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The wheels have fallen off Hague Article 5 service in Hong Kong.

By Aaron Lukken on April 24, 2024
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Hilly Cityscape of the Victoria Harbour region of Hong Kong during a blue sunset
Manson Yim, Unsplash

[TL; DR: don’t even bother with it in most cases. Likely the only way to get effective service in Hong Kong lies in Article 10.]

In 1997, Hong Kong ceased to be an outpost of the waning British Empire and returned to Chinese control for the first time since the Opium Wars early in the reign of Queen Victoria (1842, in case you’re curious).

At the time of the handover, China recognized the practicality of maintaining the British way of doing things– for at least a little while– and as of this writing, Hong Kong is still designated as a Special Administrative Region of the People’s Republic of China. It still has an ostensibly independent local government and common law courts, it has kept its own currency (the HK dollar), and its affairs are still conducted in the English language. China has also maintained the British mechanism of the Hague Service Convention in Hong Kong– allowing service by mail (Article 10(a)), service at the direction of a solicitor (Article 10(b)), or service at the direction of its Hague Central Authority (Article 5).

Now, setting aside my arguments against service by mail– it’s just a bad idea– – I now have to conclude that Article 5 is even more likely to fail. About a decade ago, the Central Authority began rejecting requests for service of pleadings that failed to properly distinguish Hong Kong from sovereign states. In 2016’s Service of Process in Hong Kong means Hong Kong, CHINA, I wrote:

Simple practice tip: if your defendant is located in Hong Kong, be sure to refer to the jurisdiction as Hong Kong, China or, alternatively, Hong Kong S.A.R. (shorthand for “Special Administrative Region”).  Any request which refers to Hong Kong in isolation, and is submitted to the Hong Kong Central Authority for the Hague Service Convention, will be rejected as a matter of course.  Hong Kong government officials are particularly wary of showing any offense to the government in Beijing, and they insist on this nomenclature out of abundance of caution.

That seemed perfectly reasonable, and not at all difficult to head off in the drafting phase of a lawsuit. But in 2020, they started applying the same scrutiny to exhibits— which cannot be amended– rendering all but the barest of complaints impossible to serve pursuant to Article 5. Even those bare complaints (without exhibits, with very careful diligence to include the S.A.R. designation) are now problematic too. Last week, I got this:

Tons of fun built into that. I initially thought, based on their regular acceptance of the S.A.R. designation without reference to China, that there was something missing in what I sent in. Did I screw up? Did my client goof something up despite my advice? Did I miss their goof? Nope. I didn’t miss anything and my client didn’t goof up.

For the “examples flagged” bit, with handwritten corrections (identifiers redacted), see the following from the description of the defendants in the complaint:

I was astounded. “Hong Kong S.A.R.” alone is now insufficient. It now must be Hong Kong, SAR, China. [I can’t say whether just Hong Kong, China— omitting SAR– would suffice.]

If the Central Authority rejects such omissions in pleadings and exhibits in the first place, how is a letter explaining why changes can’t be made going to remedy anything? This new basis for rejection renders Article 5 service all but impossible, so I strongly urge my colleagues to not even try. Of course it costs more, but the only truly viable option now is Article 10(b). In Hong Kong, service can be effected at the direction of a solicitor.

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:
    Business and Commercial
  • Blog:
    Hague Law Blog
  • Organization:
    Viking Advocates, LLC
  • Article: View Original Source

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