[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, which follows here, provides a good bit of background, and Part Four delves into articles that, while important, have a little less application to everyday practice.]
Article 1, essentially, says where the Convention applies and where it doesn’t.
- It applies if a plaintiff has “occasion to transmit (…) for service abroad”. That is, if you can serve the defendant in the U.S., the Convention doesn’t apply. So don’t worry about it. You may have enforcement issues later on, but for the purpose of putting the defendant on proper notice under U.S. law, you’re okay.
- It applies if the defendant’s address is known. That is, if you don’t know the defendant’s whereabouts, the Convention doesn’t apply. So don’t worry about it. That said, if you can’t locate the defendant, you have bigger problems than Hague analysis. Also, there’s a difference between not being able to find the guy and not even trying. So don’t be lazy.
Article 3 indicates who can file a request under Article 5 (a “Forwarding Authority”), and what the request must consist of. Important to note is that “the authority or competent judicial officer” making the request is defined by the country in which the case is being heard, and that definition is found in each country’s declarations to the treaty. An Article 5 request sent from the U.S. must be signed by a court official or an attorney—it cannot be signed by just anybody authorized to serve process in the forum court.
Article 4 requires the receiving Central Authority to answer a request promptly if it is denied for formatting. “Promptly” is a very loose term.
Article 9 allows requests to be conveyed to the Central Authority by diplomatic officials of the country hearing the claim. Don’t spend much energy on this one, because using diplomats to convey a request defeats the purpose of the Convention in the first place. Plus, U.S. diplomats won’t handle Hague Requests anyway—instead, they’ll just look at you funny and send you on your way. Still, Article 9 is important to be aware of, just in case somebody tells you to just “call the State Department and have them do it.” Sorry, pal. Doesn’t work that way.
Tomorrow, we conclude the series with discussion of a few articles that aren’t frequently addressed, but that occasionally pop up in discussion of proper Hague Service.