Can I complete appropriate service of process on a person even though they are not located in the United States?
In short, yes. Service of process notifies an individual of the legal claim against them and allows the court to exercise jurisdiction over them. Without proper service of process a lawsuit cannot proceed and the court in which the lawsuit is filed cannot exercise jurisdiction over the individual. Notably, If the person you are looking to serve resides out of the country and is located, you can serve the individual through an international treaty. However, it is important to consider whether the country that the individual is located in is subject to the Hague Convention.
What is the Hague Convention?
The Hague Convention established an international treaty for service abroad. It’s purpose is to establish a process where documents can be served abroad. Further, it allows for defendants to receive timely notice of lawsuit and allow for proof of service abroad. Moreover, the Hague Convention also provides a process of obtaining discovery from international individuals.
What is service of process under the Hague Convention?
Currently there are 63 signatories to the Hague Convention and each signatory state has a Central Authority. The Central Authority in each state is in charge of accepting incoming requests for service. Once the Central Authority receives the request for service it will serve the documents on the defendant and send a certificate of service back to the plaintiff. It is important to keep in mind that the Hague Convention does not have deadlines for service of process. As such, it can take a central authority up to six months or more to effect service to the defendant and return proof of service to the plaintiff.
Do all countries have the same service of process procedure under the Hague Convention?
No, some signatory states of the Hague Convention have implemented different procedures which should be considered when you are considering service of process in a foreign jurisdiction. For example, some countries require a formal approach when requesting service. This is seen in Germany and Israel where it is required for the request of service to be signed by a judge rather than an attorney. Notably, failure to abide by these procedures could result in sanctions or criminal prosecution.
Is there any way to obtain service or compel a deposition of an individual located in a country subject to the Hague Convention?
The Hague Convention allows a court of a signatory state to compel deposition of an individual located in that state by submitting a letter of request to that state’s central authority. Once the letter of request is delivered to the competent court in that state, the court may exercise compulsion measures provided to it by law. The individual in turn can assert any privilege applicable to them under their respective state’s law and the laws of the foreign state requesting their deposition.
What effects does the Hague Convention have on service due to Covid-19?
Service under the Hague Convention has still been possible during Covid-19, however it has ultimately caused delays throughout the overall process of litigation.
What if I want to serve someone that lives in a country that is not a signatory to the Hague Convention ?
If the defendant or entity you are looking to serve is overseas and resides in a country that is not a signatory to an international convention or treaty, you can send a letter rogatory. A letter rogatory serves as a request from courts of one country to courts of another country requesting the performance of an act or service of process. It is important to consider that the form of letters rogatory depends on the country and each jurisdiction may have different requirements on what has to be included in the letter. In addition, a judge from the requesting court must sign the letter rogatory once it has been complete in proper form. Generally, the letter has to consist of a statement describing the judicial assistance requested, brief summary of the case, and a statement from the requesting court stating their willingness to provide similar assistance with the court of the receiving state.