Service of Process under the Hague Convention

We recently had a wake-up call when trying to sue a Canadian defendant.  Our judge reminded us that we needed to serve the defendant in compliance with the Hague Convention.  We immediately did Google searches on service under the Hague, but came up with conflicting information.  So, we looked for process servers who understood the Hague Convention and could walk us through the process.  The result: highway robbery.  The process servers began quoting us prices between $2000 and $5000 for service.  I was shocked.  This is a far cry from the $50 to $200 I usually pay for service.

This caused me to research a bit more and carefully read through the provisions of the Hague Convention that govern the service of process.  Hopefully you will find my research beneficial.

 

The Basic Framework of the Hague Convention

Under the Hague Convention, the drafters were concerned about member states being able to use the civil and commercial judicial processes against the citizens of other member states.  The Hague wanted to (1) ensure that service of process was possible and (2) that it would not be abused.  To promote these principles, the Hague enacted the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters.  The text can be found here.

Under Article 5 of the Convention, service under the Hague must be under a method that is approved of by the Receiving State, which in my case is Canada.   As a practical matter, your local court will likely also require that service is proper under your requirements.  Thus, service under the Hague Convention likely must comport with the rules of both jurisdictions.

 

Service Through the Hague Convention Authorities

Under Article 2 of the Convention, each member state must set up a “Central Authority” that will arrange service in its jurisdiction.  A list of the Central Authorities can be found here.  Articles 2 through 7 set forth many of the details pertaining to the Central Authority.  In essence, each member state must set up a governmental agency called the Central Authority that will accept service requests and will either serve the papers or have them served.  There is a form that must be filled out properly in duplicate with the papers to be served attached to each duplicate.  A copy can be found here from this webpage. There are also rules about language.  Once the Central Authority receives the form, it must accept the form and perform service, or reject the form with an explanation of why the form is deficient.   Once service has been completed, the Central Authority must provide a certificate of service, or if service was unsuccessful, a certificate of attempted service.

I have read the horror stories about how long it takes to serve through the Central Authorities. According to the Hague’s website, 66% of requests are executed within two months.  That means that 1/3 requests take longer than two months to complete.  In other words, if you are serving through a Central Authority, leave yourself plenty of time for service.

There is a provision under Article 15 of the Convention that seems to state that a judge is free to file a default judgment against a defendant and presume that service was proper under the Hague if

(a) the document was properly transmitted to the correct Central Authority,

(b) at least six months have passed since the transmission of the document to the Central Authority, and

(c) the Central Authority has not issued a certificate even though the requesting party followed the requirements for service.

The plain language of the Hague Convention¹⁾which I have paraphrased seems to say that if the requesting party does everything right and the Central Authority is the party that preventing service by not doing its job, service may be presumed.  I am not sure how that works in conjunction with the local rules of service, but it may work when serving by publication locally.

In the end, service through the Central Authority may be slow, but service will be presumed under the Hague Convention after six months so long as the requesting party has done everything properly.

 

Alternatives to Service Through the Hague Authorities

The Convention also provides several alternatives to service through the use of a Central Authority:

Article 9.  Article 9 allows parties to serve through the use of consular channels.

Article 10.  Article 10 is probably the simplest to use.  Article 10 states that, so long as the receiving member state does not object, judicial offers or parties in the requesting state may send service documents to a judicial officer or “other competent person” in the receiving state for service.  In other words, attorneys in the United States probably may hire a process server in Canada to serve papers or, to be safe, could have a judicial officer (attorney) in Canada arrange for and supervise service.

Article 15.  If you use Article 10 to serve a summons, Article 15 states that default judgment shall not be entered unless (a) the document was served by the method allowed by the receiving state, OR (b) the document was actually delivered to the defendant or to his residence by “another method provided for by this Convention.”   Either way, a judge must allow a defendant proper time to respond to the complaint.

 

Takeaway

Based on the language of the Hague Convention, I am not sure that it makes sense to hire a third-party process server to deal with a Central Authority.  If you are going to go through a Central Authority, allow yourself at least six months for service.  Otherwise, so long as the receiving state does not object, you can simple find a judicial officer “or other competent person” to oversee proper service according to the laws of the receiving state.  The second option seems more efficacious.