Top 10 Things You Should Know About International Service of Process

By Nelson Tucker, CEO, Process Service Network, Associate Member of the American Bar Association

International service of process is challenging and difficult to understand if you are attempting to do it on your own.  The hours of research can drain your budget and may not provide accurate information to complete the service properly.  That is why you need a company that is experienced and qualified in international process service. 

Here are 10 things you should MUST know about serving legal documents in a foreign country:  

1.      Do NOT mail documents to foreign defendants.  It is a violation of federal laws in most countries and is punishable by civil and criminal penalties in countries such as China, Germany, Italy, Japan, Korea, Norway, Switzerland and Venezuela.  The parties that are liable are the plaintiff, their attorney, and anyone else associated with the mailing.

2.      Choose the correct method of service.  There are two basic methods for serving legal documents in foreign jurisdictions:

a.      Formal service – by utilizing either the provisions of the Hague Service Convention, the Inter-American Convention on Letters Rogatory, or Letters Rogatory.  The choice depends on the country and type of document being served.  The advantage is a more enforceable judgment; the disadvantage is the time delay and cost.  If you intend to enforce the judgment in the foreign country, this is the recommended method.

b.      Informal service – by private process server.  This method is similar to how process serving is done in the United States and Canada.  The advantage is faster completion of the service; the disadvantage is the cost and possibility that the enforcement of judgment may be challenged.  If you are seeking to merely satisfy the court of jurisdiction that service has been accomplished, this is the recommended method.

3.      Service in other countries is different than it is here!  It is not a matter of telling a process server in Colombia, for example, to go serve a defendant tomorrow.  The work habits, traditions, communications, and laws of the foreign nation determine how and when a service will take place.  It is not uncommon for payment of “fees” to be made to local law enforcement officials in order to obtain permission to serve documents.  It is also an obstacle to have instant communication (email, phone, etc.) with process servers in parts of Latin America, Africa, Asia and the Middle East due to slow or downed Internet connections and telephone outages.

4.      Beware of problem countries.  Some countries are currently attempting to delay service of process requests in order to protect against the assets of their entities from leaving the country.  The recent downturn in the global economy has encouraged this type of behavior by governments and foreign courts.  Among the worst culprits are Mexico, India, China, Venezuela, Argentina, Italy, and Russia.  Russia handles the obstacle by simply ignoring formal requests made pursuant to the Hague Service Convention.  The others either stall in the execution of the request or reject the documents on baseless grounds in hopes that the requesting party will give up.

5.      Your local Court must be educated.  Because of the delays in international service of process, it may be necessary to request an extension of time for completion of service.  Hague service can take one to seven months, depending upon the country (worst are Italy and India currently).  While service by private process server may take as little as 24 hours (Singapore, Hong Kong, Australia, Philippines, Brazil), it may also take over a month due to local situations there and the availability of the person being served.  My firm is always pleased to provide an affidavit explaining the reasons for delay, if any, to be used in seeking an extension of time for service.

6.      Translation is required in most countries.  If serving by a formal method, translation is always required.  Remember that all documents must be translated, including exhibits. Translation is optional if utilizing service by private process server.  However, there can be problems if the documents are not translated and the defendant does not file a response, resulting in a default judgment.  Their defense will be that they simply did not understand the nature of the documents and the necessity of filing a written response. Think about this: If your client received a summons from a court in China, written in Chinese, would they be able to recognize the requirements for responding and protections afforded under Chinese laws?

7.      Cost of service seems unreasonably high. Process serving is more expensive in most countries than locally because of 1) security issues, 2) cost of living in the foreign nation, 3) scarcity of qualified process servers in some areas, 4) currency exchange, 5) fuel costs, 6) travel time, 7) number of attempts required to complete service, 8) belief by foreign process servers that U.S. attorneys can afford to pay more, 9) bank transfer costs to pay foreign process servers, and 10) “fees” that are often required in order to obtain permission to perform the service.  For example, most process servers in Latin America, Middle East, Africa and parts of Asia take 2-4 bodyguards with them while serving. Also, fuel costs approach US$9.00 per gallon in some areas and $6.00+ per gallon is the norm in most nations.

8.      Understand the promise.  Don’t take for granted how the service will be completed. Ask for specifics as to how the process works, time frame, possible obstacles. Determine, up front, if there are hidden costs and who is responsible for errors made in the process. Always get everything in writing (email).

9.      Trust, but verify.  There are many companies that claim to provide assistance with international service of process.  There is also a plethora of information on the Internet regarding process service across international borders.  For example, if you compare any three sources against each other you will likely find varying advice and “facts” about service in a specific country.  Even the U.S. Department of State’s website sometimes has erroneous information (we always share the suggested corrections with them as we discover the errors). How do you know what is correct?  Click on www.processnet1.com for information provided free of charge by a firm that has provided accurate international service of process since 1978 (35 years). Always ask the process service firm two questions: 1) “How long have you been in business?” and 2) “How long have you specialized in international service of process?” Ask for proof of both in order to insure that you are dealing with a reputable and qualified firm.

10.   Relax! If you assign the service to a reliable process service firm you should expect that they will handle your assignment correctly and timely. Keep in mind that service of process in another country will not be as efficient or as speedy as it is here in the U.S. and Canada due to customs, conflicting laws, and local restrictions on process servers. Your process service firm should be sensitive to court deadlines and provide an affidavit regarding the status of the service, at no charge, upon your request.  If they seek to charge extra, beware!

Nelson Tucker is CEO of Process Service Network, LLC that specializes in international service of process for the past 35 years. He can be contacted at nelson@processnet1.com  or through the firm’s website at www.processnet1.com