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.