[Originally published at vikinglaw.us]

The Hague Service Convention is mandatory doctrine in U.S. law. Wherever the treaty applies, plaintiffs must follow its dictates. Failure to strictly adhere means their attempts at service—whether successful or not—are ineffective. The safest avenue to a sound legal footing is by filing a request with a foreign country’s Hague Central Authority pursuant to Article 5 of the Convention.

A properly formatted request, which prompts the foreign Authority to serve a defendant, results in a Hague Certificate of Service, a globally standard attestation by the foreign Authority that service is complete. The court hearing the case cannot look behind the Certificate to analyze whether service was effective under the foreign country’s law.

But what if the underlying request is itself invalid? Herein lies a flaw in the practice undertaken by many plaintiffs. On a standard Hague form (commonly, the USM-94 in the United States) the requestor should indicate a basis for his or her authority to forward the request.

While the designation of method and of who can serve in the foreign country is determined by that country’s declarations to the Convention, the determination of who can forward a request (that is, sign the form) is made by the country where the case originates.

Under U.S. law, that means a court official or an attorney. A Hague request signed by a non-lawyer who is neither a court official nor specifically commissioned by the court is invalid…

(Joe Bob is not a lawyer.)

Although a few foreign Authorities do balk at flawed statements of a requestor’s right to file, most give the matter scant thought. As such, service is carried out, but on an invalid basis.

By and large, Hague Certificates are unassailable. The forum court is not the most competent finder of foreign law (that is best left to the foreign country’s authorities!), so it has to take the Certificate at face value, but that is only part of the issue. The request itself must comply with U.S. law at its inception, regardless of the foreign country’s execution.

Many don’t comply, so quashing is always an option.

  • Ella woodson

    Hi… I have to small clain open in Miami Fl about a remoleding job done and the owner pay half and din’t pay the final part… but the ower live in Quebec .. The process service have to serve in Canada. ?
    Have to be traslater the document in French.?
    How much will cost ?
    Best regards,
    Ella Woodson

    Thanks

  • Greg

    Can a pro se litigant sign the service request himself? (Yes, I understand you can’t stress enough that all litigants need an attorney).

    • No, but the judge or court clerk can.

      • CJ

        I was told I can complete the form but have my lawyer to sign it. Is that believed to be true?

  • Sarah

    Do you need to put the home address of the person being served abroad, or can you use their work address? The provided home address is not where the person being served actually lives (he put an uninhabitated family home to avoid service), but he would be easy to find at his work address.

    • That depends on which country you need to serve in. This is a very country-specific issue.

      • Sarah

        Thanks for the quick reply. The country is Egypt.

        • Tough to know for sure. It would be preferable to have a home address– officials in civil law systems, especially in Europe, are hesitant to serve a person at his/her place of business. I’m not sure if Egyptian officials would be so hesitant, but the attorney submitting the Hague request should be sure to indicate in a cover letter something like “we know the defendant’s work address, but have been unable to ascertain his residence.” They might serve it, they might not– very difficult to say.

          But– if the attempt fails, then other avenues might be pursued, perhaps including email. See this post for more: https://www.haguelawblog.com/2016/06/electronic-service-of-process-abroad/

          • Sarah

            Again, thank you for taking the time to reply and share your expertise.

            So is it safe to say that it is up to Egyptian officials to decide whether they are okay serving at a work address or not, but there is no language in the articles of the convention that require it to be a home address? In other words, if a representative of the Egyptian Central Authority accepts the work address and manages to serve there, that service cannot be challenged by the defendant on the sole grounds that a home address was not used?

          • Exactly. The question of whether to serve at home or at work is a question of Egyptian law & practice– it is not addressed in the Hague Service Convention specifically. To be sure, the Convention, by its own terms, is inapplicable where the defendant’s address is unknown. But that text does not differentiate between the two.

  • Dallas DeLuca

    Why does the lawyer and not the vendor sending the service to the foreign Central Authority sign? FRCP (c)(2) provides that “Any person who is at least 18 years old and not a party may serve the summons and complaint.”

    • Because that person is not serving the summons & complaint. They are requesting that service be effected by a foreign authority. The act of signing the request doesn’t constitute the act of service.