Be Aware! Service on an Opposing Party in a Foreign Country Requires Particular Procedures and Forms

JurisdictionUnited States,Federal
CitationVol. 26 No. 2 Pg. 23
Publication year2013
Utah Bar Journal
Volume 26.

Vol. 26, No. 2. 23. Be Aware! Service on an Opposing Party in a Foreign Country Requires Particular Procedures and Forms

Utah Bar Journal
Volume 26 No. 2
Mar/Apr 2013

Be Aware! Service on an Opposing Party in a Foreign Country Requires Particular Procedures and Forms

by Gail Laser

Serving process on opposing parties located in foreign countries arises not only in large commercial contract disputes, but also in smaller cases involving personal injury, tort, divorce, custody, and estate matters. See generally Hague Service Convention, art. 1, concluded Nov. 15, 1965, 20 U.S.T. 361,T.I.A.S. No. 6638; Charalambous v. Charalambous, 744 F. Supp. 2d 375 (D. Me. 2010) (applying the Hague Service Convention in a child custody dispute); Eli Lilly and Co. v. Roussel Corp., 23 F. Supp. 2d 460 (D.N.J. 2007) (applying the Hague Convention in analyzing whether service of process was appropriate in a tort action); Collins v. Collins, 844 N.E.2d 901 (Ohio Ct. App. 2006) (holding that service was improper in a divorce proceeding under the Hague Convention).

Thus, a deep cross-section of the Bar may encounter this prospect. This article describes the particular requirements of service on a defendant located in a foreign country that is a party to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Service Convention). At present, sixty-seven nations are signatories to the Hague Service Convention, including the United States and our closest neighbors, Mexico and Canada.(fn1) Notably, if the requested State is not a party to the Hague Service Convention and there is no other internationally agreed upon means of service, both the Federal and Utah Rules of Civil Procedure require that service be "reasonably calculated to give notice," including by mail with a signed receipt, if not prohibited by the receiving State. See Fed. R. Civ. p. 4(f)(2); Utah R. Civ. P. 4(d)(3)(B).

As background, a number of countries consider service of process a governmental function and object to its accomplishment by registered mail without the host government's participation. The Hague Service Convention created procedures and forms to avoid informal service of process methods such as service by mail or agent, in order to safeguard the position of defendants who might otherwise remain ignorant of proceedings being taken against them. Service of process by mail or private process server, as well as other alternative methods, is invalid under the Hague Service Convention. Rather, the Hague Service Convention requires that service occur through a Central Authority, designated by a State "to receive requests for service coming from other contracting States" that will in turn proceed to carry out service. Hague Service Convention, art. 2, concluded Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638. After the applicable form is completed and sent to the destination Central Authority, the Central Authority then reviews the request, determines its compliance, and "shall itself serve the document or shall arrange to have it served by an appropriate agency." Id., arts. 3-5. For signatory nations, "the provisions of the Hague Convention are mandatory" and failure to follow the prescribed methods "'voids the attempted service."...

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