International Service of Process Under the Hague Convention and Colorado Law
| Publication year | 2012 |
| Pages | 79 |
| Citation | Vol. 41 No. 11 Pg. 79 |
2012, November, Pg. 79. International Service of Process Under the Hague Convention and Colorado Law
November 2012
Vol. 41, No. 11 [Page79]
About the Authors
Cash K. Parker is an associate attorney at Hall and Evans, LLC in Denver-(303) 628-3300, parkerc@hallevans.com. Grant T. Sullivan is an Assistant Attorney General with the Colorado Attorney General's Office-(303) 866-4500, grant.sullivan@state.co.us. Substantive review of this article was performed by the Honorable Dennis A. Graham, Colorado Court of Appeals.
Achieving service of process on a defendant abroad can be riddled with procedural hurdles. Through its "Central Authority" mechanism, the Hague Service Convention significantly reduces those hurdles. That said, determining whether the Convention even applies and what method of service under the Convention is best suited to the case-and consistent with Colorado law-requires the careful balancing of several factors.
The term "service of process" refers to the formal delivery of documents legally sufficient to charge the defendant with notice of a pending action.(fn1) Federal Rule of Civil Procedure (FRCP) 4 and Colorado Rule of Civil Procedure (CRCP) 4 expressly prescribe the well-known requirements for serving process on a defendant located in the United States.
However, these rules only vaguely allude to how service of process is to be accomplished when the defendant is located in a foreign country. FRCP 4(f) provides three ways an individual may be served "at a place not within any judicial district of the United States":
1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;
2) subject to certain limitations, if no internationally agreed means is available or, if the international agreement allows but does not specify other means, by a means that is reasonably calculated to give notice; or
Although less detailed, CRCP 4(d) similarly states3) by other means not prohibited by international agreement, as the court orders.
Process served in a foreign country shall be according to any internationally agreed means reasonably calculated to give notice, the law of the foreign country, or as directed by the foreign authority or the court if not otherwise prohibited by international agreement.
As both rules suggest, there is a primary "internationally agreed means" of serving process-the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965, 20 U.S.T. 621 (Convention). This article examines the practicalities of serving a defendant under the Convention, which has been described as "bordered on all sides with fatal pitfalls."(fm2) The article first considers the history, purpose, and applicability of the Convention. It then discusses the available methods of service under the Convention once it has been determined to apply. Finally, the article explores substituted service methods that may be available under the Convention, including those considered in the Colorado Supreme Court's recent holding in Willhite v. Rodriguez-Cera, the first reported Colorado appellate decision considering the rules and mechanics of serving a defendant abroad.(fn3) Although questions of jurisdiction and enforceability of judgments are beyond the scope of this article, counsel should carefully evaluate both issues before initiating service of process under the Convention, which can be both costly and time consuming.(fn4)
History, Purpose, and Applicability of the Convention
CRCP 4(d), like its federal counterpart, authorizes service by "any internationally agreed means reasonably calculated to give notice." Unlike FRCP 4(f)(1), which expressly references the Convention, CRCP 4(d) is silent as to specific "internationally agreed means" of service. However, the Convention is understood as the primary internationally agreed means of service of process.(fn5)
History and Purpose
Since it entered into force in 1969 with only three contracting states,(fn6) the Convention has grown to include sixty-seven countries.(fn7) The Convention was intended to ensure that defendants sued in foreign jurisdictions receive actual notice of the suit, simplify the service of judicial documents abroad, and facilitate proof that service has been effected.(fn8) Before the Convention, service of process abroad generally proceeded through diplomatic channels with issuance of formal "letters rogatory" (essentially, requests from a U.S. court to a foreign court to effect service transmitted through diplomatic channels) or under bilateral agreements, requiring practitioners to navigate a vast web of individual treaty requirements.(fn9) As the number of contracting states has grown, the Convention has supplanted these antiquated methods and bilateral agreements.(fn10)
If the party to be served is located in a contracting state, it must be determined whether the Convention applies and, if so, which methods of service are available. Applicability is a fact-specific inquiry, and determining available methods of service requires analyzing the contracting country's reservations or objections to the Hague Service Convention.
Applicability of the Convention
By its terms, the Convention applies "in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad."(fn11) The Convention does not apply where "the address of the person to be served with the document is not known."(fn12) Substituted service on foreign defendants with unknown addresses may be available, as discussed below. A question that remains unsettled is whether the Convention applies where the defendant's whereabouts are known, but the defendant's exact address is not.(fn13) The explicit terms of the Convention suggest that it does not apply.(fn14) If the defendant's address may arguably be "known," it is advisable to assume the Convention applies.(fn15)
Accordingly, where the defendant's address abroad is known, the applicability of the Convention depends on two factors. These are: (1) whether the dispute is a "civil or commercial matter," and (2) whether there is "occasion to transmit a judicial or extrajudicial document for service abroad."
The meaning of "civil or commercial matter." "Civil or commercial matter" is not defined in the Convention or its negotiating history, and the ratifying states have conflicting views.(fn16) Although the practice in the United States and United Kingdom is to treat any noncriminal proceeding as a civil or commercial matter, civil law jurisdictions draw a distinction between civil or commercial matters (deemed governed by "private" law) and "administrative matters" (deemed governed by "public" law).(fn17) Because of this dichotomy, German and French Central Authorities have declined to serve legal documents issued by the Environmental Protection Agency, the International Trade Commission, and the Federal Trade Commission.(fn18)
Significantly, contracting states also may refuse requests under the Convention to serve U.S. complaints seeking treble or punitive damages based on policies that such damages relate to public law, are criminal in character, or infringe on their national sovereignty or security.(fn19) If so, FRCP 4(f)(3) permits the court to authorize an alternative service method provided the alternative method is not expressly prohibited by the Convention or other international agreement.(fn20)
Whether there is occasion to transmit a document abroad. Whether there is "occasion to transmit a . . . document for service abroad" is determined by the law of the forum state.(fn21) In the U.S. Supreme Court's seminal case on the Convention, Volkswagenwerk Aktiengesellschaft v. Schlunk, the plaintiff asserted a wrongful death action in Illinois state court against Volkswagen Aktiengesellschaft (VWAG), a German company, following an automobile accident in which his parents were killed.(fn22) The plaintiff served Volkswagen of America, Inc. (VWoA), as VWAG's agent. VWAG moved to quash service, contending it could be served only in accordance with the Convention's procedures. The lower court refused to quash service, reasoning that VWoA and VWAG are "so closely related" that the wholly owned American subsidiary was VWAG's agent for service of process as a matter of law.(fn23)
On review, the U.S. Supreme Court affirmed in an opinion by Justice O'Connor, holding that there was no "occasion to transmit a judicial document for service abroad within the meaning" of the Convention.(fn24) Analyzing the negotiating history underlying the 1964 creation of the Convention, the Court concluded that whether there is such an occasion depends on the law of the forum state.(fn25) Because the Illinois long-arm statute authorized the plaintiff to serve VWAG through its subsidiary and involuntary agent, VWoA, in the United States, which the Court determined complied with due process, the Convention had "no further implications."(fn26) However, the Court cautioned that, when it does apply, the Convention is mandatory and preempts inconsistent methods of service prescribed by state law.(fn27)
The sole Colorado state case interpreting the applicability of the Convention is Willhite v. Rodriguez-Cera,(fn28) a personal injury case involving a defendant living in Mexico. There, similar to Schlunk, the Court held that substituted service on the defendant's sister in the United States was permissible and effective on delivery of the documents to the sister. Hence, the transmittal of documents...
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