The French Republic became signatory to the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, also called the Hague Service Convention, on January 12, 1967, and its provisions entered into force on September 1, 1972.
US attorneys seeking service in France would be wise to familiarize themselves with the mandatory character of the Hague Service Convention as set forth in the US Supreme Court case Volkswagenwerk A.G. v. Schlunk (486 U.S. 694 (1988)).
Canadian attorneys should consult provincial precedent — Canadian courts take a more nuanced view of the Convention, but effectively reach the same conclusion: its limitations must be observed. Regardless of forum court requirements, the service rules of the receiving country must be observed, or enforcement of a judgment may become impossible.
The Hague Service Convention offers plaintiffs a number of channels by which service may be accomplished in the foreign country. All of these channels constitute proper “Hague Service” under US law, although there are advantages and disadvantages to each in terms of cost, speed and enforceability.
The most commonly used channels for service under the Hague Service Convention are:
For further information about all of the Hague channels of transmission provided by the Service Convention, see below.
The Hague Service Convention provides that service may always be effected through the judicial system of the destination country. This is accomplished by filing a request with the Central Authority designated by that country (as described in Article 5 of the Convention), and requesting either formal also called compulsory service or informal also called voluntary service..
Hague Forms. The Hague Service Convention provides that a set of three model forms (“Request,” “Certificate,” “Summary of the Document to be Served,”) and one recommended form (“Notice”) must accompany the documents to be served. These forms are designed to summarize the key contents of the court documents and guide the defendant to the appropriate action.
Central Authority. The Central Authority for France is:
The French Ministry of Justice
Department of European and International Affairs,
Section on International Judicial Cooperation in Civil and Commercial Matters
13, Place Vendôme
75042 PARIS Cedex 01
Ministère de la Justice
Direction des Affaires Civiles et du Sceau,
Bureau de l’entraide civile et commerciale internationale
13, Place Vendôme
75042 PARIS Cedex 01
Legal Authority for Service. Service through the French Central Authority of foreign pleadings is authorized by Articles 688-1 to 688-8 of the New Code of Civil Procedure.
Methods of Service. French law provides for several types of service:
At present, service of foreign pleadings by fax or e-mail is not valid.
Caveat: Certain types of substituted service and mailbox service which are routinely effected under French law may be deemed insufficient under US law.
Who effects service: a court bailiff (“huissier de justice”), clerk of the court (“greffe”), policeman, gendarme, or postman (depending upon the method of service employed).
France has filed the following declarations with respect to the alternative channels of Hague service:
With regard to direct service upon nationals of the requesting state or direct service (without compulsion) upon nationals of the destination state via diplomatic or consular agent:
France objects to service in its territory by foreign diplomats upon French nationals. France does not object to service by foreign diplomats upon nationals of the diplomat’s own state.
Caveat: US litigants should be aware that US diplomats will generally not serve process abroad and this channel is rarely employed in US civil actions. (For further information, see US Consular Regulations).
With regard to direct service by postal channel:
France does not object to service by postal channel.
Caveat: Mail service pursuant to the Hague Service Convention is fraught with problems, including potential problems with later enforcement of US judgments in the destination state—even when the destination state has not objected to such service. US courts are also split regarding propriety of mail service under the Convention. US plaintiffs are advised to proceed with caution when employing this channel. (For further information, see Service by Mail.)
With regard to direct service by a judicial officer, official or other competent person of the destination state:
France does not object to service by judicial officer. The judicial officer is the resident bailiff of the court of first instance in whose jurisdiction the defendant is domiciled.
Caveat: “Judicial officer,” “official” or “competent person” are terms defined under the laws of the destination state, not under the laws of the requesting state. In France, private process service is unknown, and only “huissiers de justice”(court bailiffs) are empowered to serve process pursuant to Article 10. French attorneys (other than “huissiers”), detectives, policemen or private persons are not so empowered and service effected by such persons is improper. (For further information, see Service by Judicial Officers.)
Direct service through a huisser should not taint later enforcement of a US judgment in France, although such enforcement is never guaranteed.
In the absence of a declaration to the contrary, France has asserted that the Hague Service Convention applies to the entire territory of the French Republic. Consequently, in addition to Metropolitan France and its Overseas Departments (French Guyana, Guadeloupe, Reunion and Martinique), France has extended the Hague Service Convention to all other French overseas territories.
France requires an official translation into French of all documents to be formally served (that is, served using compulsion) pursuant to Article 5, subparagraph 1 or Article 10(b) and (c). See Article 688-6 of the Nouveau code de procédure civile.
France does not require translation into French for service effected pursuant to Article 5, subparagraph 2 (voluntary service) or Article 10(a) (mail service); however, note that US notions of due process will always require that the defendant understand the documents with which he or she is being served. US due process is a constitutional right under US law and as such, trumps the requirements of the Convention and foreign law.
For further information on translation requirements under the Hague Service Convention, contact us by phone at 1-800-755-5775 or by email at the International Litigation Support Department of Legal Language Services for a FREE consultation.
US subpoenas are not routinely served upon foreign witnesses pursuant to the Hague Service Convention.
Residents or citizens of the United States located abroad however must be responsive to US subpoenas served upon them. For further information on the issues involved, contact us by phone at 1-800-755-5775 or by email at the International Litigation Support Department of Legal Language Services for a FREE consultation.
On the other hand, any national who is not a resident or citizen of the United States is not required to respond to a US subpoena delivered to him or her in France. In essence, such a subpoena loses its coercive effect once it leaves US borders. Because it is no longer a coercive instrument, and because the witness is not subject to the jurisdiction of the issuing court, the question of “how to properly serve” a subpoena is irrelevant.
However, testimony and documents can be compelled from a non-party witness located in France. LLS can offer you extensive advice on various approaches to securing such evidence pursuant to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, also called the Hague Evidence Convention, and foreign law.
LLS can also assist you in arranging voluntary depositions of willing witnesses on foreign soil. In France, for example, LLS can arrange for depositions to be taken before a commissioner or a consular officer and can secure the required prior permission from the French judicial authorities. LLS can also provide court reporters, videographers, interpreters and videoconferencing for private depositions and formal hearings.
For further information, contact us by phone at 1-800-755-5775 (outside the US and Canada: +1.913.341.3167) or by email at the International Litigation Support Department of Legal Language Services for a FREE consultation and ask to speak to a specialist in foreign evidence-taking.
The information provided on this site is for informational purposes only and should not be construed as legal advice. The information is believed to be accurate at the time of posting; however, LLS is not responsible for any information which may have become outdated or inaccurate.
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