The Ultimate Dilemma: Obtaining Jurisdiction Over a Foreign Defendant

Making the right decision about how to obtain jurisdiction over a foreign defendant can be a daunting challenge. There are so many issues to be confronted including available service of process methods, laws of the foreign country where the defendant resides, satisfying local court requirements, and post-judgment collection. Even though the challenge may seem overwhelming, the process can be simplified by hiring a competent international service of process professional.

Step one is to determine the final end result of the case, i.e. do you intend to attach assets of the defendant in the foreign nation? The answer to that question will determine the method used to obtain jurisdiction. For example, if the defendant is the only known party in the case, it will be necessary to utilize service of process methods which will result in an enforceable judgment. On the other hand, if the defendant is merely being served in order to satisfy court rules that all defendants must be served - and it is not anticipated that this defendant has attachable assets – more options are available in order to obtain jurisdiction.

Most law schools offer very limited, if any, instruction in international service of process. After all, such services were a rarity until recently. And, most attorneys have not had experience in dealing with foreign defendants, thus, may see the process as overwhelming. In contrast, once an attorney has gone through the experience of serving a defendant in a cross-border dispute, the task seems surprisingly simple.

Methods of Service Abroad
There are two basic methods available for service of process upon foreign defendants: 1) formal, and 2) informal. The formal method involves a treaty or use of Letters Rogatory (a request from the local court for judicial assistance by the foreign court) while the informal method utilizes the services of a private process server. There are advantages and disadvantages of both methods, including cost, time frames for completion, and eventual enforceability of the judgment.

Formal Methods of Service
Formal service is accomplished pursuant to the terms of a specific treaty, such as The Hague Service Convention or the Inter-American Convention on Letters Rogatory. The Hague Service Convention (“Hague”) currently has 62 signatory nations while the Inter-American Convention has 19 member nations. The United States is a signatory to both Conventions. The procedures for each treaty are vastly different and seemingly difficult. In reality, both are quite easy to maneuver through once the process is fully understood.

The Hague Service Convention allows for service of process in cross-border disputes, including personal injury, trademark and patent infringement, products liability, family law, collections, and real estate matters. The procedures are specified in the treaty but the practical application of the terms requires advanced knowledge about specific prerequisites of the country where the service will take place, including reservations at the time of the signing of the treaty, laws of the foreign nation, and fluctuating changes in policies of the destination country.

“Hague” service is made by submitting the service documents, along with the proper official request and copies in English as well as copies properly translated into the official language of the country where the documents are to be served. Typically, there are no governmental fees associated with such service; however, a few nations require payment of a “bailiff’s fee (1).

[“It’s amazing how each country has such a vast difference of laws that must be
followed. U.S. attorneys are often frustrated by the myriad of requirements that
some countries impose….“]

According to Scott Spooner, International Specialist with Process Service Network in the Los Angeles area, “It’s amazing how each country has such a vast difference of laws that must be followed. U.S. attorneys are often frustrated by the myriad of requirements that some countries impose on services coming from outside their jurisdiction.”

Spooner pointed out Mexico as a prime example of a nation whose legal system has gone beyond reason and common sense in imposing unnecessary requirements for service (2). “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. They are also a signer of the Inter-American Convention on Letters Rogatory which is a separate treaty. They cleverly combined the requirements of both treaties, thus making service there more difficult for foreign attorneys.

The form used to transmit service of process pursuant to the Hague Service Convention is the Request for Service Abroad of Judicial and Extrajudicial Documents. While the form seems simple and easy to complete, many signatory nations have specific wording and formatting requirements which are not covered in the treaty. The result of an incorrectly filled out request is rejection of the service, by the Central Authority of the foreign nation, often several months after submission.

Service in most nations which are Hague signatories typically takes two to four months, although sometimes faster (3). Seasonal weather issues may delay the service time in certain colder regions. The major delays are caused by governmental and court bureaucracies, local customs and work habits in some areas, and transmittal of the proof of service via postal channels after service has been accomplished.

Service made pursuant to the Hague Service Convention and Letters Rogatory will result in an enforceable judgment in nations which honor post-judgment collections.

Letters Rogatory is a formal process in which the court of jurisdiction makes an official request to the court where the documents are to be served asking for judicial assistance in the service of such documents. The use of Letters Rogatory is largely confined to courts in the Americas since most countries in Asia, Europe and North America utilize the provisions of the Hague Service Convention. Letters Rogatory are also used to obtain evidence outside the nation of jurisdiction (4).

It must be pointed out that service utilizing Letters Rogatory is a cumbersome and time consuming process with delays of up to one year, and sometimes more, due to the diplomatic channels through which the service must flow.

For example, in the United States the court of jurisdiction issues the official request using a pre-designed format. It is then submitted, along with pleadings in English and the language of the destination country, to the U.S. Department of State. Such service must be accompanied by a cashier’s check of $2,275.00 which is referred to as an Embassy fee. The documents are processed at the State Department for approximately two to three months. The delay is caused by the backlog of cases which require Letters Rogatory. They are then sent through diplomatic channels to the U.S. Embassy of the foreign country and eventually delivered to the Central Authority of that nation. They, in turn, assign it to an appropriate local court that arranges for service of the documents upon the defendant. Once the documents are served, the government official who served it, typically called a bailiff, returns the proof of service to the local court and the documents go back in reverse order through the same channels. The proof of service does not, however, get returned to the requesting attorney as is the case with Hague service, but instead, is forwarded directly to the court of jurisdiction.

Unfortunately, in all formal methods of service there is no adequate manner of tracking the status of the service. That is due to the isolation of foreign courts and Central Authorities from private sector law firms. Further, the court filing procedures in many foreign nations does not allow for easy tracking since they often do not use numeric filing systems; some operate on a “first-received, first-completed” system while others file by date of receipt or by case name.

The advantage of utilizing formal methods is the ability to obtain an enforceable judgment. An unenforceable judgment against one defendant does not negate the validity of a judgment against another defendant; it is common to serve some defendants using treaty provisions and others by utilizing informal methods. The disadvantages of formal methods are time delays and costs.

Informal Methods of Service
The most common form of informal service of process is by private process server. Any person who is authorized by the laws of the nation where the documents are to be served may serve legal process, including process servers, investigators, or government officials, such as a Sheriff or Bailiff. In some countries, service by an outside private process server is allowed since many nations do not have process servers and it becomes necessary to use one from a neighboring country.

Countries such as Germany, Japan, Argentina, China, Switzerland and others prohibit service by private party. It is considered to be an infringement of their national sovereignty to use service of process methods which are not prescribed treaty or national law. Such nations as Japan and Germany actively prosecute, both criminally and civilly, such violations.

[“Service by private process servers normally results in a timelier
completion of service than using formal methods.”]

The advantage of using informal methods is the speed of the completion time, although not as fast as service typically takes within the United States. While the service itself may take only a few days or weeks to complete, the return of the proof of service often takes more than a month. A common delay is caused by the lack of notary publics in some regions who are needed to authenticate a proof of service. Relaxed work habits and cultural practices also may lead to delays in a successful completion of the assignment. Weather can also be a factor in certain regions where travel is impaired by snow, flooding or other natural disasters.

Further delays, in some regions, are caused by the necessity for the process server to obtain “permission” to serve legal documents that originate outside their country by paying “fees” to local law enforcement officials (5).

The only disadvantage to utilizing informal methods is the possibility of an unenforceable judgment and the unreliability of private process servers in certain remote areas of the world.

Five Things to Consider with International Service of Process:

• If you plan to enforce the judgment in the foreign country, “formal” service is recommended
• Only use an experienced and qualified process service company who understands the barriers to service and who can overcome them
• Allow sufficient time for completion of service as work habits and customs in other nations typically cause delays that we do not experience
• Price is important but the successful completion of the service in the foreign nation is the ultimate goal
• Utilize the expertise of an international service of process specialist.

Visit www.processnet1.com/internat.htm for specific country information.

*****
(1) China, Canada, Cayman Islands, and the United States are among countries that require a fee.
(2) Mexico also requires Letters Rogatory in addition to Hague forms.
(3) Service in Argentina can take up to 6 to 8 months.
(4) Convention on Taking of Evidence Abroad on Civil or Commercial Matters; Insofar as requests to United States courts are concerned, the use of Letters Rogatory for requesting the taking of evidence has been replaced, in large part, by applications under 28 U.S.C. section 1782.
(5) Mexico is notorious for bribery by government officials in order to get permission to perform such tasks as process service.

International Child Abduction Enforcement Summary

Provided by Process Service Network, LLC
800-417-7623
http://www.processnet1.com/

Introduction
The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction is a multilateral treaty, which seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return. The "Child Abduction Section" provides information about the operation of the Convention and the work of the Hague Conference in monitoring its implementation and promoting international co-operation in the area of child abduction.

Enforcement
Paramount to the enforcement process is the ability to determine the location of the abducted child at every stage of the proceedings, including pending judicial review, retrieval of the abducted child, and protection after the child has been returned. Where the return order needs to be served upon the respondent before coercive measures may be applied, consideration should be given to the possibility of serving it at the moment that the enforcement officer proceeds to enforcement.

Need for Competent Professionals
Problems can occur when judges, lawyers and other professionals are unfamiliar with the Hague return process. There is merit in a properly trained and educated specialist group of judges, lawyers, and support professionals undertaking this work so as to reduce delays and add integrity to the process.

Cooperative Efforts to Insure Safe Return
A court considering the return of a child should be provided, through the Central Authority or other appropriate channels, with information concerning the protective measures and services available in the requesting State, where this is needed to assist in securing the safe return of the child. To this end, courts are encouraged to make use of national, regional and international judicial networks and liaison judges and to seek the assistance of Central Authorities where appropriate.

Parties Present at Scene of Enforcement
Whoever is responsible for deciding who shall be present at the actual scene of enforcement (e.g., the court, the Central Authority, the enforcement officer) should carefully consider whether the presence of the applicant (parent) is likely to be helpful or whether there is a risk that it might instead complicate matters in the particular case.

Issues Which May Delay Enforcement
* The return order does not specify the exact details of the child’s handover or return, such as how it is to be effected, within what timeframe or the precise location in the State of the habitual residence to which the child should be returned.
* The lack of a response from authorities (including the police, enforcement officers and others involved in enforcement) to a request for enforcement or due to other unexplained delays by authorities when taking certain necessary steps.
• Several levels of legal challenge exist and it is not possible to enforce a return order until these have all been exhausted.
• In some legal systems a specific court order is required for each enforcement attempt.
• In some legal systems different authorizations, decisions and approvals are required before enforcement can take place and a requirement of formal service can cause further unnecessary delays between notice of enforcement and the implementation of enforcement. These authorizations, decisions and/or approvals ordering specific coercive measures, are subject to legal challenges independent of the return order itself, and such a legal challenge suspends enforcement.
• The child objects to being returned despite a return having been ordered and refuses to travel or cooperate.
• The abducting parent takes the child into hiding, either while return proceedings are pending or after a return has been ordered or removes the child to another country. The abducting parent engages in obstructive behavior to delay or avoid enforcement (e.g., refusing to reveal travel plans, changing travel plans, claiming moving difficulties, refusing to sign visa or passport applications).
• Pressure from the public and/or the media, or for fear of creating media interest or involvement.
• The abducting parent cannot re-enter the country of habitual residence (e.g., for immigration reasons or because of a criminal warrant) in a case where he or she is supposed to return with the child.
• Neither party can fund travel arrangements, afford accommodation, or other enforcement costs.
• At the actual scene of enforcement, when confronted with a situation of family crisis, the enforcement officer is not prepared to apply coercive measures.
* No communication is possible between the enforcement officer and the abducting parent and/or the child because of language problems. At the actual scene of enforcement, other actors involved (e.g., professional social workers) are reluctant to co-operate in coercive enforcement.

Solutions
The enforcement of rights in a cross-border family situation may involve many participants, such as the Central Authority, judges, bailiffs, social workers or other professionals. In the interest of an adequate solution to problems with the execution, the exchange of relevant information between the
professionals/bodies involved should be swift and effective.

Detailed information concerning the special circumstances of the case should be available easily to allow a sensitive dealing with the case, where necessary. Especially in cases where an abduction of the child has occurred before, or was threatened or feared by one of the parents, the professionals involved in the enforcement order should have access to background information in addition to the plain facts included in the actual order itself.

Safeguards, such as the surrender of passport or travel documents should be taken into consideration to avoid the risk of abduction. In cross-border contact cases the multinational, multicultural and multilingual backgrounds have to be taken into account and relevant information concerning sensitive matters should be made available to the bodies/professionals involved.

Nelson Tucker is CEO of Process Service Network, LLC, in Winnetka, California. His firm specializes in international service of process. He is an Associate Member of the San Fernando Valley Bar Association and the American Bar Association (ABA) where he serves as a Member of the Section on International Law, and Member of Private International Law Coordinating Committee, International Judicial Affairs Committee, and the U.N. and International Institutions Coordinating Committee.

Is Mississippi Out of Its Mind?

(Requiring Minimum Pro Bono Work)

The Mississippi Supreme Court proposes mandatory pro bono services by attorneys practicing in the state. According to the National Law Journal, the court is considering a requirement to make lawyers perform 20 hours of pro bono services each year or face a $500.00 fee.

The American Bar Association (ABA) states that Mississippi would be the only state to require pro bono services if the proposal is adopted. There are only seven states that currently require the reporting of pro bono hours.

Most law firms provide a limited number of pro bono hours and some take it quite seriously. The number one U.S. firm, as ranked by American Lawyer magazine based on total pro bono hours in 2010, was Jenner & Block of Chicago, Los Angeles, New York, and Washington, D.C. They were named top firm for two years in a row. The average time devoted to pro bono was 169.5 hours per lawyer, the highest of any law firm. Nearly 91 percent of the firm’s lawyers contributed at least 20 hours to pro bono matters.

In Mississippi, it’s the Mississippi Volunteer Lawyers Project (MVLP) that coordinates and pro bono issues. MVLP is a nonprofit program of The Mississippi Bar Association and Mississippi Legal Services Programs. More than 1,900 Mississippi attorneys are signed up to volunteer their time and expertise to participate in the Project, and as a result, more than 8,000 low income citizens are assisted by the Project each year.

So, why the need to impose requirements for all attorneys to offer a minimum number of pro bono hours annually? Is it a money-making project for the Mississippi Bar Association or just an attempt to make all attorneys in the state give away their time to help low income citizens? Should physicians also be required to provide pro bono services to their patients? Those answers are best left to the attorneys in Mississippi who should have the same freedom as those in all of the other 49 states.

Nelson Tucker is CEO of Process Service Network LLC, based in the Los Angeles area. His firm facilitates process service and legal support services in 127 nations and have served the legal profession since 1978. Information can be found at www.processnet1.com or via processnet@sbcglobal.net.

Why Attorneys Don’t Get It

(when it comes to international service of process)

I have the highest respect for attorneys, barristers and solicitors because of their expertise, dedication to their profession, and their ongoing education. However, the fact is that most attorneys do not seem to understand that cases involving out-of-country defendants require an understanding beyond the ordinary. Normal expectations of service completion within a short period of time are blown to the wind when service is to be performed outside the attorney’s own region.

Here are some issues to be considered when serving legal documents outside of the United State and Canada:

Legal system
Of course, not every country operates their legal system as we do in North America. Many do not use case law (precedent) and do not have clearly defined statutory law. Some nations have a system that is completely “foreign” to ours, such as Shari’a law in Islamic countries. Shari’a deals with many topics addressed by secular law, including crime, politics, economics, and personal matters such as sexuality, hygiene, diet, prayer, and fasting. Where it enjoys official status, Shari’a is applied by Islamic judges, not elected or appointed civil judges. Imagine trying to impose Western law on a nation where Shari’a is the official legal system.

Customs and practices
It is important to understand that corruption and bribery are a normal way of doing business within the legal systems of some countries. Among those countries and regions that stand out are Mexico, the Philippines, Eastern Europe, Russia, certain Mid-East nations and Africa. Often times a process server must obtain “permission” from local officials before serving legal documents. Such permission includes a “payoff” in exchange for the right to serve legal process.

Time Frame
Let’s face it; we are spoiled in North America with quick turnaround on service of process assignments. A local service may be completed in a day, or so, while service in another state may be just a few days. However, all of that changes with service outside the region. Factors such as slow work habits (the “Mañana” syndrome) in other nations, resentment of the “Ugly American,” or indifference lead to unforeseen and unavoidable delays in completing service assignments. While the service itself may be completed within a reasonably short time, return of the affidavit of service is often the longest delay.

Communication
In our modern world, we expect instant communication from those with whom we associate by use of email, cell phone, telephone, Facebook, etc. However, the vast majority of the world does not have access to such contemporary tools or do not readily have them at their fingertips. For example, a process server in Madagascar may only check her email once every two weeks or one in Cambodia may not be able to receive incoming phone calls. Compound that with global time changes in more sophisticated nations and it is easy to understand why fast communication is not always possible.

Treaties
The United States is a signatory to several treaties which govern service of process issues between nations. Once the documents are forwarded to the Central Authority of another country most, if not all, of the ability to obtain a status is lost. Under the Hague Service Convention, for example, the courts and/or authority in the foreign nation will not respond to requests for status unless an agent appears, in person, to request an update. That process may take days, or weeks, and still does not lead to an acceleration of the completion of the service.

None of this is intended to be an excuse for delays in service of process outside the country of jurisdiction. Rather, it is a “heads up” that each of the above-mentioned factors must be understood by attorneys prior to arranging for service of process abroad. Keeping court deadlines and statutes in mind, it is crucial to allow proper time for completion of service of process outside of the court’s jurisdiction.

Nelson Tucker is CEO of Process Service Network LLC, based in the Los Angeles area. His firm facilitates process service and legal support services in 127 nations. They have served the legal profession since 1978 and can be found at http://www.processnet1.com/ and contacted via processnet@sbcglobal.net.

How Process Serving and Law Firm Practices are Similar

There are striking similarities with the practice of law by an attorney and service of process by a professional process server. Let us examine what the two professions have in common.

Know the Law
Attorneys spend significant time in law school studying laws and developing conceptual knowledge and legal reasoning. They are trained to know the law, or at a minimum, know how to find applicable laws related to a pending case. That education pays off once they are practicing law and preparing cases.

While most professional process servers do not receive formal training or education, they are held to strict standards of having a full working knowledge of laws related to service of process. Those who take the initiative to learn every possible aspect of the profession, whether formally or self-taught, soon rise to the top and are the most successful in their field.

Follow the Law
Lawyers succeed by understanding the law and applying it to their case. While there are normally two competing sides to every case, there is usually case law that will support either side. That is why we have judges.

Process servers must follow the law in a different way than attorneys. The successful process server must understand the statutory law and the applicable case laws related to the type of service they are performing. There can only be one side and the process server must follow the letter of the law, both statutory and case law.

Look After Client's Interests
Attorneys have a duty to protect the interests of their client and to represent them in the best manner possible, ensuring that they receive all the benefits afforded to them under the law. Their duty includes making sure they communicate with their client effectively and in a timely manner. They must advise their client in a professional manner, keeping their objectivity and understanding of the law in mind at all times when counseling their client on any actions they should take. Further, attorneys have a duty to maintain privileged communications between them and their client, ensuring personal information is closely guarded.

Similarly, a professional process server has a duty to their client (the attorney) to perform the assigned services in a professional manner while following established industry standards and practices. They must also advise their client when the requested assignment violates the law or is not in the best interest of the attorney or his/her client. Example: Attorney assigns a service of process for a hearing whose deadline for service has expired. The process server has a duty to advise the attorney of the discrepancy with the attorney having the final say, provided it does not violate the law.

Win the Case
A lawyer has two primary objectives: 1) represent their client properly, and 2) win the case! That is why they are hired and what their client expects.

A process server has a similar goal: 1) represent the interests of their client, and 2) complete the assignment properly.

Build a Reputation
Successful lawyers become successful by practicing in a manner that satisfies the needs of their clients. Their clients become their best "word of mouth" ambassadors which leads to reputation building in a relatively short period of time. It is the quality of the attorney's work, win or lose, that creates a positive or negative reputation.

There are more process servers today than ever before and some are obviously better than others. The number of years of experience and the high quality of work product lead to the building of a positive reputation that makes a process server successful. Highly sought after process servers reach their level of success based on doing exceptional work that meets the needs of their clients.

While attorneys and process servers cannot be compared on a professional scale, the similarities of their responsibilities lead to the conclusion that both are vitally important to the legal process.

Nelson Tucker is CEO of Process Service Network, LLC in the Los Angeles area. He may be reached by email at processnet@sbcglobal.net or by visiting their website at www.processnet1.com. Nelson is active with the American Bar Association, Los Angeles County Bar Association, and the San Fernando Valley Bar Association.

Child Custody Issues in the United Arab Emirates (UAE)

When child custody disputes arise between parents, custody decisions are based on Islamic (Shari’a) law. Non-UAE national residents in the United Arab Emirates, whether married to a UAE or non-UAE citizen, may file custody cases in the UAE. Non-residents of the UAE may also file custody cases there, but will need to authorize an UAE attorney to act on their behalf. Non-Muslims are also permitted to file cases in the UAE family courts, under Shari’a law.

In determining issues of custody, UAE courts may take into consideration the parents' religion, place of permanent residence, income, and the mother’s subsequent marital status. Priority is generally given to the Muslim father, irrespective of his nationality, when the mother is a non-Muslim. As a basic starting point under Shari’a law, a Muslim mother may be granted custody of girls under the age of nine and boys under the age of seven, at which time custody may be transferred to the father.

If a child has attained an "age of discretion," that child may be allowed to choose the parent with whom he or she wishes to live. A UAE attorney should be contacted to discuss the definition of "age of discretion."

If the court finds the mother "incompetent," custody of a child, regardless of age, can be given to the father, or to the child's grandmother on the father’s side. A finding of incompetence is left fully to the discretion of the judge. Shari’a courts consistently find parents incompetent if they engage in behavior that is considered to be inconsistent with the Islamic faith. Further, a mother may lose her rights of custody should she remarry. If both the mother and father are ruled incompetent, custody of the children may be given to the child's paternal grandparents.

Non-custodial parents are guaranteed visitation rights, but may have to seek approval from the appropriate authorities. In some cases the custodial parent and family have been very open and accommodating in facilitating the right of the non-custodial parent to visit and maintain contact with the child, but in other cases the custodial parent and family have not been so accommodating.

Dual nationality is not recognized under UAE law. Children of UAE fathers automatically acquire citizenship at birth, regardless of where the child was born. In certain circumstances, UAE mothers can also transmit citizenship. UAE citizens must enter and exit the country on UAE passports.

Exit visas are not required to leave the UAE. However, all persons exiting the country must exit on the passport that shows proof of the person’s legal status in the UAE, meaning either their residence or entry visa.

A parent can obtain a court order that places a travel ban on a child, and this ban will be enforced at all the airports in the country. If a parent attempts to leave with a child who has been placed under a travel ban, this could potentially lead to new legal issues concerning the custody of the child.

Service of process related to child custody matters in the United Arab Emirates is handled by private process servers since no treaties currently exist.

Nelson Tucker is CEO of Process Service Network, LLC, a firm that specializes in international service of process. He has travelled to the United Arab Emirates and served members of the Royal Family and has extensive local contacts there. He can be contacted at processnet@sbcglobal.net or through the firm’s website at www.processnet1.com

Dealing with Difficult Nations: Legal Cases Outside the U.S.

The laws related to service of process differ in every country, just as they differ in many jurisdictions within the United States. The secret is to understand the laws and regulations in the country where the service is to be performed. That is a function of the process service firm that handles your service abroad.

Service of process in some countries is extremely difficult due to conflicts between nations, perceived unfair laws, and customs within the foreign nation.

Perhaps the most egregious nation currently is Mexico. Their government has imposed unfair requirements on cases originating in the United States being served upon Mexican entities. Such restrictions do not apply to other nations and are apparently imposed to protect their citizens and corporations while being used as a tool to gain concessions from the U.S. government.

Cuba and North Korea are other countries that do not look favorably on lawsuits originating in the U.S. to be served upon their citizens. Their governments do not have treaties with the United States and do not allow for service by their own citizens who may act as a private process server. In Cuba, it is common to arrange for a process server from Mexico to enter the country to serve legal documents that originate in the U.S. However, North Korea strictly prohibits service of U.S.-based legal actions within their territorial limits. Violators are subject to prosecution which may result in death.

Saudi Arabia and some of its neighbors have a history of being “unfriendly” to process servers within their borders. In 2003, a process server was killed while serving legal documents for Process Service Network. See page 142 of the following link: Process Server Killed In Saudi Arabia

While the profession of process serving is often dangerous, by nature, experience process servers take the necessary steps to avoid problems while serving in foreign nations. In most countries outside North America and Western Europe, a process server is typically accompanied by two, or more, body guards which leads to higher costs for service.

No matter which country a service is to be made, consult with a reputable international process server for guidance as to applicable laws in the country where service is being contemplated. They will keep the attorney, and their client, out of potential liability.

Nelson Tucker is CEO of Process Service Network, LLC that specializes in international service of process. He can be contacted at processnet@sbcglobal.net or through the firm’s website at http://www.processnet1.com/

What’s Wrong with the Hague Convention?

The Hague Service Convention (“Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters”) is a treaty between signatory nations which facilitates, standardizes, and simplifies service of process between party states. It was first enacted in 1965 by members of the Hague Conference on Private International Law. There will be 61 nations participating nations to the treaty, effective October 2010, with the addition of Australia as the newest member.

Now, the problem. Since the Special Administrative Session of the Hague Conference on Private International Law, held at The Hague, Netherlands, only meets every 5 years (last met in 2009), changes and decisions regarding enforcement issues cannot be held until 2014. However, one “rogue” nation has created its own version of the Convention and has imposed roadblocks to prevent service of process on its business entities and citizens.

The government of Mexico has abused the international legal community by requiring that legal documents originating in the United States that are to be served in Mexico include wording that violates the spirit, and letter, of the Hague Service Convention. No other nation is subjected to the requirements imposed by Mexico.

However, the Hague Conference on Private International Law is temporarily held impotent to require Mexico to conform to the rules of the Convention. Further, the U.S. Department of State appears to be non-reactive to the unfair requirements.

“One example of the abuse is Mexico now requires U.S. courts to include the words ‘calendar days’ on its Summons, clearly an infringement on the sovereignty of the United States,” said Nelson Tucker, CEO of Process Service Network, a legal support firm in the Los Angeles, CA area that specializes in international service of process. “Imagine the U.S. trying to tell another country that their legal documents must have certain wording,” said Tucker.

It is uncertain what steps, if any, the U.S. Department of State will take in protesting to the Hague authorities and what can be done to bring Mexico back in line with the rest of the civilized legal world.

Process Service Network, LLC can be found at http://www.processnet1.com/ or email at processnet@sbcglobal.net

Turmoil in Mexico Over Service of Legal Documents

[This article is a follow-up to one written in July 2010 regarding the manner in which the government of Mexico treats legal cases originating in the United States and being served upon Mexican entities.]

To say the least, the government of Mexico has stooped to new levels in protecting its citizens and business entities against lawsuits from outside the country.

The Hague Service Convention is the current treaty that was ratified by Mexico which provides the transmittal of legal documents from one country to another. All signatory nations of the Convention are obliged to abide by the terms of the treaty. However, Mexico has become a maverick nation when it comes to such service and has placed every conceivable roadblock in the way of service of process there.

In the past, Mexico followed the provisions of the Convention without problem. However, within the past year the judicial authorities in Mexico have created some interesting obstacles, such as adding new requirements to the transmittal of service request documents, requiring unnecessary translation of specific forms, and requiring additional wording on judicial requests, which are in direct violation of the treaty. The U.S. Department of State has filed objections but they are currently being ignored by the Mexican authorities.

[“Mexico has the audacity to require that legal documents filed in U.S. courts . . . must adhere to stricter standards than documents coming from other countries.”]

Mexico has the audacity to require that legal documents filed in U.S. courts which are being served on Mexican corporate and individual defendants must adhere to stricter standards than documents coming from other countries. It can be speculated that the reasons include 1) retaliation for the U.S. tightening the border with Mexico, 2) an attempt to gain trade and criminal prosecution concessions from the U.S., 3) attempting to “flex its muscle” against the U.S., and 4) a desire to protect the assets of its citizens and business entities against U.S.-based lawsuits.

Specifically, Mexico now requires that the summons of any civil case originating in the United States must state that the period granted to the defendant to answer the complaint be computed using calendar days. The wording must be specific. Secondly, they recently instituted a requirement that the law that governs service of the documents must be provided, in full, as part of the pleadings. Lastly, they now require that only the court of U.S. jurisdiction be named as the “requesting party” or “applicant.” Mexico is the only Hague Service Convention signatory to impose such a requirement AND it is only imposed on U.S.-based cases.

The staff of Process Service Network maintains a diligent, watchful eye on the Central Authority of Mexico and takes the necessary steps to stay abreast of their changes by quickly conforming to their newly-adopted requirements. For example: recently, Mexico required that the specific law that governs service in the court of jurisdiction be cited on the Request for Service Abroad, a practice which Hague authorities in The Netherlands says is not only not a requirement of the Convention, but also exceeds the parameters of the adopted form for use in judicial matters between Hague nations.

What’s the solution for law firms who file suit against Mexican entities? Rather than submitting the required Hague forms (as in the past), and risking a rejection of the service (which is almost guaranteed to happen), finding a knowledgeable international process service firm is a must. Firms such as Process Service Network can avoid any unnecessary delays by submitting properly prepared documents that conform to the current, yet unfair, practices of the government of Mexico.

Process Service Network can be found at www.processnet1.com or email at processnet@sbcglobal.net

ABA Considers Plan to Accredit Foreign Law Schools

The American Bar Association (ABA) is considering proposals to accredit foreign law schools in what would be a closely-watched development in the international legal education market, writes The National Law Journal. The recommendation has come from a committee of law professors, lawyers, judges and law deans set up in June to examine whether foreign law schools should be allowed to seek ABA accreditation. The ABA is already responsible for accrediting US law schools.

The committee cited an earlier ABA report's conclusion that state supreme courts and Bar associations are under pressure to make decisions about admitting foreign lawyers as the legal profession becomes increasingly globalized. "Such an expansion would provide additional guidance for state supreme courts when lawyers trained outside the U.S. seek to be allowed to sit for a U.S. Bar examination," the committee said in its report. The committee cited figures from the National Conference of Bar Examiners that between 4,000 and 5,000 foreign-trained law graduates each year take the Bar exam in the U.S.; most of them sit for the exams in California or New York.

If the ABA decides not to expand accreditation, and states are forced to make their own decisions about foreign-trained lawyers, some lawyers with "less reliable training" than graduates of U.S. law schools will be admitted to the Bar, the committee said. Additionally, there will be a lack of consistency among states as to how foreign-trained lawyers are admitted.

"If we believe that the American legal education model is the 'gold standard' for legal education worldwide and that well-trained lawyers are critical to the global economy, then a willingness to expand accreditation to schools embracing the American model is an appropriate way to improve the training of lawyers globally and contribute to the modern economy and the international legal profession," the committee said.

However, the committee did cite potential downsides to accrediting international law schools, including the expansion of practice opportunities for foreign-trained lawyers with no reciprocal benefit for U.S. law school graduates. The committee said that the cost of the overseas accreditation would be borne by the foreign law schools rather than the ABA.

ABA spokeswoman Nancy Slonim said that the committee's nine-page report has been sent to state supreme court justices, the leadership of the ABA, deans of ABA-approved law schools and other interested parties. Relevant parties have until October 15, 2010, to submit comments, she said.

There are a number of reasons why U.S. clients might want a foreign-educated law graduate available in the U.S. to help them. In 2008, for example, the U.S. had exported almost $2 trillion of goods and services and imported $2.5 trillion in goods and services. In 2007, which is the most recent year for which statistics are available, there were $20 trillion in foreign-owned assets in the U.S. and $17 trillion in U.S.-owned assets abroad. Moreover, this international trade is not confined to the largest U.S. states. Every state in the country except Hawaii exported more than $1 billion of goods and services in 2008, and many of them had eight-figure exports. Stay with me….

Because many of the transactions underlying these statistics undoubtedly involved both foreign and domestic lawyers, it should come as no surprise to learn that there is a significant amount of international trade in legal services. For example, in 2007, which is the most recent year for which this data is available, the U.S. exported $6.4 billion in legal services and imported $1.6 billion. Moreover, these statistics do not take into account international legal services trade by affiliates.

In summary, as the globalization of the legal profession materializes, it will be critical to law students in both the U.S. and all foreign countries to have a proper foundation in international law. That is alarmingly lacking in most law schools.

Nelson Tucker is CEO of Process Service Network, LLC in the Los Angeles area. His firm specializes in international service of process and foreign legal issues. He is an Associate Member of the American Bar Association. His website is www.processnet1.com and he can be reached at processnet@sbcglobal.net.

International Service of Process: What Every Attorney Should Know

by Nelson Tucker, CEO, Process Service Network, LLC
Associate Member of San Fernando Valley Bar Association

Not only did law school minimize the importance of the laws related to service of process, but they 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 at a substantial annual rate. No doubt, within a short period of time, most U.S. attorneys will be faced with having a foreign defendant served with legal documents. What happens, then? The research time to determine the laws of another country can be staggering.

To combat the challenge of handling international matters for clients, it is important to understand the basic issues related to international service of process.

Most international disputes arise from such areas as personal injury, trademark and patent infringement, products liability, family law, collections, and real estate matters.

International service of process seems to be a maze until you discover that certain treaties and local foreign laws may apply which simplify the process. The most widely used treaty is the “Hague Service Convention” which outlines the methods for process service in a specific country.

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 is simply a request from the court of jurisdiction to the court where the service is to be made asking for judicial assistance. It 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. Preparing it correctly to conform to the specific requirements of each country is an “art.”


["...in many instances, state law does not apply to service outside the United States…"]

Understanding the procedures for compliance with applicable treaties and local laws will avoid civil and criminal penalties against the attorney and client who violate the law, albeit unknowingly. In many instances, state law does not apply to service outside the United States, so it is essential that the process begin with a complete understanding of the laws of the country involved.

Some nations, such as Germany, Japan, Switzerland, Korea, Argentina and Italy currently outlaw service by private party or process server. Others such as Taiwan, Australia, The Philippines, and Saudi Arabia do not have treaties in force and 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. Once the case has been filed, all documents to be served must be translated; there are no exceptions.

The greatest challenge in international service of process is meeting court-established 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.

According to Scott Spooner, International Specialist with Process Service Network in the San Fernando Valley, “It’s amazing how each country has such a vast difference of laws that must be followed. U.S. attorneys are often frustrated by the myriad of requirements that some countries impose on services coming from outside their jurisdiction.”

Spooner pointed out Mexico as a prime example of a nation whose legal system has gone beyond reason and common sense in imposing unnecessary 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. They are also a signer of the Inter-American Convention on Letters Rogatory which is a separate treaty. They cleverly combined the requirements of both treaties, thus making service there more difficult for foreign attorneys.

Eddie Varón Levy is an attorney who practices in California and Mexico. He is a former employee of the Mexican Central Authority who understands the challenges of service there. “They are very clever at putting up roadblocks to slow down the process of serving their corporations,” said Levy. “I know, firsthand, how the system works there. The only way around it is to fully understand how to by-pass their obstacles.”

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, Malaysia, and Sweden allow private process servers a free rein to complete service of process without governmental obstacles.

In summary, international service of process is something best left to professionals who understand the issues thoroughly. Process service firms that specialize in international matters can make an attorney’s job seamless and take the mystery of dealing in foreign legal systems.

Five Things to Consider with International Service of Process:

1. 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;

2. Only use an experienced and qualified process service company who understands the barriers to international service and who can overcome them;

3. 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 States;

4. Price is usually important but the successful completion of the service in the foreign nation is the ultimate goal;

5. Utilize the expertise of an international service of process specialist who is local like Process Service Network in the San Fernando Valley.

Visit www.processnet1.com/internat.htm for specific country information.

Nelson Tucker is CEO and founder of Process Service Network, LLC located in Winnetka, CA. He has owned the legal support business since 1978 and has written several books on service of process. Nelson is an Associate Member of the San Fernando Valley Bar Association and the American Bar Association. He is a qualified expert witness in process service issues. He can be reached at 800-417-7623 or processnet@sbcglobal.net.

Free Attorney Referral Service Allows Attorneys to Serve Their Country

Spouses of military personnel who are serving overseas often are faced with legal challenges at home with no apparent means to resolve the issue on their own.

During the Gulf War in 1991, Process Service Network, LLC put together a team of attorneys to provide pro bono legal services to spouses of active-duty Reservists who were suddenly called into active duty. The program was a success and was featured on ABC, CBS and NBC News. Still today, many of those families are clients of attorneys who helped them almost 20 years ago.

Now, we face a similar situation, with conflicts in both Afghanistan and Iraq. We believe that many attorneys would like to do something positive . . .for military families, for the legal profession, for their country.

Process Service Network has offered a Free Attorney Referral Service* since 1984 with over 1600 law firms participating.

Here is how the program works:

* We publicize the program to spouses of active-duty personnel who are serving overseas, promoting a positive image of participating attorneys

* We will make the referral to your office based on the nature of the case and geographical area

* You will schedule an initial consultation and determine if you will accept the case, or simply provide legal advice to guide the client through their situation

* You will develop an attorney-client relationship that should continue long after the reservist returns home

Attorneys interested in offering their services to spouses of active-duty servicemen and women may contact Process Service Network at 800-417-7623 and they will be included on the referral panel.

Spouses of active-duty military personnel may contact us at 800-417-7623 for a free referral. There is no charge for this service. It’s our way of saying “Thank You” for your service to our country.

Process Service Network has provided legal support services since 1978 and is located in Winnetka, California.

* We do not charge any fees to your prospective client and do not accept referral fees from attorneys. We do not refer cases involving divorce while on active-duty

International Service of Process: Why Every Attorney Should Beware

by Nelson Tucker, CEO, Process Service Network

Not only did law school minimize the importance of the laws related to service of process, but they did not even mention international service.

Now, with the world shrinking and the global economy expanding, litigation between parties in the United States and foreign countries is increasing at a substantial rate annually. No doubt, within a short period of time, most U.S. attorneys will be faced with having a foreign defendant served with legal documents. What do you do, then?

Most international disputes arise from such areas as personal injury, trademark and patent infringement, products liability, family law, collections, and real estate matters.

International service of process seems to be a maze until you discover that certain treaties and local laws may apply. The most widely used treaty is the “Hague Service Convention” which outlines the methods of service in a specific country. 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.

["...in most instances, state law does not apply to service outside the United States…"]

Understanding the procedures for compliance with applicable treaties and local laws will avoid civil and criminal penalties against the attorney and client who violate the law, albeit unknowingly. In most instances, state law does not apply to service outside the United States, so it is essential that the process begin with a complete understanding of the laws of the country involved.

Some nations, such as Germany, Japan, Switzerland, Korea, Argentina and Italy currently outlaw service by private party. Others such as Taiwan, Australia, The Philippines, and Saudi Arabia do not have treaties in force and 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 us prior to filing the case, if possible.

The greatest challenge for most international services is meeting court-established 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, we specialize in serving the needs of clients in foreign markets where the maze is simplified.

Five Things to Consider with International Service of Process

1. If you plan to enforce the judgment in the foreign country, “formal” service is recommended
2. Only use an experienced and qualified process service company who understands the barriers to service and who can overcome them
3. Allow sufficient time for completion of service as work habits and customs in other nations typically cause delays that we do not experience
4. Price is important but the successful completion of the service in the foreign nation is the ultimate goal
5. Utilize the expertise of an international service of process specialist like us. Feel free to email (processnet@sbcglobal.net) or call with your questions to 800-417-7623.
   

Click on www.processnet1.com/internat.htm for specific country

Trademark and Patent Infringement Cases on the Rise

The shrinking global economy has created an increase in the number of cases where foreign companies “knock-off” the patented and trademarked products of their rightful owner. Such infringements lead to lost revenues and profits by the company that owns the rights to the product or invention.

According to the U.S. Department of Commerce, there has been a 76% increase in claims for trademark and patent infringement in the past 10 years. The biggest violators are based in China, Indonesia, Taiwan and Mexico.

U.S. and Canadian corporations have continually attempted to protect their interests by filing lawsuits against illegal foreign manufacturers and the number of lawsuits is on the rise. Law firms routinely seek redress in the court of jurisdiction but are often thwarted by the laws of the foreign nation. Among the challenges are enforcement of judgment, fly-by-night businesses abroad going out of business or changing their name, and delaying tactics by foreign courts, e.g. Mexico.

The Mexican government has recently created serious roadblocks to service of process in Mexico by imposing new requirements for service upon their corporate entities. Even though Mexico is a signatory to the Hague Service Convention, they have placed additional restrictions which are in technical violation of the treaty. To date, no other signatory to the Convention has filed an objection with the Hague, thus, the problem persists.

Process Service Network, a legal support firm in the Los Angeles, CA area, has developed a strategy for overcoming the obstacles created by the government of Mexico. This strategy involves fast turnaround of service documents to remain one step ahead of the Mexican Central Authority. The staff at Process Service Network has been specialists in international service of process since 1978 and has handled over 1,600 trademark and patent infringement cases since that time.

Process Service Network can be found at http://www.processnet1.com/ or email at processnet@sbcglobal.net

American Bar Association Annual Meeting to Benefit Attorneys

When the American Bar Association (ABA) convenes its Annual Meeting in San Francisco on August 5-7, 2010, attorneys from across America will join together to learn, exchange ideas, and enjoy the City by the Bay.

Over 220 CLE programs that will help improve professional skills and expertise. There will be abundant opportunities to network with lawyers and judges from around the world. The meeting will also feature the world’s largest legal EXPO, providing an array of goods and services pertaining to the practice of law. Process Service Network is proud to be an exhibitor during the event.

Everyone knows that San Francisco boasts a great vacation experience, including sightseeing, food, shopping, and other attractions all within walking distance. The cool summer temperatures and low humidity provide one of the nation’s best locations to spend some extra time before or after the Annual Meeting. Hotel rates are surprisingly affordable during this peak tourist season.

The Annual Meeting’s flexible format allows participants to customize their own schedule and have the full benefits of the location. It will be a great time for everything the ABA and the Bay Area have to offer.

Process Service Network can be found at http://www.processnet1.com/ or email at processnet@sbcglobal.net

When Attorneys Should Not Serve Their Own Papers

Most states allow attorneys to serve their own legal documents provided they are not a party to the case. However, some attorneys have recently found themselves in hot water by using tactics that are beyond the industry standards or are, in fact, unlawful.

Case in point is the California lawyer who lost the tip of his finger when it became lodged in the door of a witness while serving a subpoena. The attorney (process server) later filed a lawsuit against the witness claiming that he closed the door without warning; thus injuring his finger. However, upon closer examination it is evident that the attorney caused his own injuries by allowing his hand to break the threshold of the front door as it was being closed.

The attorney admits that he “enjoys” serving witnesses who appear to be difficult to locate and serve. His zealousness to complete the subpoena may have lead to his downfall (injury).

The accounts of what actually differ widely by each party. First, the witness claimed that the process server (attorney) held the documents behind his back as the door was opened and then threw them inside onto the floor. Believing that the object might be a bomb or other destructive device, he shut the door. The process server claims that he asked for the identity of the witness and attempted to hand him the subpoena when the door was suddenly shut on his finger.

Experts have provided deposition testimony that dispute the process server’s account of the incident, relying on physics and other methods to determine that the injury could not have been caused as described by the server.

While the fact that the process server was an attorney does not affect the validity of the service of process, if he had followed proper service techniques and industry standards, the incident would not have happened. Properly trained process servers are the key to safety of both the server and the person being served.

Nelson Tucker of Process Service Network in California has trained over 1700 process servers in the past 24 years and has authored 3 books on service of process. Process Service Network can be found at http://www.processnet1.com/ or email at processnet@sbcglobal.net