Central and South America have a variety of options for completing service of process when dealing with foreign matters. Many Central and South American nations are not signatories to the Hague Service Convention, however. The Inter-American Convention on Letters Rogatory and Additional Protocol provide an option for nations who are parties to another multi-lateral pact. Because just three countries in Central and South America have signed the Hague Service Convention, the Inter-American Service Convention provides a welcome option for international process service.
BACKGROUND
Guatemala, Uruguay, Panama, and Peru are all signatories to the Inter-American Convention. Hague and Inter-American Conventions are signed by several nations, including Mexico. There are considerable parallels between the Hague Convention and the Inter-American Convention, which uses Letters Rogatory and requires translation of all papers served. There are, however, notable differences between the Hague Convention and the Inter-American Convention. One of these problems is the absence of clearly defined Central Authorities. It’s tough to determine where to submit papers to make sure service is delivered without a clear structure of Central Authorities.
In spite of the Inter-American Convention’s efforts to establish a standard for service of process across its members, significant inconsistencies persist. This convention’s scope is restricted to civil and commercial concerns according to Article 2 of the Inter-American Convention. While Article 16 permits signatories to expand the scope to criminal and administrative concerns, only Chile has declared that it would do so.
Service under the Inter-American Convention might take anything from six months to a year, as is the case in most nations that have not signed the Hague Service Convention.
In Central and South American service of process, the Inter-American Convention is a better option than conventional Letters Rogatory. With this treaty, members have agreed to cooperate on serving of process, especially in civil and commercial cases. Hague Service Convention is not an option when Inter-American Treaty is.
HOW DOES THE INTER-AMERICAN CONVENTION WORK
Law enforcement cooperation between nations may be facilitated through the Inter-American Convention on Letters Rogatory and Additional Protocol (IACAP). Countries must sign both accords in order to have treaty status, which the United States sees as restricted to service of process. Letters rogatory are replaced by the IACAP’s method for serving papers by a foreign central authority in place of the old procedure The U.S. Central Authority for the IACAP is the Department of Justice. U.S. Central Authority requests from the Department of Justice are sent to a private contractor that performs service duties for the U.S. Central Authority.
Aside from civil and economic concerns, the IACAP’s provisions allow for its use in criminal and administrative proceedings as well. Only Chile has said that it intends to use the IACAP in these situations. Preparation of Letters Rogatory and Service of Process posters provide basic information regarding the use of formal letters rogatory in criminal and administrative issues. Foreign nations may have different legal definitions of “administrative concerns,” thus it is important to keep this in mind. Letters rogatory may be transmitted to the authority to which they are addressed by the interested parties, through judicial channels, diplomatic or consular agents, or the Central Authority of the State of the origin or of the State of destination. Each State Party is required to inform the General Secretariat of the Organization of the American States of the Central Authority competent to receive and distribute letters
UNDERSTANDING THE INTER-AMERICAN CONVENTION ON LETTERS ROGATORY
Formal letters rogatory are not required per se according to the convention. In the absence of a treaty or other arrangement, letters rogatory are the traditional way of requesting judicial help from outside. If an act is carried out without the consent of the foreign court, it might be considered a breach of that country’s sovereignty. Letters rogatory are requests sent from one country’s courts to another country’s courts. If authorized by the laws of the foreign nation, letters rogatory may be used to serve process or gather evidence.
If the country where process or evidence is to be served or taken is not a party to any multilateral treaties on judicial assistance, such as the Hague Service or Evidence Conventions or the Inter-American Convention on Letters Rogatory and Additional Protocol, parties should verify the same before starting the letters rogatory process. These agreements have simplified the process of asking for court aid, reducing the time and burden of customary letters rogatory. Letters rogatory should be accompanied by the documents to be delivered to the person on whom process, summons or subpoena is being served, being [A.] an authenticated copy of the complaint with its supporting documents, and of other exhibits or rulings that serve as the basis for the measure requested; [B.] Written information identifying the judicial authority issuing the letter, indicating the time- limits allowed the person affected to act upon the request and warning of the consequences of failure to do so and [C.] information on the existence and address of the court-appointed defense counsel or of competent legal-aid societies in the State of origin.
REQUIREMENTS FOR SERVICE
The request for service should include the original and two copies of the form, and three copies of the summons and complaint or other documents to be served. It is recommended that the request for service be accompanied by three copies of the papers to be served, as well as the original and two duplicates of the form.
No translation of the form is required, but any papers that must be served in the foreign nation, such as summonses and complaints, must be translated into the local language.
The U.S. Clerk of Court’s signature is required and cannot be done away with. To comply with IACAP, the form must carry the seal and signature of judicial or other authority in their respective countries of origin, as well as the Central Authority’s signature and stamp. Where it says “Signature and stamp of the judicial or other adjudicatory authority of the state of origin,” the clerk of the court in the U.S. where the case is ongoing must affix their seal and signature on the form. The U.S. Central Authority’s signature and stamp will be executed by a contractor of the Department of Justice.
The authorized central authorities of the nations concerned receive requests for service under the Inter-American Service Convention. The court in the sending nation must also sign off on the requests, but this must be done via the central authority. It’s fairly uncommon for us to reject requests made through other means.
To serve the papers, they must first arrive in the nation where the service is to be performed. If an individual wants the service to be done correctly as well as completely, they must complete all parts of the necessary paperwork. The papers will be returned if they are not complete.
It is permitted under the IACAP to charge parties for expenses incurred in order to provide service in compliance with local legislation, even if the IACAP states that processing requests should be free of charge. The central authority of several foreign nations will be charged a cost of USD 25.00. In Mexico and Argentina, the fee has been declared to be non-existent. There has been no response from other nations that have signed on to the Convention and Additional Protocol. A certified check or money order in the amount of USD25.00 made payable to the foreign central authority should be sent with the form and papers to be served if service is desired in countries other than Mexico and Argentina. The cheque will be refunded if no service fee is applied to the account.
The authority of the State of destination is who has jurisdiction to determine any issue arising as a result of the execution of the measure requested in the letter rogatory. If they find that it lacks jurisdiction to execute the letter rogatory, it is necessary to ex officio forward the documents and antecedents of the case to the authority of the State which has jurisdiction
HOW THE FORM WORKS
According to the International Agreement on Civil Procedure (IACAP), mandatory convention forms must be signed and sealed by a judicial authority of origin in addition to the Central Authority. Documents served, such as summons and complaints, must be translated into the appropriate foreign language despite this form not requiring translation. Page 7 of the form will be executed by the foreign central authority as evidence of service. Only civil and commercial problems are covered by the International Association for the Advancement of Civil and Commercial Rights (IACAP).
Border States have an interesting exception to this process. Authentication is not required when a court in a border region of one of the state’s parties acts on a request directly from the parties. Central authorities in border states may transfer evidence of service to the U.S. central authority if lawyers representing their clients in those jurisdictions submit requests directly. As a result, it is critical to provide a return address in the request. The name and location of the attorney should be included in this information. A request from a border state to the Mexican Central Authority must be verified according to the Hague Apostille Convention by the U.S. Central Authority, which also indicates that Mexico needs this authentication.
Depending on the country, the time it takes to process a Convention request may not be significantly quicker than the time it takes to process letters rogatory. In general, a request might take up to a year from the time it is submitted until it is completed. Argentina and Peru have been able to process petitions more swiftly, often within three months, according to the U.S. Central Authority.
As far as service by letter is concerned, the Convention and its Additional Protocol do not explicitly address the issue. Local counsel should be consulted to find out whether mail or other means of service are available, and what impact the employment of other channels would have on subsequent attempts to have a U.S. decision enforced in a foreign jurisdiction.
HOW THE UNITED STATES FACTORS IN THE INTERAMERICAN CONVENTION
The United States made a reservation pursuant to the Convention excluding its application to requests to obtain evidence. Litigants may wish to consult local counsel to determine what methods are available.
A private contractor serving as a U.S. Central Authority on behalf of the Department of Justice accepts requests for service from foreign Central Authorities in accordance with the Convention, even if personal or mail service is an acceptable alternative option in the US. For service requests submitted in accordance with the Convention and Additional Protocol, the private contractor does not charge a fee. They will accept and handle both incoming and outgoing requests for service in accordance with the Inter-American Convention for the delivery of legal documents. To further process, the contractor gets the request from the foreign Central Authority, serves the papers on the person, and returns the recognized Certificate of Service to the foreign Central Authority.
Requests for service from outside the United States should be made to the contractor. The request will then be sent to the foreign Central Authority for service. This contractor will receive the Certificate of Service from the foreign Central Authority after the person has been served.
REQUESTS FROM THE UNITED STATES
Translation standards and the Mandatory Form must be adhered to when requesting assistance according to the Inter-American Convention. Inter-American Convention requests are exempt from any extra government fees.
IACAP is understood by the United States as a limited agreement on service of process, designed to facilitate judicial cooperation between the nations of the Inter-American System.
In order for a treaty partner to exist, nations must be signatories to the Hague Service Convention and IACAP. With the IACAP, a foreign central authority may serve papers instead of using the old-fashioned letters rogatory method. The Department of Justice serves as the U.S. Central Authority under the IACAP. In order to fulfill the service duties of the U.S. Central Authority on behalf of the Department of Justice, the communicating entity acts as a private contractor for purposes of transmission.
Under the IACAP, there is no provision for service by mail. Serving by mail would be determined by the receiving state’s rules and laws, but best practices for enforcement are to not serve by mail in any situation in order to later avoid issues enforcing a judgment. Service under the IACAP typically takes anywhere from four months to a year, but that timeframe can change depending on a multitude of factors. Often times this process is not much quicker than a Letters Rogatory, but it does provide a formal method of ensuring the service is effectuated.
If the receiving state’s language is something other than English, it is likely the documents will need to be translated. The final determination depends on the recipient’s language as well as nuanced local rules.
For countries who are not signatories to the Inter-American Service Convention, there are other common ways to effectuate service: service through the Hague Service Convention, Letters Rogatory, or service via an agent. Determining which method to choose is largely dependent on whether or not a judgment will need to be enforced, as some countries will not recognize service via an agent as valid.
Sources
1. In Force: ARGENTINA, BRAZIL, CHILE, COLOMBIA, ECUADOR, GUATEMALA, MEXICO, PANAMA, PARAGUAY, PERU, UNITED STATES, URUGUAY and VENEZUELA
2. Article 16
The States Parties to this Convention may declare that its provisions cover the execution of letters rogatory in criminal, labor, and “contentious -administrative” cases, as well as in arbitrations and other matters within the jurisdiction of special courts. Such declarations shall be transmitted to the General Secretariat of the Organization of American States
3. SCOPE OF THE CONVENTION
Article 2 This Convention shall apply to letters rogatory, issued in conjunction with proceedings in civil and commercial matters held before the appropriate judicial or other adjudicatory authority of one of the States Parties to this Convention, that have as their purpose:
a. The performance of procedural acts of a merely formal nature, such as service of process, summonses, or subpoenas abroad;
b. The taking of evidence and the obtaining of information abroad, unless a reservation is made in this respect.Article
3. This Convention shall not apply to letters rogatory relating to procedural acts other than those specified in the preceding article; in particular, it shall not l apply to acts involving measures of compulsion.
4. The required form may be found online at the website of the Department of Justice’s contractor.
5. Article 5
Letters rogatory shall be executed in the States Parties provided they meet the following requirements:
a. The letter rogatory is legalized, except as provided for in Articles 6 and 7 of this Convention. The letter rogatory shall be presumed to be duly legalized in the State of origin when legalized by the competent consular or diplomatic agent;
b. The letter rogatory and the appended documentation are duly translated into the official language of the State of destination.
