Legal Question in International Law in Virginia

Re: Hague Convention Service of Process Exclusive?

your posting bears a date of 3/20, so maybe you already have the answer, but anyway:

There was a USSC case involving this very question -- can't remember the citation, but a bare majority held that the Hague procedures were permissive, while a scathing dissent held that they displace the FRCP.

Less easily discovered are the practical consequences of the election of methods of service of process. In a number of Civil Law jurisdictions, local laws expressly prohibit service by mail (a la FRCP 4), and consider service of process by means other than the Hague process to be a violation of their "judicial sovereignty." Likewise, taking depositions in their territory can land US counsel in jail! A judgment obtained in court proceedings that are initiated improperly (i.e., by FRCP instead of Hague process) is VERY UNLIKELY to be recognized and enforced. Thus, if the foreign party has US-located assets that can satisfy a potential judgment, and you have confidence that those assets will not be moved outside the court's jurisdiction, then you can proceed without regard to the Hague Convention; else, you can be caught in the wonderful paradox of having a valid US judgment that cannot be enforced, AND federal claim preclusion barring relitigation initiated by the Hague process. VERY UGLY if it happens.

Best wishes, and let me know if you need help doing the Hague service of process.

LDWG

Re: Hague Convention Service of Process Exclusive?

I was involved with the service of process of a company in Mexico that was being sued in California (USA). Those actions were taken after their initial case was dismissed based on an motion to quash service of process because lack of formalities according to Mexican law. I believe that the reasoning for the Court, was that although the Hague Convention was permissive (as Mr. Graves stated), service of process for a foreign corporation should nevertheless comply substantially with the debtor's country rules of process according to the FRCP, rule 4(h). The action brought upon was in no way to be enforced in Mexico, but still, the Court in California considered that Mexico's procedural formalities needed to be meet substantially, just as the Hague Convention ordered.

If the result or judgment to such action should have the need to be enforced in a foreign country, I would suggest that procedural formalities be meet at least substantially according to the country outside the US. Like Mr. Graves said, procedure rules in most civil law countries such as Mexico, are very harsh and very formal, there are too many requirements and formalities, and to meet them even substantially as the FRCP provides, it will take much more effort than in the States. Service of process as provided in California rules of procedure, are far from satisfying in Mexico at least, and no judgment would come close to being enforced based upon such rules.