It is increasingly common for US companies to do business with entities around the globe. For many, international trade is critical to remaining competitive in the US marketplace. But what if something goes wrong with a foreign product? What if a new line of office chairs the company imported from India collapses under its customers? What if the factory machine it purchased in Taiwan injures a company employee on the job? What if subsequent letters to the foreign manufacturer demanding compensation or indemnification go unanswered? The answer is that the US company faces some tough choices, including whether to file a claim or – if the US company is itself being sued – a cross-claim that will bring the foreign manufacturer into US court. How is this done? Once a complaint is filed in the appropriate venue, the US plaintiff is required to notify the foreign defendant that a lawsuit is pending against it. Until this service of process takes place, the action cannot proceed. Domestically, this type of notice is a relatively straightforward matter: a process server, constable or sheriff typically hand-delivers the court papers to an officer of the defendant corporation and swears out an affidavit of service. Internationally, however, who may serve process and how service may be effected is a complex matter, governed by multiple (often conflicting) sets of legal rules.
Service in India, pursuant toi the 1965 Hague service convention
Take, for example, the case of a defendant located in India. In India, service is governed not just by US state or federal rules but also by terms of a judicial assistance treaty (the 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters or “Hague Convention”) and Indian law. US courts have consistently held that, where the Hague Convention is in effect, application of that treaty’s provisions is mandatory and that its channels supercede and abrogate inconsistent state and federal rules for service. In short, if your defendant is in a Hague signatory country, Hague rules exclusively dictate how service can be effected. Hague Convention rules, in turn, defer to the laws of the destination state. Each signatory nation is asked to file formal declarations and reservations regarding permissible methods of service in its territory. In this regard, India declared that it objected to direct service by diplomat (as provided by Article 8), service by mail (as provided by Article 10(a)) and service by judicial officer (as provided by Article 10(b)). Thus, any attempt by a US attorney to serve by mail or agent in Indian territory – even if provided for under US domestic rules – would result in defective service under both US and Indian law. How then must service be accomplished? The “Requesting Authority” in the United States must file a formal Hague Service Request with a designated “Central Authority” in India (as provided by Article 5) – in this case, the Indian Ministry of Law and Justice. The Indian Central Authority then vets the Service Request to ensure compliance with the treaty and, in turn, refers the court papers to a competent lower court for service. There, a judge instructs a court bailiff to effect service pursuant to the laws of India. Once the papers are served, the lower court returns its local proof to the Indian Central Authority, which annexes it to a Hague Certificate, or international proof of service, along with a duplicate copy of the papers served, and sends the entire file back to the United States. In India, service takes from four to nine months; it is virtually impossible to expedite execution of a Hague Service Request through the Indian court system. Since most state and federal rules provide that service must be effected within 30 to 120 days, counsel for the plaintiff will need to show diligence in attempting service to the US court and apply for special extensions of time. There are sometimes other issues associated with service in India. Since India is acommon law country, the court bailiff generally effects personal service, but occasionally service is effected by insertion in a letterbox, or by posting at an abandoned “registered office” for the defendant. While this may constitute good service under Indian law, anything short of personal service is likely to be problematic from the point of view of US law, since due process rights under the US Constitution dictate that service must be reasonably calculated to give the defendant actual notice. Did the owner of the letterbox in which service was left receive actual notice? A second attempt – and another four to nine months – may be needed to cure such service. Likewise, language can add a wrinkle to the process. India is home to several hundred languages. Because English is one of its official languages, a translation of the court papers to be served is rarely required. At the same time, under US notions of due process, plaintiffs have a duty to serve documents upon defendants in a language that the recipient will be likely to understand. For example, if an Indian court bailiff elects to effect sub-service of English language court papers upon a security guard who does not speak English, has service been perfected?
Service Taiwan pursuant to letter rogatory
Not all foreign countries are signatory to the Hague Convention. Service of process in Taiwan, for example, presents a completely different set of issues. In the absence of any treaty, service in Taiwan is governed by US rules and Taiwanese law. US rules must be met in order to commence the action in US court. At the same time, Taiwan rules should be strictly observed: Taiwan has indicated that it will not enforce any ensuing US judgment if service of the underlying action was not effected through its courts. In other words, it is possible to arrange for service by private agent in Taiwan pursuant to US rules only, but if the case is won, and a US money judgment is awarded, the judgment will be unenforceable in Taiwan because the original service is deficient under Taiwanese law. The US company may well have litigated its case for nothing. How does a US company avoid this type of issue? It must seek issuance of an international judicial assistance request, or letter rogatory, and transmit it through diplomatic channels. A letter rogatory is a formal request from a US court seeking judicial assistance from a foreign court. US attorneys draft the letter rogatory, and then apply to the US court for its issuance. In the letter rogatory, the US court asks a foreign court to arrange for service on its behalf through a foreign judicial officer on the basis of reciprocity and international comity. Once issued, the letter rogatory is transmitted to the US State Department which sends it by diplomatic pouch (for a hefty transmission fee of $2,275) to the US embassy in-country, which presents it to the foreign government which in turn, assigns it to one of its courts for execution. The entire letter rogatory, including the court papers, must be accompanied by a certified translation in the language of the destination state. Once executed, the letter rogatory is returned to the US through the same chain of authorities. To make matters more complex, the United States has no diplomatic relations with Taiwan, does not recognize its existence, and maintains no embassy there. Indeed, US courts are prohibited from sending letters rogatory which refer to Taiwan as “the Republic of China.” Instead, the US maintains a “cultural center” (The American Institute in Taiwan), to handle its local affairs, including the transmission of letters rogatory. Currently, it takes between five and seven months to perfect service in Taiwan by letter rogatory. Again, it is difficult to expedite this process. Because international service is expensive, time-consuming and fraught with unexpected problems, it behooves US plaintiffs to do their homework in advance. It is always best to effect service by the most conservative means possible (generally through the foreign court system and its judicial officers): to do it once, to do it properly, and to give your attorneys the time they need to secure jurisdiction over the defendant. Accordingly, as a US company, you should always consult with a qualified attorney and process server with international litigation experience to obtain the best advice on how to proceed.
Cara LaForge is the manager of international litigation support for Legal Language Services. Cara has more than 15 years’ experience in the field and is a frequent lecturer on judicial assistance topics for the ABA International Section, the National Association of Professional Process Servers and various CLE panels.
Phillip R. Anderson is a 1997 graduate of the University of Kansas School of Law and currently serves as in-house counsel with Lega Language Services, specializing in international service of process and the taking of evidence abroad. Mr. Anderson also has extensive litigation experience in products liability defense, commercial law, and family law matters.
Re-published courtesy of USLAW Magazine, Fall/Winter 2011