, the anesthesiologist.  [I actually spelled anesthesiologist on the first shot. Yes, I Googled it to make sure.]
Seriously, this is a nice way to spend an hour & a half. It’s no Citizen Kane, but who cares?

My wife gives me incessant grief because I enjoy romantic comedies.  I’m kind of a sap.  One rom-com that I absolutely adore is My Life in Ruins, a fun little film by Donald Petrie, set in Greece and starring Nia Vardolos (of My Big Fat Greek Wedding fame).   An essential element of the plot is the insistence by Vardolos’ character that they do everything far too slowly in Greece.  Personally, I don’t think so.  They’re simply more relaxed than the rest of us.

Okay, by common law standards, sure, Greece is pretty pokey.  But compared to other civil law jurisdictions, service of process in Greece is comparatively quick.  The procedure 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 service is effected in Greece:

Article 5 Service

  • Translate the documents. Greece’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.
  • Sit tight.  It may take a while—likely four months or more from submission to return of proof (although in our experience as of Spring 2024, Greek authorities are getting things done even more quickly!).

Article 10 alternative methods

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

Seriously—that’s all there is to it.  Greece’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.

Peace Garden– Manitoba/North Dakota border.  [Bobak Ha’Eri , via Wikimedia Commons.]
This blog is primarily geared toward U.S. and Canadian attorneys who need to serve documents off-continent.  For the most part, there’s no difference between what a U.S. lawyer must do and what a Canadian lawyer must do to serve in Asia or Europe or many other parts of the world.  Our systems are incredibly similar, and so are our respective declarations to the Hague Service Convention.  In short, if I say that “a Hague request must be filed with the appropriate Central Authority in (Country X),” that requirement applies whether the action is being heard in Manitoba or Mississippi.  What I haven’t addressed– until now– is how Canadian actions must be served in the United States.  So, for my colleagues north of the border, 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 will, 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.  At least, not if you want it to have any teeth.  You have to file a Letter Rogatory.  Dramatically different from serving a summons or notice.  But in the U.S., even that isn’t necessary.  It’s far quicker and more effective to hire U.S. counsel (I suggest you contact Ted Folkman for help) to file a request under 28 U.S.C. § 1782 in whichever federal district the evidence (or deponent) is located.

As to serving Canadian process in the U.S.:

Article 5 Service

  • Translate the documents. The U.S. declaration to Article 5(3) requires that documents be in English.  For most Canadian actions, that’s no problem, but if the action is being heard in Québec, then the documents are probably in French.  That triggers a natural justice question (due process in the U.S.), so it’s highly advisable.  To be sure, the U.S. Central Authority does not require translation of French documents, but if the defendant isn’t a French speaker, big problems follow.
  • Fill out a Hague Service Request, referred to down here as a USM-94 (use the Hague Envoy platform for a sort of assisted do-it-yourself option). Be very careful about ensuring that it is complete and concise, and make sure that it is signed by an authorized person (this is an exhaustive list)…

– Attorney General for Canada
– Attorney General, Ministry of the Attorney General or Minister of Justice of a province or territory
– Clerks of the courts and their deputies for a judicial or a court district.
– Central Authority for Alberta
– Deputy Minister of Justice, Northwest Territories
– Huissiers and sheriffs
– Local registrars
– Members of the law societies of all provinces and territories
– Members of the Board of Notaries of the Province of Québec (for non-litigious matters only)

Article 10 alternative methods

  • Mail service is available, depending on the venue court’s rules, but it’s a bad idea anyway.
  • Service via private agent (process server) is available to Canadian litigants under Article 10(c).  Technically, it doesn’t even have to be a professional process server, although that’s a good idea– if you have “the plaintiff’s cousin Todd” do it, there’s a pretty good chance Cousin Todd will screw things up, and you don’t want that hanging over your head.  Easiest way to find a pro: just Google “process server (city where the defendant is located)” and you’re good to go.  Just make sure that you write the affidavit in a form used by the venue court.

The U.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.

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Sagrada Familia, Barcelona. Photo by the author.

Once we get past the romantic mental images of bullfights and Picasso, or of Hemingway running through cobbled streets in a white shirt & red scarf while being chased by large farm animals, Spain is rightly seen as a highly industrialized society– one with many of the same problems shared by its Mediterranean neighbors, and much of the same sunny, sophisticated allure.  Serving process in Spain 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 service is effected in Spain:

Article 5 Service

  • Translate the documents. Spain’s declaration to Article 5(3) sort of 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—anywhere from nine to twelve months, from submission to return of proof.

Article 10 alternative methods

  • Mail service may be available, depending on your venue, but it was a bad idea even pre-pandemic, and even worse now.
  • Service via local counsel is available under Article 10(b)– a procurador (a Spanish attorney, roughly akin to a French hussier de justice**) seeks the assistance of a local court to effect service without the involvement of the Central Authority.  It can save a couple of months or more, but the cost in many cases outweighs the speed.  If time is of the essence, though, this can be a fantastic option.  Just make sure local counsel is adept at Hague issues.

Seriously—that’s all there is to it in Spain, but don’t get excited.  Sure, the method is straightforward and simple, but it’s going to take a while, even if you have a lawyer handling things for you in-country.  The wheels just move more slowly than they do over here.

Spain’s declarations and Central Authority information can be found here.

* Technically, it’s not an outright requirement.  But the declaration is so vague as to essentially make it mandatory.  Rather like saying, “yeah, we’re not saying you have to, but don’t expect results if you don’t.”

**  I said roughly akin.  Not identical, not parallel…

Toledo Courthouse, San Juan, PR. Notice the big blue mailbox with the eagle on it.  Look familiar? (Daderot, via Wikimedia Commons.)

This conversation happens pretty frequently.  At first glance, it might seem like a silly discussion to have, but in reality, most of us don’t have a good handle on the geography or history behind it because we were never really exposed to it in high school.  And who paid attention then, anyway?

Caller:  “Hey, Aaron, how do I serve process in Puerto Rico?”

Me:  You pick up the phone and call a process server on that sunny island.  It’s really that simple.

Caller:  “But don’t I have to follow the Hague?”

Me:  No.

Y’see, Puerto Rico is a territory of the United States, and has been since just after the Spanish-American War.  Think “Remember the Maine,” Teddy Roosevelt, San Juan Hill and all that.  Of course, San Juan Hill is in Cuba and the city of San Juan is in Puerto Rico, but I digress.  Puerto Ricans (or, Boricuas if you’re keen to use the proper term) are U.S. citizens, they (kinda-sorta) vote in presidential elections,* and they carry blue passports with a big gold eagle stamped on the front, just like folks born in Iowa.

For the purpose of procedural requirements in U.S. state courts, Puerto Rico should be viewed in the same manner as a sister state…

  • Divorce case in Georgia, serving a respondent in Saint Paul?  You need a Minnesota process server.
  • Divorce case in Georgia, but serving a respondent in San Juan? You need a Puerto Rico process server.  It’s literally the same analysis.

Things are even clearer in federal court…

  • RICO case in S.D.N.Y., serving a defendant in Miami?  You need a Florida process server– or any non-party adult willing to do the job.
  • RICO case in S.D.N.Y., with a defendant in Mayagüez?  You need a Puerto Rico process server– or any non-party adult willing to do the job.  Again, same analysis.
  • In either case, the defendant is obliged to waive.  And if they refuse without cause?  Mandatory fee shifting under Rule 4(d)(2).**  They’re within a judicial district of the United States (D.P.R., naturally), so… pay up, folks.

Perhaps an even better analogy is this:  think of Puerto Rico in the same way you’d think of the District of Columbia.  No, it’s not a sovereign state, but it might as well be– at least in terms of procedural questions.  People born in DC are U.S. citizens, they vote in presidential elections, and they carry blue passports with a big gold eagle stamped on the front, just like folks born in Iowa.  (To be sure, both DC and PR are taxed without representation, but that’s an entirely different kettle of fish.)

In short, you don’t need somebody like me to effect service in Puerto Rico pursuant to the Hague Service Convention.  [Unless you’re in Canada– and even then, it’s pretty simple.  Yes, the Convention would govern how you do it, but you can use a process server under Article 10(b) just like you would in Michigan.]

* A very astute reader pointed out to me that Puerto Ricans can only vote in presidential primaries unless they move to the mainland.  I had completely forgotten about the nuance about that– and stand happily corrected.

** For a discussion of fee shifting in cases where a foreign defendant refuses to waive, see Serving Overseas: The Carrot and Stick of Waiver.  [That’s foreign in the “you need a passport to go there” sense, rather than the “across State Line Road” sense.  Yes, this is a distinction only a very nerdy lawyer could love.]

Bermuda Tourism Authority, at gotobermuda.com. No, seriously, go to Bermuda. And take me with you.

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; this could be a frightening concept if, like me (at the age of eight), you believe in the mythology surrounding the Bermuda Triangle.

Serving process in Bermuda is subject to the strictures of the Hague Service Convention, regardless of which U.S. venue is hearing the matter.  The tiny island is an overseas territory of the United Kingdom, which has extended the treaty’s effect to most of the remaining parts of its former Empire; this includes the UK declarations.*  A fair number of U.S. tourists spend time in Bermuda, just a few hundred miles off North Carolina, and a whole bunch of financial houses are chartered there thanks to a highly favorable tax structure.  That means a fair amount of U.S. litigation involves entities on the tiny island.

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 Bermuda:

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 three or four months from submission to return of proof.

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(c). 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.

Pretty straightforward stuff in Bermuda.  For more insight, the UK’s declarations and Central Authority information can be found here.  And I’m serious– when you go to Bermuda, take me with you.  We were supposed to put in to Hamilton on a cruise in December, 2023 but bad weather thwarted our plans.

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.

* Declarations (also called reservations in treaty law) frustrate the hell out of U.S. practitioners who aren’t aware that they change the effect of statutory text.  If a country declares its opposition to Article 10 (Germany and China do, for example), then Article 10 does not exist between it and the United States.  The methods described there aren’t even part of the agreement.

Following the death of Queen Elizabeth II, much speculation has been thrown around, concerning whether certain members of the Commonwealth of Nations might jettison their membership, kick out the monarchy, and go it alone as a republic.  That’s not in the cards for Bermuda– it’s not an independent state.  It’s a British Overseas Territory.

Rio de Janeiro from above Cristo Redentor. Mariordo via Wikimedia Commons.
Rio de Janeiro from above Cristo Redentor.     Mariordo via Wikimedia Commons.

[Author’s note: one of our staff members is a Brazilian attorney.  While it’s not necessary that Brazilian counsel be involved, Julie has been a great addition to our staff and has a fantastic rapport with the Central Authority down there.]

They’ve got a lot of coffee in Brazil, according a certain Mr. F. A. S. of Hoboken.  It is a land of wonder and beauty and mystery and a culture all its own, not to mention home to one of the greatest athletes* ever.  Not quite like its Spanish-speaking neighbors, Brazil is a former colony of Portugal—and the only country in South America to use Portuguese as its official language.  They also throw the most massive pre-Lenten party on the planet (Rio’s Carnival), an event that makes Mardi Gras in New Orleans seem like afternoon tea at Balmoral.  And while Brazil’s political environment remains tenuous and tense at times, its judiciary has become relatively stable and respected.  Indeed, over the past several years, Brazil’s courts have undertaken a concerted effort to become more transparent.  Serving process in Brazil, while complicated, is neither the labyrinthine undertaking nor lost cause that it may once have been.

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.

Here’s the short version of the how-to:

Article 5 Service

  • Translate the documents. Brazil has not indicated a declaration to Article 5(3), regarding translation requirements.  But they do require it, so although the defendant may speak flawless English, omitting Portuguese versions of the documents– all of them— 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.  Oh, and translate the Request Form into Portuguese, too.  I contend that the treaty only requires English and French, but I don’t run the show in Brasilia.  Just do it.
  • Send everything to the Central Authority.  In duplicate.
  • Sit tight. It may take a while—perhaps a year or more from submission to return of proof.  The judge is just going to have to accept that fact, because there is no truly viable alternative.  Further, political turmoil in Brazil may slow things down even further.

Article 10 alternative methods

The Article 5 method is straightforward and simple, but actually making it happen is anything but smooth.  The real problem with service in Brazil is that they’re so new to the treaty, nobody who does what I do has a sufficient track record to make predictions.  The old method under the Interamerican Convention on Letters Rogatory took a long time.  And given the state of affairs down there right now, local authorities are decidedly less than motivated to act against large local entities, so service on the local factory boss may not happen at all.

Brazil’s Central Authority information can be found here.

* A hat tip to the only soccer player I ever knew existed in my youth (other than his teammates, Nigel Powers and Judge Dredd).  Great enough that just two syllables suffice,  I give you… Pelé.  (Update… a hat tip to the great athlete, who passed away in São Paulo on December 29, 2022.)

I tried this kick when I was eight. I failed. And that's when I stopped playing soccer.
I tried this kick when I was eight. I failed. And that’s when I stopped playing soccer.

Taipei City at sunset
Timo Volz, Unsplash

A bit of history is critical to knowing how to serve process in Taiwan.  Depending on who you talk to, there are two Chinas.  There’s the People’s Republic of China (PRC), the Communist-run mainland, and then there’s Taiwan, the Republic of China (ROC), which is the descendant of the Nationalist regime that ruled China prior to the Communist takeover in 1949, and moved to the island of Formosa.

The split is confusing, and given the massive amount of trade between the U.S. and both Chinas, it looms large over the manner of serving defendants located in either.  Officially, the world acknowledges only a single China, viewing Taiwan (the ROC) as a rogue territory rather than a sovereign nation.   The U.S., especially, regards Taiwan with a wink & a nod… essentially, “no, we don’t officially recognize you anymore, but we’re going to pretend we do for the sake of commerce.”  The policy of the United States is to observe a “One China” policy, but we also have pledged to defend Taiwan from invasion should the PRC decide to make One China a reality.

To the roughly 24 million ethnic Chinese on the island, the ROC is its own nation, and that makes serving Taiwan defendants a bit tricky.    (For details on serving in the PRC, click here, and for Hong Kong here.)

Because it is not viewed as a sovereign, Taiwan can’t technically sign a treaty.*  Accordingly, the Hague Service Convention doesn’t apply.  And that at once complicates matters and makes serving a bit easier.  It’s easier because litigants have several service options available in Taiwan, while in the PRC, there is only one way to make it happen.  The complication lies is choosing the right one.

Before anything else, identify what is to be served.  A summons/complaint or other notice can be served by any of the following options.  BUT (and repeat after me here)… you can’t just SERVE a subpoena abroad (likewise any discovery demands, RFPs, etc.).  You must use a Letter Rogatory to compel evidence production in Taiwan, and evidence requests by this instrument must follow the same Cardinal Rules as Hague Evidence Requests-– dramatically different from serving a summons or notice.

Now, on to options for serving other documents, particularly summons & complaint combos.  If you anticipate the need to enforce a U.S. or Canadian judgment abroad, focus only on options 1 and 2, even with the significant costs involved.  If you merely seek a victory to block infringing products from your domestic marketplace, 3 and 4 might suffice.

Option 1:  Letter Rogatory

  • First, have a Letter Rogatory issued by the court hearing the case.  The court will expect you to provide the document, but the judge signs it.
  • Next, translate the documents-– all of them, including the Letter Rogatory.  Although the defendant may speak flawless English, omitting translated documents will prompt Taiwan courts to refuse execution of the Letter.  And for crying out loud, get the right written form of Chinese, which is traditional.  Simplified Chinese is a creature of Chairman Mao’s cultural revolution, so while they may perfectly understand it in Taiwan, it is considered an insult.  A very avoidable insult.
  • On that issue, if your translation provider doesn’t know what that means, find a different translation provider.
  • Next, send everything to the State Department with the appropriate fee.
  • Sit tight. It may take a while—likely several months months from submission to return of proof, if not more.
  • Be prepared to translate the response, which could be rather pricy.

Option 2:  Local Counsel

  • Hire an attorney in Taiwan to have service effected according to forum rules.***
  • Translation may or may not be necessary.
  • Make sure the proof is written up correctly, or it could be a pretty easy quash.

Option 3:  Mail

  • If the venue court allows it, give it a shot.  Now, I contend that mail service abroad is usually a horrible idea, but in Taiwan, it can be a huge cost saver, and in some cases, the only realistic way of providing notice.  Important to note: while we’re still dealing with Covid, couriers still aren’t back to requiring signatures very widely, so it’s impossible to comply with FRCP 4(f)(2)(C)(ii).
  • Pay very close attention to the rules of the venue.  You can’t necessarily just drop the thing in your outbox and call it good.
  • Always bear in mind that if you mail service, the odds that an enforcement action will be denied go up dramatically.  If your defendant has no assets in the U.S., think twice about going down this avenue.

Option 4:  Electronic service

  • Again, if the venue court allows it, give it a shot.  FRCP 4(f)(3) opens to the door, and given the non-applicability of Hague strictures, it can be a great way to go (and one that you don’t need my help to accomplish).
  • Even more than with mail service, the odds that an enforcement action will be denied go up dramatically.  Likewise, if your defendant has no assets in the U.S., think twice about going down this avenue.

Again, the lack of Hague coverage in Taiwan is not an inhibiting factor– things can actually be easier and quicker, though not necessarily cheaper, than in the PRC.  Taiwan remains a perplexing foreign policy headache for the U.S.  It is a democratic country with free and fair elections, multiple parties, a sophisticated legal system, and republican form of government.  This tends to make service in Taiwan a much smoother ride than on the mainland.

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.

* That said, it has been accepted as a member of the World Trade Organization and its various treaties… referred to as “Chinese Taipei” in an extension of the wink & nod.

** A bit of irony here…

Chiang’s portrait.
Kuomintang Archives via Wikimedia Commons.

And Mao. (All pictures taken in the PRC are public domain, as I understand it. This one is likewise from Wiki.)

*** A very obscure distinction to be wary of: corporate defendants in federal court can’t be served personally due to an exception in Rule 4(h)(2).

The world’s largest democracy.  An ancient and intriguing land with no equal on the spectrum of diverse and exotic destinations.  Seriously– India is not a single culture.  It’s dozens of them, if not hundreds.  Serving process in India is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.  But brace yourself… it’s gonna take a while.

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…

  • 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 in India.  You have to file a Hague Evidence Request.  Dramatically different from serving a summons or notice.

Here’s how service is effected in India:

Article 5 Service

  • Translate the documents? Logically, if service is effected in an English-speaking country– which India is, at least officially– documents must be in English.  So, game over, right?  [Yay!  Pack up and go home!]  Not so fast, counsel… make sure your defendant actually speaks English, because his U.S. Due Process rights follow him to India.  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.  And there are hundreds of languages spoken in India, so be very meticulous about getting it right.
  • 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. And know that in a country of 1.3 billion people, they’ve got one guy working in their Central Authority.  One.  So…
  • Sit tight.  It may take a while—likely a year or two from submission to return of proof. That is not a typo.   Patience is absolutely critical, on the part of the plaintiff and on the part of the court– always bearing in mind that specific deadlines generally don’t apply to service abroad precisely because of inefficient foreign bureaucracies.
  • All that said, if you have local counsel involved, the time could be trimmed considerably.*

Article 10 alternative methods

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

Seriously—that’s all there is to it.  The method is straightforward and simple.  India’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 just any local counsel will do, for the record.  They must actually know how to shepherd things through the labyrinth, as it were, and it helps if they know that one guy in the Central Authority office– much of the lag time in India service comes in the form of unopened mail on one guy’s desk.  Once the wheels are turning, local counsel can monitor the request to make sure that it doesn’t spend several more months waiting to be opened on some other guy’s desk.  [I exaggerate.  It’s not just one guy– but the office is incredibly understaffed and overwhelmed.]