- ABA Groups
- Resources for Lawyers
- About Us
Serving process on foreign defendants presents various problems of national sovereignty and legal tradition. 1 In civil law countries, service of process is often done as a formal matter by an officer of the court, while common-law rules tend to permit more informal modes of service, such as by mail or by a private citizen. The Hague Service Convention (officially the "Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters") attempts to remedy these problems by providing standards for service on defendants in signatory states. 2 Signatories include the United States and most jurisdictions in which a foreign defendant is likely to reside.
The first issue a U.S. attorney should decide before serving processes under the Hague Convention is whether the Convention can be avoided. This is important because service under the Convention, even if done properly, can easily take eight months or more. 3 If the defendant, or a domestic agent of the defendant corporation, can be found in the United States (or other forum country) the Hague Convention is not implicated because service can be achieved within the U.S. 4 The same applies if the foreign corporation has a wholly owned U.S. subsidiary which can be considered its alter ego under a veil-piercing theory. 5 Additionally, while the Convention will usually govern service if the defendant's jurisdiction is a party to it, it does not preempt other methods of service (valid under Federal Rule of Civil Procedure 4) provided those methods do not violate the internal laws of the defendant's country. 6
The other alternative is to seek waiver of formal service from the foreign defendant. If a foreign defendant waives formal service, significant costs can be avoided. For a defendant, the incentives to waiving formal service are that it eliminates any risk that some or all of the costs for service will be taxed against him and it may give the defendant more time to begin defending against the action (ninety days from mailing verses twenty days under Rule 12). Mailing Rule 4 notice and waiver forms does not effect service and does not implicate the Convention. 7
That said, if you anticipate needing to enforce your judgment against the defendant's assets outside of the U.S., it is best to make sure that service is valid under both the laws of the country where the defendant is to be served and the laws of any country where a judgment might be enforced. 8
In many cases, the Hague Convention must be followed. Acceptable service under the Convention is similar to the modes of service permitted by Rule 4. However, the Convention does not permit service by a nonparty over eighteen years of age or service by registered mail. Rather, service can be obtained by one of three means:
If the Convention cannot be avoided, the best method for obtaining service is through a designated central authority in the receiving country. To do this, a "competent authority" must first request service by filling out certain forms promulgated by the Convention and attaching the documents to be served. In the U.S., competent authorities include U.S. Attorneys, sheriffs, marshals and judicial officers. These authorities will make sure the documents are translated into the appropriate languages and forward them to the designated central authority of the foreign signatory. The central authority then arranges for service of the documents in the target jurisdiction.
Practically speaking, the U.S. Marshals have a website to assist you in complying with the Convention, located at www.usmarshals.gov/process/index.html. The website includes a "Request for Service Abroad of Judicial or Extrajudicial Documents" (Form USM-94), which should be filled out and sent to the Marshals along with copies of the writs to be served. Often, these documents will need to be translated into the official language of the target jurisdiction. 9
In short, where service under the Convention cannot be avoided, practitioners are well advised to visit the U.S. Marshals' website, translate the documents to be served into the official language of the foreign country, and prepare for a lengthy delay.
1 Wright & Miller, Federal Practice and Procedure: Civil 3d §1133.
2 Additional helpful information, including a list of signatories, can be found at: http://travel.state.gov/law/info/judicial/judicial_686.html
3 James L. Rogers, Contemplating Your Next Move When Resolving Cross-Border Business Disputes, 16 S. Carolina Lawyer 14, 18 (Nov. 2004).
4 See Apollo Technologies Corp. v. Centrosphere Industrial Corp., 805 F.Supp. 1157 (D.N.J. 1992).
5 Volkswagenwerk v. Schlunk, 486 U.S. 694 (1988).
7 Wright & Miller, Federal Practice and Procedure: Civil 3d §1134.
8 Additionally, the Inter-American Convention on Letters Rogatory may be useful if target jurisdiction for service is in North or South America. This Convention is often used as an alternative to the Hague Convention when serving a defendant in Brazil or a defendant in a Latin American state that is not a signatory to the Hague Service Convention.
9 Article 7 of the Convention requires that the forms be in English, French or the official language of the target jurisdiction. Article 5 allows signatory countries to require that the documents to be served be translated into its official language.
About the Author
Mr. Boyko, Esq., is an associate at Sandberg, Phoenix & von Gontard, P.C., in St. Louis. He can be reached at firstname.lastname@example.org. Responses are welcome.