Wednesday, October 15, 2014

Litigation – Serving a Foreign Defendant with a Summons Through the Hague Convention Using a Foreign Country’s Central Authority

This is the second of a series of blog posts concerning methods for serving a foreign defendant. This post examines how to serve the defendant through the Hague Convention using a foreign country’s Central Authority (Article 5, 1st paragraph).

            This post assumes that the defendant is in a country that is a signatory to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.  To confirm this, go to the website for the Hague Conference on Private International Law, follow the link for the Service Section, select the link for the Updated List of Contracting States, and then search for the country.

            Under the Hague Convention, each signatory country must identify an entity to act as its “Central Authority which will undertake to receive requests for service coming from other Contracting States and to proceed in conformity with the provisions of Articles 3 to 6”  (Article 2).  You may consider serving through a country’s Central Authority because, after the defendant has been served, the Central Authority will issue you a certificate that states (a) where and when the defendant was served and (b) how the service was effected.  This Certificate effectively eliminates a defendant’s arguments that there were issues with the service.

            The next step is to identify if the legal documents need to be translated.  Each signatory to the Hague Convention can require that the documents to be served be translated into a different language (Article 5, 3rd paragraph).  This information is also available on the Hague Convention website on each country specific page.  For example, the following link is to the page for Sweden.  Sweden requires that documents to be served be translated into Swedish, but that documents in Danish or Norwegian also are accepted.  You should confirm with the country’s Central Authority whether they require a certified translation, but most countries do not require a certified translation.

            Finally, you need to prepare the actual request document -- USM94 “Request for Service Abroad of Judicial or Extrajudicial Documents”.  On this form, you will complete pages 1 and 3.  Page 2 will be completed by the Central Authority after they have served the foreign defendant.  You should confirm with the country’s Central Authority, but most countries do not require that the USM94 be translated.

            Some tips for completing the USM94:

1.            Page 1, Identity and address of the applicant.  This asks for information about the attorney sending the USM94.

2.             Page 1, Address of receiving authority.  This asks for the address for the Central Authority.

3.             Page 1, method of service.  For this post, you will mark the check box for “a” as the Central Authority will serve according to its local rules.

4.             Page 1, location and date block.  After “Done at”, write your city and state.  After “, the”, write the date.

5             Page 1, authority for sending the request.  Under the Hague Convention (Article 3), any judicial officer can send a Request under the Hague Convention.  An attorney is a judicial officer and can send a Request.  It is recommended that any attorney write “Service requested pursuant to FRCP 4(c)(2)” on the USM94 form by the signature line.

6.             Page 3, “Name and address of the requesting authority”.  The name and address of the attorney sending the Request.

7.             Page 3, “Nature and purpose of the document” section, the following language can be used if you are sending a Summons and Complaint. 

The summons notifies the defendant of its obligation to answer or otherwise respond to the complaint within 21 days of service. The complaint notifies the defendant of the nature of the plaintiff’s claim and the plaintiff’s demand for relief.

8.             Page 3, “Time limits stated in document” section, the following language can be used

An answer or motion must be served within 21 days of the date of service of process and must be filed with the court within a reasonable time thereafter.

            Once you have assembled all of the necessary documents, your package to a foreign country’s Central Authority should contain, at least, the following documents:

1.             two copies of the USM-94 (may not been to be translated)
2.             two copies of the Summons
3.             two copies of the Complaint with exhibits
4.             two copies of the translated Summons
5.             two copies of the translated Complaint with exhibits

- Henry Park

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