For those readers who are not familiar with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Service Convention”), it was established to facilitate service of process on parties living in another country. For those readers who are familiar, we hope that this article is not a PTSD trigger and only serves to make future encounters with the Hague Service Convention more manageable.
What Is the Hague Service Convention?
The Hague Service Convention was created to provide a standardized method of delivering documents that are legally sufficient to serve parties with notice of pending action between its signatories. It is the most widely recognized method of international process service and has even been added as a required method in some United States service statutes. That said, there are only 68 country signatories globally.
Why Should I Care About the Hague Service Convention?
If a judgment-creditor anticipates needing to enforce a US judgment or order in a non-US jurisdiction, due process is imperative, and properly serving the defendant under the service convention is critical. If service is found to be defective under the laws of a foreign country, it usually cannot be corrected and would affect subsequent enforcement.
Requirements vary from country to country and can be nuanced, which is not ideal for something with such high stakes for clients with interests abroad. We have seen a massive uptick in these requests as globalization continues to bring international litigation to the fore.
Getting the service process right the first time is important. It can take anywhere from a few months to years, and may be rejected for even the slightest error. For instance, mistranslations are common and are grounds for rejection. What’s more, it can take anywhere from a few months to years before you even learn that service has been rejected. If this happens, you will have to start the entire process again—causing significant delays and more than doubling the costs.
Sounds Scary. What Do I Need to Know?
Half the battle is understanding the importance of the Hague Service Convention, but it is also important to recognize that service processes vary depending on the situation. Be sure to prepare all necessary treaty documents and properly serve said documents via the central authority. Obtain quality translations that meet the requirements of the country you are coordinating with. Be prepared to update the court and your client on progress (depending on the country, service timelines can be upward of 18 months).
When Is the Hague Convention Not Needed?
Letters rogatory and private service are both options in countries that are not party to the Hague Service Convention.
Letters rogatory is a request for international judicial assistance, signed by the forum court in the US and forwarded through diplomatic channels to the courts of the foreign country. This is a formal process to consider when you believe you may need to ultimately enforce judgment. Some countries—Austria, for example—mandate this process.
Private service is an industry that generally does not exist outside of the US. There are some options available, but note that it is generally impossible to enforce a judgment in a foreign country if service was performed privately.
Whether you choose to follow the Hague Service Convention, letters rogatory, or private service, it is wise to work with a partner who understands the nuances of each country’s requirements and can work through the different service processes as an extension of a company’s team—removing the onus on the client to understand service specifics.