[Author’s note: this series distills the Hague Service Convention as it applies to practitioners in the United States—it is not a definitive analysis of the treaty in a broader sense. Parts One and Two focus on the treaty’s main operative articles, Part Three provides pertinent background, and Part Four delves into articles that, while important, have a bit less practical application to everyday practice. This is Part One, focused on the “Central Authority” method of requesting service, which is common to all countries in the treaty. Except Russia, as you’ll see.]
Officially, it’s called the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters. Colloquially, it’s called the Hague Service Convention, and if it applies, its strictures must be followed in U.S. courts. To be sure, treaty analysis is not a precise analog to statutory construction, but that doesn’t mean it is overly complicated.
In general, the Convention lays out the method(s) by which a U.S. plaintiff can serve a defendant in another country that is also a member of the treaty.
Article 2 requires member countries to designate a Central Authority to field service requests from fellow treaty members. Usually, this Authority is the Foreign Ministry or Justice Ministry (analogous to our State/Justice Departments), or in some cases, a specific Court. Here in the U.S., our Central Authority is technically the Department of Justice, but its functions are outsourced to a private firm. (The private firm, as you might expect, charges foreign requestors $95 to serve U.S. defendants. But Justice’s refusal to waive/cover the charge violates a fee prohibition in Article 12—which in turn gives the Russians reason to deny U.S. requests as a matter of course!)
Article 5 is the most vital part of the treaty, the big dog, the real crux of the whole thing. It requires a Central Authority to serve either according to its own method or, if appropriate, in a manner requested by the plaintiff. The proper request form is described here. (Aside: don’t get hung up on a requested method if you’re afraid the Central Authority will not observe forum court rules. They don’t have to. If the foreign government thinks serving by carrier pigeon is valid under its own law, then the U.S. court has to accept that, so long as the pigeon method doesn’t violate the Mullane standard of due process. Given that publication still suffices, Mullane sets a very low bar.)
Article 5 also allows the receiving government to refuse untranslated documents, and requires that a summary of the documents be served with them. If you go no further than Article 5 in trying to get a defendant served, you’re usually okay, although Article 10 alternatives may be the better option if available.
Article 6 requires the foreign Central Authority to send a Certificate to the applicant, indicating whether service has been effected.
- If it hasn’t been effected, the Certificate says why not. Sometimes, it’s as simple as “sorry, the guy doesn’t live there anymore… try again.”
- If it has been effected, the Certificate briefly indicates how it was done. This thing is like Kevlar®. Bulletproof—at least, as long as the request was proper.
That’s it in a nutshell. Stay tuned tomorrow for the Alternative Methods articulated in Article 10.
* Back when dinosaurs roamed the Earth (circa October, 1987), the lazier students among us set aside the masterwork that the teacher assigned and instead read a Cliff’s Notes, a bare-bones synopsis of the story that gave us juuuust enough information to seem like we’d done the assigned reading, but failed to provide real depth for an academic discussion. Don’t want to be subjected to The Sound & the Fury? Fine, Cliff’s is there for you. [I should have read Cliff’s for that one, because the original was infuriating. I hate Faulkner, and I still think anybody who likes him is out of their tree.]
The point here to give lawyers the framework of the Hague Service Convention without drilling too deep into the nuances of its application.
In law school, the comparable distillations were called Nutshells, but that title just isn’t as poetic as Cliff’s Notes, and wouldn’t give me a chance to express my disdain for William Faulkner.