Pennsylvania Superior Court nixes the Japan service of process dodge.

I missed this one back when it was published, but in Harris v. NGK North American, Inc., 19 A.3d 1053 (Pa. Super. 2011), there was the same issue I blogged about a few months back: What happens when you send service of process to Japan, under Article 10(a) of the Hague Convention, and the defendant objects that the mail service isn’t any good? Instead, they insist that the service be through Article 5 of the Convention, which sends your (translated) material to a Central Authority for serving process in Japan.

NGK North American, a Japanese company, played that game with a special twist. They sent the mail back “refused”, and then argued ineffective service of process (no valid service of process).

In April, the Pennsylvania Superior Court ruled that the serving party (Harris) could use a method such as publication in a newspaper, because NGK’s rejection of the process papers was inconsistent with Article 10(a) of the treaty!

It’s good to see that American courts are grabbing hold of these issues and instances where Japanese defendants screw around, using their little games that they’ve spun over the years. Japan agreed to 10(a), back around 1970, so that they could easily serve defendants in other countries, by mail. But they refused to accord the same treaty right to the people of treaty-partner countries, by hanging a cloud over how committed Japan was to Article 10(a). Finally, in 2003–33 years after ratification–Japan issues a “clarification” saying that service by mail is OK, but if the defendant’s rights weren’t respected, then they might not enforce the judgment.

I don’t know how that goes with a Japanese subsidiary of a U.S.-based multinational. It is silly to insist upon a language translation for a corporation that is competent in English, and, for purposes of a lawsuit, is just hiding behind corporate form as yet one more roadblock that defendants who aren’t confident about their defenses put up.

I have a low opinion of the overall Pennsylvania state system; but it’s good to see that once in a while they hit it right on the mark.

Advertisements

2 comments

  1. Malina · August 10, 2011

    But isn’t the real question whether Japan will enforce the judgment of the Pennsylvania Court? Just because the the PA Court says the service is good doesn’t necessarily mean the Japan courts will agree, no?

    • hoofin · August 10, 2011

      As I see it, the question is whether people can rely on the Hague Convention as Japan ratified it. Not just Japanese, but many other countries’ people come up with excuses to screw up what are otherwise crystal clear standards.

      For far too long, Americans have been afraid to rely on the treaty, but there is no independent reason not to. You say, “will Japan enforce the judgment?” I see that as something separate. Many times people win judgments and can’t enforce them.

      It may be that the Japanese parent in that Pennsylvania case has assets somewhere in Pennsylvania, or is a creditor to an American sub. In that case, the Pennsylvania judgment should be able to [be] enforced.

      Just my two cents–not legal advice.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s