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. Different rules apply to “states” v. “agencies and instrumentalities”
  2. Service on “states” 28 U.S.C. § 1608(a): Four possibilities, to be used in the order presented:
    1. By “special arrangement” of the parties – i.e. by a pre-dispute contract or by post-dispute agreement, such as an agreement to accept service on counsel.
    2. If not (a), then Pursuant to an applicable international convention governing service of process – e.g. the Hague Convention.
    3. If not (a) or (b), then by sending the Complaint, Summons, and a “Notice of Suit” to the head of the ministry of foreign affairs for the relevant foreign state.
      1. This method can only be used if the foreign state has a method for return receipt mail, which method must be used.
      2. The Notice of Suit and other documents must be sent by the court clerk for the relevant U.S. court.
      3. The U.S. Department of State promulgates regulations and forms for the Notice of Suit. 22 CFR 93.2; see also (Checklist for Plaintiffs filing suit under the FSIA)
      4. All documents must be fully translated into the official language of the foreign state.
    4. If not (a),(b), or (c), then by sending two copies of the Complaint, Summons, and Notice of Suit to the Director of Overseas Citizen Services for attempted delivery through diplomatic channels. Again, all documents must be translated, sent by the court clerk, and sent by return receipt mail.
  3. Service on agencies and instrumentalities 28 U.S.C. § 1608(b): three possibilities
    1. By “special arrangement,” see above.
    2. If not (a), then delivery in the U.S. of the Complaint and Summons to an officer, managing or general agent, or an agent for service of process OR pursuant to an international convention for service of process.
    3. If not (a) or (b), then three more possibilities if “reasonably calculated to give actual notice”:
      1. Any form of mail requiring a signed receipt sent by the court clerk to the relevant agency or instrumentality;
      2. In a manner directed by the U.S. court consistent with the law of the place where service is to be made; OR
      3. By delivery of the Summons and Complaint, with translations, by a method directed by the foreign state in response to letters rogatory or a request.
  4. Practice Tip: The requirement of full translation of the Complaint may counsel against attaching lengthy contracts and other documents to the Complaint to save costs and time.
  5. Time for Service: Because service under the FSIA may be difficult, service need not be perfected within the ordinary 120-day timeframe IF service is being effected in a foreign country. Fed. R. Civ. P. 4(m).

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