By: Akanksha A. Panicker
Service of process abroad always means a menu of choices, each of which comes with trade-offs of costs, certainty, and punctuality. No universal method of service can be achieved in these cases, and research must be done to determine the most efficacious method of service in this particular case.
In this regard, issues of timing almost always come up in terms of service of process abroad. Even in domestic cases, timing is the main facet of litigation strategy. Since service of process abroad takes longer than service in the state, the time taken to serve the documents turns determinative in a foreign jurisdiction, particularly where the statute of limitations may expire.
Even if the statute of limitations isn’t an issue, the speed of the method of service is paramount. Often, process service is the fastest means of executing service, if permitted. This is followed by service through the Hague Service Convention Central Authority and mail service (questionable since this might be more unpredictable as some countries do not permit service by mail, and even if they do, require a return receipt.) Letters rogatory take the longest time and is generally considered to be the slowest method of service.
[1.0] ADDRESSING THE HAGUE CONVENTION
A priority to remember
Before moving ahead to the alternate methods of service, it is imperative to understand that compliance with the Hague Service Convention is mandatory in a member country. This was averred by the Supreme Court in the landmark case of Volkswagenwerk Aktiengesellschaft v. Schlunk, with the understanding of the Supremacy Clause of the United States Constitution. Since the Convention forbids inconsistent methods of service under state or federal law, and since the Convention has been ratified by the United States, it takes precedence over domestic laws concerning process service.
Keeping this in mind, the question of where the judgment is to be enforced then immediately becomes pertinent. This matter, however, is entirely based on a casewise interpretation. To elaborate, if the defendant has sufficient assets within the jurisdiction of a court that falls in America, then the plaintiff only needs to employ a service method that complies with the requirements of the forum court itself. Additionally, if the service pertains to a country that does not fall within the ambit of the Hague Convention, the method of service that shall be enacted will usually merely comply with the law of the forum court.
This ideology is not ironclad. If the method of service then violates the receiving county’s sovereignty or tampers with its internal laws, an official diplomatic protest may be filed, wherein the offending country can cite infringement of its judicial sovereignty. Additionally, this method of service can also bring into question the enforceability of the judgment pronounced in the case within the country.
[1.2] A BRIEF ON SERVICE UNDER THE HAGUE CONVENTION
As seen in the previous article, the Hague Service Convention was the first multilateral treaty on international judicial assistance. The United States is a signatory of the same, and consequently is a party to the treaty’s goal of providing formalized procedures to notify defendants of pending proceedings in other member countries. The Hague Service Convention essentially is dedicated to providing service to defendants in sufficient time to allow a response while also navigating through different countries’ service methods.
Some of the main features of the Hague Service Convention is [A.] the Establishment of a Central Authority in member countries as a receiving agent for service request [B.] a mandatory use of the three model forms for the transmission of requests abroad and the return of executed requests and [C.] a broad elimination of the participation of country courts.
The Hague Service Convention provides safeguards for defendants and even allows relief to be delivered to defendants who have not had sufficient notice provided to them. This also allows the defendants relief from authentication that non-Convention countries may require, allowing them a certain modicum of relief if they are pressed for certification or other constraints.
[2.0] UNDERSTANDING SERVICE BY MAIL.
While Article 8 of the Convention allowed for direct service by the requesting country’s diplomatic or consular agents, this method is generally not available to litigants in the United States. This may be seen in the United States Department of State Regulations, as Foreign Service Officers are not permitted to provide this service except when explicitly directed by the United States Department of State.
Consequently, Article 10(a) is much more put to use, with mail service being prevalent unless specifically objected to by the country.
Article 10(a) is highly controversial. Even after 1989, Special Commission convened in the Hague to discuss this; the issue has prevailed. The use of the word ‘send’ rather than the term ‘serve’ has led to at least three federal courts to the conclusion that mail service is not permitted under the Convention, but is also balanced by the decision of the Second Circuit Court of Appeals who rejected this interpretation in the spirit of the drafting of the Convention. Even after this ruling, the issue of bankability on mail service remains. The litigation of the effectiveness of mail service puts a damper on its otherwise relatively quick speeds.
Service by mail can also be seen apart from the Convention. Federal Rule 4(i)(1)(D) permits service by any form of mail requiring a signed receipt, provided the service is addressed and mailed by the clerk of the court where the lawsuit is pending. This method, however, is entirely dependent on the defendant accepting this service.
[3.0] LETTERS ROGATORY
Without the Hague Convention, letters rogatory are the failsafe method of obtaining judicial assistance overseas for service of process. They are set into motion in the absence of a treaty or any other agreement.
Letters rogatory act as requests from a court in one country to the court where the process/evidence is required. In essence, it requests the performance of action such that the country’s sovereignty is not wounded. Unfortunately, completing this process –especially through diplomatic channels- is an arduous process, even if shortened by transmitting a copy through a local attorney directly to the foreign court or other appropriate authority if permitted in the foreign country. Even the drafting of the letter needs to be concise and specifically tailored to the discovery rules of the foreign country, as the foreign country does still has the power to deny the execution of the request.
It must be understood that letters rogatory must be signed by a judge and not the clerk of the court. Sometimes, countries also demur from accepting letters rogatory issued by an Administrative Law Judge, in which case the letter may be issued under a Federal Court judge instead. The current consular fees for the transmittal of letters rogatory are available at 22 CFR 22.1 Schedule of Fees
Wh.at are the essential elements of the letters rogatory
Since letters rogatory are requests to a foreign court, a brief synopsis of the case is important here. This means that the parties need to be identified and, the nature of the claim and relief sought need to be specified so that the court can be informed as to the issues in the particular dispute. Even before this, the request for international judicial assistance needs to be highlighted in the request, followed by the type of case.
Since the court requires a specific understanding of the case, it is also necessary to understand the nature of the assistance required. Letters rogatory thus need to stipulate the type of case and whether it warrants production of evidence, the compulsion of testimony, or service of process. This also leads to the enclosure of a list of questions that need to be asked in the form of written interrogatories, and a list of documents that need to be produced.
The requesting court also needs to comply with reciprocity, depicting a willingness to provide similar assistance to the judicial authorities of the receiving state as well as a reimbursement of the costs incurred in executing said letters rogatory.
When contemplating service under the Hague Convention, it is important to note that the procedures for different countries vary widely. These differences are crucial when serving the defendant, especially in countries like Israel or Germany, who take a much more formalistic approach to service under the Hague Convention. However, service of process in a foreign jurisdiction is entirely feasible and is merely the first step in the enforcement of a judgment abroad.
For information on serving papers abroad visit https://undisputedlegal.com/services/process-services/ or call (800) 774-6922 representatives are available Monday-Friday 8 am – 8 pm EST.
1.486 U.S. 694 (1988)
2.The Supremacy Clause of the Constitution of the United States (Article VI, Clause 2),
3.22 CFR § 92.85 – Service of the legal process usually prohibited.
The service of process and legal papers is not normally a Foreign Service function. Except when directed by the Department of State, officers of the Foreign Service are prohibited from serving process or legal papers or appointing other persons to do.
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 drafting committee did refuse to limit postal channels to registered mail, but the further interpretation by courts have allowed for further understanding. 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)
6.Ackermann v. Levine, 788 F.2d 830 (2d Cir. 1986) Excerpt: ‘“See Ristau, supra, § 4-28 at 165-67 (reviewing the Rapporteur’s report on the final text of the Convention and reaching the “inescapable” conclusion that use of “send” rather than the otherwise consistently used “service” “must be attributed to careless drafting”)”
7.28 U.S. Code § 1651.Writs
(a)The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
(b)An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.