06Nov
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Your client has been served with foreign process. Was service effected in compliance with the Hague Convention?

You’ve been consulting with a woman who is contemplating divorcing her husband who currently resides in Japan. The client has not yet officially decided to file because she hopes to work things out with her husband. One day, the client comes to your office to discuss a letter she received earlier that same day. The letter is in a business-sized airmail envelope with Japanese stamps from the “Tokyo Family Court” and is addressed to the client. Inside the envelope are eight pages of seemingly judicial documents written entirely in Japanese. Neither you nor your client is able to read Japanese. Then you ask a practical question: Assuming this is service of process from Japan (or any other country), is it valid?

The following steps will provide guidance to answer this question when the Hague Convention applies.

Step 1: In what country did the judicial documents originate?

The country of origin is important because it determines how service of process may be effected. Virtually all originating process from around the world is served by one of three procedural mechanisms:

  1. The Hague Service Convention (which governs international service of process involving most of North America, Europe, Australia, and Asia),
  2. The Inter-American Convention on Letters Rogatory and Additional Protocol (which governs international service of process involving the US and much of Central and South America), and
  3. Service via Letter Rogatory (which governs formal service of process in countries not party to the Hague or Inter-American Conventions).

Since Japan and the United States are both signatories to the Hague Convention, the service in our hypothetical must be analyzed in the context of that Treaty.

Step 2: Who in the Originating State requested service?

Only “competent” forwarding authorities or judicial officers may request service under the Hague Convention. In some countries, like China, only certain courts and the Central Authority may request service.

In other countries, like France, the courts as well as French bailiffs are authorized requesting authorities. Japan’s declarations indicate that only Japanese judges are competent to request service; so in our hypothetical, the mailing must have been authorized by the Judge.

Step 3: What are the documents being served?

After determining both which country and which official authority requested service of process, you must now determine the Destination country’s declarations to the Hague Convention.

In the above hypothetical the Destination country is the United States. So, step 3 involves a review of the US’s declarations to the Treaty. The declarations may modify the methods of service available to the plaintiff and may dictate a translation requirement. So, in addition to meeting the general rules outlined in the Convention, litigants must also abide by the Destination State’s specific declarations and reservations.

In its reservations and declarations, the US did not object to any of the methods of service permitted by the Hague Convention. This means that all methods of service — via the US Central Authority, via a competent judicial officer, or via mail — are all permitted in the US. Further, the US requires that the defendant be served with the Japanese court documents along with an English translation when seeking compulsory service via the US Central Authority.

In our hypothetical, the documents were provided in Japanese only. Service, though, was effected by mail, not through the Central Authority. The US’s declarations to the Hague Convention do not require that documents served by mail must be translated. If service had been routed via the Central Authority with no translation into English, then service would become voluntary and the defendant would be given the option to refuse service for lack of translation. This requirement is not applicable when serving by mail.

Remember, though, that service must comply in all cases with US due process requirements which mandate that the defendant be served in a language s/he understands.

Step 4: Do the originating state’s rules authorize the method of service?

To determine if the State of Origin has an enabling statute that authorize service, consult the local rules or a local attorney. Article 108 of the Japanese Code of Civil procedures provides that service of process abroad to a Hague Convention member country must be effected via the Destination State’s Central Authority.

Based on the above analysis, we can determine with a high degree of certainty that service by mail in our hypothetical was improper. The US permits service by mail, but Japanese rules require that service be effected via the Central Authority. Plaintiff cannot rely on the mail service provision of the Hague Convention and the US’s permissive declarations to circumvent Japan’s local rules.

If your defendant is served in a country not a party to the Hague Convention, the inquiry is similar. Contact Legal Language Services to review your documents for advice as to whether service was properly effected.

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