30Nov
Moscow skyline along river bank
By: Tom & Karina On: November 30, 2016 In: International Law, Service of Process Comments: 0

Because Russia is signatory to the Hague Service Convention,[1] a treaty regulating service of process among member countries, effecting proper service upon one of its citizens should be straight-forward.

Typically litigants serving pursuant to the Hague Service Convention have only to submit a Hague Request to the foreign Central Authority.  The Central Authority will forward the Request to a local court having jurisdiction over the defendant which will oversee service in accordance with the country’s internal rules (Article 5).

The reality of service of process in Russia is altogether different, though. Since 2003, the Russian Central Authority has refused to execute Hague Requests submitted by US litigants.[2]  Russia’s refusal stems from its objection to the United States’ imposition of a fee for executing Hague Requests seeking service upon US defendants.[3]  Russia may have a point:  by the terms outlined in Article 12, service pursuant to the Hague Convention should be free:

The service of judicial documents coming from a Contracting State shall not give rise to any payment or reimbursement of taxes or costs for the services rendered by the State addressed.

Indeed, the only other Hague member countries that charge a fee for service pursuant to Article 5(a) of the Hague Convention are Canada, Romania, Greece, Cyprus, the British West Indies and Australia.  China charges a reciprocal fee to litigants in those countries that themselves charge a fee for service of incoming Hague Requests.

Often if service cannot be effected pursuant to Article 5, litigants may serve pursuant to the alternate methods of service authorized by Article 10 of the Hague Convention.  Russia, though, objected to the alternate methods of service leaving service pursuant to Article 5 as the only viable option.

Two recent cases suggest a work-around to Russia’s intransigence. In Fisher v. Petr Konchalovsky Foundation[4] the plaintiff sought leave of the court to obtain service of process “by other means not prohibited by international agreement”[5] that are “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”[6] In Fisher, the court concluded that service in Russia pursuant to Article 5 of the Hague Service Convention is impossible and so granted the plaintiff’s request to serve process on the defendant via e-mail after finding the e-mail address provided for the defendant was proper.[7]

In a second case, Delex v. Sukhoi Civil Aircraft Company (SCAC),[8] the Washington State Court of Appeals addressed a similar issue. Delex had “served the summons and complaint on SCAC in Moscow, Russia, via registered mail and via personal service upon the director of SCAC’s Foreign Activity Legal Support Department in April 2012.” When Delex sought to enforce its default judgment on SCAC in 2015, SCAC challenged the propriety of service. In considering whether to uphold service of process in this case, the court agreed that service via the Russian Central Authority is the only proper method of service under the Hague Convention. Since that method was unavailable, however, the court upheld what amounts to service of process via extra-Hague Convention means, stating that it was “no more than what the United States has explicitly warned the Russian Federation that the United States courts would do.”

Even if litigants are able to serve via “extra-Convention” means in Russia, they should remember that such service would be an obstacle to enforcement of a US judgment in Russia.

The methods available for international service of process are often country-specific.  Should you need advice or information on obtaining international service of process, please contact us at 800-755-5775.

This article was written by Tom McLean, Esq. & Karina Shreefer, Esq.

[1] Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters: https://www.hcch.net/en/instruments/conventions/full-text/?cid=17.

[2] Nuance Commc’ns, Inc. v. Abby Software House, 626 F.3d 1222, 1238 (Fed. Cir. 2010).

[3] Legal Considerations: International Judicial Assistance: Russia, U.S. Dep’t of State, http://travel.state.gov/content/travel/en/legal-considerations/judicial/country/russia-federation.html (last updated Nov. 15, 2013) (follow “Service of Process” hyperlink)

[4] No. 15-cv-9831 (AJN)(USD SD NY Mar. 10, 2016).

[5] Fed. R. Civ. P. 4(f)(3).

[6] Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).

[7] See also In re Cyphermint, Inc., 445 B.R. 11, 15-17 (Bankr. D. Mass. 2011) (holding that alternative service was “sufficient and proper” because service under the Hague Convention had “been rendered impossible due to the unilateral action of the Russian Federation’s Central Authority”).

[8] No. 73068-1-I (Wash App. Ct., Apr. 18, 2016).

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