The Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”) is one of 37 multilateral Hague treaties drafted under the auspices of the Hague Conference on Private International Law, an intergovernmental organization which works to progressively unify the rules of private international law.
The Hague Service Convention was designed to provide a simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad. The Convention is a highly regarded and very functional treaty which facilitates the exchange of thousands of service requests annually between member nations.
In its first Article, the Hague Service Convention asserts that its provisions shall apply “in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.”
In its landmark 1988 decision, the US Supreme Court interpreted this provision to mean that, where the Hague Service Convention is in effect, and no agent for service can be found within the United States, the Hague Service Convention provides the exclusive means of effecting service of process upon defendants located in Hague member nations. The Supreme Court further held that by virtue of the Supremacy Clause, U.S. Const., Art. VI, the Hague Service Convention preempts inconsistant methods of service prescribed by state law in all cases to which it applies. (Volkswagen AG v. Schlunk, 486 US 694, 108 S. Ct. 2104, 100 L. Ed. 722 (1988)).
US judicial documents now routinely served abroad pursuant to the Hague Service Convention include summonses and complaints, judgments, injunctions, and show-cause orders.
Most Hague signatory nations (with the exception of Islamic law countries) agree that the scope of the Convention includes the service of legal documents relating to family law proceedings and excludes the service of documents relating to tax and criminal matters. However, Hague nations are divided when it comes to the question of whether the Convention extends to service of documents in arbitral matters. Likewise, many Hague nations will refuse to execute a Hague Request seeking service of a US subpoena abroad and will instead direct the applicant to the 1970 Hague Evidence Convention, a companion treaty which explicitly deals with evidentiary issues, letter rogatory or a formal application to its domestic courts.
The Hague Service Convention offers no fewer than eight direct or indirect channels through which litigants may legally accomplish service in a Hague destination state. The primary Hague channel provides for service via a designated Central Authority in the destination state in conformity with the internal laws of that state. There are also a number of derogatory channels and alternative channels; where the destination state does not formally object, these permit the applicant to circumvent the Central Authority and seek direct service upon a defendant in the destination state.
There are advantages and disadvantages to each of these channels in terms of cost, speed and viability. The channel selected also determines whether or not a translation must accompany the documents to be served. In the United States, plaintiffs typically seek service through a Central Authority or (where authorized) through a judicial officer or by mail. Note that all of these channels constitute good Hague service.