No more blogs in this space!

No more blogs in this space!

Everything is migrating to the Hague Law Blog, but we’re still your friendly neighborhood global consulting law firm. Really, there’s no change to the operation—we’ve just taken the cheeky commentary to a new platform. One that allows us to pontificate without having everything sound like a blatant sales pitch!

Okay, it’s still a sales pitch—let’s be real here. But it will allow for subscribers and commentary that doesn’t draw the spam that this space draws.

Bottom line… enjoy.

The Hague Law Blog is LIVE…

(Updated 11/11/16… The Hague Law Blog went live yesterday.)

I’m off to Paris this morning for a week-long CLE program hosted by UMKC Law. On Thursday, part of our group will hop a train for The Hague, to meet with the Permanent Bureau of the Hague Conference on Private International Law.

I’m excited to announce that, while there, I’ll publish the premiere edition of the Hague Law Blog, at haguelawblog.com. In the meantime, stay here at vikinglaw.us for my past columns.

(Image by the author.)

There is no such thing as a service of process emergency.

There is no such thing as a service of process emergency.

No, really. There is truly no such thing.

There is urgency brought on by poor planning, poor execution, or being simply blindsided by a surprise issue. There is a last minute realization that a foreign defendant must be joined, and a long delay will grind the litigation to a halt. Or there is simple unfamiliarity with the rules by a practicing bar that rarely faces cross-border procedural demands.

Tried & true concepts in litigation are changing at extraordinary speed (a platitude, to be sure), and litigation involving foreign parties and witnesses is becoming a major challenge for attorneys and courts in every jurisdiction.

Fortunately, rules in most courts provide ample time for service, especially Federal Rule 4(m), which specifically abrogates a hard 90-day deadline for service where the defendant is outside the United States. As long as counsel isn’t dilatory (I had to look that one up), the spirit of the deadline is honored once a request for assistance is handed off to a foreign authority. At that point, a lawyer can only wait for the authority to accommodate the request. [NB: Most states reach similar conclusions by either procedural rule or case law. Wisconsin and Michigan are the lone holdouts, and even they may offer some safe harbor to litigants.]

Critical in this analysis is the mandatory and exclusive nature of the Hague Service Convention. In Volkswagenwerk AG v. Schlunk, 486 U.S. 694 (1988), Justice O’Connor wrote for a unanimous court that, where the Convention applies, its strictures must be followed. The channels set forth by the Convention mean vastly different things in the various countries where it applies, and for the most part, this means the U.S. court hearing a case must usually wait patiently for service to be effected. Simply put, our rules do not apply elsewhere.

Effective service abroad serve usually cannot be timed with a clock… several pages of a calendar comprise the better measuring device.* In some cases, service can take over a year to be proved up.

Yet 4(m)’s safe harbor does not give an attorney unlimited time. The dilatory among us face sure dismissal, and it takes a long time to reach that level.

* Exceptions to this: parts of Canada, Australia, and England, where Article 10 negates the need for government channels to have a defendant served. In rare cases, process can be served within a matter of hours, and proved within days. But don’t bet the farm on this possibility. Ever.

Image: “10 O’Clock On A Sunny Summerday”, Robin Heymans, via Wikimedia Commons. (For the record, Big Ben is the bell inside the tower. The former St. Stephen’s Tower has been renamed Elizabeth Tower.)

About time, Czech Republ… er, Czechia.

About time, Czech Republ… er, Czechia.

An interesting BuzzFeed article popped up on my radar this morning thanks to the HuffPost morning e-blast (I love how media sites share each other’s stuff… if only they’d start sharing mine!)…

The Czech Republic Stopped Being A Thing While You Weren’t Paying Attention

Well, good. I’ve wondered for two decades why they didn’t just do that in the first place. Still, a rose by any other name…

Point is, Czechia is still a member of NATO, still a member of the EU (for now?), and still a member of the Hague Service Convention. It still objects to alternative methods of service under Article 10, it still requires translation, and it’s still pretty quick about getting the job done when we request service of process on a Czech defendant.

Now, if I can just find the time to get over there to see Prague! (And maybe advise our embassy about the change.)

Photo: Prague Castle and the Charles Bridge, Frank Spakowski, courtesy Wikimedia Commons.

Phone on Fire? Serve Samsung the right way.

Phone on Fire? Serve Samsung the right way.

They literally catch fire. Literally. Not in a “using the word ‘literally’ to make a hyperbolic argument sound stronger than it is” sense. The things emit flame, without warning and seemingly without reason. The Samsung Galaxy Note 7 has become the new poster-child for defective products. As if designed by Irwin Mainway himself (he of Johnny Space Commander fame). See The Guardian’s latest (as of this writing, October 19, 2016) story here. And USA Today’s bit about the Note 7 flight ban. And the NYT’s take on how the thing plays out in China. The company has rolled out a worldwide recall of the entire Note 7 line, but that doesn’t help the thousands of buyers whose handsets have already injured them.

Lawsuits have already begun, but Samsung is a highly sophisticated defendant. If the company is not properly served—at its headquarters—then a suit has zero chance of progressing past the complaint stage. Yet Service of process in Korea is not as daunting as it might seem. It does require accuracy in drafting and, despite the obvious competence of this particular defendant in English, translation into Korean is required. [Help is available to the practitioner who does not wish to spend ten hours getting up to speed on the procedure.]

The Republic of Korea (ROK) is party to the Hague Service Convention, the strictures of which are mandatory in U.S. and Canadian law (the Note 7 catches fire in Canada too). While the text of the treaty itself sets forth several methods for service of process, only one method is acceptable to all countries who have enacted the agreement. Article 5 service entails a request to a Central Authority in the “destination state”, and is available universally.* Article 10 sets out additional methods of service, provided that (1) the method used is acceptable under forum court rules, and (2) the destination state does not object.

In the case of Korea, alternatives are off the table completely. Yes, FRCP 4(f)(2)(C)(ii) allows service by mail. Many states likewise allow service by mail—some judges even require it regardless of Hague status. Usual practice in common law jurisdictions calls for service by private agent.

But the Korean declarations to the Convention are explicit—the ROK objects to Article 10 entirely. Mail is off the table for foreign litigants, and private process servers don’t even exist in civil law countries.

So you intend to sue Samsung because a Note 7 spontaneously combusted in your client’s hand? Serve Samsung properly. [And also be sure to go after the source manufacturer of the batteries… they might be somewhere else entirely.]

*Note that Russia is an outlier in this analysis… see here for more detail.

JASTA Won’t Work

JASTA Won’t Work

Congress’ override this week of President Obama’s veto of JASTA (the Justice Against Sponsors of Terrorism Act) comes as no surprise—the legislation is wildly popular, even though it upends a centuries-old international legal doctrine, and despite potentially disastrous ramifications to U.S. defense and intelligence efforts. For the sake of focus, I’ll forego political and legal criticism of JASTA itself; that criticism has been thoroughly developed elsewhere (for just two cogent discussions of JASTA’s international jurisprudential ramifications, see Ted Folkman’s post on Letters Blogatory, and this Bloomberg editorial.)

I’ll also forego arguments in favor of sovereign immunity in general (nutshell definition: with very few exceptions, nation-states are not subject to suit in the courts of other nation-states). It’s a necessary though thoroughly frustrating concept, and Congressional leaders are already expressing second thoughts over their rush to override. Even the Act’s proponents now recognize how sovereign immunity protects us.

This is a practical criticism. Setting aside this ancient doctrine and its value to U.S. interests abroad, let’s assume that claims go forward and the Saudi government actually appears to defend. What then? How might 9/11 plaintiffs substantiate their allegations that Saudi Arabia funded the attacks?

Plaintiffs bear a significant burden to show that a defendant caused injury, and whatever the complaint, whatever the forum, that showing requires evidence. To prove the Saudis funded Al Qaeda’s 9/11 operations, a plaintiff must show a judge and jury more than mere conjecture—they have to show a paper trail. They cannot simply subpoena documents located overseas. That paper trail will certainly not be compelled in Saudi Arabia; the Kingdom is not about to cough up voluminous documentation demanded in the course of expansive discovery. It is not going to be compelled in Iraq or Afghanistan or Pakistan or any number of other countries in the Middle East. The plaintiffs’ best (only?) course of action will be to follow the money. And where does the money trail lead? To banks. Especially Swiss banks.

Thanks to incredibly stringent secrecy laws (releasing client information has been a criminal offense since 1934), Switzerland is the undisputed center of global banking and the place where the most crucial evidence is likely to be found. But the nearly impermeable nature of the Swiss banking veil is the stuff of legend, and the odds of a Swiss court ordering the wholesale release of bank records is slim at best. Swiss law allows banks to release account information in only very limited circumstances—namely, under allegations of tax evasion, money-laundering, and fraudulent activity. The Swiss have yet to fully carve out an exception for state-sponsored terrorism claims, and even if they had such an exception, production of the evidence could only be compelled in Switzerland via a Hague Evidence Request.*

That instrument itself is delicate in nature—it must carry a surgically specific identification of the documents sought, and it must demonstrate precisely how the documents will be used at trial. It cannot speculate, and it cannot purport to lead to other evidence (ie: no fishing).

This is where a case against the Saudis is most likely to fall apart. American lawyers too often draft Hague Evidence Requests by simply copying subpoena language and pasting it into the Request. Ctrl-C/Ctrl-V is not the best strategy for compelling evidence in civil law jurisdictions (like Switzerland). Simply put, non-U.S. jurisdictions (even our fellow common law countries!) have prominent “No Fishing” signs posted at their courtroom doors.

So cui bono? Who benefits from the statutory dismantling of sovereign immunity? Not the victims or their families. Not even their lawyers on contingency, who fight the good fight but lose for lack of evidence.

The winners will be the lawyers who represent the Saudis, and the members of Congress who can tell their constituents they stood up against a foreign tyrant. Nobody else.

The victims of 9/11 will have been paid only lip service, as their families labor under a false hope: if those who financed the attacks can’t be tried criminally, they can at least be made to pay recompense.

But the financiers have already beaten the rap. And they’ll probably beat it again.

* The Swiss Anti-Money Laundering Act (AMLA) does mandate that banks report certain information to Swiss regulatory authorities, and it allows the sharing of that information with other governments. AMLA does not, however, circumvent the normal process of evidence compulsion through the courts; Article 31, Section (b) indicates that non-Swiss requesting authorities must utilize the procedure set forth in the Hague Evidence Convention.

Image: Daniel Patrick Moynihan Federal Courthouse, Manhattan. Courtesy Wikimedia Commons, https://commons.wikimedia.org/wiki/File:WTM_sheila_0042.jpg

No Fishing: The reality of the Hague Evidence Convention

No Fishing: The reality of the Hague Evidence Convention

Of the three dozen or so Hague Conventions (specify which one you mean, counsel!), the United States is party to only a few. Among the most productive and useful are the Service and Apostille Conventions. And although it is helpful, the Hague Evidence Convention is not the great and wonderful device that American lawyers might hope for.

From a U.S. perspective, the HEC does little more than knock down a few procedural barriers—most importantly, it negates the need to convey a Letter Rogatory through diplomatic channels, which saves significant time and a $2,275 State Department handling fee. A Hague Evidence Request is still, for all intents and purposes, a Letter Rogatory. By no coincidence, it is officially and synonymously titled a “Letter of Request”. It is still a communication from judge to judge, it still relies on comity alone, it must still be surgically specific in detailing the evidence sought, and it must still demonstrate precisely how the evidence will be used at trial.

In short, no fishing.

Why? Because of Article 23, which is, for lack of a better analogy, a big, ugly middle finger directed at U.S. litigators. It was hastily drafted on the back of a bar napkin as the Convention seemed doomed to failure. U.S. negotiators recognized that American-style discovery (in the 1960s, a mere shell of today’s fishing industry) was poisonous to the Convention’s chances, so they conceded to the inclusion of the following:

A Contracting State may at the time of signature, ratification or accession, declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.

Put more clearly: this treaty doesn’t oblige a member country to fulfill an American discovery request if they don’t want to.*

Accordingly, requests filed pursuant to the HEC must not bear the hallmarks of a discovery demand. Standard subpoena language—particularly the phrase “any and all”—is damaging, and potentially fatal. Careful drafting and the involvement of foreign counsel are critical (yes, we can provide both).

*Although the idea rises from the difference between common and civil law procedures for compelling evidence (in civil systems, judges—not lawyers—demand the production of evidence), even other common law countries have embraced the idea. It truly is directed at the United States, but the targeting is masked by the moniker “Common Law countries.”

Image courtesy of “Bidgee”, via Wikimedia Commons. https://commons.wikimedia.org/wiki/File:No_Fishing_Allowed_(Wollundry_Lagoon).jpg

Holding down the cost of serving abroad

Holding down the cost of serving abroad

You’re suing in your hometown. Jurisdiction is clear. You have everything you need to get the ball rolling. There’s just one thing about it that differentiates it from the rest: the defendant is overseas. And that difference could mean a massive increase in the cost to litigate. A good chunk of that increase is wrapped up in serving process.

For the most part, this isn’t a deal-breaker. Serving abroad is not rocket science, frankly. Given a few extra hours, any lawyer can figure out how to do it, but compared to Paris (Texas), Paris (France) is an entirely different breed of cat. [Click here for the Secret Sauce recipe!]

Don’t use seven words when four will do.

— Rusty Ryan (Brad Pitt) to Linus Caldwell (Matt Damon), Ocean’s Eleven, 2001

The easiest way to keep costs down is to keep the pleadings as short and sweet as possible. Translation often reflects the biggest share of the cost to serve abroad, so brief and succinct pleadings are the surest way to rein in costs. Federal notice pleading all but mandates such brevity—truly, unless the complaint involves several different issues, a federal case is bound to be short (likewise in notice-pleading states) in order comply with the rules. Fact-pleading states may be a different matter, but properly stating a claim does not require Tolstoy-esque storytelling. It also does not require reams of exhibits that will necessarily have to be admitted into evidence later.

Brevity is key. And often the toughest key for lawyers to sing in.

(For the record, the text above, including the Brad Pitt quote… 255 words. It is excruciating to just leave it at that.)

Image: Promotional material for Ocean’s Eleven (Warner Bros. Pictures, 2001). Lifted here as an homage to one of my favorite movies. It happens to be on Amazon Prime right now, and this was a really short blog, so go watch it. Your cool factor will increase.

The Importance of Cultural Competence in Global Commerce

The Importance of Cultural Competence in Global Commerce

Sometimes as a blog comes together, memories sneak from the back of the mind to the front, and they prompt a quick Google search. Sometimes that search brings bad news. Nobody likes to see an obituary at the top of the results.

When I was twenty-two years old, fresh out of college, I snagged a job as a U.S. Senate staffer working in a remote field office in Iowa. Soon after I came on board, the organization’s Latino outreach coordinator took me to lunch. Rick had been quite active in local politics, and although the rest of the staff didn’t regard him as very productive (all of the in-state people handled constituent advocacy issues, and his case load was a short stack), he made some good connections with the growing Mexican community in Des Moines. I liked him immediately.

He wasn’t around for long after I came on board, so I had little chance to get to know him, but our lunch conversation that day had a profound impact on me. Although I had studied international affairs and fancied myself an astute observer of all things foreign, I had not connected the dots of cultural competence. I knew what it meant to be bilingual (I was fairly bilingual myself), but I had never heard the term bicultural.

Even in the midwest, at a time when a white/Anglo-Saxon/protestant ethos was still dominant, the minority population was growing rapidly. And I didn’t see it coming until that afternoon. Rick had grown up in two worlds: the WASP environment of central Iowa, and the Mexican immigrant community that clung tightly to its old traditions. He was bilingual and bicultural, comfortable navigating in both worlds, and in tune to how things worked in both.

Rick told me a story—whether true or not is immaterial—about a fellow who traveled to Mexico in the hope of landing a contract with a big company. He was invited to the home of the company president, who offered him a drink and a comfortable chair on the veranda. The president inquired about the American’s life story and family back home, but the Yankee was more focused on the art of the deal than on what he viewed as trivial small talk. Missing the cue, he tossed out a terse response about his parents, and immediately launched into his pitch. You should select my company as your U.S. partner, he told the president. I have several reasons why…

They hadn’t even sat down to dinner yet.

Of course, he didn’t get the contract. Even by American standards, his approach was too ham-fisted, too abrupt, too inappropriate. But even if he had been more gentle, the purpose of the dinner was not business—it was the establishment of a trusting relationship.

The first mistake in all of this was on the U.S. company’s part. They sent someone with literally no understanding of simple conversation, much less the folkways & traditions of Mexican business. The second mistake was the guy’s unwillingness to be anything but a highly-focused businessman.

In American business, it is often frowned upon to discuss family or personal history. Such conversation has no place in commerce, so the thinking goes. Prospective business partners really don’t care about your kid’s little league batting average and they don’t care about your mom’s flower garden (this, I think, is much to our detriment).

For Mexicans, however, family is at the center of everything.

Rick told me that, in the Mexican culture, business deals are concluded only after the parties get to know one another. Once they know about each other’s motivations, once they make an effort to understand where their counterparts came from. They aim first for trust.

And had the U.S. company sent a bicultural representative, or at least a culturally competent one, they might well have landed a multi-million dollar deal.

The takeaway is very simple. Last spring, I posted a list of Five Essential Things All Business Owners (and Their Lawyers!) Should Know Before Signing Global Contracts (five more things are coming, so stay tuned!). Missing from that list, and more important than any of those elements of skilled contract drafting, is a simple connection with the human beings on the other side of the deal. Cultural competence is critical in an expanding global economy.

“There are many things that companies that come from the same or similar cultures take for granted in a negotiation that simply cannot be assumed when negotiating across cultures. Between 60 percent and 80 percent of crossborder deals fail to meet financial expectations. The main culprit: cultural disconnects.” — Doris Nagel, June 10, 2016 (Global Trade Magazine)

It is critical to seek understanding of the culture in the society you seek to do business with (not just of the country, but the society). Skilled contract drafting is only part of the puzzle. That and solid cultural understanding can work together to prevent failed relationships altogether.

To finish the story… I hadn’t thought about Rick in ages. But when I started gathering my thoughts for this blog, our conversation kept popping up in my head. Google told me this morning that he’d passed away nearly two years ago. I wish I could thank him for that early lesson.

Photo: President Obama and Mexican President (then President-Elect) Peña Nieto. Official White House photo. And you’d better believe they talked about their kids.

That Hague Service Request isn’t as solid as you think.

That Hague Service Request isn’t as solid as you think.

That’s Kevlar® on that kid’s head. Technically, it’s called “a kevlar” (like your grandpa’s WW2 helmet was called “a steel”), but it’s made of Kevlar® (capital “K”) a little miracle fiber dreamed up by the gang at DuPont Chemical. It has saved thousands of lives in its five decades on the planet. Kevlar® is the stuff that makes helmets and bulletproof vests, well, bulletproof. But any hard-charging operator will tell you that if you don’t wear it correctly, it’s not as bulletproof as you need it to be.

I wrote a few months ago that defense counsel should always question the validity of Hague service that has (ostensibly) been effected on their foreign client. A request submitted to a foreign authority pursuant to Article 5 must be valid in the first place. And many times, they’re not valid—even if the Central Authority receiving them doesn’t know it or doesn’t care (most of them never inquire).

Usually, a Hague Certificate is the functional equivalent of Kevlar®. But if you don’t wear it correctly, it’s not as bulletproof as you need it to be. A Hague Certificate predicated on an invalid Hague Request is itself tainted. (Something about a “poisonous tree” tickles my memory from law school. Yes, I know—that was the exclusionary rule. This is different. But it’s the same relative idea.)

How do I know this? Well, a couple of years ago, I got a letter from the Ministry of Justice in Budapest, asking why I thought I was qualified to sign one of these things. Those pesky Hungarians, what with their bowls of paprika-laden goodness and their stunning trios of starlets, demanded to know the source of my authority.

Why, the United States’ declarations to Article 3 of the Hague Service Convention, I responded by email:

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

(Emphasis mine.) Within 24 hours of my answer, I received a very collegial email from a fellow in the Ministry’s Department of Private International Law … Thank you, kind sir. We will proceed with your request forthwith.

But their query got me thinking… do they actually get invalid requests, signed by people who aren’t authorized?

As it turns out, yes. They do. Regularly.

Not long after my exchange with the Hungarians, a lawyer in Chicago emailed me to ask if the service that he’d had effected on a foreign defendant was valid. I scratched my head, wondering why he was unsure, but when he sent me the paperwork, it dawned on me. He had hired a process server who filled out a standard USM-94 and signed the request, citing FRCP 4(c)(2) as the basis for his authority. Horns and alarm bells started going off in my head.

You see, 4(c)(2) has nothing to do with Hague Requests whatsoever. It merely says that any adult non-party can serve process in a federal case. But the act of signing a Hague Request and the act of serving process are not the same thing. A foreign official actually serves process in response to a Hague Service Convention Request. The Federal Rules of Civil Procedure don’t govern who actually serves process in foreign lands (nor do state rules, for that matter)—they require deference to the laws of those foreign lands.

I’m adamant that lawyers should outsource the procedures that reduce the efficiency of their practice, and serving abroad is just such a procedure. But the outsourcing must be done advisedly, and that means ensuring that the Hague Request is signed by a licensed attorney or someone appointed by the court for just such a purpose.

Most professional process servers will refer out this kind of work. But if your process server assures you that it’s not a problem for a non-lawyer to sign a USM-94, you’ll want to call your malpractice carrier before you engage the process server. It’s a good idea to let them know in advance that you’re taking legal advice from a non-lawyer.

Photo credit: United States Marine Corps, photo ID 120601-M-BM244-004, via Wikimedia Commons. I’m pretty sure this kid is safer than any other human being on the planet… the Marines have his back.

This one is from DuPont’s own website, showing Kevlar® in its stock form. Neat stuff…