Dangers of International Service of Process

Serving a defendant in a foreign nation can seem daunting and overwhelming to an attorney who has never had the experience.  It seems cumbersome (and, it is) but many lawyers do not realize the “dangers” they face personally by tackling the task without proper knowledge.

When we speak of the dangers involved in serving a legal document overseas, we could be talking about danger to the process server.  However, the attorney’s greater concern should be about the hazard and peril that will affect him or her if the assignment is not properly carried out.  Even worse, the attorney could cause great jeopardy to their case by attempting to do the service using shortcuts, such as illegal service by mail.

There is no question that process serving in some countries can be dangerous.  Occasionally, death or injury results when a process server serves a party who does not wish to be served.  Such was the case in 2003 when a process server was killed in Saudi Arabia after serving a defendant just across the border in Oman.  However, just as is the case in the U.S., process servers who are properly trained and use good judgment rarely encounter dangerous situations.

It is not uncommon for a process server in certain regions to be accompanied by 2-4 bodyguards when service legal documents.  That is a choice they make based upon their belief that the task may be unsafe or based upon the neighborhood where they are serving.

I have personally served legal documents in 31 countries and have never experienced any dangerous  challenges, except in my own town over 30 years ago.

“…. penalties include both civil and criminal punishments against the attorney, law

firm, plaintiff, and any employee or agent who was involved in the illegal service!”

Now, let us address the issue of attorneys creating a “dangerous” situation for themselves and their client.  The most common mistake that attorneys make when faced with having to serve a defendant in a foreign nation is using shortcuts which are illegal in that country.

Service by mail of documents originating in a foreign jurisdiction is prohibited in most nations – that is their right, just as the U.S. and its states have the right to pass laws related to service of process.  For example, Germany, Japan, Switzerland, Argentina, Czech Republic, South Korea, Norway, China, Turkey …and on and on …prohibit service by mail.  All are signatories to the Hague Service Convention and have filed specific reservations related to such service.  In addition, many nations which are not “Hague” signatories have federal laws which prohibit service by mail or private party.

Here is where the going gets tough for unknowing attorneys who violate the laws of other countries as they relate to service of process.  Nations such as Germany, Japan, China, South Korea and numerous others impose strict sanctions on law firms who violate their laws.  Such penalties include both civil and criminal punishments against the attorney, law firm, plaintiff, and any employee or agent who was involved in the illegal service!

I have had numerous attorneys argue that the laws of the United States and the local court prevail over the requirements in foreign countries.  WRONG!!!  Let me explain in simple terms:  Imagine that a case was filed against your client in a foreign country, let’s say North Korea, and there it is legal for a person to be beaten merely because they are accused of a civil tort.  In this example, there is no doubt that if the law in North Korea permits such action since it is legal there.  Let us fast-forward and the summons from a North Korean court is being served upon a person residing in the U.S.  Is it permissible for the process server to physically beat the defendant on their front porch simply because they are being served with legal documents?  Of course, you know the answer. 

The laws of the jurisdiction where the case originates and the laws of the state of destination must be followed.

So, what strategies can be employed to ensure that an attorney does not go astray from the legal requirements of another country?  Perhaps the strongest recommendation I can offer is to enlist the services of an experienced international service of process specialist, such as those at our firm.  Information and guidance is free and charges are incurred only when a service assignment is made.

It will save hours of research and result in the peace of mind that goes with knowing that you are in good hands. After all, we’ve been doing it for 33 years so we must be doing something right!