International Service of Process: What Every Attorney Should Know

Vol. 43 No. 2

By

Nelson Tucker is CEO and founder of Process Service Network, LLC, in Simi Valley, California. His firm specializes in international service of process and investigations, and he is a qualified expert witness on process service issues.

Not only did law school minimize the importance of the laws related to service of process, but professors did not even mention “international” service. After all, such service was a rarity until recent years.

Now, with the world shrinking and the global economy expanding, litigation between parties in foreign countries is increasing at a significant annual rate. No doubt, within a short period of time, most attorneys will have been faced at least once with having to serve a foreign defendant with legal documents. What happens then? The research time to determine the laws of another country can be staggering. Fear not: there are solutions.

Most international disputes arise in the context of disputes over personal injuries, trademark and patent infringement, products liability, family law questions, collections, and real estate matters. To combat the challenge of handling international matters for clients, it is important to understand the basic issues related to international service of process. International service of process seems to be a maze until you discover that certain treaties and local foreign laws may apply to simplify the process. The most widely used treaty is the Hague Service Convention, which outlines the methods for process service in a specific country.

Another “formal” method of international service is by “letters rogatory,” a cumbersome, expensive, and time-consuming method that should be used only as a last resort. Letters rogatory is simply a request from the court of jurisdiction to the court where the service is to be made asking for judicial assistance. It is used when enforcement of judgment is sought in a nation where no service of process treaty exists. It is also used when serving a civil subpoena in a foreign country. Preparing it correctly to conform to the specific requirements of each country is an art.

Understanding the procedures for compliance with applicable treaties and local laws will enable both the attorney and client to avoid civil and criminal penalties that may result even from unknowing violations of the law. And, in many instances, state law does not apply to service outside the United States, so it is essential that the process begin with a complete understanding of the laws of the country involved.

For U.S. district court cases, Federal Rule 4(f) is the authority for service of process outside the United States. It specifies the procedures that must be followed in serving extraterritorial defendants in federal cases.

Some nations, such as Argentina, Germany, Italy, Japan, Korea, and Switzerland, currently outlaw service by private party or process server. Others, such as the Philippines, Saudi Arabia, Taiwan, and the United Arab Emirates do not have treaties in force and allow service by an “informal” method such as private process server.

Many nations require that the court documents be translated into the official language of that country, while others accept an English version. Translation costs can often exceed the fee for service, so it is vital to consult with the process service firm prior to filing the case, if possible. Once the case has been filed, all documents to be served must be translated; there are no exceptions.

The greatest challenge in international service of process is meeting court-established deadlines, since service can take several months. An extension of time for completion of service can normally be obtained by providing the court with a proper declaration from the process server.

Although few private process servers understand the rules related to international service, a handful specialize in serving the needs of clients in foreign markets and in simplifying the maze. According to Julie Perez, international specialist with Process Service Network, “It’s amazing how each country has such a vast difference in laws that must be followed. U.S. attorneys are often frustrated by the myriad of requirements that some countries impose on services coming from outside their jurisdiction.”

Perez pointed to Mexico as a prime example of a nation whose legal system has gone beyond reason and common sense in imposing unnecessary requirements for service. “Mexico attempts to protect its corporations and citizens from legal matters that may eventually result in attachment of assets. They do everything possible to delay service of process in hopes that the case will just go away,” says Perez.

However, Mexico is a signatory to the Hague Service Convention and, in signing, agreed to follow the terms of the treaty. It is also a signer of the Inter-American Convention on Letters Rogatory, which is a separate treaty. It has cleverly combined the requirements of both treaties, thus making service there more difficult for foreign attorneys.

Eddie Varón Levy, an attorney who practices in California and Mexico, is a former employee of the Mexican Central Authority who understands the challenges of service there. “They are very clever at putting up roadblocks to slow down the process of serving their corporations,” said Levy. “I know, firsthand, how the system works there. The only way around it is to fully understand how to bypass their obstacles.”

Mexico is not alone in using delaying tactics. Other nations such as Argentina, China, France, and India have become increasingly protective of their entities in an attempt to prevent assets from leaving the country as a result of a civil monetary judgment.

In other countries that are not as protective, service of process is as easy as it is in the United States. Such nations as Australia, Canada, Spain, Sweden, and the United Kingdom allow private process servers a free rein to complete service of process without governmental obstacles.

In summary, international service of process is something best left to professionals who understand the issues thoroughly. Process service firms that specialize in international matters can make an attorney’s job seamless and take the mystery out of dealing with foreign legal systems.

Visit http://www.processnet1.com/internat.htm for specific country information.

International Service of Process: Five Considerations

  1. If you plan to enforce the judgment in the foreign country, “formal” service is recommended. This method utilizes service of process pursuant to a treaty, such as the Hague Service Convention, or by letters rogatory.
  2. Only use an experienced and qualified process service company that understands the barriers to international service and can overcome them.
  3. Allow sufficient time for completion of service; this means taking into consideration work habits, customs, and bureaucracy, which, in other nations, typically cause delays that we do not experience here in the United States.
  4. Price is usually important, but the successful completion of the service in the foreign nation is the ultimate goal.
  5. Utilize the expertise of an international service of process specialist, preferably one who is local.

Advertisement

Value Pass CLE

 

  • Call for ILN Articles

  • Contact Us

  • International Law News

Buenos Aires 2014 Conference

 

  • Editor-in-Chief

  • Managing Editor

  • Sample Issues

Vancouver Conference 2014 ad