Consideration of Enforcement Determines Method of Service
Your client has a valid claim for damages, you have assembled a winning case, and you are ready to proceed with a suit. The first step is filing the complaint. The second: serving a summons on the defendant.
If the defendant is across town, you hire your usual process server, and it gets done within a few days. Across the country, the procedure requires a bit more legwork, but is not much more complicated.
But what if the defendant is in Austria or Taiwan or New Zealand? You must analyze your options more thoroughly — and those options may be numerous or quite limited. That analysis requires that you think about what happens after you win the case, when you need to enforce the judgment in that foreign land.
Service of Process: Selecting a Method
Enforcement is a crucial consideration in determining how best to serve process on a defendant abroad, but it is not the only variable in the service equation. To make the best determination, counsel must take a broad view of several sets of complex rules, not the least of which is international law.
Certainly, a range of service channels are available to litigants in the US and abroad. Common in the US is personal service, whereby a private process server hands documents to a defendant and then submits an affidavit telling the court that the defendant is on notice.
A sheriff’s deputy or court bailiff might also perform the same function. Various jurisdictions, including US District Courts, allow service by mail. In all cases, if proper service is ignored, the plaintiff is likely to win a default judgment.
These methods — and more — are also available in other countries, but they are not all recognized everywhere. Private process servers are unheard of in some countries. Mail service is prohibited in others.
Knowing which methods are permissible under different bodies of law is essential to proper service. Those bodies of law must be balanced against each other, and against the particular needs of the litigant.
First, the rules of the forum court must be observed. Second, service must comply with the rules of the jurisdiction in which it is effected. The relationship between the two is determined by international custom and treaty restrictions.
Considerations of International and Foreign Law
When process is served in a country that has joined the Hague Service Convention, specific procedures must be followed, and US courts should only recognize service effected pursuant to those procedures. Enforcement is not such a concern, because service executed within Hague parameters is valid in the foreign jurisdiction as a matter of course.
When the defendant is in a country that lacks a service treaty with the US, American courts have more latitude in deeming service to be proper, even if it isn’t specifically permitted in the receiving country.
This is not, however, the end of the analysis. Counsel must think beyond adjudication of the claim in the forum court. If a US judgment must be enforced in another country, the foreign court will invariably examine whether service was effected fairly under its own rules. If it wasn’t, enforcement will almost certainly be denied.
In either case, an effective strategy includes the right method of service. Choose the wrong way to serve a defendant, and you might still win the case… but you will not be able to enforce the judgment in the foreign country.
The Right Method of Service
Once the bodies of law have been balanced, the needs of the litigant determine which option is best. Cost is certainly a major factor, but speed is also important, and the two are often in direct conflict; a faster method may justify significantly higher expense.
Legal Language Services provides service of process in more than 90 countries, under two treaties and under the standard Letter Rogatory process. Our legal staff can advise you on a range of options, and help you to select the most appropriate channel of service.
Call 800-755-5775 for a consultation.