Given the international focus of my practice, I regularly serve process on parties located in foreign jurisdictions. Most of the time it’s straightforward because many of the countries I deal with are signatories to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, more commonly called the Hague Service Convention.
The Hague Service Convention is a multilateral accord that allows service of judicial documents from one signatory state to another without recourse to consular and diplomatic channels.
Contracting States include the United States, China, the United Kingdom, Japan, South Korea, India, Canada and France, as well as a number of other European countries. And just a few months ago, Australia signed onto the Convention.
The Convention greatly simplifies the service of court documents on persons and companies located overseas in civil or commercial matters. While the available avenues of service under the convention in any particular case depend on the reservations and service rules of the destination state (conveniently provided here), the steps below are applicable to most contracting parties.
It’s important to remember that under Rule 4(f)(1) of the Federal Rules of Civil Procedure, U.S. litigants are required to resort to the mechanism set forth in the Convention if service is to be made in any of the 61 signatory states.
Fortunately, effectuating service of process under the convention is refreshingly straightforward:
2. Locate the Address of the Central Authority. The address and complete contact details for all central authorities can be found here.
3. List Applicant’s Name and Address. The attorney representing the person seeking service should execute the portion of Form USM-94 marked "Identity and Address of the Applicant." In addition to the name and address of applicant, be sure to include a telephone and fax number.
4. Cite the relevant Statutory Authority: Most foreign central authorities know that private U.S. lawyers are generally authorized by U.S. law to effect service, and that Article 3 of the Convention permits counsel to complete the Convention request forms.
Nevertheless, some foreign central authorities continue to reject requests completed by attorneys unless the request form cites the specific U.S. or state law authorizing attorneys to serve process.
The best way to deal with this is to make sure that the statutory authority to serve the document appears prominently on the request form (note there is no designated space for this), stating that "service is requested pursuant to Rule 4(c)(2), U.S. Federal Rules of Civil Procedure" which authorizes any person who is not a party and is not less than 18 years of age to serve a summons and complaint.
Requests for service in matters pending in state courts should specify that the request is made pursuant to Rule 4(c)(2) of the U.S. Federal Rules of Civil Procedure and any pertinent state law.
5. Signature and Date (Page 1): Sign and date the signature block on the Request form. Do not complete the Certificate on Page 2 of the USM-94. This is the proof of service which will be completed by the relevant central authority after service is effected.
6. Provide Summary of the Document to be Served (Page 3): The applicant must also complete this part of the USM-94 and identify the documents to be served. e.g. Complaint for Damages, Petition for Injunctive Relief etc.
7. Send the Request: The completed request form and documents to be served and accompanying translation of the documents to be served, in duplicate (one original, one copy), should be mailed directly to the foreign central authority as provided by Article 3. No translation of the form itself is required.
Here are some additional practice pointers to keep in mind:
The Convention does not impose an obligatory time frame. Most countries take 30-90 days to effect service. Article 15, second full paragraph, sub-para (b) implies that the maximum time frame is 6 months.
Country Specific Issues
In the United States, an attorney for a party is designated by statute as a "Judicial Officer" and thus can send a service request directly to the "Central Authority" in the foreign state. However, it is important to see whether other countries will accept a direct request from a foreign attorney. Some countries, such as Israel, will not honor a service request unless it is executed by a judge or clerk of the requesting court.
France and Italy permit incoming service on their residents directly by mail. By contrast, Germany and Switzerland and most current or former communist countries require incoming service to be effected exclusively through their Central Authorities.
Other methods of service
In addition to the method set out above, the Service Convention allows a number of other methods for service. Where the State in which the document is to be served allows, documents can be transmitted: a) by posting the documents directly to the person to be served; b) through consular or diplomatic channels; or c) by sending the documents directly to a person authorized to serve the documents in the foreign State. Note that Fed. R. Civ. P. 4(f)(1) authorizes use of these alternatives where the receiving state has not objected.
The Hague Service Convention greatly simplifies and enhance the process for serving court documents in foreign jurisdictions. The framework provided for service in Contracting States is quicker and more cost-effective than the current methods used.
Once you’ve secured service of process on a foreign party, the next step is to gather all necessary evidence. That will be the subject of an upcoming post dealing with the Hague Convention on Taking Evidence Abroad in Civil or Commercial Matters.