Why is a special procedure necessary to serve process abroad?
Serving process in a foreign State requires careful attention to different bodies of law — that of the forum, that of the receiving State, and that of the community of nations. While rules for service of process vary by US jurisdiction, they vary even more greatly by country. US courts lack authority to serve process abroad without the consent and, often the involvement, of local judicial authorities. Historically, this consent and involvement were gained only through the transmission of a “Letter Rogatory,” a special request from the forum court to the court having jurisdiction over the foreign defendant. The use of Letters Rogatory to serve process significantly decreased in 1965, with the entry into force of the Hague Service Convention (see below), but they are still used where no treaties are in force.
What is the Hague Service Convention?
The Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Service Convention) is a multilateral treaty governing process service procedures between members States. It eliminates the need for the dispatch of Letters Rogatory via diplomatic channels.
Where service from US and Canadian courts must be effected in another member State, its application is mandatory, regardless of the forum. Attorneys may benefit from this summary of practical information about the Hague Convention.
Are common law countries’ service requirements different from those of civil law countries?
Substantively, there is not really much difference. Rules for service of process abroad do not vary so much by system (civil vs. common law) as by three other factors:
the sophistication of the foreign country’s legal system,
the willingness of its government and courts to provide access to justice, and
treaty relationships, particularly the Hague Service Convention.
The significant difference between the civil and common law traditions arises in the taking of evidence.
While common law systems are adversarial, where lawyers seek and demand evidence, civil law systems rely on an inquisitorial model. In that model, evidence taking is a sovereign function of the state, and is undertaken by judges.
Who can serve process abroad?
The short answer: it depends.
In Hague Convention countries, only attorneys, judges and clerks are authorized to request service via a Hague Central Authority.
In the US, only authorized persons may serve process in a legal proceeding. In many US jurisdictions, an authorized person need only be 18 years old and not a party to the case. Others require that a court officer or attorney serve process. Still more, including federal courts, allow service by registered mail.
Foreign jurisdictions are no different, but who is classified as an “authorized person” varies widely. Only a working knowledge of the receiving country’s rules can guide plaintiff’s counsel to ensure that service is actually effected and it complies with all relevant legal strictures.
What documents should be served? What should not be served?
Forum court rules govern the contents of service documents — regardless of their destination. Whatever documents would be served within the forum must also be served in the foreign country (along with certain forms that are necessary to comply with international law). International law does not require that specific forum documents be served, so long as they are conveyed in the proper language.
Normally, a summons and complaint are all that are necessary, although many courts also require that exhibits be served as well.
Generally speaking, interrogatories and subpoenas should not be served overseas along with a summons.
Any documents related to pre-trial discovery are governed by different procedural rules. That discovery is met with disdain by foreign governments and courts, who view it as infringement on their sovereignty. The inclusion of such documents will either (1) make a judgment unenforceable in the defendant’s home country, or (2) give that country cause to reject the summons at the outset. [If forum rules require interrogatories to accompany the summons and complaint, our staff attorneys can brief the court in support of your request for a waiver.]
How long does service take? Again: it depends.
Some countries expedite the process so much that service is effected and a certificate returned within a matter of a few weeks or less (eg: Canada). Others, like Mexico or India, can take more than a year, despite the Hague Service Convention’s requirement that service be promptly effected (or rejected on legal grounds).
And in many other countries, such as Afghanistan or Russia (notwithstanding the Russian Federation’s membership in the Hague Service Convention), service is virtually impossible.
What does overseas service cost?
Prices to effect service vary. As with any sort of litigation, an estimate is possible, but only after looking at the variables involved. Generally speaking, as the speed of service increases, so does the cost. Translation may also be a factor.
Do service documents have to be translated?
Where English is an official language, translation is not necessary to satisfy local rules. However, the inquiry does not end there.
In most cases involving service of process in countries where English is not an official language, two concepts require translation:
First, any effective service must comply with the laws of the receiving country — and most countries require that documents to be served are accompanied by a translation into that country’s official language.
Where local rules are circumvented and a translation is not supplied, service can be quashed in the forum court, and enforcement of a judgment in the foreign court may fail because the plaintiff failed to respect that court’s procedures.
Second, US notions of Due Process require that the defendant be able to understand the documents served.
Accordingly, a summons and complaint may require translation into more than just one other language.
An example: For an Italian defendant who does not speak English, but lives in China, translation into Italian will be necessary to satisfy Due Process concerns, while translation into Mandarin will be necessary to comply with local rules. Such hypotheticals require very careful analysis.