Mail and the Hague Service Convention… a match made in confusion.

Mail and the Hague Service Convention… a match made in confusion.

Here’s an easy question:  can you serve by mail in (pick a country)?  I’ve fielded this one a hundred times.  The attorney asking has usually already decided that’s what he’s going to do and is just making sure.

Unfortunately, it’s not as easy as it seems.  With apologies to all of those who suffered through the crucible of law school and must now live its clichés, it depends.

Generally speaking, yes, you can serve by mail in much of the world, but there are exceptions, both here and abroad.  And that doesn’t mean you should serve by mail.  It’s a bad idea, for more reasons than I have space here to discuss.

Article 10(a) of the Hague Service Convention seems pretty clear.  Sending a summons & complaint by mail (and by reasonable extension, FedEx) is acceptable under the Convention, provided the country you’re sending to doesn’t object.  That means a clear “no” in:  Germany, China, India, Mexico, Switzerland, Russia, Korea…

The answer in Japan is “probably not” (long story).

Where the destination state doesn’t object (think England, France, Canada, and others), it’s still not a great idea.  You may be on a solid legal footing, but the factual ice your other foot rests on is awfully thin.  Put another way,  good luck proving it, pal.

But the destination country isn’t the only critical element of the analysis.  You must first determine whether mail service is valid in the forum hearing the case.

Local rules don’t allow it?  Sorry, 10(a) is not going to fly, regardless of the destination country’s views.

Federal rules do allow it, but be wary.  Overseas mail service originates with the Clerk of Court, rather than the attorney’s office.

Moreover, two circuits and numerous federal districts have held that a drafting error in Article 10(a) is fatal to its validity.  The 5th and 8th Circuits keyed on the drafters’ use of the word “send” rather than “serve”.  But rejoice, 2nd and 9th!  Your appeals courts think Five and Eight goofed.

I happen to agree with Two and Nine, but I honestly think Five and Eight will overturn themselves when the right case comes along.  (Hint:  if you have a test case in either Circuit, let me take a crack at it.)

Truly, the legal validity of Hague mail service doesn’t matter.  It’s usually a waste of energy to try it in the first place because you often can’t demonstrate conclusively that the right person at the defendant’s home (or defendant entity’s office) actually received the documents.

Far better to ensure that service is effected in a manner that leaves no question of fact.*  Article 5 is awfully handy for that, as is Article 10(b)/10(c) where available.

==================

*A note about mail service’s use by foreign Central Authorities under Article 5: if the foreign authority says it’s valid, it’s valid.  Period.  The U.S. court can’t dissect the foreign government’s reasoning on the matter, and should defer.  Earlier post on serving U.S. servicemembers abroad touch on that issue  here and here.  Bottom line: a foreign authority’s use of mail validates it under Article 5.  As such, Article 10(a) analysis is inapplicable, and the Supremacy Clause makes the treaty override local rules.

Image credit:  Chris Downer, via Wikimedia Commons.  The oldest letter box in England.  Note the “V R”, indicating Queen Victoria, who died when William McKinley was President.  (William McKinley also died when William McKinley was President.)

Serving Absent Parents Outside the United States

Serving Absent Parents Outside the United States

Immigration attorneys seeking Special Immigrant Juvenile (SIJ) status for their clients must seek an order of guardianship in state court before an Immigration Court will confer SIJ classification.   In order to establish that guardianship, they (or co-counsel who practices family law) must put the child’s biological parent(s) on notice of the proceedings—and that implicates a host of procedural barriers.

In many states, parental rights are constitutional in nature—the best interests of the child take a back seat— and that doctrine isn’t going away.  Even where the best interests of the child are paramount, notice must still be served in order to vindicate an absent parent’s constitutional rights.

The constitutional standard applicable to the manner of service of process comes from Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950): notice by a “means reasonably calculated… to apprise” the defendant (respondent) of the action and to give him/her an opportunity to oppose it.

Where that defendant is outside the United States, the law of the foreign jurisdiction must also be respected.  In many countries, even in Latin America, that may implicate the Hague Service Convention—which is mandatory doctrine under Volkswagenwerk AG v. Schlunk, 486 U.S. 694, 699 (1988).

Application of the treaty complicates matters in serving guardianship notices, but even where it is not applicable, service may be impossible.  That does not, however, allow a court to simply deem a respondent served.  It also does not mean that mail or a fax or email or Facebook Messenger are appropriate.

Mexico is signatory to the HSC, and it has declared its opposition to all of the alternative methods of service listed in Article 10.  This leaves but one legally appropriate method of service: a formal request to the Ministry of Foreign Affairs in Mexico City.  This process takes several months—in many cases up to a year (no, that is not a typo).

In other Latin American countries, most notably Guatemala, Honduras, and El Salvador, service is all but impossible without extraordinary cost and risk.  But, again, that does not relieve counsel of the duty to take reasonable steps to serve.

And therein lies the key idea: reasonable steps.  [Shameless plug:  Not only does Viking Advocates provide assistance in serving process, we also help counsel to demonstrate why traditional attempts to serve would be unreasonable—due to cost, lack of information, or extreme risk.]

Once we have accomplished a few steps, alternatives can be suggested to the court hearing the guardianship request:

  • A diligent attempt to ascertain the respondent’s location. If he’s in a village in the mountains with no address, we simply cannot reach him by traditional means.
  • If you have an address, try to serve. This is especially true in Mexico, where service is frequently effected, but usually after a lengthy wait.
  • If no address is available, there are other options, but every case is—like every jurisdiction—different.

In all cases, honest attempts at service must be initiated, lest the entire quest for SIJ status unravel.  Above all else… do it the right way.

 

[In a later post… we will discuss the Hague Adoption Convention, the State Department’s erroneous interpretation of it, and the way in which SIJ status overcomes the error.]

Brexit, Service of Process, and Evidence Compulsion in the United Kingdom

Brexit, Service of Process, and Evidence Compulsion in the United Kingdom

My newsfeed has been jam-packed with Brexit stories since England & Wales voted to quit the European Union (for the record, Scotland and Northern Ireland voted overwhelmingly to remain—and this will have additional effects on the state of the UK).  On the morning of the result, I gave a CLE lecture that was co-opted quite a bit by the news.  Personally, I was stunned, and my befuddlement was heightened by the many voters who offered that “I just voted Leave to shake things up… I didn’t think we’d actually do it!”

(Aside:  this is what happens when dubious soundbytes—and flat-out falsehoods—appeal to an angry and frustrated electorate.  Take heed, America… November is coming.  Additional aside: don’t be too hasty to conclude that Brexit will actually come to pass.  That is a good thing.  If it does, Scoxit is next.)

Lest we Yanks think the result creates problems only on the other side of the Atlantic… think again.  Within hours of the vote, the Pound plummeted to a three-decade low (the Euro fell also, but not precipitously), and that makes American goods and services more expensive abroad.  Logically, the US manufacturing sector will take a hit as commerce slumps with the world’s largest trading bloc.  True, it makes travel across the Atlantic highly attractive, but it stymies our already tepid economic recovery.

What of litigation, though?  How will the Brexit affect service of process in the United Kingdom?  Or on the continent, for that matter?  How will it affect the compulsion of evidence in foreign jurisdictions?

Short answer:  it won’t, except perhaps to make agent services in Europe and the UK less costly to American litigants.

The long answer really isn’t long, except to say that service of process and evidence compulsion are very country-specific issues, and those issues have little or nothing to do with the European Union.  As to procedural issues in American lawsuits, Brexit will have negligible effect.

 

(Image by Rlevente, via Wikimedia Commons.)

Electronic Service of Process Abroad

Electronic Service of Process Abroad

A debate is simmering in the service of process community, and should come to a rolling boil in the next several years:  whether process can be legally served by electronic means.  Frankly, it ought to be—not just because it is so simple—but because it fulfills the constitutional standard much more effectively than other less practical means.

That standard?  In Mullane v. Central Hanover Trust Co., 339 U.S. 306 (1950), the Supreme Court held that service of process must be effected by a means reasonably expected to put the defendant on notice of the claim against him—and to afford him the opportunity to defend against the charges.

Traditionally, service by publication has been used to “put the whole world on notice” of a claim where a defendant could not be located.  For many years after Mullane, publication was really a plaintiff’s last (remotely) reasonable resort.  Absent finding an address by dumb luck or just happening to catch a defendant on the street, not many options were left.

In reality, the method is not reasonably calculated to do anything but increase publishers’ revenue.  Its effectiveness is a gross legal fiction.  [Honestly, how many people read legal notices in the paper anymore, if ever?   For that matter, how many people read “the paper” anymore?]

Nowadays, though, email and social media platforms have become all but ubiquitous.  No business can expect to remain a going concern if it lacks an internet presence.  And only the most impoverished individuals—aside from militant Luddites and the very aged—lack an email address.  Yet the lion’s share of courts still reject electronic service, opting to mandate more traditional methods:  personal delivery by a process server, registered mail (ahem, good luck with that), and the all-but-useless publication.

Some states are slowly coming on board and allowing e-service to registered agents or to evasive defendants.  The real progress in case law is at the federal level, especially as to defendants located abroad.  The Federal Rules of Civil Procedure take particular care to codify the Mullane standard in Rule 4(f), which governs service on defendants located outside the United States, and 4(f)(3) specifically has been held to render “other means not prohibited by international agreement” just as valid as service effected by more traditional means.  Rio Properties, Inc. v. Rio Int’l Interlink, 284 F. 3d 1007, 1015 (9th Cir., 2002).

By its own terms (Article 1, right up front), the Hague Service Convention is specifically inapplicable where a defendant’s address is unknown, and the Inter-American Convention on Letters Rogatory & Additional Protocol is not  a treaty whose effect is mandatory (these are the only two treaties on service to which the U.S. is signatory).  If the defendant is known to be abroad, but his/her/its address cannot be ascertained, email cannot then be prohibited by international agreement.  Accordingly, courts have wide latitude to authorize service by email, especially where the plaintiff has diligently searched for the foreign defendants.  [For a thorough analysis of such a case, see D. Light Design, Inc. v. Boxin Solar Co., Ltd., unreported, No. C-13-5988 EMC (N.D. Cal., 2015).]

Look for the validity of email service to grow, especially where it becomes considered a Postal Channel under Hague Article 10(a)… more on that at a later date.  For now, a couple of practice tips…

  • Practice Tip #1:  This idea can be awfully handy with Russian defendants… the Hague Service Convention is ineffective with Russia, so request leave of court and click send.
  • Practice Tip #2:  When drafting a contract with a foreign party, don’t just designate an agent for service here in the United States… designate an agent and stipulate that they can be served electronically!

Image:  Courtesy www.elbpresse.de via Wikimedia Commons.

 

 

 

 

Keeping Translation Costs Down

Keeping Translation Costs Down

We regularly encounter lawyers who cringe at the thought that the biggest expense involved in service of process abroad is often translation.  Their misconception is either that language is no big deal, or that translators are a dime a dozen.  Neither is true, but sticker shock can still be… well, shocking.  So how do you avoid it?

Easy.  Just pick an English-speaking defendant in an English-speaking country.  Or at the very least, pick a country like Israel or the Netherlands, where most everybody speaks English anyway so they don’t specifically require translation under the Hague Service Convention.

Otherwise, yes, counsel, you do have to translate that thing.  But the mere requirement to translate does not mean you can’t keep your costs down.  Here are a few tips to reduce the price tag:

  1. Keep brevity in mind.  Yes, this is difficult for lawyers.  We’re the most verbose race of people on the planet.  But remember that federal notice pleading gives you a great cost-cutting device.  A “short and plain statement of the claim” is all you need.  In state court, the pleading form varies, but there’s not a jurisdiction anywhere that actually wants longer pleadings.  The court just wants them to be complete, so even in a fact pleading state, don’t write as if you’re being paid by the word.  Just imagine you’re a 1L again, and your legal writing professor is barking at you to keep it under 1,000.
  2. Avoid exhibits where possible.  If you can simply reference an ancillary document, then just reference the thing.  Don’t include it as an attachment or exhibit.  Exhibits sometimes comprise 90% of a translation bill—often unnecessarily.  [Consult local rules, of course.]
  3. Ask your translation provider for a volume discount if you have a huge sheaf of documents (roughly 30,000 words or more).  Much of the provider’s cost lies in the set-up of the project—the administrative burden is the same whether you’re worth six hundred dollars or six thousand—so a lower price-per-word is warranted with bigger projects.
  4. And shop around—translation is a hyper-competitive field, much like law.  But be wary.  Just as with lawyers, a low translation price tag does not usually correlate with quality, and you often get what you pay for.  Ensure that the translation provider has at least some quality assurance process.  The project should go through at least two people’s hands (the translator and an editor), preferably three (including a proofreader).

Above all, don’t cheap out—and don’t let your client cheap out either—because it will come back to haunt you.

  • Bad idea:  “Hey, Maria’s parents are Mexican—she can translate the docs into Spanish for us.”
  • Worse idea:  “Rob in accounting spent a year riding his motorcycle across China after college.  Let’s have him do it.”
  • Worst idea:  “Google Translate.”

Never mind the fact that Maria is a fully qualified attorney whose time would be wasted on a translation project.  Never mind that Rob in accounting is a math guy precisely because his verbal skills are horrible.  Neither of them is a qualified translator, so get a pro to do it.

As for Google Translate…   Can't

[A new platform called Google Advocate (“Advocate” is a verb there) should roll out any day now.  It will draft any legal document at the click of a mouse, for free.  It may inadvertently convey your house to your college roommate, but hey, it’s free.  What could possibly go wrong?]


A related caution:  your translation provider may suggest that you hire an outside agency to handle the Hague Service Request on your behalf.  While this is great advice, be wary here, too.  The translator may recommend an agency that is not qualified to undertake Hague requests.  In short, if that agency doesn’t have an attorney on staff to sign your USM-94, do not use them.  If you accept their assertion that it’s not a problem, you’re accepting a legal conclusion from a non-attorney (see here for a bit more detail).

The Secret (Sauce) to Hague Service

The Secret (Sauce) to Hague Service

This is the Secret Sauce recipe for the vaunted Big Mac.  Really, the formula is not so secret, but replicating the sauce is not for the faint of heart.  And as much as Mom tried to copy it at home to save a few cents, it just couldn’t compare to the Golden Arches.

Yes, counsel, you really can handle service of process abroad by yourself.  All it takes is a few hours of research to pinpoint the applicable rules for serving wherever your defendant is located.  You can replicate it, but call us instead, because it will save you quite a bit of headache, it will save your client quite a bit of money, and it could just save your case from dismissal due to preventable error.

The recipe for Hague Secret Sauce:

  • Step One:  Determine whether the foreign country is a member of the Hague Service Convention; you can find that out here.  If it is a Hague country, you have no choice but to adhere to the treaty’s strictures.
  • Step Two:  Read the Hague Service Convention itself.  Go on.
  • Step Three:  Look at the foreign country’s declarations regarding Article 10.  If they object, you have no choice but to avail yourself of Article 5, which is available everywhere, except in Russia.
  • Step Four:  If they don’t object, then you have to determine what constitutes a competent person under the foreign country’s law.  Its declarations will point you in the right direction—contact that competent person to arrange for service.
  • Step Five:  If you select mail service under Article 10(a), be sure that Hague mail service is acceptable in your jurisdiction.  [Be wary of FRCP 4(f)(2)(C)(ii), too.]
  • Step Six:  If you determine that Article 10 channels are unavailable, then determine the appropriate Central Authority to receive your request under Article 5.  (Germany and Switzerland are fun to discern.)
  • Step Seven:  Determine whether translation of the documents is necessary by consulting the foreign country’s declarations.  If it is not a former British colony, you will most likely have to translate.  And don’t forget the defendant’s right to due process—if they don’t speak English, you’ll have to translate anyway, even if they’re in Toronto or London.
  • Step Eight:  Have the documents translated by a trustworthy service.  [For the love of Adlai Stevenson, don’t use Google Translate, and don’t have your paralegal do it just because she spent a summer in Paris in college.  She is probably not qualified, and even if she is, her time is better spent on paralegal work anyway.]
  • Step Nine:  Fill out Form USM-94, compile the documents to be served (with their translations, as applicable), and send the request to the appropriate Central Authority.
  • Step Ten:  Wait.  In some cases, wait several months—or even a year—for a response from the foreign authority.  FRCP 4(m) gives you safe harbor from dismissal for time, as long as you aren’t dilatory.

To be sure, this series of steps assumes a perfect world, and it does not account for the particularities of each foreign jurisdiction contacted.  That’s where we come in.

  • Hong Kong?  Part of China.  But it still functions under the old British system.  Then again, don’t put Hong Kong on an equal linguistic footing with the PRC.  Bad things happen if you name the jurisdiction carelessly.
  • Israel?  Allows you to hire an agent to serve, but only if that agent is specially appointed by the Jerusalem Directorate of Courts.
  • Canada?  Sure, you can find a process server in the Yellow Pages (the what?).  Except in Quebec, which is not a common law jurisdiction.
  • India?  Over 1.25 billion people.  And only one of them works in the Hague Central Authority.  Good luck.
  • Austria?  Not a Hague member.  And they’re sticklers for doing it their way.  (Seriously… don’t even think about tackling this one yourself.)
  • Taiwan?  Not a Hague member either.  Not technically a state, in the eyes of the world.
  • Mexico?  Just… wow, the headaches that lie ahead.

That’s just to name a few.  In short, call us.  This can be a labyrinth.

[Photo:  that is a Big Mac, the most glorious fast food item in history.  We, as a firm, are huge fans of the Big Mac, and encourage its purchase.  We hope that our endorsement will prevent a C&D letter from McDonald’s Corp. demanding that we take down the photo.  Although we would comply,  two all-beef patties, special sauce, lettuce, cheese…]

Serving U.S. Servicemembers Abroad, Seconda Parte (Part Two)— real world.

Serving U.S. Servicemembers Abroad, Seconda Parte (Part Two)— real world.

A war story, of sorts—told with the permission of my client, a highly regarded personal injury lawyer.  He is one of those guys all the newbie lawyers regard with awe (as do I) because he’s got mad skills in a courtroom.  He found himself in a bit of a quandary last year, and sought help from someone who knows.

He has a medical malpractice suit currently pending, in which a hospital and several doctors are named as defendants.  In the intervening time since the incidents giving rise to the suit, one of the physician defendants joined the United States Navy, and was stationed at Naval Air Station Sigonella in Sicily.

 Sicily coast [Not a rough assignment.  Anyplace called the “Jewel of the Med” is a pretty good billet. —> ]

The client called me last summer to inquire about serving the Navy doctor.   An awfully tough goal, I told him, explaining the gist of my recent post “Serving U.S. servicemembers abroad”.

In a nutshell, if the G.I. lives on a military installation, you’re probably going to have to wait until they return stateside.  A number of rules collide to create a real Catch-22 in serving process… our military authorities either can’t or won’t serve process, and the servicemember’s quarters are off-limits to local authorities.  [Hat tip to Yossarian.]

As luck would have it, though, my client had what he thought was a regular address in Catania, the city between the naval base and beautiful, volcanic Mount Etna.  We hired an Italian investigator who was able to confirm that the address was indeed that of the defendant.  The Navy doc had done what I would do in such a situation… she rented an apartment “on the economy”, as the grown-ups used to refer to off-base housing when I was a brat overseas.

Living in civilian housing put her squarely under the jurisdiction of the local prosecutor, who had the responsibility of serving process pursuant to our request under the Hague Service Convention.  Within a few weeks, the Italians sent word that the defendant had been served because the prosecutor had mailed the documents to her apartment.  They returned proof of service for submission to the venue court, going so far as to cite the various sections of the Italian Civil Code that made it effective.  Defense counsel argued that the doctor had never actually received the summons, so the case against her ought to be dismissed for want of proper service.  Counsel asserted that the Hague Service Convention requires actual delivery to the defendant (it doesn’t), that Italian law requires actual delivery to the defendant (it doesn’t), and that the appropriate authority for the venue court to look to was the European Judicial Network (um… I had to look that one up).

The Convention requires no such thing.  It requires only that the Central Authority of the destination state attest to the effectiveness of service according to its own laws, if indeed that service can be completed.  U.S. caselaw, moreover, cautions courts against analyzing matters of a foreign country’s law when the Central Authority certifies that a method of service is valid.  In short, leave interpretation of foreign countries’ laws to the foreign countries themselves.  [Imagine the howls of protest if an Italian court were to overturn the U.S. Central Authority’s certification of compliance with American law!]

Not only does Italian law require no such thing, but according to the documentation provided by Italian authorities, service by mail is specifically authorized.  Indeed, many civil law countries actually prefer service by mail or mere deposit in a defendant’s mailbox.  Things truly operate differently abroad.  The point is, Italy doesn’t require that the summons reach the defendant’s hands, as counsel argued to the court.

Most puzzling, though, was the contention that the European Judicial Network was a valid interpreter of Italian law, superior even to an Italian court.  The closest U.S. analog would be the Judicial Conference of the United States—but even that analogy falls short because the JCUS has actual statutory authority to set certain policy for the federal judiciary.  The EJN, conversely, is a flexible, informal, unofficial group of “contact points” established to facilitate judicial cooperation among members of the European Union.  Hardly an authoritative body.  [The real analogy here would arise if the JCUS were cited as an authority on Florida law, or New York law, or Colorado law.  Simply put, it lacks such power.  And so does the EJN as to Italian law.]

Cutting to the chase, the venue court agreed with us and denied the motion to dismiss.  Very tersely.

The takeaway: my client did it right.  He’s a master in front of a jury, and he’s been highly successful at vindicating the rights of tort victims.  The guy knows what he’s doing.  But he still called in some help when he saw the challenge in front of him.  Rather than spending the time and resources to serve an overseas defendant himself (and thereby save a few bucks on paper), he sought outside help—more cost-effective, accurate, expeditious help from someone who knows the intricacies of service abroad.

 

Photo credits: **** Main title, from the U.S. Navy at http://www.med.navy.mil/sites/sigonella/clinics/sig/Documents/Hospital%20-2013.jpg  **** Shoreline from the Department of Defense’s Sigonella page at http://www.militaryinstallations.dod.mil/dav/lsn/LSN/IMAGE/IMAGE_CONTENT/2390531.jpg

 

 

Washington Supreme Court corrects massive error

Washington Supreme Court corrects massive error

A little over a year ago, Ted Folkman posted in his fantastic column, Letters Blogatory, about a mistaken ruling in Kim v. Lakeside Adult Family Home (Wash. App. 2015).  When I read the opinion, I concluded that Ted’s description of a “mistake” was far too diplomatic.  The court’s opinion was so wildly wrong that it conflicted violently with the Hague Service Convention.  A bit hyperbolic perhaps, but I really did want to pull my hair out.

Last spring, I took it upon myself to submit an Amicus Brief (in Washington, an Amicus Memorandum) to the state Supreme Court, arguing that the opinion below allowed Washington litigants to contravene the letter, spirit, and underlying purpose of the Convention.   The Appeals Court had read into the Convention an idea that simply wasn’t there—namely, that under Article 19, a U.S. plaintiff could avail himself of a method of service in a foreign country despite that country’s objections to Article 10’s alternative methods, so long as the method was available to litigants in that country’s courts.

In Kim, the plaintiffs hired a private agent to personally serve a Norwegian defendant at her home.  Norway objects to Article 10, but the plaintiffs argued (without substantive citation to authority, as far as I can tell) that Norwegian law permits personal service by private agent.  This runs contrary to the usual practice in civil law jurisdictions, where service of process is a sovereign function carried out almost exclusively by judicial officers.  Setting that issue aside, however, even if private service is available in Norwegian cases, the plaintiff failed to show how such a method should apply to process sent from outside Norway.  Therein lay my objection to the Washington App. Ct. ruling—it was distressingly bad law because it set aside Norway’s Article 10 objections altogether and created a wholly inappropriate doctrine.

If the Supreme Court failed to correct the disastrous holding that the Appeals Court had issued, the only recourse would be to the U.S. Supreme—and the odds of getting there are always slim (and the Norwegian defendant was a nurse… not sufficiently wealthy to carry the issue all the way to the Nine Eight Wise Souls in D.C.).  I also feared that Wash. might decline to hear the matter because the plaintiffs cured their defect by serving the nurse properly via Norway’s Central Authority, rendering the Hague question moot.

Last week, reason prevailed (the opinion is linked from Ted’s follow-up column here).  The Washington Supreme overturned the lower ruling, holding that “ensuring proper service” is an “issue of continuing and substantial public interest,” so mootness wasn’t a problem.  Absent such a holding, the bad law would have remained.  More importantly, the Court also held that “the Hague Convention does not convert a country’s domestic laws on service of process into laws governing service of process of documents coming from abroad.”

Now, I wish they’d stop calling it simply “the Hague Convention”, and I’ve railed about that issue (see here and here).  Regardless, the Court wisely rejected the plaintiffs’ Article 19 argument and fixed a terrible horrible no good very bad mistake.

 

[Disclaimer:  I’m a plaintiffs’ guy at heart.  But my motivation on this one is to make sure that bad law gets torn down, and this one was really bad.  If you’re going to do it, do it right…]

Photo by Harvey Barrison:  The Temple of Justice, home to Washington’s State Supreme Court, via Wikimedia Commons.

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.)