What exactly does it take to successfully serve process “over there?” The first (short) answer: time. Lots of it. The second (longer) answer: It depends on which foreign country you’re serving in. It also depends on whether that country is a signatory to one of two treaties. Or both. Or neither. Or whether the other country is honoring any treaty. Then there are all the other little things that can get in the way, from words to weather to war. And you’ll encounter up-front fees not normally associated with service of process here in the good ol’ U.S. of A.

THE TREATIES

Rule 4(f) of the Federal Rules of Civil Procedure (and many state statutes) allow service on a person in a foreign country “by any internationally agreed means reasonably calculated to give notice.” The rule then specifically mentions the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents of November 15, 1965, to which the United States became a signatory in 1969. Forty-three nations belong to The Hague Convention, a treaty which describes the necessary steps to follow for serving process between signatory countries. Despite the scope and detail of the treaty, service under The Hague Convention can still be unwieldy. Furthermore, from start to finish, service of process can take four months or longer.

Since 1988, the U.S. has also belonged to the Inter-American Convention on Letters Rogatory and Additional Protocol, signed by a dozen other countries of North and South America. Service of process under this treaty goes through the U.S. Department of Justice, which in turn deals with a central serving authority in the other member nation (usually the other country’s ministry of justice or foreign affairs). Completion of service usually takes from 6-12 months but sometimes longer.

LETTERS ROGATORY, PRIVATE AGENT, MAIL

What if the country where your defendant is located isn’t a member of either The Hague or Inter-American conventions? One option is service of process by “letters rogatory” but only if the U.S. and the other country have diplomatic relations. A letter rogatory is a document issued by a U.S. court officially requesting a foreign judicial authority to permit a person or entity in that foreign country to be served or to allow the acquisition of evidence. This method can take 6-12 months or longer and hinges on the state of diplomatic relations at the time the request is made.

Another option for serving process in a country where the U.S. has diplomatic ties is to hire a private agent (attorney) to personally serve process on the defendant–which may be your only option in Venezuela, India, and Pakistan. That’s because you’re unlikely to get any cooperation whatsoever serving process in these countries despite the fact that Pakistan is a Hague signatory and Venezuela has signed both The Hague and the Inter-American conventions. They simply haven’t honored their respective declarations for the past three years. Believe it or not, even the U.S. Department of Justice and the U.S. State Department have had absolutely no response for requests to serve process in Venezuela. India has expressly declared to the U.S. Department of Justice that it will not honor any request for judicial assistance from the United States, formal or otherwise. Pakistan has simply ignored such requests. Otherwise, private agent service may require a notarized affidavit from the local U.S. Embassy or, if there is no embassy, a local foreign court which will add to your time and expense.

The private agent method has its own pitfalls, though. While you may successfully get notice into the hands of your target, it may not be considered valid under statutory law in the foreign country. The consequence back here at home is that any U.S. judgment based on what the foreign authorities consider an invalid service of process may not be enforceable in the country of service.

What about mailing your notice? It’s an option, but the least effective and most risky method of all. Besides the fact that many U.S. courts consider service by mail an insufficient means of providing notice, some foreign governments strictly forbid it and see it as an attack on their sovereignty. Under some circumstances in certain foreign countries, it could even leave the sender open to liability.

SUING A FOREIGN GOVERNMENT

The above methods are generally used for serving individuals or business entities. But if your client is suing another nation or foreign governmental agency, the Foreign Sovereign Immunities Act of 1976, a federal statute (Fed.R.Civ.P. 4(j)(1) citing 28 U.S.C. 1608), cites the proper procedures.

SAY WHAT?

Precise translation of every pleading, supporting document, exhibit, and attachment is often necessary and represents one of the most costly aspects of serving process abroad. Improper translation or failing to do so could allow the other side to argue inadequate notice invalidating your overseas serve. Just make sure nothing is lost in the translation, especially in Germany (a Hague signatory), where authorities review documents so thoroughly, they’ve been known to return them to the U.S. unserved due to any discrepancy or inaccuracy. Of course any foreign-language proof of service must be translated into English before filing in courts here at home.

IS TIME OF THE ESSENCE? FORGET ABOUT IT

Translating documents is just one of the time-consuming aspects of foreign service of process. But after the documents are finally out of your hands, lots of other things can cause delay, such as bad weather (many Asian and Pacific Rim nations have terribly stormy wet seasons making travel difficult at best), political turmoil within a region, or unrest or war between neighboring countries.

Even without such delays, service of process overseas can take weeks or months, and you’ll often need to file a motion to extend. This requires an affidavit or other documentary evidence showing that service of process in the foreign country has been properly set in motion.

WHO CAN YOU TURN TO FOR SUCCESSFUL SERVICE OF PROCESS ABROAD?

To successfully manage the complicated maze of international law and treaty requirements when serving process abroad, trust the experts at serve-em.com. Our international expeditors are the most knowledgeable in the industry, exclusively devoting their time and energy to facilitating foreign service of process. Through their global contacts and their intimate knowledge of the requirements for treaty and non-treaty serves alike, your important documents will get into the proper channels promptly, accurately, and securely anywhere on earth. And with serve-em.com, you get regular status updates plus hardcopy confirmation every step along the way. You can even track the progress of your documents on the Internet any time of day. Need help with translations? No problem. For a free quote with no obligation and for “Accountable Inter-Jurisdictional Process Service” – anywhere in the world – call 1-800-SERVE-EM (737-8336) or go to www.serve-em.com.