CHINA ESQUIRE

I have been thinking about the Hague Convention lately. I cannot mention details (or which party we represent), but in litigation dealing with service upon a foreign party, the plaintiffs had to wait 3-6 months to have its complaint served in accordance with the Hague Convention’s requirements. The plaintiffs’ attorney requested that the defendant accept service through its counsel, which did not happen. (of course, that defendant never made any appearance, and as such, had no counsel of record)

Dan Harris in China Law Blog stated earlier this month:

I am beginning to wonder about the willingness of US courts to apply foreign or international law, even in those instances where US law calls for such application.

Based on my firm’s experience with getting US courts to recognize international law, I am sorely tempted to just say something like, “forget about international law. This is the United States. We don’t recognize international law here.” Go ahead, just stick your summons and complaint in a bottle, throw it in the ocean, that ought to be enough for you to get a default judgment anyway. And since China never enforces US judgments anyway, why does it matter.

Virtually every time we have sought to get the US courts to enforce the Hague Convention or even, in one instance, when we sought to get a US court to pretty much ignore the Hague Convention, the US court has seemed perfectly willing to rule as though the United States has no obligation to abide by a treaty it signed. I have a strong sense US Courts (both state courts and federal courts) will not enforce the Hague Convention’s technical service requirements (including that the summons and complaint must usually be translated into the language of the country in which it is being served). Oh, and getting a US court to throw out or stay (delay) a case so that an already pending case in another country can be decided first — forget it. My conclusion is that US courts are happy to ignore foreign/international law in favor of handling things under US law, whether US law should apply or not.

Harris then criticizes U.S. Courts for not enforcing the Hague Convention:

If the United States is serious about globalization, it is time our courts start recognizing that ours is not the only law in the world and that it actually behooves US business to make our courts more international in the context of business disputes.

On the other hand, one commenter, Wayne Parker, stated:

I’ve represented several plaintiffs in differing maritime attachment actions (Supplemental Rule B of the FRCP) where the opposing defendants were Chinese entities that did not have a presence in the district, as well as one action where I defended a Chinese client against a European plaintiff seeking to attach electronic funds transfers here in NYC under the same admiralty supplemental rule. In each of these instances, the US district court required strict compliance with the provisions of the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and in the cases where we represented the plaintiff found that we had complied with the Convention’s requirements, including the costly evolution of translating the complaint, summons and other documents into Chinese.

Admittedly, most federal and state judges in the United States are not even aware of the existence of the Hague Convention. But my experience before the Southern District is that once you convince a US district court judge that the Convention’s provisions should apply, s/he will require compliance.

I tend to agree with Mr. Parker that some judges exist who will enforce the Hague Convention. I would venture that the judges from districts like the S.D.N.Y., C.D. Cal., N.D. Cal., and other places where a lot of international business takes place would do so. I know the court in the case I mentioned in the opening of this post has had no issues with this process. (and is also located in a relatively business-savvy district)

It really is not that hard to comply with the Hague’s requirements for service. Yes, it takes a long time to wait for–so be ready to wait an additional 3-6 months to serve your pleadings. But other than that, I would urge all practitioners to be familiar with the rules. (after all, lawyers should be complying with the law and not trying to urge courts to ignore the Hague) And if you don’t want to look at all of the rules, I suggest using this.

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