HOW TO SERVE LEGAL PAPERS IN JAPAN

Civilians, process servers, or private detectives are often called upon to deliver legal documents in numerous foreign nations. For formal documents like summons and subpoenas in Japan, however, certified mail is required.

The Hague Convention compliant service provided by the MOFA is the official method of delivering international papers (Ministry of Foreign Affairs in Japan). This process can take up to three months to complete, but it is the most legitimate manner of process service and will not raise any legal concerns in the latter stages of your case.

HOW TO SERVE LEGAL PAPERS VIA THE HAGUE CONVENTION

When the Hague Conference on Private International Law was created on November 15, 1965, in The Hague, the Netherlands, it approved a multilateral treaty known as the Hague Service Convention, which established consistent norms for, among other things, cross-border process service. The Convention has been ratified by seventy-four nations thus far.

The ‘Central Authority’ of each signatory nation offers a framework for process service within the terms of the Convention. Under the Hague Service Convention (Article 2), each nation appoints its Central Authority as the administrative organization responsible for receiving and performing Japan process service on its domestic subjects on behalf of parties in other countries that have also signed the convention. To serve the defendant, the Central Authority of the country where the defendant is located sends the documents to the plaintiff, plaintiff’s attorney, or a judicial officer of the court where the litigation is pending who is qualified to serve them. The Central Authority then serves the defendant or arranges for another appropriate agency to serve the documents.

For nations without treaties or accords like the Hague Service Convention, diplomatic channels would be a frequent method of process service. It takes a long time for papers to be transferred via these channels since they usually involve authorities like the Ministry of Foreign Affairs from both nations. Service via Central Authority under the Convention is regarded as a significantly simpler technique as compared to diplomatic routes.

Even yet, the Hague Service Convention’s Central Authority might take a long time to provide service. Central Authority service typically takes between two and six months depending on the target country, the pace of document preparation, and other conditions.

Article 5 of the Hague Service Convention gives the Central Authority the option of requiring that papers to be served to be written in or translated into an official language of the recipient country. Many nations, including Japan, need this kind of translation. 

HOW TO SERVE LEGAL PAPERS BY MAIL UNDER THE HAGUE SERVICE CONVENTION

For the sake of convenience and to save money, parties bringing a lawsuit against a foreign defendant typically choose for direct service by mail rather than going via the Central Authority. To do so, the plaintiff in the current litigation directly mails or uses an express delivery service to convey the pleadings to the defendant in another country (such as FedEx, DHL, or UPS). In contrast to plaintiffs’ preference for service by mail, defendants want a ban on service by mail. This is due to the fact that defendants have more time to prepare for litigation if service by mail is prohibited[1]. The  Convention forbids the transmission of ‘judicial papers’ to a country that opposes receiving them[2].

In theory, there are two ways to interpret this article[3]. Primarily, there is no serving of process is included in the term ‘sending’ of court papers. The Convention mandates that Japan process service be delivered to the Central Authority, and so delivery by any other manner is prohibited. Article 10(a) allows the mailing of papers other than those required for japan process service and is thus unnecessary[4]. process service by mail is forbidden under the Convention, regardless of whether the destination country has raised an objection under the provision.

It is permitted to serve process by mail to a defendant in the defendant’s country of residence if the country does not object, but service by mail is forbidden if the destination country does object. For example, if the recipient country opposes to process service by mail, it is always forbidden in both cases. 

JAPAN’S STANCE ON PERSONAL DELIVERY OF LEGAL PAPERS

Personal delivery of legal papers is permissible in japan. However, it might be canceled if the responder challenges the legitimacy of the papers’ acquisition in a Japanese court. Enforcing a court order in Japan necessitates a human service.

Foreign courts must provide complaints, decisions, and other papers to the defendant in Japan when an action is brought against a resident of Japan in a foreign court. Aside from that, the court must collect evidence, such as interrogating witnesses in Japan.

It is illegal for foreign courts in Japan to perform ‘judicial activities’ such as serving documents and obtaining evidence without the consent of the Japanese courts, which are national authorities with legal consequences (exercise of jurisdiction). Another country must get the go-ahead before it may serve documents or seize evidence in Japan[5].

LEGAL SERVICE IN JAPAN FOR COUNTRIES THAT ARE NOT PARTIES TO THE HAGUE SERVICE CONVENTION

Requests from countries that are not parties to any of these conventions but do have bilateral or comprehensive agreements on mutual judicial aid with Japan shall be addressed in accordance with such agreements if they have any effect. A request for judicial aid from a foreign court in Japan is subject to the provisions of domestic legislation, ‘the Law Relating to the Reciprocal Judicial Aid to be Given at the Request of Foreign Courts[6],’ if there is no prior agreement.

According to the Law Relating to the Reciprocal Judicial Aid to be Given at the Request of Foreign Courts, Japan would comply with a request from a foreign state to serve papers and gather evidence in connection with a criminal prosecution in Japan. When a bilateral treaty on mutual criminal aid has been signed, Japan will respond in accordance with the agreement.

JAPAN AND ARTICLE 10 (A) OF THE HAGUE SERVICE CONVENTION

Article 10(a) of the Hague Service Convention was never objected to by Japan between March 12, 1970, and December 21, 2018. In other words, this does not necessarily indicate that Japan has endorsed the use of mail to serve process on foreign defendants who are based in Japan. In April 1989, the Japanese government sent a reply to the HCCH special panel, claiming that it ‘has not announced that it opposes to the distribution of court papers, through postal means, directly to people overseas. Therefore, Japan has made it clear that it does not object to the use of postal channels for sending legal documents to Japanese citizens; this does not imply that Japan considers this method of sending as valid service in Japan, but rather that it does not consider this an infringement of Japan’s sovereignty[7]. ‘

Most plaintiffs opted to employ the Japanese Central Authority under the Hague Service Convention in lieu of serving process on defendants in Japan directly by mail since the Japanese government’s stance was ambiguous. Japan’s statement put a stop to direct process service by mail, even in U.S. lawsuits, prior to the Supreme Court’s decision in Water Splash.

Contract negotiations between U.S. and Japanese organizations should also take into mind the Hague Service Convention. In the event of a lawsuit arising out of the contract, the parties may consider designating agents for japan process service in the United States if they agree that any lawsuit brought under the agreement will be brought in a U.S. court (or if they do not include a choice of forum provision in their agreement). By designating an American agent for process service, the U.S. counterparty may avoid going via Japan’s Central Authority and the Hague Service Convention by serving the Japanese firm directly through its American agent. To serve the Japanese counterparty in the case of a lawsuit in the United States, the U.S. party must go via the Japanese Central Authority, which requires a complete Japanese translation of the summons and complaint if the Japanese corporation refuses to appoint a U.S. agent for service. This Japanese Government’s opposition to direct service by mail under Article 10 of the Convention should be understood by both parties in order to address these issues appropriately when a disagreement seems to be a merely speculative possibility in the future.

The Supreme Court of the United States interpreted ‘sending’ court papers to include process service. Article 10(a) of the Constitution, on the other hand, does not expressly permit the delivery of foreign mail. If the state of destination does not protest, Article 10(a) says that the Convention will not interfere with the ability to utilize postal routes. When it comes to properly serve process on defendants outside of the United States, the court ruled that authority for postal service must originate from forum law (federal or state) and requirements for such authorization must be met.

CURRENT STATUS OF SERVICE OF LEGAL PAPERS BY MAIL IN JAPAN

It has now become clear that in future U.S. litigation, as long as requirements under the law of the forum for international service are met, the only issue for serving process on foreign defendants by mail is whether the destination country has objected to its use under Article 10(a). If the destination country has not objected, then service by mail will be allowed.

Water Splash has raised concerns among Japanese defendants that they may be served process by direct mail, as Japan had not objected under Article 10 of the Uniform Commercial Code (UCC). Japan officially voiced its displeasure with the Hague Convention on December 21, 2018, announcing that direct postal delivery of process to defendants in Japan would be forbidden for future litigation in Hague-agreed upon nations.

According to this notice, neither the Japanese Ministry of Foreign Affairs, nor the Japanese Government, has made an official proclamation about the declaration, and there are no plans to do so at this time. This means that the statement is still unknown to many, including Japanese businesses and attorneys[8].

As a result, a Japanese defendant may exploit this to their advantage to achieve procedural benefits in a U.S. litigation, because service by mail is no longer permitted in the United States of America[9].

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Sources

[1] For those plaintiffs who are unwilling to go through the service method under Hague Service Convention, they might bargain with them for advantageous terms in return for agreeing to avoid the process.

[2] Article 10 (a) of the Convention specifies that ‘the present Convention must not interfere with… the right to convey judicial papers, using postal routes, directly to individuals abroad’ when it comes to serving people directly by mail (emphasis added).

[3] Water Splash, Inc. v. Menon, 581 U.S. ___ (2017), is a United States Supreme Court case in which the Court decided that the Hague Service Convention permits service of judicial process abroad by mail, provided that the country in which the service takes place has not objected to service by mail, and service by mail is authorized in the country where the litigation is pending

[4] 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.

[5] The Service Convention and the CP Convention, both of which Japan is a party to, mandate that Japan will respond to the other Contracting States if they request Japan to serve documents or take evidence in civil or commercial cases within the rules of these conventions

[6] Consular Policy Division, Consular Affairs Bureau, Ministry of Foreign Affairs

2-2-1 Kasumigaseki, Chiyoda-ku, Tokyo

Tel: 03-5501-8152

Fax: 03-5501-8148

[7] It was decided by one judge that such a statement did not explicitly exclude service by mail. Nicholson v. Yamaha Motor Co., 80 Md. App. 695. (1989). According to a different court, the failure of Japan to object to Article 10, (a), was unlikely intended as an authorization of the use of registered mail as an effective method for service of process, particularly in light of the fact that Japan specifically objected to the much more formal modes of service by Japanese officials available in Article 10, subdivisions (b) and (c) and referred to interpretation (A).

An appeal from the Superior Court of the State of California to Suzuki Motor Company v. (1988). No one was certain whether serving of process by mail to a Japanese defendant was deemed successful in a U.S. case.

[8] To circumvent Japan’s objection, legal proceedings pending in signatory nations to the Hague Service Convention must now be served on defendants in Japan through the Japanese Central Authority rather than by regular mail. An American plaintiff trying to serve process by mail on a Japanese defendant may be rejected by that defendant, who may then use the declaration to claim that service was unlawful

[9] It is not uncommon for an American claimant to try to avoid service under the Hague Service Convention by proposing that the Japanese defendant voluntarily accept service through other means in exchange for the claimant making favorable concessions to the defendant, such as more time to respond to their complaint.

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