Tuesday, August 24, 2010

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 VarĂ³n 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.


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