Foreign Service officers are prohibited by Federal regulations (22 CFR 92.85) from serving process on behalf of private litigants or appointing others to do so, state law notwithstanding.
This article provides a general discussion of the methods available for service of process and service of a subpoena abroad. The article also includes a discussion on service on a foreign state or agency or instrumentality under the Foreign Sovereign Immunities Act and service on U.S. State Department and U.S. military personnel abroad in a private capacity. The method selected to effect service can have a serious impact both on the matter pending the United States and eventual enforcement of a U.S. judgment abroad. See Fed. R. Civ. P. 4(f) Advisory Committee's Note (West Supp. 1993) "service by methods that would violate foreign law is not generally authorized.".. In addition to this general article on service of process, the U.S. Department of State on its www.travel.state.gov website has information on a variety of topics including service under the Hague and Inter-American Service Conventions (treaties) and country-specific information.
Summary: Methods of Service Abroad:
|Service Treaty/Convention CountryService by Foreign Central Authority||Service Generally Guaranteed;No Service Problems Re Future Enforcement Proceedings Abroad.||Translation Usually Required; Expense; Time; 3 months + to serve.|
|Service by International Registered or Certified Mail, Return Receipt Requested||Fast, Inexpensive||Possible Problems Enforcing Judgment Abroad; Problems With Proof of Service|
|Service by Agent (Foreign Attorney or Process Server)||Personal Service;Timely||Expense; Possible Problems Enforcing Judgment Abroad|
|Service by Publication||Timely; Inexpensive||Possible Problems Enforcing Judgment Abroad|
|Waiver of Service||Timely; Inexpensive||Possible Problems Enforcing Judgment Abroad|
|Letters Rogatory (Letter of Request)||No Service Problems Re Future Enforcement Proceedings Abroad||Time Consuming - 6 months to a year;Translation Required - Expense|
Is Enforcement of a Judgment in the Foreign Country Forseen?
If eventual enforcement of a U.S. judgment abroad is envisioned, you may wish to consult foreign legal counsel very early in the process of the U.S. proceeding, long before any judgment is rendered, before you begin filing the complaint, serving process, discovery, trial, etc. This may help ensure that the foreign requirements for enforcement are not inadvertently violated in the U.S. action. In countries whose laws do not provide for other methods of service, letters rogatory may be the only method of service if enforcement is anticipated.
Service Pursuant to Multi-Lateral Convention:
Federal law provides for the service of process on an individual in a foreign country as specified by an international agreement or by other means no prohibited by international agreement. (Rule 4(f)(1) F.R.Cv. P.) The United States is a party to two multilateral treaties on service of process, The two treaties are:
- The Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents
- The Inter-American Convention on Letters Rogatory
Service by International Registered Mail:
Federal law also provides for the service of process on an individual in a foreign country as specified by registered or certified mail, return receipt requested may be sent to most countries in the world. Rule 4(f)(2)(C)(ii) F.R.Cv.P.) Federal Rule 4(f)(2)(C) provides that this method of service may be used unless prohibited by the law of the foreign country. To ascertain whether such mail service exists in a foreign state, contact your local Post Office to review the International Mail Manual and consult the business section of the U.S. Postal Service Home Page via the Internet at https://www.usps.com for general information, or contact the Government Printing Office. For a general discussion of service by international mail.
Treaty Obligation to Refrain From Service by Mail:
American courts have held that formal objections to service by mail made by countries party to a multilateral treaty or convention on service of process at the time of accession or subsequently in accordance with the treaty are honored as a treaty obligation, and litigants should refrain from using such a method of service. Service by registered mail should not be used in China, the Czech Republic, Egypt, Germany, Latvia, Luxembourg, Norway, the Slovak Republic, Switzerland, Turkey and Venezuela which have notified the Hague Conference on Private International Law and the Government of the Netherlands (the depository) on accession, ratification or subsequently that they object to service in accordance with Article 10, sub-paragraph a of the Convention, via postal channels.
Selected Cases on Service by International Mail:
See, FTC v. Compagnie de Saint-Gobtain-Pont-A-Mousson, 636 F.2d 1300 (D.C. Cir. 1980) on the issue of service via international registered mail when the document to be served is compulsory or punitive. See also, Umbenhauer v. Woog, 959 F. 2d 25 (3d Cir., 1992) which held that absent a treaty obligation, objections from foreign governments cannot justify non-compliance with the Federal Rules of Civil Procedure for service of process by mail. It should be noted that the country in question in the case, Switzerland, was not a party to the Hague Service Convention at that time.
Personal Service by Agent:
If personal service is desired in countries which are not party to the Hague Service Convention, the most expeditious method may be to retain the services of a local foreign attorney or process server.(Rule 4(f)(2)(C)(i) FRCvP). Federal Rule 4(f)(2)(C) provides for personal service unless prohibited by the laws of the foreign country. The attorney (or agent) can execute an affidavit of service at the nearest American embassy or consulate, or before a local foreign notary which can be authenticated. (See Wright & Miller, Sec. 1136 regarding proof of service. The fee for notarization by a consular officer is $55.00. Lists of foreign attorneys are available from our office and from American embassies and consulates abroad. See also our information flyer "Retaining a Foreign Attorney" available through our autofax service or via our home page on the Internet. See "Additional Information" below. It should be noted, however, that this method of service may not be considered valid under the laws of the foreign country. If eventual enforcement of the U.S. judgment in the foreign country is foreseen, this method may not suffice. It may be prudent to consult local foreign counsel early in the process on this point. American process servers and other agents may not be authorized by the laws of the foreign country to effect service abroad, and such action could result in their arrest and/or deportation. See Wright & Miller, Sec. 1135 and 1133 (1987) on the subject of who is authorized to serve process abroad.
Service by Letter Rogatory:
A letter rogatory, also known as a "letter of request", is a request from a court in the United States to a court in a foreign country requesting international judicial assistance, which is often employed to obtain evidence abroad, but is also utilized in effecting service of process and particularly in those countries which prohibit other methods of service. (Rule 4(f)(2)(B) F.R.Cv.P; 28 U.S.C. 1696) In some countries service by letters rogatory is the only recognized method of service. Service of a judicial summons, as set forth in Rule 9(c), F.R.Cr. P., may also be effected pursuant to a letter rogatory. Service of process by judicial authorities in the receiving State pursuant to a letter rogatory from a court in the sending State is based on comity. Procedural requirements vary from country to country.
Service by Publication:
Service by publication may also be a viable option, however, this may not be a valid method of service under the laws of the foreign country. If eventual enforcement of a U.S. judgment in a foreign country is foreseen, it may be prudent to consult local foreign counsel or American foreign legal consultants abroad before proceeding with such a method of service.
Waiver of Service:
Waiver of service may also be a viable option, however, this may not be a valid method of service under the laws of the foreign country. (Rule 4(d) F.R.Cv.P.) If eventual enforcement of a U.S. judgment in a foreign country is foreseen, it may be prudent to consult local foreign counsel or American foreign legal consultants abroad before proceeding with such a method of service. Waivers of service may be executed before a U.S. consular official abroad in the form of an acknowledgment or affidavit.
Service of Subpoena:
28 U.S.C. 1783, 1784 and Rule 45 of the Federal Rules of Civil Procedure, 28 U.S.C. Appendix provide for service of a subpoena upon a national or resident of the United States in a foreign country. There are no provisions for service upon non-U.S. nationals or residents. See 22 C.F.R. 92.86 - 92.89. Consult the Office of American Citizens Services of the Department of State for further guidance.
Foreign Sovereign Immunities Act:
Officers of the Foreign Service will serve a summons, complaint and notice of suit on a foreign government (28 U.S.C. 1608 (a)(4); 22 C.F.R. 93) on instructions from the Department of State, Office of American Citizens Services. Similarly, letters rogatory requesting service of process on an agency or instrumentality of a foreign government pursuant to 28 U.S.C. 1608(b)(3)(A) must be transmitted to the Department of State, Office of American Citizens Services. See Sec. 1608 of the Act for the specific hierarchical service provisions.
Service on U.S. Military Personnel Abroad:
We understand that the general position of the military departments is that the service of civil process on military personnel stationed abroad (or at sea) is not a proper military function. Thus, governing military regulations expressly prohibit commanders from serving civil process upon their personnel unless the individual agrees to accept the process voluntarily. Generally, commanders or other officials in charge when contacted about service of process on an employee will bring the matter to the attention of the individual and will determine whether he or she wishes to accept service voluntarily. If the individual does not desire to accept service, the party requesting such service will be notified and will be advised to follow the procedures prescribed or recognized by the laws of the foreign country. In countries party to the Hague Service Convention or Inter-American Service Convention, the foreign Central Authority may attempt to accomplish service under the applicable Convention if the prevailing Status of Forces (SOFA) agreement permits access to the base. Installation commanders may impose reasonable restrictions upon persons who enter their installations to serve process. It may therefore be necessary for the foreign Central Authority to effect service on the individual outside the installation. Some foreign Central Authorities may decline jurisdiction over cases involving U.S. military personnel depending on the SOFA agreement applicable (if any). Likewise, a request for service on U.S. military personnel pursuant to a letter rogatory may prove difficult as the foreign court may decline jurisdiction. It may be necessary to retain the services of a private attorney or other agent to effect service on the individual outside the U.S. military installation. Service by registered mail is also another option. You may wish to consult the Judge Advocate General's office for the appropriate branch of the U.S. military at the Pentagon for further guidance.
Service on U.S. Department of State Personnel:
For service on U.S. State Department personnel in an official capacity, see 22 C.F.R. 172. The Department is not an agent for the service of process upon its employees with respect to purely personal, non-official litigation. Service is usually attempted by private litigants by international registered mail, return receipt requested, or by an agent, usually a foreign attorney retained for that purpose.
***NOTE: Article courtesy of the U.S. Department of State.***