Improving judicial coordination and cooperation in transnational private litigation is a central component of the work Hague Conference on Private International Law.  Among the international conventions relating specifically to international judicial and administrative cooperation in private litigation, the United States is a party to the 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Service Convention).   Beyond the conventions supported through the Hague Conference, the United States is also a party to the Inter-American Convention on Letters Rogatory and its Additional Protocol (IACAP). 

The central purpose of the Hague Service Convention, which applies only in civil or commercial cases, is 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.”  To facilitate this process, Article 2 of the Service Convention obligates Contracting States to establish a central authority for receiving requests for service from other Contracting States.  Articles 3 through 7 govern the forms to be used and the rights and duties of the designated central authorities.  IACAP operates in a similar fashion, with some slight procedural differences.

The Hague Service Convention does not displace existing domestic rules on service of process and allows Contracting States to delineate the methods of service that continue to be permitted.  For example, Articles 8 and 9 provide that states may continue to allow consular officers to serve process or forward process to a central authority, unless the Contracting State prohibits such practices.  Similarly, under Article 10, litigants may continue to effect service by mail or through other official means and requests so long as the receiving Contracting State has not objected to service by such means.  Under Article 19, domestic rules relating to service of process within a Contracting State’s jurisdiction are also unaffected by the Convention. 

To accommodate the United States’ obligations under the Hague Service Convention and IACAP, Rule 4 of the Federal Rules of Civil Procedure establishes special rules relating to the service of individuals or corporations abroad.  Under Rule 4(f), an individual outside the United States may be served either through the means of service specified in a treaty governing service, such as under the Hague Service Convention, or as ordered by the court, such as personal service or service by mail, so long as that method is not prohibited by a treaty or the domestic rules of the destination country.  Under Rule 4(h), foreign corporations without a presence in the United States may be served in the same manner as foreign individuals, except for personal delivery of service.  Under the Supreme Court’s decision in Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 108 S. Ct. 2104 (1988), if service of process on a foreign corporation can be effected through service on an authorized agent within the United States in a manner consistent with state law and the Due Process Clause, then the Hague Service Convention does not apply because foreign service is not required.

While the Hague Service Convention is intended to streamline the process of serving court documents, for a number of reasons, alternative methods of service abroad continue to be extremely important in transnational litigation involving Contracting States.  For example, the overall effectiveness of the Convention continues to be subject to diplomatic relations between the United States and other Contracting States.  This is a problem in particular in cases involving Russian defendants, as addressed by the Federal Circuit in Nuance Communications, Inc. v. Abbyy Software House, 626 F.3d 1222 (Fed. Cir. 2010).  In that case, the plaintiff failed to serve the Russian corporate defendant through the central authority of the Russian Federation.  Even so, the court found that the plaintiff need not show attempted service under the Hague Service Convention in light of information from the Bureau of Consular Affairs at the U.S. State Department establishing that requests for service to the Russian central authority have not been processed since 2003, when the Russian Federation suspended official judicial cooperation with the United States.

Because the Hague Service Convention does not generally displace internal rules on service of process, it is also extremely important to ascertain whether the destination country has specifically objected to any of the permissible means of service prescribed under the Convention. For example, under Article 10 of the Hague Service Convention, a litigant may only transmit judicial documents by “postal channels” if the Contracting State has not objected to this method of service.   The status of objections to Article 10 and other sections of the Convention can be determined through reference to the website of the Hague Convention on Private International Law, http://www.hcch.net/upload/applicability14e.pdf.  The State Department also provides country specific information on methods of service through its website at: http://travel.state.gov/law/judicial/judicial_2510.html, although this information should be verified independently to ensure it is up-to-date. 

The U.S. State Department has also issued a number of circulars and other documents to facilitate serving judicial documents abroad, including links to treaty text and forms.  Review of the State Department’s Judicial Assistance website is extremely helpful:  http://travel.state.gov/law/judicial/judicial_702.html. The Hague Conference on Private International Law has also published the Practical Handbook on the Operation of the Hague Service Convention (2006), which offers detailed information on the operation of the Convention as well as practice tips and case law from Contracting States.  A downloadable pdf of the Practical Handbook is available at http://www.hcch.net/upload/manuel14e.pdf.