Cross-Border Law: International Process Service

international process service 101
How to handle international service process.

We may aim to “Buy American,” but the goal of most companies is to sell globally. But the global marketplace means more than an increased pool of potential customers, it also means adherence to various cross-border legal regulations — like international process service rules.

So, how can you serve legal notice to someone in a foreign jurisdiction that is not subject to the “Full Faith and Credit Clause” of the Constitution? Keep reading to learn the basics of international service notice, as it related to lawsuits.

Service Process When The Two Parties Are In Different Countries

The process service treaty that applies to most international lawsuits initiated by an American 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 for the following rights in international process service proceedings:

  1. The freedom to send judicial documents, by postal channels, directly to persons abroad;
  2. 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
  3. The freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through government officers, officials or other recognized, competent persons in the State of destination.

In other words, if the country in which the “served party” doesn’t object to sending a lawsuit notification via “snail mail”, then a U.S.-based plaintiff, pursing a case against a foreign adversary, can use the mail system to notify the would-be defendant of the action.

If, however, the recipient State objects to mail service, then Paragraph b) or c) above come into play, provided those methods are not also objectionable to the “receiving” State. If all methods fail, then the HSC instructs petitioners to formally request judicial assistance through a central authority.

United States citizens that have no other option than to seek “formal judicial assistance through a central authority” must complete Form USM-94 from the United States Marshals Service, which then must be sent to the would-be defendant’s designated “central authority.” Once said foreign government body or agency receives your Form USM-94, it is required to provide confirmation receipt by returning it along with a Certificate of Service.

Each country has a designated “central authority” for the purposes of legal service notification issues — some have more than one. Canada, for example, allows its individual provinces’ Attorneys General to each act as central authorities under the HSC, in addition to having a federal central authority agency. To find out the designated central authority for a country, litigants can contact the U.S. Department of State or the U.S. Consulate in the foreign country for instructions on how to proceed. Also, a list of Hague member central authorities is listed on the Department of State’s website.

First Comes Service Notification, Then Comes Evidence Collection

Once a civil action is filed and served, its time to collect evidence. To do this, a party must prepare and deliver letters rogatory to the foreign jurisdiction. Different jurisdictions have different rules regarding foreign evidentiary issues. For example, 28 USC 1783 governs how courts of the United States may subpoena parties in foreign countries.

Certain details must be included in rogatory letters  for them to be recognized by a foreign court including (but not limited to):

  1. A description of the case;
  2. Name of the parties involved;
  3. A list of questions to be asked;
  4. A list of requested documents.

A judge, not a court clerk, must sign a rogatory letter.

If the foreign court finds a petitioners paperwork to be in order, it will compel the testimony or production of requested documents from their citizen (your adversary). Keep in mind that international legal administration is more about court rules than treaties, so to make sure it gets done correctly the first time, find a law firm that has experience preparing international service documents..

Contact An International Process Service Lawyer

This article provides a brief overview of international law related to process service and discovery. Each case is unique, and because of the complex nature cross border legalities, you should seek the advice of a qualified attorney. For more information about international process service and letters rogatory, get in touch with Aaron Kelly, today.

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