UNDERSTANDING SERVICE OF PROCESS ABROAD

[1.0] A BACKGROUND TO INTERNATIONAL SERVICE

Service of process in foreign countries has become commonplace; trans-national litigation naturally ensues from a large amount of international trade and travel.. An important case to understand international service is Morgenthau v. Avion Resources Ltd. Rule 313 of the CPLR was clarified herein when it allowed for the district attorney to serve numerous parties in Brazil according to New York laws. Morgenthau turned service of non-US defendants outside the US exceedingly simple, a powerful weapon in judgment enforcement actions targeting United States assets of individuals that do not exclusively reside in the United States. 

New York’s Highest Court held that as long as a basis for extraterritorial jurisdiction exists, CPLR 313 allows for all methods of service on individuals or corporations in foreign states that are available for service inside New York, regardless of the methods the foreign state may use, including all of the substitute service methods available under the several paragraphs of CPLR 308 and 311(b). The Court of Appeals also found that principles of international comity did not compel a different result for service. The Court commented here that the Hague Convention didn’t apply in the present case as the country in question, Brazil, was not a signatory to the Hague Convention. 

The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, or more commonly referred to as the Hague Service Convention, is a multilateral treaty meant to simplify the means of serving process in other countries. It was adopted in 1965, and over the years, it has included over 75 participating countries (including the United States, Britain, Russia, and China, among others). The United States is a signatory to the Additional Protocol to the Inter-American Convention for the service of legal documents only. Thus, only countries party to the additional protocol have a treaty relationship with the United States.

What is personal jurisdiction?

Personal jurisdiction refers to the power that a court wields to make a decision concerning the party being sued in a case. Before this power can be exercised, the US Constitution required a certain minimum threshold of contact with the forum within which the court sits. So if the plaintiff sues a defendant, that defendant can object to the suit by arguing that the court does not have personal jurisdiction over the defendant.

[2.0] AN OVERVIEW OF THE PROCEDURE FOR SERVICE

For international cases, due diligence would be required from both the side of the plaintiff and the process server in order to make sure that the service and documents are acceptable to the court in which the lawsuit was filed in the terms outlined by the presiding judge. In addition to adhering to any treaties, a formal letter may need to be sent from to the court in the country that the individual is to be served in asking for permission. Whether in state or federal court, a crucial threshold question is always whether the service will be governed by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil Matters. This treaty is the supreme law of the land for disputes involving a New York plaintiff and a defendant residing in a signatory state. Service on a Hague signatory state is done through the recipient country’s central authority for service.

Often, service internationally may be done by having a government authority serve the documents, or by serving the documents by certified mail or through publication, or having the individual sign a waiver. Mostly, the documents are served in person by an agent, though there have been cases of service through a social media website. 

A review of the rule of service for the specific country must be conducted before initiation of service. While this may seem complicated, it also highlights the importance of finding a properly licensed (where applicable) process server that understands current laws and regulations surrounding process service.

[3.0] UNDERSTANDING THE HAGUE CONVENTION

Before the Hague Convention, serving process abroad was between a rock and a hard place. Considering that a service method had to be chosen both according to constitutional due process standards and also in a manner that adhered to the local laws of the foreign state, the introduction of the Hague Convention meant that service of process abroad was easier, assured the defendants sued in foreign jurisdictions would receive timely notice of the suit and facilitated the proof of service given.  Thus, the Convention is a highly regarded and exceedingly functional treaty that facilitates the exchange of thousands of service requests annually between member nations.

The Hague Convention is applicable whenever ‘there is an occasion to transmit a judicial or extrajudicial document for service abroad.’ Extrajudicial documents, as referred to in the Convention, are those documents that don’t necessarily come with a lawsuit but are private acts that require the intervention of a judicial officer or authority.  Documents to be served in a Hague Service Convention nation must be translated into the official language of that country.

Every signatory to the Hague Convention designates an authority to accept and handle incoming requests for service of process. This means that rather than having to deal with a multiplicity of avenues for service, a judicial officer is empowered to directly send a request for service of process to that central authority alone. The central authority later could arrange for service to be completed via a local court and verify that this service was done for a matter that is permitted within the country. Consequently, a certificate for service can be returned as a receipt or a notice of completion. 

Service may be made by ‘formal’ service through the Central Authority of the country of destination, which itself arranges for service by methods prescribed in the treaty.  Additionally, consular channels may be used to forward documents to the relevant authorities of the stat receiving the service qualifies to do so, with exceptional circumstances permitting the use of diplomatic channels to accomplish the same under the text of Article 9 of the convention.  

The process of moving forward with service of process under the Convention requires is three standardized forms; [A.] a request for service, [B.] a summary of the proceedings, and [C.] a certificate of service. The process, though it takes two to four months, is massively expedited for the signatories of the Convention, despite the allowance of alternate methods like service by mail. Article 10(a) provides that mail service may be used unless the receiving country has objected to its ratification declaration. 

Additionally, the convention provides relief to litigants if the Central Agency hasn’t provided them with a certificate of service/ delivery after six months, whereupon they will give their judgment or issue a provisional order in case the situation is urgent

[4.0] ALTERNATE METHODS OF SERVICE

There are three categories of permissible service methods set out in the Convention. Process can be served by [A.] the Central Authority, [B.] various non-objectionable methods provided for in the Convention, or [C.] any other method permitted by international agreements or the internal law of the receiving foreign nation. 

Articles 2-7 and 13 of the Convention refer to the Central Authority as the primary means of transmitting documents, though it is not exclusive. The plaintiff may always resort to the use of the Central Authority if any other method permitted by the Convention fails. A failsafe that the Central Authority ensures is that only people authorized under the nation of origin’s laws are allowed to forward the service requests, which effectively exclude private persons from this right. Additionally, as under Article 5, the two methods that can be used in the serving process are [A.] any formally effected service as ‘prescribed by internal law’ or [B.] any ‘particular method’ of service that is not ‘incompatible’ with the laws of the receiving country. 

Articles 8-10 of the Convention provide for alternate methods of service. What this means is that Article 8 provides that each signatory nation ‘shall be free’ to serve persons ‘without application of any compulsion directly through its diplomatic or consular agents’ This method of service can always be available to the serve process on individuals hailing from the nation of origin who reside abroad.  

In a similar vein, Article 9 of the Convention also allows the signatory parties to use their consular and diplomatic channels for an indirect service of process, done by forwarding documents to specifically designated authorities in the receiving nation. Article 10(b) and Article 10(c) would appear to permit service by a court-appointed process server and allow an American attorney to hire a foreign process server directly without court intervention, respectively. The phrasing here, however, is not particularly clear and has been subject to discussion through the years.

Finally, the third category of service methods is entirely concerned with an independent authorization that does not fall within the Convention’s limits. In this, article 11 permits contracting countries to enter into bilateral or multilateral agreements establishing other methods for serving process amongst themselves. 

Service by International Registered Mail

In any lawsuit, the plaintiff is required to effect proper “service of original process” against all defendants. Service by registered or certified mail, return receipt requested is an option in many countries in the world. This method may be used in any country that allows it. Still, US courts have held that formal objections to service by mail [made by countries party to a multilateral party or convention on service of process] are to be honored. Service by registered mail thus will not be propagated in countries party to the Hague Service Convention that objected to postal channels as a means of service. The Hague Conference on Private International Law maintains information on the applicability of Article 10(a).

Interestingly enough, article 10(a), which preserves ‘the freedom to send judicial documents by postal channels, directly to persons abroad,’ has proven to be the single most litigated provision of the Convention. 

Service by Letters Rogatory

Letters rogatory are requests from a court in the United States to a court in a foreign country seeking international judicial assistance. They are usually engaged to obtain evidence, but can also be utilized in service of process. This can be an effective alternative for countries that prohibit other methods of service or countries that don’t recognize any other source of service. Service of a judicial summons in criminal matters can also be done through a letter rogatory. 

Letters rogatory are primarily used in states which are not a party to the Hague Service Convention. This is where diplomatic channels are generally used for the service of legal documents, as the document to be served can then be transmitted from the country of origin to the foreign ministry in the state of origin. This foreign ministry in the state of origin then has to forward the document onto the intended country, which then has to forward it to the local court at the destination. 

At the local court, the order must be issued to allow for the service and must have an ensuing certificate of service. The certificate of service must return to the country whose courts sent the documents through the same channels. While letters rogatory are quite common, they differ from the Hague convention in so far as the Convention uses standardized forms that should be recognized by authorities in other states. Ultimately, the Convention is important as it exposes the necessity to bring notice to foreign litigants with safeguarding the national sovereignty and due process requirements of the foreign nation itself. 

For service of process abroad, visit https://undisputedlegal.com/services/process-services/ or call (800)774-6922; representatives are available Monday-Friday 8 am 8 pm EST.

Sources

1.36 C.J.S. Federal Courts § 31

2.Morgenthau v. Avion Resources Ltd., 49 A.D.3d 50 (N.Y. App. Div. 2007)

3.NY CPLR Rule 313. Service without the state giving personal jurisdiction.

4.NY CPLR Rule 308. Personal service upon a natural person

5.International Shoe v Washington, 326 US 310 (1945

6.See., Ackermann v. Levine, 788 F.2d

7.Opened for signature Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638, 658 U.N.T.S. 163(entered into force for the United States Feb. 10, 1969

8.Article 9: Each Contracting State shall be free, in addition, to use consular channels to forward documents, for the purpose of service, to those authorities of another Contracting State which are designated by the latter for this purpose.  Each Contracting State may, if exceptional circumstances so require, use diplomatic channels for the same purpose

9. Article 10 : Provided the State of destination does not object, the present Convention shall not interfere with –

  1. the freedom to send judicial documents, by postal channels, directly to persons abroad,
  2. 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,
  3. 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

 10.Article 11: The present Convention shall not prevent two or more Contracting States from agreeing to permit, for the purpose of 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

11.“[p]rovided 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…”