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Hague defendants do not warrant special summonses.

By Aaron Lukken on April 29, 2022
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What did you just say, Mister Data?

Very regularly, clients will email me a batch of documents to have served on an offshore defendant and my staff* and I will get to work putting the paperwork together.  Occasionally, a document will jump off the screen at me and make me scratch my head in wonder.

One such itch recently entailed a summons issued by a state court clerk, titled “SUMMONS PURSUANT TO ARTICLE 10 OF THE HAGUE CONVENTION”, for service on a defendant in Korea.

Um, lots to unpack there.

For starters, there’s no such thing as “THE” Hague Convention.  There are about forty of them, so unless you’re more specific, you aren’t really citing anything.

Second, a summons isn’t issued “pursuant” to the Convention.  It’s served pursuant to the Convention, but that’s it.

Third, Korea objects to Article 10, so referencing it at all in the documents to be served threatens to derail the whole project.  The folks in Seoul?  They read this stuff.  They’re smart people– after all, they gave us pretty cool smartphones and this K-Pop masterpiece.**  Oh, and don’t get me started on an amazing thing called Korean barbecue.

But all I can do when I see that sort of thing in a summons or pleading is ask, “who wrote that?”  And then I pray that it wasn’t my client because… wow, awkward.

Nine times out of ten, it’s the clerk’s drafting or it’s only my client’s drafting because “the clerk told me to do it that way.”

Ahem, no.  The fact that a defendant is abroad has precisely NOTHING to do with the way the documents are drafted.  Zip.  Zilch.  Nada.  ZEE-RO.  I can’t stress this enough… NOTHING.

Lex fori dictates what gets served– and I know of no procedural rule in the U.S. that derives its authority from a treaty.  While lex fori dictates what gets served, the Convention and foreign law dictate how it gets served.

One of my best practice tips:

Write up the summons as if the defendant is in Philly, Boston, or Baltimore.

We’ll take it from there.

 


* Take the word “staff” with a grain of salt.  My wife, Peggy, is my office manager, and things run a hell of a lot better around here now that she’s taken on the things that I JUST CAN’T EVEN.  Calling her “staff” is, well, silly.  I just can’t call her the boss lest OCDC rain fire down on my head license.

** Here’s a mind-blower: Gagnam Style came out ten years ago this summer.

Photo of Aaron Lukken Aaron Lukken

I’m Aaron Lukken, and I wasn’t always a lawyer. My kid sister and I spent a few years abroad as Army brats, and I worked in politics for a while after college. After meandering from job to job in my late twenties, I…

I’m Aaron Lukken, and I wasn’t always a lawyer. My kid sister and I spent a few years abroad as Army brats, and I worked in politics for a while after college. After meandering from job to job in my late twenties, I finally found a home at the phone company, of all places. With a decade of telecom sales experience under my belt, I decided at 37 to finally go back and do what I had always intended… study law.

But even at the start of law school, the idea of a generalized practice never really made sense to me. I wanted something specific, and something that could draw on all the travels of my youth; the only area of the law that was really appealing to me was at the international level. Of course, I also heard the siren call of the courtroom as a 2L, and discovered that litigation was as exciting as geopolitics and international law.

With a whole bunch of luck—and an amazingly supportive wife—I managed to launch a little niche firm smack in the middle of the map… Viking Advocates, LLC in Kansas City (that’s in Missouri, thankyouverymuch). My practice combines treaty analysis with litigation strategy; I truly have the best of both worlds.

When I’m not pondering the intricacies of cross-border legal doctrines, I’m either singing 2nd Tenor with the Kansas City Symphony Chorus or trying to get down to my fighting weight at the local YMCA with my wife, Peggy (an expert in conflict management and dispute resolution). Together we have a small civil & domestic mediation firm serving clients in the KC region. Our overbearing and demanding boss is a tabby cat named Minnie, named after Professor Minerva McGonagall.

Feel free to connect with me on LinkedIn (be sure to tell me you saw this!).

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  • Posted in:
    International
  • Blog:
    Hague Law Blog
  • Organization:
    Viking Advocates, LLC
  • Article: View Original Source

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