The Ultimate Dilemma: Obtaining Jurisdiction Over a Foreign Defendant

Making the right decision about how to obtain jurisdiction over a foreign defendant can be a daunting challenge. There are so many issues to be confronted including available service of process methods, laws of the foreign country where the defendant resides, satisfying local court requirements, and post-judgment collection. Even though the challenge may seem overwhelming, the process can be simplified by hiring a competent international service of process professional.

Step one is to determine the final end result of the case, i.e. do you intend to attach assets of the defendant in the foreign nation? The answer to that question will determine the method used to obtain jurisdiction. For example, if the defendant is the only known party in the case, it will be necessary to utilize service of process methods which will result in an enforceable judgment. On the other hand, if the defendant is merely being served in order to satisfy court rules that all defendants must be served - and it is not anticipated that this defendant has attachable assets – more options are available in order to obtain jurisdiction.

Most law schools offer very limited, if any, instruction in international service of process. After all, such services were a rarity until recently. And, most attorneys have not had experience in dealing with foreign defendants, thus, may see the process as overwhelming. In contrast, once an attorney has gone through the experience of serving a defendant in a cross-border dispute, the task seems surprisingly simple.

Methods of Service Abroad
There are two basic methods available for service of process upon foreign defendants: 1) formal, and 2) informal. The formal method involves a treaty or use of Letters Rogatory (a request from the local court for judicial assistance by the foreign court) while the informal method utilizes the services of a private process server. There are advantages and disadvantages of both methods, including cost, time frames for completion, and eventual enforceability of the judgment.

Formal Methods of Service
Formal service is accomplished pursuant to the terms of a specific treaty, such as The Hague Service Convention or the Inter-American Convention on Letters Rogatory. The Hague Service Convention (“Hague”) currently has 62 signatory nations while the Inter-American Convention has 19 member nations. The United States is a signatory to both Conventions. The procedures for each treaty are vastly different and seemingly difficult. In reality, both are quite easy to maneuver through once the process is fully understood.

The Hague Service Convention allows for service of process in cross-border disputes, including personal injury, trademark and patent infringement, products liability, family law, collections, and real estate matters. The procedures are specified in the treaty but the practical application of the terms requires advanced knowledge about specific prerequisites of the country where the service will take place, including reservations at the time of the signing of the treaty, laws of the foreign nation, and fluctuating changes in policies of the destination country.

“Hague” service is made by submitting the service documents, along with the proper official request and copies in English as well as copies properly translated into the official language of the country where the documents are to be served. Typically, there are no governmental fees associated with such service; however, a few nations require payment of a “bailiff’s fee.”

[“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….“]

According to Scott Spooner, International Specialist with Process Service Network in the Los Angeles area, “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.

The form used to transmit service of process pursuant to the Hague Service Convention is the Request for Service Abroad of Judicial and Extrajudicial Documents. While the form seems simple and easy to complete, many signatory nations have specific wording and formatting requirements which are not covered in the treaty. The result of an incorrectly filled out request is rejection of the service, by the Central Authority of the foreign nation, often several months after submission.

Service in most nations which are Hague signatories typically takes two to four months, although sometimes faster. Seasonal weather issues may delay the service time in certain colder regions. The major delays are caused by governmental and court bureaucracies, local customs and work habits in some areas, and transmittal of the proof of service via postal channels after service has been accomplished.

Service made pursuant to the Hague Service Convention and Letters Rogatory will result in an enforceable judgment in nations which honor post-judgment collections.

Letters Rogatory is a formal process in which the court of jurisdiction makes an official request to the court where the documents are to be served asking for judicial assistance in the service of such documents. The use of Letters Rogatory is largely confined to courts in the Americas since most countries in Asia, Europe and North America utilize the provisions of the Hague Service Convention. Letters Rogatory are also used to obtain evidence outside the nation of jurisdiction.

It must be pointed out that service utilizing Letters Rogatory is a cumbersome and time consuming process with delays of up to one year, and sometimes more, due to the diplomatic channels through which the service must flow.

For example, in the United States the court of jurisdiction issues the official request using a pre-designed format. It is then submitted, along with pleadings in English and the language of the destination country, to the U.S. Department of State. Such service must be accompanied by a cashier’s check of $2,275.00 which is referred to as an Embassy fee. The documents are processed at the State Department for approximately two to three months. The delay is caused by the backlog of cases which require Letters Rogatory. They are then sent through diplomatic channels to the U.S. Embassy of the foreign country and eventually delivered to the Central Authority of that nation. They, in turn, assign it to an appropriate local court that arranges for service of the documents upon the defendant. Once the documents are served, the government official who served it, typically called a bailiff, returns the proof of service to the local court and the documents go back in reverse order through the same channels. The proof of service does not, however, get returned to the requesting attorney as is the case with Hague service, but instead, is forwarded directly to the court of jurisdiction.

Unfortunately, in all formal methods of service there is no adequate manner of tracking the status of the service. That is due to the isolation of foreign courts and Central Authorities from private sector law firms. Further, the court filing procedures in many foreign nations does not allow for easy tracking since they often do not use numeric filing systems; some operate on a “first-received, first-completed” system while others file by date of receipt or by case name.

The advantage of utilizing formal methods is the ability to obtain an enforceable judgment. An unenforceable judgment against one defendant does not negate the validity of a judgment against another defendant; it is common to serve some defendants using treaty provisions and others by utilizing informal methods. The disadvantages of formal methods are time delays and costs.

Informal Methods of Service
The most common form of informal service of process is by private process server. Any person who is authorized by the laws of the nation where the documents are to be served may serve legal process, including process servers, investigators, or government officials, such as a Sheriff or Bailiff. In some countries, service by an outside private process server is allowed since many nations do not have process servers and it becomes necessary to use one from a neighboring country.

Countries such as Germany, Japan, Argentina, China, Switzerland and others prohibit service by private party. It is considered to be an infringement of their national sovereignty to use service of process methods which are not prescribed treaty or national law. Such nations as Japan and Germany actively prosecute, both criminally and civilly, such violations.

[“Service by private process servers normally results in a timelier completion of service than using formal methods.”]

The advantage of using informal methods is the speed of the completion time, although not as fast as service typically takes within the United States. While the service itself may take only a few days or weeks to complete, the return of the proof of service often takes more than a month. A common delay is caused by the lack of notary publics in some regions who are needed to authenticate a proof of service. Relaxed work habits and cultural practices also may lead to delays in a successful completion of the assignment. Weather can also be a factor in certain regions where travel is impaired by snow, flooding or other natural disasters.

Further delays, in some regions, are caused by the necessity for the process server to obtain “permission” to serve legal documents that originate outside their country by paying “fees” to local law enforcement officials.

The only disadvantage to utilizing informal methods is the possibility of an unenforceable judgment and the unreliability of private process servers in certain remote areas of the world.

Five Things to Consider with International Service of Process:
• If you plan to enforce the judgment in the foreign country, “formal” service is recommended
• Only use an experienced and qualified process service company who understands the barriers to service and who can overcome them
• Allow sufficient time for completion of service as work habits and customs in other nations typically cause delays that we do not experience
• Price is important but the successful completion of the service in the foreign nation is the ultimate goal
• Utilize the expertise of an international service of process specialist.

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, and is a Member of the Section on International Law of the Los Angeles County Bar Association and the Beverly Hills 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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1. Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters ( Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters). See http://www.hcch.net/index_en.php?act=conventions.text&cid=17

2. See http://www.oas.org/juridico/english/treaties/b-36.html

3. China, Canada, Cayman Islands, and the United States are among countries that require a fee.

4. Mexico also requires Letters Rogatory in addition to Hague forms.

5. Service in Argentina can take up to 6 to 8 months

6. Convention on Taking of Evidence Abroad on Civil or Commercial Matters; Insofar as requests to United States courts are concerned, the use of Letters Rogatory for requesting the taking of evidence has been replaced, in large part, by applications under 28 U.S.C. section 1782.

7. Mexico is notorious for bribery by government officials in order to get permission to perform such tasks as process service.