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