The significant omission of the common law in terms of contemporary international trade and travel is succinctly set forth by the American treatise on the law, Corpus Juris Secundum, at 72 C.J.S. §40:

"At common law or in the absence of statute, service of process cannot be had on a defendant outside the country where it is issued...."

Because of this, the 1965 Hague Service Convention has been a phenomenally popular treaty, ratified by many countries around the world and providing a substantial benefit to litigants as they wrestle with the otherwise impossible double problem of effecting service on litigant in another country, and then having to prove it.

To be precise, it was on November 15, 1965 that the Convention was finally concluded as a result of negotiations between twenty-three states, including the United States.

Hague Service ConventionIndeed, the formal name is:

Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

Most international law specialists simply referred to it as the Hague Service Convention.

The 1965 document replaces to earlier initiatives which met with only limited international acceptance:

  • The Convention on Civil Procedure signed at The Hague on July 17, 1905; and
  • The Convention on Civil Procedure signed at The Hague on March 1, 1954.

The preamble to the 1965 treaty sets out the raison d'être of the Hague Service Convention:

"Desiring to create appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time (and) … to improve the organisation of mutual judicial assistance for that purpose by simplifying and expediting the procedure."

Fyfe wrote, in his 2012 article:

"The Hague Service Convention is a multilateral treaty signed in 1965 by members of the Hague Conference on Private International Law (HCCH). Its purpose is to simplfy service of court process from one contracting state to another by replacing cumbersome diplomatic or consular process....

"It requires each contracting state to designate a central authority to accept incoming requests for service and then arrange for service in a manner permitted within that state....

"Prior to the Hague Service Convention, service was generally effected using letters rogatory. This involved transmission of the document from the originating court between the originating and recipient states' departments of foreign affairs (or embassies), then to a court in the destination state or to the destination state's department of justice, or some variation of this procedure. Service would eventually be effected as a matter of the diplomatic courtesy."

The Vanderbilt Journal of Transnational Law suggested this:

"The rise of international civil litigation - a response to the ever-increasing interdependence of national economies generates much concern over the mechanics of such litigation. International service of process is an obviously important issue in this litigation, but it remains a much disputed area of conflict between states. The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention or Convention)  represents an attempt by a number of states, including the United States and most industrial Western states, to lessen this dispute….

"The Convention arose from a milieu of growing concern over the shortcomings of and challenges to international judicial service of process."

Consider the words of Justice Carr of the United States Court of Appeal when, in DeJames, he explained the situation giving rise the Hague Service Convention:

"The treaty was intended to further international judicial cooperation among nations for the increasing number of cases both here and abroad that had international overtones. Numerous problems had surfaced in connection with international judicial assistance, primarily due to the inconsistent procedural requirements imposed by different nations. American plaintiffs sometimes found it difficult, or prohibitively expensive, to effect service in a manner that complied both with the federal or state statute authorizing such service and the requirements of the country in which the defendant was served. Foreign plaintiffs who wished to serve American defendants in the United States often encountered difficulties because there was no central authority to assist them, and local officials who were authorized to effect service were often unfamiliar with the procedural requirements of the civil-law countries. Moreover, certain civil law countries authorized methods of service that failed to give notice to the American defendant, thereby creating the risk that an American defendant would suffer a default judgment in that country without having had an opportunity to defend the claim."

This is a critical treaty internationally and especially as regards to civil litigation and civil procedure. Not only is a substantial step towards a utopian situation of an international code of legal procedure, but it is also a document which has been ratified by many members of the United Nations including but not limited to, as of July 2012:

Argentina, Australia, Belgium, Bulgaria, Canada, China, the Czech Republic, Denmark, Egypt, Finland, France, Germany, Greece, Hungary, Iceland, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, the United Kingdom, the United states of America and Venezuela.1

The Ministry of Foreign Affairs of the Netherlands has been named as the official registrar for the purposes of maintaining an up-to-date list of contracting states, states which have formally adhered to the convention either by ratification or ratification with some formal reservation.

Some states have only ratified the agreement with specified reservations so in the event of a particular issue, reliance should be had to relevant diplomatic or internal statutes in regards to any reservations.

The theory behind the convention is to provide for specified in formal channels through which documents to be used in legal process are to be conveyed.

The basic requirements of the convention are that a judicial document exists to be served on a person; that the document relates to a civil or commercial matter; and that an address is provided for the person to be served. Indeed, Article 1 provides:

"This Convention shall not apply where the address of the person to be served with the document is not known."

Generally, but not always, and as described by Fyfe above, each state signatory to the convention will designate a "central authority" for the purposes of receiving official judicial or extrajudicial documents in civil or commercial matters:

"Each Contracting State shall designate a Central Authority which will undertake to receive requests for service coming from other Contracting States."2

All such documents seeking to benefit from the Convention, coming in to a signatory state, would go through this central authority.

The central authority takes charge of the process of service within their territory. There may be some costs which have to be payable in advance.

Each signatory state can name which judicial or other agencies are competent as official shippers of documents out to the relevant central authority of the state within which resides the person being served. This can include a judge, a court registrar, a lawyer or even a regular process server, but it does not normally include private individuals or persons. And some countries, especially those with underdeveloped legal systems, are very careful about who they allow to be "official shippers" under the Convention.

The Convention proposes a mandatory form to be used, known as the model form.

Other need-to-know provisions of the Hague Service Convention:

"13. Where a request for service complies with the terms of the present Convention, the State addressed may refuse to comply therewith only if it deems that compliance would infringe its sovereignty or security.

"19. To the extent that the internal law of a Contracting State permits methods of transmission, other than those provided for in the preceding Articles, of documents coming from abroad, for service within its territory, the present Convention shall not affect such provisions."

The Hague Service Convention does not promote service by mail as many signatories have given formal notice of objection to service by postal channels.

This amazing little document continues to contribute to law, order and international trade around the world by keeping the wheels of justice well oiled in the delivery of judicial documents between litigants in one country and participants in another.

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