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. Most Central and South American nations have not ratified the Hague Convention. Mexico, Argentina and Venezuela are notable exceptions.
    2. Many members of the Organization of American States, however, have signed the Inter-American Service Convention. Its signatories include the U.S., Argentina, Brazil, Chile, Colombia, Ecuador, El Salvador, Guatemala, Mexico, Panama, Paraguay, Peru, Uruguay and Venezuela.
    3. As most of these nations are not Hague Convention signatories, the Inter-American Convention provides an important supplement to the Hague Convention when U.S. litigation implicates parties located in Central and South America.

      Practice Tip: Where the destination state has ratified both the Hague and the Inter-American Conventions, practitioners are more likely to prefer to serve under the Hague Convention as it permits service of papers unendorsed by the court clerk and the U.S. Central Authority, which the Inter-American Convention requires. See Part III.C below.

    4. The Inter-American Convention was intended to establish uniform procedures for service of process among its signatories. However, U.S. courts have held that the Convention does not provide the exclusive method of effecting service between signatories. See, e.g., Kreimerman v. Casa Veerkamp, S.A., 22 F.3d 634, 644 (5th Cir. 1994).
  2. Scope
    1. Article 2 provides that the scope of the Convention is limited to civil and commercial matters.
    2. Article 16 permits states to apply the Convention to criminal and administrative matters. So far, only Chile has declared that it will apply the Convention in such cases.
  3. Procedure
    1. As with the Hague Convention, each Convention signatory has established a Central Authority for receiving requests for service of process within its borders, and for making service pursuant to those requests.
    2. A party makes a request for service by completing an official Form USM-272/272A, available at the office of any U.S. Marshall. The request is comprised of an original and two copies of the Forms, and three copies of the summons and complaint or other documents to be served.
    3. Article 3 of the Additional Protocol specifies that “letters rogatory” be prepared as part of the request. The U.S. has taken the position that the Form USM 272/272A satisfies this requirement, and that a separate, formal letter rogatory is not required.
    4. All documents served with the Form USM 272/272A must be translated into the language of the destination state.

      Practice Tip: While the Form USM 272/272A is not itself required to be translated into the language of the destination state, good practice suggests that it be translated as well for ease of service by the nationals of the destination state.

    5. Unlike the Hague Convention, the Inter-American Service Convention requires that the Form bear the seal and signature of the clerk of the court from which the process issues, as well as the signature and stamp of the Central Authority of the state in which the court sits.
    6. Methods of service
      1. Requests for service under the Convention must be made via the Central Authorities in both countries. The U.S. State Department reports that requests not transmitted through Authority channels are often returned unserved. Upon receipt, the Central Authority in the destination state will make service by the method prescribed by local law.
      2. The Convention makes no provision for service by mail. Whether service in a signatory state by mail would be accepted is a question to be determined by reference to the local laws of the destination state.
  4. Difficulties in practice in making service under the Convention

    The U.S. State Department reports that there have been “some practical problems with implementation of the Convention” in certain states. It reports that some signatories have failed to designate Central Authorities for implementing the Convention’s procedures, while others claim not to receive requests transmitted by the U.S. Central Authority. When the process works, it can take six months to one year for a request for service to be completed. The State Department further advises that requests for service to Argentina and Peru generally receive more prompt treatment, generally completing service within three months.

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