Your defendant is a foreign government. Or a monarch. Or a foreign diplomatic mission. A consul with a diplomatic passport. A company owned (at least in part) by a foreign state. (You get the point.) You’ve done all the analysis necessary to convince a court that jurisdiction is appropriate under the Foreign Sovereign Immunities Act (28 U.S.C. §§1330, 1602 et seq.)– the terrorism exception and the commercial activity exception come to mind– but in order to start the proceedings, you have to put the defendant on notice of the claim. So, how do you get them served?
Honestly, it’s not markedly different from serving a foreign individual or private company based abroad. But there are a few particularities involved, and they can all be found in 28 U.S.C. §1608.
The first question: is the defendant a government (either a state* or one of its political subdivisions), or is it an instrumentality (a seemingly private entity owned by the state)?
Governments are served under §1608(a), and instrumentalities under §1608(b). Each section lays out a hierarchy of steps. Simply start with #1 and march your way down the list until you hit an option that works. If you reach the end of the list and don’t have it done, we should chat, because you’ve probably missed something and are likely facing dismissal.
§1608(a): Government Defendants
- If the government has made a special arrangement for service, such as in a contract, follow that arrangement and it’s done. These are pretty rare, but if the drafting attorneys know about the first item in my big list of Five Things, it might make things awfully easy. No arrangement? On to #2.
- If a treaty relationship exists with the foreign country, follow the treaty– usually by sending a request to a Central Authority where the Hague Service Convention applies– and be sure to include a translation if called for in the foreign country’s declarations. Be advised, though, that Central Authorities may refuse to serve their own governments on sovereign immunity grounds, especially if they don’t share the U.S. view of the commercial activity exception.
- If that doesn’t work, or if no treaty is in place, try mailing it, as long as the foreign government doesn’t object to mail service in a treaty. A translation into the foreign country’s primary language is required by the FSIA, and it must be sent by a method requiring a signed receipt.** Now, you may or may not get that receipt… I wouldn’t bet the farm on it.
- If 30 days have passed, and you don’t have a delivery receipt, fill out a Notice of Suit (available from the State Department) and send duplicate copies of everything, including translations, to the State Department for transmittal by diplomatic note. This is particularly hairy if the defendant lacks diplomatic relations with the U.S.
[Here ends the list. No more options.]
§1608(b): Agency/Instrumentality Defendants
- If the agency or instrumentality has made a special arrangement for service, such as in a contract, follow that arrangement and it’s done. These are less rare than with governments, especially if the drafting attorneys know about the first item in my big list of Five Things. No arrangement? On to #2.
- If the instrumentality has a U.S. agent or officer that can be served in the U.S., hand them the documents. Alternatively, if a treaty relationship exists with the foreign country, follow the treaty just like above.
- If neither of those work, (A) try a Letter Rogatory, (B) try mailing it– with the same warnings as above, or (C) “as directed by the court consistent with the law of the place where service is to be made.” Honestly, I don’t see how (C) is going to work if none of the above fit the bill, but more odd things have happened in my line of work.
[Here ends the list. Options are even more limited, because the diplomatic avenue is omitted.]
There’s more to it, of course, but fortunately, the lion’s share of suits against foreign governments will begin and end with the Hague Service Convention. On the surface, it might seem daunting, but not that much more complicated than a private defendant.
* “State” here refers to a sovereign. Rather an odd concept for Americans, who conceptualize sovereignty on a split-screen basis. Yeah, Missouri is a sovereign state, but it’s not a nation. Yeah, the U.S. is a nation and a sovereign, but it derives its sovereignty from the consent of the governed through the respective 50 st… ah, heck, I could ramble on all day. Point is, in most other countries, “the state” means the national government. And when we talk about “states-party” in treaty-speak, we mean member nations.
** In federal cases, remember the Rule 4(f)(2)(C)(ii) requirement that the mailing originate from the Clerk of Court, rather than from counsel. Remember, too, that if mail service is precluded under the foreign country’s declarations to the Hague Service Convention, it’s invalid for this step.
Update, July 20, 2020: an interesting new application of the FSIA hierarchy is in the works, and I’m curious to see how it is interpreted. As of September 12 (some eight weeks from now), the Hague Service Convention will enter into force in Austria. Its declarations are yet to be posted to the HCCH website (they are on the Dutch government’s treaty database…), but one interesting declaration has been highlighted by the good folks at conflictoflaws.net — Austria will not allow service of documents on the state or political subdivisions via the Convention. Instead, Austria’s declaration directs plaintiffs to use diplomatic channels instead of Convention methods. So my question: how does this square with the §1608(a) list, which mandates that mail service be attempted before diplomatic channels? We shall see… but I sense that Austria’s objection to HSC Art. 10(a) renders that a nullity.