Proskauer Rose International Practice Guide Proskauer Rose LLP |
      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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  1. Overview
    1. The Hague Convention provides the most commonly-used method for serving parties in civil or commercial matters outside the U.S. Over 70 nations have ratified the Convention, including most Western European nations, China, and the Russian Federation. Most but not all EU member states are signatories. Few Southern Hemisphere states have signed.
    2. The Convention codifies universally-accepted procedures for service of process in civil or commercial matters among the signatories, and eliminates the need to serve process through consular or diplomatic channels.
    3. Generally, the Convention provides three methods for service:
      1. Use of the state’s designated Central Authority;
      2. International registered mail; or
      3. Direct service through an agent in the destination state.
    4. Practice Tip: While the Hague Convention is intended to provide uniformity of practice among most of its signatories, some countries have made specific reservations regarding particular methods of service. Practitioners must be aware of these reservations and their impact on service in a nation that has ratified the Convention subject to them.
    5. Fed. R. Civ. P. 4(f) specifically incorporates the Hague Convention as a proper method of service upon individuals in foreign countries.
    6. The Convention in most instances provides the exclusive means for service of U.S. process in signatory states. Article 1 of the Convention states that it “shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” The Supremacy Clause of the U.S. Constitution (Article VI) pre-empts all U.S. laws and rules to the contrary. See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988).
  2. Service Via a Designated Central Authority under the Hague Convention
    1. Article 2 of the Convention requires each signatory to designate a Central Authority that acts as service agent for process to be served under the Convention. Most commonly, litigants will choose to effect service through this Central Authority.
    2. Request for Service Form. Article 3 of the Convention states that litigants wishing to effect service via a signatory’s Central Authority must file a formal request form with the Central Authority. In the U.S., litigants file a Form USM-94, available from any office of the U.S. Marshall’s Service.
      1. Form USM-94 must be fully completed by the lawyer representing the party seeking service. As an officer of the court, a U.S. lawyer for a party seeking service is authorized to act as a requesting authority under the Convention.
      2. The Form must be accompanied by two copies of the documents to be served. Generally, documents must be translated into the official language of the foreign country.
      3. Once completed, the party seeking service mails the Form and its attachments directly to the Central Authority for service

        Practice Tip: It may prove useful to enlist the services of local counsel or of process servers specializing in international service under the Convention to deliver the documents to the Central Authority and help move the documents through the legal system of the nation in which service is to be made.

    3. Method of service: Article 5 of the Convention states the methods by which process shall be served in the destination state. The Form must specify the method of service the party wishes the Central Authority to employ.
      1. Formal: Allows for Central Authority itself to serve documents by a method prescribed by its internal law for service of documents in local actions for persons within its territory.
      2. Informal: Allows for service by delivery to an addressee who voluntarily accepts it. The U.S. State Department reports that service by this method is the most common, and is usually made by a local police officer in the destination state.

        Practice Tip: Rule 4(d) of the Federal Rules of Civil Procedure permits parties to waive formal service. A defendant has certain incentives to agree to waive service under Rule 4(d); for example, it is afforded 90 days (not 20) to answer or move in response to the summons and complaint. Where a defendant is willing to accept service voluntarily, litigants ought consider proceeding by Rule 4(d) waiver to avoid the costs associated in translating and serving documents under the Convention’s formal rules. See Rule 4, Advisory Committee Note.

      3. Other: Article 5(b) permits the applicant to specify a particular method of service, so long as the method is considered compatible with the laws of the destination state.
      4. Corporations: Under the Hague Convention, it is possible to serve process on a corporation outside the U.S. by serving one of its U.S. subsidiaries, provided that the party effecting service can show an agency relationship between the two corporations that goes beyond the parent’s mere ownership of the subsidiary. See Darden v. DaimlerChrysler North America Holding Corp., 191 F. Supp. 2d 382, 387-88 (S.D.N.Y. 2002). The U.S. Supreme Court has ruled that such service occurs outside the Convention’s framework. See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. at 707-08.
    4. Proof of Service: Article 6 of the Convention provides for proof of service. The reverse side of Form USM-94 contains a Certificate of Service form, which is to be completed by the Foreign Central Authority (or the entity it designates to make service) and returned to the party requesting service.
    5. Time Frame
      1. No time frame for service is specified in the Convention. However, Article 15 of the Convention provides that alternative methods of service may be used if a Central Authority does not respond within six months of a request for service.
      2. Because the Convention does not provide a time for making service under its procedures, Rule 4(m) of the Federal Rules of Civil Procedure exempts service in a foreign country from the normal requirement that a summons and complaint be served within 120 days after filing.

        Practice Tip: The Hague Conference on Private International Law advises that most Central Authorities can accomplish service within two months. However, our experience has shown that the process can take as much as six months to effect service and return proof of service to the party that requested it.

  3. Service Via Postal Channels under the Hague Convention
    1. Article 10(a) of the Convention preserves the right of litigants to effect cross-border service of judicial documents between signatory states via “postal channels,” provided that “the State of destination does not object.”
    2. There is disagreement in U.S. courts as to whether this provision relates specifically to service of process, or to judicial documents served after suit has been instituted. See Ackermann v. Levine, 788 F.2d 830, 839 (2d Cir. 1986) (permits service of process by mail); accord, e.g., Brockmeyer v. May, 383 F.3d 798, 803 (9th Cir. 2004). But see Bankston v. Toyota Motor Co., 889 F.2d 172, 173-74 (8th Cir. 1989); accord, e.g., Nuovo Pignone v. Storman Asia M/V, 310 F.2d 374, 384 (5th Cir. 2002).
    3. Practice Tip: The better-reasoned approach would appear to be that the Convention does in fact permit service by mail, as this is the position advanced by the U.S. representative to the Convention negotiations, and is also the position taken by nearly all other Convention signatories. See Ackermann, 788 F.2d at 839; Brockmeyer, 383 F.3d at 803. In any event, practitioners must be aware of the position taken by the Circuit in which their action is pending when deciding whether to attempt to effect service by mail under the Convention.
    4. Consistent with Article 10(a)’s condition, U.S. courts have held that international mail service is not proper where countries have entered appropriate reservations against this method of service. See, e.g., Knapp v. Yamaha Motor Corp., 60 F. Supp. 2d 566, 573 (S.D.W. Va. 1999).
    5. Practice Tip: If attempting service by mail, the better practice is to serve by registered mail. Some courts have approved service by registered mail, while finding service of process by ordinary mail to be ineffective. See, e.g., Hein v. Cuprum, S.A., 136 F. Supp. 2d 63, 70 (N.D.N.Y. 2001).
  4. Service Via Agent under the Hague Convention
    1. Article 10(b) and (c) of the Convention preserves the right of litigants to effect cross-border service between signatory states “directly through the judicial officers, officials or other competent persons of the State of destination,” again provided that “the State of destination does not object” to direct service.
    2. Practice Tip: Making service through the designated Central Authority is the surest and most efficient way to obtain jurisdiction over a litigant found outside the U.S. In instances where time is of the essence, practitioners might wish to consider direct service where it is permitted by the destination state as a speedier alternative to service via the Central Authority.

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