Serving Chinese Defendants Will Be Frustrating
International civil litigation is a high stakes legal practice requiring ceaseless attention to detail and assiduous compliance with procedural protocols. Highly skilled and experienced legal translators are an integral part of any successful legal action in which parties or witnesses do not share the same language. The mandatory translation of documents and the risk of miscommunication can mean legal translation services may be the difference between success or failure in a foreign venue.
All attorneys practicing international commercial law are familiar with the need to abide by the terms of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents (Hague Service Convention). The treaty was originally entered into back in the 1960s, long before the advent of modern technology and the instantaneous transfer of important documents around the world via email. Recently, in the Federal District Court for the District of Massachusetts, an American manufacturer of “smart kitchen appliances” learned that the law governing service of process on a foreign defendant remains locked in the technology of 1965. Despite complying with all the steps required under the Hague Service Convention, the American plaintiffs found that, after two years, authorities in the Peoples Republic of China had still not served the China defendants.
Plaintiff First Complied with Hague Convention Procedures to Serve Process
The plaintiff, Anova Applied Electronics, Inc., is a Delaware corporation that manufactures and markets a constant temperature immersion cooking appliance called the Sous Vide Precision Cooker. The appliance heats and circulates water in any pot at a constant temperature to cook food sealed in a plastic bag. The appliance is patented, and the name Precision is part of the trademark held by Anova.
The defendants are several Chinese companies that Anova alleges manufacture immersion cooking appliances very similar to Anova’s and then sell them to others who market them in the U.S., packaged in a way that so mimics Anova’s packaging that it infringes Anova’s trademark. They even use the word “precision” on the packaging.
Plaintiff Suffers Continued Bureaucratic Delays in China
When Anova filed its complaint in Anova Applied Electronics., Inc. v. Hong King Grp Ltd. Court Rules Service by Email Inconsistent with Hague Convention, in federal court in 2017, it knew that the defendant companies in China would need to be served according to the Hague Service Convention. The Convention, as it applies to China, requires every document to be translated into Simplified Chinese, and that the summons, complaint, and supporting documents be served upon the receiving country’s designated central authority, the Chinese Ministry of Justice. Then the Chinese authorities serve the named defendants.
The plaintiff had the English to Simplified Chinese translated documents delivered to the Ministry of Justice in China within sixty days of the filing of the complaint. Seven months later, all the Anova legal documents were returned to it by the Ministry of Justice, still without service on the defendants. The plaintiff was unaware that the Chinese government had adopted a new policy that required all fees to be paid by wire transfer rather than by cashier’s check, as Anova had paid. Within weeks, the plaintiff again forwarded the documents to the Ministry of Justice, this time with fees paid by wire transfer.
Ten more months passed without word from the Ministry of Justice. Seeking some update on the status of service, Anova contacted the Chinese Ministry of Justice and learned that no service was yet completed, and the officials could offer no time within which to expect service would be executed.
Then Plaintiff Sought Permission for Alternative Means of Service — Email
Finally, after more than two years waiting for Chinese authorities to serve the defendants, Anova moved the court for permission to serve the Chinese defendants under Rule 4(f)(3). The rule provides for service on defendants outside the United States “by other means not prohibited by international agreement, . . .” Anova asserted that since the Hague Convention did not expressly prohibit service by email, accomplishing service by email was permissible under the treaty.
Court Rules Service by Email Inconsistent with Hague Convention
Agreeing that the Hague Convention certainly did not prohibit service by email, because email did not exist in 1965, the federal court cited the Supreme Court’s decision in Volkswagenwerk Aktiengesellschaft v. Schlunk and concluded the appropriate question was whether email service of process was inconsistent with the Hague Convention. The court reasoned that since China had objected to the section of the Hague Service Convention allowing for judicial documents to be transferred internationally by postal channels, the court concluded that China would not have countenanced email. And, if email were an acceptable method of achieving service of process, why would anyone ever use any other slower, more expensive method?
Strict Adherence to the Hague Service Convention is Required
Despite the apparent futility Anova experienced trying to serve defendants in China through the Ministry of Justice, the law does not yet permit service of process via email. It may be easier, more efficient, less expensive, quicker, and more reliable, but it is not legal under the present terms of the Hague Service Convention.
Hiring an English-Mandarin Translator/ Interpreter Would Have Helped
The record in the Anova case shows that long periods of time elapsed between Anova’s attempts to contact the Ministry of Justice for status updates. Anova could have used the services of a professional English-Mandarin interpreter or translator to maintain more regular, direct contact with the Ministry and with local government officials in China. Clearer, more frequent communication between the people on both sides of the Pacific may have produced cooperation, and maybe, a better result.
Get in touch with the legal translation company All Language Alliance, Inc. to retain services of certified English to Simplified Chinese translators for translations of the summons, complaint, and supporting documents, and to hire in-person or remote English to Mandarin interpreters to facilitate communication via Zoom, other video conferencing services, or telephone, including services of a Mandarin Zoom deposition interpreter, a Mandarin in-person on-site interpreter, and a Mandarin arbitration interpreter for an international arbitration.
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