Five Essential Things All Business Owners (and Their Lawyers!) Should Know Before Signing Global Contracts

Five Essential Things All Business Owners (and Their Lawyers!) Should Know Before Signing Global Contracts

(… or, if you will, “How to not have to hire Viking Advocates when the contract sours.”)

Let’s get the disclaimers out of the way.  One, this advice is legal in nature, but it is not offered to a specific person.  It is general information meant to provide perspective, to highlight the vulnerabilities in a contract.

Two, it is not an exhaustive list, so if this is all you contemplate in a contract, you are headed for disaster.

Three, if you are a business owner who seeks to enter into a contract with a foreign party, you must (and I cannot stress this enough) HIRE A LAWYER.  This is not just a plea to protect my guild monopoly.  Yes, you’re as smart as any of us.  Yes, you have a wonderful product/service/company/etc. and you do wonderful things.  But you cannot foresee what your lawyer can.  Global commerce is no place for the faint of heart, and it is no place for self-representation.

These are vital issues your lawyer must contemplate before you sign a contract.  If s/he hasn’t thought of them, mention them.  If they tell you these issues aren’t important, run away as fast as you can, because your lawyer is dangerously ignorant of transnational litigation procedures (to be sure, just because your lawyer hasn’t mentioned them does not mean s/he hasn’t factored them into the equation).  These are not absolutes, but are factors that should unquestionably be mentioned.

  1. Designate an agent for service in the United States. All U.S. entities must designate an agent for service when they incorporate, organize, or register with their respective Secretary of State.  Foreign (that is, non-U.S.) entities usually bear no such responsibility.  If a lawsuit becomes necessary, you probably won’t be able to just hire a process server in the foreign country. Your lawyer will need someone like me to handle it for you or, worse, will spend hours just researching how it’s done (and then bill you for that time).  With a U.S. agent, regular U.S. practice is perfectly fine.  (And to go one better, have the contract stipulate that the agent can be served by email!)
  1. Include a choice of venue. Even if that venue is overseas (and in many cases, it’s actually smarter to choose a foreign venue than a U.S. venue), agreeing on the appropriate place for a suit prevents a number of headaches—and can even prevent a dispute from arising in the first place.  Globally, this is referred to as a “choice of court clause” but has similar binding effect in most industrialized countries.
  1. Choose a governing law. Amazingly, the choice of what rules govern a dispute is left out of many contracts completely, with each party simply assuming that their own laws will apply.  That assumption is incredibly dangerous.  To be sure, the negotiated choice of law may not ultimately be the one you hope for, but as the old adage goes… forewarned is forearmed.
  1. Determine the operative language. Especially if the other party puts two versions of a proposed contract in front of you, make sure you select the operative language early on—and then revise that draft accordingly.  An entire civilization once gave over its territory because an ostensibly bilingual contract wasn’t really bilingual.
  1. Guard against having to enforce abroad by making the other party secure a guarantee of judgment debt from an American bank or other guarantor. Yes, it’s a pain in the neck.  Yes, it can drive up the cost of contracting and thus drive up the cost of the entire relationship.  But a judgment following a lawsuit is utterly worthless if it can’t be enforced.  If the foreign party’s assets are all in a country that won’t recognize and enforce a U.S. judgment, litigating the matter is a massive waste of time.
  1. Bonus Tip: add an arbitration clause. It serves the same purpose as a choice of court clause, and often designates specific rules and the governing law.  Thanks to the New York Arbitration Convention, arbitral awards are far easier to enforce abroad than litigated judgments and, despite their political unpopularity, provide significant cost savings in dispute resolution.

Again, your lawyer may have already pondered these tips, but they are still worth discussing.  Viking Advocates assists attorneys in the diligent drafting of global contracts, but the bulk of what we do results from contracts that are silent on these issues.  Hiring us now for a consultation now means not having to hire us later to help wage a long and protracted litigation war.

 

Acknowledgment:  Particular thanks to Dan Harris of Harris Moure in Seattle, who pens an outstanding blog on the legal ramifications of doing business in China.  Dan’s thoughts on litigating against Chinese opponents are extrapolated more generally here.

Military servicemembers and divorce

Military servicemembers and divorce

Your client is a G.I.— a grunt, a leatherneck, a swabbie, or a flyboy.  While he was stationed overseas, he met a girl who he thought was the love of his life.  After a whirlwind romance, they got married, and she followed him stateside.

Eventually, things went south.  For whatever reason, marriages end every day, but for military families they are particularly heart-wrenching, especially when the non-military spouse is from another country.

When that foreign spouse leaves the U.S., the divorce process is decidedly more difficult because service of process isn’t quite as simple as hiring a server to hand her the documents.  Doctrines of international and foreign law must be observed.  Those doctrines vary wildly from country to country, so what is appropriate in England or Belgium might be expressly prohibited in Germany or Japan.

Family lawyers representing military clients must be meticulous about ensuring that service is effected properly—even if the court is unaware of the proper procedure—and just reading the applicable treaty or status or forces agreement is not enough.  The nightmare scenario if the procedure is not carried out correctly: the foreign spouse has a change of heart, returns to find her husband married again… and files an action to nullify his later marriage.  Far-fetched, of course, but possible.

Our legal staff can provide the guidance necessary to ensure that service is effected the right way.

(Where a spouse seeks to serve a U.S. servicemember stationed or deployed abroad, it gets even more complicated.  We elaborate here.)

 

(The picture above: Elizabeth Bowles-Lyon and Prince Albert, later known as King George VI.  They made it, and their story won Best Picture.  Their grandkids, not so successful.  Photo courtesy of Wikimedia Commons.)

Yes, counsel, you do have to translate that thing.

Yes, counsel, you do have to translate that thing.

U.S. court, U.S. plaintiff, U.S. defendant… everything about the case is American but one:  the defendant lives in Kaiserslautern.  Or Basel, or Xi’an, or Montreal—pick an overseas city.

When you serve a defendant in another country, you must observe the laws of that country, particularly where the Hague Service Convention applies.  Here’s why:

If the document is to be served under (Article 5), the Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed.”

— The Hague Service Convention, Article 5(3)

Note the key clause:  “The Central Authority may require…”.

They almost always do.  With the exception of Israel, Italy, and the Netherlands, every Hague member that wasn’t once part of the British Commonwealth (and one that still is) will mandate a translation from English into its own language.  Switzerland and Belgium are even more picky, requiring translation into a particular tongue based on which city the defendant finds himself in.

Even if the Central Authority does not require it, like in Italy or the Netherlands, the court officials and bureaucrats who handle the request down the line may have an affirmative duty to reject the request for lack of translation.

Best practice: eat the cost and do it anyway, because you will save your client a whole bunch of headache—not to mention money—as the case progresses.

The same advice applies to service under Article 10.  Although nothing in the Convention requires a translation for alternative methods, if the defendant is in a jurisdiction that wasn’t once a British colony, there is probably no such thing as a process server.  Service must be effected by a judicial official, so expect some sort of hiccup to set off a chain of events culminating in a dismissal.

And even worse, don’t play around and use Google Translate just to save a few bucks.  I love the thing—the camera function in the Android App is really handy for translating gelato flavors in Rome.  But it is utterly horrible for legal documents.  Do it the right way, and hire someone with the expertise necessary to do it professionally.   [The same can be said for undertaking Hague Service requests on a Do-It-Yourself basis.  Just like that home improvement project you started a year ago—but had to call a plumber to finish—it will cost you and your client more in the long run.  Outsource it!]

 

The Rosetta Stone image credit: © Hans Hillewaert / CC-BY-SA-4.0 via Wikimedia Commons.

Serving U.S. servicemembers abroad

Serving U.S. servicemembers abroad

A particular quirk arises in serving a defendant if he or she is a U.S. servicemember stationed abroad.  For the most part, I explain to clients that such an objective is a tough one, so they might have to simply wait until the defendant returns to the United States.   [This is not, as one might assume, due to the Servicemembers Civil Relief Act (formerly the Soldiers & Sailors Civil Relief Act, 50 U.S.C. §§ 3901-4043).  That statute stays proceedings, tolls statutes of limitation, and provides a host of other protections to uniformed defendants, but it does not address service of process.]

Defendants must, of course, be served according to the rules of the forum court.  But when a servicemember is stationed in another country, they can only be served within the strictures of applicable international agreements.   The Hague Service Convention is chief among the governing treaties, but no less important are individual Status of Forces Agreements (SOFAs), which govern access to U.S. installations by civilians and local authorities.

Herein lies the quandary, with several contradictory components.  Unless the defendant has a discernible civilian address (that is, not located on a U.S. installation), standard methods of service will be unavailable.

  • Hague service is not available without an address.  If a defendant lives in a barracks or other on-post* housing, then they simply don’t have an address.  Of course, “1234 Eisenhower Drive” or simply “Building 2375” may be valid for telling friends where to gather for a social engagement, but the addressing system is most likely unknown to local authorities (both civil authorities and the post office).  It has no legal effect, and can change by the simple act of a clerk.
  • Even if the defendant does have a discernible on-post address, mail is generally not delivered to such an address, and local judicial authorities would most likely be denied access to the post under the governing SOFA.  (Process servers, where they exist, are afforded even less accommodation by post security.)
  • Forget about serving them at the office, especially if “the office” is an artillery range.  Even if a local judicial officer does gain access, those officers generally avoid serving anybody at work.
  • The Posse Comitatus Act prohibits the use of Army and Air Force chains of command for civil purposes, and various Naval regulations likewise create insurmountable roadblocks.  Urban myth advises that a plaintiff simply needs to ask a JAG (Judge Advocate General) office to effect service but this simply isn’t accurate.

So what is a plaintiff to do?  Several options are available, although odds of success are lower than with service on a non-military defendant.

  1. Wait.  Simply hold onto the summons until the defendant returns from his tour of duty overseas, and serve him upon his arrival stateside.  Of course, the court must be made aware of the hurdles to proper notice, so an order excusing non-service may be issued to protect the plaintiff from dismissal.
  2. Request leave to serve via U.S. mail at his known APO or FPO (Army/Air Post Office or Fleet Post Office) address.**  APO/FPO addresses are not tied to geography like a street address is.  If a unit stationed in Germany is temporarily transferred to Kuwait, a soldier’s address may not change–or if it does, the APO staff in Germany will automatically forward his mail to the new address as a matter of course.  In short, the soldier will get his mail.
  3. Request leave to serve by electronic mail.**  All U.S. personnel are issued email addresses for official use, and they are generally permitted to use those addresses for personal communication while stationed abroad.  Moreover, given the ubiquity of free email servers, it is nonsensical for an active duty defendant to argue that he/she does not have a personal email account.  And like APO/FPO addresses, email addresses are tied to an individual, rather than to a physical location, so treaty considerations are less daunting.  (E-mail’s acceptance as a means of effective service is growing, slowly but surely.)
  4. If the defendant happens to live in civilian housing (“on the economy”) and his address can be ascertained, serve via traditional channels.  This may come in different forms, so significant brainstorming is necessary.

Serving a G.I. isn’t as easy as serving other defendants, but it may still be possible with creative thinking.  Call us and we can bat around some ideas.


The author is an Army brat.  An Army installation is referred to as a post, and it is painful to call it anything else.  Not a fort, not a base, and certainly not a campus.  With all respect to the Air Force, Navy, and Marine Corps, you’ll have to substitute your own terminology on this one.  Post, base, installation… you get the idea.

** Use of APO/FPO mail or of U.S. military e-mail servers may run afoul of the Posse Comitatus Act.  The issue has not been addressed in case law as of this writing.

 

Serving a Subpoena Abroad? Not so fast, counsel.

Serving a Subpoena Abroad?  Not so fast, counsel.

 

Subpoena, in Latin:  “under penalty”.

Subpoena, in American English:  show up or else.

It isn’t really Latin—Julius Caesar would look at you funny, because it’s not really a word.  We made it up.  But a subpoena is nonetheless a critical instrument in American legal practice.

Essentially, it is an order to produce or appear, and it carries significant coercive effect.  Disregard it, and the consequences can be expensive.  Refuse it without cause, and sanctions can make your life difficult.  But all this presupposes that the recipient is subject to the jurisdiction of the court issuing it.  Once it leaves its own jurisdiction, a subpoena becomes nothing more than a wish list—and a clumsily worded one, at that.  A subpoena’s coercive effect is revived only by statute or by court order in the jurisdiction where it is to be served (domestication).

If it crosses state lines, say from Florida or Georgia to New York or Minnesota, domestication is fairly pro forma.  But when it crosses an international boundary, it cannot regain its coercive effect.*  It becomes a simple piece of paper and, legally speaking, is reduced to a mere request.

Practically speaking, the demanding syntax of a subpoena can serve to irritate the recipient and anger foreign legal authorities.  Legally speaking, it is often fatal to its own objective.  So what does a practitioner do to compel the evidence she needs from a third-party witness or custodian located abroad?

The simple answer: a Letter of Request.  Unfortunately, the answer is the end of its simplicity. A request to compel production (testimonial or documentary) must be routed through the courts of the foreign country.

And you must understand that the Hague Service Convention does not apply to subpoenas.  Rather, the Hague Evidence Convention governs the conveyance of requests to compel evidence.  And that treaty is merely a procedural aid.  It really doesn’t do a great deal for American lawyers seeking discovery.  That is not to say it isn’t helpful—quite the contrary—but it is not substantive in any way, and it does not oblige foreign authorities to lend assistance.

Meticulous crafting of the request is critical, and that requires adherence to several cardinal rules… which we’ll be happy to tell you about when you call.

 

* One exception: a subpoena may be served on a U.S. citizen, national, or permanent resident pursuant to 28 U.S.C. §1783 and Fed. R. Civ. P. 45.  Such service is undertaken by U.S. consular officers.

Be Mick Jagger (Rule 12 dismissals when the plaintiff screws up)

Be Mick Jagger (Rule 12 dismissals when the plaintiff screws up)

Good old 12(b)(6).  The Rolling Stones Rule.  Failure to state a claim for which relief can be granted (I can’t get no Satisfaction).

Pop-Art_-Mick_Jagger-_Öl_+_Acryl_auf_Leinwand_von_Silvia_Klippert

It’s the defense litigator’s go-to basis for dismissal.  Graceful, poignant, utterly classic.

Sure, the plaintiff was harmed.  Sure, the defendant caused it.  But there’s no law that says he’s liable for any wrongdoing.  Kick it, your honor.

When you get a 12(b)(6) dismissal, you’re a rock star.  You’re Mick Jagger.  Your client thinks you’re a genius and sends you a fruit basket with a bottle of Johnny Walker Blue and a $10,000 bonus check.  (That might be a stretch.)

But when a defendant is in another country, 12(b)(6)’s lesser known neighbors are more helpful.  And they should give pause to plaintiffs’ lawyers who don’t know what they’re doing.

Let’s say you’re in Germany.  You’re an engineer at German-Cars-R-Us, and your company was involved in some pretty nasty stuff—lying to regulators, lying to customers, lying to shareholders.  The story goes viral, and some guy in Kansas City who bought one of your cars six months ago now wants to sue you.  Individually.  Even though you didn’t have any involvement in the fraud, they’re throwing the book at everybody whose name was on a personnel list.

FedEx drops a packet on your desk (Hier unterschreiben, kumpel… sign here, pal).  The guy in the next cubicle speaks English and, mercifully, he translates page one for you.  Holy socks… it’s a summons to appear in a federal lawsuit in the Western District of Missouri.  They filed the thing a few weeks ago, and now you have 21 days to answer!

You find a lawyer in Kansas City (danke, Das Google) who gets to work on the case right away.  Fortunately, he speaks a little German, so you’re confident.  You send him twenty grand, and he files an answer to the complaint.  He litigates it, and you win.  But you’re out twenty grand.

Had he known about the law governing service of process abroad, he would have seen the simplest way to make the claim go away, and for a whole lot less than $20,000.

What would I have done?  I would have done nothing until the 91st day after the complaint was filed.  Then, I would have moved for dismissal under Rules 12(b)(4), 12(b)(5), and 4(m).

Why 12(b)(4)?  Because you don’t speak English.  It is rather difficult to understand a summons in English if you only speak German—and the plaintiff didn’t send a translation.  Your due process rights were ignored, so the process was insufficient.

Why 12(b)(5)?  Because the plaintiff’s lawyer completely ignored the Hague Service ConventionMail service (including FedEx) is ineffective in Germany, so service was insufficient.  For that matter, it’s ineffective in any Hague country if the case is being heard in the 8th Circuit.

Why 4(m)?  Because a plaintiff has 90 days to serve, or the claim has to be dismissed.  Now, that deadline doesn’t apply to service outside the United States, but the safety valve doesn’t give a plaintiff unlimited time—a reasonable diligence standard still applies.  If the plaintiff doesn’t even attempt proper service within the first 90 days, he’s out.

Bottom line—the plaintiff’s attorney was not only dilatory,* he also did it wrong.  So wrong, in fact, that the case against you should have been dismissed sua sponte.  Both sides have a malpractice claim against their lawyers, who should have come to one of my CLEs.

They could’ve been rock stars.

 

*Dilatory: unnecessarily pokey.  (I had to look it up, too.)

Image:  Pop-Art “Mick Jagger” by Silvia Klippert, via Wikimedia Commons (free license granted by the artist).

Civil vs. Common Law… the greatest conundrum in transnational litigation.

Civil vs. Common Law… the greatest conundrum in transnational litigation.

The divide between the common law and the civil law tradition is the transnational attorney’s greatest conundrum, greatest source of consternation, even the greatest inhibitor to fair & equitable dispute resolution in global commerce. And it is not going away. As such, at least a basic understanding of the differences is critical. Call this the super-simplified Cliff’s Notes version of Comparative Law, if you didn’t have the chance to take the course in law school.


Common Law

American lawyers, along with our fellows in England and her former colonies, are trained almost exclusively in the common law. In this august tradition, legal concepts evolve over time through a succession of judicial opinions. Of course, legislative action is ostensibly the basis for legal interpretation, but the very broad areas of contract, property, and tort arose primarily from centuries of court-issued holdings.* Statutes, in large measure, serve to codify or modify concepts established through the evolution of English jurisprudence—if not via binding precedent, then through easy-to-adopt persuasive precedent handed down by sister courts in other jurisdictions. Even where legislative acts provide the basis for a legal concept, courts themselves interpret statutes according to their own rules of construction.

Civil Law

Conversely, our counterparts in the non-English-speaking world operate in the civil law tradition, based on the Napoleonic Code. In this system, labyrinthine statutory language covers every manner of legal concept from marriage and inheritance to faulty wiring and landlord-tenant relations. Code language is interpreted not by judges themselves, but by legal scholars—literally law professors who are consulted by courts for guidance in determining the meaning of statutory text.

To be sure, “civil law” in this context should not be confused with the concept of civil actions in the U.S.  The Napoleonic system operates in both criminal law and that which we would term “civil” litigation.


Although differences between the systems are many, the greatest single contrast, and the one that most vexes American lawyers—is that between the common law’s adversarial tradition and the inquisitorial system of civil law. In the common law, attorneys investigate, interrogate, and argue facts. In the civil law, inquiry lies within the purview of the judge.

Because of this dramatic difference in the respective roles of attorneys and judges, we have a hard time understanding each other, and frustration abounds, especially when a common law (read: American) attorney seeks to serve process or compel foreign evidence.


Service of Process Abroad

When a common law lawyer seeks to serve process, all she needs to do is hire a process server—a private agent who specializes in the matter. It’s quick, it’s inexpensive, and it’s straightforward.

In civil law systems, though, service of process is a sovereign function of the court, and must be carried out by a judicial officer akin to a bailiff or sheriff’s deputy. In some countries, notably China, delivery of a summons by a private agent is a criminal offense, a usurpation of the court’s authority.

As such, American litigants cannot simply hire a detective in Berlin or Beijing to serve documents. Even in France or the Netherlands, which are slightly more permissive, U.S. litigants must still have personal service effected by the judicial officer.  This should not cause alarm, however, as most U.S. procedural rules allow a plaintiff reasonable time to utilize foreign mechanisms.

Evidence Compulsion

Simply put, attorneys in civil law jurisdictions don’t ask questions—they make legal arguments before the court—and it is up to the judge to inquire about facts. Accordingly, foreign judges often view American discovery requests not only as overly-intrusive, but also as a usurpation of their authority.

Common law judges and lawyers, conversely, feel stymied by the refusal of civil law courts to compel the production of evidence deemed crucial by litigants.


Fortunately, an understanding can be established through very careful crafting of requests to foreign authorities, but it must be done with complete recognition of what drives foreign law.

Ultimately, the civil and common traditions are really two pathways to the same destination, or at least, two means of striving for the same goal. The most glaring differences are procedural in nature. Once they are understood and accommodated, disputes can be resolved with less headache and heartache.

 

*In the 1970s, Schoolhouse Rock was a great starting point for civics education. But it failed to provide a full picture of the sources of law– the title of the most memorable was “How a Bill Becomes a Law.”  It was not “This Is the Only Way Laws Happen”. Sadly, the cartoon that made me want a life in politics is the same cartoon that has obliterated basic civics in America. What was then a starting point is today considered the final exam.

Image: The Old Bailey, London, courtesy geograph.org.uk, via Wikimedia Commons.

Service of Process in Russia… probably not going to happen.

Service of Process in Russia… probably not going to happen.

An interesting order & opinion from the Southern District of New York outlines the massive problem litigators face when suing—and serving—defendants in Russia.   See AMTO, LLC v. Bedford Asset Management, LLC, No. 7:2014cv09913 (S.D.N.Y., 2015).  In AMTO, the Bedford defendant sought to serve a third-party defendant in Russia by alternative means, specifically, via the defendant’s Gmail account, and leave was granted by the court.  Ordinarily, service by email is authorized only when other avenues have been exhausted, but in Russia, there simply aren’t any avenues to exhaust.

A bit of a quandary here.  Russia and the U.S. are parties to the Hague Service Convention (HSC).  Under U.S. law, a plaintiff must adhere to the HSC if there is “occasion to send the documents abroad for service.”  See the text of the Convention itself, as construed by Volkswagenwerk AG v. Schlunk, 486 U.S. 694 (1988).  As such, any attempt to circumvent the parameters of the treaty is ineffective for service of U.S. process.  A critical note, however, is that this requirement means different things in different countries.  The methods available depend on the defendant’s location.  In England or France, plaintiffs have several options.  In other countries, including Russia, China, and Germany, only one method of service is legally sufficient—and this creates a Catch-22 with Russia.

Article 3 of the Convention requires member states to designate a Central Authority to receive requests for service, which are submitted by foreign parties under Article 5.  The Authority is tasked with processing those requests and having service effected according to the destination country’s law and common practice.  This is the method made available by all member states, no member state can object to its use, and refusal to accommodate a valid request can be based only on certain criteria (e.g.: national security or infringement on state sovereignty).

Article 12, in turn, prohibits the assessment of fees by the destination state for service that the state itself performs.  The U.S. Department of Justice, our designated Central Authority for Hague requests, has outsourced its function to a private contractor.  The contractor, Process Forwarding International (PFI), charges a fee of $95 for the act of serving foreign process as the exclusive agent of DoJ, either through its network of private process servers or through the U.S. mail.

Russia, understandably, views PFI’s fee as a violation of Article 12.  The U.S. counterargument, it seems, is that requests undertaken by the contractor are processed by “competent persons” other than the government itself, so the fees are appropriate under Article 12(a).  To be sure, DoJ officials never actually handle requests, so the argument is technically accurate.  But the mere outsourcing of the DoJ responsibility is a clear abdication of a treaty obligation.  To be sure, PFI gets the job done—and it gets the job done well—but the U.S. Central Authority doesn’t foot the bill!

The net result is very straightforward:  under the belief that the U.S. is in violation of the Convention, the Russian Ministry of Justice flatly refuses to process Article 5 requests from the United States.  (Aside: China likewise views the fee as violative, but it instead charges reciprocal fees on U.S. requests.)

Given that Russia objected to the alternative methods described in Article 10– the options available in Canada, England, and France– there is quite literally no way to legally effect service on a defendant in Russia.

Yet not all is lost.  Whether the defendant is in Russia or elsewhere, it is often possible to effect service by alternate means, but a good deal of creativity is necessary to hale the defendant into court.  (Email, anyone?)

 

Image source: www.publicdomainpictures.net, Image #42958

Always Question the Validity of Hague Service Requests

Always Question the Validity of Hague Service Requests

The Hague Service Convention is mandatory doctrine in U.S. law. Wherever the treaty applies, plaintiffs must follow its dictates. Failure to strictly adhere means their attempts at service—whether successful or not—are ineffective. The safest avenue to a sound legal footing is by filing a request with a foreign country’s Hague Central Authority pursuant to Article 5 of the Convention.

A properly formatted request, which prompts the foreign Authority to serve a defendant, results in a Hague Certificate of Service, a globally standard attestation by the foreign Authority that service is complete. The court hearing the case cannot look behind the Certificate to analyze whether service was effective under the foreign country’s law.

But what if the underlying request is itself invalid? Herein lies a flaw in the practice undertaken by many plaintiffs. On a standard Hague form (commonly, the USM-94 in the United States) the requestor should indicate a basis for his or her authority to forward the request.

While the designation of method and of who can serve in the foreign country is determined by that country’s declarations to the Convention, the determination of who can forward a request (that is, sign the form) is made by the country where the case originates.

Under U.S. law, that means a court official or an attorney. A Hague request signed by a non-lawyer who is neither a court official nor specifically commissioned by the court is invalid…

(Joe Bob is not a lawyer.)
(Joe Bob is not a lawyer.)

Although a few foreign Authorities do balk at flawed statements of a requestor’s right to file, most give the matter scant thought. As such, service is carried out, but on an invalid basis.

By and large, Hague Certificates are unassailable. The forum court is not the most competent finder of foreign law (that is best left to the foreign country’s authorities!), so it has to take the Certificate at face value, but that is only part of the issue. The request itself must comply with U.S. law at its inception, regardless of the foreign country’s execution. Many don’t.

[Viking Advocates offers assistance in quashing service undertaken incorrectly, and we make sure it is effected properly at the outset.  If your foreign client has been served– ostensibly– let us take a look at the situation.  Email inquiries@vikinglaw.us any time.]

Why should you outsource your international work?

Why should you outsource your international work?

For the same reason you should refer a case out.  It’s in the client’s best interest.

A friend called me a couple of months ago, and asked for my help. His wife had asked him for a divorce, and he knew that I had handled divorces before. But this one was going to get nasty—custody battle, a fight over property division… I know just the lawyer for you to call, I said.

“But I want you to be my lawyer. I know you. I trust you.”

I appreciate that—I really do. But trust isn’t the most important issue. If I were to take your case, I’d be doing you a disservice. You have kids, you have a house, and you have a bitter fight coming. I’m not the right lawyer to handle all that.

I referred him to a classmate from law school, and things have gone relatively well thus far because both parties have great lawyers. Score one for the good guys.

Another friend called me not too long after. His cousin had been picked up on a federal drug & weapons charge. Pretty straightforward stuff, but I referred him to another lawyer all the same.

“But I want you to be my cousin’s lawyer. I know you. I trust you.”

I appreciate that—I really do. But trust isn’t the issue. I’m not the right lawyer to handle the case.

The same argument applied.

Why did I farm them out? Could I have handled the cases? Sure. I was in the planning stage for the launch of my own practice, and I could certainly benefit from some immediate fees coming in the door.

But I would have to spend ten or twenty hours just figuring out how to get my ducks in a row. I can’t bill a client for all that learning. I referred the cases out because I don’t handle contested divorces or felony cases, and gaining the base knowledge necessary to properly advise these clients would take away from building my core practice.

The same idea applies to the procedures involved with foreign defendants and overseas witnesses. Your clients trust you. They want you in the driver’s seat as their case winds its way through the labyrinth. But international procedures are arcane, complex, and often quite counterintuitive to a common law attorney.

Couldn’t any lawyer figure them out, though? Of course they could. I don’t know a single lawyer who couldn’t navigate these issues given the right research tools and sufficient time.

But they have to spend several hours just figuring out how to get their ducks in a row—and their client won’t be excited about paying for those hours. They don’t handle service of process abroad on a regular basis, and gaining the base knowledge necessary to properly effect service would take away from their core practices.

Serving a summons abroad, compelling evidence production in a foreign land… yes, these can be done, but the cost to the client—and to the lawyer—is significantly higher than hiring somebody who handles them routinely.

This is why Viking Advocates exists. To save the attorney time and resources, not only in once litigation has commenced, but even earlier—when the lawyer is mapping out a strategy. We will consult at every stage of the process, and save everybody a good deal of time, money, and energy.