The world, as the cliché goes, is a global marketplace. Online businesses in the United States usually do not restrict themselves to selling to only clients within the country any longer. While the challenge of enforcing contracts was once bad enough in suing defendants in out-of-state jurisdictions in the United States, dealing with defendants in foreign legal systems is now becoming more commonplace.

But how can someone effectively serve legal documents on a defendant in a different national jurisdiction which is not subject to the Full Faith and Credit Clause of the Constitution? Bringing actions in the local courts of the defendant will only be as complicated as their legal system, but here is some information about the processes involved when an action is brought in the United States against a defendant in a foreign country.

Service of Process

While there is no issue in sending a claim from an Arizona court to a New York resident, there are diplomatic issues which could arise if an Arizona court seeks to serve process on a French national without following the proper protocols. The relevant process service treaty which applies to many countries, the United States included, is the “Convention on the service abroad of judicial and extrajudicial documents in civil or commercial matters,” commonly referred to as the “Hague Service Convention” or “HSC.”

The HSC provides that, unless a recipient State objects, the following freedoms exist:

a) The freedom to send judicial documents, by postal channels, directly to persons abroad,

b) The freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination, and

c) The freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.

This means that if an action is filed in an American jurisdiction where service of documents may be effected by mail, then as long as the recipient State has not put the other HSC parties on notice that they object to allowing their residents to be served by mail, the documents may be served abroad simply by mailing them to the foreign party.

If, however, the recipient State objects to allowing the signatory parties’ residents to serve its own residents by mail, then Paragraph b) or c) above may be followed, provided those are not objected to. If the recipient State wishes to be “that country,” and not allow any of the three abovementioned methods of service, then the HSC permits another method: Formally requesting judicial assistance through a Central Authority.

In order to request this assistance, the party seeking to serve the documents should have a Form USM-94 from the United States Marshals Service completed with the particulars of the case, the serving party, the party to be served, and the authority under which the documents are to be served. The foreign country’s Central Authority under the HSC must then be provided with the documents, and they will execute service and provide confirmation upon the service of process by returning the form with a Certificate of Service.

The Central Authority may vary by country, and there may be more than one. Canada, for example, allows its individual provinces’ Attorneys-General to each act as Central Authorities, while also having a federal Central Authority. In order to determine the location of the Central Authority in a foreign country, a litigant can contact the U.S. Department of State or the U.S. Consulate in the foreign country for more information. A list of most Central Authorities is listed on the Department of State’s website.

Taking of Evidence

The above explains how service of a document can be executed in a foreign country. However, once a civil action is filed and served on an opposing party, the matter of taking evidence from them is still an issue. For this, a party must prepare and deliver letters rogatory to the foreign jurisdiction. Different jurisdictions may have their own rules on how their nationals may serve these letters abroad, in order to prevent their citizens from starting any diplomatic incidents due to boorish requests to foreign courts. For example, 28 USC 1783 governs how courts of the United States may subpoena parties in foreign countries.

Certain details must be includes in the letters rogatory in order for them to be recognized by the foreign court. These include, but are not limited to, a description of the case, the parties involved, lists of questions to be asked, lists of documents requested, and so on. It is important that a judge, and not a court clerk, sign the letters.

If the foreign court finds that the letters are valid, they will compel the testimony or production of documents that they request. Keep in mind that unlike process service under the HSC, each country is much more chaotic about how letters rogatory will be dealt with. They are more a matter of court rules than of international treaties, and it is therefore important that a legal professional in the foreign country be consulted when preparing letters in the United States.

Summary

This article provides a brief overview of international law related to process service and discovery. Each case is unique, however, and because of the complex nature of foreign legal systems, you should seek the online legal advice of a qualified internet attorney. For more information about international process service and letters rogatory, contact an attorney.