In international service of process case law, the hottest topic, by far, concerns electronic service of process.

Viewed broadly, electronic service of process is effected by email or some social media platform. Indeed, Legal Language Services has been a pioneer in the latter area.

In previous blog posts we have discussed whether email constitutes a postal channel within the meaning of Article 10 of the Hague Service Convention here and here.

But whether electronic service is allowed by a destination county is only half the battle.

Demonstrating that the Address is Correct

The other half of the battle over electronic service is the “authentication” of the account. A court only has authority to authorize service by alternative means (i.e., electronic service) when it is demonstrated to be effective.

In particular “[f]or alternative service to comport with due process requirements, the method of service must be `reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'”[1]

This means, at a minimum, that to obtain service by alternative means one has to demonstrate to the forum court that the electronic address for service belongs to the defendant; i.e., the country must be authenticated.

This brings us to today’s case: Vaswani, Inc. v. Manjunathamurthy.[2]

An Overview of Vaswani, Inc. v. Manjunathamurthy

In the case of Vaswani, Inc. v. Manjunathamurthy, the Plaintiff

Vaswani seeks leave to serve [the Defendant] through her Instagram profile. As a general matter, service via social media is assessed in the same manner as email service, with the analysis centering on due process concerns for the defendant receiving notice of the lawsuit. With this in mind, the Court must deny this portion of Vaswani’s motion. In support of this request, Vaswani provides printouts from an unverified crunchbase.com profile which lists [the Defendant] as CEO of defendant Lucidient and appears to link to her Facebook profile, which, according to Vaswani, links to her Instagram profile. Vaswani provides a printout of what appears to be [the Defendant’s] Instagram profile and states that it reflects activity as of January 2021; however, the Court cannot discern any such activity.[3]

The opinion goes on to state that

[u]nder these facts, the Court is unconvinced that service via Rao’s Instagram profile is reasonably calculated to provide her with notice of the lawsuit. This is for the same two reasons as stated in connection with [a second Defendant]. First, although the Instagram profile appears to belong to [the Defendant], Vaswani provides no proof that this is so. See, e.g., SEC v. Dubovoy, 2019 U.S. Dist. LEXIS 72669, at *17 (D.N.J. Apr. 29, 2019) (denying request for service via Facebook in part because “the Commission . . . failed to subpoena Facebook to gather proof that Defendants . . . own the accounts”). Second, there is no indication that [the Defendant] actively monitors her Instagram account. As stated in Silverman v. Sito Mktg. Llc, 2015 U.S. Dist. LEXIS 197433 (E.D.N.Y. July 21, 2015), “where courts have permitted service through social media messaging, they have been presented with strong evidence demonstrating that the party being served was likely to receive the message.” Id. at *6-7 (citing cases). No such evidence exists here. The Court therefore will deny without prejudice Vaswani’s motion to serve [the Defendant] via Instagram.

The Takeaway

In this particular service, the person or persons who were responsible for the service were egregiously lazy.

LLS has demonstrated that such service can be successfully effected, but it requires due diligence. For example, it is possible to subpoena a third party’s social media platform to obtain documentation that a defendant owns a particular social media account, and to obtain evidence of how often the defendant uses said account.

Another cause of caveat emptor.

How LLS Can Help

The post An Important Barrier to Obtaining Electronic Service appeared first on Legal Language Services.

In the following post, we explore an important aspect of evidence taking: the venue for examination of a witness.

Mykalai Kontilai and his wife have been in litigation with the Securities Exchange Commissions (SEC) for years. The SEC alleged that Kontilai defrauded 140 investors of $23M.

In the most recent installment of this action, the district court addressed whether Kontilai could delay a deposition pending his application for asylum in Russia, and whether the deposition could then be taken in Russia instead of New York.[1]

The Burden of Showing Good Cause

The court began its opinion by observing that it

is well settled that to the extent a party seeks a protective order under Rule 26(c), that party “has the burden of showing that good cause exists for issuance of that order.” Thus, the burden to explain why he has good cause to decline to be deposed in New York rests with Kontilai.… Kontilai literally does not cite to a single case that explains the basis for his argument… Kontilai [also] never describes what the burden is that he would suffer if he had to fulfill his legal obligations in this case. Kontilai does submit the declaration of an alleged expert on Russian law who, in a disjointed declaration, asserts that Kontilai’s ability to obtain asylum in Russia will be prejudiced if he is ordered to be deposed in the United States. The expert gives no comprehensible explanation of why this is so, however.[2]

The court then stated that “Kontilai is legally obligated to respond to discovery requests. If Russia weighs his alleged fear of persecution in the United States differently because Kontilai complies with these important legal obligations, the Court finds that any such ‘burden’ is not undue.”

The court held that Kontilai had failed to carry his burden and he was to be deposed in New York.

Case Law Concerning Deposition Venues

While the opinion does not explicitly state Kontilai’s argument for being deposed in Russia, it appears to be based on assertion that Russia is where Kontilai is domiciled. Accordingly, the court reviewed the case law concerning the venue for a deposition:

While “the party noticing [a] deposition usually has the right to choose the location,” there is a rebuttable presumption that, absent special circumstances, the deposition of a defendant will be held where the defendant resides. When the parties cannot agree on a location, “courts retain substantial discretion to determine the site of a deposition.” “Factors guiding the Court’s discretion include the cost, convenience, and litigation efficiency of the designated location.” “The safety of the proposed venue may also be considered.”[3]

The court then addressed an interesting argument concerning the taking of evidence in cases where the US court has exclusive jurisdiction:

Here, the Commission did not have the option of bringing these federal securities claims in [Russia]. See In re Livent, Inc. Sec. Litig., 2002 WL 31366416, at *1 (S.D.N.Y. Oct. 21, 2002) (“Plaintiffs’ choice of forum was effectively constrained insofar as the Canadian judiciary was unavailable to them as a forum for these claims,” due to exclusive jurisdiction of U.S. federal courts over claims under the Securities Act and Exchange Act). Thus, we will not accord [the defendant] the benefit of the presumption and will instead turn to the factors that guide a court’s discretion in resolving disputes over the locations of depositions.

The court addressed the practicality of taking a deposition in Russia and concluded that it “is in fact not legally possible to conduct the deposition in Russia.”

And yet, Kontilai asserted — without citation — “that the Hague Convention could be used to arrange for a deposition in Russia.”

The SEC countered this argument by stating that

the United States has not accepted Russia’s accession to the Hague Convention insofar as it relates to taking evidence  The United States Department of State has specifically addressed this question, stating: The United States has not accepted the Russian Federation’s accession to the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters because the Russian Federation did not name a central authority at the time of its accession, and did not make any specific declarations or reservations regarding methods of obtaining evidence. Due to the Russian Federation’s unilateral suspension of judicial cooperation in civil and commercial matters, requests for evidence submitted via diplomatic channels in the form of letters rogatory generally are not executed by Russian authorities. The US Department of State and the US Embassy in Moscow will transmit such requests on behalf of US litigants. This barrier to discovery in Russia was described in Phoenix Process Equip. Co. v. Capital Equip. & Trading Corp., 2019 WL 1261352, at *10 (W.D. Ky. Mar. 19, 2019). Phoenix Process Equip. Co. noted that “[b]ecause [a]n accession is effective only between the acceding country and those contracting states that have accepted the accession, the United States and Russia are not treaty partners in the Hague Evidence Convention.” … In other words, the deposition cannot take place in Russia under the Hague Convention.[4]

In a similar vein, the court disposed of Kontilai’s request to be deposed in Russia via a video link.

Two Key Takeaways Concerning Depositions in Russia

Two comments are in order here:

1. Under the Hague Evidence Convention all countries must establish a Central Authority to receive requests for taking evidence and for forwarding said requests on to the appropriate court with jurisdiction over the witness. Whereas common law countries (e.g., the United States, the United Kingdom, India, Canada, and Australia) have also created mechanisms that allow a party to file an application for an evidence request’s execution directly with the appropriate court (bypassing the Central Authority and saving time), civil law countries (e.g. the countries of Western Europe and Russia) mandate that all evidence requests be routed through the Central Authority.

In the case of Russia, even today, there is no address for their Central Authority.[5] Said another way, there is no way to transmit an evidence request to the appropriate court in Russia. Having signed on to the Hague Evidence Convention, Russia presumably would not accept evidence requests transmitted as a Letter Rogatory. In short, it is not possible to depose someone in Russia.

2. Although the court did not mention Societe Nationale Industrielle Aerospatiale v. US Dist. Court for S. Dist. of Iowa,[6] it’s discussion of factors would appear to indicate that it was aware of this case. The Hague Evidence Convention, absent extraordinary circumstances (like the deponent is a US citizen or a US court can assert jurisdiction over an overseas witness),[7] is the mechanism for taking evidence from overseas third-party witnesses.

In this case, because the deponent is a party to the litigation, the court can take evidence from the deponent itself or use the Hague Evidence Convention (if it were allowed in Russia). The factors for making this decision are discussed elsewhere on this website.

The post Taking a Deposition in Russia: Barriers to Discovery appeared first on Legal Language Services.

LLS recently received a rejection notice from the Chinese Central Authority for service on a Chinese manufacturer.

Below, we tease out the significance of this notice and what it reveals about the practice of international law, especially in the Peoples Republic of China.

A Unique Circumstance

The first thing of note about this notice of rejection is how long it took the Chinese Central Authority to render its decision. Of late, the Chinese Central Authority — if it intends to reject a service — will inform LLS within two to three months. In this instance the notice was significantly delayed.

Moreover, the rejection was predicated on Article 13 of the Hague Service Convention, which in itself was unusual.

Last, but not least, the notice itself demonstrates that the Chinese Central Authority read every word of the request for service and deliberated carefully in drafting its reply.

The obvious question that occurs to us here at LLS is why this particular case was outside the norm.

An Overview of the Case

Because this case is ongoing, we’ll provide only generic facts.

The Plaintiff in this case is an “agricultural” company that is the successor to a company whose holdings in Cuba were confiscated by the Castro government in 1959.

With the newly enacted private right of action to the Helms-Burton Act, the Plaintiff sought to recover its losses from the Cuban government.

Also named in the complaint was a Chinese manufacturer who provided technology for processing the agricultural product at issue.

The only other legally relevant fact in this case is that the Chinese manufacturer’s services were secured by a Purchase Money note from a Chinese bank.

Plaintiff’s Request for Service Rejected by the Chinese Central Authority

The Plaintiff in this case complied with the Hague Service Convention’s rules and transmitted the pleadings along with the Hague request forms (in English and Chinese) to the Chinese Central Authority. After six months the Chinese Central Authority rejected service based on Article 13.

As previously stated, this was an exceptionally long time for the Chinese Central Authority to take to reject a request for service.

Article 13 of the Hague Service Convention, in its entirety, states:

Where a request for service complies with the terms of the present Convention, the State addressed may refuse to comply therewith only if it deems that compliance would infringe its sovereignty or security.

It may not refuse to comply solely on the ground that, under its internal law, it claims exclusive jurisdiction over the subject-matter of the action or that its internal law would not permit the action upon which the application is based.

The Central Authority shall, in case of refusal, promptly inform the applicant and state the reasons for the refusal.

The complaint reads as a straightforward commercial transaction – one that should be covered by the Hague Service Convention. Accordingly, at first glance it is hard to see where China has a “sovereignty or security” issue at stake in this case.

What’s the Plaintiff’s Next Step?

One possibility would be to appeal the Chinese Central Authority’s decision to the appropriate Peoples’ Court. But such an action is not likely to go very far.

Due to the unique circumstances of this rejection notice (see above), we can infer that the Chinese Central Authority had some behind the scenes discussion with either the Chinese government or judiciary.

Either way, it seems unlikely that a People’s Court will overturn the rejection notice.

Alternatively, the Plaintiff could address the Article 13 rejection notice in the forum court. But, based on the only published case making a decision regarding Article 13, this is also unlikely to bear fruit.

In Zhang v. Baidu. com Inc.,[1] a case with more obvious sovereignty and security issues for China, the Court basically accepted the rejection at face value holding that because the defendant was not properly served, the court lacked jurisdiction and would not issue an order for service by alternative means.

Indeed, the  Zhang court stated:

it is not clear whether a court may authorize an alternative means of service pursuant to Rule 4(f)(3) where, as in this case, the receiving nation has declined to effect service pursuant to Article 13 of the Hague Convention. Compare Gurung, 279 F.R.D. at 218 (stating that if a country refused to complete service pursuant to Article 13, “such a refusal would preclude service of the complaint as contrary to the terms of the Convention and therefore impermissible under Rule 4(f)(3)”), and In re S. African Apartheid Litig., 643 F.Supp.2d 423, 437-38 (S.D.N.Y.2009) (noting, in authorizing service pursuant to Rule 4(f)(3), that the receiving country had not invoked Article 13), with Devi v. Rajapaska, No. 11 Civ. 6634(NRB), 2012 WL 309605, at *1 (S.D.N.Y. Jan. 31, 2012) (citing Manoharan v. Rajapaksa, No. 11-235(CKK) (D.D.C.), as a case in which the Court had authorized an alternative means of service despite the invocation of Article 13), and Bleier v. Bundesrepublik Deutschland, No. 08 C 6254, 2011 WL 4626164, at *6 (N.D. Ill. Sept. 30, 2011) (noting that the Court had earlier authorized alternative service pursuant to Rule 4(f)(3) notwithstanding the receiving country’s invocation of Article 13).

Our recommended next step in this case — if the matter warrants the time and money — would be to challenge the Chinese Central Authority’s rejection asserting that Zhang, which concerns “pro-democracy political speech,” is a fundamentally different case from the case at hand.

What possible sovereign concerns could China have in a commercial (and non-weapons) transaction that took place halfway around the world?

Political Implications and Future Problems

If the case at hand is about China’s food supply, then allowing a Chinese manufacturer Article 13 protection just because it’s involved with the Chinese food supply would indicate a dangerous expansion of the phrase “sovereignty or security.”

If this theory has merit, LLS might recommend requesting the forum court to authorize service of process for the limited purpose of determining jurisdiction: The Defendant could provide the Court with some indication of how its activities in Cuba impact China’s sovereignty or security.

One might speculate that the manufacturer is affiliated with a powerful political institution such as the PLA (People’s Liberation Army), which is know to have interests in a number of industries.

That said, experience tells us that the Chinese Defendants would ultimately ignore such serve.

An interesting — though fraught — example of politics intruding into an area that should be settled by extant rules of law.

How LLS Can Help

If you require assistance serving process in China, (or any other country), contact the professionals at LLS today. With more than 35 years of experience, we are the US’s premier source of international litigation support. What’s more, we also offer professional translation services for any documents which require translation before service.

Call us today at 1-800-755-5775 or simply fill out our free quote form.

The post Article 13 & the Influence of Politics in the Practice of International Law appeared first on Legal Language Services.

International service of process and the taking of evidence overseas require specialized expertise such as that garnered by Legal Language Services during the last thirty five plus years of doing business. It follows that, in the absence of such expertise, bad things can happen as demonstrated in the case of Parsons v. Shenzen Fest Tech Co.[1]

The plaintiff would have likely had a better outcome if LLS had provided assistance with the service of process. Indeed, the professionals at LLS have actual experience not only with the issues in the case, but also with serving the specific defendant referenced.

A Brief Overview of Parsons v. Shenzen Fest Tech Co.

Briefly, in Parsons, the plaintiff attempted to serve a Chinese manufactory in a products liability case. The plaintiff hired a third party vendor to effect service during a period when the Chinese Central Authority was operating at a markedly slower pace than usual. (It has since improved its functionality.)

After the Chinese Central Authority had the request for service for more than a year, the plaintiff contemplated filing for an Article 15 default judgment, but never actually filed such a motion.[2]

Now, three years after the original filing, the plaintiff in Parsons has filed for service by other means, more specifically by email.

Determining Whether Email Service in China is Proper

The trial court observed that when it comes to service by email, the Hague Service Convention is silent. Not surprisingly, courts are accordingly divided on whether email service is proper in China given China’s opposition to postal service.

The court also discussed the important email case of Luxottica Group S.p.A. v. Partnerships and Unincorporated Associations Identified on Schedule “A.”[3]

The court distinguished Parsons from Luxottica Group S.p.A. because the latter contemplated email service after it was clear that Hague service to China had failed.[4]

However, the court ruled that email service was not appropriate in the case at hand because:

There does not appear to be any specific criteria that must be satisfied in order for electronic service on a foreign defendant to satisfy due process. However, courts that have permitted electronic service have found it complied with due process when, for example: (i) the plaintiff provided the e-mail address, account, and/or website through which the plaintiff intends to contact the defendant; (ii) the plaintiff provided facts indicating the defendant to be served would likely receive the summons and complaint; (iii) the e-mail address used was for the defendant’s retained attorney; (iv) the summons and complaint were translated into the language spoken in the nation in which service was effectuated; and/or (v) multiple valid forms of service were attempted.

Issue I: Article 15 Default Judgment

The opinion in Parsons does not disclose why the plaintiff elected not to file for an Article 15 default judgment in a timely fashion. Had the plaintiff done so, the litigation might have ended by now.

In the past, LLS both successfully served the Parsons’ defendant and provided an affidavit of due diligence that was successfully used to obtain an Article 15 default judgment.

Issue II: Mullane v. Central Hanover Bank & Trust Co.

Anyone remotely familiar with the case law regarding service of process knows about Mullane.[5]

Accordingly, anyone familiar with the case law regarding service of process would immediately recognize that that long quote from the court’s opinion (reproduced above) is tantamount to a seventy year update of the “Mullane factors” for determining proper service.

Thus it seems evident that in Parsons the plaintiff was not aware of the Mullane opinion. The question is why?

If the plaintiff did not solicit input from the third party vendor who provided the initial assistance with service upon the Chinese manufacturer, that was a mistake. Indeed, the vendor should have taken the initiative to consult with the attorney (as is done by LLS) and discuss strategies such as alternative service abroad.

Alternatively, if the attorney did take the initiative to discuss strategies with the vendor, then it would appear that the attorney was ill advised.

The Bottom Line

When you select a third party vendor to assist with international service of process or taking evidence overseas, remember to do your due diligence and select a vendor with the experience to guide you through the process and exponentially increase your odds of a favorable outcome.

If you require assistance serving process or taking evidence internationally, trust the professionals at LLS. Contact Legal Language today.

Call us at 1-800-755-5775 or simply fill out our free quote form.

The post Parsons v. Shenzen Fest Tech Co: A Lesson in Vendor Due Diligence appeared first on Legal Language Services.

If a defendant is located in a country that is a signatory to the Hague Service Convention, service of process upon the defendant must be pursuant to the Convention.[1] However, there are three common situations where the convention is not applicable:

1. When an address for service cannot be found after the exercise of due diligence;
2. When the documents to be served do not have to be transmitted overseas; and
3. When a waiver of service of process is obtained.[2]

In CSPC Dophen Corporation v. Zhixiang Hu,[3] the district court examined aspects of the latter two situations.

Although this case is factually complex,[4] herein we focus on the issue of waiver and alternative service. At the end, we will also discuss why the use of the word “alternative” in this case is a bit of a misnomer.

Hu Seeks a Waiver of Service

In this action, Dr. Zhixiang Hu initially sought a waiver of service of process from CSPC’s US counsel. Local counsel stated that they were not authorized to accept service of process. This is a very common defense strategy when defendants are located abroad.

For attorneys who are entrenched in only domestic litigation, such a defense strategy might seem strange. In federal court defendants are — absent a good cause — required to waive service of process.[5]

However, this rule does not apply to international service of process.[6]

Hu Seeks Alternative Service

Having failed to secure waivers, Dr. Hu needed to serve several “counter-defendants” who resided in China.

According to the second amended counterclaim, Yingui Li is “a director of board of CSPC-Dophen and officer of CSPC Limited.” Jinxu Wang is “the Chief Executive Officer of CSPC-Dophen.” Jumin Sun “is the Chief Financial Officer of CSPC Limited[.]”And Dongchen Cai “is the Chairman of CSPC-Dophen, CSPC Holding Limited… and CSPC Limited.” The motion seeks service “on counter defendants’ US Attorney” and is brought pursuant to Rule 4(f) of the Federal Rules of Civil Procedure.[7]

For undisclosed reasons, Dr. Hu did not want to serve the Chinese defendants pursuant to the Hague Service Convention. Instead, Dr. Hu sought to effect service “on counter defendants’ US attorney, counsel for the plaintiff CSPC Dophen.”

Hu’s Request for Alternative Service is Granted

Rule 4(f) of the Federal Rules of Civil Procedure allows a plaintiff to serve an individual located outside of the United States “by other means not prohibited by international agreement.” Importantly, Rule 4(f) “imposes no limitation on the court’s authority to authorize alternative means of service.”

In this regard, alternative service pursuant to Rule 4(f)(3) “is neither a `last resort’ nor `extraordinary relief,'” but “is merely one means among several which enables service of process on an international defendant.”

That said, the district court then stated:

Regardless of whether counsel is authorized to accept service on behalf of the counter-defendants, in this action counsel for plaintiff has also repeatedly appeared on behalf of the counter-defendants. In this regard, plaintiff’s counsel has also served as the foreign counter-defendants’ United States-based counsel. “Service upon a foreign defendant’s United States-based counsel is a common form of service ordered under Rule 4(f)(3).” Accordingly, for the reasons stated above, Dr. Hu’s motion for alternative service of process will be granted.[8]

What the Court Failed to Acknowledge Regarding Service

What the court did not acknowledge in this case was that by “short-circuiting” service from abroad to domestic, service no longer needed to be transmitted overseas.

For this reason, the Hague Service Convention was no longer applicable and hence the court was not ordering alternative service at all, but rather ordering a specific form of domestic service.

It’s also important to note that while this type of service will satisfy US rules, it will more than likely not be enforceable in a foreign country.

How LLS Can Help

At LLS, we have years of experience navigating the intricacies of foreign law. We can assist you not only with the translation of documents to be served, but also with service itself.

Contact LLS today to learn more about how we can help you serve process China as well as 90 other countries.

Call 1-800-755-5775  or simply fill out our online inquiry form.

The post Hague Service Convention: The Issue of Waiver & Alternative Service appeared first on Legal Language Services.

Interpreting is available in multiple formats and styles.

For example, interpreters can be situated either on-site or in remote locations. Similarly, interpreters can be scheduled long in advance or called upon for immediate use. Then too, interpreters can be specialists who are familiar with a technical subject through access to preparatory materials or generalists who begin an interpretation “cold.”

Regardless of the circumstance or urgency, however, interpreters perform their function in either a consecutive or simultaneous style.

To help you figure out which style interpreting best suits your needs, we’ve outlined the key differences between both consecutive and simultaneous interpreting as well as when each is best utilized.

Consecutive Interpreting

In consecutive interpreting each participant takes turns speaking.

Here’s how it works: One participant (lets call this person speaker one) expresses a thought. The interpreter waits until speaker one is finished before relaying the message to the second participant (speaker two) in a language or dialect speaker two understands.

This sequence is then reversed with speaker two’s response completed and then interpreted for speaker one.

When to Use Consecutive Interpreting

Consecutive interpreting works best for small groups or one-on-one conversations where the added time required for this form of interpreting is not critical.

Examples where consecutive interpreting is commonly used include:

• Interviews
• HR meetings
• Parent-teacher conferences
• Hearings
• Depositions
• Attorney-client meetings
• Medical consultations

The Pros & Cons of Consecutive Interpreting

Consecutive interpreting has the advantage of being more like a conversation, with both parties able to speak uninterrupted.

However, it usually takes about twice the amount of time since the interpreter must wait until each party finishes speaking before beginning the interpretation – in essence doubling the conversation time.

Simultaneous Interpreting

Simultaneous interpreting — sometimes called conference interpreting — approximates real-time delivery of information.

Here’s how it works: The interpretation is transmitted to listeners in languages they understand while the original speech is still in progress.

When to Use Simultaneous Interpreting

Simultaneous interpreting is primarily used in formal or large group settings where one person is speaking in front of an audience. Simultaneous interpreting can also be used in interactive formats including a court room or during a Q&A session at a conference.

Examples where simultaneous interpreting is commonly used include:

• Diplomatic conferences
• Plenary sessions
• Working groups
• International conventions
• Business or board meetings
• Training sessions
• Courtrooms
• Lectures and presentations

Pros & Cons of Simultaneous Interpreting

Simultaneous interpreting has the advantage of reaching large numbers of participants quickly. Additionally, you can have more than one interpreter working at a time reaching participants who speak a range of languages.

However, simultaneous interpreting frequently requires the use of audiovisual equipment such as wireless receivers, headsets, microphones, and soundproof interpreting booths.

Additionally, as simultaneous interpreters require breaks to prevent fatigue, having a team of two or more simultaneous interpreters is advisable which can be an added expense.

Consecutive Interpreting vs Simultaneous Interpreting at a Glance

Consecutive interpreting has the advantage of requiring less preparation and, by extension, less technology than simultaneous interpreting.

As a result, consecutive interpreting is generally less expensive than simultaneous interpreting and often requires less advance scheduling.

On the other hand, consecutive interpreting usually requires more than twice the amount of time to conduct a session than simultaneous interpreting.

As a result of these time constraints, simultaneous interpreting has the advantage when time is of the essence and/or when the participants wish to keep an interaction moving forward without interruption.

Similarly, simultaneous interpreting is better adapted to a situation where there are three or more languages spoken among participants.

How LLS Can Help

Whether you choose consecutive interpreting vs simultaneous interpreting, you can find the right interpreting format that fits all your needs by contacting the professionals at Legal Language.

Our experienced interpreters provide services in 200+ languages and dialects. We also offer interpreting equipment rentals and the audio engineers to back it up.

Contact LLS today to learn more about how we can help you.

Call 1-800-755-5775  or simply fill out Interpreting Services Request Form.

The post Consecutive Interpreting vs. Simultaneous Interpreting: How They Work & When to Use Them appeared first on Legal Language Services.

The post How International Subrogation Can Mitigate an Insurer’s Loss appeared first on Legal Language Services.

American Sign Language (ASL) interpreters play an important and crucial role in the lives of deaf and hard of hearing individuals. And their status has become even more essential during the current global health crisis.

In this post, we look at the role ASL interpreters are playing in the pandemic as well as what steps can be taken to improve their ability to facilitate communication with deaf and hard of hearing individuals.

The Role of ASL Interpreting During COVID-19

ASL Interpreting During News Briefings

One of the fundamental ways in which ASL interpreters are assisting deaf and hard of hearing individuals during the COVID-19 pandemic is by providing interpreting during news briefings.

In fact, a September 2020 ruling made the presence of an ASL interpreter mandatory at all White House public briefings about the virus. Prior to this ruling, deaf and hard of hearing individuals had to rely on closed captioning and transcripts, which are often rife with errors that can cause confusion — if they are available at all.

Now, ASL interpreters are able to keep deaf and hard of hearing individuals abreast of the latest virus developments from how to properly protect yourself from infection to what to do if you have tested positive.

The presence of ASL interpreters on live TV has had the added benefit of bringing awareness to the greater population. In many instances, hearing individuals are seeing ASL interpreters in action for the first time.

Not only have these news briefings put a spotlight on the role ASL interpreters play in the lives of the more than one million Americans affected by hearing loss, but they also help normalize having an interpreter on camera.

ASL Interpreting in Medical Settings

ASL interpreters also serve a key role during medical appointments.

It is often said that good communication between healthcare providers and their patients is the cornerstone of good healthcare. But how can good communication occur where doctors have limited time to spend with their patients? Or when patients find it difficult to comprehend the medical jargon that is so easily, and often so quickly, spoken by medical staff? Then add to this a patient who is deaf or hard of hearing.

That’s where medically trained ASL interpreters come in. ASL interpreters work with medical professionals to effectively communicate diagnosis and treatment information. At the same time, they are able to convey to the doctor any questions or concerns the patient may have.

When patients are able to better communicate with their care providers, they feel more at ease, which results in more trust. Once a patient feels more secure, they tend to open up and provide additional information about themselves and their ailment. This, in turn, can lead to a better diagnosis, an improved healthcare experience, and a better outcome for the patient.

Without the trust fostered by good communication made possible for deaf and hard of hearing individuals through the use of trained medical ASL interpreters, good healthcare is difficult, if not impossible to achieve.

How ASL Interpreters are Adapting to the Pandemic

Although American Sign Language utilizes hand gestures, facial expressions and movements around the mouth — such as grimacing, puffing of cheeks, and pursing of lips — are just as important in conveying meaning, especially when it comes to modifying certain verbs and nouns.

Additionally, many deaf and hard of hearing individuals who communicate via American Sign Language also rely on lip-reading as a way to receive information from interpreters.

Accordingly, masks greatly obstruct clear communication between ASL interpreters and deaf and hard of hearing individuals.

As a workaround to this problem, many interpreters have taken to wearing face masks with a clear window and/or plastic face shields.

This solution works well for interpreters who must be present in the room, such as those who work during the White House news briefings. However, there is another solution that offers even clearer (and safer) communication between hearing and hard of hearing individuals: video remote interpreting (VRI).

The Benefits of Video Remote Interpreting for ASL

American Sign Language interpreting has suffered in the past from a lack of good alternatives to on-site interpreting. However, advancements in video remote interpreting have alleviated many of these challenges by providing a fast and safe alternative to on-site interpreting.

Rather than needing to secure expensive, specialized equipment, VRI platforms can easily be accessed through any standard web browser on a laptop, desktop, smart phone, tablet, or other mobile device. As long as you have a camera, a microphone, and internet access, you can connect to a professional interpreter in minutes.

In the age of COVID-19, VRI has become even more applicable for deaf and hard of hearing individuals. With the use of VRI platforms, ASL interpreters are able to assist deaf and hard of hearing individuals participating in virtual meetings, attending remote college lectures, and conversing with telehealth providers, all from the safety of their own homes and offices.

Instead of risking possible exposure to the COVID-19 virus, VRI keeps all parties involved at a healthy distance while still maintaining accurate channels of communication.

Drawbacks of VRI Interpreting for ASL

Despite its many advantages, there are a few limitations when it comes to VRI for ASL interpreting.

Some ASL users feel that an in-person interpreter allows for better processing of physical and/or facial cues. The reason for this is because VRI is two-dimensional, whereas ASL is a three-dimensional language.

Others, especially those in the medical field, worry that the patient is unable to fully watch the interpreter on-screen during medical exams. This inability to properly focus on what the ASL interpreter is signing could potentially lead to compromised communication.

For these reasons, VRI is often looked to only in situations where an in-person interpreter is not available or — as is the case in our current COVID-19 affected world — when there are health or safety concerns.

How LLS Can Help

Whether you’re an individual who communicates using sign language or are responsible for providing an ASL interpreter for an upcoming event or appointment, LLS can help. Our VRI platform offers a secure, easy, on-demand way to communicate in a whole new — and more effective— way.

Contact LLS today to learn more about how we can assist you.

Sources
https://acadeafic.org/2020/06/10/interpreting/
https://news.northeastern.edu/2020/05/28/new-challenges-and-opportunities-for-american-sign-language-users-during-covid-19/
https://www.nad.org/2020/09/23/historic-win-white-house-ordered-to-provide-sign-language-interpreters-for-covid-19-briefings/
https://www.amphl.org/blog/2020/3/25/f2v3t9qoqd4it8o1x40bwh8swr82v8
https://www.stltoday.com/lifestyles/signs-of-the-times-deaf-community-and-interpreters-adapt-to-communicate-during-pandemic/article_2bd2c3f7-b912-5070-9dd4-9c5902603c50.html
https://www.theguardian.com/science/2021/jan/07/deaf-asl-interpreters-pandemic

The post ASL Interpreting, VRI, & COVID-19 appeared first on Legal Language Services.

Koch Minerals SÀRL v. Bolivarian Republic of Venezuela,[1] is a complex case. It raises numerous issues and questions, but today we’re focusing on the failure of the Venezuelan Central Authority to issue a Hague Certificate of Service.

We submit that this failure arose in part from the fact that service of process occurred while Venezuela was undergoing a regime change.[2]

Koch v. Venezuela clearly demonstrates how human and institutional idiosyncrasies inherent in all organizations — including the Venezuelan Central Authority — are exacerbated by external stresses.

An Overview of Koch Minerals v Venezuela

In this action, Koch Minerals SARL sought to enforce an arbitration judgment against the government of Venezuela. Pursuant to the Foreign Sovereign Immunities Act (“FSIA”),[3] the Plaintiff properly served Venezuela’s Ministry of People’s Power of Foreign Affairs Office of Consular Affairs (Venezuelan Central Authority).[4]

Ultimately, Venezuela made a belated appearance and challenged said service. In a challenge to service motion, the Plaintiff bears the burden of proving service was proper. In this case, after more than 2 years, the Ministry of Foreign Affairs (i.e. the Venezuelan Central Authority) had not issued a Hague Certificate of Service either confirming service had been effected or asserting that service was improper.

Reviewing the Structure & Function of the Hague Convention

In considering the adequacy of service, the court reviewed the structure and function of the Hague Convention:

The Hague Service Convention requires signatories to “designate a Central Authority” to receive and process service requests. Parties seeking to serve process within a signatory state are to send requests for service—including USM-94 Forms and translated copies of the complaint and summons—to the receiving state’s Central Authority. The Central Authority must then “serve the document or… arrange to have it served” on the party identified in the request for service.

Venezuela has designated the Ministry of Foreign Affairs as its Central Authority. The Central Authority must respond to a request for service by completing a certificate that “state[s] that the document has been served and… include[s] the method, the place and the date of service and the person to whom the document was delivered.” Hague Service Convention, art 6. “If the document has not been served, the certificate shall set out the reasons which have prevented service.” Id.

Service is deemed effective under § 1608(a)(2) “as of the date of receipt indicated in the certification, signed and returned postal receipt, or other proof of service applicable to the method of service employed.” A signed postal receipt is effective as of “the date shown on a document signed by the person who received it from the carrier… [because] the individuals who signed for the service packet could be trusted to ensure that [it] is handled properly and expeditiously.”[5] [emphasis and paragraph breaks added for clarity]

Court Rules Service was Proper

At this point, the emphasized statements above point to where the court’s opinion is headed.

The Plaintiff had the FedEx airbill demonstrating that request for service had been effected on the Ministry of Foreign Affairs (read the Venezuelan government).

Venezuela’s (belated) appearance in the litigation is clear evidence that it had been served.

Finally, the issuance of a Hague Certificate is a ministerial act.[6] If service occurred, the Certificate is to be issued.

In short, the court deemed that Venezuela had been served and the court had jurisdiction over the Defendant.[7]

The Takeaway

The corollary here for foreign governments is that when a foreign Central Authority is served with an FSIA action, if it wishes to avoid being deemed served, the Central Authority must issue a Hague Certificate of Non-Service and state the reason why service failed.

Because the Venezuelan Central Authority failed to issue any form of Hague Certificate — either confirming service or declaring service improper — the court ultimately ruled in the Plaintiff’s favor.

How LLS Can Help

With nearly four decades of experience effecting service in more than 90 countries, LLS is a leading provider of international service of process and related litigation support services including certified translation.

If you have had problems in obtaining proof of service in the form of a Hague Certificate please let us know or share that experience with our online community below.

Contact LLS today to learn more about how we can help you.

Call 1-800-755-5775  or simply fill out our online inquiry form.

The post Koch Minerals v. Venezuela: A Central Authority Operating Under Stress appeared first on Legal Language Services.

In a previous blog post, we discussed the litigation saga concerning the attempts of the heirs to the Guelph Treasure — which was confiscated by the Nazis during WWII — to recover their inheritance.

Briefly, after the heirs failed to recover their expropriated property in Germany, they attempted to recover said property in the United States pursuant to the Foreign Sovereign Immunities Act (FSIA).[1]

Both the trial court and the DC appellate court ruled that there was no nexus between the art at issue and the US. Accordingly, both dismissed the action against the German government.[2]

As we previously observed, due to SCOTUS’s refusal to hear the appeal of de Csepel v. Republic of Hungary,[3] coupled with the difficulty in obtaining quality evidence at this late date, it appeared that we were at the end of an era for Nazi-looted art cases.

Indeed, the February 3, 2021 SCOTUS opinion in Federal Republic of Germany v. Philipp all but closes the book on such litigation in the US.

Violations of International Law vs. the Domestic Takings Rule

Under FSIA, “foreign nations are presumptively immune from the jurisdiction of United States courts.” The statute, however, sets forth several specific exceptions.

One such exception provides that a sovereign does not enjoy immunity in any case “in which rights in property taken in violation of international law are in issue.” 28 U. S. C. §1605(a)(3).”

But for CJ Roberts, speaking for an unanimous court, the key question is “whether a country’s alleged taking of property from its own nationals falls within this exception.”

Later in the opinion, CJ Roberts makes the distinction between violations of international law and the “domestic takings rule:”

This “domestic takings rule” assumes that what a country does to property belonging to its own citizens within its own borders is not the subject of international law.… Known at the founding as the “law of nations,” what we now refer to as international law customarily concerns relations among sovereign states, not relations between states and individuals. The domestic takings rule invoked by Germany derives from this premise.

Historically, a sovereign’s taking of a foreigner’s property, like any injury of a foreign national, implicated the international legal system because it “constituted an injury to the state of the alien’s nationality.” Such mistreatment was an affront to the sovereign, and “therefore the alien’s state alone, and not the individual, could invoke the remedies of international law.” A domestic taking by contrast did not interfere with relations among states.[4]

[The opinion also discusses how this rule is followed not only by the courts but is the practice of diplomacy.]

By this point in the opinion it is already clear that the heir to the looted gold would receive nothing from SCOTUS.

CJ Roberts hammered down the holding of the court by stating that:

We need not decide whether the sale of the consortium’s property was an act of genocide, because the expropriation exception is best read as referencing the international law of expropriation rather than of human rights.… A “taking of property” could be “wrongful under international law” only where a state deprived “an alien” of property.[5]

Acts Against Humans vs. Acts Against Property

Later in the opinion, CJ Roberts circled back to the issue of genocide to distinguish acts against humans and acts against property:

The domestic takings rule endured even as international law increasingly came to be seen as constraining how states interacted not just with other states but also with individuals, including their own citizens. The United Nations Universal Declaration of Human Rights and Convention on the Prevention of Genocide became part of a growing body of human rights law that made “how a state treats individual human beings… a matter of international concern.” These human rights documents were silent, however, on the subject of property rights.[6]

Near the end of the opinion, CJ Roberts signaled his willingness to walk back the reach of US laws that have the potential for extraterritorial reach:

We have recognized that “‘United States law governs domestically but does not rule the world.’” Kiobel v. Royal Dutch Petroleum Co., 569 U. S. 108, 115 (2013) (quoting Microsoft Corp. v. AT&T Corp., 550 U. S. 437, 454 (2007)). We interpret the FSIA as we do other statutes affecting inter-national relations: to avoid, where possible, “producing friction in our relations with [other] nations and leading some to reciprocate by granting their courts permission to embroil the United States in expensive and difficult litigation.” Helmerich, 581 U. S., at ___ (slip op., at 12) (internal quotation marks omitted); RJR Nabisco, Inc. v. European Community, 579 U. S. ___, ___–___ (2016) (slip op., at 7–8) (interpreting civil Racketeer Influenced and Corrupt Organizations Act “to avoid the international discord that can result when U. S. law is applied to conduct in foreign countries”); Kiobel, 569 U. S., at 116 (interpreting Alien Tort Statute so as not to “adopt an interpretation of US law that carries foreign policy consequences not clearly in-tended by the political branches”).

Court Dismisses Heir’s Other Arguments

CJ Roberts took the time to discuss why the heirs’ other arguments concerning the Guelph treasure needed to be dismissed.

Perhaps the most interesting of these arguments concerned the 2016 Foreign Cultural Exchange Jurisdictional Immunity Clarification Act:

First, the heirs rely on the 2016 Foreign Cultural Ex-change Jurisdictional Immunity Clarification Act. The Act amends the FSIA to explain that participation in specified “art exhibition activities” does not qualify as “commercial activity” within the meaning of the expropriation exception. 28 U. S. C. §1605(h). This clarification responded to decisions of federal courts holding to the contrary, see, e.g., Malewicz v. Amsterdam, 362 F. Supp. 2d 298, 313–315 (DC 2005), and enables foreign states to loan art to American museums without fear that the work’s presence in the United States will subject them to litigation here. The provision, however, does not apply to claims brought against Germany arising out of the period from January 1933 through May 1945. §§1605(h)(2), (3). According to the heirs, this clarification of the expropriation exception shows that Congress anticipated Nazi-era claims could be adjudicated by way of that exception.

The Final Ruling

In summary, CJ Roberts stated:

Based on this historical and legal background, courts arrived at a “consensus” that the expropriation exception’s “reference to ‘violation of international law’ does not cover expropriations of property belonging to a country’s own nationals.”

How LLS Can Help

When conducting international litigation, LLS is your one stop shop for all support services. We consult on a wide range of international issues including service of process, arranging depositions, and subrogation.

Contact LLS today to learn more about how we can assist you.

Call 1-800-755-5775 or simply fill out our free quote form.

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