Photo Credit: https://calspro.org/category/process-service/page/2/
By: Will Johnson
Member, American Journal of Trial Advocacy
For most attorneys, international litigation is a rare occurrence. As the world and its people grow increasingly connected, however, the opportunities for global disputes only increase. For example, in today’s worldwide economy, United States corporations may face litigation with foreign trade partners; an Australian customer may fail to pay for goods delivered to it in Melbourne; a Japanese-made car may catastrophically malfunction in Florida; or an American company’s data may be breached by a hacker in Greece. In fact, it is likely in many instances that one’s client may be dealing with a foreign-owned product or company without even realizing it. In most cases, should a dispute arise, United States plaintiffs will prefer to bring their cases in United States courts for a variety of reasons: to lessen the expenses of litigation; the perceived (or actual) partiality of domestic juries towards domestic litigants; or simple familiarity with the system and application of law. Service of process, a vital step in the litigation process, has all the makings of an intimidating, logistical nightmare. As such, a little knowledge on international service of process can be very useful, be it for one’s own peace of mind or as assurance to your clients that you are capable of handling some of their most complex needs.
In all lawsuits, the plaintiff is required to affect “service of process” against all defendants.[1] Simply stated, service of process requirements dictate that a plaintiff must serve upon the defendant a copy of the complaint stating the claims asserted along with a summons calling the defendant to answer those claims.[2] This service exists for the simple purpose of ensuring that the defendant has actual knowledge of the action being brought against him.[3]
Rule 4 of the Federal Rules of Civil Procedure details the acceptable means of service of process in the United States district courts.[4] Regarding service of a foreign individual or corporation, the rule provides for service “by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial documents.”[5] The rule further allows for service “not prohibited by international agreement,”[6] and addresses methods for service on foreign individuals or corporations where there are no internationally agreed means or if an international agreement allows but fails to specify other means.[7]
Generally speaking, to serve process on an international defendant the plaintiff must meet the provisions of the Hague Convention.[8] The Convention was drafted in 1965 in order to simplify and regulate service of documents between nations and to ensure that parties were served in a timely manner.[9] There are currently 75 signatory members to the Hague Convention, though not all countries have agreed to all methods of service outlined by the Convention.[10] As noted in Article 1 of the Convention, it applies to all civil and commercial matters wherein documents are transmitted between participating countries.[11] If service of process is not perfected according to the terms of the Hague Convention, the service is void.
In Rivers v. Stihl, Inc., Alabama’s Supreme Court outlined the steps necessary to satisfy the Hague Convention’s service of process requirements.[12] First, Article 2 of the Hague Convention provides that each state is to designate a Central Authority to receive requests for service of documents.[13] According to Article 3, requests for service—which must conform to a model annexed to the Convention—should be sent, along with the documents in question, by the judicial officer of the state in which the documents originate to the designated Central Authority of the country in which the recipient is located.[14] Article 5 adds that when the Central Authority of the State addressed receives a request, it is to arrange service according to its own internal laws.[15] Article 6 further provides that once service is perfected, the Central Authority must forward a certificate to that effect to the applicant.[16] Further, according to Article 4, if the request is insufficient for some reason, the Central Authority is to return it and the unserved documents, along with a statement of its objections to the applicant.[17] It is also worth consideration that Article 10 of the convention also prescribes several other viable means of service, including service by postage directly to the recipient, though countries may (and often do) object to the alternative methods.[18] Therefore, if planning to serve process by any of the alternative methods outlined in Article 10, it is vital to confirm it is a method accepted by the foreign nation.
The most reliable method of service is via the foreign state’s Central Authority. As noted above, the actual service portion of the convention through the Central Authority is outlined in Article 5. Pursuant to Article 5, when the Central Authority of the State addressed (i.e., the foreign state) receives the request to serve documents, it is obligated to arrange the service of those documents according to its own internal laws (Article 5(1)) or by a particular method requested by the applicant, unless that method is incompatible with the law of the State addressed (Article 5(2)).[19] Article 5 of the Hague Convention further notes if the document is to be served according to the internal laws of the State addressed, the Central Authority may require it to be written in, or translated into, the official language of the State addressed.[20]
In sum, while international service of
process can certainly be an intimidating prospect, a bit of knowledge concerning
the processes involved may help ease some of the anxieties associated with
international litigation. This
familiarity may be vital should cause for international litigation arise; domestic
plaintiffs will likely prefer to bring an action in domestic courts due to the
expense of international litigation, familiarity with the practice and
procedure of law in the United States, and favorability of the hometown crowd. Further, with the increasing globalization of
the world’s economy, the odds of international dispute may not be so remote as
first blush makes them appear.
[1] Hanna v. Plumer, 380 U.S. 460, 461-63 (1965).
[2] Id.
[3] Id.
[4] Fed. R. Civ. P. 4.
[5] Fed. R. Civ. P. 4(f)(1).
[6] Fed. R. Civ. P. 4(f)(3).
[7] Fed. R. Civ. P. 4(f)(2).
[8] Rivers v. Stihl, Inc., 434 So. 2d 766, 768 (Ala. 1983).
[9] Id.
[10] 14: Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, HCCH, https://www.hcch.net/en/instruments/conventions/status-table/?cid=17 (last updated July 29, 2019).
[11] Rivers, 434 So. 2d at 768.
[12] Id. at 769.
[13] Id.
[14] Id.
[15] Id.
[16] Id. at 769.
[17] Id.
[18] Id.
[19] Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters art. 5, HCCH, https://www.hcch.net/en/instruments/conventions/full-text/?cid=17 (last visited Oct. 27, 2019).
[20] Id.
American Journal of Trial Advocacy 