By: Akanksha A. Panicker
Service of process abroad means that there is absolutely no way to escape the Hague Convention, even if one wished to. This is doubtful, however, as the Hague Convention essentially compiled conflicting internal laws of over 73 countries into framework legislation intended to standardize service of process regardless of where one lives.
The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents (commonly referred to as the “Hague Convention”) is an international treaty formulated in 1964 and ratified in 1967. The purpose of the Convention was to establish a streamlined service of process mechanisms and facilitate service regardless of where an individual is situated. Properly construing its provisions means understanding the United States Constitution.
The primary innovations of the Convention are [A.] the Establishment of a Central Authority or Authorities in each country as the receiving agent for service requests from other contracting countries, [B.] mandating the use of three model forms for the transmission of requests abroad, and the return of executed requests and [C.] a broad elimination of the involvement of domestic and foreign courts.
Article 1: Scope
The Hague Convention is applicable whenever “there is an occasion to transmit a judicial or extrajudicial document for service abroad.”‘ In this context, extrajudicial would mean that these documents are part of ‘purely private acts’ that mandate a judicial officer or authority as per the Convention.
Article 1 of the Hague Convention essentially makes it known that the Hague Convention is not ‘supplemental’ and works as the default means of service for any country that has ratified its provisions. Since the Convention seeks to streamline and expedite the service of documents aboard, the Convention’s objective is well-intentioned; it seeks to provide service of the documents so that the recipient has sufficient time to prepare and defend themselves. This is especially important because most transnational cases have the statute of limitations come dangerously close to rendering their case stale. Consequently, the treaty’s multifaceted approach to service of process is very welcome.
The Hague Convention seeks international judicial assistance, juxtaposing due process requirements and individual sovereignty with the expedited and efficient process to transnational litigants. In its essence, the treaty allows for flexibility in service and does not in any way affect a state’s chosen limits on the jurisdictional reach of its courts.
Article 2: The Central Authority
Under the Hague Convention, each signatory has to designate a ‘Central Authority’ to accept incoming service requests. The Hague Convention specifies the form of these requests. The Central Authority acts as a docking point between the two countries that transmits the request from one country to another after ensuring the request is in a standardized form. It allows for uniformity in the styles of the request and conveys it to the receiving country.
Upon receipt of a request from an applicant, the Central Authority arranges for service in a manner permitted within that state, which may be either by a method provided by the local law in its own domestic actions or by a particular method requested by the applicant, provided that the method is compatible with the local law. Service requests must be accompanied by the Hague Service Convention Model Form, transmitted in duplicate with a complete translation, and include the full name and address for the person or entity to be served.
If English is not one of the state’s official languages, there is a requirement to translate. It is one of the Central Authority’s duties to inform the applicant of any defects, and this includes providing a certificate of reasons for service not being effected. Without filing a certificate of service, the service cannot be considered to be complete.
[1.0] SERVICE OF PROCESS BY CENTRAL AUTHORITY
Article 3: Who can serve?
Article 3 of the Hague Convention delineates the responsible authorities who can send the Central Authority’s service request. It provides accountability while retaining flexibility in individuals authorized to serve the request. Under Article 3, the Central Authority will be sent the request only through an authority or a judicial officer. This means that only a person properly authorized under the nation of origin’s laws may forward service requests to the Central Authority of the receiving nation. However, questions as to whom the receiving country finds a properly authorized individual has been raised, where some countries refuse to acknowledge US attorneys’ capacity to have the right to raise this request.
However, only ‘private persons’ are disallowed from putting forth a service request as a broad rule. The persons and entities within the United States competent to transmit service requests abroad according to Article 3 include any court official, any attorney, or any other person or entity authorized by the court’s rules. Furthermore, it is provided that the United States Central Authority does not participate in matters of private litigation, relying on the forwarding authorities in the United States to directly send these matters to the requested states through their own autonomy.
Article 4: Who can’t be served
Rejection of a transnational request for service is a big deal. An adequate explanation must be provided for refusal, and the applicant must be given room to take corrective action for their service. A mere mistake in the service of these documents does not render them void, and the applicant is allowed to rectify the text according to the clarification they have been given.
So long as the request for service complies with the Hague Convention’s terms, the state addressed may not refuse to effect service unless it deems that compliance with the request would infringe on its sovereignty or security.
The Convention does not provide any information as to what to do when the address of the individual being served is unknown and mentions that the scope of the Convention does not cover the same. Consequently, publication as a means of valid service is still encouraged and will not attract Article 4 by its own right. Where the Convention does not apply, the federal or state law applies.
Article 5: The Soul of the Convention
Article 5 of the Hague Convention specifies how the Central Authority is required to conduct service. It specified that the Authority must serve the document itself or through an appropriate service and follow a method prescribed by its internal law to service documents in domestic actions to people within the territory. Under article 5(a), the Central Authority is allowed to employ methods used for service of documents in domestic actions and often does so because this route smoothens out the enforcement of the judgment in the country and resembles the alternative provision for service in a foreign country under Federal Rule 4(i)(1)(A). However, payment of the employed process server’s costs needs to be considered herein, although this will only be a question after service is effected.
Article 5 also provides for contingencies where the receiving country has rejected service. It may be corrected by asking the Central Authority for permission under Article 5(b)- to effectuate under the requested party’s direction. If approved, the service would be valid, but not if the statute of limitations has run out. Litigants are thus advised to make adjustments to ensure that service is done well in time.
It is a misconception that the Marshal’s service transmits the form to the foreign central authority. The amendment to Rule 4(c)2(A) prevents the Marshal from doing so, where the power to execute the portion of Form USM-94 marked “Identity and Address of the Applicant” and the “Name and Address of the Requesting Authority” portion of the Summary of the Document to be served is given to the representative instead.
Article 6: The mechanics of the Convention
While it is true that the Convention must verify the request, this does not mean that the Convention gives the Central Authority the right to reject any requests for service which does not comply with the Convention. If the Central Authority rejects the request, “it shall promptly inform the applicant and specify its objections to the request.”
Article 6 of the Convention requires a Central Authority to return a certificate confirming that the documents have been served along with the time, place, and method of service. If the document has not been served, the certificate must give the reasons for denial of service.
This issue pertains to the working mechanics of the Convention. It must be understood that the three basic methods of the service through the Central Authority are not exclusive. In fact, seven other alternative methods of service are concurrently in use. However, before any service is used, the receiving country’s declarations and reservations need to be reviewed, so that any concerns about the acceptability of an alternate method may be either dispelled or furthered through the Central Authority for clarification.
The available methods for service go through the Central Authority in tandem with [A.] the internal laws of the country or [B.] the request of the applicant or [C.] voluntary means. It must be remembered herein that the Convention’s proof of service holds federal rules subordinate and essentially eclipses state requirements. The logic behind this is that since the Central Authority mandates proof of service or an explanation of why the document cannot be delivered, ‘every reasonable effort’ would thus require individuals to go under the Central Authority, cementing its indispensable nature.
Article 7: Mind the language
In addition to the earlier translation requirements, Article 7 of the Convention requires the standard terms in the service request to be written in French or English. However, this does not preclude the corresponding blanks in the form itself from being completed in the language of the nation itself. French and English remain the default languages.
Even though the Convention stipulated French and English in its terms, it is always recommended to summarize English documents for adherence to American due process needs. Ultimately, translation missteps can be a reasonable rejection for a service request under Article 4. Some states may attempt to service untranslated documents, but the served party must voluntarily accept the service’s documents to be effective.
[2.0] ALTERNATE METHODS OF SERVICE
What Article 8 of the Hague Convention does is provide for a means of service apart from the ones done in the Hague Convention. Article 8 provides that “each contracting State shall be free to effect service of judicial documents upon persons abroad, without application of any compulsion, directly through its diplomatic or consular agents. Any State may declare that it is opposed to such service within its territory and can thus abrogate service under this provision.
This provision entirely depends on the receiving nation, whereinafter its sovereignty cannot be impinged upon. However, this manner of the serving process will be available to the originating nation’s own citizens who live abroad, and will not attract consequences under Article 8. The United States had prohibited the use of this method by its own diplomatic and consular missions
Like Article 8, Article 9 of the Convention provides an alternative means of service. It says that signatory parties “shall be free” to forward documents to specifically designated authorities in the receiving nation. This means that consular channels are often used to indirectly forward service of process, with diplomatic channels being used in a pinch.
Unlike Article 8, however, Article 9 does not specify a mode of objection to the service it provides. However, the internal law of the country and its sovereignty are core tenets of the Hague Convention. Consequently, it is a general assumption that Article 9 service of process must follow through with the nation’s internal law. This appears to be permissive, as is true with service via the Central Authority. Oddly enough, Central Authorities have named authorities under Article 9, thus bringing traditional means of service under this umbrella.
Article 10 is the most disputed provision in the Hague Convention. In essence, it provides that mail service can be effectuated by the requesting country as long as the receiving country does not object to the same. This means that Article 10 allows judicial documents to be put forth through postal channels directly to the individuals living overseas.
It is easy to see why service of process via mail is preferred. Instead of enduring the unpredictable wait time and increased costs for serving through the Central Authority, direct service by mail seems like a godsend to plaintiffs trying to serve foreign defendants. After all, all that needs to be done is essentially just sending the pleadings to the defendant abroad by mail or express delivery service (such as FedEx, DHL, or UPS).
Article 10(a): Art. 10(a) is the exact provision that allows service by mail or courier. However, within this provision’s language lies a legal quandary: the article itself does not provide for service. The use of the word ‘send’ here has led to many questions about whether mere transmission equals completed service.
The United States Supreme Court recently ruled in Water Splash, Inc. v. Menon that Article 10(a) of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matter (“Hague Service Convention”) does not prohibit service of process by mail. Furthermore, in the French version of the Convention, there is the verb addresser, which has been used to describe service.
An example of a country that prohibits service of process via mail is Japan. Japan did not object to Article 10(a) at any time between signing the Hague Service Convention on March 12, 1970, until December 21, 2018. However, its disapproval towards the same was always evident. This is particularly seen even in the HCCH special Commission in April 1989. Consequently, the general position in law even to countries that allow service of process through the mail is that Article 10(a) merely provides that the Convention shall not interfere with the freedom to use postal channels if the destination’s state does not object to their use. This means that the country’s internal laws will be held supreme and authorization for mail service emanates directly from the law of the said forum.
The court held that the authorization for mail service must come from the forum (federal or state). Conditions for that authorization must be satisfied to serve the process on defendants outside the United States effectively.
However, the question remains even if article 10(a) is held valid of what to do with service by mail if it is not allowed by the originating country’s internal laws at all. Would Article 10(a) still be an option herein? This question was partially addressed, but as yet has no clear standing.
Article 10(b): Art. 10(b) [and in some instances, 10(c)] allows a plaintiff to directly engage a judicial official or “other competent person” who can affect service. Article 10(b) has not come into as much question as 10(a) and has mostly been seen as an alternate means of service.
It must be understood that the failure of the receiving State to object to a particular channel of transmission under Article 10 does not tender the imputation that the State regards the resulting service to be sufficient for later enforcement of the judgment in that State.
Article 11 denotes the beginning of authorized service methods that lie outside the Convention. Article 11 essentially allows signatory nations to conclude what new methods of service they would prefer to use among themselves through separate bilateral or multilateral agreements. Regulation of service of the process, therefore, entirely lies outside the purview of the Hague Convention. The representative authorities countries can agree about how they prefer service to be enacted and the communication channels between the concerned bureaus that shall handle the service.
Article 12, in its first clause, states that a State Party shall not charge for its services rendered under the Convention. This is entirely true. However, the Central Authority may require an applicant to pay fees that cover the costs incurred by the Central Authority due to the applicant’s request, including the cost of reimbursement for the above officials.
Article 12 provides no scope for reimbursement for taxes or any like payment for the destination state [“…The service of judicial documents coming from a Contracting State shall not give rise to any payment or reimbursement of taxes or costs for the services rendered by the State addressed”.] However, this does require the applicant to pay for the costs that the employment of a judicial officer or a competent person under the laws of the receiving state might accrue. The forwarding authority may also pay for said accrued costs, although the Central Authority may require these costs to be paid in advance.
Article 13 is read in conjunction with article 7 and provides that a country 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. Article 13 provides a distinction between the unassailable sovereignty and entirely arbitrary objections that the receiving country might have. It provides a vouchsafe for the requesting country wherein the unequal balance of power between the countries is somewhat leveled, and the requesting country is not left as much at odds.
[3.0] SETTLEMENT OF DISPUTES
Article 14 provides for the settlement of disputes and difficulties which may arise in connection with the transmission of judicial documents for service through diplomatic channels.
Article 15 deals with default judgments. A default judgment is a binding judgment in favor of either party based on some failure to take action by the other party. Essentially, it is an award based on the other party’s failure to respond and is most often pronounced when a defendant is unable to attend the court proceedings after having been served the summons to appear before a court of law. This punctuality is especially difficult to ensure in international service, where even the act of service takes up to six months to perform.
The provisions of Article 15 state that a judgment cannot be pronounced unless the defendant has enough time after service to appear and defend themselves. Article 15 protects due process and ensures a fair trial for the defendant insofar as it allows them a chance to explain themselves and not be left at the mercy of inadequate service. It requires ‘every reasonable effort’ to be undertaken to constitute service properly.
However, the ensuing question constitutes ‘every reasonable effort’ and, consequently, whether ‘every reasonable effort’ may be interpreted if the Central Authority has not been availed. Accordingly, article 15 should only come into force, keeping in mind article 16, providing relief in default judgments.
Article 16 permits courts to relieve the defendant from the effects of the expiration of the time for appeal from a judgment. Article 16 applies when the defendant has not appeared, a decision not relating to personal status or capacity has been entered by default, and the time for appeal has expired.
This article’s scope is ambiguous, wherein interpretations have gauged that courts are provided the power to vacate judgments under this provision. However, a bare text reading suggests that the defendant is just given a little more time to appeal from the judgment under this ambit.
However, certain preconditions have to be met to relieve the defendant from the effects of the expiration of the time for the judgment’s appeal. This would require ignorance on the part of the defendant: either the defendant did not have knowledge of service insufficient time to defend or didn’t know the judgment itself such that they were able to appeal. Furthermore, if the defendant actually has a prima facie defense to the action on its merits, the leniency of Article 16 may be attracted.
Of course, Article 16 will also be attracted if the application for relief has been filed within a reasonable time after being informed about the judgment. This provision Is not indefinite, insofar as the application needs to be done within a reasonable time after being informed of the judgment or within the time determined by the State in its declaration to the depositary to this effect (in such a case, however, this time shall in no case be less than one year following the date of judgment).
[3.1] CHAPTER II: EXTRAJUDICIAL DOCUMENTS
Article 17 provides for the service of extrajudicial documents to be done in the vein of the methods in the Convention. However, some ambiguity is recorded herein, where all methods under the Convention –including those included in the alternate methods of service-are applicable to extrajudicial documents. The issue is consequently raised insofar as the delineation of scope for the extrajudicial documents is not as detailed as it is for the service of process and how ‘mandatory’ the Convention actually is in this regard.
Article 18 is a provision meant to assist the functioning of the Central Authority. Like Article 20, it anticipates the overloading of information at the Central Authority itself and provides for the power of other authorities to take over certain responsibilities of the Central Authority according to the requirements of the State itself.
Article 18 states that each contracting State may designate other authorities in addition to the Central Authority and shall determine the extent of their competence. The applicant shall, however, in all cases, have the right to address a request directly to the Central Authority. The Federal States can have more than one Central Authority.
[4.0] CHAPTER III: GENERAL CLAUSES
Article 19 provides for the scope of other authorities and the Central Authority and the extent of their competence. While the applicant has the right to address a request directly to the Central Authority, Article 19 allows for the internal law of the state parties to dictate methods of transmission apart from those provided in the previous articles. Thus, article 19 is highly contradictory to the hierarchy established, wherein it outright says that the “the present Convention shall not affect such provisions,” referencing other methods of service that might be considered according to the internal law of a country. According to the provisions of article 19, any method of service under Rule 4(i) which is “permitted” by the internal law of a foreign signatory, is valid
Especially considering the furor surrounding article 10(a), it is easy to see how article 19 has caused many issues. Article 19 was specifically inserted to protect the Letters Rogatory method, but this differentiation is exceedingly hard to understand within the text of the Convention. Effectively, article 19 has been interpreted to authorize almost any service method that the receiving nation’s internal law may permit. Furthermore, proof of such permission under article 19 is vague and fickle, almost entirely reliant on case law to justify the same. Furthermore, there is no provision for what ‘permissible’ service method may be undertaken in countries with a federal system. Will service vary across states to ensure that it is ‘permitted’ under all laws herein? It isn’t easy to say.
Finally, article 19’s biggest issue is that it risks massive infringement on the state’s sovereignty. If one goes by what is permissible inside the state rather than what the foreign state allows, it undermines the state’s command over its own territories. It essentially treats the agreement the state puts forth as worth less than an alternate method’s convenience. Although the text reading of Article 19 is vast, it is best read in conjunction with the terms that the foreign state has actively agreed to.
Article 20 elaborates on bilateral and multilateral agreements between the states. It provides that no agreement will be prevented that dispenses with [A.] the necessity for duplicate copies of transmitted documents, [B.] the language requirements of article 5 and article 7, and [C.] the summary of documents as under article 5 or the reimbursement of costs under Article 12. It takes some of the burdens of technicalities between contracting states if they both consent to the elimination of said formalities.
The Convention provides flexible methods of services to individuals who consent to these means of service and even authorizes litigants to use any other service method that the receiving nation has expressly permitted, as evidenced by prior international agreements or as reflected in the internal law of the foreign nation. The provisions of the Convention concerning default judgments are equally important because it ensures that there is no fault on the part of the individual being served until notice is wilfully ignored.
This incorporation of the American concept of due process in the Convention at almost every step is an indicator of how the Hague Convention bridges the common and civil law systems to fair and equitable service of process abroad.
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1.Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, opened for signature November 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638,658 U.N.T.S. 163 [hereinafter the Hague Service Convention]
2.Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698 (1988).
3.Article 2: Each Contracting State shall designate a Central Authority which will undertake to receive requests for service coming from the other Contracting States and proceed in conformity with the provisions of Articles 3 to 6.
Each State shall organize the Central Authority in conformity with its own law.
4.Article 4: If the Central Authority considers that the request does not comply with the province, ConveConvention’s provisions shall promptly inform the applicant and specify its objections to the request.
5.Article 3: The authority or judicial officer competent under the law of the State in which the documents originate shall forward to the Central Authority of the State addressed a request conforming to the model annexed to the present Convention, without any requirement of legalization or other equivalent formality.
The document to be served or a copy thereof shall be annexed to the request. The request and the document shall both be furnished in duplicate.
6.e-Vision.nl TN, “United States of America – Central Authority & Practical Information” <https://www.hcch.net/en/states/authorities/details3/?aid=279> accessed October 9, 2020
7.Article 5: The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either –(a)by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or b)by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed.
8. Article 7The standard terms in the model annexed to the present Convention 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. The corresponding blanks shall be completed either in the language of the State addressed or in French or English.
9.before using one particular alternative channel of transmission, it should be ascertained that the State of destination has not objected to it. Declarations of the objection, if any, made by the Contracting States are available on the Service Section of the Hague Conference website at < www.hcch.net >.
10.Article 10: Provided the State of destination does not object, the present Convention shall not interfere with –a) the freedom to send judicial documents, by postal channels, directly to persons abroad, b) the freedom of judicial officers, officials, or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination, c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination
11.137 S. Ct. 1504 (2017).
12.At the HCCH special commission in April 1989, the Japanese Government submitted a comment stating that it “has not declared that it objects to the sending of judicial documents, by postal channels, directly to persons abroad See, See, practical handbook on the operation of the Hague Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters (Hague conference on private international law)(1983)
13.Ackermann v Levine 788 F.2d 830 (2d Cir. 1986).
14.Article 11: The present Convention shall not prevent two or more contracting States from agreeing to permit, for service of judicial documents, channels of transmission other than those provided for in the preceding articles and, in particular, direct communication between their respective authorities.
15.Article 12: The service of judicial documents coming from a Contracting State shall not give rise to any payment or reimbursement of taxes or costs for the services rendered by the State addressed. The applicant shall pay or reimburse the costs occasioned by — a) the employment of a judicial officer or a person competent under the law of the State of destination, b) the use of a particular method of service.
16.As provided by article 3(b)
17.Article 5: Subject to sub-paragraph (b) of the first paragraph of this Article, the document may always be served by delivery to an addressee who accepts it voluntarily. If the document is to be served under the first paragraph above, 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. That part of the request, in the form attached to the present Convention, which contains a summary of the document to be served, shall be served with the document