The Hague Service Convention, fully titled The Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 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, and, where certified by the receiving state, service is extraordinarily difficult to quash.
Legal Language Services can assist you in serving process pursuant to the Hague Service Convention. Contact us by phone at 1-800-755-5775 (outside the US and Canada: +1 913-341-3167) for a free consultation.
The Hague Service Convention offers plaintiffs a number of channels by which service may be effected 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.
Article 5 of the Convention allows a member country to require that documents served therein be translated into its official language. Article 7 requires that Hague model forms be completed in English or in French or, alternatively, in the language of the destination country. Further, US notions of due process will always require that the defendant understand the documents with which he or she is being served. As a constitutional right, due process trumps the requirements of the Convention and foreign law in any action before US courts.
Frequently, all documents served must be translated into at least one language other than English. The exact language to be used is determined by the defendant’s native tongue and the jurisdiction in which he or she is domiciled. It is wise to consult with regional judicial authorities about choice of language prior to commencing translation.
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 routine service (according to the jurisdiction’s normal method) or service by a particular method permitted by local law.
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. Our staff has become adept at ensuring the proper completion of these documents.
(Note that certain types of substituted service and mailbox service may be routinely effected under foreign law, but may have adverse Due Process implications in US jurisdictions. Though often time-consuming, all process served via the Central Authority channel is deemed to have been proper in the foreign jurisdiction, and US courts will generally not look behind the foreign Central Authority’s proof of service. Northrup King v. Compania Productora Semillas, 51 F. 3d 1383, 1390 (8th Cir. 1995).)
US diplomats are specifically prohibited from directly serving process. The diplomatic channel is often used in non-Hague Convention service, where service must be conveyed via the foreign state, but Hague Articles 8 and 9 are inapplicable to US litigants.
Individual member states may or may not object to service by mail, just as many US jurisdictions allow or disallow service by mail.
Mail service pursuant to the Hague Service Convention is fraught with problems—even when the destination state has not objected to such service. American jurisdictions are split regarding propriety of mail service under the Convention. Plaintiffs are advised to proceed with caution when employing this channel.
Article 10(b) refers to “judicial officers, officials or other competent persons of the State,” and article 10(c) refers to “interested persons.”
“Judicial officer,” “official,” “competent person,” and “interested person” are terms defined under the laws of the destination state, not under the laws of the requesting state. As such, US practitioners should not assume that hiring an official or private process server will comply with the Convention.
US subpoenas are not 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, international law notwithstanding.
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 overseas. 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 other countries. LLS can offer you extensive advice on various approaches to securing such evidence pursuant to letters rogatory and foreign law.
We can also assist you in arranging voluntary depositions of willing witnesses on foreign soil, and we 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) 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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