Showing posts with label Hague Service Convention. Show all posts
Showing posts with label Hague Service Convention. Show all posts

Friday, May 6, 2011

How Lawyers Violate the Law in Foreign Service

It is easy for an attorney to unknowingly violate the laws of a foreign nation when serving legal documents abroad. Many lawyers do not realize that some countries have significant restrictions related to service of process. The consequences can be serious, including civil and criminal penalties.

The Hague Service Convention is the primary treaty between participating nations related to service of process. Some nations have made reservations to the Convention when they became a signatory to the treaty prohibiting service by any means other than service through their Central Authority. The most common prohibition is against the use of private process servers.

These Hague nations prohibit service by private process server: Bulgaria, China, Czech Republic, Egypt, Germany, Norway, Slovenia, South Korea, Sri Lanka, Switzerland, Turkey and Venezuela.

China, Germany, and Switzerland consider service that is in violation of the Hague Service Convention an infringement on their sovereignty and impose criminal penalties against all parties in the service chain, including the plaintiff, plaintiff’s attorney, and process server. In addition, civil penalties may be imposed on the same parties for violating the terms of the treaty.

The solution is simple: Consult with a reputable international process service company for guidance as to applicable laws in the country where service is being contemplated. They will keep the attorney, and their client, in safe waters.

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/

Monday, April 25, 2011

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

Wednesday, April 20, 2011

Judicial Assistance Turmoil in Mexico

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.

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 http://www.processnet1.com/ or email at processnet@sbcglobal.net .

Thursday, September 2, 2010

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