INTERNATIONAL SERVICE OF PROCESS: WHAT ATTORNEYS SHOULD KNOW, BY Nelson Tucker

Not only did law school minimize the importance of laws related to service of process, but classes probably did not even mention “international” service. After all, such service was a rarity until recent years.

Now, with the world shrinking and the global economy expanding, litigation between parties in the United States and foreign countries is increasing substantially. Most international disputes arise from such areas  as personal injury, trademark and patent infringement, products liability, family law, collections, and real estate matters.

In their careers, many U.S. litigators will have to serve legal documents on a foreign defendant The research time and costs to determine how to accomplish service outside the United States can be staggering. Understanding procedures for compliance with applicable treaties and local laws will avoid civil and criminal penalties against the attorney and client who may otherwise violate local laws, albeit unknowingly.

Certain treaties may simplify the process. The most widely used is the “Hague Service Convention,” which outlines the methods for process service in specific countries.

Another “formal” method of international service is by letters rogatory, a cumbersome, expensive and time-consuming method that should be used only as a last resort. Letters rogatory consist of a request from the court  jurisdiction to the court where the service is to be made, asking for judicial assistance. The procedure is used when enforcement of judgment is sought in a
nation where no service of process treaty exists. It is also used when serving a civil subpoena in a foreign country (referred to as “Letter of Request”). Preparing it correctly to conform to the specific requirements of each country is an “art.”

Some nations, such as Germany, Japan, Switzerland, Korea, Argentina and Italy, currently outlaw service by private party or process server. Others such as Taiwan, United Arab Emirates, the Philippines, and Saudi Arabia do not have treaties in force  ut allow service by an “informal” method, such as by private process server.

Many nations require the court documents to be translated into the official language of that country, while others accept an English version. Translation costs can often exceed the fee for  service so it is vital to consult with the process service firm prior to filing the case, if possible, in order to eliminate unnecessary content. Once the case has been filed, all documents to be served must be translated; there are no exceptions.

The greatest challenge with international service of process is meeting courtestablished deadlines. An extension of time for completion of service can normally be obtained by providing the court with a proper declaration from the process server.

Although few private process servers understand the rules related to international service, a handful specialize in serving the needs of clients in foreign markets where the maze is simplified.

Scott Spooner, International Specialist with Process Service Network in Los Angeles, pointed to Mexico as a prime example of a nation whose legal system has gone beyond reason and common sense in imposing cumbersome requirements for service. “Mexico attempts to protect its corporations and citizens from legal matters that may eventually result in attachment of assets.

They do everything possible to delay service of process in hopes that the case will just go away.”

However, Mexico is a signatory to the Hague Service Convention and in doing so agreed to follow the terms of the treaty. The country is also a signer of the Inter- American Convention on Letters Rogatory, which is a separate treaty. Mexico cleverly combined the requirements of both treaties, thus making service there more difficult for foreign attorneys.

Eddie Varón Levy, an attorney who practices in California and Mexico and a former employee of the Mexican Central Authority, commented, “They are very clever at putting
up roadblocks to slow down the process of serving their corporations.”

Other countries are not as protective and service of process is as easy as it is in the United States. Such nations as the United Kingdom, Canada, Spain, Australia, New Zealand, Singapore, Malaysia, and Sweden allow private process servers free rein to complete service of process without  governmental obstacles.

If you plan to enforce the judgment in the foreign country, “formal” service is recommended. This method includes service pursuant to a treaty, such as the Hague Service Convention, or by Letters Rogatory. Allow sufficient time for completion of service as work habits, customs, and bureaucracy in other nations typically cause delays that we do not experience here in the United States. Use an experienced and qualified process service company that understands barriers to international service and can overcome them.

Nelson Tucker is CEO and founder of Los Angeles-based Process Service Network, LLC. He is an Associate Member of the American, Los Angeles County and Ventura County Bar
Associations, and a qualified expert witness in process service issues. He can be reached at 800-417-7623 or nelson@processnet1.com. Country-specific information is available at
www.processnet1.com/internat.htm.

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