Process Servers

Part II: Japanese Government Objects to Service by Mail Under the Hague Convention

In our last post, we explained that the Convention on the Service Abroad of Judicial & Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”) is a multilateral treaty adopted on November 15, 1965 by member nations of the Hague Convention on Private International Law (the “Convention”). This Hague Service Convention created unified rules on several issues, including international service of process and has been ratified by 74 countries.

 

The Convention provides a streamlined way to effectuate international service of process through  each signatory nation’s Central Authority of each signatory nation. Until recently, it has been unclear as to whether service by mail is allowed and many plaintiff’s choose this method because it is faster than the methods provided under the Hague and other methods for non-signatory nations.

Unclear Position From Japan

 

The Japanese government did not object to service of process by mail at any point since signing the Hague Convention in 1970 until 2018. That being said, litigation with Japanese defendants did not clarify the issue until the United States Supreme Court (SCOTUS) issued a decision in Water Splash. In that case, a U.S. company sued a former employee in Texas state court. At the time of the lawsuit, the defendant was residing in Canada and was served by public mail, private mail, and email. The Texas state court entered a default judgment against the defendant for failure to respond. The former employee filed suit arguing lack of proper service and the parties argued whether the Hague Service convention allowed service of process by mail. The SCOTUS used the second interpretation of Article 10(a) and allowed service by mail.

 

Because the position of the Japanese government was not clear and courts could interpret that under the Hague service of process by mail is prohibited irrespective of whether a signatory objected to this method, using service by mail for Japanese defendants was a risk. Accordingly, many careful plaintiffs used service through the Japanese Central Authority (JCA) under the Hague Service Convention. Until the SCOTUS decision in Water Splash, the Japanese government had halted direct service of process by mail.

 

Bottom Line

 

After the SCOTUS decision in Walter Splash, it was more likely that service of process made directly to defendants located in Japan by mail would be permitted. Japan’s declaration, however, has annulled this alternative method of service. As a result, in contemplating future lawsuits against Japanese defendants, the parties to a deal may enter into negotiations where service under the Hague Service Convention is avoided by a potential plaintiff and in exchange the Japanese-stationed party can get favorable concessions in exchange for voluntarily accepting service of process. Indeed, an American party may request a Japanese counterpart to designate a United States agent for service of process in the event of a lawsuit in contract negotiations. Of course, the Japanese party should analyze the implications of agreeing to this.

 

More on this topic can be found here.

For info on service in Japan please go here. 

Japanese Government Objects to Service by Mail Under the Hague Convention- Part 1

When it comes to international litigation, things can get complicated. Not only are you dealing with international laws and foreign sovereigns, but the rules and regulations governing international service of process also differs vastly from rules applicable to domestic cases. The Convention on the Service Abroad of Judicial & Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”) is a multilateral treaty. This treaty was adopted on November 15, 1965 by member nations of the Hague Convention on Private International Law (the “Convention”). This treaty created unified rules on several issues, including international service of process. Approximately 74 countries have ratified the Convention.

 

The Convention Explained

 

The Convention provides a streamlined way to effectuate service of process through the Central Authority of each signatory nation. Under Article II, each nation designates its Central Authority to receive documents for and effectuate service on its domestic subjects. When countries have no agreements or treaties like the Hague Service Convention, a common method for service of process is through diplomatic channels. Because this method usually involves agencies, like the Ministry of Foreign Affairs, of both countries to transmit the documents, it takes much longer.

 

Efforts of International Service

 

In order to have a more predictable time frame of effectuated service and reduce costs for serving through the Central Authority, many parties who bring international lawsuits against a foreign defendant try to do so via service by mail. In such a scenario, the plaintiff directly sends legal documents to the defendant by express delivery (such as DHL, UPS, or FedEx) or mail service.

 

Article 10(a) of the Convention states that it would not interfere with direct service by mail provided the state of destination does not object. Historically, there were two interpretations of Article 10(a):

 

  • The sending of judicial documents does not include service of process, and the only method of service allowed by the Convention is through the Central Authority. Whether or not the destination sovereign has objected, service by mail is prohibited; or
  • The sending of judicial documents does include service of process, and if the destination sovereign has not objected, service by mail is allowed. If the destination sovereign has objected, then it is prohibited.

 

As can be seen, international service of process can be complicated. More details on this case can be found in our second part of this series.

 

More on this topic can be found here.

 

 

 

 

 

Things to Consider When Deposing an International Witness

Deposing a witness is a headache. There is coordination, fees, preparation, and numerous other things to consider. Deposing an international witness can be even worse. In addition to the standard procedures you have to undertake, there are other things to consider as well. What are the internal laws of the witness’s home country? Do you need an interpreter? Must you first submit a request through the Hague Evidence Convention?

While difficult, international depositions are by no means impossible. Proper preparation, like every other stage of litigation, is the key.

In addition, here are some helpful things to consider:

  • What local laws are there where the witness is?
  • Do you need a visa for you and the court reporter to perform the work in the foreign country?
  • What oath requirements are there?
  • Do you have to make travel arrangements for a diplomatic officer from a consulate?
  • Can you compel testimony if the witness is unwilling?
  • How can you reserve a location? Can this be done by video-conference?

Some countries strictly forbid pre-trial discovery, while others allow it in limited circumstances. Further, if the country is a member of the Hague Convention, that adds another layer of difficulty.

Certain processes can be used to get evidence without a deposition. Things such as letters rogatory and letters of request can be used. Thankfully, if you only need documentation, this is a much easier procedure. But, they can be time consuming and expensive.

However, you can tailor requests to your needs. It is important to talk to an expert in this area to determine what is right for your situation. Preemptively, the client should be warned that a substantial expense is forthcoming. Finally, be careful to not go on a fishing expedition.

Elizabeth Gallo Court Reporting Acquires Ancillary Legal Corporation

FOR IMMEDIATE RELEASE                                                                                                                                                                                                                                                        October 19, 2018

Elizabeth Gallo Court Reporting Acquires Ancillary Legal Corporation

With the new acquisition, Elizabeth Gallo Court Reporting is offering more services, including
nationwide and international process serving.

ATLANTA – Elizabeth Gallo Court Reporting continues to expand its services with its recent acquisition of Ancillary Legal Corporation. Ancillary is a reputable Atlanta-based litigation services company, which provides law firms from all over the world with full service legal support. Together, the two companies offer top-notch, start-to-finish litigation services.

“Our acquisition of Ancillary Legal Corporation will boost our services and create convenience for our clients,” said Elizabeth Gallo, Owner of Elizabeth Gallo Court Reporting. “Now, law firms can find all of their litigation services housed under one roof.”

With the new acquisition, Elizabeth Gallo Court Reporting’s clients have even more services to choose from, including nationwide and international service of process. Clients can also take advantage of extended services such as skip tracing, obtaining evidence abroad, intake services, court filing, legal videographers, video editing, videoconferencing, translation services, asset searches, investigative services, trial preparation, and trial presentation services. Litigators who need court reporting services can depend on Elizabeth Gallo Court Reporting for a high level of performance at competitive prices.

Elizabeth Gallo Court Reporting is ready and available to help law firms streamline their legal practice by quickly and professionally providing them with the services that they need. The company prepares precise and clean transcripts with a fast turnaround and provides exceptional customer service. Clients can take advantage of online scheduling and they are granted secure online access to files through the company’s portal.

Over the last several years, Elizabeth Gallo Court Reporting has expanded to include additional legal services. Now, EGCR will offer even more services with the purchase of Ancillary. To schedule litigation services, visit https://www.georgiareporting.com/.

About Elizabeth Gallo Court Reporting, LLC

Based in Atlanta, Georgia, Elizabeth Gallo Court Reporting has worked with law firms of every size and has produced accurate and timely transcripts with exceptional customer service. Since EGCR was founded in 2006, the company has handled relatively simple and extremely complex matters of litigation with a high level of performance. The team of qualified court reporters has worked on various cases including patent law, personal injury, medical malpractice, construction litigation, insurance disputes, business matters, contract disputes, employment law, family law, worker’s compensation, and more. Visit https://www.georgiareporting.com/about-us/ to learn how Elizabeth Gallo Court Reporting is transforming the litigation services industry.

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