In many cases, a plaintiff may want to name as a defendant a person or entity located overseas, or an already named defendant may want to implead a foreign third party. But how do you serve such a foreign defendant if they do not live in a country that is a party to a multilateral treaty on judicial assistance? After all, proper service of process may be only way to secure jurisdiction over such a party.
For example, if the proposed defendant is located in a state that is not a signatory to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, more commonly called the Hague Service Convention (Hague Convention), letters rogatory are the customary means of obtaining judicial assistance from overseas in the absence of a treaty or other agreement. More simply, letters rogatory are requests from courts in one country to the courts of another country requesting the performance of an act such as service of process. Ordinarily, if done without the aid of a foreign court, service of process in such a country may be ineffective or violate that country’s sovereignty.
Letters rogatory may sound simple, but, in practice, they require careful attention to detail and can be time-consuming and costly. First, letters rogatory are customarily transmitted by way of diplomatic channels, which may take a year or more. For those with a local attorney contact in the foreign jurisdiction, the time involved may be shortened by transmitting a copy of the request through that attorney, but not all foreign jurisdictions authorize this type of service. Either way, parties deciding to use letters rogatory should “do their homework” to determine whether more efficient alternatives are available.
Second, the form of letters rogatory may depend on the country to which it is addressed, so local rules of the foreign jurisdiction should be reviewed and followed. For many jurisdictions, however, there are common essential elements of letters rogatory, including the following:
- A statement that a request for judicial assistance is being made in the interests of justice;
- A brief synopsis of the case, including identification of the parties and the nature of the claim and relief sought to enable the foreign court to understand the issues involved;
- The type of case;
- The nature of the assistance required;
- The name, address and other identifiers of the person overseas to be served;
- A statement from the requesting court expressing a willingness to provide similar assistance to judicial authorities of the receiving state; and
- A statement that the requesting court or party is willing to reimburse the receiving court for costs incurred in executing the requesting court's letters rogatory.
Once the draft letters rogatory are in proper form, letters rogatory must also be signed by the judge of the requesting court. Again, parties deciding to use letters rogatory should pay careful attention to detail, as letters rogatory may need to be translated into the official language of the foreign country and multiple copies of the letters rogatory may be required.
Third, letters rogatory are costly. The current fee for letters rogatory through the U.S. Department of State is $2,275, not including any fees that may be required for copying, translating, mailing and/or retaining a private process server to handle service. See 22 CFR 22.1 Schedule of Fees. Accordingly, while letters rogatory may be an effective way to serve a foreign defendant, parties should evaluate the particular facts of their case to determine whether a less burdensome alternative is available. For example, if the proposed defendant is located in a state that is a signatory to the Hague Convention, then service may be accomplished as permitted by the Hague Convention, but all parties still should pay close attention to make sure they are in compliance with the requirements of the foreign jurisdiction.
For additional information on letters rogatory, including a further discussion of the process by which such letters can be transmitted through the U.S. Department of State, any party can view the U.S. Department of State Bureau of Consular Affairs’ website.