The Kingdom of the Netherlands 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 November 15, 1965 and its provisions entered into force on January 2, 1976.
US attorneys seeking service in the Netherlands 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)).
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 channels of transmission provided by the Hague 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 the Netherlands is:
The Public Prosecutor for the District Court of the Hague
Prins Clauslaan 60 / 2595 AJ The Hague
Postbox 20302 / 2500 EH The Hague
Officier van Justitie
Prins Clauslaan 60 / 2595 AJ ’s-Gravenhage
Postbus 20302 / 2500 EH ’s -Gravenhage
Legal Authority for Service. Service through the Dutch Central Authority of foreign pleadings is authorized by Articles 45 through 66 and Articles 271 through 277 of the Dutch Code of Civil Procedure (“Wetboek van Burgelijke Rechtsvordering”).
Methods of Service. Dutch law provides for several types of service:
At present, service of foreign pleadings by fax or e-mail constitutes “simple notice” only and is not valid service in the Netherlands.
Caveat: Certain types of substituted service and mailbox service which are routinely effected under Dutch law may be deemed insufficient under US law.
Who effects service: a court bailiff (“gerechtsdeurwaarder”), clerk of the court (“griffie”), or postman (depending upon the method of service employed).
The Netherlands 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:
The Netherlands does not object to service in its territory by foreign diplomats upon Dutch nationals. (Pursuant to the Convention, the Netherlands cannot 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:
The Netherlands 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:
The Netherlands 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 the Netherlands, private process service is unknown, and only “gerechtsdeurwaarders” (court bailiffs) are empowered to serve process pursuant to Article 10. Dutch attorneys (other than “gerechtsdeurwaarders,”), 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 “gerechtsdeurwaarder” should not taint later enforcement of a US judgment in the Netherlands, although such enforcement is never guaranteed.
In the absence of a declaration to the contrary, the Netherlands has asserted that the Hague Service Convention applies to the entire territory of its Kingdom. Consequently, the Convention has been extended to the Caribbean nation of Aruba.
The Hague Central Authority for Aruba is the Procurator General, Havenstraat 2, Oranjestad, Aruba.
The Netherlands has not extended the Convention to the Netherlands Antilles.
The Netherlands requires an official translation into Dutch of all documents to be formally served (that is, served using compulsion) pursuant to Article 5, subparagraph 1 or Article 10(b) and (c).
Article 7 of the Hague Service Convention provides that the Hague model forms should be completed in English or in French or may be completed in language of the destination country.
The Netherlands does not require translation into Dutch 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, please 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 the Netherlands. 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 the Netherlands. 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 the Netherlands, for example, LLS can arrange for depositions to be taken before a commissioner or a consular officer and can secure the required prior permission of the Dutch judicial authorities, where necessary. 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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