ARTICLE: INTERNATIONAL SERVICE
INTERNATIONAL PROCESS SERVICE:
PROGRESSING TOWARD CONVENIENCE
OR JUST LIP SERVICE?
An overview of the recent Hague Special Commission on the
Hague Service Convention and the Hague Evidence Convention
Celeste Ingalls
[email protected]
The Permanent Bureau of the Hague Administration conducted
its Special Session (“Session”) February 2 thru 12, 2009 in The
Hague, Netherlands. This convened a Special Commission to
discuss pertinent issues including those related to the operation
of The Hague Service Convention and Hague Evidence
Convention.
The Special Commission consisted of delegate representatives
of many of the current signatory countries to these conventions
(though unfortunately not all), a few specially invited observers
(such as myself, Gary Crowe, Cara LaForge and a couple
international legal associations) and delegate representatives of
many countries that are not currently signatory but are
considering signing on to one or more of these conventions.
Two of those countries worth mentioning, who are considering
signing on to both the Service and Evidence Conventions, are
Australia and Brazil. Both declared that their governments are
currently working on accession documents and protocols and
plan on becoming signatories in the coming year.
The location of the Session was indeed spectacular. It was held
in the newly built administrative wing on the grounds of the
prestigious Peace Palace. Though the original administrative
buildings were plush with character and history, we are told they
were a maintenance nightmare and were torn down to make
room for the new facility which also houses an international
legal library.
While the Session was informative on many issues, each day
consisted of very lengthy discussions and at times contained
more protocol than useable content. Many of the delegates
danced around the issues and refused to commit to an answer,
insisting instead that they must consult with their colleagues at
home (uh, China springs to mind with clarity).
The issues discussed were fascinating to be sure, but not all
issues applied to the plight of the American private process
server. The following is a summary of the portions applicable to
private process servers:
HAGUE SERVICE CONVENTION
Some of the important issues discussed regarding the Service
Convention included the current problems in many countries
with completion time frames, specific restrictions imposed by
individual countries, what kind of cases constitute “civil”
actions (and are therefore servable under the Convention) and
whether or not “private” service, service by “mail”, and in fact
“email or electronic transmission”, were “allowed” or rather not
objected to, and therefore not in violation of the Convention,
and if so, was it “valid” in the country of service.
Although I believe two of the most important issues for NAPPS
members are service time frames and the issue of “valid”
“private” or “mail/email” service, I am also going to touch on a
couple of other issues, namely the specific ability of individual
countries to impose what we would consider unreasonable
restrictions, and who, as “Applicant”, can request service
through a Central Authority under the Convention.
Regarding who is authorized as an Applicant to request service
through a Central Authority, it was decided in 2003 that each
individual signatory country had the authority to declare/decide
for itself who was authorized to request service from their
country (for reference, United States courts have ruled that this
requirement is based upon who is authorized to serve process
within the jurisdiction of the forum court). However, it became
clear at this present Session that a few of the countries present
still interpret Article 3 based upon their own internal laws. For
those countries, this usually means that the only persons
authorized to request service are actual judicial personnel, such
as a judge, clerk of the court, etc. In those instances, private
process servers, and even counsel in some instances, are not
considered by the foreign authorities that receive requests to be
judicial officers of the forum court and, therefore, have no
authority to request service without specific authorization
(usually court order) from the forum court itself. In the end, the
general consensus was that each country determines for itself
who can request service, but that it remained up to each
individual country to draw on their own interpretation of who
they will accept as a person authorized to request service.
Regarding the unreasonable restrictions, it appears many
countries have them and they do not declare them. The
Permanent Bureau of the Hague Administration expressed a
sincere request that each country declare as many of these
restrictions as possible, but such action is voluntary on the part
of the signatory country which currently makes it necessary to
either operate on a trial and error basis or work with someone
who has previous experience and is familiar with the process.
One important restriction dealt with what kind of cases were
considered “civil” and therefore could be served versus cases
considered “not civil” and therefore would not be served
through the Convention. This was a difficult issue because any
ARTICLE: INTERNATIONAL SERVICE
United States case being served (unless it’s criminal) would
generally be considered a civil case. Not so in many foreign
countries. In addition, many of the signatory countries do not
know, and have never contacted another signatory country in an
effort to determine, what other countries consider to be “civil”.
Therefore, the Central Authorities of many countries also use
the trial and error approach. The following is an example of
how many of the countries voiced their interpretation of what is
and what is not considered “civil”:
a.
b.
c.
d.
e.
The Slovak Republic delegate indicated that
Bankruptcy cases are not considered “civil” cases in
the Slovak Republic and therefore service is not
applicable under the Hague Service Convention. This
would include cases to void/recover Bankruptcy
preferential transfers.
Slovak Republic and Argentina indicated that they
consider “Bankruptcy reorganization” cases (such as
Chapter 11 cases) “not civil” matters and therefore
service is not applicable under the Hague Service
Convention.
Canada, Hong Kong, Croatia, Czech Republic,
Finland, Germany, Latvia, Mexico, Poland, Romania,
Slovak Republic and Switzerland indicated that they
consider Social Security matters “not civil” and
therefore service is not applicable under the Hague
Service Convention.
Argentina, some Provinces in Canada, Croatia,
Mexico, Monaco, Romania, and Slovak Republic
indicated that “Anti-Trust” and “Unfair Competition”
cases are “not civil” and therefore service is not
applicable under the Hague Service Convention.
Mexico indicated that it views insurance cases as “not
civil”, though this is interpretive on what is considered
an “insurance case” and they did not make that clear.
For Mexico, this also holds true for labor and
employment issues.
HOWEVER, there is also an important issue that needs to be
pointed out: although the Hague Conventions are in fact
international treaties, their obligatory nature is in fact voluntary
and currently there is no provision for true enforcement of any
of the articles. There has also, to date, never been an instance
where a country that has violated a Convention article has
experienced any consequence. In addition, although many
countries make declarations regarding requirements, or lack
thereof, many countries act otherwise. For example, my
personal experience has shown that some of the above countries
that have voiced a steadfast opinion on what is NOT CIVIL
have in fact served such “not civil” documents under the Service
Convention and vice-versa. This can make maneuvering
through the issues and making recommendations to your clients
difficult when you cannot even trust a country’s open
declaration on its position.
A very heated issue in the US is service by mail. This is a
complicated issue. Many of the countries present indicated a
willingness to allow service by mail. HOWEVER, it is very
important to point out that although “ALLOWED”, it must also
be noted that such service would not always be accepted as valid
for the purpose of later enforcing a judgment in that country,
especially in default situations. A main point regarding mail
service was that it did need to be generally considered a valid
method of service under the provisions of the forum court rules.
It was agreed that if mail service was not objected to and was
allowed under the forum country’s laws, that translation was not
“required”. But the issue of it not being considered valid in the
foreign country is accentuated if mail service does not include a
translation of the official language of the country. In addition,
many countries have a caveat that if it is proven that the
defendant understands the language the documents are written
in, no translation into the service country language would be
necessary, but the concept of “proof” of this was not discussed
(this is also an interpretation or declaration that is strictly
adhered to by any country). Some countries reiterated their
objection to service by mail.
An important note at this point would be to mention that
European Union countries utilize mail service between them,
but it is a specific internal method of mail that they have access
to and most require a translation for such service to be
considered valid.
HAGUE EVIDENCE CONVENTION
This is a difficult issue because there is no real standardized
procedure or rule. Compulsory evidence acquisition can be
complicated because compelling evidence from their citizens is
one thing that nearly all countries are passionate about keeping
control of. This means that it will always be done in accordance
with THEIR laws, most of which are much stricter than any US
attorney has ever experienced. Many will not allow a foreign
national to question their citizens or have any control at all over
the testimony. Although some issues were touched upon, all the
discussions were vague or abstract with no commitment from
anyone on any specific points.
In closing, it should be pointed out that, IN GENERAL, there
are no guarantees with any international service, but the Hague
Service Convention continues to be widely used and is
considered a valuable tool between countries. For service from
the United States, it is always safer to use the Service
Convention, than not, especially if your clients anticipate a need
to attempt enforcement of a US court order or judgment in the
foreign country. For evidence, it remains necessary in most
situations to utilize the Hague Evidence Convention for
compulsory acquisition, but in other instances, the Evidence
Convention is just too cumbersome if there are other options.
However, it is also very clear that each country is very different,
interprets all proceedings based upon their own laws and most
are intent upon protecting their citizens and their judicial
sovereignty, leading them to retain as much control over judicial
proceedings as possible.
Celeste Ingalls
Crowe Foreign Services
Portland, Oregon
(800) 365-6945