Hague Convention

Child abduction is a serious issue, particularly when it happens on an international level. It is estimated that every 40 seconds a child is abducted or goes missing in the United States. Globally, about 8 million children are abducted each year. The Hague Convention on the Civil Aspects of International Child Abduction (“Hague Abduction Convention”) is a multilateral treaty providing a streamlined and quick method to return a child from one member country to another who has been abducted internationally by a parent. The Hague Abduction Convention became enforceable as of December 1, 1983. The primary purpose of the treaty is to preserve the “status quo” custody arrangement that was in place immediately before a purported abduction occurred by a parent. The treaty only applies to children under 16 years of age and as of 2021, there are 101 parties to the convention.
Only Procedural Remedy
It is important to understand that the Hague Abduction Convention does not change any substantive rights of the parents or the child. Instead, the treaty mandates that a court in which the Hague Abduction Convention action is filed should only determine the country in which the custody dispute should be adjudicated and not consider the merits of any underlying custody battle. Importantly, the allegedly abducted child is returned to the member state and not specifically to the parent seeking the return of the minor. The Hague Abduction Convention requires that all countries party to the treaty act expeditiously in all proceedings that seek the return of a child and that their institutions use the quickest procedures available with a final decision that happened within six weeks of the initiation of the legal matter.
Understanding Wrongful Retention or Removal
The Hague Abduction Convention defines retention or removal of a child as “wrongful” when:
● When the rights of custody are breached by a person, institution, or any other body under the law of the state where the child was a habitual resident immediately before the retention or removal; and
● At the time of the retention or removal the custody rights were exercised or would have been but for the child’s retention or removal.
Child custody rights may stem by operation of law, by a judicial or administrative decision, or by an agreement by the parties that is legally binding under the laws of the country of habitual residence. The retention or removal of a child is wrongful when it is done without the consent of the other parent, in disregard of the rights of that parent.
For more information on the Hague Abduction Convention, click here.

 

For service on a defendant through the Hague, contact us today.

Earlier this year, the District Hague Court rejected a lawsuit brought by four Nigerian widows against global oil giant Shell. The lawsuit claims that Shell purportedly helped to corrupt witnesses that were testifying against the widows’ late husbands. The Nigerian government executed the four men in 1995 following protests of Shell and its alleged exploitation of the Niger Delta.

The Back Story

Former military ruler Sani Abacha executed the husbands of four women, as well as five other protestors opposing Shell’s involvement in the Niger Delta. The killed activists have been deemed as the “Ogoni Nine.” The deaths of those executed was the result of the Nigerian government’s brutal crackdown on peaceful protestors. The protests were conducted by the Ogoni people opposing Shell’s exploitation of the Niger Delta’s oil resources as well as the conglomerate’s destruction of the territory of Ogoniland.

The widows sued Shell for its alleged involvement in their husbands’ arrest, detention, prosecution, and eventual execution by the Nigerian government. After exhausting their legal remedies in Nigeria, the widows sought to hold the oil giant responsible in Hague. In 2019, a Dutch Court ruled it had jurisdiction to oversee the case. Some witnesses that testified in court, five of them specifically, stated they were coached to incriminate the defendants—the protestors who were eventually killed.

These witnesses also stated Shell representatives paid them for their testimony. Shell has denied any involvement in the defendants’ case. The Dutch court, however, ruled that there was not enough evidence to support the accusations put forth by the widows of the deceased who alleged that Shell bribed witnesses who testified in their husbands’ case. As a result, the court held that Shell was not liable for the protestors’ deaths.

Multi-Million Dollar Settlement Shell and the families of the nine activists who were executed by the Nigerian government reached a $15.5 million settlement in 2009. The following year the United States Court of Appeals for the Second Circuit upheld a lower court’s decision in favor of Shell determining that the widows could not seek damages because the Alien Tort Claims Act, a 1789 U.S. federal law that gives the federal courts jurisdiction to hear lawsuits filed by non-U.S. citizens for torts committed in violation of international law, did not apply to corporations. More information on the case can be read at Jurist.com 

 

For any questions regarding service of your own international Hague case, contact us today. 

This scenario likely comes before litigators and arbitration lawyers who work in the space of international law. An American client believes it may have a seven figure claim against a foreign contractual partner. That foreign contractual partner refuses to pay the claim. Not surprisingly, the U.S. company wants to enforce this claim, preferably through its “home court” in the American judicial system. The American company has more confidence in U.S. courts and the effort and cost is low, making an action before the foreign court of the foreign contracting party something to avoid at all costs.

 

This all seems practical and feasible until the lawyer looks at the contractual agreement between the parties to see if there is a provision regarding jurisdiction. What if the parties agreed that the place of jurisdiction is outside of the United States? Indeed, such clauses are quite common in international contracts. In practice, however, jurisdiction agreements do not necessarily prevent parties from bringing a lawsuit before a court other than the agreed upon tribunal. This is because a hoped-for advantage before a party’s homecourt outweighs the risk of a dismissal due to lack of jurisdiction, at least under U.S. procedural rules. This is because under the “American rule,” each party bears its own legal costs. But this is not the case under German law.

 

German Law and Jurisdiction

 

In Germany, the rule is “loser pays” under Sections 91 et. seq. of the German Code of Civil Procedure (ZPO). A recent decision by Germany’s Federal Court of Justice (BGH) in October 2019 ruled on the substantive legal consequences of jurisdiction agreements. Specifically, the BGH held that a lawsuit brought in violation of a jurisdiction agreement could justify a claim for damages. Not only does the BGH ruling apply to contracts between private parties, but it likely also applies to jurisdictional clauses contained in arbitration agreements.

 

The underlying case involved an American telecommunications company that sued a German telecommunications company, alleging breach of contract. The lawsuit was filed in the U.S. District Court in Washington, DC. The German company challenged the lawsuit based, in part, on the parties’ agreement to exclusive jurisdiction by German courts in Bonn, Germany. The U.S. District Court agreed with the German company, and dismissed the action due to lack of jurisdiction. By that time, however, fighting the lawsuit cost the German company $200,000.00. The American telecommunications company then filed suit in Bonn, Germany, and the German telecommunications company filed a counterclaim suing for attorneys fees and costs as damages due to the Washington, DC lawsuit.

For more information on serving in Germany, visit our site. 

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. 

Attorneys and paralegals frequently ask “Is Argentina a member of the Hague Convention?” The short answer is yes. However, the question is a bit more complicated than a simple yes.

The “Hague Convention” is a term that is used interchangeably for several different treaties that many countries are parties to. Overall, there are 42 “Hague Conventions”. The most commonly referred to treaty is the Service Treaty. The full name is The Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. So when asking about the Service Convention, yes, Argentina is a member.

This means that process service in Argentina must conform to the protocols and requirements of the Convention. This is mandated by international law and the Supreme Court of the United States. However, Argentina has gone one step further and declares that the only valid service is service through Article 5 of the Convention. Thus, Argentina’s central authority is the only recognized agency for service. Even further, Argentina has special requirements for their pleadings and transmittal of the service documents. Failure to comply with Argentina’s requirements means you will lose time and money.

When you have a service request for Argentina, make sure to hire someone that knows Argentina’s rules but also guarantees their translations. Argentina routinely sends documents back to attorneys for improper translations. Ancillary Legal knows how to avoid this problem.

Ancillary has decades of experience serving process in Argentina . We have relationships with their agents and know exactly what they need for service. Ancillary guarantees its translations and submissions to Argentina for accuracy to Argentina’s specific requirements. We are happy to help you serve documents in Argentina, with competitive prices, attorney reviewed documents, and decades of knowledge to make sure your request is not returned for improper submission.

Attorneys and paralegals frequently ask “Is Vietnam a member of the Hague Convention?” The short answer is yes. However, the question is a bit more complicated than a simple yes.

The “Hague Convention” is a term that is used interchangeably for several different treaties that many countries are parties to. Overall, there are 42 “Hague Conventions”. The most commonly referred to treaty is the Service Treaty. The full name is The Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. So when asking about the Service Convention, yes, Vietnam is a member.

This means that process service in Vietnam must conform to the protocols and requirements of the Convention. This is mandated by international law and the Supreme Court of the United States. However, Vietnam has gone one step further and declares that the only valid service is service through Article 5 of the Convention. Thus, Vietnam’s central authority is the only recognized agency for service. Even further, Vietnam has special requirements for their pleadings and transmittal of the service documents. Failure to comply with Vietnam’s requirements means you will lose time and money.

When you have a service request for Vietnam, make sure to hire someone that knows Vietnam’s rules but also guarantees their translations. Vietnam routinely sends documents back to attorneys for improper translations. Ancillary Legal knows how to avoid this problem.

Ancillary has decades of experience serving process in Vietnam . We have relationships with their agents and know exactly what they need for service. Ancillary guarantees its translations and submissions to Vietnam for accuracy to Vietnam’s specific requirements. We are happy to help you serve documents in Vietnam, with competitive prices, attorney reviewed documents, and decades of knowledge to make sure your request is not returned for improper submission.

Attorneys and paralegals frequently ask “Is Sweden a member of the Hague Convention?” The short answer is yes. However, the question is a bit more complicated than a simple yes.

The “Hague Convention” is a term that is used interchangeably for several different treaties that many countries are parties to. Overall, there are 42 “Hague Conventions”. The most commonly referred to treaty is the Service Treaty. The full name is The Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. So when asking about the Service Convention, yes, Sweden is a member.

This means that process service in Sweden must conform to the protocols and requirements of the Convention. This is mandated by international law and the Supreme Court of the United States. However, Sweden has gone one step further and declares that the only valid service is service through Article 5 of the Convention. Thus, Sweden’s central authority is the only recognized agency for service. Even further, Sweden has special requirements for their pleadings and transmittal of the service documents. Failure to comply with Sweden’s requirements means you will lose time and money.

When you have a service request for Sweden, make sure to hire someone that knows Sweden’s rules but also guarantees their translations. Sweden routinely sends documents back to attorneys for improper translations. Ancillary Legal knows how to avoid this problem.

Ancillary has decades of experience serving process in Sweden . We have relationships with their agents and know exactly what they need for service. Ancillary guarantees its translations and submissions to Sweden for accuracy to Sweden’s specific requirements. We are happy to help you serve documents in Sweden, with competitive prices, attorney reviewed documents, and decades of knowledge to make sure your request is not returned for improper submission.

Attorneys and paralegals frequently ask “Is Switzerland a member of the Hague Convention?” The short answer is yes. However, the question is a bit more complicated than a simple yes.

The “Hague Convention” is a term that is used interchangeably for several different treaties that many countries are parties to. Overall, there are 42 “Hague Conventions”. The most commonly referred to treaty is the Service Treaty. The full name is The Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. So when asking about the Service Convention, yes, Switzerland is a member.

This means that process service in Switzerland must conform to the protocols and requirements of the Convention. This is mandated by international law and the Supreme Court of the United States. However, Switzerland has gone one step further and declares that the only valid service is service through Article 5 of the Convention. Thus, Switzerland’s central authority is the only recognized agency for service. Even further, Switzerland has special requirements for their pleadings and transmittal of the service documents. Failure to comply with Switzerland’s requirements means you will lose time and money.

When you have a service request for Switzerland, make sure to hire someone that knows Switzerland’s rules but also guarantees their translations. Switzerland routinely sends documents back to attorneys for improper translations. Ancillary Legal knows how to avoid this problem.

Ancillary has decades of experience serving process in Switzerland . We have relationships with their agents and know exactly what they need for service. Ancillary guarantees its translations and submissions to Switzerland for accuracy to Switzerland’s specific requirements. We are happy to help you serve documents in Switzerland, with competitive prices, attorney reviewed documents, and decades of knowledge to make sure your request is not returned for improper submission.

Attorneys and paralegals frequently ask “Is Turkey a member of the Hague Convention?” The short answer is yes. However, the question is a bit more complicated than a simple yes.

The “Hague Convention” is a term that is used interchangeably for several different treaties that many countries are parties to. Overall, there are 42 “Hague Conventions”. The most commonly referred to treaty is the Service Treaty. The full name is The Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. So when asking about the Service Convention, yes, Turkey is a member.

This means that process service in Turkey must conform to the protocols and requirements of the Convention. This is mandated by international law and the Supreme Court of the United States. However, Turkey has gone one step further and declares that the only valid service is service through Article 5 of the Convention. Thus, Turkey’s central authority is the only recognized agency for service. Even further, Turkey has special requirements for their pleadings and transmittal of the service documents. Failure to comply with Turkey’s requirements means you will lose time and money.

When you have a service request for Turkey, make sure to hire someone that knows Turkey’s rules but also guarantees their translations. Turkey routinely sends documents back to attorneys for improper translations. Ancillary Legal knows how to avoid this problem.

Ancillary has decades of experience serving process in Turkey . We have relationships with their agents and know exactly what they need for service. Ancillary guarantees its translations and submissions to Turkey for accuracy to Turkey’s specific requirements. We are happy to help you serve documents in Turkey, with competitive prices, attorney reviewed documents, and decades of knowledge to make sure your request is not returned for improper submission.

A North Carolina court recently granted in part and denied in part a defendant’s motion for sanctions against the plaintiff for missing deadlines to respond to discovery requests. Subsequent to the filing of the motion for sanctions, the plaintiff produced documents that were illegible and failed to comply with ESI protocol. Plaintiff also failed to conduct a search of email accounts and a mobile phone, both of which clearly had data that was responsive to the discovery requests.

 

The Discovery Dispute

 

The North Carolina court had issued a prior order imposing sanctions on the plaintiffs, which required payment of expenses and set a 30-day deadline to comply with the discovery. This deadline was imposed when the plaintiffs did not propose a date themselves to the court.

 

Although the plaintiffs missed the court’s deadline, the defendant agreed to a month extension. No production, however, actually occurred. Since the date of the discovery order instructing the parties to resolve the dispute, the plaintiffs had four months to produce. At that point, the plaintiffs claimed it would take even more time to review more than 160,000 pages of responsive material and remove duplicates. They also noted that the counterclaim defendants would need to review the production. When the plaintiffs requested more time, the court denied the request and instead ordered the parties to meet and propose an agreed-upon discovery schedule.

 

The plaintiffs missed the first deadline and disclosed that they could not follow the proposed schedule. They also noted they could no longer afford to hire an electronic discovery vendor due to expense and that they had to review 160,000 documents — not 160,000 pages.

 

The Court’s Decision

 

The court noted that the plaintiffs’ failure to timely produce documents on dates that they chose was unacceptable. Although the plaintiffs pleaded at court hearings that they were inexperienced in the complexities of ESI discovery and that they needed to coordinate discovery production with counsel for counterclaim defendants, the court did not find either one as a valid excuse. The court issued sanctions reasoning that the defendant suffered prejudice and to ensure respect for the judicial process.

 

According to the American Bar Association (ABA), there are several things an attorney can do to avoid mishandling discovery during litigation. These include:

 

  • Creating a realistic schedule and sticking to it;
  • Starting discovery as early as possible;
  • Dating, sourcing, and stamping each delivery of documents;
  • Preparing a privilege log; and
  • Understanding the new Federal Rules.

 

The case is State of North Carolina vs. AppyCity, LLC; Timothy S. Fields; Melissa Crete; and Daisy Mae Fowler a/k/a Daisy Mae Barber 2021 NCBC LEXIS 17 (N.C. Super. Mar. 3, 2021).

 

Attorneys and paralegals frequently ask “Is the United Kingdom a member of the Hague Convention?” The short answer is yes. However, the question is a bit more complicated than a simple yes.

The “Hague Convention” is a term that is used interchangeably for several different treaties that many countries are parties to. Overall, there are 42 “Hague Conventions”. The most commonly referred to treaty is the Service Treaty. The full name is The Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. So when asking about the Service Convention, yes, the United Kingdom is a member.

This means that process service in the United Kingdom must conform to the protocols and requirements of the Convention. This is mandated by international law and the Supreme Court of the United States. However, the United Kingdom has gone one step further and declares that the only valid service is service through Article 5 of the Convention. Thus, the United Kingdom’s central authority is the only recognized agency for service. Even further, the United Kingdom has special requirements for their pleadings and transmittal of the service documents. Failure to comply with the United Kingdom’s requirements means you will lose time and money.

Ancillary has decades of experience serving process in the United Kingdom . We have relationships with their agents and know exactly what they need for service. Ancillary guarantees its submissions to the United Kingdom for accuracy to the United Kingdom’s specific requirements. We are happy to help you serve documents in the United Kingdom, with competitive prices, attorney reviewed documents, and decades of knowledge to make sure your request is not returned for improper submission.

Attorneys and paralegals frequently ask “Is France a member of the Hague Convention?” The short answer is yes. However, the question is a bit more complicated than a simple yes.

The “Hague Convention” is a term that is used interchangeably for several different treaties that many countries are parties to. Overall, there are 42 “Hague Conventions”. The most commonly referred to treaty is the Service Treaty. The full name is The Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. So when asking about the Service Convention, yes, France is a member.

This means that process service in France must conform to the protocols and requirements of the Convention. This is mandated by international law and the Supreme Court of the United States. However, France has gone one step further and declares that the only valid service is service through Article 5 of the Convention. Thus, France’s central authority is the only recognized agency for service. Even further, France has special requirements for their pleadings and transmittal of the service documents. Failure to comply with France’s requirements means you will lose time and money.

When you have a service request for France, make sure to hire someone that knows France’s rules but also guarantees their translations. France routinely sends documents back to attorneys for improper translations. Ancillary Legal knows how to avoid this problem.

Ancillary has decades of experience serving process in France . We have relationships with their agents and know exactly what they need for service. Ancillary guarantees its translations and submissions to France for accuracy to France’s specific requirements. We are happy to help you serve documents in France, with competitive prices, attorney reviewed documents, and decades of knowledge to make sure your request is not returned for improper submission.