There are a variety of ways to serve process in foreign countries, including: 1) mail; 2) personal delivery by a foreign agent; 3) substitute service; 4) letter of request to foreign authorities; and 5) service by foreign authority pursuant to an international convention.
There are a number of considerations to keep in mind when you decide which method to use. 1) the service of process re- quirements for the state in which the Court issuing the process is located and 2) the service of process requirements for en- forcement of the judgment in the foreign country, if such en- forcement is contemplated. Care must be taken that the method used for the initial service of process meets these requirements. The Office of Citizens Consular Services of the State Department's Bureau of Consular Affairs can helpful with the requirements of foreign countries in this regard. They can be contacted at: CA/OCS/CCS. Room 4817, N.S., Department of State, 2201 C Street, N.W., Washington, D.C. 20520. Their telephone number is 212/647-3444.
This article will concentrate on the Hague Service Conven- tion, otherwise known as the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638, 658 U.N.T.S. 163. The Convention provides a simplified procedure for effecting service on an individual within a member country. Of course, this assumes that one is reading and following the Convention's procedures to the letter. The standard forms for requests for service are located in the annex to the Convention, or can be obtained from any local U.S. Marshall's office, which will also have a copy of the Justice Department's detailed Memo No. 386 on the steps to be followed. Federal court cases are governed by Federal Rule of Civil Procedure 4(i).
Once a form has been properly filled out, it can.be mailed to a country's designated central authority by any competent authority or judicial officer, which includes an attorney. The names and addresses of the central authorities for all member countries are also set forth in the Convention. The central authority serves the documents or has them served by another agency, and usually service is effected without any cost unless a particular method of service is requested. If there is a cost, a bill will be sent to you after service is made.
Take note that some countries object to certain forms of service, so that you should carefully go over the "Declarations" of the particular country you are dealing with. It is also important that you select the proper form of service from a particular country, in order to sustain the type of judgment that you are seeking. If eventual recognition and enforcement is to be sought abroad, you should use the best form of notice 1) by including a warning and detailed summary putting the person to be served on notice of the legal effect of service, and 2) allowing sufficient time for the recipient to meet any deadline for response or to avail himself of legal representation or other protective action.
There are three methods of service enumerated in the Convention. They are: 1) service in accordance with the local law of the jurisdiction to which the request is sent; 2) service by a particular method specified in the request, or 3) service by delivery to the addressee if he or she agrees to voluntarily accept it. The documents to be served must be accompanied by a summary of the documents and the request form. It is wise to always provide a translation of your service documents, even if it is not required by your member country. The certificate of return will be sent back to you showing the method, place and date of service and the name of the person who accepted service. If service was not made, the reasons will be stated on the return.
Attorneys should read the Conventions provisions carefully, in order to protect defendants against default judgment (article 15) and appeal time limits (article 16).
1) If you need to serve an individual who is not in a Con- vention member country, or 2) non-Convention service is necessary and permitted in a member country, and 3) one of these forms is acceptable under your state's law, then 4) service can be done by one of these methods: i) mailing, ii) sending a "Letter Rogatory" (letter of request) through foreign judicial or other authorities, or iii) using a private process server. You must verify with the State Department's Office of Citizens Consular Affairs or a private attorney in the particular foreign country that a particular method will not violate that country's current law.
Convention member countries include initially: Antigua, Bar buda, Barbados, Belgium, Botswana, Canada, China, Cyprus, Czechoslovakia, Denmark, Egypt, Federal Republic of Germany, Finland, France, Greece, Israel, Italy, Japan, Luxemburg, Malawi, The Netherlands, Norway, Pakistan, Portugal, Seychelles, Spain, Sweden, Turkey, United Kingdom, Bermuda, British Virgin islands, Cayman Islands, Central and Southern Line Islands, Falkland Is- lands and Dependencies, Gibraltar, Guernsey, Hong Kong, Isle of Man, Jersey, Montserrat, Pitcairn, St. Helena and Dependencies, Turks, Caicos Islands, United States. Numerous other countries have been dropped since the Convention first went into effect, because they became independent, and the new country had not yet confirmed the Convention. Therefore, it is necessary to specifically check that the Concention does apply to the country in which you are seeking service.
No Latin American country has signed onto the Convention. However, in 1975, the OAS nations entered into a Convention in Panama called the Inter-American Convention on Letters Rogatory. Also, the 1979 Additional Protocol, which will develop into a hemisphere-wide system similar to the Hague Convention for advice and consent to ratification.
Credit to 'INTERSTATE CHILD SUPPORT REMEDIES, Center on Children and the Law, American Bar Association, Office of Child Support Enforcement, U.S. Dept. of Health and Human Services, September, 1989, Edited by Margaret Campbell Haynes, with G. Diane Dodson, INTERNATIONAL SUPPORT REMEDIES, Chapter 13, by Philip Schwartz, pp 248-249.