A recent blog described the times when litigators are required to translate into English foreign-language documents exchanged during pretrial discovery, an increasing obligation driven by the global reach of modern multinational corporations and online business activities.

Similar forces are at work in the area of service of process. More than ever, U.S.-based litigators are filing civil claims against parties residing outside the United States. In nearly every instance, the initial pleadings in these cases must be translated into the defendant’s native language in order to be lawfully served.

Fortunately, when service of process must be made on a party residing outside the United States, the party can likely be served with pleadings according to the methods set out in the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention).

Article 5(3) (Hague Service Convention) means that U.S.-based litigators will be required to translate legal pleadings into the local language to lawfully obtain service of process in almost every country around the world.

The service of process rules set out in the Hague Service Convention, an international agreement finalized on Nov. 15, 1965, are available to international litigants in the world’s 10 largest economies as well as all in countries belonging to the European Union. The list of countries that have agreed to, or ratified, the Hague Service Convention is published on the Hague Conference on Private International Law website.

According to the text of the convention: “The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” The Hague Service Convention is not the exclusive means by which parties abroad can be served with legal process, although — having been drafted by business-minded legal experts — it’s intended to be more efficient and reliable than alternatives that might exist under national laws.

Hague Rules: Streamlined Yes, Uniform No

The intent of the Hague Service Convention is to streamline the process for service of process across country boundaries. The convention accomplishes this objective by giving cross-border litigants a single, somewhat clearly defined process for serving legal pleadings on persons residing in another country.

However, each country has the authority to establish rules for acceptable methods of service (e.g., in person, by mail, or online), which documents must be submitted to local authorities for service, costs, and which languages the legal pleadings and supporting documents must be written in. The Hague Service Convention offers a streamlined route to service of process in terms of time and comprehensibility, but it is by no means a one-size-fits-all mechanism. The steps that must be taken to obtain lawful service of process will be different in every country that has ratified the convention.

This is because each country has a “central authority” responsible for establishing and administering its own rules for service of process. One of the main points of differentiation among central authorities involves the rules regarding which language pleadings must be written in.

A comprehensive list of central authorities is published on the Hague Conference on Private International Law website. Links to each country’s “Central Authority and practical information” page contain a wealth of information on how service of process can be lawfully accomplished in that country. U.S. litigators should treat these highly detailed resources the same way they would treat local court rules. They contain information that the central authority expects litigators to know before they attempt service of process in their country. Deviation from the processes outlined by the relevant central authority could cause delays in achieving service of process and, in a worse case scenario, open up any eventual judgment obtained to legal challenge.

Translation (Almost) Always Required

In the area of language translation, Article 5(3) of the Hague Service Convention provides that, “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.”

Practically speaking, Article 5(3) means that U.S.-based litigators will be required to translate legal pleadings into the local language to lawfully obtain service of process in almost every country around the world. The following excerpts from guidance published by selected central authorities should drive this point home:

Austria:

“Austria declares that its Central Authority will arrange for formal service only if the document to be served is written in German or accompanied by a translation into German.”

China:

“According to the Civil Procedure Law of the People’s Republic of China, service requested within the meaning of Art. 5(1) of the Convention requires that all documents and evidence to be served must be written in Chinese or that a translation in Chinese be attached thereto, unless there are contrary prescriptions in the mutual treaties between China and other Contracting States of the Hague Convention.”

Japan:

“Full translation is required for any document to be served under Article 5(1)(a)(b). We serve the translation to the addressee together with the original.”

Italy:

“Pursuant to Article 5(3) of the Convention Italy will require the document translated into the Italian Language.”

Even in cases in which a country’s central authority permits English-language documents to be served, the prospect that the recipient may refuse them should make U.S.-based plaintiffs think twice before attempting to serve English-language pleadings in those countries. For example, the Latvian central authority has declared the following:

“Translation is required if the addressee refuses to accept the document because the document is not prepared in the official language of Latvia (Latvian) or in a language that the addressee understands. In such a case the document is returned to the requesting State to be translated either into Latvian or any other language that the addressee has specified.”

The French central authority permits pleadings to be presented for service in either French or English. However, attempted service of pleadings written in English risks possibly unacceptable delay because (a) the local authority may decide to reject English-language pleadings for language-based reasons of its own, or (b) the defendant being served may refuse the pleadings because they are written in a language the defendant allegedly does not understand. Moreover, pleadings written in a language that the intended recipient may not completely comprehend are always subject to objection on due process grounds, thereby creating additional friction and delay in acquiring U.S. jurisdiction over a party residing overseas.

According to the U.S. Department of Justice, having service documents translated into the local language is almost always the prudent course of action:

[E]ven if there is no explicit translation requirement, since most countries view service in terms of providing effective notice and notice will not be effective where the person serve cannot understand the documents because they are written in a foreign language, we strongly recommend that the documents to be served be accompanied by translations, unless it is known that the recipient is familiar with the English language. At the very least, the documents to be served should be accompanied by a translated summary of their contents so the recipient is placed on notice concerning the essential elements, such as the origin of the claim, nature of the documents, and the time limits for entering an appearance or making a reply.

A Practical Approach to Service of Process Overseas

Litigators should weigh the following practice suggestions whenever they need to serve legal pleadings on parties residing in a non-English-speaking country outside the United States:

• Thoroughly research the service of process requirements published by the central authority in the country in which the party to be served resides. The U.S. Department of Justice’s advisory on international service of process is a good place to start.
• Weigh the advantages (or disadvantages) of using the Hague Service Convention as opposed to other methods available under local laws in the country where the party to be served resides.
• Enlist the services of a qualified legal document translation service to translate English-language pleadings into the language required by the relevant central authority.
• Additionally, obtain translations for all supporting documents required by the relevant central authority to accompany the pleadings to be served.
• Take care to draft supporting materials in simple, nontechnical language, omitting unnecessary information that may confuse central authority personnel.
• Build additional time (think months, not days) into litigation management plans to accommodate the time necessary to obtain document translations, liaise with the relevant central authority, and obtain service on the intended party.