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.