More and more companies are doing business overseas than ever before.  Even small and middle market companies are expanding their platforms internationally and/or working with foreign nationals.  In an environment of increasing globalization, widespread international trade, and expanding foreign national populations domestically, our clients are increasingly faced with complex issues surrounding service of legal process in foreign jurisdictions.

Service abroad is reflexively thought to involve compliance with the Hague Service Convention, which can be a daunting prospect to a U.S. litigant.  There are multiple requirements that demand strict adherence. Service can take weeks to months to satisfy, and the assistance of local counsel is usually recommended.

However, before a litigator enters the procedural morass of complying with the requirements of the Hague Service Convention, close attention should be paid to the particular facts of the case.  Frequently, service of process under the auspices of the Hague Service Convention is not required – and practical options for cheaper and faster alternatives should be pursued.

In complex cases requiring the service of arbitration documents on a foreign national, questioning the status quo and looking to state law can save valuable time and resources.

We offer three things to keep in mind when considering and planning service on a foreign national:

1. Don’t make assumptions.

Don’t assume that serving a foreign national necessitates going overseas.  Too often litigators and fact finders automatically assume that foreign service requires compliance with the methods dictated by the Hague Service Convention.  But, the Hague Service Convention only applies in instances where service necessarily entails transmitting service documents overseas.  If the foreign national can be served domestically in compliance with the service requirements of the forum state, the Hague Service Convention does not apply.

2. Look to California law.

In a recent case, we relied on Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) to prove that service of a Korean citizen at his place of business within the territorial United States was effective without having to comply with the Hague Service Convention.  When reasonable (i.e. multiple) attempts to personally serve the respondent fail, substitute service at the respondent’s residence or place of business in a U.S. territory can suffice if permitted under the law of the forum state (in our case, California).  By serving the respondent by substitute service at his place of business in a U.S. territory, we were able to save our clients thousands of dollars and weeks of unnecessary red tape.

3. Know your opponent and the facts of the case inside out.

Respondents can try to hide behind the Hague Service Convention to postpone or avoid arbitration. But it is harder for respondents to hide if you understand the facts surrounding where your opponent lives and works.  Think outside the box:  research the opponent’s business interests domestically and overseas, locate all places of residence, and research travel patterns and commitments. By serving the respondent anywhere on U.S. soil, you can often avoid the time and expense associated with compliance with the Hague Service Convention.

Cypress LLP lawyers have extensive expertise in the complex arena of service to foreign residents, assisting in-house counsel and representing companies and individuals with interests overseas. Our clients routinely rely on us for our counsel in navigating the quagmire of procedures and methodology instituted by the Hague Service Convention.  With insight and dedication to creative collaboration, we help our clients and each other achieve better, smarter and more efficient results.