Translating Service of Process Documents into French, German, Italian to Serve Process in Switzerland
Certified translation services for international service of process documents are always required under the Hague Service Convention, also known as the Hague Convention. When it comes to translating service of process documents to serve process in Switzerland, correctly determining whether to translate the English-language service of process documents to German, to French, or to Italian is extremely important, as is evidenced by the case of Stephen Gould Corp. v. Osceola we are discussing today.
ENCorp Switzerland AG (ENCorp) is an electronic component manufacturer with its principal place of business located in Zug, Switzerland. On November 15, 2022, the plaintiff, Stephen Gould Corp. (Gould Corp.), filed a complaint against ENCorp alleging a host of civil offenses including: breach of contract, unjust enrichment, conversion, alter ego liability, fraud, fraud in the inducement, negligent misrepresentation, intentional interference with economic relations, and civil conspiracy.
On January 30, 2023, Gould Corp. served process on ENCorp and filed a proof of service with the court on March 17, 2023. However, ENCorp did not file an answer to the complaint and did not appear before the court. As a result, on March 22, 2023, Gould Corp. petitioned the court to enter a default judgment against ENCorp. But as every attorney should know, before the court enters a default judgment, it must first confirm proof of service on the defaulting party.
So, what are the rules for effective service of process in a foreign country—in this case, Switzerland? In April 2023, the United States District Court for the Central District of California had to decide in the case of Stephen Gould Corp. v. Osceola. To do so, it relied on the Service of Process rules of the Hague Convention.
Service of Process Rules under the Hague Convention
In federal cases, Federal Rule of Civil Procedure 4 allows service of process in a foreign country “by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.” Fed. R. Civ. P. 4(f)(1). The Hague Convention provides rules and guidelines for service of process and other judicial documents between signatory members. Service Abroad of Judicial and Extrajudicial Documents, T.I.A.S. No. 6638 (U.S. Treaty), 20 U.S.T. 361 (U.S. Treaty).
The United States and Switzerland are both signatories of the Hague Convention.
Pursuant to Article 2 of the Hague treaty, each contracting State designates a “Central Authority” to receive requests for service of process from a foreign State. The parties in a civil action may serve process or other documents on the Central Authority, which then delivers them to the opposing party or intended recipient. This centralized system for service of process assures that defendants who are sued in a foreign jurisdiction receive actual and timely notice of the suit being brought against them and facilitates proof of service in the court of origin.
Article 7 of the treaty addresses the required language in which documents must be written. Article 7 provides that documents “shall in all cases be written either in French or in English. They may also be written in the official language, or in one of the official languages, of the State in which the documents originate.” Thus, pursuant to Article 7, documents originating in the United States may be written either in French or in English. However, Article 5 provides an alternative.
Article 5 addresses the method by which process may be served. Article 5 requires the Central Authority of the receiving State to serve the documents on the recipient, or to have them served, by one of two methods: (1) by following its own procedural rules for service of process on persons within its own territory; or (2) by any other method specified by the sender, provided the requested method does not violate the laws of the receiving State. However, Article 5 further provides that if the document is to be served by the first method (according to the laws of the recipient State), 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.” And that is precisely what happened when Gould Corp. attempted to serve ENCorp. in Switzerland.
Service of Process Rules in Switzerland
In Stephen Gould Corp. v. Osceola, the plaintiff, Gould Corp., attempted to serve one of the defendants, ENCorp., in Switzerland. Pursuant to Article 7, the documents could have been written in French or English. But Gould Corp. served ENCorp. pursuant to Article 5, which allows the Central Authority to require the translation of the documents being served. In fact, the court in Stephen Gould Corp. noted that “Switzerland has established just such a requirement” to make service effective.
Switzerland declares that in cases where the addressee does not voluntarily accept a document, it cannot officially be served on him or her in accordance with Article 5, first paragraph, unless it is in the language of the authority addressed, i.e. in German, French or Italian, or accompanied by a translation into one of these languages, depending on the part of Switzerland in which the document is to be served….
Stephen Gould Corp., 2023 WL 3551737 at *1 (quoting Regenicin, Inc. v. Lonza Walkersville, Inc., 997 F. Supp. 2d 1304, 1316 (N.D. Ga. 2014)). Based on Switzerland’s specific reservation in the Hague Convention, the courts in Regenicin and Stephen Gould Corp. each held that the documents being served had to be translated into German. And because Gould Corp. provided a German translation of its service of process documents, the court held that ENCorp. was properly served and entered a default judgment against ENCorp.
Why Did the Courts Choose German?
When Switzerland deposited its accession instruments to the Hague Convention, it reserved specific rules for translations of legal documents, including service of process. As the courts in Stephen Gould Corp. and Regenicin, Inc. stated, those rules provide that foreign process must be translated into “German, French or Italian . . . depending on the part of Switzerland in which the document is to be served.”
The “part[s] of Switzerland” referred to in the reservation quoted by the courts are the 26 different Central Authorities in each “canton” (meaning each State or region) that make up the Swiss Confederation. Each Central Authority in each canton designates one of the three required languages (German, French or Italian) as its “official language.”
The U.S. Embassy in Switzerland and Liechtenstein, provides a complete list of all 26 cantons in Switzerland. The list includes the location and addresses of each Central Authority and indicates which of the three languages each Central Authority has designated as its official language. List of cantonal central authorities for legal assistance in civil and commercial matters is available here. The official list indicates that the city of Zug, which is where ENCorp. is located, is the capital of the canton of Zug. And the official language designated for the canton of Zug is German.
The court in Stephen Gould Corp. correctly concluded that the documents in the case, therefore, had to be translated into German. However, the court’s statement that “[t]o effect service in Switzerland, documents must be in German,” is not accurate. What the court should have stated is that “to effect service in Zug, documents must be in German.” The court in Regenicin specifically stated: “To effect service in Basel, documents must be in German,” which is a correct and accurate holding. But let’s be clear—not every foreign document served in Switzerland must be translated into German to effectuate proper service. A document may have to be translated into French or Italian “depending on the [canton] of Switzerland in which the document is to be served.”
Does Dialect Make a Difference?
According to the Federal Department of Foreign Affairs (FDFA), French is the official language of the western part of Switzerland and Italian is the official language in the south. German is designated as the official language of 17 of the 26 cantons in Switzerland. So, where you serve your process determines what language it must be translated into. Pretty simple, Right?
Consider that the German language most widely spoken in Switzerland, specifically, is Swiss German, according to Federal Department of Foreign Affairs.
Swiss German is not designated as an official language; rather, it is a collection of quite distinctive Alemmanic dialects. The FDFA recognizes that specific dialects can vary considerably from one canton to the next. “The Swiss German spoken in Basel is not the same as the Swiss German spoken in Zurich or Bern.” Likewise, the French and Italian languages widely spoken in Switzerland each have their distinctive dialects.
So, there is an important legal question to ask: Can different dialects of an official language within an individual canton make a difference in terms of whether a document served in Switzerland has been translated sufficiently? Could a court hold that a document translated into standard German, which is used for most formal, written communications in Switzerland, is not sufficient if served on a defendant who does not understand traditional German? Could the court in Stephen Gould Corp. have invalidated the service of process on ENCorp even though it was translated into German if the defendant could only fully understand Swiss High German?
Based on the plain language used in the Articles of the Hague Convention, the most likely legal answer is “No.” There is no specific language in the treaty that even suggests such a narrow construction or application of the service of process rules in Switzerland. Nor are there any state or federal appellate court opinions that apply the Hague Convention and draw distinctions between documents translated in the same language based on dialects. But that argument has not yet been made.
If Switzerland’s purpose in implementing a Central Authority system and specifying its service of process rules under the Hague is to account for differences in languages among the regions, should courts not also consider the differences in dialects within them? Support for such an argument would have to come from some evidence that the dialect used to translate the documents was so different from the dialect used by the recipient that he or she could not understand the content of the documents they were served.
Get in touch with the legal translation service All Language Alliance, Inc. to obtain certified translation of service of process English-language documents to German, French, Italian; with other Swiss translation services needs; and to request deposition interpreters for on-site depositions and Zoom depositions involving witnesses who speak Swiss German; Swiss French; Italian; French; German.
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