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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.]

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

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Aurélien Lemasson-Théobald, Unsplash

The U.S. Department of State and Global Affairs Canada each designate “Forwarding Authorities” who are legally competent to sign Requests pursuant to the Hague Service Convention. In Canada, the designation is pretty succinct, setting out a specific list, including various government officials, judicial officers, and “Members of the law societies of all provinces and territories”. Put another way… certain public servants and lawyers (including huissiers de justice in Québec).

In the U.S., things appear to be a bit more loosey-goosey:

The persons and entities within the United States competent to transmit service requests abroad pursuant to Article 3 include any court official, any attorney, or any other person or entity authorized by the rules of the court. 

Any court official. So the judge or clerk of court can sign these things. Got it– easy to see.

Any attorney. Plaintiffs’ counsel, defense counsel bringing in a third-party defendant, a group of attorneys in Kansas City who do nothing but Hague Service (hint, hint), or really, anybody among us crazy enough to pass a bar exam. Check.

But what of “any other person or entity authorized by the rules of the court“? There’s where we get into problems. Why? Because a whole bunch of process servers look to FRCP 4(c)(2) and somehow see an authorization to sign Hague Requests. That takes a massive leap in logic and willful disregard for the distinction between what is authorized and what is permitted.  Process servers are neither in this regard, because Rule 4 says nothing about the Hague mechanism except to say an overseas defendant may be served in accordance with the treaty. Even that drafting is incomplete, because if the Hague Service Convention applies, it’s mandatory doctrine by virtue of the Supremacy Clause. The FRCP are irrelevant to the question.

But 4(c)(2) says precisely nothing about the Convention or service abroad. Here it is verbatim:

By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint.

Hmmm. That’s not even authorization to serve domestically. It’s permission (may serve). And why is that permission there? Because service of federal process was once within the exclusive purview of the United States Marshals, and an Advisory Committee thought that should be opened up to folks outside federal law enforcement. It still doesn’t get to who is authorized to sign a Hague Request– 4(c)(2) just says who may serve.*

Who may serve in a foreign country is not determined by the FRCP. It’s determined by the foreign government in its municipal law, modified by its declarations to the Convention. Our rules go out the window. Looking again to the U.S. designation of Forwarding Authorities, it’s necessary to go elsewhere to find authorization. For this specific function, the FCRP are silent, but the court has inherent authority to appoint specific persons to act on its behalf.

Now, to be sure, many non-law firms (process servers) do it the right way– they ask for a commission from the forum court, and only sign Requests under that authorization. Others just cut to the chase and hire a lawyer (or lawyers) to be on staff– that’s how I got into this business in the first place. Both approaches satisfy the U.S. designation. Nobody involved in that procedure, including the lawyers, are actually authorized to serve the thing in the foreign country.

But the non-lawyers who sign them without specific authorization from the forum court? Nope. Not valid, so don’t take their word for it that “sure, it’s all good, we’ve been doing this for years.”

That’s only because no defendant has ever taken it up on appeal. I’m pretty confident you don’t want to be on the receiving end of that benchslap.

* The distinction between “authorized” and “permitted” is fleshed out in the Syllabus of Water Splash v. Menon (2017): “The fact that Article 10(a) encompasses service by mail does not mean that it affirmatively authorizes such service. Rather, service by mail is permissible if the receiving state has not objected to service by mail and if such service is authorized under otherwise-applicable law.”

A note to defense counsel: always question the validity of Hague Service Requests. So your offshore client was ostensibly served by judicial officials in its/his/her home country? Validity of service under that country’s laws is not the end of the analysis. If it’s not a valid Request to begin with, think fruit of the poisonous tree from Crim Pro.

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.)

The old Jackson County Courthouse, Independence, Missouri.  We don’t use it anymore, and Independence isn’t the county seat anymore.  MT Images via Wikimedia Commons.

A routine question from clients across the continent– especially those in my own state*:  “Hey, Aaron, the clerk says I have to tell the court who is going to be serving the documents in China or they won’t issue my summons.  Could you get me the process server’s name and qualifications so they can appoint him?”

There’s a lot loaded into that, with some compelling responses.  The primary response: No… you and I don’t get to know that.  Continue Reading No, the U.S. court doesn’t get to appoint a process server overseas.