[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 a bit of background, and Part Four delves into articles that, while important, have a bit less practical application to everyday practice. This is Part Two, focused on Alternative Methods articulated in the Convention.]
There’s no such thing as “serving through the Hague Convention”. For starters, you’ve got to get the name of the treaty right. Here, we’re talking about the Hague Service Convention, not to be confused with the three dozen other treaties that are known as Hague Conventions.
Additionally, I sometimes have a lawyer-client say, “I have to serve a defendant in (Country X), but I don’t want to do it through the Hague. That’s just too much hassle.”
What they really mean to say is that they don’t want to file a request with the foreign country’s Central Authority (see Part One). Fortunately, in many countries, you have options beyond the Central Authority, and they come from the Convention’s Article 10.
Article 10 is at once a source of confusion and salvation. Confusion because they aren’t available everywhere, salvation because they can be a far superior avenue to effective service. Provided the country you’re serving in doesn’t object to the specific methods, Article 10 lets a plaintiff go beyond the Article 5 procedure and utilize the following“Alternative Methods”:
10(a): Service by Postal Channels, which is to say, good old U.S. Mail (or FedEx, UPS, DHL—to be sure, the Post Office uses FedEx for its overseas courier deliveries, and I’ve never seen one rejected because “you used FedEx instead of the Post Office”). Still, I argue that service by mail is a bad idea.
10(b): Service via direct access to “judicial officers, officials or other competent persons” of the country you’re serving in. In short, this means process servers in common law jurisdictions (except England/Wales), and it means officers akin to bailiffs in civil law systems. This is ordinarily the quickest way to get things done. It’s usually not the cheapest, but it’s fast—and it’s just as legally valid as an Article 5 request.
10(c): Service via “Interested persons.” For the most part, this one is swallowed up by the “other competent persons” designation of 10(b), except in England & Wales, whose declarations specify that 10(c) is the article applicable to the use of process servers. Critical to note, though—the English/Welsh also require that a solicitor instruct the process server, so we Americans can’t just pick up the phone and hire some guy we know in Liverpool.
That’s it in a nutshell. Stay tuned tomorrow for the background articles, which inform the operative portions of the Convention.