IJA Brigade member Peter Bert returns with a post on an interesting new German decision on the translation and proof of service provisions of the Hague Service Convention.

Issues of international service are often rather mundane, not to say boring, technicalities. Nevertheless, in international litigation, service aboard is the eye of the needle, through which every dispute must go. A recent judgment by the Federal Supreme Court (Bundesgerichtshof) is therefore highly welcome, as it addresses technicalities such as the interpretation of a certificate of service from the Chinese Central Authority under the Hague Service Convention, and the extent to which documents that support a statement of claim (Klageschrift) must be translated into the Chinese language, in order for service in China to be effective.

The underlying facts were as follows: A German party was suing two Chinese entities under a cooperation agreement in the Stuttgart courts. The statement of claim was translated into Chinese. However, the German party expressly requested that the attachments to the statements of claim were not to be translated. Together with the statement of claim, an order of the German court duly translated into Chinese was served. The order set a four-week deadline for the Chinese defendants to appoint either a German lawyer (Prozessbevollmächtigter) or a service agent domiciled in Germany (inländischer Zustellungsbevollmächtigter). The order made it clear that if they failed to do this, any subsequent service could be effected under German procedural law by post.

Both the statement of claim and the court order were served through the Chinese Central Authority. It is interesting to note how long it took: the papers were sent out by the German court, apparently sometime in March 2009. The Chinese Central Authority effected service upon the Chinese defendants on June 17, 2009, and issued the corresponding certificate of service on September 1, 2009. Not that bad compared to other jurisdictions, I would say.

As the Chinese defendants did not act upon receipt of the court order, on November 9, 2009, a default judgment (Versäumnisurteil) was issued, and sent by post, to the Chinese parties on November 10, 2009. Only when the claimant commenced enforcement of the default judgment against assets in Germany did the Chinese parties instruct lawyers in Germany, who filed a complaint (Einspruch) against the default judgment. This complaint was outside the two week time period for this remedy, and the issue before the Federal Supreme Court was whether the First Stuttgart District Court (Landgericht) and the Stuttgart Court of Appeals (Oberlandesgericht) were right in not granting the application to reinstate the Chinese defendants (Wiedereinsetzung in den vorherigen Stand). In short, the Federal Supreme Court confirmed the earlier judgments and held that the application for reinstatement had been rightly dismissed, as both the statement of claim and the default judgment had been validly served in China, and triggered the respective deadlines. In that context, the Court looked at the content of the certificate of service, and at the issue of translation of the attachments.

With respect to the certificate of service issued by the Chinese Central Authority, the defendants had argued that the certificate did not identify the individual or individuals to whom the documents were handed over. The form simply stated that service was effected by way of transmission to the “personal service” of the defendants. In that respect, the Federal Supreme Court ruled that there was no requirement either under German procedural law, or under the Hague Service Convention, to specify the names of individuals in the Certificate of Service. Both the requirements of Section 418 of the German Code of Civil Procedure (ZPO) and of Article 6 of the Hague Service Convention had been met, notwithstanding the fact that the model of the form annexed to the Hague Service Convention (see Art. 7) does provide for the section “Identity and description of person” to whom the request has been delivered.

The Court then turned to the issue of translations of exhibits. In German litigation, the statement of claim must fully set out the legal and factual basis of the claim, and in particular, the claimant must attach copies of documents on which the claimant intents to rely. In a fairly detailed and highly technical discussion of German provisions of civil procedure on the one hand, and the constitutional standard of the right to be heard (rechtliches Gehör) on the other hand, the Court concludes that there is no legal requirement to attach translations of the exhibits, provided that the statement of claim in itself, and hence its translation, put the defendant in a position to understand what the dispute is about and to respond adequately to it.¹In this context, the decision shows that civil law judges are just as well versed in the art of distinguishing previous precedent as their common-law brethren are. In a 2006 judgment, a different senate of the Federal Supreme Court had referred a matter to the European Court of Justice, having taken the position that the failure to provide translations of exhibits had rendered the service ineffective. In that case, an English defendant had refused to accept service of a German statement of claim for lack of translation of the exhibits, based on the European Service Regulation. In the present China case, the Federal Supreme Court was of the opinion that what appeared to be a more restrictive approach at first sight was due to the provisions of Article 8 of the European Service Convention, and therefore had no bearing on the present case.

For German claimants who need to effect service under the Hague Service Convention, the judgment is good news. First, the Federal Supreme Court takes a robust pro-validity approach to the interpretation of service certificates from foreign central authorities. Secondly, the time-consuming and often expensive process of having exhibits translated can now be avoided, provided that the statement of claim itself puts the foreign party in a position to adequately defend itself. In that context, the court appears to attach some weight to the fact that the annexes were known to the Chinese defendants, and already in their possession, either because they formed part of the original contract documentation, or because they were exchanged in pre-litigation correspondence—as often will be he case in commercial litigation. To foreign defendants, the Court issues a safety warning: Once a German court document is received by the foreign party, then the foreign party is subject to the same duties of care as a German party. It must without undue delay take appropriate steps to understand the content of the court documents and to obtain advice on the formal requirements for any legal steps that need to be taken.

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  In this context, the decision shows that civil law judges are just as well versed in the art of distinguishing previous precedent as their common-law brethren are. In a 2006 judgment, a different senate of the Federal Supreme Court had referred a matter to the European Court of Justice, having taken the position that the failure to provide translations of exhibits had rendered the service ineffective. In that case, an English defendant had refused to accept service of a German statement of claim for lack of translation of the exhibits, based on the European Service Regulation. In the present China case, the Federal Supreme Court was of the opinion that what appeared to be a more restrictive approach at first sight was due to the provisions of Article 8 of the European Service Convention, and therefore had no bearing on the present case.