(As of 2022… French Huissiers are now called Commissaires de Justice…)
To most American lawyers, service pursuant to the Hague Service Convention means filling out an inscrutable Article 5 request form, putting a jumble of paperwork into decipherable order, and mailing it off into some black hole bureaucracy in a far off land. In some cases, that’s exactly what it amounts to, and this is why I have a practice. Really.
But much of the time, a litigant is better off using Article 10(b) channels to effect service. They’re no less effective, they’re usually quite a bit quicker than the Article 5 channel, and often do not cost much more to use than that inscrutable form. In France, Luxembourg, Belgium, and even Québec, the Huissier de Justice is the route to speedy and effective service. The counterpart to the huissier in the Netherlands is the gerechtsdeurwaarder, and they serve a substantially similar function (I use the term huissier from here to apply to both– merely for simplicity).*
Article 10. Provided the State of destination does not object, the present Convention shall not interfere with (…) b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination (…) .
In short, a lawyer in the US can directly hire a huissier or gerechtsdeurwaarder to serve process in countries that do not object to Article 10. Applying to the Central Authority under Article 5 is superfluous… you may as well just cut out the middleman, because the Central Authority is going to hand the request off to a random bailiff for execution anyway.
But beyond speed, what is the benefit? Simply put, control. If you hire a judicial officer directly, you determine who handles the documents, you reduce the number of hands they pass through (and thus reduce the chance for error), and you can prevent ineffective service because the person working the job doesn’t know what law you need to apply. I’ll elaborate momentarily, after a bit of explanation of what a huissier actually is.
First and foremost, a huissier is a lawyer– a fully trained attorney who has chosen a specific career track in a specialized field. In civil law jurisdictions, lawyers don’t just choose between transactional and trial work or between criminal and civil. Very early in their career progression (perhaps even while in law school), they’re tracked. Some become administrators, some transactional attorneys, trial lawyers– even judges– very soon after law school… and some choose the huissier track. Depending on the country, huissiers may have a statutory monopoly on service of process functions, the drafting of conveyances & deeds, and the execution of judgments (think seizures, like walking into a bank and pulling all the money out of a losing defendant’s account).**
If an American lawyer can directly hire one of these folks to serve, we aren’t always subject to the luck of the draw. It’s usually all up to us.
- In the Netherlands, we can avoid the erroneous application of an EU requirement that ALL pleadings be translated into Dutch (they don’t necessarily have to be).
- We can actually communicate with the person serving process to ask that they not serve a dissolution action on a respondent by handing the documents to the petitioner’s teenage son (this actually happened… “um, Mom, are you and Dad getting a divorce?”).
- Fortunately, service by huissier is not substantially more costly than going through a Central Authority. In many cases, it is my primary recommendation, and in some cases, my only recommendation.
Don’t let the fancy titles fool you– these folks are just lawyers, like you and me. And for the most part, they are incredibly gracious, cordial, and professional.
* Germany, Austria, and German-speaking Switzerland likewise use deurwaarders (in francophone Switzerland… huissiers), but those countries object to Article 10 entirely, so discussion here omits them. I include Austria in the Article 10 objection on an anticipatory basis– the HSC hasn’t entered force there yet, but I am 99.44% certain the Austrians will join their closest neighbors in objecting to Article 10.
** Bailiffs can also play a special role in mitigating the defendant’s stress, especially in high conflict family law cases. They’re often the defendant’s only resource for guidance. At that, however, if the bailiff is the wrong sort of person, their lack of compassion can make matters worse, so choose carefully. See the second bullet point above– I once had a German bailiff (who I could not select) serve divorce papers on a wife by handing them to the couple’s 14 year-old son… not exactly tactful, in my estimation.