Hague Service Convention
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The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, more commonly called the Hague Service Convention, is a multilateral treaty which was adopted in The Hague, The Netherlands, on 15 November 1965 by member states of the Hague Conference on Private International Law. The treaty allows for service of process of legal documents from one state to another without the use of consular or diplomatic channels. The treaty supersedes the 1905 Civil Procedure Convention, which had previously dealt with the issue of international service of process.
Contents
Diplomatic service via letters rogatory
For states which are not party to the Hague Service Convention, diplomatic channels are generally used for the service of legal documents. It is generally effected by a letter rogatory, which is a formal request to issue a judicial order from a court in the state where proceedings are underway to a court in another state. This procedure generally requires transmission of the document to be served from the originating court to the foreign ministry in the state of origin. The foreign ministry in the state of origin forwards the request to the foreign ministry in the destination state. The foreign ministry then forwards the documents to the local court. The local court then makes an order to allow for the service. Once service is made, a certificate of service would then pass through the same channels in reverse. Under a somewhat more streamlined procedure, courts can sometimes forward service requests to the foreign ministry or the foreign court directly, cutting out one or more steps in the process.
Procedure
The Hague Service Convention established a more simplified means for parties to effect service in other contracting states. Under the convention, each contracting state is required to designate a central authority to accept incoming requests for service. A judicial officer who is competent to serve process in the state of origin is permitted to send request for service directly to the central authority of the state where service is to be made. Upon receiving the request, the central authority in the receiving state arranges for service in a manner permitted within the receiving state, typically through a local court. Once service is effected, the central authority sends a certificate of service to the judicial officer who made the request. Parties are required to use three standardized forms: a request for service, a summary of the proceedings (similar to a summons), and a certificate of service.
The main benefits of the Hague Service Convention over letters rogatory is that it is faster (requests generally take two to four months rather than six months to one year), it uses standardized forms which should be recognized by authorities in other states, and it is cheaper (in most cases) because service can be effected by a local attorney without hiring a foreign attorney to advise on foreign service procedures.
The Hague Service Convention does not prohibit a receiving state from permitting international service by methods otherwise authorized by domestic law. For example, a state could allow for service directly by mail or by personal service. States which permit parties to use these alternative means of service make a separate designation in the documents they file upon ratifying or acceding to the Convention.
Methods of Service
Self Service
There are several methods of service. If the Central Authority agrees, Article 10 states that an individual may affect self-service by:<ref>Template:Cite web</ref>
- Direct service i.e. Hand delivery to the defendant by an individual located in the Country or territory to be served.
- Service through postal channels (mail delivery or private courier)
Central Authority
Although the service is free, it may take 4 to 6 months for the Central Authority to Process. The central authority decides which method is to be used. In many cases a bailiff will be assigned by a local court to serve the documents and mail back the proof of service but service by mail is also possible. <ref>Template:Cite web</ref>
Interpretation issues
Definition of court officers
In the United States, an attorney is regarded as an officer of the court,<ref>Template:Cite web</ref> but not all states parties to the Convention accept them to participate in their court procedures.<ref>Template:Cite web</ref>
Service by mail
Service by mail is only possible in those states that have not objected to that method under Article 10(a) of the convention. It is therefore impossible in amongst others Germany, Switzerland, and South Korea, which incoming service to be effected exclusively through the state's central authority.<ref name="List of states">Template:Cite web</ref>
In the United States, the interpretation of a provision in Article 10(a) is controversial. The provision permits the requesting judicial officer to "send" judicial documents by postal channels to states that have authorised this channel upon ratifying or acceding to the Convention, such as France and Italy. Other provisions of the convention say "serve" or "service". The controversy is over whether the provision permits service directly on parties by mailTemplate:Citation needed and the question is currently pending before the United States Supreme Court. Meanwhile, an increasing number of courts have interpreted this provision to permit international service of process by mail, where authorized by forum-state law and unless the state where service is affected has objected to the use of Article 10(a).
Relation with other instruments
Under the convention, states may conclude different agreements between them that take precedence over the convention. Thus, within the European Union (except for Denmark) other rules are applied instead of the Convention.
State parties
Template:As of, 71 states are contracting parties of the Hague Service Convention. They include 56 of the 81 Hague Conference on Private International Law member states in addition to 15 other states.<ref name="List of states"/>
Notes
References
External links
- 1965 in the Netherlands
- Civil procedure
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