Out of the hundreds of articles I’ve written for this blog, one of the most widely read has been 7 Steps to Effectuate International Service of Process under the Hague Service Convention.
That’s hardly a surprise given the complex nature of international service of process in general.
This post is a logical follow-up to that one because the Inter-American Service Convention (IASC) provides an important supplement to the Hague Convention when United States litigation implicates parties located in Latin America.
What follows is a general is a general overview of how to effectuate service under the IASC.
The Inter-American Service Convention
Replacing the traditional letters rogatory process, the IASC provides a mechanism for service of documents by a foreign central authority. The Department of Justice is the U.S. Central Authority under the IASC. Requests from the United States are transmitted via a private contractor carrying out the service functions of the U.S. Central Authority on behalf of the Department of Justice.
The IASC was intended to establish uniform procedures for service of process among its signatories. Signatories include the US, Argentina, Brazil, Chile, Colombia, Ecuador, El Salvador, Guatemala, Mexico, Panama, Paraguay, Peru, Uruguay and Venezuela. Only Mexico, Argentina and Venezuela ratified the Hague Convention.
1. Request for Service Form and Case Initiating Documents.
The request is comprised of an original and two copies of the forms, and three copies of the summons and complaint or other documents to be served.
Article 3 of the Additional Protocol specifies that “letters rogatory” must be prepared as part of the request. The US has taken the position that the Form USM-272/272A satisfies this requirement, and that a separate, formal letter rogatory is not required.
Unlike the Hague Service Convention, the IASC requires the form, i.e., Form USM-272/272A, to bear the seal and signature of the judicial or other authority of the country of origin and the signature and stamp of the Central Authority.
The clerk of the court in the U.S. where the action is pending must place their seal and signature on the form where it reads “Signature and stamp of the judicial or other adjudicatory authority of the state of origin”. The Department of Justice’s contractor will execute the signature/stamp of the U.S. Central Authority.
2. Translations of Documents
All documents served with the Form USM-272/272A must be translated into the language of the destination state. Although the Form USM-272/272A is not itself required to be translated into the language of the destination state, good practice suggests that it be translated as well for ease of service by the nationals of the destination state.
3. Method of Service under the IASC
Requests for service under the IASC must be made through the Central Authorities for both the originating and destination states. As with the Hague Convention, each IASC signatory has established a Central Authority for receiving requests for service of process within its borders and for making service pursuant to those requests.
The Central Authorities for several IASC contracting states are listed on the Organization of American States’ Department of International Law website.
The US State Department reports that requests not transmitted through Authority channels are often returned unserved.
After receiving the required documents, the Central Authority in the destination state will make service by the method prescribed by local law.
The IASC makes no provision for service by mail. Whether service in a signatory state by mail would be accepted is a question to be determined by reference to the local laws of the destination state.
4. Proof of Service
The foreign central authority will execute page 7 of the form as proof of service.
Service by Mail: Neither the Convention nor the Additional Protocol expressly provide for service by mail. Litigants should consult local counsel to determine if mail or other methods of service are available, and what effect the use of alternative methods might have on later efforts to have a U.S. judgment locally enforced. Be sure to visit the Department of State Bureau of Consular Affairs to determine whether service by mail is accepted in the destination state.
Time Frame: The time required to execute a Convention request is not much faster than the letters rogatory procedure in some countries. As a general rule it may take from 6 months to a year for a request to be executed. The U.S. Central Authority advises that Argentina and Peru have succeeded in processing requests more quickly, generally within three months.
The Inter-American Service Convention simplifies and enhances the process for serving court documents in many Latin American countries. While the IASC is not much faster (in most cases) than the traditional letters rogatory, it provides for a more formalized mechanism for service of process in contracting states.