Practical Handbook on the Operation of the Service Handbook on the Operation ConventionPractical s v

Hague Conference on Private International Law Permanent Bureau Practical HandbookOnly Churchillplein 6b 2517 JW The on the Operationer w+31 70 363 3303 Use  +31 70 360 4867 of the Service [email protected] i www.hcch.net Convention

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Practical HandbookUse on the Operation of the Service Convention Official For

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Published by The Hague Conference on Private International Law Permanent Bureau Churchillplein 6b 2517 JW The Hague The Netherlands Official +31 70 363 3303 +31 70 360 4867 [email protected] www.hcch.net For

© Hague Conference on Private International Law 2016

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, including photocopying or recording, without the written permission of the Permanent Bureau of the Hague Conference.

ISBN 978-94-90265-47-2

Published in The Hague, the Netherlands

Foreword

On the occasion of the 50th anniversary of the conclusion of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, it is my great pleasure to present this updated and expanded 4th edition of the Practical Handbook on the Operation of the Service Convention.

Since the publication of the 3rd edition of this Handbook in 2006 (whichOnly I had the pleasure to prepare with the assistance of Ms Laurence Thébault), there have been important developments in case law and State practice in relation to the . These developments are the most important basis for this 4th edition. Furthermore, in recent years, new issues have arisen with respect to the operation of the Convention, many of which are the result of unprecedented technological developments. Thus, this 4th edition also includes comprehensive research and analysis relatingUse to the use of information technology in the operation of the Convention, an area that continues to evolve.

I would like to take this opportunity to sincerely thank all those who have contributed to the finalisation of this edition of the Handbook (a succinct synopsis summarising the genesis of the Handbook follows below, p. V). At the Permanent Bureau, the main preparatory and drafting work was carried out by Ms Mayela Celis (Principal Legal Officer). My attaché Mr Thomas John and Mr Alexander Kunzelmann (former Senior Legal Officer) also contributed to this important work. It has been finalised with the assistance of Mr Brody Warren (Legal Officer). I am also most grateful to the many national experts who were part of the Working Group and who helped to produce an advanced draft of this edition of the Handbook as partOfficial of the preparations for the meeting of the Special Commission held in 2014 (these experts are listed on p. VII). Thanks should also go to the many interns of the Permanent Bureau who were involved in this project. While they are too numerous to be listed here, I wish to acknowledge their contributions.

This Handbook is published together with its pendant, the Practical Handbook on the OperationFor of the Evidence Convention, which is now available in a new, completely revised, 3rd edition. Both Handbooks are first-of-a-kind publications prepared by the Permanent Bureau: before their official release, they were formally approved by the Council on General Affairs and Policy, the highest organ of the Hague Conference on Private International Law. This of course only increases the authoritative value of this Handbook as a secondary source of information on the operation of this important Convention.

IV PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | FOREWORD

This edition of the Handbook has been updated to November 2015. We recommend that readers consult the Hague Conference website on a regular basis for supplementary practical information and updates regarding the Convention.

Just as the previous edition of the Service Handbook was widely used and cited around the world, including by courts, I very much hope that this 4th edition, too, continues to prove useful and will provide relevant guidance to the international legal community.

Christophe Bernasconi | Secretary General

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Chronology of the Service Handbook

All of the documents referred to (unless otherwise specified) are available on the website of the Hague Conference on Private International Law (www.hcch.net).

February 2009 Only

The Special Commission on the practical operation of the Service Convention “encourages the Permanent Bureau to commence work, in due course and subject to available resources, on an updated edition of the Practical Handbook on the Operation of the Service Convention.”1

March – April 2009 Use

The Council on General Affairs and Policy of the Hague Conference takes note of the Conclusions & Recommendations of the Special Commission on the practical operation of the Service Convention and once again expresses its support for the broad range of activities being undertaken by the Permanent Bureau in the area of Post-Convention Services. The Council also recognises the additional work arising from the Conclusions & Recommendations of the Special Commission on the practical operation of the Service Convention (including the preparation of the Service and Evidence Handbooks).2

November 2013 Official

The Permanent Bureau circulates a questionnaire regarding case law and practice to National and Contact Organs of the Members, and to the non-Member Contracting States to the Service Convention, in preparation for the 2014 meeting of the Special Commission.

For December 2013

A draft Annex on the use of information technology in the operation of the Service Convention of the 4th edition of the Service Handbook is circulated to the members of a Working Group (composed of experts from Members of the Hague Conference and an international organisation).

1 Conclusion and Recommendation (C&R) No 41 of the 2009 Special Commission (CS). 2 C&R of the 2009 meeting of the Council on General Affairs and Policy of the Hague Conference. VI PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHRONOLOGY

January – February 2014

The Working Group meets in The Hague to review inter alia the draft Annex on the use of information technology in the operation of the Service Convention of the 4th edition of the Handbook. At the end of February 2014, the Permanent Bureau circulates a revised Annex to the members of the Working Group for written comments.

May 2014

A full draft of the 4th edition (reflecting the outcome of the Working Group meeting, the written comments received from Working Group members on the revised Annex and including additional updates in case law and practice) is completed and submitted to the Special Commission prior to its meeting in The Hague (20-23 May 2014).3 The Special Commission invites the Permanent Bureau to finalise the text of the Handbook, before submitting it to the Drafting Committee of the Special Commission and then to all participants of the Special Commission meeting once again for comment, after which it is to be submitted to the Council on General Affairs and Policy.4

Only June – December 2014

In co-operation with the Drafting Committee, the Permanent Bureau updated the draft Service Handbook, incorporating the outcome of the discussions at the Special Commission meeting, as well as case law and practice reported by States throughout 2014 in response to the Questionnaire. Use

February 2015

Through a written procedure, the Special Commission endorses the final draft of the Handbook, which is then submitted to the Council on General Affairs and Policy for approval.

March 2015 Official The Council on General Affairs and Policy formally approves the updated edition of the Service Handbook (as well as the new edition of its counterpart relating to the Evidence Convention).5 The Service and Evidence Handbooks are thus the first publications prepared by the Permanent Bureau to have been formally approved by the Council on General Affairs and Policy. For

3 Prel. Doc. No 2 of the 2014 SC. 4 C&R No 5 of the 2014 SC. 5 C&R No 12 of the 2015 meeting of the Council on General Affairs and Policy of the Hague Conference.

List of participating experts

The Permanent Bureau acknowledges the experts who were members of either the Working Group on the Practical Handbook of the Operation of the Service Convention, or of the Drafting Committee of the Special Commission on the practical operation of the Service Convention, or both.

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Australia Mr William BRYDIE-WATSON Ms Daniela SULTANA Ms Carmen MIRAGAYA UseMs Maria de Lourdes OCHOA NEIRA Mr Arnaldo José ALVES SILVEIRA Netherlands Mr Derek B. LUGTENBERG Ms Mariam KHAN Ms Valérie SIMARD Paraguay Mr José Miguel TORRES , People’s Republic Mr José Raúl TORRES KIRMSER Mr James DING Mr Xiaobin SHI Ms Leah ENRIQUEZ Official Ms Maria Regina ADORACION Ms Pavla BELLOŇOVÁ FELOMINA

European Union Mr Pál SZIRÁNYI Ms Ana Vitoria AZEVEDO

FinlandFor Russian Federation Ms Maija LEPPÄ Ms Julietta ARZUMANYAN Ms Elena KULIKOVA Ms Elizaveta POMYAKSHEVA Mr Adrien FLESCH Mr Miloš HAŤAPKA Ms Kirsten GRAUMANN Ms Bärbel KOHAKE South Africa Ms Stefanie PLÖTZGEN-KAMRADT Ms Thanisa NAIDU

Latvia Ms Vineta LECINSKA-KRUTKO Ms Cecilia RIDDSELIUS VIII PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | PARTICIPATING EXPERTS

Switzerland Consultants Ms Silvia MADARASZ-GAROLLA Mr William FRITZLEN ( of America) Mr Patrick GINGRAS (Canada) Mr Nic TURNER Observer United States of America Mr Mathieu CHARDON Ms Ada BOSQUE (International Union of Judicial Officers) Ms Hilda Y. MARTINEZ Ms Ayesta J. REBOLLEDO

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Introduction

The Service Convention stands as a major international treaty in cross-border civil procedure. It is an essential tool of cross-border judicial and administrative co-operation in civil and commercial matters. It greatly facilitates and streamlines the transmission of documents for service abroad, and significantly reduces the time to complete service of process abroad. The steadily growing number of Contracting States (almost 70 at the time of writing) from around the world is a reflection of the Convention's success and importance.Only It also shows that the Service Convention has met, and continues to meet, its fundamental aims of improved international judicial and administrative co-operation, and of appropriately balancing the protection of defendants and the interests of plaintiffs.

This Practical Handbook is addressed to the ‘users’ of the Convention, which include Central Authorities, courts, their registrars and clerks, judicialUse officers, process servers, counsel for parties to proceedings, government officials overseeing legal co-operation with foreign States, diplomatic and consular agents, and any interested person in a judicial proceeding for the purposes of service abroad.

The Handbook is designed first and foremost to assist these users with the operation of the main and alternative channels of transmission and the provisions regarding adequate protection of the defendant.

In addition, the Handbook will be an invaluable tool for courts. In the absence of any supranational body with jurisdiction over the operation of the Convention, and with national courts being the primaryOfficial source of judicial pronouncements on the interpretation and application of the Convention, it is paramount that courts are aware of decisions rendered by courts of other Contracting States when interpreting the Service Convention. This ensures that, to the extent possible, a common understanding of the Convention is able to be reached. To assist the courts in this endeavour, this Handbook refers to and analyses over 400 decisions from the courts in approximately 23 States and regional organisations. For The Handbook is structured as follows:

Chapter I provides an overview of the nature and scope of the Convention;

Chapter II is dedicated to the channels of transmission provided for under the Convention;

Chapter III deals with the provisions relating to the protection of the defendant prior to and after a default judgment, while also keeping in mind the interests of plaintiffs;

Chapter IV describes the interaction between the Service Convention and regional instruments.

X PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | INTRODUCTION

The Handbook further comprises a Glossary of key terms and a list of Frequently Asked Questions (FAQ), including responses. These are set out at the beginning of the publication. The Annexes to the Handbook feature a comprehensive collection of reference material, a specific discussion on the use of information technology in the operation of the Service Convention and detailed guidelines for completing the Model Form.

This Handbook effectively supplements the Explanatory Report, as the latter is not comprehensive and subsequent Conclusions & Recommendations of the Special Commission have superseded some of its content.

Readers who need additional practical information on the operation of the Convention in specific States are invited to consult the Service Section of the Hague Conference website. The Service Section provides practical information per Contracting State (including contact details of the Central Authority, a list of forwarding authorities, time for execution of Requests for Service, translation requirements, etc.). Only Use

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Contents

Foreword ...... III Chronology of the Service Handbook ...... V List of participating experts ...... VII Introduction ...... Only IX Contents ...... XI Table of contents ...... XIII Abbreviations ...... XXI Glossary ...... Use XXXI Frequently Asked Questions (FAQ) ...... XLIII Explanatory Charts ...... LV General comments and practical operation of the Convention ...... 1 I. Purpose and scope of the Convention ...... 1 1. Preliminary remarks ...... 1 2. Relationship to the 1896, 1905 and 1954 Conventions ...... 2 3. Main objectivesOfficial of the 1965 Convention ...... 3 4. An “open” Convention ...... 7 5. Scope and applicability of the Convention (Art. 1) ...... 7 For6. Monitoring the practical operation of the Convention ...... 37 II. Channels of transmission provided for under the Convention ...... 40 1. The main channel: Central Authorities ...... 40 2. Alternative channels ...... 75 3. Derogatory channels ...... 96 III. Protection of the defendant (Arts 15 and 16)...... 98 1. Protection prior to a default judgment: Article 15 ...... 98 2. Protection after a default judgment: Article 16 ...... 103

XII PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CONTENTS

IV. Regional instruments ...... 106 1. The Inter-American Convention on Letters Rogatory ...... 106 2. The Model Bilateral Convention drafted by the Asian-African Legal Consultative Organization (AALCO) ...... 108 3. Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 .....109 Annexes ...... 113 Bibliography ...... 203 Index of cited case law ...... 223 Index by subject ...... 239

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Table of contents

Foreword ...... III Chronology of the Service Handbook ...... V List of participating experts ...... VII Introduction ...... Only IX Contents ...... XI Table of contents ...... XIII Abbreviations ...... XXI Glossary ...... Use XXXI Frequently Asked Questions (FAQ) ...... XLIII Explanatory Charts ...... LV General comments and practical operation of the Convention ...... 1 I. Purpose and scope of the Convention ...... 1 1. Preliminary remarks ...... 1 2. Relationship to the 1896, 1905 and 1954 Conventions ...... 2 3. Main objectivesOfficial of the 1965 Convention ...... 3 4. An “open” Convention ...... 7 5. Scope and applicability of the Convention (Art. 1) ...... 7 ForA. Personal and territorial scope ...... 7 a) Place of service as determining factor ...... 7 b) Between States Parties to the Convention ...... 9 c) Natural and legal persons, State agencies and States ...... 10 B. In all cases “where there is occasion to transmit a […] document” ...... 12 a) Terminology ...... 13 b) Non-mandatory character of the Convention ...... 13 (1) The problem and two key judgments ...... 13 (2) The 1989 Special Commission on the practical operation of the Service Convention...... 15 XIV PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | TABLE OF CONTENTS

(3) Historical account of the negotiations of the Convention ...... 15 (4) National practice ...... 16 (5) The concept of “due process” – validity of a service clause excluding application of the Convention? ...... 20 c) Exclusive character of the Convention ...... 21 C. “[F]or service abroad” ...... 22 D. “[I]n civil or commercial matters” ...... 24 a) Preliminary remarks ...... 24 b) The 1977 Special Commission...... 24 c) The 1989 Special Commission ...... 25 d) The 2003 Special Commission ...... 26 e) The 2009 Special Commission ...... 27 f) The 2014 Special Commission ...... 27 g) Current practice ...... Only 27 E. Judicial and extrajudicial documents ...... 29 a) Introduction ...... 29 b) Specific examples ...... 31 F. Address of the person to be servedUse is unknown ...... 32 a) Preliminary remarks ...... 32 b) National practice ...... 33 c) Does Article 1(2) include the electronic address (e-mail) of the addressee? ...... 36 G. The Service Convention and collective redress (“class actions”) ...... 36 6. Monitoring the practical operation of the Convention ...... 37 A. The Service Section ...... 37 B. RoleOfficial of the Permanent Bureau ...... 37 C. Special Commission ...... 38 D. Resolving differences ...... 38 II. ForChannels of transmission provided for under the Convention ...... 40 1. The main channel: Central Authorities ...... 40 A. Role and organisation of a Central Authority...... 40 a) In general (Art. 2) ...... 40 b) The “other authorities” (Art. 18(1)) ...... 42 c) Several Central Authorities in federal States (Art. 18(3)) ...... 42 B. Requests for service (Art. 3) ...... 43 a) The forwarding authority ...... 43 (1) General description ...... 43 (2) Specific cases ...... 45 TABLE OF CONTENTS XV

b) Transmission of the Request to the foreign Central Authority ...... 46 c) The Request Form (Model Form) ...... 47 (1) The Request ...... 48 (2) The Certificate ...... 49 (3) The Summary of the document to be served ...... 50 (4) Languages used (Art. 7) ...... 50 (5) Mandatory use of the Model Form...... 51 C. Request for service not subject to legalisation or other equivalent formality – no need to send “original” documents to be served ...... 52 D. No power for the Central Authority of the requested State to screen the documents for service ...... 53 E. Execution of the request for service ...... 53 a) Methods of service (Art. 5) ...... Only 53 (1) Formal service (Art. 5(1)(a)) ...... 53 (2) Service by a particular method (Art. 5(1)(b)) ...... 54 (3) Informal delivery (Art. 5(2)) ...... 55 b) The translation requirement (Art. 5(3)) ...... 56 (1) General comments ...... Use 56 (2) National practice ...... 58 (3) Recommendations ...... 60 c) Costs (Art. 12) ...... 61 d) Time of execution and the principle of speedy procedures ...... 63 e) The date of service ...... 66 f) The system of double-dates for the Service Convention? ...... 67 F. TheOfficial Certificate of service (Art. 6) ...... 68 a) General comments ...... 68 b) Some judicial decisions ...... 69 c) Effect of the Certificate ...... 70 ForG. Refusal to execute a request for service ...... 70 a) Article 4 (temporary refusal) ...... 70 b) Article 13 (final refusal) ...... 71 (1) The concept of “sovereignty or security” ...... 71 (2) The decision to refuse ...... 73 c) Unacceptable grounds for refusal ...... 74 2. Alternative channels ...... 75 A. Preliminary observation relating to terminology ...... 75

XVI PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | TABLE OF CONTENTS

B. Consular and diplomatic channels (Arts 8 and 9) ...... 76 a) The concepts in general ...... 76 (1) Diplomatic channels ...... 76 (2) Consular channels ...... 77 b) Direct diplomatic and direct consular channels (Art. 8) ...... 77 c) Indirect consular channels (Art. 9(1))...... 78 d) Indirect diplomatic channels (the “exceptional circumstances” under Art. 9(2)) ...... 79 C. Postal channels (Art. 10(a))...... 79 a) The notion of “postal channel” ...... 79 b) Criteria of validity ...... 81 (1) Lex fori ...... 81 (2) No objection by the State of destination ...... 82 (3) Qualified objection ...... Only 83 (4) Effect of reciprocity in the event of objection? ...... 84 c) Recognition of the foreign judgment ...... 86 d) Special position of the United States: three interpretations of Article 10 ...... Use 87 (1) First category: “send” ≠ “serve” ...... 87 (2) Second category: “send” = “serve” ...... 88 (3) First reactions ...... 89 (4) Further evolution leading to a third category ...... 89 (i) Brockmeyer: a welcome clarification ...... 89 (ii) Papir : a step backwards ...... 90 (5) Conclusion ...... 90 e) OfficialPostal channels and the requirement of translation? ...... 91 D. Service through judicial officers, officials or other competent persons of the requested State ...... 93 a) Direct communication between “judicial officers, For officials or other competent persons” (e.g., between huissiers, Art. 10(b)) ...... 93 (1) In general ...... 93 (2) Position of the United Kingdom (letter of 11 September 1980) ...... 94 b) Direct communication between a person interested in a judicial proceeding and a judicial officer, official or other competent person (e.g., a huissier, Art. 10(c)) ...... 94 c) Examples of valid transmissions under Article 10(b) and 10(c) ...... 95 TABLE OF CONTENTS XVII

d) Examples of invalid transmissions under Article 10(b) and 10(c) ...... 95 3. Derogatory channels ...... 96 A. Additional agreements among Contracting States (Art. 11) ...... 96 B. Relationship with supplementary agreements to the Conventions of 1905 and 1954 (Art. 24) and with other Conventions (Art. 25) ...... 96 C. Unilateral derogation from the Convention (Art. 19) ...... 97 III. Protection of the defendant (Arts 15 and 16)...... 98 1. Protection prior to a default judgment: Article 15 ...... 98 A. Stay of entry (Art. 15(1)) ...... 98 a) Valid service or actual delivery ...... 99 b) In due time ...... 99 c) Operation of internal law ...... Only 100 B. Continuation of proceedings and, in particular, delivery of judgment (Art. 15(2)) ...... 100 C. Provisional or protective measures (Art. 15(3)) ...... 103 2. Protection after a default judgment: Article 16 ...... 103 IV. Regional instruments ...... Use 106 1. The Inter-American Convention on Letters Rogatory ...... 106 A. General remarks...... 106 B. Relationship with the Service Convention ...... 107 2. The Model Bilateral Convention drafted by the Asian-African Legal Consultative Organization (AALCO) ...... 108 3. Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (serviceOfficial of documents), and repealing Council Regulation (EC) No 1348/2000 ...... 109 A. General remarks...... 109 B. Relationship with the Service Convention ...... 112 AnnexesFor ...... 113 Annex 1 Text of the Convention ...... 115 Annex 2 Annexes provided for under Articles 3, 5, 6 and 7 of the Service Convention ...... 125 Annex 3 Recommendation on information to accompany judicial and extrajudicial documents to be sent or served abroad in civil or commercial matters, adopted by the Fourteenth Session (25 October 1980) ...... 131 Annex 4 Instructions for filling out the notice established by the author of the Report on the Recommendation adopted by the Fourteenth Session, Mr Gustaf Möller () ...... 137 XVIII PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | TABLE OF CONTENTS

Annex 5 Explanatory Report on the Recommendation adopted by the Fourteenth Session drawn up by Mr Gustaf Möller ...... 143 Annex 6 Guidelines for completing the Model Form ...... 151 Annex 7 Checklist for preparing a Request for service ...... 163 Annex 8 The use of information technology in the operation of the Service Convention ...... 167 A. Introduction and background ...... 169 B. Transmission ...... 171 a) Transmission of the service request (Art. 5) ...... 171 (1) Fillable Model Form ...... 172 (2) Contact details of authorities ...... 172 (3) Copies ...... 173 b) Transmission of the Certificate of service (Art. 6) ...... 173 c) Transmission under Article 10(b) and (c) ...... Only 173 C. Co-operation between authorities ...... 174 D. Service by electronic means (e-service) ...... 174 a) e-Service under the main channel of transmission ...... 176 (1) Formal service (Art. 5(1)(a))Use ...... 176 (2) Service by a particular method (Art. 5(1)(b)) ...... 176 (3) By informal delivery (Art. 5(2)) ...... 176 b) e-Service under the alternative channels of transmission ...... 177 (1) Postal channels (Art. 10(a)) ...... 177 (2) Article 10(b) and (c) ...... 180 (3) Article 8 ...... 180 c) e-Service under the derogatory channels of transmission – Officialthe case of Article 19 ...... 180 d) International and domestic developments in service by e-mail ...... 180 (1) Developments in the United Kingdom ...... 182 For (2) Developments in the United States of America ...... 183 (3) Developments in ...... 187 (4) Developments in Canada...... 188 (5) Conclusions: Developments in common law jurisdictions and a mixed jurisdiction of common law and civil law ...... 189 (6) Developments in civil law States ...... 190 (7) Developments in the ...... 193 (8) Practical and technical difficulties with allowing service by e-mail ...... 194 TABLE OF CONTENTS XIX

e) International and domestic developments in service by social networking sites, message board, Internet and text messages ...... 195 (1) Facebook ...... 195 (2) Twitter ...... 198 (3) Message Board ...... 198 (4) Other electronic means ...... 198 (5) Conclusions: Developments regarding service by social networking sites, message board, Internet and text messages ...... 199 f) International and domestic developments in service by fax ...... 199 g) Other issues regarding service by electronic means ...... 200 (1) Clauses in contracts for service by electronic means ...... 200 Bibliography ...... Only 203 Index of cited case law ...... 223 Index by subject ...... 239 Use

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Abbreviations

A.2d Atlantic Reporter (United States) A.C.W.S. All-Canada Weekly Summaries (Canada) Only A.D., A.D.2d, A.D.3d Appellate Division Reports (United States)

Asian-African Legal Consultative Organization AALCO (formerly AALCC: Asian-African Legal Consultative Committee) ABCA Alberta Court of Appeal (Canada)Use ABQB Court of Queen’s Bench of Alberta (Canada)

AC Appeal Cases (United Kingdom)

ACT Australian Capital Territory (Australia)

AEDIPr Anuario Español de Derecho Internacional Privado ()

All E.R. All England Law Reports (United Kingdom) Alta. Q.B. OfficialCourt of Queen’s Bench of Alberta (Canada) Alta Reg Alberta Regulations (Canada)

Am. Bar Ass. J. American Bar Association Journal (United States) Am. J.For Comp. L. American Journal of Comparative Law (United States) Am. J. Int’l L. American Journal of International Law (United States)

Ann. suisse dr. int. Annuaire suisse de droit international ()

Ariz. Ct. App. Arizona Court of Appeal (United States) Ariz. J. Int’l Arizona Journal of International and Comparative Law (United States) & Comp. L. Ariz. Sup. Ct. Arizona Supreme Court (United States)

Art(s). Article(s)

ATF Arrêts du Tribunal fédéral (Switzerland) XXII PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ABBREVIATIONS

ATS Auto del Tribunal Supremo (Spain)

B.C. L. Rev. Boston College Law Review (United States)

B.R. Bankruptcy Reporter (United States)

Bankr. Bankruptcy (Court) (United States)

BC Reg British Columbia Regulations (Canada)

BCSC Supreme Court of British (Canada)

BGH Bundesgerichtshof (Germany)

BJM Basler Juristische Mitteilungen (Switzerland)

Buff. L. Rev. Buffalo Law Review (United States)

Bull. civ. Bulletin civil (France) BVerfG Bundesverfassungsgericht (Germany) Only BVerwG Bundesverwaltungsgericht (Germany)

BvR Richter des Bundesverfassungsgerichts (Germany)

C.D. Cal. US District Court for the Central District of California (United States) C.L.C. Commercial Law Cases (UnitedUse Kingdom) C&R Conclusions & Recommendations (Hague Conference)

CA Cour d’appel, Court of Appeals

Cal. App. California Appellate Reports (United States)

Cal. Ct. App. California Court of Appeal (United States)

Cal. Daily Op. Service California Daily Opinions Service (United States) Cal. Rptr. OfficialCalifornia Reporter (United States) Cal. Super. Ct. Superior Court of California (United States)

CanLII Canadian Legal Information Institute (Canada) Cass. For Cour de cassation (France) Ch. Civ. Chambre civile (France)

Ch. Famille Chambre de la famille (France)

Cir. Circuit (United States)

Civ. Namur Tribunal civil de Namur ()

CLR Commonwealth Law Reports (Australia)

CodPC Codice di Procedura Civile () ABBREVIATIONS XXIII

Colum. J. Transnat’l L. Columbia Journal of Transnational Law (United States)

Conn. B.J. Connecticut Bar Journal (United States)

Conn. Super. Ct. Connecticut Superior Court (United States)

Cornell Int’l L.J. Cornell International Law Journal (United States)

CPC Code de procédure civile (France)

CQLR Compilation of Québec Laws and Regulations (Canada) United States Court of International Trade Ct. Int’l Trade (United States) Cumb. L. Rev. Cumberland Law Review (United States)

Cyp. L.R. Law Reports (Cyprus)

D. Ariz. US District Court for the District of Arizona (United States) D. Colo. US District Court for the District of Colorado Only(United States) D. Del. US District Court for the District of Delaware (United States)

D. Haw. US District Court for the District of Hawaii (United States) D. Kan. US District Court for the DistrictUse of Kansas (United States) D. Mass. US District Court for the District of Massachussets (United States)

D. Me. US District Court for the District of Maine (United States)

D.N.J. US District Court for the District of New (United States)

D. Nev. US District Court for the District of Nevada (United States)

D. Or. US District Court for the District of Oregon (United States) D.A.R. OfficialDaily Appelate Reports (United States) D.C. Cir. District of Columbia Court of Appeals (United States)

D.C.S.I. Diritto Comunitario e degli Scambi Internazionali (Italy)

D.P.R. US District Court for the District of Puerto Rico (United States)

D.R.I. For US District Court for the District of Rhode Island (United States)

D.V.I. US District Court for the District of the Virgin Islands (United States)

Del. Super. Ct. Delaware Superior Court (United States)

Dept. Department

E.D. Cal. US District Court for the Eastern District of California (United States)

E.D. La. US District Court for the Eastern District of Louisiana (United States)

E.D. Mich US District Court for the Eastern District of Michigan (United States) XXIV PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ABBREVIATIONS

E.D. Mo. US District Court for the Eastern District of Missouri (United States)

E.D. N.Y. US District Court for the Eastern District of New York (United States)

US District Court for the Eastern District of Pennsylvania E.D. Pa. (United States)

E.D. Tex. US District Court for the Eastern District of Texas (United States)

E.D. Va. US District Court for the Eastern District of Virginia (United States) European Convention of 4 November 1950 for the Protection of ECHR Human Rights and Fundamental Freedoms

ECtHR European Court of Human Rights

e-Justice Service of Documents (European Chamber of Judicial EJS Officers) ERPL European Review of Private Law (United Kingdom)Only EU European Union

EU:C Court of Justice of the European Union (European Union)

EuZW Europäische Zeitschrift für Wirtschaftsrecht (Germany) EWCA England and Wales Court ofUse Appeal / Civil Division (United Kindgom) England and Wales High Court / Administrative Court EWHC (Admin) (United Kindgom)

EWHC (Ch) England and Wales High Court / Chancery Division (United Kindgom)

EWHC (Comm) England and Wales High Court / Commercial Court (United Kingdom)

England and Wales High Court / Queen's Bench Division) (United EWHC (QB) Kindgom) EWiR OfficialEntscheidungen zum Wirtschaftsrecht (Germany) F.2d; F.3d Federal Reporter (United States)

F. App’x Federal Appendix (United States) F.R.D.For Federal Rules Decisions (United States) F. Supp. Federal Supplement (United States)

F. Supp. 2d Federal Supplement (United States)

Fam. Adv. Family Advocate (United States)

FCA Federal Court of Australia (Australia)

Fed. Cir. Court of Appeals for the Federal Circuit (United States)

Fed. Cts. L. Rev. Federal Courts Law Review (United States) ABBREVIATIONS XXV

Fed. R. Civ. Pro. Federal Rules of Civil Procedure (United States)

Fed. R. Serv. Federal Rules Service (United States)

FF Feuille fédérale (Switzerland)

Fla. Dist. Ct. App. Florida District Court of Appeal (United States)

FMCAfam Federal Magistrates Court Australia (Australia)

Ga. L. Rev. Law Review (United States)

Geo. J. Int’l L. Georgetown Journal of International Law (United States)

G.O.Q. Gazette officielle du Québec (Canada)

Harv. J.L. & Tech. Harvard Journal of Law & Technology (United States)

High Court of the Hong Kong Special Administrative Region, Court of HCPI First Instance, Personal Injuries List (People’s Republic of China)

Hong Kong L.J. Hong Kong Law Journal (People’s Republic ofOnly China) Hong Kong Special Administrative Region (People’s Republic Hong Kong SAR of China)

HR Hoge Raad (Supreme Court of the Netherlands) IBL International Business LawyerUse (United States ) ICLQ International and Comparative Law Quarterly (United Kingdom)

Ill. App. Ct. Illinois Appellate Court(United States)

I.L.M. International Legal Materials (United States)

IT Information Technology

Int’l Law. International Lawyer (United States) Int’l Litig. News OfficialInternational Litigation News (United States) Int’l Litig. Q. International Litigation Quarterly (United States)

IPRax Praxis des Internationalen Privat- und Verfahrensrechts (Germany) For Die Deutsche Rechtsprechung auf dem Gebiete des Internationalen IPRspr. Privatrechts (Germany)

J.E. Jurisprudence expresse (, Canada)

J.L. & Com. Journal of Law and Commerce (United States)

J. Marshall L. Rev. John Marshall Law Review (United States)

JCP E Semaine juridique, édition Entreprise et affaires (France)

J.D.I. Journal de droit international (France)

JORF Journal officiel de la République française (France) XXVI PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ABBREVIATIONS

JT Journal des tribunaux (Belgium)

JZ Juristenzeitung (Germany)

KG Kammergericht (Germany) Law & Contemp. Law and Contemporary Problems (United States) Probs. LG Landgericht (Germany)

Loy. L.A. Int’l & Comp. Loyola of Los Angeles International & Comparative Law Review L. Rev (United States)

M.D. Fla. US District Court for the Middle District of Florida (United States)

M.D. La. US District Court for the Middle District of Louisiana (United States)

Marq. L. Rev. Marquette Law Review (United States) Md. Ct. Spec. App. Maryland Court of Special Appeals (United States)Only Mich. Ct. App. Michigan Court of Appeals (United States)

Minn. J. Int’l L. Minnesota Journal of International Law (United States)

Mo. Ct. App. Missouri Court of Appeal (United States) N.D. Ala. US District Court for the NorthernUse District of Alabama (United States) N.D. Cal. US District Court for the Northern District of California (United States)

N.D. Fla. US District Court for the Northern District of Florida (United States)

N.D. Ga. US District Court for the Northern District of Georgia (United States)

N.D. Ill. US District Court for the Northern District of Illinois (United States)

N.D. Ind. US District Court for the Northern District of Indiana (United States) N.D. Ohio OfficialUS District Court for the Northern District of Ohio (United States) N.D. Tex. US District Court for the Northern District of Texas (United States)

US District Court for the Northern District of West Virginia N.D. W. Va. (United States)

N.E.2dFor Northeastern Reporter (United States)

N.J. Super. Ct. New Jersey Superior Court (United States) N.J. Super. Ct. App. New Jersey Superior Court Appellate Division (United States) Div. N.W.2d Northwestern Reporter (United States)

N.Y. App. Div. New York Supreme Court, Appellate Division (United States)

N.Y. Civ. Ct. New York City Civil Court (United States)

N.Y. L.J. New York Law Journal (United States) ABBREVIATIONS XXVII

N.Y.S.2d, N.Y.S.3d West’s New York Supplement (United States)

N.Y. Sup. Ct. New York Supreme Court (United States)

NB Reg New Brunswick Regulations (Canada)

NCPC Nouveau Code de procédure civile ()

Nev. Nevada Reports (United States)

NILR Netherlands International Law Review (Netherlands)

NIPR Nederlandse tijdschrift voor internationaal privaatrecht (Netherlands)

NJ Nederlandse Jurisprudentie (Netherlands)

NJW Neue Juristische Wochenzeitung (Germany)

NJW-CoR Neue Juristische Wochenzeitung – Computerrecht (Germany)

Neue Juristische Wochenzeitung – Rechtsprechungs-Report Zivilrecht NJW-RR (Germany) Only NSW New South Wales (Australia)

NSWCA New South Wales Court of Appeal (Australia) NSWDC New South Wales District CourtUse (Australia) NSWLEC New South Wales Land and Environment Court (Australia)

NSWSC Supreme Court of New South Wales (Australia)

NWT Reg Northwest Territories Regulations (Canada)

NZHC New Zealand High Court (New Zealand)

OGH Oberster Gerichtshof () OIC OfficialOrders-in-Council of Yukon (Canada) Official Journal of the European Union OJEU (previously European Communities)

OLG Oberlandesgericht (Higher Regional Court, Germany) OLGRFor Oberlandesgericht Report (Germany) ONCA Court of Appeal for Ontario (Canada)

ONSC Ontario Superior Court of Justice (Canada)

Or. Rev. Int’l L. Oregon Review of International Law (United States)

P.2d; P.3d Pacific Reporter (United States)

Pa. Super. Ct. Pennsylvania Superior Court (United States)

Pace L. Rev. Pace Law Review (United States) XXVIII PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ABBREVIATIONS

Para(s) Paragraph(s)

QCCQ Cour du Québec (Canada)

QCCS Cour supérieure du Québec (Canada)

QCTDP Tribunal des droits de la personne (Human Rights Tribunal, Canada)

R.I. Rhode Island Reports (United States)

Zeitschrift für ausländisches und internationales Privatrecht RabelsZ (Germany)

Rb Rechtbank (Court of First Instance, Netherlands)

RCA Request for Civil Appeal ()

Recueil des cours de l’Académie de droit international de La Haye RCADI (Netherlands) RDIPP Rivista di diritto internazionale privato e processualeOnly (Italy) Recueil de jurisprudence de la Cour de justice de l’Union européenne Rec. (previously European Communities)

REJB Répertoire électronique de jurisprudence du Barreau (Quebec, Canada) Rev. crit. d.i.p. Revue critique de droit internationalUse privé (France) Rev. Esp. d.i. Revista Española de Derecho Internacional (Spain)

Rev. H.J. Revue des huissiers de justice (France)

Rev. i.d.c. Revue internationale de droit comparé (France)

RICO-Act Racketeer Influenced and Corrupt Organizations Act (United States)

RIW Recht der Internationalen Wirtschaft (Germany) RRO OfficialRevised Regulations of Ontario (Canada) RTD civ. Revue trimestrielle de droit civil (France) Rutgers Computer & Rutgers Computer & Technology Law Journal (United States) Tech L.J. RvdWFor Rechtspraak van de Week (Netherlands)

Rabels Zeitschrift für ausländisches und internationales Privatrecht RZAIP (Germany)

S.C. L. Rev. South Carolina Law Review (United States)

S. Ct. Supreme Court Reporter (United States)

S.D. Fla. US District Court for the Southern District of Florida (United States)

S.D. Ga. US District Court for the Southern District of Georgia (United States) ABBREVIATIONS XXIX

S.D. Iowa US District Court for the Southern District of Iowa (United States)

US District Court for the Southern District of Mississippi S.D. Miss. (United States)

S.D.N.Y. US District Court for the Southern District of New York (United States)

S.D. Tex. US District Court for the Southern District of Texas (United States)

US District Court for the Southern District of West Virginia S.D. W. Va. (United States)

S.E.2d Southeastern Reporter (United States)

S.Q. Statutes of Quebec (Canada)

SC Special Commission (Hague Conference)

SJ La Semaine judiciaire (Switzerland)

Schweizerische Juristen-Zeitung / Revue suisse de jurisprudence SJZ Only (Switzerland)

SMS Short Message Service (information technology)

So.2d Southern Reporter (United States) St. John’s J. Legal St. John’s Journal of Legal CommentaryUse (United States) Comment. Sup. Ct. NY County Supreme Court of New York County (United States) Sup. Ct. Suffolk Supreme Court of Suffolk County (United States) County Sup. Ct. Wash. Supreme Court of Washington (United States)

Schweizerische Zeitschrift für Wirtschaftsrecht / Revue suisse de droit SZW des affaires / Swiss review of business law (Switzerland) Temp. Int’l & Comp. OfficialTemple International and Comparative Law Journal (United-States) L.J. Tex. App. Texas Court of Appeals (United States) Tex. Civ. Prac. & Texas Civil Practice and Remedies Code (United States) Rem. CodeFor Tex. Int’l L.J. Texas International Law Journal (United States)

TF Tribunal fédéral (Switzerland)

Tul. J. Int’l & Comp. L. Tulane Journal of International and Comparative Law (United States)

Tul. L. Rev. Tulane Law Review (United States)

U. Chi. L. Rev. University of Chicago Law Review (United States)

U. Pa. J. University of Pennsylvania Journal of International Economic Law Int’l Econ. L. (United States) XXX PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ABBREVIATIONS

U. Pitts. L. Rev. University of Pittsburgh Law Review (United States)

U. Rich. L. Rev. University of Richmond Law Review (United States)

U.S. Dist. LEXIS United States Federal District Court Cases LEXIS (United States)

U.S. United States Reports (United States)

U.S.C. United States Code (United States)

UCLA L. Rev. UCLA Law Review (United States)

Union internationale des huissiers de justice et officiers judiciaires UIHJ (International Union of Judicial Officers)

Unif. L. Rev. Uniform Law Review (Unidroit)

UPU Universal Postal Union

US United States of America Vand. J. Vanderbilt Journal of Transnational Law (UnitedOnly States) Transnat’l L. Vill. L. Rev. Villanova Law Review (United States)

VSC Supreme Court of Victoria (Australia) W. Va. Supreme Court of Appeals ofUse West Virginia (United States) W.D. Ky. US District Court for the Western District of Kentucky (United States)

W.D. La. US District Court for the Western District of Louisiana (United States)

W.D. N.Y. US District Court for the Western District of New York (United States)

US District Court for the Western District of Pennsylvania W.D. Pa. (United States)

W.D. Tenn. US District Court for the Western District of Tennessy (United States)

W.D. Tex. OfficialUS District Court for the Western District of Texas (United States)

Wash. Washington Reports (United States)

Wis. Ct. App. Wisconsin Court of Appeals (United States) WL For Westlaw (United States) Wm. Mitchell William Mitchell Law Review (United States) L. Rev. Wn.2d Washington Reports, Second series (United States)

ZfIR Zeitschrift für Immobilienrecht (Germany)

ZZP Int. Zeitschrift für Zivilprozess International (Germany)

Glossary

This glossary defines key terms used in this Handbook.

1954 Civil Procedure Convention Only An international treaty developed and adopted by the Hague Conference, the full title of which is the Hague Convention of 1 March 1954 on Civil Procedure. The provisions of the 1954 Civil Procedure Convention relating to the service abroad of judicial and extrajudicial documents (i.e., Chapter I, Arts 1 to 7) have been replaced by the Service Convention.

The full text of the 1954 Civil Procedure Convention is available on the Hague Conference website. Use

2000 EU

A regulation previously in force in EU Member States on the service of judicial and extrajudicial documents in civil or commercial matters, the full title of which is “Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters”. This regulation has been repealed by the 2007 EU Service Regulation.

Official For more on the 2007 EU Service Regulation, see paras 337 et seq.

2003For Questionnaire

Questionnaire of July 2003 prepared by the Permanent Bureau and circulated to Contracting States (as well as some non-Contracting States) in preparation for the 2003 meeting of the Special Commission.1 The 2003 Questionnaire, as well as a synopsis of responses, is available on the Service Section of the Hague Conference website.

1 “Questionnaire Accompanying the Provisional Version of the New Practical Handbook on Operation of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters”, Prel. Doc. No 2 of July 2003 for the attention of the Special Commission of October / November 2003. XXXII PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | GLOSSARY

2007 EU Service Regulation

A regulation in force among all EU Member States on the service of judicial and extrajudicial documents in civil or commercial matters, the full title of which is “Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000”. The Regulation also applies to as a result of an agreement that it concluded with the European Union.

For more on the interaction between the Service Convention and the 2007 EU Service Regulation, see paras 340 et seq.

2008 Questionnaire

Questionnaire of July 2008 prepared by the Permanent Bureau and circulated to Contracting States (as well as some non-Contracting States) in preparation for Onlythe 2009 meeting of the Special Commission.2 The 2008 Questionnaire, as well as a synopsis (hereinafter, “2009 synopsis of responses”) and a summary of responses, is available on the Service Section of the Hague Conference website.

2013 Questionnaire Use

Questionnaire of November of 2013 prepared by the Permanent Bureau and circulated to Contracting States (as well as some non-Contracting States) in preparation for the 2014 meeting of the Special Commission.3 The 2013 Questionnaire, as well as a synopsis of responses (hereinafter, “2014 synopsis of responses”), is available on the Service Section of the Hague Conference website.

Accession

An international act, wherebyOfficial a State establishes its consent to be bound by a treaty, such as the Service Convention (see Art. 2 of the Vienna Convention of 23 May 1969 on the Law of Treaties).

In the case of the Service Convention, Article 28 stipulates that the Convention is open to accessionFor by States which were not represented at the Tenth Session of the Hague Conference. A State accedes to the Convention by depositing an instrument of accession with the depositary of the Convention. A State may accede to the Service Convention even if it is not a Member of the Hague Conference.

2 “Questionnaire of July 2008 relating to the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Service Convention)”, Prel. Doc. No 2 of July 2008 for the attention of the Special Commission of February 2009 on the practical operation of the Hague Apostille, Service, Evidence and Access to Justice Conventions. 3 “Questionnaire of November 2013 relating to the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Service Convention)”, Prel. Doc. No 3 of November 2013 for the attention of the Special Commission of May 2014 on the practical operation of the Service, Evidence and Access to Justice Conventions. GLOSSARY XXXIII

For an acceding State, the Convention only enters into force if no State that has ratified the Convention before the deposit of the instrument of accession has objected within the six-month period established by the depositary for that purpose. To date, no objections have been raised to an accession.

Addressee

The person upon whom the document is served. This should not be confused with the terms “receiving authority” or “Central Authority”.

Alternative channel(s) of transmission

Channels of transmission under the Convention that are in addition to the main channel of transmission (system of Central Authorities). There are four alternative channels of transmission: consular or diplomatic channels (direct and indirect) (Arts 8(1) and 9), postal channels (Art. 10(a)), direct communication between judicial officers, officials or other competent persons of the State of Origin and the State of Destination (Art. 10(b)), and direct communication between a person interested in a judicial proceeding Onlyand a judicial officer, official or other competent persons of the State of Destination (Art. 10(c)).

For more on alternative channels of transmission, see paras 236 et seq. Use

Applicant

A term used in both the Convention and the Model Form to refer to the “forwarding authority”. For ease of reference, throughout this Handbook the term “forwarding authority” will be used instead of the term “applicant”.

For more information, see Forwarding authority.

Official Brussels Ia Regulation

A regulation in force as of 10 January 2015 in all Member States of the European Union on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.For The full title of the Brussels Ia Regulation is “Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast)”. The Regulation also applies to Denmark as a result of an agreement that it concluded with the (then) European Community. This Regulation repealed Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, which in turn replaced the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (better known as the 1968 Brussels Convention). Regulation (EC) No 44/2001 shall continue to apply to judgments given in legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded before 10 January 2015 which fall within the scope of that Regulation.

XXXIV PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | GLOSSARY

Central Authority

The authority designated by a Contracting State pursuant to Article 2(1).

For more information, see paras 111 et seq.

Certificate

A part of the Model Form used to certify whether or not the document has been served in the requested State via the main channel of transmission. The Certificate may also be completed when using the alternative channels of transmission. The Certificate is referred to as Part 2 of the Model Form in Annex 6 (Guidelines for completing the Model Form).

For more information, see paras 147-149 and Annex 6: Guidelines for completing the Model Form. Only

Civil or commercial matters

A term used to delimit the substantive scope of the Convention. The term “civil or commercial matters” is interpreted liberally and in an autonomous manner and applied consistently across both the Service and Evidence Conventions. Use

For a detailed discussion of this term, see paras 56 and 57.

Conclusions & Recommendations (“C&R”)

The Conclusions & Recommendations of the Special Commission. References to the C&R are made throughout this Handbook together with the year of the relevant meeting (e.g., “C&R of the 2014 SC” refers toOfficial the Conclusions & Recommendations adopted by the 2014 meeting of the Special Commission).

Consular channel (indirect) For An alternative channel of transmission under the Convention, whereby the document to be served is transmitted from a consular representative accredited in the State of destination (which has been directed to do so by the Ministry of Foreign Affairs of the State of origin) to the authority designated by the State of destination for receiving such requests, which then serves the document on the addressee.

For more information, see para. 246.

GLOSSARY XXXV

Contracting State

With reference to the Service Convention, a State that is party to the Service Convention, whether or not the Convention has entered into force for that State (see Art. 2(1)(f) of the Vienna Convention of 23 May 1969 on the Law of Treaties). A Contracting State for which the Convention has entered into force may also be referred to as a “State Party”. An updated list of all Contracting States, called the “status table,” is available on the Service Section of the Hague Conference website.

Date of service

The date when service is deemed to have been effected.

Depositary

An authority charged with administering an international treaty. In the case of the Service Convention (and all other Hague Conventions), the depositary is theOnly Ministry of Foreign Affairs of the Kingdom of the Netherlands.

The contact details of the depositary are as follows:

Treaties Division, Ministry of Foreign Affairs Office Address: DJZ/VE, BezuidenhoutsewegUse 67 2594 AC The Hague The Netherlands Postal Address: DJZ/VE, PO BOX 20061 2500 EB The Hague The Netherlands Telephone: +31 70 348 49 22 E-mail: [email protected] Website: www.minbuza.nl/treaties

Official

Diplomatic channel (indirect)

An alternative channel of transmission under the Convention whereby the document to be servedFor is transmitted through several authorities in both the State of origin and the State of destination (generally involving the Ministries of Justice and Foreign Affairs of both States), and ultimately, such document is delivered to the authority designated by the State of destination for this purpose, which then serves the document on the addressee.

For more information, see paras 247-249.

XXXVI PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | GLOSSARY

Diplomatic or consular channel (direct)

An alternative channel of transmission under the Convention according to which a diplomatic or consular agent in the State of destination may effect service of a judicial document, without compulsion, on the addressee.

For a more detailed discussion, see paras 243-245.

Evidence Convention

An international treaty developed and adopted by the Hague Conference, the full title of which is the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. The full text of the Evidence Convention is available on the Hague Conference website.

Explanatory Report Only The report drawn up by V. Taborda Ferreira that provides an introduction to the Convention as well as article-by-article commentary on its text. The Explanatory Report was published in Actes et documents de la Dixième session (Proceedings of the Tenth Session) (1964), Tome III, Notification (pp. 363-381). The Explanatory Report is not a comprehensive report as it builds on the preliminary report and the negotiations of the Convention. In addition, the Explanatory Report is silent on a number of important issues, which came to light after the negotiations. Furthermore, some of the comments in the ExplanatoryUse Report have been superseded by subsequent Conclusions & Recommendations of the Special Commission. For these reasons, the Explanatory Report has not been reproduced as part of this Handbook.

Extrajudicial document

A document that is not directly related to a trial but that requires the involvement of an authority or judicial officer.

Official For a detailed discussion of the term “extrajudicial document”, see paras 76 et seq.

Forum State For The State where legal proceedings have been initiated. Depending on the channel of transmission chosen, the Forum State will be either the “Requesting State” (main channel of transmission) or the “State of origin” (alternative channels of transmission).

Forwarding authority

The authority or judicial officer competent under the law of the requesting State to forward Requests for Service to the Central Authority of the requested State. While the term “forwarding authority” is not contained in the Convention or the Model Form, it was created on the basis of Article 3 of the Convention, which makes reference to an authority or judicial officer that must forward a request to the Central Authority of the requested State. The first use GLOSSARY XXXVII

of the term dates back to the 1977 meeting of the Special Commission and it has been widely used ever since. The “forwarding authority” is referred to in the Convention and the Model Form as the “applicant” and / or the “requesting authority”. For ease of reference, the term “forwarding authority” will be used throughout this Handbook.

For more information, see paras 121 et seq.

Hague Conference on Private International Law (or Hague Conference)

A permanent intergovernmental organisation whose purpose is to “work for the progressive unification of the rules of private international law” (Art. 1 of its Statute) and under the auspices of which the Service Convention was negotiated and adopted.

Hague Conventions Only International treaties negotiated and adopted under the auspices of the Hague Conference. A list of all the Hague Conventions is available on the Hague Conference website under “Conventions”. The Service Convention is the 14th Hague Convention (including the Statute of the Hague Conference).

Huissier de justice Use

A French term used in this Handbook to refer to a “judicial officer”.

Inter-American Convention on Letters Rogatory and its Additional Protocol

A convention and a protocol in force among some Member States of the Organization of American States and Spain to deal with the transmission of documents for service abroad, and in the case of the InterOfficial-American Convention, with the taking of evidence abroad.

For more on the interaction between the Inter-American Convention and the Hague Service Convention, see paras 330 et seq. For

Judicial document

For the purposes of the Convention, any document relating to litigation at any level of the court system (be it first instance, appeal or Supreme Court), including those emanating from contentious, non-contentious and enforcement proceedings.

For a detailed discussion, see paras 76 et seq.

XXXVIII PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | GLOSSARY

Main channel of transmission

A channel which involves the transmission of the document to be served from the forwarding authority of the requesting State to the Central Authority of the requested State for service in the latter State.

Member (of the Hague Conference)

Any State or Regional Economic Integration Organisation may seek to become a Member of the Hague Conference (pursuant to Arts 2 and 3 of its Statute). Being a Member of the Hague Conference should not be confused with being a Contracting State to the Service Convention (or any other Hague Convention for that matter). A Member is not required to be (or become) a Contracting State to the Service Convention and a Contracting State to the Service Convention is not required to be (or become) a Member of the Hague Conference. Not all Members of the Hague Conference have joined the Service Convention.

For an updated list of Members of the Hague Conference, see the Hague ConferenceOnly website under “HCCH Members”. For an updated list of Contracting States, see the status table.

Model Form Use A form annexed to the Service Convention which is mandatory if and when the main channel of transmission is used, and recommended for the alternative channels of transmission (only Parts 2 and 3). The Model Form is comprised of three parts: (1) the Request for Service; (2) the Certificate and (3) the Summary and the Warning.

For more information, see paras 136 et seq. and Annex 6: Guidelines for completing the Model Form.

Official Permanent Bureau

The secretariat of the Hague Conference.

PostalFor channels

An alternative channel of transmission which permits the sending of judicial documents by postal channels directly to persons abroad.

For more information, see paras 251 et seq.

GLOSSARY XXXIX

Ratification

An international act whereby a State establishes its consent to be bound by a treaty, such as the Service Convention (see Art. 2 of the Vienna Convention of 23 May 1969 on the Law of Treaties).

In the case of the Service Convention, only States that were represented at the Tenth Session of the Hague Conference (i.e., the meeting that adopted the final text of the instrument in 1964) could sign and ratify the Convention. Those States were: Austria, Belgium, Denmark, the Federal Republic of Germany, Finland, France, , Ireland, Israel, Italy, , Luxembourg, Netherlands, , Portugal, Spain, Sweden, Switzerland, , United Arab Republic, United Kingdom, United States of America, and Yugoslavia. All of these States have become Contracting States to the Convention with the exception of Austria. Any other State wishing to become a Contracting State to the Convention may do so by accession.

Receiving authority

See the term Central Authority. Only

Request for service

A part of the Model Form by which the forwarding authority requests the Central Authority of the requested State to effect service of a judicial or extrajudicial document on the addressee. The request for service is referred to as Part 1 of the ModelUse Form in Annex 6 (Guidelines for completing the Model Form).

For more information, see paras 143-146 and Annex 6: Guidelines for completing the Model Form.

Requested State

For the purposes of theOfficial Convention, the State to which a request for service is, or will be, addressed.

Requesting authority For A term used in the Model Form annexed to the Convention to refer to the “forwarding authority”. For ease of reference, throughout this Handbook the term “forwarding authority” will be used instead of the term “requesting authority”.

Requesting State

For the purposes of the Convention, the State from which a request for service is, or will be, issued.

XL PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | GLOSSARY

Service

For a discussion of the term “service”, see paras 52 et seq.

Service Convention (or 1965 Convention or Convention)

An international treaty developed and adopted under the auspices of the Hague Conference, the full title of which is the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. The full text of the Service Convention is set out at Annex 1 and is available on the Service Section of the Hague Conference website.

Service Section

A section of the website of the Hague Conference dedicated to the Service Convention. The Service Section can be accessed via a link on the home page of the Hague Conference website at < www.hcch.net >. Only

Special Commission (or SC)

Special Commissions are set up by the Hague Conference and convened by its Secretary General to develop and negotiate new Hague Conventions (or other instruments) or to review the practical operation of existing Hague Conventions.Use In this Handbook, “Special Commission” (or “SC”) refers to the Special Commission that meets periodically to review the practical operation of the Service Convention.

State of destination

When using the alternative channels of transmission, the State of destination refers to the State where service is, or will be, effected.

State of origin Official

When using the alternative channels of transmission, the State of origin refers to the State in which proceedings are commenced and where the document to be served originates.

For State Party

A Contracting State for which the Service Convention has entered into force (see Art. 2(1)(g) of the Vienna Convention of 23 May 1969 on the Law of Treaties).

GLOSSARY XLI

Status table

An updated list of Contracting States that is maintained by the Permanent Bureau based on information received from the depositary. The status table includes important information relating to each Contracting State, including:

a. the date of entry into force of the Convention for that State;

b. the method by which it joined the Convention (e.g., signature / ratification, accession or succession);

c. any extensions of application of the Convention;

d. the authorities it has designated under the Convention; and

e. any reservations, notifications or other declarations a State has made under the Convention.

Summary of the document to be served (or Summary) Only A part of the Model Form which provides the addressee with essential information about the parties and the document to be served (e.g., nature and purpose of the document, date and place for entering appearance and any relevant time-limits). The Warning and the Summary are referred to as Part 3 of the Model Form in Annex 6 (Guidelines for completing the Model Form). Use

For more information, see para. 150 and Annex 6: Guidelines for completing the Model Form.

Warning

A part of the Model Form which explains the nature of the document to be served and informs of the availability of legal aid or advice in the requesting State or State of origin. The Warning and the Summary areOfficial referred to as Part 3 of the Model Form in Annex 6 (Guidelines for completing the Model Form).

For more information, see para. 150 and Annex 6: Guidelines for completing the Model For Form.

Writ of summons

A judicial document directing a person to appear in court to answer a complaint.

Only Use

Official For

Frequently Asked Questions (FAQ)

This section is intended more particularly for persons wishing to obtain practical and speedy replies to the various questions that may arise in connection with application of the Service Convention. This is merely a succinct outline of the Convention’s main provisions. Accordingly, readers are invited to consult the main part of the Handbook to which this section refers for further details (see also the Explanatory Charts following the FAQ). The most frequently asked questions in practice are:1 Only

I. Purpose and nature of the Convention 1. What is the purpose of the Convention? 2. Which States are Parties to the ConventionUse? 3. When does the Convention apply?

II. The channels of transmission of documents 4. What are the channels of transmission provided for under the Convention? 5. Is there a hierarchy or otherwise an order of importance or difference in quality among the channels of transmission? 6. May channels of transmission other than those provided for under the Convention be used? Official A) The main channel of transmission 7. What is the main channel of transmission? 8. Who may send the request for service? 9. To which Central Authority is the request for service to be addressed? For10. What should the request for service include and how is it to be transmitted to the Central Authority? 11. What is the Model Form? 12. Is use of the Model Form mandatory? 13. Who should complete the Model Form? 14. What formalities apply to the documents to be served? 15. Should the documents to be served be translated into (one of) the official language(s) of the requested State?

1 Commonly used terms are underlined and are defined in the Glossary. XLIV PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | FREQUENTLY ASKED QUESTIONS

16. What is the time for execution of the request? 17. How is the request for service executed? 18. What happens if the addressee refuses informal delivery of the document? 19. May the Central Authority refuse compliance with the request for service? 20. Is the forwarding authority informed of the proper execution or failure of execution of the request for service? 21. May the Central Authority require the reimbursement of costs connected with execution of the request?

B) Alternative channels of transmission 22. What are the alternative channels of transmission? 23. Should the Model Form annexed to the Convention also be used for the alternative channels of transmission? 24. Should the documents to be served be translated into (one of) the official language(s) of the State of destination? 25. What are consular or diplomatic channels? 26. May the documents to be served be sent directly to the addresseeOnly through postal channels? 27. What is direct communication to a judicial officer, official or other competent person?

III. Protection of the plaintiff’s and defendant’s interests 28. What substantive protection does the ConventionUse provide for the defendant?

A) Stay of entry of judgment (Art. 15) 29. In what circumstances does the protection provided for under Article 15 (stay of entry of judgment) apply? 30. What are the conditions requiring a judge to stay entry of judgment? 31. Are there exceptions from the duty to stay entry of judgment? 32. May the judge order provisional or protective measures despite the duty to stay entry of judgment?

B) Relief fromOfficial expiry of the time for appeal (Art. 16) 33. In what circumstances does Article 16 relating to relief from expiry of the time for appeal apply? 34. When does a judge have the power to relieve the defendant from the effects of the expiration of the time for appeal from the judgment? For35. Does the protection of the defendant provided for under Articles 15 and 16 apply regardless of the method of transmission?

FREQUENTLY ASKED QUESTIONS XLV

I. Purpose and nature of the Convention

1. What is the purpose of the Convention?

The Convention provides for the channels of transmission to be used when a judicial or extrajudicial document is to be transmitted from one State Party to the Convention to another State Party for service in the latter. The terms used for “service” in the French text are “signifié ou notifié” (Art. 1(1)). Unless stated otherwise, the French version of this Handbook uses the term “notification” for “service”; for further details on this issue, see paragraph 55.

The Convention deals primarily with the transmission of documents from one State to another State; the Convention does not address or comprise substantive rules relating to the actual service of process. There are, however, two channels of transmission provided for by the Convention where the transmission process includes service of process upon the ultimate addressee: the direct diplomatic or consular channels (see question 25) and the postal channel (see question 26). For all the other channels of transmission provided for by the Convention an additional step, not governed by the Convention, is required to serve process on the ultimate addressee (this step typically involves the Central Authority of the requested State or a judicial officer, official or other competent person or authority of the State of destination, see question 4). Furthermore, the Convention contains two important provisions of substantive natureOnly that protect the defendant prior to a judgment by default (Art. 15) and after a judgment by default (Art. 16). For further details on the purpose and nature of the Convention, see paragraphs 1 et seq.; on Articles 15 and 16, see questions 28 to 35.

2. Which States are Parties to the Convention? Use A comprehensive and updated list of the Contracting States of the Convention is available on the Service Section of the Hague Conference website at < www.hcch.net >.

The Convention uses the term “Contracting State” in numerous provisions but with varying meanings. This Handbook distinguishes between the expressions “Contracting State” and “State Party”. According to Article 2(1)(f) of the Vienna Convention of 23 May 1969 on the Law of Treaties, the term “Contracting State” means a State which has consented to be bound by a convention, whether or not that convention has entered into force; this is in contrast to the term “Party”, which under Article 2(1)(g) of the Vienna Convention refers to a State that has consented to be bound by a convention and for which that convention is in force. Official

3. When does the Convention apply?

For the Convention to be applicable, the following requirements must be met:

For1) A document is to be transmitted from one State Party to the Convention to another State Party for service in the latter (as regards the term “service”, see paras 52 et seq.). The law of the State of origin (forum law) determines whether or not a document has to be transmitted abroad for service in the other State (the Convention is “non- mandatory”, see paras 31 et seq.);

2) An address for the person to be served is known (where no address for the person to be served is known, see paras 88 et seq.);

XLVI PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | FREQUENTLY ASKED QUESTIONS

3) The document to be served is a judicial or extrajudicial document (see paras 76 et seq.);

4) The document to be served relates to a civil and/or commercial matter (see paras 56 et seq.).

If all these requirements are met, the transmission channels provided for under the Convention must be applied (the Convention is “exclusive”, see para. 50), except in the case of a derogatory channel (see paras 294 et seq.).

II. The channels of transmission of documents

4. What are the channels of transmission provided for under the Convention?

The Convention provides for one main channel of transmission (see questions 7 to 21), and several alternative channels of transmission (see questions 22 to 27). See Explanatory Charts 1 and 2 following the FAQ.

5. Is there a hierarchy or otherwise an order of importance or difference in quality among the channels of transmission? Only

No. There is neither a hierarchy nor any order of importance among the channels of transmission, and transmission through one of the alternative channels does not lead to service of lesser quality. It is up to the party seeking to effect service to determine which mode of transmission it wants to use (this choice is of course subject to the conditions imposed by the Convention, in particular the absence of objection by the State of destination in caseUse of some of the alternative channels of transmission). Thus, the alternative channels should not be regarded as “subsidiary” to the main channel (see para. 236).

6. May channels of transmission other than those provided for under the Convention be used?

States Parties may provide for channels of transmission other than those provided for under the Convention (derogatory channels). There are two types of derogatory channels: those provided in bilateral or multilateral agreements concluded among Contracting States (Arts 11, 24 and 25; see paras 295 et seq. and 329 et seq.), and those provided by the domestic law of the State of destination (Art. 19; seeOfficial paras 300 et seq.).

A) The main channel of transmission

7. What is the main channel of transmission? For Under the main channel of transmission provided for by the Convention, the authority or judicial officer competent under the law of the requesting State (State where the document to be served originates – see question 8) transmits the document to be served to a Central Authority of the requested State (State where the service is to occur – see questions 9 and 17). For further details on the main channel of transmission, see paragraphs 111 et seq.; see also Explanatory Chart 1 following the FAQ.

FREQUENTLY ASKED QUESTIONS XLVII

8. Who may send the request for service?

The Convention specifies that the forwarding authority must be an authority or judicial officer of the requesting State. It is that State’s law which determines which authorities or judicial officers are competent to forward the request for service. Thus, in certain countries, attorneys, solicitors or private process servers are authorised to send such a request. Under the Convention, private persons are not entitled to send directly a request for service to the Central Authority of the requested State. For further details, see paragraphs 121 et seq.

9. To which Central Authority is the request for service to be addressed?

The request for service should be addressed to the Central Authority of the requested State. Under Article 18(1), a Contracting State may designate “other” authorities in addition to the Central Authority; also, under Article 18(3), a federal State may designate more than one Central Authority.

A comprehensive and updated list of Central Authorities and “other” authorities, designated by each Contracting State under Articles 2 and 18, is available on the Service Section of the Hague Conference website at < www.hcch.net >. Only

10. What should the request for service include and how is it to be transmitted to the Central Authority?

The request for service transmitted to the Central Authority must: Use 1) comply with the Model Form annexed to the Convention (see questions 11 to 13); and

2) be accompanied by the documents to be served (the list of documents to be served is to be determined according to the law of the requesting State; regarding formalities connected with the documents to be served, see question 14).

The Convention does not specify the method for sending the request to the Central Authority. Postal channels are commonly used (ordinary mail, registered mail with acknowledgment of receipt, express mail, private courier service, etc.). Certain Central Authorities accept receipt of requests by fax or e-mail (for more information, see Annex 8, The use of information technology in the operation of theOfficial Service Convention). It is preferable, however, to approach the relevant Central Authority in order to determine in advance the methods for transmission of requests that it accepts. For further details, see paragraphs 134 and 135.

11. What is the Model Form? For In its Annex, the Convention provides a Model Form (reproduced in Annex 2 of this Handbook at pp. 125 et seq.; see comments in paras 136 et seq. and Annex 6, Guidelines for completing the Model Form). The Model Form consists of three parts: a Request for service (which is sent to the Central Authority of the requested State), a Certificate (which is reproduced on the reverse side of the Request and which confirms whether or not the documents have been served), and a form entitled “Summary of the document to be served” (to be delivered to the addressee).

In addition, the Fourteenth Session of the Hague Conference recommended that the Summary be preceded by a warning relating to the legal nature, purpose and effects of the document to be served (the Warning is reproduced in Annex 3 at pp. 131 et seq.). XLVIII PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | FREQUENTLY ASKED QUESTIONS

12. Is use of the Model Form mandatory?

The Model Form is mandatory if and when the main channel of transmission is used (see para. 153). The Fourteenth Session of the Hague Conference, however, recommended that the part of the form containing the Summary, accompanied by the Warning (see Annex 3 at pp. 131 et seq.), be used in all cases when a judicial or extrajudicial document in civil or commercial matters is to be served abroad, i.e., not only for transmission through the main channel of the Central Authority, but also for transmission through the alternative channels provided for in the Convention. In addition, the practice, in certain States, of returning the Certificate to the forwarding authority even if transmission of the request has been executed through the alternative channels provided for in Article 10(b) and (c) is to be approved.

13. Who should complete the Model Form?

The Request for service is to be completed by the forwarding authority. The Certificate (which confirms whether or not the request for service has been executed) must be completed either by the Central Authority of the requested State or any other competent authority that the requested State has designated for that purpose. This Certificate is sent to the forwarding authority directly. If the Certificate is not completed by the Central Authority or a judicialOnly authority (e.g., if it is completed by a ), the forwarding authority may require that the Certificate be countersigned by one of these authorities (Art. 6(3)). The Summary of the document to be served is to be completed by the forwarding authority and delivered to the addressee with the documents to be served. It should also be accompanied by a warning (regarding the manner in which the Model Form is to be filled in, see paras 136 et seq. and the instructions drafted by Mr Möller, reproduced in Annex 4 at pp. 137 et seq.). Use

14. What formalities apply to the documents to be served?

Under Article 3(1) of the Convention, the request does not require legalisation or other equivalent formalities (e.g., an Apostille). This exemption equally applies to the documents themselves. The documents to be served and the Request are to be forwarded in duplicate (however, in the case of use of new technologies, see Annex 8, The use of information technology in the operation of the Service Convention). They need not be originals. Regarding the existence of practices inconsistent with Article 3, see paragraph 156. Regarding the issue of translation of the documents to be served, see question 15. Official

15. Should the documents to be served be translated into (one of) the official language(s) of the requested State?

Under Article 5(3), the Central Authority of the requested State may request a translation of the documentsFor to be served if they are to be served by a method prescribed by the internal law of the requested State for the service of documents in domestic actions upon persons who are within its territory (Art. 5(1)(a)), or if service by a particular method is requested by the forwarding authority) (Art. 5(1)(b)). For further details, see paragraphs 171 et seq.

In order to avoid undue delay connected with return of the request for service by the Central Authority on the grounds of a missing translation, it is preferable to check the Service Section of the Hague Conference website at < www.hcch.net >, before sending the application, to determine whether or not the requested State has made a general declaration in this respect; if not, it may be beneficial to approach the Central Authority of the requested State for this purpose.

FREQUENTLY ASKED QUESTIONS XLIX

16. What is the time for execution of the request?

The Convention has not set a specific time-limit for execution of the request. For comments on the time for execution in practice and the principle of speedy procedures, see paragraphs 195 et seq.; on the date of service in particular, see paragraphs 202 et seq.

Also, under Article 15(1), if the defendant does not appear and the service has not been performed in due time to enable the defendant to defend, the judge may be compelled to stay entry of judgment (see paras 304 et seq.).

17. How is the request for service executed?

The Central Authority in the requested State will execute the request for service or cause it to be executed either:

1) by a method provided for under the law of the requested State (formal service – see paras 163 et seq.); or

2) by a particular method requested by the applicant (i.e., the forwarding authority), unless it is incompatible with the law of the requested StateOnly (see paras 166 et seq.); or

3) by informal delivery to the addressee who accepts it voluntarily (see paras 169 et seq.).

The forwarding authority is advised to mention in the Request Form by which method the service is to be executed. If there is no indication, the Central AuthorityUse will have discretion to choose.

18. What happens if the addressee refuses informal delivery of the document?

The Central Authority may attempt formal service or directly return the Certificate (contained in the Model Form) to the forwarding authority, specifying the reasons for failure to execute the request. For further details, see paragraph 170.

19. May the Central Authority refuse compliance with the request for service?

The Convention providesOfficial for two situations in which the Central Authority may refuse execution of the request: temporary refusal if the Central Authority considers that the request does not meet the formal and substantive requirements of the Convention (Art. 4); and final refusal if the Central Authority considers that execution of the service would infringe the sovereignty or security of the requested State (Art. 13). For further details, see paragraphs 217 et seq. For

20. Is the forwarding authority informed of the proper execution or failure of execution of the request for service?

In all cases, the Certificate of service, in the form of the model annexed to the Convention (see Annex 2 at pp. 125 et seq.), is returned to the forwarding authority by the Central Authority or any other authority designated for such purpose by the requested State (Art. 6). If it has been possible to execute the request, the effect of the Certificate is a presumption that the service was valid; if it has not been possible to execute the request, the Central Authority or other competent authority must mention in the Certificate the grounds for failure to execute. For further details, see paragraphs 147, 148 and 209 et seq. L PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | FREQUENTLY ASKED QUESTIONS

21. May the Central Authority require the reimbursement of costs connected with execution of the request?

A State Party shall not charge for its services rendered under the Convention (Art. 12(1)). Thus, the services rendered by the Central Authority shall not give rise to any payment or reimbursement of costs. Under Article 12(2), however, a forwarding authority shall pay or reimburse costs occasioned by the employment of a judicial officer or other competent person or by the use of a particular method of service. A Central Authority may request that such costs be paid in advance. Against this background, it is advisable to approach the Central Authority prior to sending the request for service in order to avoid any undue delay in execution of the request connected with the absence of an accompanying payment. For further details, see paragraphs 186 et seq.

B) Alternative channels of transmission

22. What are the alternative channels of transmission?

The consular or diplomatic channels (direct and indirect) (Arts 8(1) and 9 – see questions 23 to 25); postal channels (Art. 10(a) – see questions 23, 24 and 26); direct communicationOnly between judicial officers, officials or other competent persons of the State of origin and the State of destination (Art. 10(b)); and direct communication between an interested party and judicial officers, officials or other competent persons of the State of destination (Art. 10(c) – see questions 23, 24 and 27). For further details on alternative channels of transmission, see paragraphs 236 et seq.; see also Explanatory Chart 2 following the FAQ.

Caution: before using one particular alternative Usechannel of transmission , it should be ascertained that the State of destination has not objected to it. Declarations of objection, if any, made by Contracting States are available on the Service Section of the Hague Conference website at < www.hcch.net >. On the question of whether an objection has reciprocal effect, see paragraphs 263 et seq.

Also, failure of the State of destination to object to a particular channel of transmission under Article 10 should not be imputed to mean that the State of destination will regard the resulting service to be sufficient for later enforcement of judgment in that State (for further details, see para. 268).

Official 23. Should the Model Form annexed to the Convention also be used for the alternative channels of transmission?

The Model Form was originally designed for the main channel of transmission (see question 12). The Fourteenth Session of the Hague Conference, however, recommended that the part of the form Forcontaining the Summary, accompanied by the Warning (see Annex 3 at pp. 131 et seq.), be used in all cases when a judicial or extrajudicial document in civil or commercial matters is to be served abroad, i.e., not only for transmission through the main channel of the Central Authority, but also for transmission through the alternative channels provided for in the Convention. In addition, the practice, in certain States, of returning the Certificate to the forwarding authority even if transmission of the request has been executed through the alternative channels provided for in Article 10(b) and (c) is to be approved.

FREQUENTLY ASKED QUESTIONS LI

24. Should the documents to be served be translated into (one of) the official language(s) of the State of destination?

The alternative channels of transmission do not, in principle, require a translation of the documents to be served under the Convention. There are, however, inconsistent practices (see paras 285 et seq.); in addition, recognition and enforcement of a foreign decision may be refused when the documents served have not been translated.

25. What are consular or diplomatic channels?

These are channels of transmission whereby the request for service is forwarded by the Ministry of Foreign Affairs of the State of origin (forwarding authority) to the consul or diplomat representing the State of origin within the State of destination. Depending on the case, the latter will execute the request for service personally (direct channels) or will be required to forward it for execution to a competent authority of the State of destination (indirect channels). For further details, see paragraphs 239 et seq.

26. May the documents to be served be sent directly to the addressee throughOnly postal channels?

According to Article 10(a), judicial documents may be served by sending them directly to the addressee abroad through postal channels if the following two conditions are met:

1) the conditions set by the law of the State of origin (lex fori) for valid service by mail are met; and Use 2) the State of destination has not objected to this channel of transmission (the declarations of objection made by States Parties may be consulted on the Service Section of the Hague Conference website at < www.hcch.net >).

There is no doubt that the reference to postal channels includes the sending of letters by ordinary mail, registered post and registered post with acknowledgment of receipt (regarding the use of electronic mail, see Annex 8, The use of information technology in the operation of the Service Convention).

For a more detailed analysis of service by mail, see paragraphs 250 et seq.; for a comprehensive analysis of the wordOfficial “send” in the English version of Article 10(a) in particular, see paragraphs 270 et seq.

27. What is direct communication to a judicial officer, official or other competent person?

This isFor a channel of transmission whereby any person interested in the proceedings (Art. 10(c)) or any judicial officer, official or other competent person in the State of origin (Art. 10(b)) may approach directly a judicial officer, official or other competent person in the State of destination to serve the documents. This latter method allows, in particular, the transmission of documents to be served by a huissier de justice to another huissier de justice. A State may object to the use of these channels of transmission (the declarations of objection made by States Parties may be consulted on the Service Section of the Hague Conference website at < www.hcch.net >). For further details regarding this channel of transmission, see paragraphs 287 et seq.

LII PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | FREQUENTLY ASKED QUESTIONS

III. Protection of the plaintiff’s and defendant’s interests

28. What substantive protection does the Convention provide for the defendant?

The Convention contains two key provisions which protect the defendant prior to a judgment by default (Art. 15) and after a judgment by default (Art. 16). Articles 15 and 16 require the judge to stay entry of judgment (Art. 15 – see questions 29 to 32) or allow the judge to relieve the defendant from the effects of the expiry of the time for appeal (Art. 16 – see questions 33 to 35), subject to certain requirements. See Explanatory Charts 3 and 4 following the FAQ.

A) Stay of entry of judgment (Art. 15)

29. In what circumstances does the protection provided for under Article 15 (stay of entry of judgment) apply?

Article 15(1) applies in the cases where a writ of summons or equivalent document had to be transmitted abroad, under the provisions of the Convention, for the purpose of service and the defendant has not appeared. For further details on the stay of entry of judgment, see paragraphs 304 et seq. Only

30. What are the conditions requiring a judge to stay entry of judgment?

Under Article 15(1), judgment shall not be given until it is established that:

1) the document was served in accordance withUse the law of the requested State (or, in the case of an alternative channel of transmission, the State of destination) or actually delivered to the defendant or to the latter’s residence by another method provided for by the Convention; and

2) that, in either of these cases, the service or the delivery was effected in sufficient time to enable the defendant to defend.

31. Are there exceptions from the duty to stay entry of judgment?

Yes, the judge may ruleOfficial by default, notwithstanding the fact that the requirements under the foregoing question are met, but only if:

1) the Contracting State has made a declaration to this respect (see the table of declarations made under Art. 15(2) on the Service Section of the Hague Conference website at < www.hcch.net >); For 2) the document was transmitted by one of the methods provided for in the Convention;

3) no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the requested State (or, in the case of an alternative channel of transmission, the State of destination); and

4) a period of time considered adequate by the judge, but of not less than six months, has elapsed since the date of transmission of the document (Art. 15(2)).

These conditions are to be satisfied concurrently.

FREQUENTLY ASKED QUESTIONS LIII

32. May the judge order provisional or protective measures despite the duty to stay entry of judgment?

Yes, in cases of urgency, the judge may order provisional or protective measures (Art. 15(3) – see para. 321).

B) Relief from expiry of the time for appeal (Art. 16)

33. In what circumstances does Article 16 relating to relief from expiry of the time for appeal apply?

Article 16 applies when the defendant has not appeared, a decision not relating to personal status or capacity has been entered by default, and the time for appeal has expired. For further details on relief from expiry of the time for appeal, see paragraphs 322 et seq.

34. When does a judge have the power to relieve the defendant from the effects of the expiration of the time for appeal from the judgment? Only A judge may relieve the defendant from the effects of the expiration of the time for appeal from the judgment if (Art. 16(3)):

1) without any fault on his or her part, the defendant did not have knowledge of the document in sufficient time to defend, or knowledge of the judgment in sufficient time to appeal; Use 2) the defendant has disclosed a prima facie defence to the action on the merits; and

3) the defendant files the application for relief within a reasonable time after being informed of the judgment or within the time determined by the State in its declaration to the depositary to this effect (in such a case, however, this time shall in no case be less than one year following the date of judgment). A list of declarations and a table recapitulating the declarations made by each State are available on the Service Section of the Hague Conference website at < www.hcch.net >.

These conditions are to be satisfied concurrently. Official

35. Does the protection of the defendant provided for under Articles 15 and 16 apply regardless of the method of transmission?

These two provisions apply irrespective of which channel of transmission provided for by the ConventionFor is used (i.e., the main channel or any of the alternative channels of transmission).

Only Use

Official For

Only

Use

Explanatory Charts

Official For Only Use

Official For

Chart 1

Operation of the main channel of transmission [paras 111 et seq.]

Authority or judicial officer competent under the law of the requesting State forwards request for service (Art. 3) REQUESTING STATE REQUESTING [para. 121]

to Central Authority of the requested State

[para. 111] Only

which will execute the request for service or cause it to be executed either (Art. 5) [para. 162] Sending of Certificate Request for translation Use

by a method prescribed by the by a particular method by simple delivery internal law of the requested requested by the forwarding authority, to an addressee State for the service of unless this method is incompatible with who accepts it voluntarily documents Art. 5(1)(a) the law of the requested State Art. 5(1)(b) Art. 5(2) [para. 163] [para. 166] [para. 169] REQUESTED STATE REQUESTED

The Central Authority may require the documentOfficial to be written in, or translated into, the official language or one of the official languages of the requested State Art. 5(3) [para. 171]

ForCertificate completed by the Central Authority of the requested State or any authority that it may have designated for that purpose Arts 6/7 [para. 209] Chart 2 Operation of the alternative and derogatory channels of transmission [paras 236 et seq.]

Forwarding Authority

Direct Diplomatic Indirect Indirect Diplomatic Direct communication Direct communication Postal channel Derogatory or Consular Consular channel, if excep- between judicial officers, between any interested Art. 10(a) channels channel, without channel tional circumstances officials or other person and judicial [para. 250] any compulsion Art. 9(1) require competent persons officers, officials or Art. 8(1) [para. 246] Art. 9(2) Art. 10(b) other competent [para. 243] [para. 247] [para. 287] persons Art. 10(c) [para. 291] Ministry of Ministry of Ministry of Only Justice Judicial officer, official or Justice Justice Agreements (facultative) other competent person The internal (facultative) (facultative) among two or

STATE OF ORIGIN of the State of origin law of a more States to Contracting permit other State can Ministry of Ministry of transmission Ministry of permit other Foreign Affairs Foreign Affairs channels, in Foreign Affairs methods of particular Use transmission direct Art. 19 Diplomatic communication [para. 300]

representative within between their Consular or Diplomatic Consular the State of destination respective representative within representative authorities the State within the State Ministry of Arts 11, 24 of destination of destination Foreign Affairs and 25 [paras 294 and 329]

Ministry of Justice Official Judicial officer, official or other competent STATE OF DESTINATION OF STATE Authority person of the designated by the State of destination ForState of destination Delivery without any compulsion, Addressee voluntary acceptance of the document Possible opposition, unless the document is to be served upon a national of the State in which the documents originate State of destination may object Art. 10 Art. 8(2) [para. 244] [para. 259] Chart 3 Article 15: defendant’s protection prior to decision [paras 304 et seq.]

Transmission abroad for the purpose of service, under the provision of the Convention

If the defendant has not appeared, judgment shall not be given until it is established that:

The document was served by a method prescribed by the internal law of The document was actually delivered to the defendant or to the requested State (or, in the case of an alternative channel of his/her residenceOnly by another method provided for by the transmission, the State of destination) and Convention and

the service or delivery was effected in sufficient time to enable the defendant to defendUse

The judge may nonetheless give judgment if all the following conditions are fulfilled:

1. The Contracting State has made a declaration to this effect

2. The document was transmitted by one of the methods provided for in the Convention

3. No certificate of any kind Officialhas been received, even though every reasonable effort has been made to obtain it through the competent authorities of the requested State (or, in the case of an alternative channel of transmission, the State of destination)

4. A period of time considered adequate by the judge, but of not less than six months, has elapsed since the date of the transmissionFor of the document

Judgment by default Chart 4 Article 16: defendant’s protection after a decision [paras. 322 et seq.]

Writ of summons or equivalent document had to be transmitted abroad, under the provisions of the Convention, for the purpose of service

Judgment by default has been rendered Only

The judge can relieve defendant from effects of the expirationUse of the time for appeal if all the following conditions are fulfilled:

1. Application for relief is filled within a reasonable time after the defendant has knowledge of the judgment or within the time fixed by the State in its declaration to the Depositary to this effect (this time shall in no case be less than one year following the date of the judgment)

2. Defendant, without any fault on his/her part, did not have knowledge of the document in sufficient time to defend, or knowledge of the judgment in sufficient time to appeal

3. The defendant has disclosed aOfficial prima facie defence to the action on the merits For

General comments and practical operation of the Convention

I. Purpose and scope of the Convention

Only 1. Preliminary remarks

1. The final text of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (hereinafter referred to as the “Service Convention”, “1965 Convention” orUse simply as “Convention” ) was adopted by the Tenth Session of the Hague Conference on Private International Law.1

2. The decision to initiate work on an instrument relating to the transmission of documents to be served abroad, so shortly after signature of the 1954 Civil Procedure Convention, was made at the Ninth Session of the Conference.2 It echoed a memorandum from the International Union of Judicial Officers (hereinafter referred to as “UIHJ”, from the French title of the organisation Union internationale des huissiers de justice et officiers judiciaires) published in 1960, which described the difficulties encountered in the transmission of documents abroad despite the progress made with the entry into force of the 1896, 1905 and 1954 Conventions. The two main criticisms of the existing system related to the time-consumingOfficial and complex character of the transmission through consular or diplomatic channels, and the survival of notification au parquet and its detrimental consequences for defendants.3

For 1 See Conférence de La Haye de droit international privé, Actes et documents de la Dixième session (1964), Tome III, Notification, The Hague, Imprimerie Nationale, 1965, especially pp. 333 et seq. A preliminary draft Convention was adopted by the Special Commission in February 1964; the draft Convention was adopted by the Tenth Session of the Hague Conference in October 1964; on 15 November 1965, several States signed the draft Convention and the final Convention therefore takes this date. 2 Conférence de La Haye de droit international privé, “Procès-verbal de la séance plénière du 25 octobre 1960” [in French only], in Actes et documents de la Neuvième session (1960), Tome I, Matières diverses, The Hague, Imprimerie Nationale, 1961, p. 177. 3 See paras 6 to 11. See also Conférence de La Haye de droit international privé, “Note du Secrétaire général sur un mémoire de l’Union internationale des huissiers de justice et officiers judiciaires relatif à la signification d’actes à l’étranger”, Prel. Doc. of September 1960 [in French only], in Actes et documents de la Neuvième session (1960), Tome I, Matières diverses, The Hague, Imprimerie Nationale, 1961, p. 165. 2 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER I

2. Relationship to the 1896, 1905 and 1954 Conventions

3. The proceedings led to the drafting of a new Convention intended to replace Articles 1 to 7 of the 19054 and 19545 Civil Procedure Conventions, among the ratifying or acceding States, insofar as such States are Parties to one or another of those Conventions.6 In other words, Articles 1 to 7 of the 1905 and 1954 Conventions remain in force among States which are still Parties to these instruments, but only if the two States involved (i.e., the State of origin and the State of destination of the transmission) have not become Parties to the 1965 Convention.7

4. It should be noted that in its Article 23, the 1965 Convention preserves both Article 23 of the 1905 Convention and Article 24 of the 1954 Convention. These provisions relate to legal aid, a subject matter which is not expressly covered by the 1965 Convention but later formed the subject of another Convention, the Hague Convention of 25 October 1980 on International Access to Justice (Access to Justice Convention). Between States Parties to the 1980 Convention which are also Parties (see note 6) to either the 1905 or the 1954 Convention or both, the 1980 Convention replaces Articles 17 to 24 of

Only

4 Convention of 17 July 1905 relating to civil procedure. See Conférence de La Haye de droit international privé, “Protocole Final” [in French only], in Actes de la QuatrièmeUse Conférence de La Haye pour le droit international privé (16 mai – 7 juin 1904), The Hague, Van Langenhuysen Frères, 1904, pp. 205 et seq.; Conférence de La Haye de droit international privé, “Propositions relatives à la procédure civile” [in French only], in Documents relatifs à la Quatrième Conférence de La Haye pour le droit international privé, The Hague, Van Langenhuysen Frères, 1904, especially pp. 2-33. It should be noted that the 1905 Convention was itself intended to replace the Convention of 14 November 1896 on Civil Procedure and the additional Protocol of 22 May 1897: see Conférence de La Haye de droit international privé, “Protocole Final” [in French only], in Actes de la Deuxième Conférence de La Haye chargée de réglementer diverses matières de droit international privé (25 juin – 13 juillet 1894), The Hague, Imprimerie Nationale, 1894, pp. 4-6. The text of the 1905 Civil Procedure Convention is available on the Hague Conference website [in French only]. 5 See Conférence de La Haye de droit international privé, “Projet de Convention relative à la procédure civile” [in French only]Official, in Actes de la Septième session tenue du 9 au 31 octobre 1951, Tome I, The Hague, Imprimerie Nationale, 1952, p. 390; see also Conférence de La Haye de droit international privé, “Projet de Convention relative à la procédure civile” [in French only], in Documents relatifs à la Septième session tenue du 9 au 31 octobre 1951, Tome II, The Hague, Imprimerie Nationale, 1952, p. 61. The text of the 1954 Convention is available on the Hague Conference website. 6 Art. 22 of the Service Convention. It is true that the French text of this provision only mentions States thatFor have “ratified” the Service Convention, and not States that have “acceded” to the Convention. There is, however, no doubt that Art. 22 also refers to States which have acceded to the Service Convention. This interpretation is supported by the English text of Art. 22 which refers in general to the “Parties to the present Convention”. 7 Most of the States Parties to the 1905 and 1954 Civil Procedure Conventions have ratified the 1965 Convention or acceded to it. All the States Parties to the 1905 Convention have acceded to either the 1954 or the 1965 Convention. With the accession of to both the 1954 and 1965 Conventions in 2008, the 1905 Convention is no longer applicable between its Contracting States. Some States Parties to the 1954 Convention have not ratified or acceded to the 1965 Convention. The 1954 Convention is thus still effective in the relations between Austria, the Holy See, Kyrgyzstan, Lebanon, Mongolia, Suriname and Uzbekistan, as well as between the States mentioned and the other States which, although they have become Parties to the 1965 Convention, are still Parties to the 1954 Convention (e.g., the Russian Federation, Switzerland or the Special Administrative Region of Macao (China)). For further details and a regular update of the status of the 1905, 1954 and 1965 Conventions, see the Hague Conference website. PURPOSE AND SCOPE OF THE CONVENTION 3

the 1905 Convention and Articles 17 to 26 of the 1954 Convention respectively.8 With regard to legal aid, it follows that in the relations between States which are Parties to either the 1905 or 1954 Conventions, these instruments apply where the two States in question are not Parties to the 1980 Convention.

5. Finally, it should also be noted that if supplementary agreements to the 1905 and 1954 Conventions have been concluded by States that are also party to the Service Convention, these agreements must be considered applicable to the 1965 Convention, unless the States have determined otherwise (Art. 24 of the Service Convention; see paras 296 et seq.).

3. Main objectives of the 1965 Convention

6. According to the Explanatory Report, the basic objectives of the Convention may be summarised as follows:

“a To establish a system which, to the extent possible, brings actual notice of the document to be served to the recipient in sufficientOnly time to enable him to defend himself. b To simplify the method of transmission of these documents from the requesting State to the requested State. c To facilitate proof that service has been effected abroad, by means of certificates contained in a uniform model”.9 Use 7. For these purposes, the 1965 Convention has added a number of features:

(a) Article 15(1) provides that where a writ of summons or an equivalent document had to be transmitted abroad, under the provisions of the Convention, for the purpose of service, and the defendant has not appeared, judgment shall not be given until it is established that the document has been served by a method prescribed by the internal law of the requested State (or, in the case of an alternative channel of transmission, the State of destination), or that the document was actually delivered to the defendant or his or her residence by another method provided for under the Convention, and that, in either of these cases, the service or the delivery was effected in sufficient time to enableOfficial the defendant to defend (see paras 304 et seq.). Article 15(2), however, takes into account the plaintiff’s legitimate interest in seeing the procedures progressing. Article 16 reinforces the protection for defendants by providing that the judge shall have power to relieve the defendant from expiry of the time for appeal if certain requirements are met (see paras 322 et seq.). For

8 Art. 22 of the Access to Justice Convention. For more information and a regular update of the status of this Convention, see the Hague Conference website. 9 V. Taborda Ferreira, “Rapport explicatif”, in Actes et documents de la Dixième session (1964), Tome III, Notification, The Hague, Imprimerie Nationale, 1965, pp. 363 et seq. [translation by the Permanent Bureau] [hereinafter “Explanatory Report”]. 4 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER I

(b) In lieu of consular and diplomatic channels, the main channel of transmission of documents is through a Central Authority, who shall itself serve the documents or shall arrange to have them served (see paras 111 et seq.).10 In addition, the Convention provides for several alternative methods for transmission, which have been developed having regard to the special features of different legal systems (e.g., direct communication between huissiers or postal channels; see paras 236 et seq.).

(c) Execution of the request for service is certified by means of a standard form entitled Certificate, which is to be completed by the Central Authority or other competent authority of the requested State once the request for service has been executed. If it has been possible to execute the request for service, the effect of the Certificate is a presumption that the service was valid and that the document was brought to the addressee’s notice in sufficient time to enable the latter to organise a defence. For more details, see paragraphs 209 et seq.

8. In order to fully meet the first objective mentioned above (i.e., to ensure that actual notice of the document to be served is brought to the addressee), the Convention would inevitably have had to interfere with national law and to define the conditions for effective service. This would have been the only way to eliminate fictitious modesOnly of service such as notification au parquet, which is used in different forms in some States of civil law tradition. In its original form, this system provides for legally effective service, even in the context of a procedure that is international in nature and where the address abroad of the recipient is known, by mere deposit of the relevant documents with the State attorney in the forum State or by putting up a notice on the notice-board of the court seized (as is the case in Italy; see Art. 142(1) CodPC).11 Even when the notification au parquet is followed by a transmission of the document (or, depending on the system, Usea copy of the document) to the addressee abroad, service is no less valid with the deposit of the document in the forum State – thus, at the time of the notification au parquet, the addressee is unable to take notice of the document in question. It is not surprising that notification au parquet and, in particular, its potentially detrimental effects on a defendant abroad, have occupied an important place in the negotiations for the Service Convention.

Official For

10 The Service Convention is the first of the Hague Conventions to have established a system of Central Authorities. Numerous other Hague Conventions have since adopted the same system, see note 157. 11 See, among others, Explanatory Report (op. cit. note 9), pp. 364-365; T. Bischof, Die Zustellung im internationalen Rechtsverkehr in Zivil- und Handelssachen, Publications de l’Institut suisse de droit comparé 31, Zurich, Schulthess, 1997, pp. 89 et seq., with numerous other references; O. Capatina, “L’entraide judiciaire internationale en matière civile et commerciale”, RCADI 1983, I (Tome 179 of the collection), pp. 331-332; H. Schack, “Einheitliche und zwingende Regeln der internationalen Zustellung”, in R. Schütze (ed.), Einheit und Vielfalt des Rechts: Festschrift für Reinhold Geimer zum 65. Geburtstag, Munich, Verlag C.H. Beck, 2002, p. 932. PURPOSE AND SCOPE OF THE CONVENTION 5

Purpose of the Convention

9. It is important to note that the Convention is not intended to modify the substantive rules of service applicable in States Parties,12 nor does it set the beginning of any period provided for under national procedural law.13 The main purpose of the Convention is to set up a system for transmission of documents for service abroad.14 The Convention, therefore, does not do away with notification au parquet (if that were the case, Arts 15 and 16 would not have been necessary), but aims to protect a defendant from the potentially detrimental effects of such a system.

10. In this regard, it goes without saying that the protection offered by Articles 15 and 16 only operates when the Convention is applicable, which is only the case when a document must be transmitted for service abroad (see Art. 1; paras 29 et seq.). Thus, the aims of the Convention may only be satisfied if the law of the forum demands that the document be transmitted for service abroad. This point is perfectly illustrated by developments in France in relation to service of process on an addressee abroad. The regime applicable to service on an addressee abroad has been modified considerably by an important Decree dated 28 December 2005.15 One of the major changes brought aboutOnly by the decree is that notification au parquet has been abolished in relation to all States (not only those Parties to the Service Convention). Therefore, in all cases, actual service must take place internationally, that is, in the State addressed or of destination, and not fictitiously, au parquet, in France.16 Under this new framework, and when the Service Convention applies,

Use 12 In this sense, Rb Rotterdam (Netherlands), Sturge et al. v. Naatra Rotterdam BV, 25 March 1992, NJ 1993, p. 44; for France, Milleman v. U Lee Johnson Inc., Cass., Ch. Civ. 1, 9 November 1993, Judgment No 1388, which also quite rightly recalls the procedural rules of Art. 15 of the Convention; for Luxembourg, see Schimpf v. Helaba Luxembourg, Landesbank Hessen-Thueringen International, CA of Luxembourg, 21 February 2001, No 24191. See also H. Schack, “Transnational Service of Process: A Call for Uniform and Mandatory Rules”, (2001) 6 Unif. L. Rev., pp. 827 et seq. 13 Explanatory Report (op. cit. note 9), p. 365; G.A.L. Droz, Compétence judiciaire et effets des jugements dans le Marché Commun (Etude de la Convention de Bruxelles du 27 septembre 1968), Paris, Librairie Dalloz, 1972, Nos 275 to 277; Faillite Breyer v. Sté Total Belgique, Cour Supérieure de Justice de Luxembourg, 21 January 1981, Rev. crit. d.i.p. 1981, p. 708, note Georges Droz; French Cour de cassation, 16 DecemberOfficial 1980, Rev. crit. d.i.p. 1981, p. 708, note G.A.L. Droz. See also para. 195. 14 There are, however, two channels of transmission provided for by the Convention where the transmission process itself may comprise service of process upon the ultimate addressee: the direct diplomatic or consular channels (see para. 243), and the postal channel (see paras 250 et seq.). For all the other channels of transmission provided for by the Convention an additional step, not governed by the Convention, is required to serve process on the ultimate addressee (this step typically involves theFor Central Authority of the requested State or a judicial officer, official or other competent person of the State of destination). 15 Decree No 2005-1678 of 28 December 2005 relating to civil procedure, to some procedures of enforcement and to the procedure to change name [translation by the Permanent Bureau] (Décret No 2005-1678 du 28 décembre 2005 relatif à la procédure civile, à certaines procédures d’exécution et à la procédure de changement de nom), JORF of 29 December 2005, pp. 67 et seq. Date of entry into force of the Decree: 1 March 2006. For example, in Claude Duval v. Société Abbey Spanier Rodd & Abrams LLP, CA Versailles, 4 November 2009, No 09/07252, the Court of Appeal of Versailles applied this Decree and ordered that service on defendants in the United States be effected using the Service Convention. 16 See the Notice (Circulaire) CIV/20/05 of 1 February 2006 from the Ministry of Justice on international service of judicial or extrajudicial documents in civil and commercial matters which is available at the following link: < www.entraide-civile-internationale.justice.gouv.fr/ > [last consulted on 20 November 2015]. For more information, see M. Chardon, et al., Transmission, Signification ou Notification des Actes, 2nd ed., Paris, LexisNexis, 2014, pp. 250-253. 6 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER I

a document is to be transmitted abroad by the relevant authority (huissier de justice or registrar of the relevant jurisdiction, depending on the case) in conformity with the channels of transmission provided for by the Convention, and taking into account the declarations of the State addressed or State of destination. Fifty years after the adoption of the Convention, these developments evidently take into account the objectives of the Convention (including Arts 15 and 16) and represent considerable and undeniable progress.17

11. Despite the requirement of a transmission abroad and, where applicable, compliance with the channels provided for in the Convention, it should be noted that even under the new regime the Code of Civil Procedure of France continues to impose a formality established under the old system. Under this formality, the transmitting authority (huissier de justice or the clerk in question) must, on the same day (or at latest, the next business day) send by registered mail with acknowledgment of receipt an authentic copy of the document to be served directly to the addressee abroad, unless the primary transmission was effected by mail sent to the addressee and included actual service (Art. 686 CPC). While the requirement of sending an authentic copy by postal channels abroad must be observed on pain of nullity of service,18 this formality is merely designed to inform the addressee of the institution of proceedings and does not on its own constitute service of documents.19 This provision does not seem to have caused any difficulties in practice.Only20

Service on an agent

12. In case of service on a Secretary of State or on another agent for service, a method often used in the United States, the same conclusion applies: if,Use under the law of the forum there is no occasion to transmit a judicial or extrajudicial document for service abroad, the Convention does not apply; if, however, service on the Secretary of State or on another agent for service is only complete and effective with the transmission of the document (or a copy thereof) abroad to the addressee, the Convention applies.21

17 Official It is interesting to note that the French Decree of 28 December 2005 integrates Art. 15 of the Convention into the domestic law of France (see Art. 688 of the CPC), thus extending the protection offered by this Article to all defendants irrespective of whether or not the Service Convention applies. As regards the applicability of the 2007 European Service Regulation, see paras 337 et seq. 18 Arts 686 and 693 of the CPC. 19 SeeFor the Circulaire mentioned supra in note 16. This is also why Art. 686 of the CPC stipulates that a copy of a document must indicate in a very obvious manner that it is merely a copy to distinguish the sending of the copy from the transmission of the notice of service itself. 20 In eBay Inc., Société eBay Int’l AG v. Société Louis Vuitton Malletier, Chamber 4, Section B, 22 May 2009, No 07/219187, the Court of Appeal of Paris upheld a decision against the defendant even though Process Forwarding International, the outsourced entity of the US Central Authority, had failed to serve the documents under Art. 5(1)(a) of the Convention because someone at the defendant’s address had refused to accept them. In its decision, the Court took into account that the defendant was aware of the documents, as one of his employees had signed the acknowledgment of receipt of the mail sent in accordance with Art. 686 of the CPC. 21 For a full discussion of court decisions on the Convention rendered in the United States, see paras 33 et seq. (on the famous Schlunk decision cited note 53), paras 43-45, which stress an important difference between notification au parquet and service on an agent; service on an agent is acceptable only if a sufficiently close link between the agent and the foreign addressee of the document is established. PURPOSE AND SCOPE OF THE CONVENTION 7

13. Finally, one may also note that the first two objectives mentioned above are expressly reproduced in the Preamble of the Convention. They should be borne in mind when interpreting the provisions of the Convention.22

4. An “open” Convention

14. In order to encourage and facilitate judicial co-operation world-wide, Article 28 of the Convention stipulates that the Convention is “open” for accession by States which were not represented during the negotiations of the Tenth Session of the Hague Conference.23 For an acceding State, the Convention only enters into force if no State that has ratified the Convention beforehand objects to the accession.24 This “right of veto” must be utilised within a period of six months. It must be stressed that this right has never been used in practice.

15. There is no doubt that the “open” character of the Convention has greatly contributed to its impact around the world; to date, more than half of the States Parties to the Convention are acceding States. These include Australia, Canada, China, Korea, , the Russian Federation, several States from Eastern Europe, as well as MexicoOnly and Venezuela. As a result, the number of different legal cultures and geographical areas represented among States Parties is much greater for the 1965 Convention than it was under the 1905 and 1954 Conventions.

5. Scope and applicability of theUse Convention (Art. 1)

A. Personal and territorial scope

a) Place of service as determining factor

16. At the outset, it should be noted that the basic criterion for the Convention to apply is transmission abroad (i.e., transmission from one State Party to another State Party); the ConventionOfficial does not refer to the defendant, to his or her place of domicile, residence or sojourn.25 The addition that this transmission should be made “to a person abroad”

22 Art.For 31 of the Vienna Convention of 23 May 1969 on the Law of Treaties makes use of a traditional public international law principle: see in particular M.N. Shaw, International Law, 4th ed., Cambridge, Cambridge University Press, 1997, pp. 655-656. 23 The following States were represented at the Tenth Session of the Hague Conference: Austria, Belgium, Denmark, the Federal Republic of Germany, Finland, France, Greece, Ireland, Israel, Italy, Japan, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, Turkey, the United Arab Republic, the United Kingdom, the United States and Yugoslavia, see “Diplomatic Sessions of the Hague Conference on private international law, 1893-1993”, in Proceedings of the Seventeenth Session (1993), Tome I, Second Part, Centenary, The Hague, SDU Publishers, 1995, p. 68. 24 Art. 28(2) – in other terms, one veto is sufficient to prevent the entry into force of the Convention for the State which wishes to accede. 25 The Special Commission which prepared the preliminary draft Convention expressly examined the possibility of using the notions of domicile, habitual residence or residence of the defendant, but decided against it; see V. Taborda Ferreira, “Rapport de la Commission spéciale” [in French only], 8 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER I

(which was contained in the preliminary draft Convention) was removed from the final text.26 In principle, the determining factor is therefore the place of service and not the domicile or the residence of the defendant.27

17. The place of service, however, is not always abroad. For those States which have a system of notification au parquet, service on a defendant located abroad is deemed to have been effected when the document is deposited with the public prosecutor’s office or with another designated local official in the State of origin (on notification au parquet, see paras 8 to 11; in this respect, see also the comments in paras 29 et seq. on the core notion used in Art. 1(1) “where there is occasion to transmit a […] document for service abroad”).

18. According to the codes of civil procedure of certain States, when a person residing abroad has elected domicile in the State of the forum, there may be no need for a transmission abroad and the Convention accordingly does not apply.28 However, the Supreme Court of the Netherlands (Hoge Raad) determined that the fact that a foreign company elected domicile at first instance at the offices of a Dutch counsel did not infer upon this counsel the quality of representative authorised to receive service addressed to this company in further appeal proceedings if this counsel had not been designated as such; accordingly, in such a case a request for service of an appeal on a German company should have been forwarded by one of the methods provided for by the Convention.29Only

19. Also, a German court held that when the addressee of a document had apartments (Wohnungen) both in Germany and abroad, he could not request service to be effected abroad on the mere fact that he had apartments there. The court concluded that service could be effected at one of the addressee’s apartments in Germany.30 This jurisprudence would appear to be indisputable as otherwise any addressee with a second residence abroad would be able to invoke the invalidity of service effectedUse elsewhere.

in Actes et documentsOfficial de la Dixième session (1964), Tome III, Notification, The Hague, Imprimerie Nationale, 1965, p. 74 at pp. 80-81 [hereinafter “Report of the 1964 SC”]. Art. IV of Protocol No 1 to the 1968 Brussels Convention (for the consolidated text, see OJEU C 27 of 26 January 1998, p. 1), and the parallel provision for the Lugano Convention, which both refer to the Hague Convention, mention “[…] documents which have to be served on persons in another contracting State […]”. This provision was not included in the Brussels Ia Regulation. 26 ExplanatoryFor Report (op. cit. note 9), p. 366. 27 Some courts in the United States nevertheless retain the residence of the addressee, or even his nationality (“citizenship”) as the condition for application of the Convention; see, e.g., In re Hunt's Pier Associates, 156 B.R. 464 (Bankr. E.D. Pa. 1993); Mommsen v. Toro Co., 108 F.R.D. 444 (S.D. Iowa 1985). While the Convention was applied in both of these cases, the conditions examined would nevertheless appear to be incorrect. See also, Gray v. SNC-Lavalin Group Inc., 2012 ONSC 3735 (where a Canadian court held that the Convention did not apply because the defendant was a resident of Canada although he was incarcerated in Switzerland and ordered substituted service on his lawyer in Canada). 28 Actes et documents de la Dixième session (1964), Tome III, Notification, The Hague, Imprimerie Nationale, 1965, p. 254. 29 Segers and Rufa BV v. Mabanaft GmbH, HR 27 June 1986, NJ 1987, p. 764; RvdW 1986, p. 144, on this decision, see also paras 32 et seq. 30 OLG Köln, 16 August 1988, RIW 1989, pp. 814-815. PURPOSE AND SCOPE OF THE CONVENTION 9

b) Between States Parties to the Convention

20. The Convention applies only between two States Parties.31 However, in some cases it may be doubtful whether a State is indeed Party to the Convention. For example, a Dutch court considered that the Convention does not apply to a transmission of documents for service on a defendant in Northern Cyprus.32

21. The Russian Federation has declared that it will not apply the Convention in relation to States which charge for services rendered (with the exception of those contemplated in Art. 12(2)(a) and (b)). 33 In practice, this declaration has affected the operation of the Service Convention between the United States and the Russian Federation; in this regard, the United States Department of State and several US courts have noted that the Convention is not operational between the United States and the Russian Federation.34

Only Use

31 The list of the States Parties is available on the Hague Conference website. This list is regularly updated. The difference between the terms “Contracting State” and “State Party” is explained in the answer to FAQ No 2. With regard to the People’s Republic of China, it should be noted that the Convention applies to both the Special Administrative Region of Hong Kong (China) and the Special Administrative Region of Macao (China). The relevant declarations are available on the Hague Conference website. On application of the Convention in the Special Administrative Region of Hong Kong (China), see Zhang Xian Chu, “The Extraterritorial Service of Judicial Documents from Hong Kong”, Hong Kong L.J. 1998, vol. 28, p. 356. On Taiwan’s status, see the resolution 2758 (XXVIth Session) adopted by the General Assembly of the United Nations on 25 October 1971, available at < http://www.un.org/documents/ga/res/26/ares26.htm > [last consulted on 20 November 2015]. Official 32 Owel v. Staat der Nederlanden, Rb ‘s Gravenhage, 22 December 1993, NIPR 1995, p. 418. In 1983, the Turkish-held area of Cyprus declared itself the "Turkish Republic of Northern Cyprus", but it is recognized only by Turkey. Attempts to reunite the divided island have failed. 33 The declarations of the Russian Federation are available on the Service Section of the Hague Conference website. For more information on costs, see paras 186 et seq. 34 TheFor US Department of State website ( – Judicial Assistance web page) notes that “[t]he Russian Federation refuses to serve letters of request from the United States for service of process presented under the terms of the 1965 Hague Service Convention or to execute letters rogatory requesting service of process transmitted via diplomatic channels”, available at the following address: < http://travel.state.gov/content/travel/english/legal-considerations/judicial/country.html > [last consulted on 20 November 2015]. See also, Nuance Communications, Inc. v. Abbyy Software House, 626 F.3d 1222 (Fed. Cir. 2010); In re Cyphermint, Inc., 445 B.R. 11 (Bankr. D. Mass. 2011) and Ambriz Trading Corp. and Ilya Lobanov v. URALSIB Financial Corp., 2011 U.S. Dist. LEXIS 133928 (S.D.N.Y. 2011) (acknowledging that Russia unilaterally suspended all judicial co-operation with the United States in civil and commercial matters and, as a result, courts have granted alternative service on Russian defendants pursuant to Fed. R. Civ. Pro. 4(f)(3)). But see Owen v. Sports Gymnastics Federation of Russia, 2012 WL 346661 (D. Me. 2012) (requiring plaintiff to either make additional attempts to serve defendant in Russia under the Convention, or alternatively, to produce evidence that the dispute between the United States and Russia continues and thus the Convention is not a viable means of service). 10 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER I

Extensions to overseas and other territories

22. According to Article 29(1), a State may extend the Convention to territories “for the international relations of which it is responsible”. France, for example, has declared that, in the absence of a declaration to the contrary, the Convention applies to the entire territory of the French Republic.35 Thus, besides Metropolitan France and the Overseas Departments (French Guyana, Guadeloupe, Martinique, Mayotte, Réunion), the Convention also applies to all of the other French overseas territories. The Netherlands have extended the Convention to . The United Kingdom has extended the Convention to , , the , the , , the of ,36 the , Jersey, , Pitcairn, , the , and the Virgin Islands.37 The United States has extended the Convention to the Commonwealth of the .38 Similarly, Australia has done so with respect to the Ashmore and Cartier Islands, the Australian Antarctic Territory, Christmas Island, the Cocos Islands, the Coral Sea Islands, Heard Island and McDonald Islands and Norfolk Island.

Only c) Natural and legal persons, State agencies and States

23. It should be noted that the Convention is applicable not only to service upon natural or legal persons in the private law sense, but also upon legal persons in the public law sense, upon States, including a government, a governmentalUse agency or any person acting for a State, consular or diplomatic agent, or a State-owned company or upon a territorial unit of a State. It is not possible from either the record of the negotiations or the wording of the Convention to deduce that the Convention is applicable only to private persons, as was notably asserted by Germany, when it was inferred that service upon a State or a government falls outside the scope of the Convention.39 The Supreme Court of the Netherlands (Hoge Raad) therefore correctly determined the Convention to be applicable when service is to be effected upon a foreign State.40 Courts in the United States

35 See the Notice (CirculaireOfficial) from the French Ministry of Justice, mentioned supra in note 16. For example, in Int’l Maritime Services Pty Ltd v. PDG SNA Tuhaa Pae [2013] FCA 92, the Federal Court of Australia used the Convention to transmit documents for service in French Polynesia. 36 The includes a number of islands in addition to Guernsey: , , , , . Furthermore, as the Isle of Brecqhou is politically part of Sark, the Convention also applies to Brecqhou. 37 For The UK had also extended the Convention to other territories, which in the meantime achieved independence. Some of these newly independent States either declared that they consider themselves bound by the Convention or acceded to the Convention: , , Saint Vincent and the Grenadines, and the . The Convention thus is in force for these States. The following States, however, have neither declared to be bound by the Convention nor acceded to it (and thus the Convention is not in force for them): Fiji, the Gilbert Islands and the Central and Southern Line Islands (now Kiribati), Saint Christopher and Nevis (now Saint Kitts and Nevis), Saint Lucia, British Solomon Islands (now the Solomon Islands), and the Ellice Islands (now Tuvalu). 38 For more details on all these extensions, see the Hague Conference website. 39 See T. Bischof (op. cit. note 11), pp. 246-247; B. Ristau, International Judicial Assistance (Civil and Commercial), Washington, D.C., International Law Institute, Georgetown University Law Center, Vol. I, Part IV, 2000 Revision, pp. 154-156. 40 Service of a Dutch “dagvaarding” (originating summons) in the United States of America must be effected in accordance with the Convention; VS v. Delsman, HR, 3 October 1997, NJ 1998, p. 887 . PURPOSE AND SCOPE OF THE CONVENTION 11

also considered service upon Turkey and to be valid when addressed to the Central Authority of those States.41 A US court reached the same result when considering a case relating to service of documents upon a head of State.42

24. The Central Authority of the requested State may refuse to effect the request for service if it considers that doing so would interfere with the sovereignty or the security of the requested State (Art. 13, see paras 220 et seq.). In such a case, the decision is generally made in accordance with the rules of State immunity.43

The applicability of the Service Convention to service upon a foreign State or State official

25. Importantly, where service is to be effected upon a foreign State or State official, the Convention would apply because there would typically be a need to transmit a document abroad. Accordingly, the channels of transmission provided for in the Service Convention must be used (the Convention is exclusive, see paras 50 et seq.). In these types of cases, documents may be transmitted, for instance, via the Central Authority or via diplomatic channels under Article 9(2) of the Convention (see paras 239 et seq.).44 It should be noted that service on a State through diplomatic channels Onlyconstitutes one of the “exceptional circumstances” under which this means of transmission remains in conformity with the Convention (Art. 9(2)).45

26. In practice, Contracting States have had recourseUse to the Service Convention to forward requests for service upon States or State officials via diplomatic channels under Article 9(2) of the Convention or via the Central Authority channel (albeit in some cases without success).46 Others have resorted to diplomatic channels under customary international

41 Ohntrup v. Kurumu, 1992 U.S. Dist. LEXIS 271 (E.D. Pa. 1992), see also B. Ristau (op. cit. note 39), pp. 155-156, Scheck v. the Republic of Argentina, 2011 WL 2118795 (S.D.N.Y. 2011) (concluding that service was proper on Argentina although no Certificate of service had been received because plaintiffs had satisfied the Art. 15 requirements). Accordingly, US courts have followed the same guidelines when dealing with service upon the special “designated authorities” appointed by the United KingdomOfficial to receive service on its Overseas Territories. See, e.g., Richardson v. Attorney General of the , WL 4494975 (D.V.I. 2013) (concluding that service was improper on the British Virgin Islands where the Convention was applicable but the summons and complaint had not been transmitted through the ”designated authority” of that territory, the “Registrar of the Supreme Court”). 42 Devi v. Rajapaksa, 2012 WL 309605 (S.D.N.Y. 2012) (holding that the Service Convention must be usedFor to effect service upon the president of and noting that a formal effort to serve the defendant through the Convention will ensure that the defendant has actual notice of the suit. Subsequently, the Department of State filed a suggestion recognising and allowing the immunity of the president of Sri Lanka while in office and on that basis, the court dismissed the action, see on appeal, Devi v. Rajapaksa, 2012 WL 3866495 (S.D.N.Y. 2012)). 43 See in particular T. Bischof (op. cit. note 11), p. 247. 44 In the United States, service upon a foreign State or a political subdivision of a foreign State must be made in accordance with the Foreign Sovereign Immunities Act, which provides for four exclusive and hierarchical methods of service (28 U.S.C. § 1608). For more information, see D. Epstein, J. Snyder & C.S. Baldwin IV, International Litigation: A Guide to Jurisdiction, Practice, and Strategy, 3rd ed., New York, Transnational Publishers, Inc., 2002, § 7.15. 45 T. Bischof (op. cit. note 11), p. 247, note 45. 46 In Gurung v. Malhotra, 279 F.R.D. 215 (S.D.N.Y. 2011), a US court ordered alternative service on a State official by e-mail because the Central Authority of the requested State refused to execute 12 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER I

law.47 One State has made an official declaration stating that it is highly desirable that service upon its State and State officials be transmitted by diplomatic channels.48

27. At its 2009 meeting, the Special Commission noted “some States Parties have reported difficulties using the main channel of transmission to serve documents upon another State Party, an official of another State Party or State-owned companies” and encouraged States Parties to inform the Permanent Bureau about their practices in this regard.49 As of this new edition of the Handbook, no such information has been received.

28. Among the issues that may arise when attempting service on government entities,50 and Embassies or Consulates is whether they are a separate juridical entity that may be served with documents, or whether the relevant State should be served instead. Under general principles of international law, however, it is accepted that Embassies and Consulates cannot be served directly with documents because of the inviolability and immunity of their premises. Accordingly, in such cases, service must be effected via the Ministry of Foreign Affairs of the relevant State.51

B. In all cases “where there is occasion to transmit a […] document” Only

29. According to Article 1(1), the Convention “shall apply in all cases […] where there is occasion to transmit a […] document for service abroad”. The Convention, however, does not specify when there is occasion to transmit a document abroad. This raises two distinct questions. First, which law determines whether or not a documentUse has to be transmitted abroad for service: the Convention itself, the law of the forum, or any other law? Secondly, if, under the relevant law, a document does indeed have to be transmitted abroad for service, do the channels of transmission provided for by the Convention necessarily have to be applied? These two questions correspond to two different stages that need to be distinguished when examining the applicability of the Convention. They will therefore be considered separately and in the chronological order in which they arise. Beforehand, however, the relevant terminology needs to be clarified.

Official the request on Art. 13 grounds. The court further noted that diplomatic immunity is considered to be a “substantive” defence and courts may properly review questions of immunity once service has been completed. 47 See responses to Questions Nos 25 and 26 of the 2008 Questionnaire. 48 SeeFor the declaration of the Russian Federation available on the Service Section of the Hague Conference website. 49 See C&R No 27 of the 2009 SC. 50 In the United States, service upon an agency or instrumentality of a foreign State can be made according to the following hierarchical methods: in accordance with a special arrangement for service in an agreement between the parties or by delivering a copy of the summons and complaint either to an officer, a managing or general agent of the agency or instrumentality, or in accordance with an applicable international convention, or by letter rogatory, or as directed by the court. See, 28 U.S.C. § 1608(b) of the Foreign Sovereign Immunities Act. For futher information, see D. Epstein, J. Snyder & C.S. Baldwin IV (op. cit. note 44), § 7.15[3] and A.F. Lowenfeld, International Litigation and Arbitration, 2nd ed., St. Paul, Minn., American Casebook Series, West Group, 2002, pp. 628-635. 51 See Art. 22 of the Vienna Convention of 18 April 1961 on Diplomatic Relations and Art. 31 of the Vienna Convention of 24 April 1963 on Consular Relations. For further commentary on this point, see D. Gauthey & A.R. Markus, L’entraide judiciaire internationale en matière civile, Berne, Stämpfli Editions SA, 2014, pp. 160-161. PURPOSE AND SCOPE OF THE CONVENTION 13

a) Terminology

30. In addressing the questions raised above, the legal literature often uses blurred and incoherent terminology, which either fails to properly distinguish the two stages in the analysis of the Convention’s applicability or uses different terms for the same stage. As a result, it is often not clear what is meant by expressions such as the Convention is “binding” or “non-binding”, “exclusive” or “non-exclusive”, “mandatory” or “non-mandatory”, or how it “relates” to national or domestic law. In order to avoid further confusion, this Handbook suggests using the following terminology:

– the question of which law determines whether or not a document has to be transmitted abroad for service, and, in particular, whether this issue is left to the Convention itself or the law of the forum, will be examined under the heading of whether or not the Convention is of mandatory character;

– if, under the relevant law, a document has to be transmitted abroad for service, the question of whether or not the channels of transmission provided for by the Convention are the only channels available will be examined under the heading of whether or not the Convention is of exclusive Onlycharacter.

b) Non-mandatory character of the Convention

(1) The problem and two key judgments Use

31. Opinion is divided as to the first question raised above. Which law determines whether or not a document has to be transmitted abroad for service? Does the Convention itself determine that question? If not, which law is it? Is it the law of the forum? Alternatively, does the Convention have to be applied whenever an addressee is located in another State Party?

32. In the 1980s, two Supreme Courts ruled on this crucial issue. The first to consider the question was the Supreme Court of the Netherlands (Hoge Raad) in the Mabanaft case.52 This case related to a change in the Code of Civil Procedure of the Netherlands introduced in 1985 and which allowed the service of notice required upon appeal of a lower court judgment to be Officialmade upon the attorney at whose office the addressee had elected domicile in the lower court proceedings. The court had to determine whether this change applied only to strictly domestic cases or whether it also applied when the addressee resided abroad. The Court held that the issue of whether a document needed to be transmitted abroad for service must be examined and determined according to the law of the forum. It also held, however, that the amendment of the Dutch procedural law was not intended to displace Forthe application of the Service Convention, and accordingly that the addressee, a company having its head office in Germany, should benefit from the protection provided by Article 15 of the Convention.

33. The same conclusion – i.e., that the law of the forum determines whether or not a document is to be transmitted abroad for service – was reached by the Supreme Court of the United States in the case of Volkswagen Aktiengesellschaft v. Schlunk.53 After a traffic accident in which his parents were killed, Mr Schlunk brought before

52 Segers and Rufa BV v. Mabanaft GmbH (op. cit. note 29). 53 486 U.S. 694; 108 S. Ct. 2104 (1988); I.L.M. 1988, p. 1093, annotated in: Am. J. Int’l L. 1988, p. 816; IPRax 1989, p. 313 [hereinafter referred to as the Schlunk case or decision]. 14 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER I

the Illinois courts a claim in damages based on product liability against Volkswagen of America (VWOA), a wholly-owned subsidiary of the German car manufacturer Volkswagenwerk Aktiengesellschaft (VWAG) and incorporated under New York law.

34. The plaintiff subsequently filed an amended claim, also bringing action against the parent company VWAG. That claim against VWAG was served on VWOA in the United States. The defendant VWAG asserted the nullity of the service on the grounds that it was inconsistent with the requirements of the Convention. The plaintiff’s view, upheld by the Court at first instance and by the Court of Appeals, was based on the principle that VWOA was, owing to the extent of VWAG’s control over its activity, the latter’s agent for service in Illinois, even though it had not been expressly appointed for such a purpose. Since service on VWAG could be effected at VWOA’s address in the United States under Illinois law, the Convention was not applicable.

35. The Supreme Court of the United States held that “[i]f the internal law of the forum state defines the applicable method of serving process as requiring the transmittal of documents abroad, then the Hague Service Convention applies”.54 The Court stated, however, that in the particular case the Convention did not apply on the grounds that, under Illinois law (the law of the forum), VWOA was deemed to be an agent of VWAG for the purpose of receiving service of process directed at the latter, so that a transmission of the claim for service abroad was not required.55 Under the law of the forum, thereOnly was accordingly no need to transmit a document abroad, and therefore no reason to apply the Convention. In their dissenting opinions, some justices considered that the grounds for this decision, the outcome of which they approved, could lead to abuses detrimental to defendants. In their view, the Convention does not confer on each State Party a discretionary power to decide whether or not documents should be served abroad, but on the contrary sets boundaries – though admittedly not clearly definedUse ones – for this power.

36. It is important to stress that the Schlunk case does not allow plaintiffs to resort to service under state law as a way of circumventing the Convention’s requirements; nor does Schlunk stand for the broad proposition that service upon a subsidiary in the US is always effective against a foreign parent corporation. Schlunk merely recognises that “when the law of the forum state deems the local subsidiary as the parent’s agent, then service on the parent can be made locally thereby eliminating the need to transmit documents abroad. In such a case, where no documents need be transmitted abroad, then the Convention, pursuant to its express terms, does not apply”.56

Official

For 54 Ibid. at 700 [our emphasis]. 55 The Court held that “[w]here service on a domestic agent is valid and complete under both state law and the Due Process Clause, our inquiry ends and the Convention has no further implications. […] The only transmittal to which the Convention applies is a transmittal abroad that is required as a necessary part of service. And, contrary to VWAG's assertion, the Due Process Clause does not require an official transmittal of documents abroad every time there is service on a foreign national” (ibid. at 707). 56 US District Court for the Eastern District of Louisiana in Blades v. Illinois Central Railroad, 2003 U.S. Dist. LEXIS 3823 (E.D. La. 2003). For a recent application of the Schlunk decision to a case with similar facts, see also Rubicon Global Ventures, Inc. v. Chongquing Zongshen Group Import/Export Corp., 494 F. App’x 736 (9th Cir. 2012) (finding the Convention inapplicable where a Chinese corporation and its American entity “were so closely related” that the latter was deemed the foreign corporation’s agent as a matter of law, although it had not been formally designated as such). PURPOSE AND SCOPE OF THE CONVENTION 15

(2) The 1989 Special Commission on the practical operation of the Service Convention

37. The Mabanaft and Schlunk decisions were discussed at length during the Special Commission on the practical operation of the Service and Evidence Conventions held in 1989. The Report of the meeting summarises the discussions as follows:

“The principle that the forum is to decide this question [i.e., whether documents should be transmitted for service abroad] under its own law was broadly accepted, although the danger of permitting domestic service upon a person who had not been expressly designated as an agent to receive service of process was recognized. Such service might not fulfil the purposes of the Convention which were to assure timely notice of the legal action to the person to be served”.57

38. Certain experts expressed regrets at the outcome of the Schlunk ruling, to wit, that the Convention was not applicable. The Commission’s view, however, was that the practical impact of that ruling on subsequent cases was likely to be limited. Only

(3) Historical account of the negotiations of the Convention

39. The approach adopted by the Netherlands and United States Supreme Courts, together with the 1989 Special Commission, appears to be in line with the history of the negotiations leading to the adoption of the Convention. TheUse Report on the work of the Special Commission mandated to prepare the preliminary draft Convention provides a clear explanation:

“Also, it was felt that the issue of whether the Convention should be applied in a particular case is indeed determined by the law of the court seized, and it would be unwise under this condition to limit the possibilities available to the judge in possession of the case”.58

40. This position was confirmed during the Diplomatic Session in 1964 when several delegations expressed themselves in favour of it: Official “This Convention is applicable in all cases where, according to the law of the requesting State, transmission abroad for service is required […].”59

41. The Rapporteur also emphasised once again that “it should be left to the requesting State Forto determine whether a document is to be served abroad”.60

57 “Report on the work of the Special Commission of April 1989 on the operation of the Hague Conventions of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters”, p. 8 (available on the Hague Conference website; this Report was also published in (1989) 28 I.L.M., p. 1561) [hereinafter “Report of the 1989 SC”], para. 13. 58 Report of the 1964 SC (op. cit. note 25), p. 81 [translation by the Permanent Bureau and our emphasis]. 59 “Procès-verbal No 3”, Proposal Puhan, in Actes et documents de la Dixième session (1964), Tome III, Notification, p. 167 [translation by the Permanent Bureau and our emphasis]. This proposal was followed by an intervention in the same sense by Mr Loeff. 60 “Procès-verbal No 8”, in ibid., p. 254 [translation by the Permanent Bureau]. 16 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER I

(4) National practice

42. In the Netherlands, the principle laid down by the Supreme Court (Hoge Raad) in the Mabanaft case has not been challenged: when a party elects domicile in the Netherlands for the purpose of service, the Convention does not apply, even if that party lives or is established in another State Party to the Convention.61 In a subsequent case, however, the Supreme Court laid down stricter requirements for the election of domicile: the latter must have been made in advance, expressly and in writing.62 In Australia, the Supreme Courts of the two most important state jurisdictions, Victoria and New South Wales, have confirmed that the Convention does not address or comprise substantive rules relating to the actual service of process, and have proceeded to apply the law of the forum in determining whether there is occasion to transmit a document abroad.63 Similarly, Canadian courts have had recourse to the lex fori to determine whether there is occasion to transmit a document abroad and whether the Service Convention applies.64

43. The Schlunk decision has generally been followed by the courts in the United States. Most courts have relied on the relevant rules applicable in their respective fora to determine whether or not a transmission of documents for service abroad was required.65 In most cases, that question has been resolved in the affirmative, and the Convention has been held to 66 Only apply. For example, the Superior Court of Delaware held that “[s]ervice upon the domestic agent alone, Delaware’s Secretary of State, without sending notice to the nonresident defendant by registered mail, is not valid or complete under either [the relevant Delaware statute, i.e., in this case Chapter 10 Delaware Code § 3112, which addresses service of process on nonresident operators of motor vehicles]Use or the Due Process Clause of

61 Wifac NV v. van Meerten, Hof Amsterdam, 21 December 1989, NJ 1991, p. 485. In addition, Art. 63 of the Netherlands Code of Civil Procedure now expressly provides the possibility of service at the offices of the lawyer in charge of the previous proceedings, in the event of objection, appeal, or appeal on a point of law in connection with that decision. 62 Nieuwersteeg v. Colonia Versicherungen AG, HR 2 February 1996, NJ 1997, p. 26. 63 See Schneider v. Caesarstone Australia Pty Ltd [2012] VSC 126 (Supreme Court of Victoria) and Gloucester (Sub-Holdings 1) Pty Ltd v. Chief Commissioner of State Revenue [2013] NSWSC 1419 (Supreme Court of New South Wales). In Davenport & Rattray [2012] FMCAfam 1097, the Federal Magistrates Court (nowOfficial known as the Federal Circuit Court of Australia) had the occasion to confirm that “[t]he law of the forum state determines whether or not a document has to be transmitted abroad for service in the other State” and that as such, “the Convention is not mandatory”. See also note 92. 64 See, e.g., Zaniewicz v. Yungui Haixi Corp., 2012 ONSC 4904 and Gray v. SNC-Lavalin Group Inc., (op. cit. note 27). In both cases, the courts held that the Service Convention did not apply because there was no need to transmit the documents to be served abroad and ordered substituted service on an Forauthorised agent in Canada and on the defendant’s lawyer, respectively. See also note 92. 65 Service of process in a federal action is governed by Fed. R. Civ. Pro. 4. Pursuant to Fed. R. Civ. Pro. 4(e), a federal court may look to either a federal statute or to the law of the state in which it sits (which may or may not be a “long-arm” statute) to determine whether a defendant is amenable to service of process outside of the state. 66 See, e.g., Weinstein v. Volkswagen of America, 1989 U.S. Dist. LEXIS 3809 (E.D.N.Y. 1989); McClenon v. Nissan Motor Corp., 726 F. Supp. 822 (N.D. Fla. 1989); Raffa v. Nissan Motor Co., 141 F.R.D. 45 (E.D. Pa. 1991); Borschow Hospital & Medical Supplies, Inc. v. Burdick-Siemens Corp., 143 F.R.D. 472 (D.P.R. 1992); In re Hunt's Pier Associates, (op. cit. note 27); Golub v. Isuzu Motors, 924 F. Supp. 324 (D. Mass. 1996); Bowers v. Wurzburg, 519 S.E.2d 148 (W. Va. 1999); Schiffer v. Mazda Motor Corp., 192 F.R.D. 335 (N.D. Ga. 2000); Broad v. Mannesmann Anlagenbau, A.G., 10 P.3d 371 (Wash. 2000); Denlinger v. Chinadotcom Corp., 2 Cal. Rptr. 3d 530 (Cal. Ct. App. 2003); Uppendahl v. American Honda Motor Co., 291 F. Supp. 2d 531 (W.D. Ky. 2003); Cupp v. Alberto-Culver USA, Inc., 2004 U.S. Dist. LEXIS 4182 (W.D. Tenn. 2004); Loeb v. First Judicial District Court, 309 P.3d 47 (Nev. 2013); Norrenbrock Co., Inc. v. Ternium Mexico, S.A. De C.V., 2014 WL 556733 (W.D. Ky. 2014). PURPOSE AND SCOPE OF THE CONVENTION 17

the Fourteenth Amendment”.67 The Court added: “Service upon the Secretary is as good as personal service upon the defendant in-state [provided] the plaintiff [sends] by registered mail copies of the required documents and notice that they have been served upon the Secretary of State. […] It is clear that the statute creates a conditional approval of sorts, that service upon the Secretary is effectual if, and only if, the plaintiff makes the required mailing to the defendant”.68 With regard to the due process requirement, the Court held that service upon the Secretary of State alone, without the subsequent mailing to the addressee, would not satisfy due process: “Due process requires that the defendant receive ‘notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections’. […] It is obvious that merely serving the Secretary of State, without the necessary mailing to the nonresident defendant, will not apprise the defendant of the pendency of the action”.69 The Court thus held that a transmission abroad was required and, consequently, that the Convention was applicable. In another case also involving a nonresident operator of a motor vehicle, the United States District Court for the Southern District of West Virginia (Parkersburg Division) reached the same conclusion, holding that the relevant West Virginia Code section requires the transmission of documents in order to effect service of process on a nonresident operator.70 Consequently, the Court held that the Convention was applicable. Another example is provided by the United States District Court for the Northern District of Texas (Dallas Division), which held that “[p]roperly read”,Only the relevant provisions of the Texas Civil Practice & Remedies Code “allo[w] the secretary of state to serve as a defendant’s agent for service of process provided that he forwards the service to the defendant as required by the statute”.71 The Court then examined whether the transmission abroad, that had been effected, complied with the Convention.72 On the other hand, when the relevant rules applicable in the forum did not require a transmission of documents for service abroad, courts have held the Convention not to be applicable.73 Use

67 Quinn v. Keinicke, 700 A.2d 147, 154 (Del. Super. Ct. 1996). 68 Ibid. 69 Official Ibid. 70 Randolph v. Hendry, 50 F. Supp. 2d 572, 575 (S.D. W. Va. 1999); the relevant provision is § 56-3-31. See also Davies v. Jobs and Adverts Online, 94 F. Supp. 719 (E.D. Va. 2000). 71 Paradigm Entertainment, Inc. v. Video Systems, Co., 2000 WL 251731 (N.D. Tex. 2000); Tex. Civ. Prac. & Rem. Code § 17.044(a)(1) and (b). See also Kim v. Frank Mohn A/S, 909 F. Supp. 474 (S.D. Tex.For 1995); Alternative Delivery Solutions v. R.R. Donnelley & Sons Co., 2005 U.S. Dist. LEXIS 15949 (W.D. Tex. 2005). 72 See also Dupont de Nemours v. Rhodia, 197 F.R.D. 112, 123 (D. Del. 2000), where the Court stated that “[u]nder § 3104(d) of Delaware’s long arm statute, service is complete only if the plaintiff sends ‘by registered mail to the nonresident defendant […] a notice consisting of a copy of the process and complaint served upon the Secretary of State […]’”. The Court concluded that this provision necessarily requires a transmission abroad and thus implicates the Convention. Similarly, in In re Hayes Lemmerz Int’l, Inc., 271 F. Supp. 2d 1007, 1009 (E.D. Mich. 2003), the Court held that the plaintiffs did not validly serve process on German defendant as the Fed. R. Civ. Pro. and Delaware law required the mailing of the pleadings to the defendant’s residence, which triggered the application of the Service Convention, and the plaintiffs had not complied with this requirement. 73 See, e.g., Kawasaki v. Guam, 1990 WL 320758 (D. Guam 1990); Apollo Technologies Corp. v. Centrosphere Industrial Corp., 805 F. Supp. 1157, 1189 (D.N.J. 1992); Daewoo Motor America, Inc. v. Dongbu Fire Insurance Co., Ltd., 289 F. Supp. 2d 1127 (C.D. Cal. 2001); Eto v. Muranaka, 57 P.3d 413 (Haw. 2002); Rose v. Deer Consumer Products, Inc., 2011 WL 6951969 (C.D. Cal. 2011). 18 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER I

Service on a domestic subsidiary of a foreign corporation

44. While it is true that service of summons on an agent of a foreign defendant remains of great practical importance in the United States,74 it has to be stressed that, depending on the circumstances, service on an agent is acceptable only if a sufficiently close link between the agent and the foreign addressee of the document is established. This, obviously, is a major difference compared to notification au parquet, as this latter form of service disregards any links that the foreign addressee may or may not have with the forum.75

45. Numerous cases have addressed the question of whether or not a domestic subsidiary of a foreign corporation will be deemed to be the “agent” or alter ego of the foreign parent for service of process purposes. For example, in Chung v. Tarom, S.A., et al.,76 a Court addressed the question of whether the service of a summons and complaint on the domestic subsidiary of a French corporation would be effective service on the French parent. Citing the Schlunk decision, the Court first noted that “[i]f […] service of process is accomplished entirely within the United States in accordance with state law and the Due Process clause, as is alleged in this case, then the service provisions of the Hague Convention do not apply”.77 The Court then addressed the question of whether the French corporation’s subsidiary would be deemed to be its corporate parent’s agent or alter ego for purposes of service of process. Recalling the general rule, accordingOnly to which the mere existence of a parent-subsidiary relationship is insufficient to establish the close ties necessary for a subsidiary to be deemed a parent’s agent for the service of process, the Court ultimately determined that the French parent exercised insufficient control over its domestic subsidiary to allow the subsidiary to be deemed an agent or alter ego of the parent. The Court thus concluded that the Service ConventionUse had to be applied.78 In other cases,

74 Fed. R. Civ. Pro. 4(h)(1) allows for service on a foreign corporation where service could be effected in the United States on the corporation’s “officer, managing or general agent, or any other agent authorized by appointment or by law to receive service of process”. This means that a foreign corporation may be amenable to service in the United States, provided that service can be effected on an officer or agent of that corporation who is located within the United States. If no subsequent transmission to the foreign defendant is required, the Convention does not apply. 75 On notification au parquet, see paras 8-11. 76 990 F. Supp. (N.D. Ill. 1998), 581. 77 Ibid. at 584, n. 2. TheOfficial same conclusion was reached, e.g., in Melia v. Les Grands Chais de France, 135 F.R.D. 28 (D.R.I. 1991); Sheets v. Yamaha Motor Co., 891 F.2d 533 (5th Cir. 1990); in support, Rhodes v. J.P. Sauer & Sohn, Inc., 98 F. Supp. 2d 746 (W.D. La. 2000). 78 Chung v. Tarom, S.A., et al. (op. cit. note 76) at 584-587. See also McClenon v. Nissan Motor Corp., (op. cit. note 66); Stone v. Ranbaxy Pharmaceuticals, Inc., 2011 WL 2462654 (S.D.N.Y. 2011); Bays et al. v. Mill Supplies, Inc. et al., 2011 WL 781464 (N.D. Ind. 2011); Fleming v. Yamaha Motor Co., 774 F. Supp. 992 (W.D. Va. 1991), finding service of process on a domestic subsidiary to be inadequate absentFor sufficient evidence demonstrating that the parent and subsidiary failed to maintain separate corporate identities; Blades v. Illinois Central Railroad (op. cit. note 56), stating that the plaintiffs did not submit evidence suggesting that the parent and its subsidiary “have done anything so as to deprive themselves of the legal distinctness to which they are otherwise entitled”. See also Int’l Cultural Property Society v. Walter de Gruyter & Co., 2000 U.S. Dist. LEXIS 9447 (S.D.N.Y. 2000), laying down the conditions on which a branch office may be treated as an agent for service of a foreign company. In this latter case, the Court held that the plaintiff did not meet its burden of alleging facts sufficient to support a prima facie showing that the New York branch of the defendant was the foreign parent’s general agent in New York or was so dominated by the foreign parent as to be a “mere department” of the parent. Therefore, service on the New York branch was held to be insufficient to effect service on the parent in Germany. Since service could not be effected and completed under state law, the Court concluded that a transmission for service abroad was required and thus that the Service Convention was applicable. Similarly, in Cephalon, Inc. v. Sun Pharmaceutical Industries, Inc., 2011 WL 6130416 (D.N.J. 2011) the Court held that service on the subsidiary was insufficient by virtue of an alter ego theory because the plaintiff failed to establish PURPOSE AND SCOPE OF THE CONVENTION 19

however, courts in various US jurisdictions have found there to be an “agency” or “alter ego” relationship between a foreign parent and its U.S.-based subsidiary, so as to allow the U.S.-based subsidiary to be served on behalf of its foreign parent.79 Similarly, US courts have also found that in certain circumstances US parent corporations could be served on behalf of their foreign subsidiaries.80

46. Some States plead for the mandatory nature of the Convention. This is the case in particular for Switzerland, which at the time of deposit of its instrument of ratification made a general declaration relating to Article 1 to stress that, in its view, the Convention was to apply on an “exclusive” basis (i.e., in the terminology suggested by this Handbook: on a “mandatory” basis) among the States Parties.81 In Germany, opinion is divergent. In its brief as amicus curiae in the Schlunk case, the German Government pleaded for the Convention’s mandatory character.82 The same Government, however, had stated the opposite view a decade earlier in an official document (Denkschrift) relating to the Service Convention and the Evidence Convention.83 Lastly, the German Constitutional Court has held that the Convention applies only where domestic law requires service of process abroad (non-mandatory character of the Convention).84

Only

that the parent has substantial control over the subsidiary’s operations or sales; that the parent has the power to appoint the president of the subsidiary; and that the subsidiary is “doing business in the forum that would otherwise have to be done in theUse forum by the parent”. Therefore, the Court found that the Service Convention applied. 79 See, e.g., King v. Perry & Sylva Machinery Co., 766 F. Supp. 638, 640 (N.D. Ill. 1991), finding that service on a Japanese corporation was accomplished by service on its US subsidiary because the subsidiary was deemed an “involuntary agent” of its Japanese parent; United States v. Int’l Brotherhood of Teamsters, 945 F. Supp. 609 (S.D.N.Y. 1996), recognising both the “agency” and “alter ego” theories of service, but declining to exercise jurisdiction because the plaintiff had not presented sufficient evidence to support either theory. See also New York Marine Managers, Inc. v. M.V. Topor-1, 716 F. Supp. 783 (S.D.N.Y. 1989); Doty v. Magnum Research Inc., 994 F. Supp. 894 (N.D. Ohio 1997); Sankaran v. Club Med, Inc., 1998 U.S. Dist. LEXIS 11750 (S.D.N.Y. 1998); Primary Succession Capital, LLC, v. Schaeffler, KG, 2010 WL 4236948 (S.D.N.Y. 2010). 80 See, e.g., Acapalon Corp. v. Ralston Purina Co., 1991 Mo. App. LEXIS 1322 (Mo. Ct. App. 1991); see also Frazer v. Johnson Controls,Official Inc., 2013 WL 5519831 (N.D. Ala. 2013), finding that the plaintiff failed to show that the American parent corporation was an agent on behalf of its Mexican subsidiary for the purpose of accepting service, and thus, because the summons and complaint were required to be transmitted abroad to Mexico, the Convention applied. 81 The contents of that declaration are as follows: “Switzerland takes the view that the Convention applies exclusively to the Contracting States. In particular, it believes that documents which are effectivelyFor addressed to a person resident abroad cannot be served on a legal entity who is not authorised to receive them in the country in which they were drawn up without derogating from Articles 1 and 15(1)(b) of the Convention.” The meaning and legal scope of this “reservation” have been queried by Swiss authors; see in particular T. Bischof (op. cit. note 11), pp. 191 et seq. 82 “Brief for the United States as amicus curiae supporting respondent”, Addenda A-D, in Schlunk, (op. cit. note 53), in 108 S. Ct. 2104. The United Kingdom, France and Japan made similar representations to the US Supreme Court. 83 Drucksache des Bundestags Nr. 8/217 of 22 March 1977, p. 41. This view seems to be shared by G. Geimer, Neuordnung des internationalen Zustellungsrechts, Vorschläge für eine neue Zustellungskonvention, Berlin, Duncker & Humblot, 1999, p. 180. For a supporting view of the non-mandatory character of the Convention, see also H. Schack (op. cit. note 12), p. 827. 84 BVerfG, 7 December 1994, NJW 1995, p. 649; RIW 1995, p. 320 (note Morisse, p. 370); IPRax 1996, p. 112 (note Tomuschat, p. 83); EuZW 1995, p. 218 (note Kronke, p. 221); JZ 1995, p. 716 (note Stadler, p. 218); EWiR 1995, p. 161 (note Geimer); IPRspr. 1994 No 160b. See also OLG München, Case number 7 W 3138/86, (judgment dated 30 December 1986), NJW 1987, p. 3086. 20 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER I

47. This brief review of the practice of States Parties seems to confirm, subject to a few exceptions, the non-mandatory character of the Convention. This approach had been expressly accepted by the Special Commission.85 There is no indication that the Convention has been applied less in the aftermath of the Schlunk and Mabanaft rulings. As regards the United States in particular, it seems that the majority of reported court decisions, while following the Schlunk approach, have led to the application of the Convention.

(5) The concept of “due process” – validity of a service clause excluding application of the Convention?

48. In evaluating the validity of service, courts in the United States have also considered whether such service was made in accordance with due process, i.e., if it was performed in a form providing “notice reasonably calculated, under all circumstances, to apprise interested parties of the action and afford them an opportunity to present their objections”.86 It was in the light of the criteria laid down by state law and by the principle of due process that the District Court of Pennsylvania reviewed the validity of a service clause contained in a guaranty agreement, whereby notice could be validly served on two guarantors in Germany at an address in Pennsylvania, even if no notice of that service 87 Only was then given to the guarantors. The District Court held that the German Guarantors had contractually appointed a domestic agent for service of process. The court concluded that “because service at the address in Indianapolis as provided in the guaranty agreements is acceptable under Pennsylvania law and comports with the due process clause, the Service Convention is not implicated”.88

49. While the above decision has to be read againstUse the background of the Schlunk decision, it indirectly also raises the question of whether the parties to a contract may agree to exclude application of the Convention and establish their own regime of service. In civil law systems, such an approach would be rather surprising as rules of procedure (such as those relevant to service) are not subject to variation by the parties to a contract; this applies even more in jurisdictions where service is seen as an act of sovereignty. In other words,

Official

85 See C&R No 73 of the 2003 SC. In particular: “Recalling the conclusions and recommendations of 1989, the SC confirmed the prevailing view that the Convention was of a non-mandatory […] character […]”. The 2003 Special Commission also recalled the fundamental importance of Art. 15, theFor object of which is to ensure that the defendant is actually informed in sufficient time to organise a defence (No 74). C&R No 12 of the 2009 SC. 86 This criterion was laid down in the leading case of the Supreme Court of the United States, Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652 (1950). 87 Pittsburgh National Bank v. Kassir, 153 F.R.D. 580 (W.D. Pa. 1994). The German guarantors had agreed to the following provision: “Any legal action or proceedings with respect to this Guaranty Agreement against the Guarantor may be brought at the option of the Bank in the Federal or State Courts in or of the Commonwealth of Pennsylvania and by execution and delivery of this Guaranty Agreement, the Guarantor hereby accepts, for itself and in respect of its assets, generally and unconditionally the non-exclusive jurisdiction of the aforesaid courts, and hereby authorizes service of process in such jurisdiction in any legal action or proceedings with respect to this undertaking at [the following address], and agrees that failure by any such process agent to give notice of such service of process to the Guarantor shall not impair or affect the validity of such service or any judgment based thereon”. 88 Ibid. PURPOSE AND SCOPE OF THE CONVENTION 21

if the law of the forum provides for service abroad – and thus triggers the applicability of the Convention – the parties are not able to decide otherwise. At the 2003 Special Commission, several experts confirmed that such arrangements would not be allowed in their States; others pointed out, however, that enforcement of a judgment entered pursuant to service performed according to such arrangements would not necessarily be denied as a result. For more information on the interrelation of these clauses and service by electronic means, see paragraphs 100 and 101 of Annex 8 (The use of information technology in the operation of the Service Convention).89

c) Exclusive character of the Convention

50. As regards the second question raised (see para. 30), the Convention’s exclusive character is now undisputed. Thus, if under the law of the forum a judicial or extrajudicial document is to be transmitted abroad for service, the Convention applies and it provides the relevant catalogue of possible means of transmission for service abroad.90 In this sense, the Convention is “exclusive”. The Convention provides for one main channel of transmission (via the Central Authority of the requested State, see paras 111 et seq.), and several alternative channels of transmission (see paras 236 et seq.Only).91 The Convention, however, also allows States Parties to provide for derogatory channels of transmission. There are two types of derogatory channels: those provided in bilateral or multilateral agreements concluded among Contracting States (Arts 11, 24 and 25; see paras 295 et seq. and paras 329 et seq.), and those provided by the domestic law of the State of destination (Art. 19; see paras 300 et seq.).

Use

Official

89 C&R No 77 of the 2003 SC. 90 In Forcontrast, in Alder v. Orlowska, C-325/11, EU:C:2012:824, the Court of Justice of the European Union held that where the person to be served resides in a Member State (other than where the proceedings are taking place) service must be effected in accordance with the 2007 EU Service Regulation. This is so unless the permanent or habitual residence of the addressee is unknown or the person has appointed an authorised representative in the Member State where the judicial proceedings are taking place. The Court noted that national legislation is not best placed to determine in which cases a judicial document has to be served in another Member State as it would prevent any uniform application of the Regulation since Member States may provide for different solutions in this regard. Finally, it ruled that legislation of a Member State that provides that judicial documents are deemed to have been served by placing judicial documents in the case file if that party has failed to appoint an authorised representative to accept service of judicial documents (in the Member State where the judicial proceedings are taking place) is contrary to the Regulation. For commentary on this case, see N. Fricero & G. Payan, Le droit à l’exécution et le droit de la notification et de la signification dans la jurisprudence européenne, Paris, UIHJ Publishing, 2014, pp. 203-208. 91 See also Explanatory Charts 1 and 2 following the FAQ. 22 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER I

The exlusive character of the Convention

51. The exclusive character of the Convention was never really disputed. It has been confirmed by case law92 and by legal scholars,93 as well as by the Special Commission.94 In particular, the 2009 Special Commission noted that the “non-mandatory but exclusive character of the Service Convention has not caused any difficulties in the past five years”. Even States that used and still use the system of notification au parquet have rallied to this view.

C. “[F]or service abroad”

52. The Convention applies when a document is transmitted abroad for “service”. The Convention itself does not define the term “service”. The Convention’s focus is on the transmission of documents from one State to another State; it does not address or comprise substantive rules relating to the actual service of process, nor does it determine the conditions or formalities of that service (see paras 6 et seq.). In otherOnly words, the Convention

92 This is particularly true in the United States, where the question was examined in relation with the supremacy clause in Art. VI of the United States Constitution; in Kadota v. Hosogai, 608 P.2d 68 (Ariz. Ct. App. 1980), an Arizona Court of Appeal held that under the supremacy clause the Convention prevails over inconsistent means of serviceUse provided for under state law. In the leading case of Volkswagenwerk Aktiengesellschaft v. Schlunk (op. cit. note 53), the Supreme Court of the United States confirmed that the Convention applies on an exclusive basis (by employing the term “mandatory” rather than referring to “exclusive means for service”) and therefore prevails over federal or state procedural law in all cases where it is applicable. See also Gebr. Eikhoff Maschinenfabrik v. Starcher, 328 S.E.2d 492 (W. Va. 1985); Kreimerman, et al., v. Casa Veerkamp, 22 F.3d 634 (5th Cir. 1994)). In Canada, several courts have confirmed that the Service Convention is exclusive, noting that this is the prevailing view in their respective provinces. See decisions in Ontario: Pharm Canada Inc. v. 1449828 Ontario Ltd (c.o.b. Trinity Worldwide Services Inc.), 2011 ONSC 4808; Khan Resources Inc. v. Atomredmetzoloto JSC, 2013 ONCA 189; Pitman v. Mol, 2014 ONSC 2551 (following Khan Resources, the Court held that the Convention must be complied with in family law proceedings as well); in support of these decisions (the Court of Appeal of Alberta): Metcalfe Estate v. Yamaha Motor Powered Products Co., Ltd., 2012 ABCA 240. One court in Australia, which joined the Convention in 2010,Official has held that the Convention is “facultative” rather than exclusive: Caswell v. Sony/ATV Music Publishing (Australia) Pty Ltd [2012] NSWSC 986. In that case, a subpoena had been served on a recording company in the United States by e-mail. In response to an application brought by the company seeking to set aside the grant of leave to serve the subpoena, the Supreme Court of New South Wales found that the Service Convention was not relevant, “other than for the purposes of identifying alternative formal methods of transmitting judicial documents”. However, in DavForenport & Rattray (op. cit. note 63), the Federal Magistrates Court subsequently held that “[i]f all th[e] requirements are met [i.e., ‘the document is to be transmitted from one State Party to the Convention to another State Party, for service in the latter […] [a]n address for the person to be served is known […] [t]he document to be served is a judicial or extrajudicial document […] [and t]he document to be served relates to a civil or commercial matter’], the transmission channels provided for under the Convention must be applied”, and that as such, “the Convention is exclusive”. In Portugal, a court held that a domestic code on insolvency could not override the Service Convention and that the Service Convention applied: Lisbon Court of Appeal (Tribunal da Relação de Lisboa), case No 3/2009-6,12 February 2009. The Court further noted that to hold the contrary would be in breach of general rules of international law and the principle that international law prevails over domestic law. See also, in the same sense, Coimbra Court of Appeal (Tribunal da Relação de Coimbra), case No 3327/12.5TBLRA-B.C1, 19 December 2012. 93 T. Bischof (op. cit. note 11), p. 251, who refers, however, to the Convention’s “obligatory” character; B. Ristau (op. cit. note 39), p. 160. 94 C&R No 73 of the 2003 SC; C&R No 12 of the 2009 SC. PURPOSE AND SCOPE OF THE CONVENTION 23

does not specify how service is to be effected under its Articles when documents are being transmitted under the main channel of transmission, nor does it specify how service is to be effected when using the alternative channels of transmission.

Validity of service and meaning of “service”

53. Furthermore, the Convention contains no provisions relating to the validity of service (see, however, Arts 15 and 16). It therefore falls on the court of the State of origin to determine whether service has been validly performed according to the law of the requested State (for requests for service under Art. 5), the law of the State of origin (for service by postal channels under Art. 10(a)) or the law of the State of destination (for transmissions under Art. 10(b) and (c)). This being said, the term “service” generally refers to the delivery of judicial and / or extrajudicial documents to the addressee, of which the degree of formality varies from State to State. There is a wide range of judicial and extrajudicial documents that may be served, the writ of summons being one of the most common (for more information, see paras 76 et seq.).

Only 54. Likewise, the Convention cannot – and does not – determine which documents need to be served. It is a matter for the lex fori to decide if a document needs to be served and which document needs to be served.95 Thus, if the law of the forum states that a notice is to be somehow directed to one or several addressee(s), without requiring service, the Convention does not have to be applied. Use 55. The terms used in the French text are “signifié ou notifié”. The use of the two terms in the French version of Article 1(1), while the English version refers only to “service”, reflects the distinction made between these two terms in States such as France or Belgium. Whereas “signification” means service of the document by a huissier or judicial officer, “notification” consists of service of a document in the cases and forms provided for by law, without involving a huissier.96 Thus, in French the term “notification” is broader and includes the term “signification”, which is a specific form of “notification”. As the common law systems do not make this distinction,97 the term “service” covers both “signification” and “notification”.98

Official

95 See, e.g., P. Volken, Die internationale Rechtshilfe in Zivilsachen, Zurich, Schulthess, 1996, p. 61. See Johns v. van Brunt Motors, Inc., 89 A.D.3d 1188 (N.Y. App. Div. 2011) where the defendant claimed thatFor the service was defective under the Convention, because only a copy of the summons and notice without complaint were served. However, the Court stated that the lack of a copy of the complaint (and only providing a copy of the summons and notice) did not compromise the defendant’s ability to defend that action. Upon the defendant’s request, he received a copy of the complaint and summons in due time. 96 During the negotiations, the proposal from a German delegate to use only the term “signifier” ran up against opposition from the Spanish and Portuguese delegations, as these two countries were unfamiliar with the concept of “signification”. The compromise suggested by Belgium was to fuse those two concepts (Actes et documents de la Dixième session (1964), Tome III, Notification, p. 159). Since then, Portugal has introduced the concept of “signification” into its procedural law. 97 Scots law does, however, make a distinction between “signification” and “notification”. For further details, see R.J. Graveson, “The Tenth Session of the Hague Conference on Private International Law”, ICLQ 1965, Vol. 14, p. 539. 98 Unless stated otherwise, in the French version of this Handbook the term “notification” refers to both these forms of service. 24 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER I

D. “[I]n civil or commercial matters”

a) Preliminary remarks

56. The Convention is applicable “in civil or commercial matters”. These terms, which determine the scope of the Convention’s subject-matter, are not defined in the Convention. The same terms are contained in several other Hague Conventions, in particular the Conventions on Civil Procedure of 1905 and 1954, and in the Evidence Convention. While some Contracting States tend to construe these identical terms more strictly in application of the Evidence Convention than with regard to the Service Convention, the Special Commission has recommended that these terms be applied consistently across both the Service and Evidence Conventions.99

57. Other multilateral or bilateral international instruments also refer to the concept of civil or commercial matters. Illustrations include the European Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms (ECHR) (which in Art. 6(1) refers to “civil rights and obligations”), the American Convention on Human Rights of 22 November 1969 (which in Art. 8(1) refers to “rights and obligationsOnly of a civil nature”), and, in the more specific area of private international law, the Brussels Ia Regulation (which, like its predecessors, uses the expression “civil and commercial matters”), and the 2007 EU Service Regulation (which uses the expression “civil or commercial matters”; on this Regulation, see also paras 337 et seq.). The interpretation of this concept by the Court of Justice of the European Union will be further reviewed below (see para. 74). The concept is also used in the Hague Convention of 30 June 2005Use on Choice of Court Agreements.100

b) The 1977 Special Commission

58. The concept of “civil or commercial matters” was the subject of lively debate both during the drafting of the Convention101 and during the 1977 and 1989 meetings of the Special Commission on the practical operation of the Service Convention. During the 1977 meeting, the experts realised that the interpretation of these terms could diverge significantly from one legal system to another. For instance, several common law countries do not make the civil lawyers’ distinction between private and public law, or at least regard it as having no consequence.Official For those countries, any matter that is not criminal is civil or commercial. In civil law countries, it is customary to exclude criminal, tax and administrative law from civil or commercial matters. In the Egyptian interpersonal system,

For

99 C&R No 40 of the 2014 SC. 100 This Convention uses the expression “civil or commercial matters” (Art. 1(1)). For an analysis of the history of the phrase “civil and / or commercial”, see the “Report of the Special Commission by Peter Nygh and Fausto Pocar”, in Hague Conference on Private International Law, Proceedings of the Twentieth Session (2005), Tome II, Judgments, Cambridge/Antwerp/Portland, Intersentia, 2013, p. 207, (available on the Hague Conference website) replacement of “or” with “and” does not imply a change of the phrase’s meaning. It is certainly not necessary for the matter to be both civil and commercial; though commercial matters frequently involve a civil aspect, certain civil matters have no commercial aspects. 101 The authors of the Convention eventually decided not to deal with this question, leaving its resolution to the States Parties, see the Explanatory Report (op. cit. note 9), pp. 356-366, see also pp. 79-80, 159- 161, 166, 305 and 307. PURPOSE AND SCOPE OF THE CONVENTION 25

issues of personal status are not regarded as civil. Extensive differences also appeared regarding the question of which law should be applied to determine the content of these matters, some countries referring to the law of the requesting State (State of origin), and others to that of the requested State (State of destination).

59. The experts found that, in practice, Central Authorities are very liberal and willing to serve documents that they would not be obligated to serve under the Convention, with a view to being of assistance to their recipients. Most Central Authorities refuse to serve or to have served a document only in cases dealing with criminal or tax matters. In reliance on this finding and realising that it was not possible for them to recommend a uniform solution acceptable to all States, the experts limited themselves to expressing the wish that the Convention be applied in the most liberal possible manner in respect of the scope of its subject-matter.

c) The 1989 Special Commission

60. The Special Commission meeting in 1989, which examined the practical operation of both the Service and Evidence Conventions, again reviewed the issue of theOnly interpretation of the phrase “civil or commercial matters”. Following the 1977 Special Commission, two courts of last resort had ruled on the issue in cases concerning the Evidence Convention:

– in the case of Arcalon v. Ramar,102 the Supreme Court of the Netherlands (Hoge Raad) held that a request for evidence issued by a California bankruptcy court was within the ambit of “civil or commercial matters” for the purposes of the Convention. According to the SupremeUse Court, the Convention’s objective and scope justify an extensive construction of Article 1;

– in its ruling in Re State of Norway’s Application,103 the House of Lords (United Kingdom) had to consider whether a request for evidence, in a case presented as a civil action but involving a claim for inheritance taxes asserted by the State of Norway against the estate of a deceased person, was a “civil or commercial matter”. The House of Lords held that a cumulative system of characterisation should be applied, i.e., the nature of the issue determined according to the law of both the requesting and the requested States. In that case, the action for recovery of taxes was regarded as a civil or commercial matter in both Norway and theOfficial United Kingdom. Accordingly, the request for the taking of evidence lay within the scope of the Evidence Convention’s subject matter.

61. In addition, the experts were informed that a German Central Authority had refused to execute requests for service issued by courts in the United States in liability claims (in particular product liability claims) for the award of punitive damages. The Central ForAuthority considered that the claim for “punitive” damages was not within the scope of “civil or commercial matters”. This practice was discussed during the Special Commission meeting.104 As mentioned in the note to paragraph 7 of the Special Commission Report,

102 HR 21 February 1986, NJ 1987, p. 149; RvdW 1986, p. 50; English translation at I.L.M. 1989, p. 1578. 103 House of Lords, 16 February 1989, All E.R. 1989, p. 745; I.L.M. 1989, p. 693. 104 See Report of the 1989 SC (op. cit. note 57), paras 7-10. 26 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER I

in a decision subsequent to the Special Commission meeting, the Appellate Court (Oberlandesgericht) of Munich (Germany) rejected the position adopted by the Central Authority and held that a claim for “punitive” damages was indeed a civil matter.105

62. After the discussions, the 1989 Special Commission in charge of reviewing the practical operation of the Service Convention and the Evidence Convention adopted the following conclusions as to the “[s]cope of the two Conventions as to their subject-matter”:

“a. The Commission considered it desirable that the words ‘civil or commercial matters’ should be interpreted in an autonomous manner, without reference exclusively either to the law of the requesting State or to the law of the requested State, or to both laws cumulatively. b. In the ‘grey area’ between private and public law, the historical evolution would suggest the possibility of a more liberal interpretation of these words. In particular, it was accepted that matters such as bankruptcy, insurance and employment might fall within the scope of this concept. c. In contrast, other matters considered by most of the States to fall within public law, for example tax matters, would not yet seem to be covered by the Conventions as a result of this evolution. d. However, nothing prevents States Party from applying the Conventions in their mutual relations to matters of public Onlylaw, though not necessarily in an identical manner for both Conventions.”106

63. In this respect, the autonomous interpretation of treaties provided for under Article 31 of the Vienna Convention of 23 May 1969 on the Law of Treaties, a traditional principle of public international law, should be remembered. Since the 1989 Special Commission meeting, a number of courts have ruled on the issue. Use

d) The 2003 Special Commission

64. In the light of the observations relating to the current practice reported above, the 2003 Special Commission (which examined the practical operation of the Service, Evidence and Apostille Conventions) wished to encourage an extensive interpretation of the phrase “civil or commercial matters”, and reaffirmed the conclusions adopted in 1989 under letters a) and b) cited above (see para. 62).107 Official 65. The 2003 Special Commission also added the following conclusions:

“70. […] the SC took note of the fact that while in some States tax issues were considered as falling within the scope of the Convention, in others this was not the case. For71. The SC also noted that in some States party, the Convention had been applied in proceedings relating to the recovery of proceeds of crime. 72. Finally, the SC cautioned that the meaning of ‘civil and commercial’ appearing in other instruments should not be relied on for interpretation without considering the object and purpose of such other instruments.”

105 OLG München, 9 May 1989, published in part in RIW 1989, p. 483; annotation IPRax 1990, p. 157 (Stürner/Stadler). An English translation by B. Ristau of the entire decision has been published in I.L.M. 1989, p. 1570. 106 Report of the 1989 SC (op. cit. note 57), Conclusion No 26 [our emphasis]. 107 C&R No 69 of the 2003 SC. PURPOSE AND SCOPE OF THE CONVENTION 27

e) The 2009 Special Commission

66. The 2009 Special Commission noted that the expression “civil or commercial matters” did not appear to have caused difficulties in the preceding five years and noted that C&R No 69 of the 2003 Special Commission appeared to have been followed.

67. The 2009 Special Commission also added the following conclusions:

“13. […] The SC reaffirms that the words ‘civil or commercial matters’ should be interpreted in an autonomous manner, without reference exclusively either to the law of the requesting State or to the law of the requested State, or to both laws cumulatively. 14. The SC takes the view that a liberal interpretation should be given to the phrase ‘civil or commercial matters’. In doing so, one should focus on the nature of the cause of action and keep in mind that the Convention does not expressly exclude any particular subject matter from the scope of ‘civil or commercial matters’. The SC invites States Parties to encourage their Central Authority to communicate with the forwarding authority when problems of interpretation arise. It recommends that States Parties encourageOnly forwarding authorities to include in their requests for service some information about the nature of the cause of action, in particular where a request may give rise to doubts as to whether it falls within the scope of the Convention.”

f) The 2014 Special Commission Use

68. As with previous meetings, the Special Commission recommended that the term “civil or commercial matters” be interpreted liberally and in an autonomous manner, and helpfully added that this term should be applied consistently across both the Service and Evidence Conventions.108

69. In addition, the Special Commission has welcomed the flexible practice followed by Contracting States of not refusing to execute requests based solely on the entity making the request and to focus instead on the substantive nature of the matter referred to in the request.109 Official

g) Current practice

70. The liberal trend initiated by the Appellate Court (Oberlandesgericht) of Munich (Germany) Forin 1989 has been confirmed. The same Court held in 1992 that an action brought before a United States court for “punitive damages” is within the scope of the Service Convention’s subject-matter, even though the amounts claimed are exorbitant, in its opinion. The disputed merit of the claim cannot serve as an appropriate criterion to distinguish civil matters from those that are matters for criminal law, insofar as claims in damages brought

108 C&R No 40 of the 2014 SC. 109 C&R No 41 of the 2014 SC. 28 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER I

in the United States are frequently not quantified.110 Likewise, the Appellate Court of Celle (Germany) held that a claim for “treble damages” based on the RICO-Act of the United States was a civil matter within the meaning of Article 1(1) of the Convention, and should therefore be served on the defendant in Germany.111, 112

71. Swiss case law seems to be evolving in the same direction.113 The Cantonal Court of Fribourg held that an enforcement instrument is a judicial document for the purposes of the Convention in any event where the prosecution relates to a receivable under private law.114

72. The Supreme Court of the Netherlands (Hoge Raad) reached the same conclusion and held that bankruptcy law was a matter within the scope of the Convention’s subject matter. The Advocate-General’s conclusion, to which the grounds for that ruling expressly refer, is based on an autonomous interpretation of the Convention.115

73. This brief review of recent case law suggests that the recommendations from the meetings of the Special Commission have been followed. The judges and Central Authorities of the States Parties seem more often than not to make an autonomous, or at least liberal, interpretation of the concept of “civil or commercial”. This practice should certainly be encouraged.

74. In this respect, it should be pointed out that several supranationalOnly courts have sought to provide an “autonomous” interpretation of the treaties within their jurisdiction. For instance, the Court of Justice of the European Union, construing the phrase “civil and commercial matters” in the 1968 Brussels Convention (now superseded by the Brussels Ia Regulation) ruled as follows:

“1. In the interpretation of the concept Use‘civil and commercial matters’ for the purposes of the application of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, in particular Title III thereof, reference must not be made to the law of one of the States concerned but, first, to the objectives

110 OLG München, 15 July 1992, IPRax 1993, p. 309, and the cited legal authors and precedents. 111 OLG Celle, 14 June 1996, decision received from the German Central Authority. 112 In United States ex relOfficial Bunk v. Birkart Globistics GmbH & Co., 2010 WL 423247 (E.D. Va. 2010) a US court noted that the Central Authority in Bavaria considered that a claim under the False Claim Act was only a civil or commercial matter in part and therefore, they refused to execute the request for service. The US Court held that in accordance with Art. 4 the authority to decide whether ther request falls withing the scope of the Convention is a matter for the Central Authority of the requested State. 113 Although the case did not concern the application of the Convention, a Basel Court held that a judgmentFor awarding “punitive” damages against the defendant was a civil matter, BJM 1991, p. 31. 114 Cantonal Court of Fribourg, 10 February 1999, decision received from the Central Authority (see also note 117). It seems, however, that this decision is based more on the precedents of the Federal Supreme Court of Switzerland, which considers that prosecution for debts and bankruptcy, based on civil claims, is within the concept of civil or commercial matters, than on a genuine autonomous interpretation of the Convention. However, in Prozess {T 7}, K 18/04, order of 18 July 2006, the Swiss Federal Insurance Tribunal (Tribunal fédéral des assurances) held that claims regarding insurance premiums that are part of the mandatory social medical insurance are considered to be within the scope of public law and are not “civil or commercial matters”. The Court reasoned that this type of insurance is financed, like taxes, by global contributions and therefore, the Service Convention does not apply. It should be noted that the message from the Swiss Federal Council of 8 September 1993 relating to the ratification of the Service Convention recommends the autonomous interpretation of the Convention, in accordance with Art. 31 of the Vienna Convention of 23 May 1969 on the Law of Treaties and the recommendation from the 1989 Special Commission. 115 HR 15 June 2000, NJ 2000, p. 642. PURPOSE AND SCOPE OF THE CONVENTION 29

and scheme of the Convention, and secondly, to the general principles which stem from the corpus of the national legal systems; 2. Although certain judgments given in actions between a public authority and a person governed by private law may fall within the area of application of the Convention, this is not so where the public authority acts in the exercise of its powers. Such is the case in a dispute which concerns the recovery of charges payable by a person governed by private law to a national or international body governed by public law for the use of equipment and services provided by such body, in particular where such use is obligatory and exclusive. This applies in particular where the rate of charges, the methods of calculation and the procedures for collection are fixed unilaterally in relation to the users.”116

75. The absence of a supranational court as “guardian” of the uniform interpretation of the Service Convention emphasises the crucial importance of communication and exchanges between the authorities in charge of the Convention’s application; such interaction is a basic condition to secure, as far as possible, a harmonious implementation of the Convention. Autonomous interpretation remains the best way of achieving this goal.

E. Judicial and extrajudicial documents Only

a) Introduction

Use 76. The Convention applies to both judicial and extrajudicial documents (Art. 1(1)). Article 17 specifies that “extrajudicial documents emanating from authorities and judicial officers of a Contracting State may be transmitted for the purpose of service in another Contracting State by the methods and under the provisions of the present Convention”. It should be noted, however, that not all the provisions of the Convention are applicable by analogy to extrajudicial documents. Most importantly, Articles 15 and 16 of the Convention refer only to judicial proceedings.

77. Judicial documents for the purposes of the Convention are instruments of contentious or non-contentious jurisdiction, or instruments of enforcement.117 Judicial documents include writs of summons,118 the defendant’s reply, decisions and judgments delivered by a member of aOfficial judicial authority, as well as witnesses summons (subpoenas),119 and requests for discovery of evidence sent to the parties even if these are orders delivered

116 For Judgment in LTU Lufttransportunternehmen GmbH & Co. KG v. Eurocontrol, C-29/76, EU:C:1976:137. 117 In a decision dated 10 February 1999 (op. cit. note 114), the Cantonal Court of Fribourg (Switzerland) held that an act of prosecution (service of a notice of attachment on a debtor domiciled in France) is treated as a judicial document for the purposes of the Convention, at least when the prosecution relates to a receivable under private law (ruling received from the Central Authority; see also note 114). 118 The Appellate Court (Oberlandesgericht) of Munich (Germany) held that a United States “cross- complaint”, i.e., pleadings entered by a defendant against another defendant, is to be likened to a writ of summons and should therefore be served in accordance with the Convention, OLG München, 17 November 1994, RIW 1995, p. 1026. 119 In Schneider v. Caesarstone Australia Pty Ltd. (op. cit. note 63), the Supreme Court of Victoria (Australia) noted (at para. 11) that “[i]t is apparent that the phrase ‘judicial documents’ is intended to include subpoenas for witnesses to give evidence”. This view was endorsed by the Supreme Court of New South Wales in Caswell v. Sony/ATV Music Publishing (Australia) Pty Ltd. (op. cit. note 92). 30 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER I

as part of evidentiary proceedings. It is sometimes difficult to determine whether a summons sent to a third party, e.g., a witness located abroad, is subject to the Service Convention or the Evidence Convention. In the event of conflict between these two instruments, the Evidence Convention prevails, because it secures protection for the witness.

78. Extrajudicial documents differ from judicial documents in that they are not directly related to a trial, and from strictly private documents in that they require the involvement of an “authority or judicial officer”, in the words of the Convention. The Special Commission has noted that there are many kinds of extrajudicial documents, which are recognised by States Parties to the Convention.120 Extrajudicial documents include, for the purposes of Article 17, notarial documents,121 demands for payment, notices to quit in connection with leaseholds or contracts of employment, protests with respect to bills of exchange and promissory notes, provided that they are issued by an authority or huissier, notice of dates of mediation hearings, notices served by creditors upon debtors, testamentary documents, notifications to beneficiaries of a deceased estate, decisions concerning child support payments and decisions concerning the granting of separation and divorce orders issued by an administrative entity, summons by huissiers, deeds, and documents related to the execution conducted by a . 122 Objections to marriage, consents for adoption, and acceptances of paternity are also in this class insofar as they imply compliance with certain 123 Only formalities.

79. While requests for service of extrajudicial documents are rare, they are almost always executed.124 Typically, extrajudicial documents are served by courts, huissiers or bailiffs.125

Use Characterisation as a judicial or extrajudicial document

80. Characterisation as a judicial or extrajudicial document depends on the law of the requesting State (State of origin). This seems to be indisputable since it is that law which determines the power of the authorities and judicial officers to issue a given document, and which determines whether there is occasion to transmit the document for service abroad. In some States, a notary is treated as a judicial officer, provided that he or she is acting in a professional and not a personal capacity.126

Official 120 C&R No 15 of the 2009 SC. 121 By way of comparison, it should be noted that in Roda Golf & Beach Resort SL, C-14/08, EU:C:2009:395, the Court of Justice of the European Union held that a notarial act, in the absence of legal proceedings, is an “extrajudicial document” within the meaning of Art. 16 of the 2000 EU Service Regulation. It further noted that the concept of “extrajudicial document” is a Community law concept.For The same provision has been included in the 2007 EU Service Regulation. For commentary on this case, see N. Fricero & G. Payan (op. cit. note 90), pp. 215-218. The Court provided further guidance with regard to the interpretation of this concept in Tecom Mican SL, C-223/14, EU:C:2015:744. 122 See Responses to Question No 24(i) of the 2008 Questionnaire and 2009 synopsis of responses, paras 107-115. 123 See “Report on the work of the Special Commission on the operation of the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (21-25 November 1977)”, in Actes et documents de la Quatorzième session (1980), Tome IV, Judicial Co-operation, The Hague, Imprimerie Nationale, 1983, p. 380 (also available on the Hague Conference website), at p. 388 [hereinafter “Report of the 1977 SC”]. 124 See Responses to Questions Nos 24(a)(iv) and 24(b) of the 2008 Questionnaire. 125 See Responses to Question No 24(a)(iii) of the 2008 Questionnaire. 126 T. Bischof (op. cit. note 11), p. 263. PURPOSE AND SCOPE OF THE CONVENTION 31

81. Characterisation as a judicial document does not depend on the level of the ruling; a relief of default, a statement of appeal or an appeal to a supreme court on a point of law may all have to be transmitted for service abroad and thus fall within the scope of the Convention. In this respect, the statement of a Florida (United States) judge that only the writ of summons is within the scope of Article 1 of the Convention and not subsequent communications during the trial (including the statement of appeal), would appear inconsistent with the Convention.127

82. Like the concept of “civil or commercial”, the concept of judicial and extrajudicial documents is to be construed broadly. At the 1977 Special Commission, discussion highlighted the fact that in certain systems, such as those of England and Ireland, private persons may serve certain extrajudicial documents themselves with identical legal effect. Accordingly, even though the Convention intended to exclude from Article 17 documents emanating from private persons, at the request of the United Kingdom and Irish delegations, the Special Commission encouraged the Central Authorities to serve extrajudicial documents not emanating from an authority or judicial officer if those documents were of a type which normally would call for the intervention of an authority in their country.

83. It is important for Central Authorities and, where applicable, forwarding authorities to communicate when problems of interpretation arise. The Special CommissionOnly has invited States Parties to encourage the relevant authorities to do so.128

b) Specific examples

Use 84. Documents issued in arbitration proceedings. Although a document issued in arbitration proceedings is not a “judicial” document for the purposes of the Service Convention, it may be considered an “extrajudicial” document within the meaning of Article 17 of the Convention. As noted in paragraph 82, if an extrajudicial document not emanating from an authority or judicial officer (incl. arbitration documents) would call for the intervention of an authority, Contracting States are encouraged to serve these documents.129

85. Importantly, there is nothing in the Service Convention that would prevent an arbitral body from presenting documents to the relevant forwarding authority where the arbitration proceedings areOfficial taking place with a request for transmission under the Convention. In addition, any problems with the characterisation of the document may be resolved

127 Chabert v. Bacquie, 694 So.2d 805 (Fla. Dist. Ct. App. 1997) (in addition, the Court found that the appellantFor had failed “to establish that French law required service abroad of initial process for the French appellate proceeding”. Therefore, it is not clear whether the Convention should have applied). See also: S.E.C. v. Credit Bancorp, Ltd., 2011 WL 666158 (S.D.N.Y. 2011) (holding that the Service Convention only applies to the initial service of process and not to subsequent documents because unlike Fed. R. Civ. Pro. 4, Fed. R. Civ. Pro. 5 “addresses the service of subsequent documents […] and does not mention the Hague Service Convention or provide special procedural requirements for international service”); In re Jennifer O., 108 Cal. Rptr. 3d 846 (Cal. Ct. App. 2010) (where the Court held that the Convention did not apply, because it governs only “service of process in the technical sense” and there was no such service in dependency proceedings); and Kern County Department of Human Services v. Superior Court, 113 Cal. Rptr. 3d 735 (Cal. Ct. App. 2010) (where the Court found that service was not required, because the Convention does not apply to supplemental and subsequent juvenile dependency proceedings, and it had previously made a finding of proper notice to the parent). 128 C&R No 15 of the 2009 SC. 129 Report of the 1977 SC (op. cit. note 123), p. 8. 32 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER I

by communication between the forwarding authority of the requesting State and the Central Authority of the requested State. The fact that a document is issued by an arbitral tribunal has no impact on whether the matter is “civil or commercial”.

86. In this regard, it should be noted that some States (such as Germany) allow arbitral bodies to request court assistance to serve documents abroad if the seat of arbitration is located in their State.130

87. However, requests for service for documents issued in arbitration proceedings would appear to be uncommon in practice because such documents are typically served in accordance with the arbitration rules chosen by the parties. A few courts have considered whether the Service Convention applied to arbitration proceedings, ultimately finding that it did not.131

F. Address of the person to be served is unknown

88. The Convention does not apply when the address of the person to be served is unknown (Art. 1(2)). Only

a) Preliminary remarks

89. During the discussions of the 1977 Special Commission, it appeared that the practice of the States Parties’ Central Authorities is very liberalUse when the address stated in the request for service is incomplete, inaccurate or fictitious, or in the event of a change of address. In such cases, the Central Authorities may seek to determine the correct address of the person to be served before asserting Article 1(2) of the Convention and refusing to execute the request or cause it to be executed. On the practical level, the Special Commission supported the suggestion of the expert of the United Kingdom that the Request Form

130 See Section 1050 of theOfficial German Code of Civil Procedure which reads as follows: “The arbitral tribunal or, with the consent of the arbitral tribunal, a party may file a petition that the court provide support by taking evidence or by taking any other actions reserved for judges that the arbitral tribunal is not authorised to take. […]” [our emphasis]. For commentary on this issue, see D. Gauthey & A.R. Markus (op. cit. note 51), pp. 256-257. 131 In Federation Francaise d'études et de sports sous-marins v. Société Cutner & Associates P.C., CA Paris, Chamber 1, 25 February 2010, No 08/22780, the Court of Appeal of Paris (France) rejected an argumentFor that the execution of an arbitral award should be refused on the basis that, inter alia, the arbitration had not been notified according to the Service Convention. The Court of Appeal noted that parties had agreed by contract to resolve their disputes according to the rules of the American Arbitration Association (AAA), which included rules on service of documents, and that the Service Convention therefore did not apply. A similar outcome was reached in the Greek case Thessaloniki First Instance Court (single member), judgment 22340/2012, where the parties had agreed to apply the China International Economic and Trade Arbitration Commission (CIETAC) Arbitration Rules. The Court noted that the service by mail (with evidence of actual delivery) as provided by the CIETAC Arbitration Rules satisfied the requirement of proper notice of Art. 5(1)(b) of the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards and the Service Convention did not apply (this case was mentioned by A.D. Tsavdaridis in an article published at the International Law Office website entitled “Hague Service Convention does not apply to arbitration documents”, 22 August 2013, available at: < http://www.internationallawoffice.com > [last consulted on 20 November 2015]). See also, in the same sense, the California (US) state court decision: Lombard- Knight v. Rainstrom Pictures Inc., 2013 WL 6839775 (Cal. Super. Ct. 2013). PURPOSE AND SCOPE OF THE CONVENTION 33

be supplemented by an additional statement specifying whom the Central Authority might approach to obtain additional information relating to the address of the person to be served in the event of difficulties.132 It is preferable to ask for additional information rather than send back the file (see Annex 3 at pp. 131 et seq.).

Providing assistance in locating the person to be served

90. At its 2014 meeting, the Special Commission noted that while there is no obligation to provide assistance in locating the person to be served under the Service Convention, many Contracting States have reported providing assistance, as a requested State, when the address is incomplete or incorrect. Some have even reported to assist when the address is unknown.133 In addition, the Special Commission encouraged “Contracting States to provide such assistance consistent with their legal and structural capabilities, when able to do so”134 and to provide information with regard to such assistance for inclusion in the practical information charts on the Service Section of the Hague Conference website.135

91. The problem of the service of documents on military personnel stationedOnly abroad and whose coded addresses remain secret was also raised. In such a case, it was suggested that the Central Authority of the requested State entrust the document to be served either to the military authorities or to the Consul of that State who is in residence in the foreign country where the person in military service is stationed.

92. At the Special Commission meeting, the expertsUse stressed the importance of stating as accurately as possible the name of the person to be served, especially when this is a legal entity, company, non-profit entity or foundation. Any difference between the name stated in the request and the addressee’s official name may make the service impossible or ineffective. If a difference is found between the names entered in the document to be served and the request for service, it is recommended that the name specified in the document to be served be taken into account.

b) National practice

Official 93. The courts of the Netherlands have ruled on several occasions on the scope of Article 1(2) of the Convention. In a first case,136 the Supreme Court (Hoge Raad) had to consider whether an address, found to be incorrect on appeal, prevented the Convention’s application although the respondent had appeared at first instance without asserting any irregularity relating to address. The Supreme Court held that when a party has good cause to believe that the Foraddressee of a document has its domicile or habitual residence at a certain address abroad, and on that basis, proceeds through channels provided by the Convention to serve

132 For instance, in Australia, the Federal Court has accepted a print-out from an online telephone directory to satisfy itself that the address of the person to be served was known. See Bell v. Steele [2011] FCA 1390. 133 C&R No 23 of the 2014 SC. 134 Ibid. 135 C&R No 24 of the 2014 SC. Pursuant to this Conclusion and Recommendation, Germany provided useful information for inclusion in the Hague Conference website. 136 Charly Holding AG v. Giorgio Gomelsky, HR 2 December 1988, NJ 1989, p. 374; RvdW 1988, p. 211. 34 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER I

that party at that address, the mere fact that this address is subsequently found to be inaccurate does not make the Convention inapplicable. The Supreme Court relied on Article 15(2), which provides an option for the judge to rule in the absence of any attestation of service on the defendant, provided that the conditions laid down under sub-paragraphs (a) to (c) of that provision are satisfied. The Supreme Court explained that the judge may, if he or she deems appropriate, order other action to make a document known to a defendant before issuing a default ruling. This may be, for instance, publication of the document in a newspaper published at the location of the defendant’s last known address.

94. Two subsequent decisions followed the reasoning applied in this case. The Utrecht District Court ruled in default against a defendant whose spouse had refused informal delivery of the document sent to her husband at his latest known address in France, and had stated that she was unaware of his whereabouts as he had left the family residence for an indeterminate duration.137 In that case, the Court considered it pointless to seek to warn the defendant by other means. In another case, the Supreme Court (Hoge Raad) confirmed that the Convention remained applicable when the defendant’s address in Germany was known at the time of the first procedural hearing, but notice of the appeal on a point of law could not be served by the German Central Authority because the defendant had departed without leaving any address. However, before issuing a default ruling,Only the Supreme Court allowed the appellant time to publish the summons in a local newspaper at the respondent’s last known address in Germany.138

95. In the United States also, the issue has arisen of the Convention’s applicability where the address of the person to be served is not known. As such, forum rules generally provide that service may be made by means of publication in a daily newspaper when the address of the person to be served remains unknown throughoutUse the period of publication of the notice, even though the plaintiff has used all reasonable diligence to locate the addressee.139 In such a case, the Convention is not applicable, since there is no occasion to transmit a document abroad (see paras 31 et seq.).140 In Kott v. Superior Court,141 a California Court held that the plaintiff had not displayed the expected diligence to ascertain the defendant’s address in Canada, even though the plaintiff was aware of his being a Canadian citizen. Service by publication was therefore denied and the plaintiff required to proceed according to the Convention. Based on Kott, a second California Court held that the Convention was not applicable in a case where the address of the person to be served remained unknown

Official 137 Van Zelm BV v. Martinus Bomas, Rechtbank Utrecht, 6 December 1995, NJ 1996, p. 756. 138 Malenstein v. Heymen, HR 20 February 1998, NJ 1998, p. 619. Similarly, in K.X. v. N.Y., Cass., Ch. Civ. 2, Arrêt No 2039 of 10 November 2010 (No 09-66214), the Cour de cassation of France held that service made at the last known address of the recipient in Switzerland in accordance with theFor Service Convention was valid despite the fact that the tribunal of Baden (Switzerland) could not serve the documents because of a change of address. 139 See, e.g., California Code of Civil Procedure, § 415.50 subd. (a)-(b). 140 When the address of the defendant is not known, US courts have ordered substituted service to be effected on the defendant in a variety of forms, including service by electronic means (see Annex 8, The use of information technology in the operation of the Service Convention / Developments in the United States) and by serving documents on the attorney of the defendant, see Gramercy v. Kavanagh, 2011 WL 1791241 (N.D. Tex. 2011). It must be noted that whichever form of alternate service is permitted must still comply with due process requirements. See, e.g., In re Sinohub, Inc. Securities Litigation, 2013 WL 4734902 (S.D.N.Y. 2013), denying plaintiff’s request for alternate service on two foreign defendants through the defendants’ counsel, finding that “[w]here a defendant’s level of communication with counsel is too attenuated, service through counsel does not comport with due process”. Particularly, the court was concerned with the fact that the defendants and their counsel had only spoken twice, both times using a third party as a conduit. 141 45 Cal. App. 4th 1126 (Cal. Ct. App. 1996). PURPOSE AND SCOPE OF THE CONVENTION 35

throughout the period of publication of the notice.142 It was only after the period of publication that the defendant was found to be residing in Spain143. More recently, a third California Court also followed these two earlier cases, finding that although no express language in Article 1 imposes a reasonable diligence requirement, there is no other reasonable interpretation of Article 1 without rewarding a party’s wilful ignorance of the whereabouts of the party to be served.144 The three decisions mentioned above imply that California law makes the application of the Convention dependent on the judge’s determination of the plaintiff’s degree of diligence. This interpretation of Article 1(2) once again reflects the Convention’s non-mandatory character in that the conditions for its application are dependent on the law of the forum (see paras 31 et seq.).

96. Federal courts have also ruled on this issue. In Yates v. Yee Mei Cheung,145 the United States District Court for the Northern District of California acknowledged that although the plaintiff had learned that the defendants may be residing in China, he was unable to locate them, despite making exhaustive enquiries (such as conducting numerous database searches, attempting to contact agents of the defendants, hiring professional skip tracers and using reverse telephone searches). Therefore, the Court found that the Convention no longer applied and service by publication on the defendant was deemed valid. The decisions mentioned above imply that in the United States the application of the Convention is dependent on the judge’s determination of the plaintiff’s degree of diligence in attempting 146 Only to locate the defendant. This interpretation of Article 1(2) once again reflects the Convention’s non-mandatory but exclusive character in that the conditions for its application are dependent on the law of the forum.

Use

142 The People v. Mendocino County Assessor’s Parcel No. 056-500-09, 58 Cal. App. 4th 120 (Cal. Ct. App. 1997). 143 Likewise, the French Cour de cassation inferred that the defendant was domiciled in the forum State in a case where the writ of summons before the English High Court had been served at the defendant’s last known address in London, the defendant not having subsequently notified a new address abroad (in Germany, in fact) either to the plaintiffs or to the English authorities, and that document having been, upon leave from the English Court, served again at different addresses in London and publishedOfficial in the international press. The Court drew the conclusion that Art. 15 of the Service Convention did not apply, and upheld the exequatur of the English default judgments: Stolzenberg v. Sté Daimler Chrysler Canada Inc., Cass., Ch. Civ. 1, 30 June 2004, Juris-Data 2004- 024353; Opinion of Mr Jerry Sainte-Rose, JCP E, 2005, II, 237. 144 Lebel v. Mai, 210 Cal. App. 4th 1154 (Cal. Ct. App. 2012). 145 2012 WL 3155700 (N.D. Cal. 2012). 146 See,For e.g., Microsoft Corp. v. Does, 2012 WL 5497946 (E.D.N.Y. 2012) (Convention did not apply in action against alleged cybercriminals where – even after months of investigation – defendants’ personal identities and physical locations remained unknown); Teller v. Dogge, 2013 WL 508326 (D.Nev. 2013) (Convention did not apply where defendant believed to be residing in Belgium had “purposefully gone underground in an attempt to subvert service”); Compass Bank v. Katz, 287 F.R.D. 392 (S.D. Tex. 2012) (Convention applied where plaintiff failed to make a showing that defendant’s address in Mexico was unknown); RPOST Holdings, Inc. v. Kagan, 2012 WL 194388 (E.D. Tex. 2012) (granting substituted service on defendant only after plaintiff attempted service through the Convention and was also refused defendant’s address by defendant’s counsel); Chanel, Inc. v. Song Xu, 2010 WL 396357 (W.D. Tenn. 2010) (finding that where plaintiff hired a private investigator that was unable to locate defendants in China – and determined that the physical address provided by defendants did not identify street names, numerical street addresses or building numbers – the Convention did not apply); Opella v. Rullan, 2011 WL 2600707 (S.D. Fla. 2011) (concluding that an address will be considered unknown only after the plaintiff has exercised reasonable diligence to discover such address). 36 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER I

c) Does Article 1(2) include the electronic address (e-mail) of the addressee?

97. In the era of new electronic communication technologies, the concept of address has taken on an entirely new dimension. Does the term used in Article 1(2) include the addressee’s electronic address? It would seem that it does not. An e-mail address alone would seem incapable of allowing an authority to determine whether there is occasion to transmit a document abroad to another Contracting State to the Convention and whether the Convention applies (for more information, see para. 27 of the Annex 8, The use of information technology in the operation of the Service Convention).

98. For instance, what is the effect of an electronic address that does not include any geographical nexus (e.g., [email protected], [email protected]), thus not allowing to determine whether the transmission is made to another State Party? Furthermore, the addressee may use an address with a geographical extension (e.g., .us, .nl, .ch, .fr) even though the addressee is not resident in that State or has never been there; or he may have acquired the address while he was travelling through that country but otherwise has no connection at all with that State – can this be sufficient to trigger the application of the Convention? In addition, are States ready to accept the validity of Onlyservice at an electronic address only, having regard in particular to the protection of defendants under Article 15? Moreover, what of a fax number, which is even less personal than an e-mail address (since responsibility for a fax machine, within a company for instance, may be shared by several people), but may also be easier to locate geographically?

G. The Service Convention Useand collective redress (“class actions”)

99. A question has arisen as to whether the Service Convention applies to the service of documents in mass litigation for claims of “collective redress”, most-commonly known as “class actions”.147 The Special Commission noted that no particular challenges arise with regard to this issue. It further noted that the Convention “is applicable to a request for service upon a defendant in a class action”. It added that generally “the Convention does not apply to the sending of information regarding the constitution of a possible class (including notices sent abroad encouraging possible claimants to opt-in or opt-out of Official148 a particular class)”.

For

147 Due to the differences in legal systems and their mechanisms for pursuing mass litigation, the term “collective redress” is meant to encompass both the United States-style procedure of “class actions”, whereby a suit is brought by one single claimant representing multiple subjects, and, the procedure of “collective actions”, whereby certain organizations or associations (i.e., consumers’ protection groups) act on behalf of a number of persons. For a more detailed, comparative view of “class actions” and “collective actions” amongst the different legal systems, see D. Fairgrieve & E. Lein, Extraterritoriality and Collective Redress, 1st ed., Great Britain, Oxford University Press, 2012. 148 C&R No 17 of the 2009 SC. PURPOSE AND SCOPE OF THE CONVENTION 37

6. Monitoring the practical operation of the Convention

A. The Service Section

100. The Permanent Bureau maintains a section of the Hague Conference website that is dedicated to the Service Convention (the “Service Section”). The Service Section provides a wealth of useful and up-to-date information on the practical operation of the Convention, including:149

a. the full text of the Convention (in the two official languages of the Hague Conference – English and French – as well as translations into a variety of other languages);

b. an updated list of Contracting States (the “status table”);

c. the name and contact details of each Central Authority designated by each Contracting State (noting that some federal States have designated multiple Central Authorities); Only

d. the name of all other authorities designated by each Contracting State to perform particular functions under the Convention;

e. practical information charts providing a useful summary of how the Convention operates in a particular Contracting State; Use f. fillable trilingual Model Forms in English, French and a third language;

g. explanatory material on the Convention, including the recommendation to add a warning and the accompanying Explanatory Report, the instructions for filling out the Summary of the document to be served and recommended Warning, and this Handbook; and

h. documentation relating to the Special Commission meetings, including Conclusions & Recommendations and responses to questionnaires prepared by the Permanent Bureau.

Official B. Role of the Permanent Bureau

101. The Permanent Bureau conducts and co-ordinates various activities aimed at promoting, Forsupporting, and monitoring the practical operation of the Service Convention. In particular, the Permanent Bureau develops explanatory documents, such as this Handbook. It also responds to queries from Contracting States concerning the application of the Convention, and prepares and organises meetings of the Special Commission. The Permanent Bureau has neither the mandate nor the power to police the operation of the Service Convention (or any other Hague Convention).

149 The Special Commission has noted that the Service Section is a very helpful source of information and has encouraged Central Authorities to publicise it. See C&R No 4 of the 2014 SC. 38 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER I

102. In this regard, it is worth noting that this Handbook is widely cited and referred to by courts of Contracting States as a useful source of information.150

C. Special Commission

103. The operation of the Service Convention (like several other Hague Conventions) benefits from periodic review by the Special Commission. The Special Commission on the practical operation of the Service Convention has met on a number of occasions, in 1977, 1989, 2003, 2009 and 2014. Documentation relating to the Special Commission meetings is available on the Service Section of the Hague Conference website.

104. The Special Commission is composed of experts designated by Members of the Hague Conference and by Contracting States to the Convention. It may be attended by representatives of other interested States (in particular those that are considering joining the Convention) and relevant international organisations in an observer capacity.

105. Meetings of the Special Commission are prepared by the Permanent Bureau on the basis of information provided by Contracting States and other interested StatesOnly and international organisations (generally in response to questionnaires circulated by the Permanent Bureau). They allow for in-depth analysis of important issues relating to the contemporary operation of the Convention, including the definition of terms, good practices in respect of service of documents, and the use of information technology in the operation of the Convention. More specifically, Special Commission meetings offer a forum for Contracting States to raise issues with the practical operation of the Convention, including differences with other States, and for experts to discussUse and devise solutions.

106. The Conclusions & Recommendations (“C&R”) adopted by the Special Commission play an important role in the uniform interpretation and application of the Convention. The C&R are increasingly referred to by courts when called upon to interpret and apply the Convention, and may be seen as providing evidence of a subsequent practice in the application of the Convention which establishes an agreement among the Contracting States regarding its interpretation (Art. 31(3)(b) of the Vienna Convention of 23 May 1969 on the Law of Treaties). The Special Commission has also encouraged Contracting States to publicise the C&R among users of the Conventions, including judicial authorities, judicial officers, practitioners, and Central Authorities.151 Official

D. Resolving differences

107. ForArticle 14 of the Convention provides for difficulties arising between Contracting States in connection with the transmission of judicial documents for service to be settled through diplomatic channels. The Explanatory Report noted that this provision may only be invoked for judicial documents as it was considered unreasonable to allow recourse

150 See, e.g., in Australia: Caswell v. Sony/ATV Music Publishing (Australia) Pty Ltd. (op. cit. note 92). In Canada: Metcalfe Estate v. Yamaha Motor Powered Products Co., Ltd., (op. cit. note 92); Khan Resources Inc. v. Atomredmetzoloto JSC (op. cit. note 92). In Switzerland: Tribunal fédéral des assurances, Prozess {T 7} (op. cit. note 114); Kantonsgericht St. Gallen, Einzelrichterin in Rechtshilfesachen, RH.2008.64, 19 May 2008. In the United States: Intercontinental Industries Corp. v. Luo, 2011 WL 221880 (C.D. Cal. 2011); Harris v. NGK North American, Inc., 19 A.3d 1053 (Pa. Super. Ct. 2011). 151 C&R No 2 of the 2014 SC. PURPOSE AND SCOPE OF THE CONVENTION 39

to the diplomatic channels for extrajudicial documents. The wording of this provision was inspired by Article 1(2) of the 1954 Civil Procedure Convention but was amended to encompass all channels of transmission provided for by the Convention.152 At its meeting in 2009, the Special Commission confirmed the Convention’s “wide use and effectiveness, as well as the absence of major practical difficulties” and in light of this, strongly recommended States Parties to continue promoting the Convention.153

108. Article 14 does not affect the ability of a State to bring difficulties arising in connection with the transmission of judicial documents for service to the attention of the Special Commission, nor the ability of Central Authorities to resolve such difficulties among themselves.154 Moreover, it does not prevent the application of the Convention by a State from being reviewed internally by way of appeal or judicial review.

109. More importantly, to the best of the Permanent Bureau’s knowledge, this provision has never been used in practice, which shows that Contracting States find that the meetings of the Special Commission are a more suitable forum to discuss divergent views with regard to the operation of the Service Convention.155 Only Use

Official For

152 Report of the 1964 SC (op. cit. note 25), p. 107. 153 C&R No 7 of the 2009 SC. 154 At its meeting in 1989, the Special Commission noted that Art. 14 of the Convention “does not prevent Central Authorities from resolving among themselves difficulties arising in connection with the Convention’s application and that it is not always necessary to use diplomatic channels first”: Report of the 1989 SC (op. cit. note 57), para. 24. 155 See, e.g., the Report of the 1989 SC, which contains discussions of two important and somewhat controversial decisions of the Supreme Court of the United States: Volkswagen Aktiengesellschaft v. Schlunk (op. cit. note 53) and Société Nationale Industrielle Aérospatiale v. United States District Court for the Southern District of Iowa, 482 U.S. 522 (1987). 40 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

II. Channels of transmission provided for under the Convention

110. The Convention provides for one main channel of transmission (see paras 111 et seq.) and several alternative channels of transmission (see paras 236 et seq.).

1. The main channel: Central Authorities

111. Under the main channel of transmission provided for by the Convention, the authority or judicial officer competent under the law of the requesting State (State where the document to be served originates) transmits the document to be served to a Central Authority of the requested State (State where the service is to occur).156 The Service Convention is the first of the Hague Conventions to have established a system of Central Authorities. Numerous other Hague Conventions have since adopted the same system,157 which has proven to be very effective and an undisputed improvement on the diplomatic andOnly consular channels of transmission.

A. Role and organisation of a Central Authority

a) In general (Art. 2) Use

112. The Central Authority is a receiving authority, in charge of receiving requests for service from requesting States and executing them or causing them to be executed. In principle, the sending of requests for service abroad to another Central Authority is not within its purview.158 In some States (e.g., , , Finland and ) and in certain

156 See the Explanatory Chart 1 following the FAQ. 157 In particular, the systemOfficial of Central Authorities has also been adopted in the Evidence Convention. The system has also been implemented in instruments adopted under the auspices of other organisations, for example in the European Convention of 20 May 1980 on Recognition and Enforcement of Orders relating to Child Custody and Restoration of Custody and in the Inter-American Convention of 15 July 1989 on the International Return of Children. The system is also used in legislation of the European Union (see, e.g., Council Decision 2001/470/EC of 28 May 2001 establishing a European JudicialFor Network in civil and commercial matters (OJEU L 174 of 27.06.2001, pp. 0025 – 0031); Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJEU L 338 of 23.12.2003, pp. 0001 – 0029)). The Central Authorities created under all these instruments not only work towards the execution of a request, they perform a wide range of tasks of international co-operation, including communicating among themselves, the applicants and other governmental authorities on their territories. Proper application of the treaties depends to a large extent on the good functioning of the Central Authorities. 158 In a Luxembourg case, a defendant domiciled in Israel asserted the nullity of the service on the grounds that a copy of the document to be served had been delivered to the public prosecutor’s office at the Luxembourgian court hearing the case and not to the General Public Prosecutor’s office at the Superior Court of Justice of Luxembourg, designated as the Central Authority under Art. 2. The Court of Appeal to which the matter was referred dismissed the appeal on the grounds that the General Public Prosecutor’s office had been designated under Art. 2 of the Convention to receive documents from States Parties to proceed with them in Luxembourg, and not to receive documents CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 41

Swiss cantons,159 however, the Central Authority also acts as a sending authority under Article 3. The Central Authority is only an authority in charge of transmitting documents to the recipient; it may not be treated as an agent of the defendant on whom the document may be served.160

113. Each Contracting State shall designate a Central Authority and determine the form of its organisation (Art. 2). This requirement, as well as the need to inform the depositary of this designation, was recalled by the Special Commission at its 2014 meeting.161 With a view to ensuring the sound and effective operation of the Convention, it is essential that each Contracting State designates a Central Authority and staffs it adequately. Furthermore, all Contracting States are requested to provide to the Permanent Bureau complete contact information (postal address, telephone and fax numbers, e-mail and, if applicable, website addresses) for their Central Authorities, as well as the languages spoken by and the particulars of the contact person(s).162

114. Most States Parties have designated their Ministries of Justice or some organ within the Ministry.163 Other States have placed the Central Authority within the courts service.164 Relatively few have retained the Ministry of Foreign Affairs.165 One State has designated the County Administrative Board.166 Only 115. Central Authorities consist of offices with a variable number of people. It may be pointed out that the Central Authorities designated under the Service Convention frequently operate as Central Authorities for the purposes of the Evidence Convention. In some countries, such as France, the officials of the Central Authority handle in a centralised fashion all matters having to do with international judicial assistance in private law.

116. The United States has put in place an innovativeUse system and has outsourced the activities conducted by the Central Authority to a private process server company (ABC Legal, which does business as Process Forwarding International). One has to emphasise, however, that this procedure has not led to the formal designation of a new Central Authority: the US Department of Justice formally remains the Central Authority for the purposes of the Convention. Nevertheless, Process Forwarding International is the only private process service company authorised to act on behalf of the United States Central Authority, in accordance with Articles 2 to 6 of the Convention, to receive requests for service from other States Parties, proceed to serve the documents, and complete the Certificate in the Form annexed to the Convention. Process Forwarding International is responsible for the geographical coverage of its tasks in the following areas: the United States (the fifty states Officialand the District of Columbia) , Guam, American Samoa, Puerto Rico,

to be sent abroad: Katz v. Recettes des Contributions, Discount Bank et État du Grand-Duché de Luxembourg, Court of Appeal (summary), 8 July 1997, ruling forwarded to the Permanent Bureau by theFor Luxembourg Central Authority. 159 See note 170. 160 Broad v. Mannesmann Anlagenbau, A.G. (op. cit. note 66). 161 C&R No 3 of the 2014 SC. 162 See C&R Nos 50 and 51 of the 2003 SC; C&R No 8 of the 2009 SC. 163 See, e.g., Australia, , Belgium, , China, Cyprus, Czech Republic, Denmark, Egypt, , Finland, France, Iceland (although named the “Ministry of the Interior”), , Kuwait, Latvia, , , , Norway, , , Portugal, Republic of , Russian Federation, , Sri Lanka, . 164 See, e.g., , Ireland, Israel, Italy, Luxembourg, , Netherlands, Republic of Korea, , Seychelles, United Kingdom. 165 See, e.g., Argentina, , Colombia, Japan, Mexico, Venezuela. 166 Sweden. 42 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

the US Virgin Islands, and the Commonwealth of the Northern Mariana Islands. Process Forwarding International is required to complete service of documents and the certificate for return to the forwarding authority within 30 business days of receipt of the request.167 The Special Commission has expressly concluded that the terms of the Convention do not preclude a Central Authority from contracting activities under the Convention to a private entity, while retaining its status as Central Authority and ultimate responsibility for its obligations under the Convention.168

117. For further information regarding the Central Authorities of each State Party (e.g., their contact information), see the Hague Conference website.

b) The “other authorities” (Art. 18(1))

118. In general, the organisation of Central Authorities is centralised. Article 18(1), however, permits Contracting States to designate “other authorities in addition to the Central Authority” and to determine the extent of their competence. The United Kingdom made use of this option and designated, in addition to the Central Authority, “other authorities” for England and Wales, Scotland, Northern Ireland as well as for theOnly overseas territories to which the Convention has been extended (see the Hague Conference website). The Netherlands has designated the Public Prosecutors of all its District Courts other than that of The Hague as “other authorities” (see the Hague Conference website). Australia, China (for the Special Administrative Regions of Hong Kong and Macao), Cyprus, Pakistan, and Poland have also designated “other authorities” (see the Hague Conference website).

119. This multiplicity of competent authorities shouldUse not, however, impede the Convention’s operation: Article 18(2) provides that the forwarding authority may in all cases address a request directly to the Central Authority.

c) Several Central Authorities in federal States (Art. 18(3))

120. Article 18(3) takes account of the specific organisation of federal States by providing that they may appoint several Central Authorities. Several federal States have made use of this option. In Germany, each of the 16 Länder has its own Central Authority. Canada has appointed a federalOfficial Central Authority in Ottawa and a Central Authority for each Province and Territory. Switzerland has 26 cantonal Central Authorities, i.e., one for each Canton and half-Canton, and a federal Central Authority.

For

167 For more information on this matter, see the practical information chart for the United States, which is available on the Hague Conference website. 168 C&R No 52 of the 2003 SC; C&R No 22 of the 2009 SC; C&R No 31 of the 2014 SC. On the cost issue, see paras 186 et seq. CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 43

B. Requests for service (Art. 3)

a) The forwarding authority

(1) General description

121. Under Article 3, a request for service may only be forwarded to the Central Authority of the requested State by an “authority or judicial officer competent under the law of the State in which the documents originate”; in other words, the Convention sets the minimal requirement that the request be forwarded by an “authority” or a “judicial officer”, but leaves it to the requesting State to determine who qualifies as competent authority or judicial officer in the sense of Article 3. What are the core elements of this general framework?

122. At the outset, it is important to note that private persons are not entitled to send directly a request for service to the Central Authority.169

123. Also, the requested State cannot apply its own domestic rules to verifyOnly the competence of the forwarding authority. Similarly, a State Party to the Service Convention cannot impose requirements on Hague requests that it sets outside the conventional framework (e.g., on Letters Rogatory received from States which are not Parties to the Service Convention).

124. The diversity of authorities or judicial officers competent to issue requests for service to a Central Authority is very great. In most States PartiesUse, these are decentralised authorities, courts or tribunals, prosecutors, registrars, huissiers, process servers, etc. In some States, such as Croatia, Egypt, Finland, Latvia and in a number of Swiss cantons,170 the requests are systematically channelled through the national Central Authority, which then sends them abroad.

125. The Special Commission meeting held in 1977 discussed the possibility of establishing a list of forwarding authorities for all States Parties; it considered that such a list would be useful but also pointed out that it would necessarily be descriptive and for information only.171 It is indeed hard to imagine that one could draw up a comprehensive and updated directory that would individually list all forwarding authorities for each State Party. In addition, the publication of such a list would have undesirable practical effects, as it would constituteOfficial an incentive to review the competence of the forwarding authority in a stricter manner than is currently practised (see para. 126). It is against this background that the second edition of this Handbook (published in 1992) offered in Part Two (Transmission of requests for Service by the Central Authority) general information relating to each State Party which included a description of the authorities competent under Article 3 to send requests Forfor service to the Central Authority of another State Party (see Section B – Forwarding of requests for service to the Central Authority of another Contracting State – of each national report). This information did not enumerate all the authorities or judicial officers individually but rather referred to a group of persons or entities (e.g., “all clerks of courts”

169 Explanatory Report (op. cit. note 9), p. 368; see also ibid., pp. 184-186. 170 The relevant cantons are: Jura, Neuchâtel, Schwyz (for all requesting authorities, apart from courts), and Zurich. See Federal Department of Justice and Police, Federal Office of Justice, International Judicial Assistance in Civil Matters, Guidelines, 3rd ed., Berne, 2003 (updated in January 2013), p. 7, available at < http://www.rhf.admin.ch/etc/medialib/data/rhf.Par.0064.File.tmp/wegl-ziv-e.pdf > [last consulted on 20 November 2015]. 171 Report of the 1977 SC (op. cit. note 123), p. 386. 44 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

or “local registrars”). Some States, such as Canada, have subsequently submitted this information as “declarations” to the depositary and the Permanent Bureau has made it available on the Hague Conference website. Only a few States have made similar declarations (e.g., Ireland, Russian Federation). At its 2003 and 2009 meetings, the Special Commission invited Contracting States to provide information on their forwarding authorities and their competences to the Permanent Bureau as this information is a key aspect of the sound and effective practical operation of the Service Convention.172 Since then, many Contracting States have provided such information, which is available in the practical information charts per State on the Service Section (see para. 127).

126. In practice, Contracting States have not experienced any difficulties in determining whether a forwarding authority has competence to forward a request for service. Almost all forwarding authorities in Contracting States mainly use the postal method to send requests for service abroad and several use private courier services.173

127. Furthermore, the Special Commission has agreed on the following points:174

“The SC recalled that it is for the law of the requesting State to determine the competence of the forwarding authorities (Art. 3). Furthermore, the SC took note of information provided by number of experts aboutOnly the position of forwarding authorities and concluded that most practical problems have been solved.

[…] The SC also accepted a suggestion that [information on the forwarding authorities and their competences] be included on the Standard Form for a request for service175. Use The SC recommended that in any question of doubt as to the competence of the forwarding authority, rather than rejecting the request, the authorities in the State requested should seek to confirm that competence by either consulting the Hague Conference website or by making expeditious informal inquiries of the forwarding authorities, including by way of e-mail.”

128. As regards the last Recommendation, it is important to stress that the 2003 Special Commission wished to take a more liberal approach than that of 1977, which had concluded that “the Central Authority of the State addressed might in exceptional cases ask the Central Authority of the State in which the documents originate for information concerning theOfficial competence of the forwarding authority” [our emphasis].176 The 2003 Special Commission deliberately dropped the requirement of an exceptional case and expressly encouraged communication between Central Authorities. The 2009 Special Commission recalled and endorsed these recommendations.

For

172 C&R No 48 of the 2003 SC; C&R No 21 of the 2009 SC. 173 See Responses to Questions Nos 27 and 28 of the 2008 Questionnaire. 174 C&R Nos 47-49 of the 2003 SC; C&R No 21 of the 2009 SC. 175 See note 3 of C&R No 48 of the 2003 SC: The Russian Federation did not support this recommendation and reserved its position. 176 Report of the 1977 SC (op. cit. note 123), p. 386 [our emphasis]. CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 45

(2) Specific cases

129. As indicated above (see para. 121), the Convention imposes the basic requirement that the request is forwarded by an “authority” or a “judicial officer”. There have been discussions in the past on whether solicitors or attorneys can be regarded as competent bodies under Article 3 of the Convention.

130. As to English solicitors, the authors of the Convention had accepted that they should indeed be regarded as a competent authority or judicial officer.177 At the meeting of the Special Commission in 1977, the issue of requests for service sent by attorneys was raised. It was pointed out that, in certain legal systems, attorneys serve judicial documents under the supervision of a court, and could accordingly be assimilated to judicial officers (officiers ministériels).178 In Canada, for example, members of the law societies of all provinces and territories (i.e., lawyers) have been identified as one of the forwarding authorities under the Convention (see the practical information chart for Canada available on the Service Section of the Hague Conference website).

131. At the Special Commission meeting held in 1989, it appeared that certain States had denied requests for service issued by attorneys in the United StatesOnly. Other States, such as Germany, have at least on occasion taken a more liberal position in this matter and effected requests issued by attorneys in the United States, provided that these requests contained a specific reference to a statutory provision in the forum authorising the attorneys to forward such documents for service (see the comments below in para. 144).

132. Since the Special Commission meeting of 1989, the courts in the United States have had the opportunity to flesh out the meaning of “authorityUse or judicial officer” under their procedural rules (Federal Rules of Civil Procedure or Fed. R. Civ. Pro.). In a first case,179 a Florida Court pointed out that based on Article 3, the competence of the authority or judicial officer would have to be determined by reference to the law of the requesting State and not to the law of the requested State. In the case in point, the request for service had been drawn up by a United States magistrate judge and sent to the foreign Central Authority by a private attorney. Under federal procedural law, a private attorney is authorised to serve a judicial document in the United States. Accordingly, he or she also has authority to send a request for service to a foreign Central Authority.180 Similarly, the rules of most state courts also authorise attorneys to serve judicial documents. Thus in the United States, attorneys representing the parties to a dispute are deemed to be officers of the court.181 A Texas Court went further inOfficial the interpretation used in the Marschhauser case by recognising the authority to forward a request for service to a foreign Central Authority in “any person aged 18 at least and not a party to the dispute”.182 This broad interpretation is, however, doubtful, as it could lead to any private person who is at least 18 years old and not a party to the dispute addressing the requested Central Authorities directly – which is precisely what the Convention tends to avoid by specifying that the request has to be forwarded by an Forauthority or a judicial officer.183 One has to note that in the case before the Texas court,

177 Explanatory Report (op. cit. note 9), p. 368. 178 Report of the 1977 SC (op. cit. note 123), p. 386. 179 Marschhauser v. The Travelers Indemnity Co., 145 F.R.D. 605 (S.D. Fla. 1992). 180 See also in support, more recently, FRC Int’l, Inc. v. Taifun Feuerlöschgerätebau und Vertriebs GmbH, 2002 WL 31086104 at 9 (N.D. Ohio 2002). 181 Holloway v. Arkansas, 435 U.S. 475 (1978). 182 Greene v. Le Dorze, 1998 U.S. Dist. LEXIS 4093 (N.D. Tex. 1998). Fed. R. Civ. Pro. 4(c)(2) does provide that any person aged at least 18 and not a party to the dispute may serve a writ. 183 Explanatory Report (op. cit. note 9), p. 15. 46 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

the focus was not on the competence of a private person to forward requests under the Convention but rather on that of a private process server. Most of the private process servers in the United States feel that they are licensed officers of the court, not private persons, and that they should therefore be able to act as forwarding authorities on Request Forms of the Convention. Other private process servers have acted on the assumption that they are not empowered to forward requests and instead have the plaintiff’s attorney execute the Request Forms.184

133. In its responses to the 2003 Questionnaire, the United States stated that “the persons and entities within the United States competent to forward service requests pursuant to Article 3 include any court official, any attorney, or any other person or entity authorised by the rules of the court”. Against this background, it is suggested that requests forwarded by United States attorneys or private process servers should be executed; this applies all the more if the request makes explicit reference to the Statute or Rule of Court endowing them with such authority (in such cases, an attorney or process server should be regarded as a judicial officer rather than an authority). In addition, in the event of doubt as to competence, reference should be made to C&R No 49 of the 2003 Special Commission (see paras 127 and 128). It should be clarified that in light of the minimal requirement set out by the Convention as noted in paragraphs 122 and 132, private persons (i.e., any adult non-party to the case who is neither an attorney nor a process server) are not entitledOnly to be forwarding authorities for the purposes of the Convention.

b) Transmission of the Request to the foreign Central Authority

Use 134. The transmission or sending of the document to the foreign Central Authority has not itself raised any particular problem so far. The Convention does not specify how the request is to be sent to the Central Authority abroad. The postal channel (ordinary mail, registered post with notification of receipt, express mail, private courier service (such as DHL, FedEx, UPS, etc.)) is commonly used. The Special Commission noted the practice of many Central Authorities of accepting requests for service that have been forwarded by private couriers.185

135. In particular, to facilitate the expeditious execution of requests for service, the Special Commission has encouraged the transmission and receipt of requests by electronic means (such as e-mail).186 This question is addressed in more detail below (see Annex 8, on The use of informationOfficial technology in the operation of the Service Convention).

For 184 As to the United States marshals (who are officers of the Department of Justice, under the control and direction of the United States Attorney General), it has to be noted that the United States Marshals Service has not been involved in forwarding requests under the Hague Convention for service in foreign countries or providing advice to litigants on the same since 1983, when Law 97-462 amended Fed. R. Civ. Pro. 4 and permitted attorneys to forward requests for service directly. With the outsourcing of the Central Authority’s activities to a private process server (see para. 116), marshals are also no longer involved in handling incoming Hague requests for service in the United States (see also para. 164). 185 See C&R No 18 of the 2009 SC. For instance, China has expressly indicated that it accepts requests for service forwarded by DHL, FedEx, etc. See Frequently Asked Questions (Q. 7) drawn up by the Chinese Ministry of Justice, available via the “China – Central Authority & practical information chart” of the Service Section of the Hague Conference website. 186 C&R No 39 of the 2014 SC. CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 47

c) The Request Form (Model Form)

136. The request must conform to the Model Form annexed to the Convention (Art. 3(1)). In addition, the request must be accompanied by the document to be served or a copy thereof,187 both in duplicate (Art. 3(2)). States Parties may, however, agree to dispense with the necessity for duplicate copies of transmitted documents (Art. 20(a)).

137. The 1977 Special Commission held that the second copy served an important need. The experts recommended its systematic return to the forwarding authority with the Certificate attesting service so as to enable the forwarding authority to identify accurately the document that has been served. This is particularly important when litigation gives rise to a series of procedural steps.188

138. The 1977 Special Commission also pointed out the desirability of not changing the order of items on the form, in order to avoid misunderstandings.189

139. The Model Form is in three parts (see Annex 2 at pp. 125 et seq.): (i) a Request to the foreign Central Authority; (ii) a Certificate to be completed and returned by that Central Authority or other competent authority of the requested State (the Certificate isOnly printed on the reverse side of the Request); and (iii) a form entitled “Summary of the document to be served” for the person to be served.

140. The Special Commission has recommended that the Model Form not be amended.190 With this in mind, although it might perhaps be easier for the forwarding authority to complete the Model Form if the order of the parts were to be changed (e.g., (i) Request, (ii) Summary of the document to be served, andUse (iii) Certificate ), this Handbook follows the order of the Model Form as stated in the Convention (i.e., (i) Request, (ii) Certificate, and (iii) Summary of the document to be served).

Drafting tips for preparing a request for service

141. The Special Commission has noted the importance of completing Model Forms in a full, correct and clear manner, preferably using word processing technology and not by hand (see also Annex 6, Guidelines for completing the Model Form).191 The Special Commission hasOfficial further noted that “the appropriate use of the Model Form can mitigate delays and avoid unnecessary costs”.192.

For

187 In the case of Northrup King Corp. v. Compania Productora Semillas Algodoneras Selectas, S.A., 51 F.3d 1383 (8th Cir. 1995), the Court of Appeals confirmed that a duplicate copy of the document is sufficient on the basis of this provision. 188 Report of the 1977 SC (op. cit. note 123), p. 385. 189 Ibid., p. 386. 190 See C&R No 30 of the 2009 SC. 191 In practice, some Contracting States execute requests for service even though they contain minor mistakes in form, such as fields that have not been completed. See, e.g., Federal Supreme Court of Switzerland, 5A_840/2009, decision of 30 April 2010. However, inaccuracies, ommissions, or errors in the request for service must be avoided. 192 See C&R No 25 of the 2014 SC. 48 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

142. The use of an electronic version of the Model Form is encouraged. The Permanent Bureau has developed fillable bilingual and trilingual versions of the Model Form in both Word and PDF formats that facilitate completion in electronic form. These forms are available on the Service Section of the Hague Conference website. Contracting States are invited to submit copies of the Model Form in their languages to the Permanent Bureau for the purpose of developing trilingual forms.193

(1) The Request

143. The Request must be filled in by the forwarding authority of the requesting State and must specify:

1) the identity and address of the forwarding authority;

2) the identity and address of the requested authority;

3) the identity and address of the addressee; Only

4) the method for service selected under Article 5(1)(a), 5(1)(b) or 5(2) (by deleting as appropriate and mentioning, if applicable, the particular method requested);

5) the presence or absence of one or more annexes to the document to be served, by deleting as appropriate; and Use

6) a list of the documents and annexes accompanying the service request.

144. The Request must be dated and signed by the forwarding authority.194 In addition, the Special Commission has recommended the entry in the Request Form of information relating to the competence of the forwarding authority (procedural rules or legislation of the requesting State authorising that authority to send service requests).195 Such information could easily be added in the box reserved for the forwarding authority’s identity and address.

145. The Special CommissionOfficial has further recommended that forwarding authorities include information about the nature of the cause of action, as well as the date of birth of the person to be served.196 The former is especially relevant where a request may give rise to doubts as to whether it falls within the scope of the Convention.197

146. Some huissiers de justice (especially in Belgium and the Netherlands) have made certain Forcriticisms of the Request Form. In their view, the form does not provide enough information to foreign recipients of claims for payment (which account for 90% of documents served). In order for the defendant to be able to enter a better defence, or on the contrary to decide

193 C&R No 27 of the 2014 SC. 194 See Scheck v. the Republic of Argentina (op. cit. note 41), noting that the request for service was not defective when two methods of service had been selected and the signature on the request was not original. 195 C&R Nos 48 and 49 of the 2003 SC; C&R No 30 of the 2009 SC. See also comments in paras 121 et seq. 196 C&R No 30 of the 2009 SC. 197 Ibid., No 14. CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 49

to pay the amount claimed, the form should contain information as to the amount due, the location of and period for payment, the forms of defence and the consequences for the defendant of any defence.198

(2) The Certificate

147. The Certificate (see also paras 209 et seq.) is to be filled out by the Central Authority or other competent authority of the requested State (Art. 6). Once it is completed, the Certificate is returned to the forwarding authority identified in the Request for service. The Certificate should specify:

1) if it has been possible to execute the service request:

i) the date and location of service; ii) the form of service used (Art. 5(1)(a), 5(1)(b) or 5(2), identified in the Certificate as a), b) or c)), by deleting as appropriate; iii) the identity of the person to whom the documents have been delivered, his or her capacity and, if applicable, connection with the addressee of the document;199 Only

2) if the service request has not been executed, the reasons for the failure;200

3) in all cases:

i) whether reimbursement of costs is required under Article 12(2), by deleting as appropriate; Use ii) a list of the documents returned with the Certificate; and iii) if applicable, a list of the documents establishing the service.

148. Finally, the Certificate should be dated and signed (signature or stamp) by the competent authority of the requested State. If the Certificate has not been completed by the Central Authority or a judicial authority (e.g., a huissier de justice), the forwarding authority may require that the Certificate be countersigned by one of these authorities (Art. 6(3)).

149. The Special Commission has encouraged the authorities completing the Certificate to indicate the relevant provisions in the law of the requested State under which service was effected.201 Official

198 See Royal Professional Association of Judicial Officers (Koninklijke Vereniging van Gerechtsdeurwaarders), “Betekening in het buitenland en de Europese Titel”, Proceedings of the ConferenceFor organised by the Dutch Royal Association of Bailiffs with support from the Hague Conference, Arnhem, 1996. 199 In Switzerland, the Federal Supreme Court has held that even if the Certificate does not contain information regarding the name and position of the person who received the document, service will be considered valid if the State of destination has stated that the document has been served (decision of 7 January 2011, 5A_160/2010). However, the importance of including such information in the Certificate cannot be overstated. 200 If service failed because the addressee refused service, this should be mentioned in the Certificate. In Chamberlain v. Integraclick, Inc., 2011 WL 1456878 (N.D. Fla.), although the defendant refused to accept service from the process server engaged by the Canadian Central Authority in accordance with Art. 5(1)(a), the United States court held that the defendant could not demand service under the Convention and then refuse such service, and found that the subsequent delivery of a copy of the summons and the complaint to the defendant's attorney, coupled with the previous attempt under the Service Convention, was sufficient and service was valid. 201 See C&R No 30 of the 2009 SC. 50 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

(3) The Summary of the document to be served

150. By virtue of Article 5(4), the part of the request conforming to the Model Form containing the “Summary of the document” is delivered to the addressee. In order to provide the addressee with the most accurate information possible, instructions for filling out the form have been drawn up (see Annex 4 at pp. 137 et seq.). The Fourteenth Session of the Hague Conference (which met from 6 to 25 October 1980) also recommended that the “Summary of the documents” be preceded by a Warning relating to the legal nature of the document delivered. This Warning should also mention the addressee’s identity and address as well as the person or authority that the addressee may approach to obtain information regarding the availability of legal aid or a legal opinion in the document’s State of origin (see the Warning recommended for use by the Fourteenth Session, Annex 3 at pp. 131 et seq.). While the inclusion of the Warning remains optional, the Special Commission has further urged States Parties to widely encourage its use.202

(4) Languages used (Art. 7)

Only

151. The items printed on the Form must be either in French or in English. They may also be drafted in the official language or one of the official languages of the requesting State (Art. 7(1)).203 The blanks corresponding to these items shall be completed either in the language of the requested State, or in French, or in English (Art. 7(2)).204 States Parties may by agreement provide for other requirements among themselves with respect to the language(s) to be used (Art. 20(b)). Unlike the first sentenceUse of Article 7, the Fourteenth Session recommended that the items printed in the “Summary of the document” be drafted in both French and English.205

202 See C&R No 31 of the 2009 SC. 203 See, e.g., the decisionOfficial by the Federal Supreme Court of Switzerland , X. SA v. Y. AG, 15 September 2003, ATF 129 III 750, 4C.132/2003, p. 756. 204 Ibid. In this case, the request was sent to France (to the relevant Procureur de la République), but at least some of the blanks were completed in German. The Federal Supreme Court of Switzerland concluded that the request was formally defective. However, the Court went on to state that a formal defect of the request does not necessarily lead to invalid service in the requested State if the relevant CentralFor Authority executes the request (or has it executed) despite the formal defect. The Court based its reasoning on Art. 4 of the Convention (see p. 756 of the decision), which requires the Central Authority to “promptly inform the applicant and specify its objection to the request” if the latter does not comply with the provisions of the Convention (temporary refusal of the request, see paras 218 and 219). Referring to T. Bischof (op. cit. note 11), pp. 279-280, the Court held that action under Art. 4 is only suitable where the formal defects render execution of the request temporarily impossible; according to the Court, this is not the case where the Central Authority understands the request in spite of the wrong language used to fill in the blanks of the Request Form. By executing the request, the Central Authority confirmed that it understood the request. The Court then examined whether service had been effected validly. Emphasising that service was effected by informal delivery, thus making the translation of the documents unnecessary, the Court concluded that service in France was valid (see p. 756 of the decision). 205 For more details on the Recommendation adopted by the Fourteenth Session (Annex 3 at pp. 131 et seq.), see the Explanatory Report drawn up by G. Möller and which is reproduced in Annex 5 at pp. 143 et seq. CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 51

152. Moreover, it should be noted that Mexico and the Russian Federation have declared that it will be appreciated if the blanks of the Model Form are completed in Spanish and Russian, respectively.206 However, this does not affect the right for Contracting States to fill out the Model Form in English or French.207 In this regard, the Special Commission has recalled that under Article 7(2) of the Convention, the blanks in the Model Form are to be completed in either English or French, or in (one of) the official language(s) of the requested State.208

(5) Mandatory use of the Model Form

153. Use of the Model Form is mandatory under Article 3(1).209 The Special Commission meeting has strongly reaffirmed the mandatory nature of the Model Form and has urged all relevant authorities in States Parties to use it.210

154. The Fourteenth Session even recommended that the part of the form containing the “Summary”, accompanied by the Warning, be used in all cases when a judicial or extrajudicial document in civil or commercial matters is to be served abroad, i.e., not only for transmission through the main channel of the Central Authority, but also for transmission through the alternative channels provided for in the Convention.Only In addition, the practice, in certain States, of returning the Certificate to the forwarding authority even if transmission of the request has been executed through the alternative channels provided for in Article 10(b) and (c) is to be approved and encouraged. The Special Commission has noted, however, that, “despite the Recommendation of the Fourteenth Session of 1980 of the Hague Conference, the ‘Summary’ and ‘Warning’ of the Model Form rarely accompany requests for service when one of the alternative channels of transmission is used” and urged “State Parties to widely encourage the useUse of the Model Fo rm with the ‘Summary’ and ‘Warning’.”211

206 All the declarationsOfficial of Contracting States are available on the Service Section of the Hague Conference website. 207 See Conclusion and Recommendation No 12 of the Workshop on the Hague Service Convention held on 28 November 2011 in Mexico City, which is available on the Service Section of the Hague Conference website. 208 SeeFor C&R No 32 of the 2009 SC. 209 See, e.g., the decision by the Federal Supreme Court of Switzerland (op. cit. note 203), p. 755; see also the decision of the Supervisory authority on debt enforcement proceedings for the Canton of Schaffhausen (Switzerland), (l’autorité de surveillance en matière de poursuites du canton de Schaffhouse) dated 13 September 2002 (ABSH-2002-87 94), which considered as being defective service of a demand for payment without use of the Model Form, in particular of the Summary of the document. Accordingly, the authority decided to restore the period for objection specified in the demand. 210 See C&R No 29 of the 2009 SC and C&R No 25 of the 2014 SC. The usefulness of the Model Form has also been acknowledged in cases where bilateral agreements containing provisions that are more favourable to the transmission of documents for service than those under the Service Convention provide a form. The Federal Supreme Court of Switzerland has noted that the use of the Model Form in these cases does not render service invalid, particularly if the receiving authority has accepted to effect service despite a formal irregularity: Federal Supreme Court of Switzerland, 4 March 2008, 4A_392/2007 /len. 211 See C&R No 31 of the 2009 SC. 52 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

C. Request for service not subject to legalisation or other equivalent formality – no need to send “original” documents to be served

155. Article 3 further provides that a Request conforming to the model annexed to the Convention may be forwarded to the Central Authority of the requested State “without any requirement of legalisation or other equivalent formality” (the most important example of an equivalent formality being, of course, the Hague Apostille).212

156. It sometimes does happen that a Central Authority informs the forwarding authority that documents accompanying any request may not be served unless they are “original”, i.e., unless they bear the seal and stamp of the issuing court. Furthermore, some courts seem to require full legalisation of the documents to be served. This practice is erroneous.

157. It is true that if one takes a very formalistic position, the dispense for legalisation in Article 3(1) only refers to the request, not to the document(s) to be served. According to Article 3(2), the documents to be served are an annex to the Request. Against this background, it seems difficult to find a valid reason why the documentsOnly in the annex would have to be legalised (or require any equivalent formality) if the actual Request itself is dispensed from any such obligation. In other words, dispensing of legalisation must cover both the request and its annex(es), i.e., also the documents to be served.

158. There are potentially two problems with the requirement that the documents served should be the “original” documents. First, the original of the document(s) often has to be filed with the court; in all relevant systems, the requirementUse imposed by the receiving Central Authority therefore creates a vicious circle. In addition, the requirement that the documents bear the original seal and stamp of the issuing court renders impossible electronic transmission of the documents from the forwarding authority to the Central Authority of the requested State. Electronic transmission, which is already widely used, should be encouraged as it allows the saving of valuable time. The system of electronic transmission, however, cannot work if the requested State requires paper documents with original seals and stamps. The strict requirement of original seals and stamps makes it impossible to apply the theory of functional equivalence according to which it is enough that a (scanned) document sent electronically is capable of being reproduced in tangible form (i.e., printed) on any subsequent occasion. Hence, the fact that an electronic copy of the original canOfficial be reproduced (and display the seals and stamps on the document) in the requested State should be considered enough. However, the electronic transmission needs to fulfil certain basic requirements to ensure non-repudiation of the request and the documents. In particular, the fact that the request is really sent by a competent forwarding authority (and not, for example, by an impostor), must be independently verifiable. In addition, the request must be invalidated if either the Request Form or the documents Forare improperly modified in the course of the transmission.

212 The rule has been strongly recalled by the Special Commission (see C&R No 34 of the 2009 SC). CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 53

D. No power for the Central Authority of the requested State to screen the documents for service

159. The Convention does not provide a mechanism by which the Central Authority of the requested State shall accept or reject particular requests based on the content of the documents to be served – the Central Authority does not have the power to screen the documents and assess or appraise their content or the merits of the case. The power of the Central Authority is limited to verifying (i) that the Request is properly filled in (see paras 143 et seq.; see also paras 218 and 219), (ii) that the matter relates to a “civil or commercial matter” (see paras 56 et seq.), and (iii) that compliance with the Request will not infringe the requested State’s sovereignty or security (see paras 220 et seq.).

160. It is not for the Central Authority of the requested State to determine if a document needs to be served and which document needs to be served – these are clearly matters for the lex fori to decide (see paras 29 et seq. and paras 52 et seq.).

161. It sometimes does happen that a Central Authority rejects requests for service on the basis that, for example, multiple service attempts for the same case with the same index number are not possible, or for the kind of action brought before the court Onlyof the requesting State, the law of the requested State requires certain documents to be served as well. This practice is erroneous.

E. Execution of the request for service Use

a) Methods of service (Art. 5)

162. The Central Authority of the requested State will execute the request for service or cause it to be executed either by (i) a method provided for under the law of the requested State (formal service), or (ii) a particular method requested by the forwarding authority, unless it is incompatible with the law of the requested State (service by a particular method), or (iii) delivery to the addressee who accepts the document voluntarily (informal delivery). The Central Authority decides itself upon the form of service, i.e., formal service or informal delivery,Official unless the forwarding authority has requested the use of a particular method.213

(1) Formal service (Art. 5(1)(a))

For 163. In this case, the Central Authority serves the document or causes it to be served in accordance with the forms required by the legislation of the requested State for service of documents issued in that State and intended for persons located on its territory. The Special Commission has recalled “that execution of a request for service under Article 5(1)(a) is by a method prescribed by the internal law of the requested State and chosen by that State”.214

213 Formal service may include a requirement of translation of the document into the official language or one of the official languages of the requested State (see paras 171 et seq.) and a reimbursement of expenses (see paras 186 et seq.). 214 See C&R No 19 of the 2009 SC. 54 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

164. States Parties have developed different practices in this respect.215 In certain States, the Central Authority is always involved through an official acting in accordance with the formalities required for the service of documents issued in the State. In the United States, under the system that was in place until 2003, the first attempt of service was always made by mail; if this attempt failed, two attempts at personal service (involving marshals) were made. Thus, formal service was only used as a fall-back. Under the new system (see para. 116), personal service (involving a professional process server) is the preferred method used on all requests. Marshals are no longer involved in the execution of requests for service. In other States, such as Belgium and the Netherlands, the use of formal service, through huissiers, occurs only when the addressee has not accepted the document voluntarily or in the case of France at the request of the forwarding authority.216 This may lead to the failure to perform the request for service if the document to be served has not been translated into the language of the requested State and that State has made translation a condition of formal service.217 According to the responses to the 2008 Questionnaire, service under Article 5(1)(a) was overwhelmingly the preferred method for execution of both incoming and outgoing requests for service.218

165. The Convention contains no provisions relating to the validity of service (see, however, Arts 15 and 16, and the comments in paras 6 et seq.). It therefore falls on the court of the requesting State to determine whether service has been validly performed according to the law 219 Only of the requested State (see para. 53) and to draw the consequences of failure to serve (e.g., nullity of the summons).220 If it has been possible to execute the request for service, the effect of the Certificate is a presumption that the service was valid (see para. 216). The Federal Supreme Court of Switzerland held that service validly performed according to the law of the requested State must be recognised by any State Party.221

Use (2) Service by a particular method (Art. 5(1)(b))

166. In such a case, the Central Authority serves the document or arranges to have it served by the particular method requested by the forwarding authority, unless it is incompatible with the law of the requested State. This provision was adopted at the request of certain

215 See the information obtained by the Permanent Bureau from the States Parties having responded to the 2003 and 2008 Questionnaires,Official available on the Hague Conference website. 216 Likewise, in the Special Administrative Region of Macao (China), the other Authority (Art. 18(1)) first performs service by registered post with notification of receipt which, if it fails, is followed by personal service through a court officer. 217 See, e.g., a decision rendered by the Court of Appeal of Paris, Vogel v. Mannesmann Kienzle GmbH, Chamber 21, Section B, 29 January 1987, Juris-Data 022287. 218 For See 2009 synopsis of responses. 219 Courts in the United States have accordingly had to determine whether service was validly performed under the law of New Brunswick in Canada (Brown v. Brookville Transport Ltd., 1999 WL 99193 (Conn. Super. Ct. 1999)) and German law (Frederick v. Hydro Aluminum S.A., 153 F.R.D. 120 (E.D. Mich. 1994)). 220 See in particular a decision from the Court of Appeal of Paris, Sté de droit britannique Bard Int’l Ltd v. Morison, Chamber 22, Section A, 24 September 1985, Juris-Data 025625. In Handelsgericht St. Gallen, 13 November 2008, HG.2007.87, a Swiss court held that if a party refuses a document served under Art. 5(1)(a) of the Convention and chooses not to participate in the proceedings, he or she forfeits his or her right to be heard in relation to that claim. In that case, it was therefore unnecessary to publish a notice in a newspaper or to extend the period of time to answer the complaint. This decision was confirmed by the Cantonal Court of Cassation, 10 September 2009, GVP.2009.65. 221 Crédit Commercial de France (Suisse) SA v. X, TF, 15 June 1999, SJ 2000, p. 89. CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 55

States concerned that service according to the law of the requested State would not meet their own service requirements. The absence of a particular method of service in domestic law is not sufficient to allow a requested State to refuse to use it. It must be incompatible with its laws.222

167. During the 1977 Special Commission meeting, the discussion confirmed that requests for use of a particular method are fairly rare. When such a method has been requested, for instance in the United States, the requests could be granted as the procedure requested was not incompatible with local law.223 The Special Commission has noted that “[w]here the requested method is prescribed by the internal law of the requested State and ordinarily used in that State for the execution of requests, the requested State is encouraged not to charge for the execution of the request, without prejudice to Article 12(2) a)”.224

168. The lack of recent case law dealing with this provision together with States Parties responses to the 2003 and 2008 Questionnaires, suggest that this method of service remains little used in practice. In their responses to the 2008 Questionnaire, some States reported having received requests for personal service as a particular method under Article 5(1)(b).

Only (3) Informal delivery (Art. 5(2))

169. Article 5(2) provides that, unless a particular method is requested, the document may always be delivered to an addressee who accepts it voluntarily. This method of informal delivery is used in many States Parties (see also note 215 and accompanying text).225 In France, unless the forwarding authority has Userequested otherwise, requests for service will be executed by informal delivery. The domestic law of some Contracting States does not provide for informal delivery. The Special Commission has recognised, however, that “informal delivery is a valid form of service under the Service Convention when the documents are voluntarily accepted by the addressee”, even if the domestic law of the requested State does not provide for this method of service.226 For example, informal delivery is used in mainland China where the procedural law does not recognise this form of service provided for by the Convention. The person delivering the document to the addressee is frequently a police officer. In most cases, addressees accept the document voluntarily or go to withdraw it from the police station, which dispenses with the need for translation of the documents to be served (see para. 178), and renders service free of costs. Official

For

222 Explanatory Report (op. cit. note 9), p. 369. 223 Report of the 1977 SC (op. cit. note 123), p. 384. 224 See C&R No 20 of the 2009 SC. 225 For example, in Swiss cantons, the Central Authority will perform an informal service in cases where the document is not drafted in or translated into the Authority's language. The addressee of the document may refuse that service. In addition, formal service is impossible owing to the absence of a translation. The Central Authority or cantonal tribunal will mention on the Certificate returned to the forwarding authority that service of documents failed and will inform the requesting State that service must be made under Art. 5(1)(a) and that a translation will be required. See T. Bischof (op. cit. note 11), pp. 286-287 and the practical information chart for Switzerland available on the Service Section of the Hague Conference website. 226 C&R No 29 of the 2014 SC. 56 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

A German court has held that delivery of the document to the secretary of the defendant company, in lieu of the managing partner, was a service by proxy (Ersatzzustellung) and hence could not be treated as informal delivery.227 In a more recent case, another German court held that informal delivery could be effected to the addressee personally or to his or her representative for the purposes of service (Zustellungsbevollmächtigter) who accepts the document voluntarily.228

170. The addressee may always refuse informal delivery of the document. In that case, the Central Authority will either attempt formal service, or return the request to the forwarding authority, stating that it could not be executed.229 Formal service often depends on translation of the document into the language of the requested State (Art. 5(3); on the translation requirements, see paras 171 et seq.).230 Absent such a translation, formal service may be refused by the Central Authority and the request returned to the forwarding authority. Unless there are additional agreements on this point, the Central Authority is not bound to cause the document to be served to be translated at its own expense.

b) The translation requirement (Art. 5(3))

Only (1) General comments

171. Article 5(3) states that “[i]f the document is to be served under the first paragraph above, the Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed”. This provision in Article 5 raises several interpretation issues which are of varyingUse degrees of importance.

172. The first question raised is whether the language quoted above forms the second paragraph of Article 5 (as mentioned in the second edition of this Handbook, p. 37) or the third paragraph of Article 5. Obviously, this is not a question of substance; nonetheless, the question has been the source of some confusion in the past. With a view to avoiding any further misunderstandings, the quoted language should be read as forming part of the third paragraph of Article 5.231

173. Secondly, it is important to stress that Article 5 only deals with the translation requirements relating to the documents to be served, as opposed to the request for service, the language requirements ofOfficial which are governed by Article 7 (see para. 151).232

For

227 Isabelle Lancray SA v. Peters und Sickert KG (BGH, 20 September 1990 (IX ZB 1/88)), IPRspr. 1990, No 200, pp. 409-411. 228 OLG Düsseldorf, 12 March 1999, 3 W 13/99; ruling received from the German Central Authority. 229 See for instance in the Netherlands, V. v. Raad voor de Kinderbescherming te Rotterdam, HR 20 May 1994, NJ 1994, p. 589; Van Zelm BV v. Martinus Bomas (op. cit. note 137); HR 31 May 1996, NJ 1997, p. 29. 230 For a case in which, despite translation of the document, the Central Authority did not perform formal service after the addressee had refused informal delivery of the document, see OLG Saarbrücken, 1 October 1993, IPRax 1995, p. 35. 231 Explanatory Report (op. cit. note 9), p. 370; see also T. Bischof (op. cit. note 11), p. 305. 232 Taylor v. Uniden Corp. of America, 622 F. Supp. 1011 (E.D. Mo. 1985). CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 57

174. A third issue is the meaning of the phrase “under the first paragraph” used in Article 5(3). Some authors treat it as a reference to Article 5(1)(a) only,233 whereas others consider the “first paragraph” to include both of its sub-paragraphs (a) and (b).234 The Special Commission is of the view that the latter is the correct interpretation.235 The Central Authority236 must be able to request a translation of the document when it performs service by a particular method requested by the forwarding authority: that particular method may seem peculiar to the person to be served. Protecting the latter’s interests justifies the requirement of a translation in that case.

175. Furthermore, in States with several official languages, attention may have to be paid to the prevalent language of the region in question.237 In addition, an official translation (i.e., a translation carried out by a sworn, affirmed or accredited translator) may be required. In order to ensure that a request for service complies with the translation requirements of a given State, forwarding authorities are encouraged to consult the Service Section of the Hague Conference website and / or contact the relevant Central Authoriy to verify whether there are any translation requirements in place before forwarding requests for service under Article 5(1) of the Convention. Only 176. Finally, it is important to stress that States Parties may deviate from Article 5(3) by agreement among themselves (Art. 20 (b)).238

177. The Special Commission has noted the practices of some States not to require translation in certain cases, for example when the addressee is shown to understand the language in which the documents to be served are written, and has emphasised the importance of a properly completed form,Use in particular the Summary (see para. 150).239

Official

233 G.B. Born & P.B. Rutledge, International Civil Litigation in United States Courts, 4th ed., United States, Aspen Publishers, Kluwer Law International, 2007, pp. 861-862, and dicta in Vazquez v. Sund Emba AB, 152 A.D.2d 398 (N.Y. App. Div. 1989). 234 T. BischofFor (op. cit. note 11), p. 305 in fine; see also D. McClean, International Co-operation in Civil and Criminal Matters, 3rd ed., Oxford, Oxford University Press, 2012, p. 39. 235 While the Special Commission has not made an express statement about this interpretation, it can be inferred by reading C&R Nos 67 and 68 of the 2003 SC. 236 It is indeed for the Central Authority to demand a translation, not the party addressed, see Liège CA, 26 May 1992, Pasicrisie belge 1992, II 73. 237 E.g., Flemish in Antwerpen (OLG Hamm, 27 February 1985, 20 U 222/84, IPRax 1986, p. 104). 238 For instance, the application of the Franco-Swedish Convention for mutual judicial assistance of 7 March 1965 affects the scope of the translation requirement laid down by Sweden. In that instance, service of a document drafted in French was considered to be valid under the bilateral agreement, despite the general declaration made by Sweden with respect to Art. 5(3) of the Convention. Cie Union et Phénix espagnol v. Skandia Transport, CA Paris, Chamber 5, Section A, 25 February 1987, Juris- Data 023490. 239 See C&R No 26 of the 2009 SC. 58 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

178. Since Article 5(3) only refers to Article 5(1) and not to Article 5(2), it clearly follows that informal delivery consistent with Article 5(2) requires translation neither of the document nor of the accompanying attachments into the language of the requested State. Thus, the French Cour de cassation correctly held that:

“the formality of translation is provided for only in the case where the requesting authority has requested service of the document in the form required, for the performance of similar service, by the domestic legislation of the requested authority, or in a special form, and not in the case of informal delivery to the person concerned”.240 [translation by the Permanent Bureau]

179. In this regard, the Special Commission has recalled that no translation of the documents to be served is required for informal delivery241 and has in fact observed that a large majority of States Parties do not require translation for service through informal delivery.242

180. Likewise, the alternative channels of transmission provided for under the Convention do not in principle require translation of the document to be served.243 The Special Commission has confirmed this interpretation, while noting that in isolated cases, translation requirements are imposed by a State’s domestic law.244 For contraryOnly decisions with respect to service through postal channels, see paragraphs 283 et seq.

(2) National practice

181. The implementation of Article 5(3) varies from Useone State Party to another. Several States have declared in advance that their authorities will perform formal service only if the document to be served is written in or translated into their official language (or one of their official languages),245 thereby depriving their Central Authorities of the discretion conferred by

240 Richard Ott v. S.A. Montlev, Cass., Ch. Civ. 1, 25 April 1974, Clunet 1975, p. 547. In the same sense, Direction générale d'exploitation des aéroports de l'Etat d'Ankara v. Julien Roche, CA Paris, Chamber 1, Section C, 17 June 1994, No RG 92.24984; Fessmann GmbH v. Réorganisation Modernisation de l'industrie alimentaire, CA Colmar, Ch. Civ. 2, 25 February 1994, Juris-Data 044246. See also in the same sense the decision of the Federal Supreme Court of Switzerland (op. cit. note 204), and Federal Supreme Court, 30 OfficialApril 2010, 5A_840/2009 (op. cit. note 191); OLG Saarbrücken (Germany), 5th Zivilsenat, 15 June 1992, RIW 1993, pp. 418-420; Arrondissementsrechtsbank Middelburg (Netherlands), 4 July 1984, NIPR 1984, p. 329; Tribunal de Relaçao (Porto) (Portugal), 8 November 1994, CJ Ano XIX, Vol. V, 1994, 208. 241 C&R No 28 of the 2014 SC. 242 C&RFor No 60 of the 2003 SC; C&R No 25 of the 2009 SC. See also responses to the 2008 Questionnaire. 243 In support, Heredia v. Transport S.A.S. Inc., 101 F. Supp. 2d 158 (S.D.N.Y. 2000); Harris v. NGK North American, Inc. (op. cit. note 150), where translation into Japanese was not required for service by postal channels. 244 C&R No 65 of the 2003 SC; C&R No 25 of the 2009 SC. 245 E.g., Argentina, Australia, Botswana, Bulgaria, Canada, China (Special Administrative Region of Macao only), Croatia, Germany (see in this respect OLG Düsseldorf, 3rd Zivilsenat, 2 September 1998, IPRax 2000, pp. 289-291), Greece, , India, Luxembourg, Mexico, Republic of Macedonia, Republic of Moldova, Russian Federation, , Sweden, Switzerland (only in cases where the addressee does not voluntarily accept a document), the United Kingdom and Venezuela. For cases in which service was held to be invalid for failure to observe the German requirement, see Vorhees v. Fischer & Krecke GmbH, 697 F.2d 574 (4th Cir. 1983); Harris v Browning-Ferris Industries Chemical Services, Inc., 100 F.R.D. 775 (M.D. La. 1984); Cipolla v. Picard Porsche Audi Inc., 496 A.2d 130 (R.I. 1985); Brown v. Bellaplast Maschinenbau, 104 F.R.D. 585 (E.D. Pa. 1985); Isabelle Lancray SA v. CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 59

that provision (Art. 5(3) states that the Central Authority may require a translation, not that it shall or must). With the introduction of this discretionary power in favour of the Central Authorities, the negotiators of the 1965 Convention intended to provide more flexibility than in the 1954 Civil Procedure Convention when addressing translation requirements (see Art. 3(2) of the 1954 Convention). Thus, the States which are Parties to the Service Convention but decide to remove this flexibility by depriving their Central Authorities of any discretionary power, effectively adopt the former, rigid status. In certain cases, the requirement of a mandatory translation is hardly justified and may even be an impediment to effective and speedy assistance. Take the example of a requirement to translate into German a writ of summons or a judgment written in Spanish that is to be served on a Mexican addressee who spent his entire life in Mexico but only recently established him- or herself in Berlin or Zurich and who is clearly more at ease with Spanish than with German.246 This example may easily be altered so as to cover many similar scenarios (e.g., substitute Chinese for German and English for Spanish, United States for Mexican and for Mexico, and Shanghai for Berlin or Zurich).

182. In any event, the States which deprive their Central Authorities of the discretionary power offered by the Convention – by making a declaration for which the Convention provides no explicit basis – impose an additional burden on forwarding authorities. This is all the more striking as the Summary of the document to be served, which is partOnly of the Model Form annexed to the Convention and which is to be completed either in the language of the requested State or in French and / or English (see para. 151), should provide a Central Authority with all the relevant information needed to consider the nature and purpose of the document, and to assess whether compliance with the request would infringe the sovereignty or security of the requested State (Art. 13, see para. 220).

183. It should be noted that a large number of UseStates having responded to the 2003 and 2008 Questionnaires have stated that they required a translation of the documents to be served. Others (Israel and the Netherlands for instance) do not require a translation of the document itself, provided that the Summary of the document to be served is drafted in the specified language. If a translation is required, at least one court held that the whole document must be translated, including any appended material treated by the law of the State of origin as an essential part of the document.247 Yet other States act according to circumstances. Some Central Authorities are apparently prepared to serve documents in any language which the addressee is likely to understand248 or where there is evidence that the addressee is fluent in the foreign language;249 we agree with a commentator who has indicated that “a short document addressed to a commercial firm in English or a language similar to that ofOfficial [the requested State] (e.g., a document in Norwegian for service in Sweden)

Peters und Sickert KG (op. cit. note 227); Pennsylvania Orthopedic Association v. Mercedes-Benz AG, 160 F.R.D. 58 (E.D. Pa. 1995). In many of these cases service was not only held to be invalid because of Forthe lack of translation, but also because it was effected by mail rather than through the main channel of the Central Authority (Germany objects to the use of service by mail, see para. 259). 246 Under Art. 8(1) of the 2007 EU Service Regulation (see paras 337 et seq.), the addressee may refuse to accept the document to be served at the time of service or by returning the document to the receiving agency within one week if it is not written in or accompanied by a translation into either: a language which the addressee understands or the official language of the Member State addressed (or, if there are several official languages in that Member State, the official language or one of the official languages of the place where service is to be effected). See note 475 and accompanying text. 247 D. McClean (op. cit. note 234), p. 39, note 80 and accompanying text, who refers to Teknekron Management Inc. v. Quante Fernmeldetechnik GmbH, 115 F.R.D. 175 (D. Nev. 1987). 248 See, e.g., Slovakia and the Ukraine, where an addressee who is a national of the requesting State is presumed to understand the language of the requesting State. 249 See, e.g., Czech Republic, Finland, Luxembourg, Norway, Spain, Sweden and the United Kingdom. See the responses to Question No 30 of the 2008 Questionnaire. 60 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

will be accepted, but a long document addressed to a private individual in a relatively obscure language will not”.250 In the Special Administrative Region of Hong Kong (China), under provision 3(1) of Order 69 of the Rules of the High Court, a translation of the documents is required, unless a foreign court or tribunal certifies that the addressee understands the language used.

184. In France, Article 688-6 of the CPC provides that the document shall be served in the language of the State of origin, but if the addressee does not know the language in which the document is drafted, he or she may refuse service and demand that it be translated or accompanied by a French translation (at the expense of the party requesting the service). As regards outgoing documents, French courts have ruled on many occasions on the consequences of the lack of a translation of French documents into the language of the requested State. One Court recognised service of a French summons performed in Germany as valid on the grounds that the lack of translation could not have affected the defendant’s rights as the defendant had appointed counsel in due time and had been the manager of a company in France, which implied sufficient knowledge of the French language. The Court held that the translation requirement was a mere option for the implementation of which there was no evidence in the specific case.251 A few years later, the same Court still considered that the Convention did not impose any translation obligation; accordingly, service in Germany of a document drafted in French was held to Only 252 be valid (the decision does not specify if formal service or informal delivery was effected). Similarly, in a case where a defendant domiciled in Turkey refused a document not translated into Turkish, a French court held that, because Turkey did not require that the document be translated into Turkish, the service had been made in accordance with the method prescribed by the requested State’s internal law for the service of documents in domestic actions upon persons who are within its territory.253 In contrast, another court indicated that by virtue of Article 5 of the Convention,Use French writ s of summons that were not translated into the languages of the addressees (in this case, a German company and a Turkish company) were invalid where the absence of a translation had infringed the rights of a defendant.254

(3) Recommendations

185. The Special Commission has stressed the importance of complying with the various translation requirements laid down by the domestic law of the States Parties.255 Against this background,Official one might first suggest that unless the forwarding authority has good reasons to believe that service by informal delivery will be accepted or that the addressee is

250 See D. McClean (op. cit. note 234), p. 40, note 82 and accompanying text, who refers to ArrondissementsrechtbankFor Breda, 21 April 1981 (no translation requirements for service in Turkey). 251 Weber v. Sarl Alwelis, CA Colmar, Ch. Civ. 1, 30 May 1984, Juris-Data 040920; by the same reasoning for service in Italy: Delvis Int’l v. Seric, CA Poitiers, Ch. Civ. 2, 30 October 1991, Juris-Data 050388. 252 Sté Lorch Weingut Weinkellerei GmbH v. Sté Geyl et Bastian SA, CA Colmar, Ch. Civ. 2, 18 January 1991, Juris-Data 043183. 253 Erdogan v. Erdogan, CA Metz, Ch. Famille, 29 June 2010, No 09/02294. 254 In effect, according to the Court of Appeal of Paris, as a question of defect of form, invalidity cannot be declared in the absence of any grievance. In that case, where the plaintiff, in appearing before the jurisdiction of a State that was not his own, took notice of the elements of the litigation to a point where he could draw a conclusion and submit pleadings, there was no justification for a grievance. Delos v. Sté Yunsa, CA Paris, Chamber 5, Section B, 19 March 1998, Juris-Data 021646. 255 For this purpose, the Special Commission invited the States Parties to provide the Permanent Bureau with any relevant information relating to the extent of the translation requirements for the execution of requests under Art. 5; C&R Nos 67 and 68 of the 2003 SC; C&R No 25 of the 2009 SC. CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 61

likely to understand the language of the document, he or she should supply a translation; otherwise, there is a risk of delay while the Central Authority reports that informal delivery has failed and requests a translation of the document.256 Even if there is no formal translation requirement, the provision of a translation may be advisable. There is some authority in the United States asserting that service on a person who does not understand the language of the documents in question does not comply with the requirement of due process. While it is true that the point was developed in a case to which the Convention did not apply,257 it has been taken up in subsequent Convention cases, though held unjustifiable on the facts.258 Again, one has to stress the importance of the Summary of the document to be served in this context.

c) Costs (Art. 12)

186. A State Party shall not charge for its services rendered under the Convention (Art. 12(1)). Thus, the services rendered by the Central Authority shall not give rise to the payment or reimbursement of any costs. However, under Article 12(2), a forwarding authority shall pay or reimburse the costs occasioned by the employment of a judicial officer or other competent person or by the use of a particular method. The SpecialOnly Commission has reaffirmed these rules; it has also urged States to ensure that the costs occasioned by the employment of a judicial officer or other competent person reflect actual expenses and be kept at a reasonable level259 and has invited Contracting States to provide all relevant information relating to costs to the Permanent Bureau for inclusion on the Service Section.260

187. The issue of costs had already been discussed at theUse Special Commission meetings of 1977 and 1989. It appeared in particular that the States Parties did not claim a reimbursement of expenses connected with service by informal delivery (Art. 5(2)).

188. Under Article 12(2)(a), service by formal channels (Art. 5(1)(a)) may give rise to a refund of costs whenever it involves the intervention of a judicial officer or competent person. For example, Belgium has noted that service of documents under Article 5(1)(a) and (b) implicates the use of a judicial officer and the costs must be reimbursed in accordance with Article 12 of the Convention.261 One of the welcome results of the 1977 Special Commission meeting was that several States abolished certain costs imposed for the involvement of their officials. For instance, the United Kingdom abolished all service costs except in specialOfficial cases; certain States such as Spain, Sweden and Switzerland demand no refund unless the service is performed by a particular method requested by the forwarding authority (Art. 12(2)(b)). Some States Parties have set either a fixed rate (e.g., , which charges a fee for services of a peace officer; Canada, for service of documents under Article 5 for the costs linked to the employment of a judicial officer or the use of a particular

For 256 See D. McClean (op. cit. note 234), pp. 39-40. 257 Julen v. Larsen, 25 Cal. App. 3d 325 (Cal. Ct. App. 1972). 258 Shoei Kako Co. Ltd v. Superior Court, 33 C.A.3d 808, 109 Cal. Rptr. 402 (Cal. Ct. App. 1973), where the Japanese defendant was familiar with English; see also H. Saeki Inc. v. Y. Ozaki, Tokyo District Court, 26 March 1990, Kin’yu-Shoji Hanrei (857) 39 [1991], summarised in M. Sumampouw, Les nouvelles Conventions de La Haye – leur application par les juges nationaux, Vol. V, The Hague, Martinus Nijhoff Publishers, 1996, p. 362. See also a Spanish decision finding that the absence of a translation of the documents to be served and of the service request was detrimental to the rights of the defence: Audiencia Provincial de Alicante, 5th section, 8 October 1997, AC 1997/2443. 259 C&R No 53 of the 2003 SC; C&R No 22 of the 2009 SC; C&R No 31 of the 2014 SC. 260 C&R No 54 of the 2003 SC; C&R No 22 of the 2009 SC; C&R No 32 of the 2014 SC. 261 See the declarations made by Belgium under the Service Convention. 62 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

method; and San Marino; see also the payment scheme put in place by the United States as a result of the outsourcing of the activities conducted by the Central Authority) or a system of flat-rate fees (e.g., Japan, for the intervention of marshals262).263 The advantage of these systems (fixed or flat-rate charge) is that they are transparent for foreign forwarding authorities.264

189. The Russian Federation made a declaration under Article 12 of the Convention according to which it considers the collection of costs by any Contracting State (with the exception of those provided for in Art. 12(2)(a) and (b)) as a refusal to uphold the Convention vis-à-vis the Russian Federation (see for more information para. 21).265

190. In their responses to the 2008 Questionnaire, the vast majority of States indicated that the costs incurred by formal service are generally borne by them as the requested State.266

191. Article 12(2)(b) implies that in the event of service by a particular method requested by the forwarding authority under Article 5(1)(b), the costs relating to the service are to be reimbursed by the forwarding authority whether or not it involved the intervention of a judicial officer or competent person. Thus in France, for the intervention of a huissier de justice at the forwarding authority’s express request, a fixed charge is due. Only 192. At the 2003 Special Commission, several delegations (e.g., China [for the Special Administrative Region of Hong Kong], Finland, Lithuania and Luxembourg) stated that they did not request the reimbursement of costs connected with service. In their responses to the 2008 Questionnaire, half of the States reported that the costs incurred by a particular method of service are generally borne by them as the requested State.267 In addition, bilateral agreements may have been made between certain States in order to exempt forwarding authorities from the reimbursement Useof such costs when the service concerns a case of a specific nature, such as the recovery of child maintenance.268

262 In Japan, a fixed charge is specified, differentiated according to whether the marshal performs service during working hours or not, and to which are to be added the marshal's travel expenses (fixed mileage allowance). 263 In these cases, reimbursementOfficial of the costs must frequently accompany the service request. 264 It is interesting to note that Art. 11(2) of the 2007 EU Service Regulation (see paras 337 et seq.) has implemented a system of fixed fees when employing a judicial officer or a competent person to effect service. This Art. reads as follows “[c]osts occasioned by recourse to a judicial officer or to a person competent under the law of the Member State addressed shall correspond to a single fixed fee laid down by that Member State in advance which respects the principles of proportionality and nonFor-discrimination. Member States shall communicate such fixed fees to the Commission”. 265 The Russian Federation has declared the following: “[it] assumes that in accordance with Article 12 of the Convention the service of judicial documents coming from a Contracting State shall not give rise to any payment or reimbursement of taxes or costs for the services rendered by the State addressed. Collection of such costs (with the exception of those provided for by subparas a) and b) of the second para. of Article 12) by any Contracting State shall be viewed by the Russian Federation as refusal to uphold the Convention in relation to the Russian Federation, and, consequently, the Russian Federation shall not apply the Convention in relation to this Contracting State”. This declaration is also available on the Service Section of the Hague Conference website. 266 See responses to Question No 32(a) of the 2008 Questionnaire. 267 See responses to Question No 32(b) of the 2008 Questionnaire. 268 Thus, the United States has stated that it has entered into bilateral agreements with several States in order to enable applicants to send their service requests directly to the state agencies dealing with child maintenance. CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 63

193. With regard to informal delivery, the vast majority of responding States to the 2008 Questionnaire indicated that costs incurred by informal delivery are covered by them as the requested State.269

194. With a view to facilitating the payments for costs incurred under the Service Convention, and in response to concerns expressed by some Contracting States, the Special Commission has acknowledged the advantages of electronic payments and has encouraged Contracting States to provide the Permanent Bureau with relevant information for inclusion in the practical information charts on the Service Section.270

d) Time of execution and the principle of speedy procedures

195. The Convention itself does not set a time-limit within which the request for service is to be performed. The Request Form (part of the Model Form annexed to the Convention, see paras 136 et seq.), however, states that the requested Central Authority should perform the service promptly.271 Practical experience has shown that the period for performance of the request varies from one State Party to another or even from one authority to another within the same State. In exceptional cases, an unduly long delay inOnly executing the request for service has had the effect that important deadlines imposed by the procedural law of the requesting State (for appearance, reply, or appeal) and which were specified in the document, had passed by the time of service on the addressee.272 Obviously, such delays are unacceptable.

196. It has even happened that the date for appearance had already passed by the time the request for service reached the requested CentralUse Authority. How a Central Authority should act when faced with this situation was first discussed at the 1977 Special Commission meeting. It was pointed out that deadlines for appearance are usually not final. It is very uncommon for the court to rule on the merits at the time-limit, as most legal systems practice postponement of hearings. In addition, Article 15 requires a court not to give judgment until it is established that (i) the document was served in accordance with the law of the requested State (or, in the case of an alternative channel of transmission, the State of destination) or actually delivered to the defendant or to the latter’s residence by another method provided for by the Convention, and (ii) that, in either of these cases, the service or the delivery was effected in sufficient time to enable the defendant to defend (see paras 304 et seq.). In any event, the experts considered that it was always in the defendant’s interestOfficial to be informed of proceedings brought against him or her from abroad. This is why the Special Commission decided to recommend that even if the period for appearance specified in the document had passed, the document would always

For

269 See responses to Question No 32(c) of the 2008 Questionnaire. 270 C&R No 32 of the 2014 SC. 271 See, on the front page of the Request Form (reproduced in Annex 2 at pp. 125 et seq.), the text under the boxes identifying the applicant and the receiving authority. It should also be noted that under Art. 6(2) of the Convention, the Certificate (i.e., the reverse side of the form) should mention the date of service. 272 The date of service on the addressee is entered on the Certificate on the reverse side of the Model Request Form. 64 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

be served unless the forwarding authority expressly specified otherwise. The Special Commission supported the suggestion by the expert of the United Kingdom that the Request Form could, if necessary, be supplemented by a statement that the document is to be served before a certain date, barring which, the document should be returned to the forwarding authority or should nevertheless be served as soon as possible. As regards periods for appeal or challenge, Article 16 affords some protection to the defendant, who may be relieved from the expiration of time for appeal (see paras 322 et seq.).

197. The Special Commission has adopted the following timelines with regard to the execution of requests for service:

“Aiming at further enhancing cross-border judicial co-operation among Contracting States, the SC recommends:

(a) If a forwarding authority has not received any acknowledgment of receipt of the request for service from the requested State within 30 calendar days following the sending of the request, it is encouraged to contact the Central Authority in the requested State to inquire about the status of the request. Such inquiry should be answered within a reasonable time.

(b) Where the request for service cannot be executed as Onlya result of inadequate information or document(s) forwarded, the Central Authority of the requested State is encouraged to contact, as promptly as possible, the forwarding authority in order to secure the missing information or document(s).

(c) Whenever the Central Authority of the requested State is considering, under Article 4, whether the request compliesUse with the provisions of the Convention, it is encouraged to take that decision within 30 calendar days of receipt of the request.

(d) If at any time during the execution of the request for service, an obstacle arises which may significantly delay or even prevent execution of the request, the Central Authority of the requested State is encouraged to communicate with the forwarding authority as promptly as possible.

(e) A request for execution of service should be executed as promptly as possible and States are encouraged to take measures to further improve the effective operation of the Convention. Official (f) If the forwarding authority has not received a certificate confirming service or non-service from the relevant authority of the requested State within a reasonable time after sending the request, it is encouraged to contact the Central Authority of the requested State to inquire about the status of the execution of the request and the inquiry should be answered within a Forreasonable time.

(g) The Central Authority of the requested State is encouraged to take all reasonable and appropriate steps to execute the request until such time as the forwarding authority advises that service is no longer required.

(h) The forwarding authority is also encouraged to specify in the request a time after which service is no longer required or inform the relevant authority of the requested State at any time that service is no longer required.”273

273 C&R No 23 of the 2009 SC. CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 65

198. The Special Commission then noted that once the request for service has been transmitted, any subsequent informal communication between the relevant authorities may be carried out by any appropriate means, including e-mail and fax.274

199. With regard to letter (f), the Special Commission has subsequently welcomed the practice followed by certain Contracting States of promptly answering enquiries from forwarding authorities and / or interested parties about the status of execution of requests for service, and encouraged all Contracting States to adopt this practice where possible. The Special Commission has also welcomed, more generally, the use of electronic tools to check the status of requests online, noting the importance of confidentiality and privacy considerations.275

200. In general, the Convention has significantly shortened the time for execution of requests for service transmitted from abroad; there are still cases, however, where execution of the request takes too long (in some cases up to a year).276 According to the responses to the 2013 Questionnaire, over 75% of incoming requests for service were executed in less than two months in the year 2012. Importantly, the number of incoming requests for service executed in more than 12 months decreased significantly, by almost 18% compared to the data collected in responses to the 2008 Questionnaire. As a result, only 0.5% of incoming requests are executed in more than 12 months, which is a welcome development.Only

201. Delays in the execution of the request for service can in turn entail considerable delay in the proceedings before the local court and thereby be in conflict with the principle of diligent proceedings, secured at the highest level by many treaties protecting human rights.277 In Europe, the European Court of Human Rights held that “[t]he reasonableness of the length of proceedings is to be assessed in the light of the circumstances of the case and having regard to the criteria laid down inUse the Court’s case law, in particular the complexity of the case, the behaviour of the applicant and the conduct of the relevant authorities”.278 It is usually accepted that the international character of a case in litigation is a complicating factor. The need for cross-border service cannot, however, justify extending the proceedings by more than a few months. Likewise, the behaviour of the competent authorities must be taken into account to determine whether the duration of proceedings is still reasonable. The competent authorities referred to are first the judicial authorities, but also the other services of the State, which may thus be bound by a duty of Official

274 Ibid., No 24. See for more information Annex 8 (The use of the information technology in the operation of the Service Convention). 275 C&R Nos 11 and 30 of the 2014 SC. 276 SeeFor D. McClean (op. cit. note 234), p. 40, note 85 and accompanying text, who refers to a US-Italian case (Quaranta v. Merlini, 237 Cal. Rptr. 19 (Cal. Ct. App. 1987)), in which three attempts were made to serve documents on the defendant in Italy, trying three different addresses and two different names; on each occasion the defendant could not be located or had already moved on. McClean points out that even between the United States and England, with no language problems to cause difficulty, it may take more than 180 days to effect service through the Central Authority system (referring to ITEL Container Int’l Corp. v. Atlanttrafik Express Service Ltd., 686 F. Supp. 438 (S.D.N.Y. 1988)). 277 Art. 6(1) of the ECHR provides that everyone is entitled to a hearing within a reasonable time. The American Convention on Human Rights, signed at San José on 22 November 1969, similarly provides, in Art. 8(1), that “[e]very person has the right to a hearing, with due guarantees and within a reasonable time [...]”. The African Charter on Human and Peoples’ Rights of 27 June 1981 also guarantees, in Art. 7, that “[e]very individual shall have the right to have his cause heard. This comprises: [...] (d) the right to be tried within a reasonable time [...]”. 278 Case X. v. France, No 18020/91, ECtHR, 31 March 1992, para. 32 and citations. 66 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

strict liability.279 States are accountable in this respect for the organisation and effectiveness of their Central Authorities. The treatment of endless delay in service caused by the lack of diligence and inefficiency of Central Authorities or other competent authorities as a breach of the principle of diligent proceedings cannot be ruled out.

e) The date of service

202. The Special Commission has noted that “the absence of a specific rule on the date of service has not caused any major problems in practice”.280

203. There might be situations in which the forwarding authority has forwarded a document for service abroad by using two different channels (e.g., through the Central Authority and the postal channel), and where the result is service of the document on the defendant on two occasions at two different times. A few questions may arise in such situations: which time, then, is to be taken into account, for instance, to determine whether the deadline to enter an appeal has been observed? According to the Belgian Cour de cassation,281 the time for appeal runs from the first service on the defendant, whereas according to the French Cour de cassation,282 the second service causes a second time for appeal toOnly run. The absence of a conventional rule relating to the date of service may thus lead to the development of divergent practices.

204. The date of service is also important for the plaintiff. Certain national procedural laws require service to be performed within a certain time, under penalty of nullity or lapse of the right of action.283 While most courts are not unduly formalistic and allow an exception to this rule to the plaintiff on the basis of the particularUse circumstances, 284 some apply these periods strictly.285 In some cases, the long time required for service may prevent plaintiffs from enforcing their rights, which in turn incites the use of alternative means of transmission or even the evasion of the Convention. A Swis court gave up trying to apply the Convention and accepted the service of procedural orders by means of publication in

279 L.E. Pettiti, E. DecauxOfficial & P.E. Imbert, La Convention européenne des Droits de l’Homme, Paris, Economica, 1995, p. 268. 280 C&R No 36 of the 2009 SC. 281 Decision of 4 November 1993, Pasicrisie belge, 1993, 1st part, p. 927. 282 Decisions of 9 May 1990 and 3 March 1993, see R. Perrot, “Jurisprudence française en matière de droitFor judiciaire privé, B. Procédure de l’instance : Jugements et voies de recours. Voies d’exécution et mesures conservatoires”, RTD civ. 1993, pp. 651-653, under “Voies de recours. Délai : point de départ en cas de notifications successives”. 283 Certain domestic procedural laws provide for exceptions from this rule when the document is to be transmitted abroad. See, e.g., Fed. R. Civ. Pro. 4(m) in the United States and for an explanation of that rule, Frederick v. Hydro Aluminum S.A. (op. cit. note 219) (discussing previous Fed. R. Civ. Pro. 4(j), which was superceded in 1993 by the current Fed. R. Civ. Pro. 4(m)); Pennsylvania Orthopedic Association v. Mercedes-Benz AG (op. cit. note 245). 284 In the United Kingdom: John Caygill v. Stena Offshore AS, Court of Session, Outer House, 20 March 1996; in the United States: Robillard v. Asahi Chemical Industry Co., Ltd, 1995 WL 681553 (Conn. Super. Ct. 1995); Broad v. Mannesmann Anlagenbau, A.G. (op. cit. note 66). 285 In the United States: Prom v. Sumitomo Rubber Industries, 592 N.W.2d 657 (Wis. Ct. App. 1999). In that case, the plaintiff had sought in vain to rely on the six-month period provided for under Art. 15(2)(b), which normally should have prevailed over domestic law, to have his service performed seven days after expiry of the sixty-day period required by Wisconsin law. CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 67

the official journal of the forum, on the grounds that service through the Spanish Central Authority was impracticable for each procedural instrument owing to the endless delay it involved.286 The Belgian and Luxembourg courts have resolved the difficulty in the plaintiff’s favour by holding that, as Belgian and Luxembourg law consider service to be complete as soon as the formalities required by their domestic laws have been performed, there is no reason to take account of the actual delivery of the document to its addressee residing abroad to determine whether that document was served within the statutory period.287

f) The system of double-dates for the Service Convention?

205. In order to resolve these problems, the 2000 EU Service Regulation (see paras 337 et seq.) introduced the system of double-dates (or dual-dating) for the main method of transmission, and the 2007 EU Service Regulation included a similar provision, but extended this system to other methods of transmission (Art. 9 of both EU Regulations). Under that system, two dates are to be distinguished: for the purposes of the plaintiff, the date of service is that when the plaintiff completed the action required for service abroad as provided for under the law of the State in which the document originates; on the otherOnly hand, for the addressee (defendant), the date of service is determined in accordance with the domestic legislation of the requested State. This system is supposed to allow the interests of the plaintiff and defendant to be better taken into account. Thus, the plaintiff wishing to comply with a limitation period imposed by the lex fori may comply with the requirements of that law only, without being at the mercy of the complications and possible delays that service abroad may cause. But that protection of the plaintiff is not provided to the defendant’s detriment, since for the latter, the date of serviceUse is determined in accordance with his or her own law.

206. However, any transposition of a system of double-dates into the scheme of the Service Convention would not fail to raise difficult issues. First, the Service Convention is not designed to amend the domestic rules of the States Parties to the Convention (see paras 6 et seq.). Yet the determination in a conventional rule of the date of service would be an interference in those States’ domestic laws. In addition, it is generally accepted that a court applies its own law (lex fori) to procedural issues. Yet under the double-dating system, the law of the requested State determines the date of service for the addressee.288

Official

286 Obergericht Basel-Land, 18 September 1995, SJZ 1996, p. 316. 287 In Luxembourg: see inter alia, Faillite Breyer v. Sté Total Belgique (op. cit. note 13). Under Art. 156(2) of the NCPC, service is deemed to have occurred on the date of delivery of a copy of the document to the parquet, Schimpf v. Helaba Luxembourg, Landesbank Hessen-Thueringen, International, CA of LuxembourgFor (op. cit. note 12) and Insinger de Beaufort v. Harm, Banque Populaire du Luxembourg et Stark, CA of Luxembourg, 20 March 2001, No 24934; regarding delivery of a copy of the document to the postal service, see Marty v. Basinco Group, CA of Luxembourg, 30 November 1999, No 22952, according to which delivery of the document to the addressee is an element extrinsic to the formalities required and is immaterial to the validity and the effects of service. In Belgium: the courts consider that service has been performed on the date of receipt of the document by the Central Authority in the requested State. See, by way of illustration, HD Plastics Ltd v. SA Dematex, Cour de Liège (7th Chamber), 9 May 1995, JT 1996, p. 82; Monnet v. Laurent, Civ. Namur (réf.), 3 May 1996, JT 1996, p. 763. 288 By contrast, in Service Convention cases it is the law of the requesting State that determines the date of service for the addressee. The French Cour de cassation has clarified the rule applicable to the date of service in specific cases, having rendered at least two judgments with regard to the service of decisions at the last known address of the recipient (at the time of transmission and as specified in the decision). If service has been successful, the date of service is, for the purposes of the addressee, the date on which the foreign competent authority has delivered the document to him 68 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

This amounts to saying that a foreign law determines the time when a procedural action, with substantial consequences in the forum, is performed (in particular, that foreign law may cause the period for the entry of a challenge in the original State to run). Last, the double-dating system can produce its full effect – and in particular protection of the plaintiff’s interests – only if the lex fori does provide a mechanism allowing determination, for the plaintiff’s purposes, of the date of a service abroad (as is the case, in particular, with Belgian and Luxembourg law, see above). Many States do not, however, provide such rules.

207. In the light of the foregoing, the 2003 Special Commission concluded as follows:

“75. The SC considered and rejected a proposal that States party adopt a recommendation to implement a system of double-date[s], according to which the interests of the plaintiff (e.g., limitation periods) and those of the defendant (e.g., time to file his or her defence) have to be protected by assigning different dates. The SC took note that many legal systems have effective means to protect the interests of the plaintiff without having to rely on the actual date of service.”

208. In the context of the European Union, however, the operationOnly of the double-date system seems to have been satisfactory. Interestingly, Article 9 of the 2007 EU Service Regulation applies directly to all EU Member States irrespective of whether or not they have a double-date system in their own domestic laws and it does not allow any derogation by Member States (as opposed to the corresponding Art. 9 of the 2000 EU Service Regulation).289 In particular, the validity of the service (e.g., the recognition of a foreign judgment rendered subsequent to that service) cannot be challenged in a Member State on the basis that the double-date system is not knownUse in its internal law.

F. The Certificate of service (Art. 6)

a) General comments

209. The Central Authority of the requested State or any other authority designated by that State for such purpose shall complete a Certificate in the form of the model annexed to the Convention (Art.Official 6(1); see also paras 147 et seq.). That other designated authority need not necessarily be a judicial authority,290 but in any case, this other authority shall have been designated as competent authority to complete the Certificate. Under Article 21(1)(b), such a designation must be notified to the depositary, i.e., the Ministry of Foreign Affairs

For or her. If the document could not be delivered, the date of service will be the date on which the foreign competent authority has attempted to serve the document, or if that date is unknown, the date on which the foreign authority has informed the French authority: Rabi v. Serrano et al., Cass., Ch. Civ. 1, 23 June 2011, (No 09-11.066) and Société La Comtesse du Barry v. Société Crédit Agricole des Savoie, Cass., Ch. Civ. 2, 21 February 2013, (No 11-24.813). 289 See, Report of 4 December 2013 on the Application of Regulation (EC) No 1393/2007 of the European Parliament and of the Council on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents) (Com(2013) 858) [hereinafter “Report on the 2007 EU Service Regulation”], pp. 11-12, available at: < http://ec.europa.eu/justice/civil/files/ report_service_documents_en.pdf > [last consulted on 20 November 2015]. This report suggests making an amendment to Recital 15 of the Regulation which has caused confusion as to the interpretation of art. 9. 290 Explanatory Report (op. cit. note 9), p. 370. This also follows indirectly from Art. 6(3). CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 69

of the Netherlands, either at the time of the deposit of the instrument of ratification or accession, or at a later stage. With a concern for mitigating the time of transmission, a number of States (e.g., Canada, Netherlands, Norway and Switzerland) have designated either the authority or person actually serving the document, or a judicial authority of the district within which service has been executed as the competent authority to complete the Certificate. It must be emphasised, however, that if the Certificate is not completed by the Central Authority or a judicial authority, the forwarding authority may require that the Certificate be countersigned by one of these authorities (Art. 6(3)).

210. The Convention states that the Certificate shall be forwarded directly to the applicant (i.e., the forwarding authority; see Art. 6(4)). The Special Commission has stressed the importance of complying with this rule.291 In practice, the Certificate is sometimes sent to the Central Authority of the requested State, which in turn then transmits it to the forwarding authority. In this latter case, the Central Authority often countersigns the Certificate, in particular if the forwarding authority requested it in advance (see Art. 6(3)).

211. Where the forwarding authority on the Request Form is a United States attorney, some Central Authorities apparently refuse to return the Certificate directly to that forwarding authority. Instead, they return the Certificate through diplomatic channels to the Consulate or Embassy closest to the forum court, which in turn forwards the CertificateOnly by mail to a court clerk in the United States. The problem arising out of this practice is that clerks, who are not accustomed to receiving unsolicited foreign documents by mail, frequently throw these away or lose them. The practice of refusing to send the Certificate directly to the forwarding authority is contrary to Article 6(4) of the Convention, as noted above in paragraph 210.

212. The Convention does not specify how the Certificate is to be sent to the forwarding authority. Accordingly, postal channels, and evenUse electronic mail or fax, are admissible (regarding the use of information technologies for transmission of the Certificate, see Annex 8, The use of information technology in the operation of the Service Convention).

b) Some judicial decisions

213. The Certificate must contain certain items of specific information relating to the execution, or non-execution of the request (see paras 1 and 2 of the Certificate), as the case may be. However, the caseOfficial law suggests that the practice is not overly formalistic in this respect. For instance, the Supreme Court of the Netherlands (Hoge Raad) has stated that Article 6 does not require the use of the Model Form itself; according to the Court, it was sufficient for the Certificate to contain the essential elements of the Model Form to meet the requirements of Article 6. The Court justified its decision by stating that the aim of the Certificate is not to protect the interests of the person to be served.292 While there is no doubt that the lack Forof excessive formalism is to be welcomed, one also has to emphasise that because of the widespread use of the Service Convention, many courts tend to view the Certificate as an authoritative approval which confirms that service has been properly effected in conformity with the law of the requested State. In other words, use of the model Certificate annexed to the Convention is highly encouraged.

291 C&R No 26 of the 2014 SC. 292 Willems v. Moser, HR 10 May 1996, NJ 1997, p. 27. 70 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

214. Practice shows that Central Authorities do not always provide a Certificate and instead return the entire case file to the forwarding authority, including instructions from judicial authorities at each level of the court system and any challenges to service made by the defendant in the requested State. This file generally includes local proof of service in the form of a lengthy affidavit executed by a court bailiff or any other competent person. Even where this person is very diligent in performing service and in specifying details of the notification, and also where the information contained in the local affidavit of service is quite useful for the plaintiff, the problem remains that courts in the requesting State expect a Hague Certificate in proper form as an authoritative approval.

215. A United States court held that an omission in the Certificate – in the case in point, the competent authority had failed to specify the form of service performed – did not result in the nullity of the service, given the good faith of the forwarding authority and the fact that the defendants were actually given notice of the document to be served.293

c) Effect of the Certificate

216. The Special Commission has noted that the Certificate constitutesOnly authoritative confirmation that service was properly effected in conformity with the law of the requested State and creates at least a rebuttable presumption that service was properly performed, allowing the proceedings to continue before the foreign court.294 Further, it has also noted that “[t]he probative value of the Certificate in the requesting State remains subject to that State’s law”.295 This presumption is also important for the purposes of the recognition and enforcement of a default judgment under Article 15(2) of the Convention. It does not, however, remedy service that is ineffective accordingUse to the law of the requested State.296

G. Refusal to execute a request for service

217. The Convention contains two provisions allowing the Central Authority of the requested State to refuse execution of a request for service. In the first case, it is a temporary refusal (Art. 4); in the second case, it is a final refusal (Art. 13).

a) OfficialArticle 4 (temporary refusal)

218. When a Central Authority receives a request from abroad, it performs a summary review to ascertain that the request satisfies the requirements laid down by the Convention. ForThis review is limited to the Request Form, the Summary of the document to be served

293 Greene v. Le Dorze (op. cit. note 182). 294 C&R No 33 of the 2009 SC. This has been the subject of litigation in some Contracting States, for example: In Myrtle v. Graham, 2011 WL 446397 (E.D. La. 2011), a US court held that the return of a completed Certificate of service by a State's Central Authority is prima facie evidence that the service was made in compliance with the Service Convention procedures and that State's internal laws. To rebut the prima facie case established by the completed Certificate of service, a defendant must show lack of actual notice of the proceedings or prove that he was prejudiced in some way. 295 C&R No 33 of the 2009 SC. 296 BGH, 9th Zivilsenat, 18 February 1993, IPRax 1993, p. 396. CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 71

and, if needed, the document itself.297 Mandatory use of the Model Request Form (Art. 3(1)) makes that review easier. If the Central Authority considers that the request does not satisfy the formal or substantial requirements of the Convention, it must inform the forwarding authority thereof immediately.298

219. The discussion at the 1977 Special Commission showed that very few grievances were brought against requests. The practice of Central Authorities is indeed fairly liberal. Formal irregularities, such as the absence of a copy of the document (see paras 155 et seq.) or the mention of an incomplete address for the addressee (see paras 88 et seq.), are often remedied by the requested Central Authority itself. In other cases, the addressed Central Authority allows time to the forwarding authority to supplement or correct the application. As mentioned above (paras 195 et seq.), the fact that the time allowed for appearance has expired does not justify a refusal to execute the request.

b) Article 13 (final refusal)

220. Article 13(1) of the Service Convention provides that the requested State may refuse to comply with a request for service if it considers that such complianceOnly would infringe the State’s “sovereignty or security”.

221. Article 13(1) establishes the sole ground on which the requested State may refuse to comply with a request that otherwise complies with the terms of the Convention. The ground is only available where the requested State considers that compliance with the request would infringe its sovereignty or security. The focus is therefore not on the action from which the document to be served arises.299 The exhaustiveUse nature of the ground s for refusal set out in this Article has been confirmed by the Special Commission.300

(1) The concept of “sovereignty or security”

222. The concept of infringement of sovereignty or security has an extensive history at the Hague Conference. It was proposed as a ground for refusal during negotiations on the Hague Convention of 14 November 1896 relating to Civil Procedure.301 Rejecting the inclusion of public policy as “too vague and ambiguous”, the drafters instead opted for the “more preciseOfficial and limited” grounds said to be embodied in the concept “sovereignty or security”.302

297 OLGFor Düsseldorf, 3rd Zivilsenat, 19 February 1992, NJW 1992, pp. 3110-3112. See, however, paras 159 et seq. 298 See also the decision of the Federal Supreme Court of Switzerland, X. SA v. Y. AG, 15 September 2003 (op. cit. notes 203 and 204). 299 See Explanatory Report (op. cit. note 9), p. 375. 300 C&R No 35 of the 2014 SC. 301 This concept was subsequently also included in the Evidence Convention (Art. 12(1)(b)). See Permanent Bureau of the Hague Conference on Private International Law, Practical Handbook on the Operation of the Evidence Convention, 3rd ed., The Hague, [hereinafter “Evidence Handbook”], 2016, para. 310. 302 See “Rapport présenté au nom de la IIIème commission (procédure civile)” [in French only], in Conférence de La Haye de droit international privé, Actes de la Deuxième Conférence de La Haye chargée de réglementer diverses matières de droit international privé (25 juin – 13 juillet 1894), The Hague, Imprimerie Nationale, 1894, pp. 51-52. 72 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

Interpretation of the term “sovereignty or security”

223. More broadly, courts and commentators agree that the concept “sovereignty or security” differs from public policy. Commentators have also pointed out that this concept must be read narrowly,303 and that it has a “convention-restricted meaning”.304

224. In Germany, the courts have held that the application of Article 13 is limited to particularly grave cases or narrowly defined circumstances.305 However, they have held that sovereignty or security may be infringed where a request is obviously incompatible with indispensable or fundamental legal principles,306 “indispensable principles of the rule of law”307 or certain constitutionally guaranteed rights.308 A German court also considered that a request may be refused where the action is considered completely foreign (“schlechthin wesensfremd”) to German law309 (although this decision must be reconciled with Art. 13(2) of the Convention, which prohibits the requested State from refusing to comply with a request for service on grounds alone that the action is unknown to, or opposed by, the law of the requested State). In any event, the interpretation of the concept requires that credence be given to the provision’s supranational character; domestic approaches to its interpretation should not be used.310 Only

303 H.E. Rasmussen-Bonne, “The Pendulum Swings Back: the Cooperative Approach of German Courts to International Service of Process”, in P. Hay et al. (ed.), Resolving International Conflicts, Liber Amicorum Tibor Várady, Budapest-New York, Central European UniversiUsety Press, 2009, p. 248; see also OLG Frankfurt am Main (Germany), 13 February 2001, No 20 VA 7/00. The characterisation of sovereignty and security as a narrow subset of public policy is confirmed in the commentary and case law on Art. 12(1)(b) of the Evidence Convention. See, e.g., L. Chatin, “Régime des commissions rogatoires internationales de droit privé”, Rev. crit. d.i.p., Paris, éditions Sirey, 1977, p. 615; the Supreme Court of the Canton of Zurich (Switzerland), decision of 21 April 2008, case No NV080003. See generally Evidence Handbook (op. cit. note 301), paras 315 et seq. 304 H.E. Rasmussen-Bonne (op. cit. note 303); see OLG Düsseldorf, 19 February 1992 (op. cit. note 297); see also OLG Celle, 14 June 1996, 16 VA 2/96. 305 OLG Düsseldorf, 6 June 2003, I-3 VA 6/2003, at para. 20. 306 Recent commentaryOfficial suggested that such incompatibility may only arise in extreme circumstances where the decision to comply would question or even contradict the identity or basis of the sovereign State. See W. zur Nieden, Zustellungsverweigerung rechtsmissbräuchlicher Klagen in Deutschland nach Artikel 13 des Haager Zustellungsübereinkommens: zugleich ein Beitrag zum deutsch-amerikanischen Justizkonflikt, Frankfurt am Main, Peter Lang Verlag, 2011, p. 141. Similarly, a German commentator suggested that Art. 13(1) conceivably could apply where compliance would be entirely contrary to the idea of the law (“Rechtsidee”), requiring the competent authority to be complicit in conduct contrary to Forinternational law or absolutely immoral. R. Geimer, “Entscheidungsrezension zu BGH NJW 1990, 2197”, Beschluss vom 09.05.1990, in Zeitschrift für Zivilprozess 1990, Vol. 103, p. 477. 307 BVerfG, 7 December 1994, 91, 335, 343; BVerfG, 25 July 2003, 108, 238. 308 For example, although the German Federal Constitutional Court (Bundesverfassungsgericht) held that service of claims for punitive damages does not breach a party’s constitutionally guaranteed freedom to act, the Court has not yet decided conclusively whether claims for punitive damages could limit inappropriately a party’s constitutional rights (the freedom to act in conjunction with basic principles of the rule of law). See BVerfG, 9 January 2013, 2 BvR 2805/12. In the past, one case involving a claim for the award of punitive damages was brought before the Federal Constitutional Court. However, in that case the petitioner (the German company Bertelsmann) withdrew its complaint and as a result, the Constitutional Court did not rule on the merits of the appeal. See KG Berlin, 5 July 1994, IPRspr. 1994, p. 159, followed in BVerfG, 7 December 1994 (op. cit. note 84). 309 OLG Frankfurt am Main, 26 March 2008, No 20 VA 13/07. 310 OLG Frankfurt am Main, 13 February 2001 (op. cit. note 303), at para. 12. CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 73

225. Whether service of a so-called “anti-suit injunction” can be refused is controversial.311 In 1996, a German court upheld a decision to refuse, noting that these injunctions interfere indirectly with a German courts’ competency to hear a matter.312 However, since then, this decision has been widely criticised,313 also because an anti-suit injunction’s effect is on a party, not a foreign court.314

226. With regard to other injunctions, a Swiss court held that serving an injunction requesting a Swiss employer to withhold part of the salary of an employee and to transfer it to his creditor in Austria was a violation of the territoriality principle because it was an enforcement measure. Accordingly, the court refused to execute the request for service.315 However, in most cases injunctions are straightforward and should not pose any problems in practice for the purpose of service.

(2) The decision to refuse

227. The responses to the 2008 Questionnaire suggested that such refusals remained uncommon.316 Only 228. The Convention makes it clear that it is for the requested State to determine whether compliance with the request would infringe its sovereignty or security. In this regard, the authorities of the requested State have a broad discretion.317 Accordingly, the authorities of the requesting State should avoid reviewing a decision by the authorities of the requested State to refuse compliance with a request for service pursuant to Article 13(1).318 To do so would undermine the purpose of the Convention by rendering Article 13 a dead letter. Use

311 Anti-suit injunctions are granted by courts to restrain parties from entertaining parallel proceedings in different jurisdictions. Anti-suit injunctions are thus designed to protect the orderly administration of courts. CSR Ltd v. Cigna Insurance Australia Ltd (1997) 189 CLR 345, 392. The test for granting anti-suit injunctions was developed in Société Nationale Industrielle Aerospatiale v. Lee Kui Jak [1987] AC 871, 892Official. See also Airbus Industrie GIE v. Patel [1999] 1 AC 119, 133. 312 OLG Düsseldorf, 10 January 1996, IPRax 1997, p. 260; R.A. Schütze, Ausgewählte Probleme des Internationalen Zivilprozessrechts, Berlin, De Gruyter, 2006, p. 56; W. Hau, “Zustellung ausländischer Prozessführungsverbote: zwischen Verpflichtung zur Rechtshilfe und Schutz inländischer Hoheitsrechte”, (1997) 17(4) IPRax, p. 245; C.A. Heinze & A. Dutta, “Enforcement of Arbitration Agreements by Anti-Suit Injunctions in Europe – from Turner to West Tanker”, in P.For Volken & A. Bonomi (ed.), Yearbook of Private International Law, Munich, Sellier European Law Publishers, Vol. IX, 2008, pp. 415, 422. 313 P.F. Schlosser, EU Zivilprozessrecht, Munich, C. H. Beck, 2009, p. 410. 314 W. zur Nieden (op. cit. note 306), pp. 124-125. 315 Kantonsgericht St. Gallen 19 May 2008 (op. cit. note 150). 316 The responses to Questions Nos 49 and 49(b) of the 2008 Questionnaire indicate a low number of refusals overall. 317 In this regard, German courts have confirmed the broad discretion provided by Art. 13(1) and have held that the decision can include considerations of expedience based on the maintenance of foreign relations. OLG Frankfurt am Main, 26 March 2008 (op. cit. note 309); see also OLG Düsseldorf OLGR, 14 June 2006, 393 (2007); OLG Celle, 6 July 2007, NJW-RR 2008, 78 (2007). 318 This situation needs to be distinguished from other circumstances such as where the requested State fails to act on a request. In this latter situation, alternative means of service may be allowed by the requesting court. 74 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

Nevertheless, the decision to refuse compliance may be subject to review in accordance with the requested States’ administrative or judicial review processes. The scope of the review is a matter of domestic law, but it may be very limited, extending to errors in the exercise of the discretion.319

229. According to Article 13(3), the requested State, through its Central Authority, must promptly inform the forwarding authority of its decision to refuse compliance with the request. It must also provide reasons for its refusal to comply. However, it is not necessary to provide express and detailed reasons. Rather, the recording of the grounds upon which the request was refused, i.e., that it infringed “sovereignty or security” under Article 13(1), seems sufficient. The reasons must be provided as part of the Certificate (of non-service), issued in conformity with Article 6(2).320

c) Unacceptable grounds for refusal

230. Article 13(2) identifies two grounds for refusal that are considered unacceptable. They relate to the requesting State’s jurisdiction to issue the request for service. Only 231. According to the first ground, a requested State may not refuse compliance only because, under its domestic laws, it claims exclusive jurisdiction over the subject-matter. According to the second ground, the requested State may not refuse compliance merely because it does not otherwise recognise the jurisdiction of the forwarding authority. The latter ground was included in the instrument to prevent refusals under Article 13(1) where parallel proceedings concerning the same subject-matter have also been commenced in the requested State (lis pendens). Use

232. Article 13(2) limits the breadth of the requested State’s discretion to refuse compliance. It is substantially the same as Article 12(2) of the Evidence Convention and both Handbooks should be read in conjunction.

233. Whether punitive damages and class actions present unacceptable grounds seems to be an issue that must be dealt with on a case-by-case basis. As a basic rule, the German Federal Constitutional Court (Bundesverfassungsgericht) held that claims for punitive damages and class action proceedings are not a sufficient ground for a refusal under Article 13(1).321 The Court pointed out that a refusal would run counter to the established principle that a foreign legal orderOfficial and law must be respected even though a comparison with domestic law reveals their incompatibility.

234. However, in relation to punitive damages and class actions, the German Federal Constitutional Court has so far left open the question of whether their service may be refused in certain circumstances. Examples were recently posited by the Court, including Forclaims that pursue in an obviously oppressive fashion demands whose quantum has no substantial basis, matters brought against parties obviously unconnected with the proceedings and actions in which significant public pressure is created in order to reach unjustifiable settlements.322

319 See also Evidence Handbook (op. cit. note 301), paras 285 et seq. 320 Compare this with the Evidence Convention, which does not prescribe the form in which the reasons for refusal are to be given. See Evidence Handbook (ibid.), paras 359 et seq. 321 BVerfG, 24 January 2007, 2 BvR 1133/04; see also OLG Düsseldorf, 6 June 2003 (op. cit. note 305). See BVerfG 2 BvR, 9 January 2013 (op. cit. note 308), in relation to punitive damages. 322 See BVerfG 2 BvR, 9 January 2013 (op. cit. note 308), at para. 13. CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 75

235. In addition, State practice has identified additional grounds for refusal that are considered unacceptable. These include:

– Non-recognition of subsequent judgment: the possibility that the claim to be served may lead to a subsequent judgment that cannot be enforced in the jurisdiction of the requested State, including on the basis of public policy. It should be stressed that compliance with the request for service does not prejudice the subsequent recognition and enforcement by the requested State of the decision rendered in the requesting State pursuant to service.323 Noting the undesirability of a “revision au fond”, German courts have held that under no circumstances should there be refusals based on anticipated outcomes.324

– On the basis of the entity making the request: considering that a request for service is not within the meaning of the term “civil or commercial matters” based solely on the entity making a request. The requested State should focus instead on the substantive nature of the matter referred to in the request; the Special Commission has welcomed the flexible practice adopted by some Contracting States in this regard.325

– Time-limit has lapsed: the time-limit for responding to the claim has lapsed (see paras 195 et seq.). Only

– Time-limit is too short: the time-limit for responding to the claim is, in the view of the authorities of the requested State, too short (although this does not prejudice the subsequent recognition and enforcement by the requested State of the decision rendered in the requesting State, or prejudice the subsequent operation of Arts 15 and 16 of the Convention). Use – Public policy: incompatibility of a claim with the requested State’s public policy is not, in itself, a sufficient ground for refusing a request for service under Article 13(1).326

2. Alternative channels

A. Preliminary observation relating to terminology Official

236. In addition to the main channel of transmission (system of Central Authorities), the Convention provides for a number of other channels of transmission (see Explanatory Chart 2 following the FAQ). These other channels are sometimes referred to as subsidiary channels.327 However, this term, which does not appear in the Convention, is somewhat Forambiguous. It seems to imply that these other channels are subordinated to the main channel (e.g., that they may be used only if the main channel has failed) or that the other channels are somehow of lesser quality than the main channel. Yet this is in no way true. There is neither a hierarchy nor any order of importance among the various channels

323 C&R No 78 of the 2003 SC. 324 OLG Frankfurt am Main, 13 February 2001 (op. cit. note 303), at para. 11; OLG Düsseldorf, 6 June 2003 (op. cit. note 305), at para. 20. 325 C&R No 41 of the 2014 SC. 326 OLG Frankfurt am Main, 13 February 2001 (op. cit. note 303), at para. 11. 327 See in particular the Explanatory Report (op. cit. note 9), p. 372 (“subsidiaires” in French). 76 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

of transmission, and transmission through one of the other channels does not lead to service of lesser quality. It is up to the party who seeks to effect service to determine which of the Convention’s channels of transmission it wants to use (this choice is of course subject to the conditions imposed by the Convention itself). Against this background, the alternative channels should not be regarded as subsidiary to the main channel.328 The reason for using the term “subsidiary” in the Explanatory Report may have been the desire to stress the innovative nature of the main channel and the prospect of seeing it widely used in practice. The term “subsidiary” may also have been used to reflect the fact that a State Party may, by way of declaration, object to the use of some of the other channels on its territory. But if their conditions of application are satisfied, the other channels may be used without any other restriction. This Handbook thus uses the term “alternative channels” rather than “subsidiary channels”.

237. The alternative channels include: consular or diplomatic channels (direct and indirect) (Arts 8(1) and 9), postal channels (Art. 10(a)), direct communication between judicial officers, officials or other competent persons of the State of origin and the State of destination (Art. 10(b)), and direct communication between an interested party and judicial officers, officials or other competent persons of the State of destination (Art. 10(c)).329

Only

Translation requirements

238. As noted in paragraph 180, the alternative channels of transmission do not in principle require translation of the document to be served. The Special Commission has confirmed this interpretation, while noting that in isolated cases, translation requirements are imposed by a State’s domestic law (i.e., the State Useof destination).330 In this regard, it should be noted that recognition and enforcement of a foreign decision may be refused when the documents served have not been translated. For specific information on translation requirements and postal channels, see paragraphs 283 et seq.

B. Consular and diplomatic channels (Arts 8 and 9)

a) OfficialThe concepts in general

(1) Diplomatic channels

For 239. Traditional diplomatic channels are the most formal, most complex and most time- consuming form of transmission. Under these channels, the forwarding authority of the State of origin sends the request and document to be served to its Ministry of Foreign Affairs (depending on the State, this may have to be done through the Ministry of Justice);

328 By way of comparison, it is interesting to note that in Plumex v. Young Sports NV, C-473/04, EU:C:2006:96, the Court of Justice of the European Union reached the same conclusion with regard to the methods of transmission established by the 2000 EU Service Regulation. For commentary on this case, see N. Fricero & G. Payan (op. cit. note 90), pp. 225-227. 329 See Explanatory Chart 2 following the FAQ. 330 C&R No 65 of the 2003 SC; C&R No 25 of the 2009 SC. CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 77

the Ministry of Foreign Affairs then sends the documents to its diplomatic or consular representation in the State of destination,331 which then sends it to the Ministry of Foreign Affairs of the State of destination; if the latter grants judicial assistance, it then forwards the documents to the Ministry of Justice of the State of destination, which then delivers them to the competent authority or judicial officer; the latter eventually serves the document on the addressee (depending on the State, the detour through the Ministry of Justice may be avoided).

240. Having regard to its complex and time-consuming character, these channels of transmission are in principle applicable only in the absence of any conventional relationship between the two States concerned.

(2) Consular channels

241. Transmission through consular channels differs from transmission through diplomatic channels in that the former avoids use of the services of the Ministry of Foreign Affairs of the State of destination. Accordingly, the Consul of the State of origin sends the request and document to be served directly to the authority designated by theOnly State of destination, which then delivers them to the competent authority or judicial officer. The latter then serves the document on the addressee.332 Since the document is not delivered to the addressee by the Consul of the State of origin, but rather by an authority of the State of destination, these channels of transmission are referred to as indirect consular channels. They should be distinguished from direct consular channels, in which the Consul of the State of origin in person delivers the document to be served to the addressee. Use 242. The 1965 Convention provides for both direct consular channels and indirect consular channels. Certain States have given up these channels completely in relations with States Parties to the Convention. Some still make fairly frequent use of these channels.

b) Direct diplomatic and direct consular channels (Art. 8)

243. The diplomatic or consular officers of the State of origin may serve a document directly on an addressee in the State of destination, provided that such service is performed “without application of anyOfficial compulsion”, i.e., by informal delivery (Art. 8(1)). Service may therefore be performed by these means only if the addressee voluntarily accepts delivery of the document.333 Depending on who effects service, this channel of transmission is called direct diplomatic channel or direct consular channel. When all the conditions are fulfilled, the transmission through direct diplomatic or consular channels includes the actual service For

331 Diplomatic channels were the main channels of transmission provided for in the 1896 Convention on Civil Procedure. A variation of the traditional diplomatic channels provides that the Ministry of Foreign Affairs of the State of origin sends the request directly to the Ministry of Foreign Affairs of the State of destination. 332 Consular channels are the main channels of transmission under the 1905 and 1954 Conventions on Civil Procedure. 333 Ruling of the German Federal Administrative Court BVerwG, 20 May 1999, NJW 2000, pp. 683-684; this position had already been taken by a Swiss Court, the Cantonal Court of Valais, Civil Chamber, 1 September 1998, ruling received from the Valais Central Authority. 78 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

of process on the ultimate addressee. Service is an integral part of these two channels of transmission – without service being effected by the diplomatic or consular officer, these channels of transmission are not completed.334

244. A Contracting State may declare that it is opposed to the transmission through direct diplomatic and direct consular channels on its territory, unless the document is to be served on a national of the State of origin (Art. 8(2)).335 If the State of destination has objected to the use of direct diplomatic or consular channels on its territory, these channels may only be used for service on nationals of the State of origin.

245. A German court held that a German applicant choosing to cause a document to be served through consular channels, rather than through the Central Authority, bears the burden of the allegation and proof that the document did in fact reach the addressee.336 Another German court ruled that in the case of direct diplomatic and consular channels, the documents need not be drafted in or translated into the language of the State of destination.337 This may explain why direct consular channels are in fairly common use for service on nationals of the State of origin.

c) Indirect consular channels (Art. 9(1)) Only

246. The Convention also allows indirect consular channels, i.e., transmission of the document to be served by the Consul of the State of origin to the appropriate authorities designated by the State of destination for such purpose (Art. 9(1)). Most States Parties have designated the Central Authority, i.e., the authority already serving as the main transmission channel. Such a designation not only makes indirect consularUse channels entirely superfluous, but also raises a difficult problem: if the Central Authority is acting as receiving authority under Article 9(1), is the service bound to satisfy the requirements laid down in Articles 5 and 6 of the Convention (translation and usage of the Model Form)? This question has neither been discussed by the Special Commissions nor ruled upon by any court. For reasons of certainty and predictability, a Central Authority should be subject to a single set of rules,

334 Thus, within the Convention system, the direct diplomatic and consular channels are an exception, as the Convention primarily deals with the mere transmission of documents. In the case of a transmission throughOfficial the main channel (Central Authority), the service of the documents is not governed by the Convention but rather by the law of the requested State; in the case of a transmission through one of the alternative channels (other than direct diplomatic and consular channels as well the postal channel (see paras 250 et seq.)), service of the documents is governed by the law of the State of destination. Service of process is also addressed in Arts 15 and 16 (see paras 303 et seq.). 335 The States which have objected to the use of direct diplomatic or consular channels include (for a fullFor list, see the Hague Conference website): France (accordingly, a Netherlands Court rightly held that the Netherlands Ministry of Foreign Affairs had acted in accordance with the Convention in refusing to accept a document intended for service through diplomatic channels on a defendant in France; Gerechtshof Den Bosch, 19 November 1980, NJ 1982, p. 416), Germany (accordingly, a Court in the United States rightly held an attempted service through a Vice-Consul of the United States in Germany to be invalid; Dr. Ing HCF Porsche AG v. Superior Court, 177 Cal. Rptr. 155 (Cal. Ct. App. 1981)), and Portugal (thus, enforcement in Portugal of a Canadian judgment was rightly denied on the grounds that service of the documents on the Portuguese addressee had been performed through the Canadian Ambassador to Portugal: Lisbon Court of Appeal (Tribunal da Relaçao de Lisboa), 13 May 1999). As to the issue of reciprocity of an objection in general, see paras 263 et seq., and, as far as Art. 8(1) is concerned, see the Japanese decision of the Tokyo District Court, cited in note 368. 336 OLG Hamm, 35th Zivilsenat, 30 September 1994, IPRax 1995, pp. 255-256, note H. Kronke. 337 LG Berlin, 5 February 1997, upheld by KG Berlin, 22 April 1997, rulings received from the Central Authority. See in the same sense, Federal Supreme Court of Switzerland, 7 October 2010, 5A_286/2010. CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 79

and thus the question should be answered in the affirmative. This, in turn, means that in the Convention system, indirect consular channels only add value if the State of destination has designated under Article 9(1) an authority or officer (court, prosecutor, registry or huissier) within whose jurisdiction the service is requested (see in particular the designations by Norway, Denmark, France, Italy or the Netherlands). Last, some States Parties have not appointed any receiving authority, thereby de facto preventing the use of this method.338

d) Indirect diplomatic channels (the “exceptional circumstances” under Art. 9(2))

247. Indirect diplomatic channels may only be used if exceptional circumstances so require (Art. 9(2)). One example of such exceptional circumstances is service of a claim on a foreign sovereign State.339, 340

248. In their responses to the 2008 Questionnaire, several States noted that they have used the diplomatic channel under Article 9(2) of the Convention to effect service on States and State officials.341 Only

249. It is worth recalling that at the Special Commission meeting held in 1977, the opinion among the experts was divided as to the usefulness of the indirect diplomatic channels: while some considered that these channels could expedite transmission, others stressed that they caused substantial delay.

Use C. Postal channels (Art. 10(a))

250. Under Article 10(a), “[p]rovided the State of destination does not object, the present Convention shall not interfere with the freedom to send judicial documents, by postal channels, directly to persons abroad”.

a) The notion of “postal channel” Official

251. First, it is important to note the specific characteristic of the postal channel: if all the relevant conditions are fulfilled, transmission of the documents through postal channels includes service of process upon the addressee (the criteria of regularity of postal channels Forunder the Convention are examined in paras 257 et seq.).342

338 For the position of each State Party on this issue, see the full status of the Convention accessible on the Service Section of the Hague Conference website. 339 T. Bischof (op. cit. note 11), p. 247, note 45. 340 For more information on service on a foreign sovereign State, see paras 23 et seq. 341 For more information, see paras 24 et seq. 342 Thus, within the Convention system, the postal channel is an exception, as the Convention primarily deals with the transmission of documents. In the case of a transmission through the main channel (Central Authority), the service of the documents is not governed by the Convention but rather by the law of the requested State; in the case of a transmission through one of the alternative channels (other than the postal channel and the direct diplomatic and consular channels (see paras 243 et seq.)), 80 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

252. The Convention does not describe what exactly the postal channel consists of. This channel certainly covers sending the document by letter post, certified mail and registered deliveries within the meaning of the Conventions of the Universal Postal Union.343 With the increasing use of e-mail and fax as the preferred means of communication, it is important to consider whether or not they are included in the definition of “postal channels”. This issue, as well as existing security concerns surrounding these means of communications, are reviewed in Annex 8 (The use of information technology in the operation of the Service Convention).

253. In a case of international child abduction within the meaning of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, a New York Court held that transmission of a claim by a private courier service (DHL) did not fall within the meaning of Article 10(a) of the Service Convention.344 The Court did not provide any reason for its decision on this point. One may wonder, however, whether this decision is appropriate: private courier services offer the same security as domestic postal services, while usually being faster. In addition, pursuant to the wave of privatisation in the postal sector, the distinction between public and private services has tended to blur. It is difficult to see, therefore, what would prevent a private courier service from being treated as a postal channel within the meaning of the Convention. Only 254. A few cases in the United States have taken a position consistent with that advocated in the previous paragraph. For instance, the United States District Court for the District of New Jersey held that service via DHL constituted service through a postal channel within the meaning of the Convention: “Recognizing that the primary impetus for requiring service of process is ‘to create appropriate means to ensure that judicial and extrajudicial documents to be served abroad’ are ‘brought to the notice of the addressee in sufficient time’, this Court finds that [X]’s service upon [Y]’s Managing DirectorUse is in compliance with the Hague Convention”.345, 346

service of the documents is governed by the law of the State of destination. Service of process is also addressed in Arts 15 and 16 (see paras 303 et seq.). 343 The Conventions adopted by the Universal Postal Union are revised on a regular basis. The most recent version of theOfficial Universal Postal Convention is the one adopted in Doha in October 2012 and which entered into force on 1 January 2014. On the Universal Postal Conventions, see also the Annex 8 (The use of information technology in the operation of the Service Convention). 344 Mezitis v. Mezitis, N.Y. L.J., 21 November 1995, at 25, col. 5 (Sup. Ct. NY County). 345 EOI Corp. v. Medical Marketing Ltd., 172 F.R.D. 133, 142 (D.N.J. 1997); see also, R. Griggs Group Ltd v. Filanto Spa, 920 F. Supp. 1100 (D. Nev. 1996); TracFone Wireless, Inc. v. Sunstrike Int’l, Ltd., 273 F.R.D.For 697 (S.D. Fla. 2011) (authorising service of documents via US postal service international express mail and FedEx on defendants in Hong Kong SAR); Tracfone Wireless, Inc. v. Bitton, 278 F.R.D. 687 (S.D. Fla. 2012) (holding that service via FedEx is proper under Art. 10(a) on a defendant in Canada); but see, In re Cinar Corp. Securities Litigation, 186 F. Supp. 2d 279, 304 (E.D.N.Y. 2002) (questioning, without deciding, whether an international courier constituted a “postal channel” under the Service Convention). 346 Also, in a number of non-Hague Service Convention cases, US courts have held that service via private courier qualifies as a “form of mail” within the terms of Rule 4(f)(2)(C)(ii). See, e.g., Power Integrations, Inc. v. System General Corp., 2004 U.S. Dist. LEXIS 25414 (N.D. Cal. 2004) (service on a defendant in another Contracting State via Federal Express complies with Fed. R. Civ. Pro. 4(f)(2)(C)(ii)); Dee-K Enterprises, Inc. v. Heveafil SDN, BHD, 174 F.R.D. 376 (E.D. Va. 1997) (service on an Indonesian defendant via DHL complies with Fed. R. Civ. Pro. 4(f)(2)(C)(ii)). But see, Export-Import Bank v. Asia Pulp & Paper Co., Ltd., 2005 U.S. Dist. LEXIS 8902 (S.D.N.Y. 2005) (questioning, without deciding, whether “an international courier like DHL even qualifies as a ‘form of mail’ within the terms of Rule 4(f)(2)(C)(ii)”). CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 81

255. The 2003 Special Commission in fact took notice of the increasing use of private couriers for the expeditious transmission of documents in a variety of business settings and of reports that such postal services have been used to serve a document in accordance with Article 10(a) of the Convention. It concluded that for the purposes of Article 10(a), the use of a private courier is the equivalent of the postal channel.347

b) Criteria of validity

256. Service by mail under Article 10(a) is effective if (i) service by mail is allowed by the law of the State of origin and all the conditions imposed by that law for service by mail have been met, and (ii) the State of destination has not objected to the use of Article 10(a).

(1) Lex fori

257. The validity of service of a document abroad through postal channels depends first on the law of the forum. This is clearly confirmed by the history of the ConventionOnly negotiations:

“[…] in permitting the utilization of postal channels if the State of destination has not objected to it, the draft convention did not intend to pass on the validity of this mode of transmission under the law of the forum state: in order for the postal channel to be utilised, it is necessary that it be authorised by the law of the forum state”.348 Use 258. Thus, the law of the State of origin determines whether service through postal channels is admissible and, if it is, how service through postal channels is effected (e.g., only by certified mail with registered delivery). For instance, in the case of service of a writ of summons on a defendant in France, the Supreme Court of the Netherlands (Hoge Raad) held that the sending of certified mail is not direct transmission by postal channels valid under Article 10(a) of the Convention, unless such certified mail actually reached the addressee abroad. In that case, as the defendant had not received the mail sent by the Dutch plaintiff, the writ of summons had not been validly served.349

Official

347 C&R No 56 of the 2003 SC. 348 ReportFor of the 1964 SC (op. cit. note 25), at p. 90, translation taken from B. Ristau, (op. cit. note 39), para. 4-3-5. See also T. Bischof (op. cit. note 11), p. 269. This has been confirmed by courts in France, Switzerland and the United States; see in particular Nuance Mode v. Alberto Baroni Spa, CA Paris, Chamber 1, Section C, 14 January 1993, Juris-Data 023584; Obergericht Basel-Land, 18 September 1995 (op. cit. note 286); Prom v. Sumitomo Rubber Industries (op. cit. note 285); Randolph v. Hendry (op. cit. note 70); Brockmeyer v. May, 383 F.3d 798 (9th Cir. 2004). This latter decision gives a detailed explanation of the requirements under Fed. R. Civ. Pro. 4(f) as regards service by international mail: in cases where Rule 4(f) applies, service by international mail is authorised only if it is sent by the clerk of the court, using a form of mail requiring a signed receipt (Rule 4(f)(2)(C)(ii)), or if it is approved by the district court (Rule 4(f)(3), under which courts have authorised a variety of alternative methods of service abroad, including not only ordinary mail and e-mail, but also publication and telex, see the references in the Brockmeyer decision; in Brockmeyer, the plaintiffs failed to take the necessary steps to obtain prior court approval). On the Brockmeyer decision, see para. 275. 349 HR 31 May 1996 (op. cit. note 229). 82 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

(2) No objection by the State of destination

259. Under the express terms of the opening words of Article 10, the validity of service through postal channels also depends on the absence of objection to this form of transmission by the State of destination.350 A State may notify its objection either when filing its instrument of ratification or accession, or subsequently (Art. 21(2)(a)). States’ practices differ in this respect. Most States do not object to the service of judicial documents from other States Parties directly through postal channels on their territories. Several States, however, have declared their objection to this method of service. The list of objecting States includes among others China,351 Germany,352 Mexico,353 Norway,354 and Switzerland355 (for a comprehensive list, see the Service Section of the Hague Conference). It should be stressed that the validity of service pursuant to Article 10(a) of the Convention is not dependant on whether the domestic law of the State of destination permits service by postal channels.

350 See, e.g., Hui Suet Ying v. Sharp Corp. and Sharp-Roxy (Hong Kong) Ltd., Hong Kong SAR Court of First Instance, 15 February 2000, HCPI 1269/1997: ruling whereby in the absence of objection by Japan to Art. 10(a), service through the postal channel on an addressee in Japan was to be considered valid, despite the allegation that this method of service was not recognised inOnly Japan. This ruling can be downloaded in English from the following address: < http://www.hklii.hk/eng/ hk/cases/hkcfi/2000/624.html > [last consulted on 20 November 2015]. In addition, a court in Luxembourg noted that Iceland did not object to Art. 10(a) and, therefore, considered that service via postal channels was valid. Decision of 18 December 2012, No 37255. 351 The objection does not apply to the Special Administrative Regions of Hong Kong and Macao, see, e.g., Tracfone Wireless, Inc. v. Pak China Group Co. Ltd., 843 F. Supp. 2d 1284 (S.D. Fla. 2012). The inadmissibility of service through postal channels Usein China has been recognised by a US court in Intercontinental Industries Corp. v. Luo (op. cit. note 150). 352 The inadmissibility of service through postal channels in Germany has been recognised in the United States: Lyman Steel Corp. v. Ferrostal Metals Corp., 747 F. Supp. 389 (N.D. Ohio 1990); Pittsburgh National Bank v. Kassir (op. cit. note 87); Rhodes v. J.P. Sauer & Sohn, Inc. (op. cit. note 77); Advanced Aerofoil Tehnologies, AG v. Todaro, 2012 WL 299959 (S.D.N.Y. 2012); in France: Dahlgren GmbH v. SA Socatrem, CA Reims, Ch. Civ. 1, Section 1, 25 November 1998, Juris-Data 049772; Société Jucker GMBK v. Société L.0.I Thermoprocess GMBH, CA Dijon, Ch. Civ. 1, Section 2, No RG 99/01730; Cass., Ch. Civ. 1, 28 March 2006, No 03-18284; in Cyprus: Supreme Court, 11 December 1995, Cyp. L.R., 1995, p. 1069; in Israel: Israel Credit Lines Complementary Financial Services Ltd v. Roni Elad, RCA 1056/10; in Switzerland: Obergericht Aargau, 2 June 2008, ZBE.2008.3/EG/SH/bl. See also the German decisions: OLG München, 28 September 1988, IPRax 1990, p. 111 and further references in D. McClean (op. cit. noteOfficial 234), p. 43, note 105. 353 Mexico amended its declarations under the Convention in May 2011, noting inter alia that “[Mexico] is opposed to the use in its territory of the methods of transmission provided for in Article 10” (the declarations are available on the Service Section of the Hague Conference website). Until that date, the meaning of the declarations of Mexico was unclear, in particular with regard to Art. 10. See for example, Cardona v. Kreamer, 235 P.3d 1026 (Ariz. Sup. Ct. 2010) (recognising that “some confusion hasFor […] arisen regarding Mexico’s reservations against the use of alternative service”. It further acknowledged Mexico’s blanket objection to Art. 10 and held that the only valid channel of transmission of documents to Mexico was via the Central Authority); Mitchell v. Volkswagen Group of America, 753 F. Supp. 2d 1264 (N.D. Ga. 2010). See also the commentary by C.B. Campbell, “No Sirve: The Invalidity of Service of Process Abroad by Mail or Private Process Server on Parties in Mexico under the Hague Service Convention”, (2010) 19 Minn. J. Int’l L., p. 107 and D. McClean (op. cit. note 234), p. 43, note 107. 354 The inadmissibility of service through postal channels in Norway has been recognised in the United States: Jenco v. Martech Int’l, 1987 WL 13793 (E.D. La. 1987); in France: Cass., Ch. Civ. 1, 4 November 2010, No 09-15913. 355 The inadmissibility of service through the postal channel in Switzerland has been accepted in Hong Kong SAR: Continental Mark Ltd v. Verkehrs-Club De Schweiz, Court of First Instance, 31 October 2001, HCA 7999/2000; in the United States: Advanced Aerofoil Tehnologies, AG v. Todaro (op. cit. note 352). See also the Swiss decision: Federal Supreme Court, 5A_703/2007, judgment of 6 April 2009. CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 83

In other words, it is the declaration that matters, not the content of the internal law of the State of destination.356

260. An objection to postal channels as a means of service does not extend to a situation where the postal channels are used as a mere supplement to another form of service. The Special Commission of 1977 held that in such a case, the use of postal channels should not be treated as an infringement of the sovereignty of the State of destination, and thus should be accepted, notwithstanding an objection to Article 10(a).357 A declaration of objection, however, does apply when, following a notification au parquet, a copy of the document is sent by mail to the addressee abroad – as the transmission abroad is an integral part of the service of process and is required by the law of the forum, the Convention applies, together with all the relevant declarations.358 The same reasoning applies in relation to substituted service known to certain states in the United States: where the state statute allows for substituted service upon the Secretary of State, but also requires the plaintiff to mail the notice directly to the defendant abroad, the Convention applies to the transmission abroad, together with all the relevant declarations.359

261. Interestingly, the Federal Supreme Court of Switzerland has held that only the service of the writ of summons by postal channels is considered to be a violation of Swiss public policy. While the service of other documents by postal channels is not inOnly accordance with the objection made by Switzerland, the Court noted that it does not amount to a violation of Swiss public policy provided that service of process was valid and that the addressee did not contest such irregularity before the authorities of the State of origin.360

(3) Qualified objection Use

262. There is nothing in the Service Convention that would prevent a Contracting State from submitting a qualified objection to Article 10(a). Indeed, the Special Commission has noted that “a Contracting State, rather than filling a blanket opposition to the use of postal channels under Article 10(a), is allowed to make a qualified declaration stating the conditions in which that State accepts incoming transmissions, such as requiring registered mail with acknowledgment of receipt”.361 Australia, Latvia and Slovenia

Official 356 For more information, see note 394. 357 In such a case, only the date of the formal service should be taken into account for the purposes of Art. 15; see Report of the 1977 SC (op. cit. note 123), p. 387. 358 See paras 8 et seq. 359 SeeFor Dupont de Nemours v. Rhodia (op. cit. note 72) and Quinn v. Keinicke (op. cit. note 67). 360 The decision of the Federal Supreme Court of Switzerland, 14 April 2008, 5A_633/2007/bnm. 361 C&R No 28 of the 2009 SC. Similarly, this type of concept has underlying applications in regard to domestic cases within the European Court of Human Rights, which has expressed particular concerns over whether defendants have actually received notice of the lawsuit when dealing with allegedly defective postal channels. For example, in Trudov v. Russia, No 43330/09, ECtHR, Judgment of 13 December 2011, the European Court of Human Rights found—in the context of a domestic dispute—that “the mere sending of a summons/notification, without any [certainty] that it has been received by the addressee, would not be considered by the Court to be sufficient to show that the addressee has been duly informed as prescribed by the law” [translation by the Permanent Bureau]. Specifically, the addressee was served by postal channels, but the domestic court never received an acknowledgment of receipt, allegedly because of malfunctions in the postal service. As a result, the Court considered that Art. 6(1) of the European Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedom (ECHR) had been breached. The Court further noted that in the interests of good administration of justice, each party in a case should be informed of 84 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

have made qualified declarations to Article 10(a) requiring that documents forwarded via postal channels be sent via registered mail with acknowledgment of receipt. Latvia and Slovenia have further noted that documents must be in their official language (Latvian or Slovenian, respectively) or be accompanied by a translation into that language (for more information on language requirements, see paras 283 et seq.).362

(4) Effect of reciprocity in the event of objection?

263. One issue that has arisen in practice is whether the objection of a State Party against the use of a certain method of transmission has an effect of reciprocity. In other words, may a State use a method of transmission for service abroad even though it has objected to the use of that same method of transmission for documents coming from abroad? For instance, may Germany and Switzerland, which have both objected to service on their territories through postal channels, use postal channels for service abroad?

264. It would appear that in practice there are different answers to that question.Only These depend, on the one hand, on the approach applied by the objecting State of origin (in the examples mentioned: Germany or Switzerland) and, on the other hand, on the approach applied by the State of destination, which ex hypothesi does not object to the disputed method of transmission. The State of origin may claim that its own objection (reservation) is to be understood to be reciprocal. In Germany, the Appellate Court (Oberlandesgericht) of Düsseldorf has ruled that the German objection, according to which “[s]ervice pursuant to Article 10 of the Convention shall not be effected”, shouldUse be interpreted to be “reciprocal” (allseitig).363 However, this approach has not been followed by other German courts.364 In cases where the State of destination has not objected to Article 10(a), and in the absence of a harmonised approach applied across Germany, German courts decide on a case-by- case basis whether or not the German objection has reciprocal effect. This is so unless the State of destination has expressed its willingness to accept service by postal channels coming from Germany.365

265. As far as the State of destination is concerned, it may assert the reciprocity of the objection made by the originating State. Thus, the State of destination may refuse service through postal channels emanating from the originating State, even if it did not object to this method of transmission.Official The principle of reciprocity of the objection asserted by the State of destination may be based on equity and traditional theory of public international law: if a State makes a reservation provided for under the terms of a treaty, it cannot require

theFor hearing so he or she can have sufficient time to prepare and to be present. For commentary on this case, see N. Fricero & G. Payan (op. cit. note 90), pp. 113-115. 362 See declarations made by Australia, Latvia and Slovenia available on the Service Section of the Hague Conference website. 363 See, OLG Düsseldorf, 3rd Zivilsenat, 8 February 1999, ZfIR 1999, pp. 324-326. Although that case concerned the method of transmission through a judicial officer under Art. 10(c) of the Convention (see para. 291), the developments of the court on the nature and effects of the German objection to the channels of transmission provided for under Art. 10 are of a general nature and accordingly also apply to postal channels. 364 See, LG Hamburg, 27. Zivilkammer, 7 February 2013, available at Juris Das Rechtsportal at < http://www.juris.de > [last consulted on 20 November 2015]. 365 For more information on international legal assistance in Germany, see the justice portal of North Rhine-Westphalia at < http://www.ir-online.nrw.de/landliste.jsp > [last consulted on 20 November 2015]. CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 85

from the other States Parties the respect of a convention term or provision, the application of which it refuses itself.366 However, this principle is not steadfast and, in accordance with a more modern approach, may be nuanced as follows: while a State which has made a reservation will not be able to require other States Parties (which have not made the same reservation) to apply the treaty without reciprocity, these other States are in no way obliged to apply the treaty with reciprocity.367 In other words, the other States have the possibility to waive the reciprocity.368

266. In this regard, the action taken by the Slovak Republic, which objected to the service of documents on its territory through postal channels, is of particular interest. The Slovak Republic contacted other States Parties, by way of the diplomatic channel, in order to request them to clarify their position, i.e., to indicate whether they would assert reciprocity of the Slovak reservation or not. All the States Parties that replied declared that they would not assert reciprocity of the Slovak reservation. Germany has also enquired through its Embassies as to the whether or not States Parties would assert reciprocity with regard to Article 10(a). Among the other States which have objected to transmission through postal channels, not all of them undertook the same effort to contact the other States Parties, but nevertheless avoid using this means of transmission for service of their documents abroad (this is notably the case with Switzerland369), except where the State of destination has expressly communicated that it accepts service through postal channels 370 Only from the objecting State of origin.

267. In order to further clarify the situation and to improve the operation of the Convention, uniformity in the practices of the States Parties (of origin and destination) seems desirable. The 2003 Special Commission showed that such uniformity was already well under way.371

Use

366 See, e.g., K. Ipsen, Völkerrrecht, 3rd ed., Munich, Verlag C.H. Beck, 1990, § 14, notes 11 et seq.; A. Verdross & B. Simma, Universelles Völkerrecht: Theorie und Praxis, 3rd ed., Berlin, Duncker & Humblot, 1984, § 733, note 5. This principle also seems to follow from Art. 21 of the Vienna Convention of 23 May 1969 on the Law of Treaties, which addresses the legal effects of reservations and objections to reservations. 367 See M. Kaum, Official“Ausländersicherheit für Briten – Inlandsbezug ausländischer Vorbehaltserklärungen”, IPRax 1992, 1, Vol. 12, p. 18, with other references. See also “Note on reservations and options in the Hague Conventions”, drawn up by the Permanent Bureau, Prel. Doc. C of June 1976, in Actes et documents de la Treizième session (1976), Tome I, Miscellaneous matters, The Hague, Imprimerie Nationale, 1978, p. 102; G.A.L. Droz, “Les réserves et les facultés dans les Conventions de La Haye de droit international privé”, Rev. crit. d.i.p. 1969, p. 381. 368 SeeFor in support, regarding Germany’s objection to the consular channels of transmission provided for under Art. 8(1): Tokyo District Court, Judgment, 24 February 1998: it is not inconsistent with the principle of reciprocity laid down by Art. 21 of the Vienna Convention for a State having objected to the use of consular channels to use that channel of transmission in relation to Japan, which has not issued such an objection. 369 See, Federal Department of Justice and Police, Federal Office of Justice, Directives and aide- mémoire, which reads: “Pursuant to the principle of reciprocity provided for in article 21 of the Vienna Convention on the Law of Treaties […], the Swiss authorities must refrain from serving documents abroad by methods which are not permitted in Switzerland (see Guidelines, I.C.5)” [translation by the Permanent Bureau], available at < http://www.rhf.admin.ch/rhf/fr/home/ zivil/wegleitungen/alternativ_art10a.html > [last consulted on 20 November 2015]. 370 See Federal Supreme Court of Switzerland, 7 July 2011, 5F_6/2010 (noting that Italy, as a State of destination, does not invoke reciprocity vis-à-vis States that have made a reservation in relation to Art. 10 of the Convention). 371 C&R No 79 of the 2003 SC. 86 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

c) Recognition of the foreign judgment

268. The fact that a State has not objected to service through postal channels does not necessarily imply that it will subsequently recognise a foreign judgment against a defendant who was served through those channels. The State of destination may refuse enforcement of the foreign judgment on the grounds that service by mail does not comply with its internal law. Plaintiffs contemplating the recognition and enforcement of a foreign judgment in the State of destination or a third State can only be advised to ascertain in advance whether service through postal channels is accepted by that State’s domestic law.372

269. In this respect, a Japanese statement is of particular interest. At the 2003 Special Commission meeting, the Japanese delegation clarified its position with respect to Article 10(a) as follows:

“Japan has not declared that it objects to the sending of judicial documents, by postal channels, directly to addressees in Japan. As the representative of Japan made clear at the Special Commission of April 1989 on the practical operation of the Service and Evidence Conventions, Japan does not consider that the use of postal channels for sending judicialOnly documents to persons in Japan constitutes an infringement of its sovereign power.

Nevertheless, as the representative also indicated, the absence of a formal objection does not imply that the sending of judicial documents by postal channels to addressees in Japan is always considered valid service in Japan. In fact, sending documents by such a method would not be deemed valid service in Japan in circumstances whereUse the rights of the addressee were not respected.”373

Official

372 See, e.g., Federal Supreme Court of Switzerland, 23 October 2012, 5A_230/2012 (an application to enforce a judgment of a court in the Netherlands (under the Lugano Convention of 2007), in which a Russian defendant was served by private courier. In refusing to enforce the Dutch judgment, theFor Swiss Court observed that the Russian Federation had objected to the postal channels of transmission under the Service Convention and that therefore service by the private courier was insufficient as it did not draw the defendant’s attention to the importance of the documents. In addition, the plaintiff was not able to prove the content of the documents sent or the identity of the person receiving them who had signed the return receipt). In LLS America LLC (Trustee of) v. Grande, 2013 BCSC 1745, a Canadian court held that service by registered mail was not valid for the purpose of registering (i.e., enforcing in British Colombia) the Order made by the United States Court, because the plaintiffs had not produced any proof of delivery. Therefore, it appeared that the defendants were deprived of the opportunity to be heard. The Court did not, however, rule on the validity of service from the perspective of the United States. 373 C&R No 57 of the 2003 SC. Japan had made a previous statement in this respect at the 1989 Special Commission meeting. For an example of denial of recognition and enforcement in Japan of a New York judgment on the grounds that service through postal channels and without a translation of a subpoena on a Japanese defendant was in breach of the defendant’s rights, see Hachioji Branch of Tokyo District Court, Judgment, 8 December 1997. CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 87

d) Special position of the United States: three interpretations of Article 10

270. In the United States, Article 10(a) has given rise to more court rulings than all other provisions of the Convention. Yet these cases have caused, and still cause, a measure of confusion as the courts have contradictory interpretations of Article 10(a). Particularly, two distinct categories of decisions have emerged, with a possible third category worth noting.

(1) First category: “send” ≠ “serve”

271. Starting in 1985, the Federal District Courts and some state courts of the United States have held that, since the verb “serve” is generally used elsewhere in the Convention, the use of the verb “send” in Article 10(a) means that this provision does not contemplate the service of documents through postal channels. Bearing in mind the Convention’s exclusive character recognised in the Schlunk case (see paras 50 et seq.), if Article 10(a) does not contemplate service through postal channels, the conclusion is thatOnly a writ of summons cannot be served by that method in another State Party. According to this first category of decisions, Article 10(a) only permits the sending of documents relating to the case once the defendant has been served by other conventional means. This reasoning is based mainly on a grammatical interpretation of the treaty’s terms. In support of this approach, some courts have also held that the domestic procedural law of the State of destination either did not know or did not accept service through postal channels. The case most commonly cited in support of this first category is the 1989 rulingUse of the United States Court of Appeals for the Eighth Circuit in the case of Bankston v. Toyota Motor Corp.374

374 889 F.2d 172 (8th Cir. 1989). In support of Bankston, Federal Courts: Mommsen v. Toro Co. (op. cit. note 27); Pochop v. Toyota Motor Corp., Ltd., 111 F.R.D. 464 (S.D. Miss. 1986); Cooper v. Makita Electric Works Ltd., 117 F.R.D. 16 (D. Me. 1987); McClenon v. Nissan Motor Corp. (op. cit. note 66); Wasden v. Yamaha OfficialMotor Co., 131 F.R.D. 206 (M.D. Fla. 1990); Raffa v. Nissan Motor Co. (op. cit. note 66); Gallagher v. Mazda Motor of America, Inc., 781 F. Supp. 1079 (E.D. Pa. 1992); Arco Electric Control Ltd v. Core Int’l, 794 F. Supp. 1144 (S.D. Fla. 1992); Anbe v. Kikuchi, 141 F.R.D. 498 (D. Haw. 1992); Mateo v. M/S Kiso, 805 F. Supp. 792, 796 (N.D. Cal. 1992); Gonnuscio v. Seabrand Shipping, 908 F. Supp. 823 (D. Or. 1995); Golub v. Isuzu Motors (op. cit. note 66); Knapp v. Yamaha Motor Co., 60 F. Supp. 2d 566 (S.D. W. Va. 1999); Nuovo Pignone v. Storman Asia M/V, 310 F.3d 374, 384 (5th Cir. 2002); Uppendahl v. American Honda Motor Co. (op. cit. note 66); Cupp v. Alberto-Culver USA,For Inc. (op. cit. note 66); Intelsat Corp. v. Multivision TV LLC, 736 F. Supp. 2d 1334 (S.D. Fla. 2010). State courts: Suzuki Motor Co. v. Superior Court, 200 Cal. App. 3d 1476 (Cal. Ct. App. 1988); Frankenmuth Mutual Insurance Co. v. ACO Inc., 484 N.W.2d 718 (Mich. Ct. App. 1992); Zwerling v. Zwerling, 636 N.Y.S.2d 595 (N.Y. Sup. Ct. 1995); Meek v. Nova Steel Processing Inc., 706 N.E.2d 374 (Ohio Ct. App. 1997); Prom v. Sumitomo Rubber Industries (op. cit. note 285); Sardanis v. Sumitomo Corp., 279 A.D.2d 225 (N.Y. App. Div. 2001) [1st Dept. 2001] (overruling its earlier decision in Philip v. Monarch Knitting Machinery Corp., 169 A.D.2d 603 (N.Y. App. Div. 1991) [1st Dept. 1991], in which it had decided that Art. 10(a) allowed service of documents). Although the prominence afforded to the Bankston line of cases had appeared to be abating in the post-millennial period, as recently as July 2015, a 2-1 majority of the Court of Appeals of Texas in Menon v. Water Splash, Inc., 2015 WL 3982547 (Tex. App. 2015) concluded that Article 10(a) does not permit service of process by mail, which it acknowledged is a “minority view”. In a considerably more detailed dissenting opinion, Justice Christopher wrote critically of the majority’s failure to observe the United States Supreme Court’s instructions on treaty construction, and expounded, in detail, those principles. 88 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

(2) Second category: “send” = “serve”

272. Under the second category of decisions, many courts have held that Article 10(a) does permit service through postal channels. The leading case is the decision of the United States Court of Appeals for the Second Circuit in the case of Ackermann v. Levine.375 In this case, the Court held that the decision of a German court should be recognised by a United States court, even though the defendant residing in the United States was served through postal channels (and even though Germany itself, under Art. 10(a), objected expressly to the forwarding of documents on its territory through postal channels). This conclusion is based on a historical and systematic interpretation of the Convention. Use of the term “send” instead of “serve” was put down to careless drafting.376

375 Ackermann v. Levine, 788 F.2d 830 (2nd Cir. 1986). In support of Ackermann, Federal Courts: Newport Components, Inc. v. NEC Home Electronics (USA), Inc., 671 F. Supp. 1525 (C.D.Only Cal. 1987); Myers v. ASICS Corp., 711 F. Supp. 1001, 1007-08 (C.D. Cal. 1989); Borschow Hospital & Medical Supplies, Inc. v. Burdick-Siemens Corp. (op. cit. note 66); Curcuruto v. Cheshire, 864 F. Supp. 1410 (S.D. Ga. 1994); R. Griggs Group, Ltd v. Filanto Spa (op. cit. note 345) stating (at 1105) that “[t]he placement of one lone subprovision dealing with the mailing of nonservice documents in the midst of fifteen articles addressing service of process, would be inconsistent with the structure of the entire convention”; EOI Corp. v. Medical Marketing Ltd. (op. cit. note 345); Eli Lilly et Co. v. Roussel Corp., 23 F. Supp. 2d 460 (D.N.J. 1998); Trump Taj Mahal,Use Associates v. Hotel Services, 183 F.R.D. 173 (D.N.J. 1998); WAWA, Inc. v. Christensen, 44 Fed. R. Serv. 3d 589 (E.D. Pa. 1999); Zaboli v. Mazda Motor Corp., 1999 U.S. Dist. LEXIS 21756 (N.D. Ga. 1999); Randolph v. Hendry (op. cit. note 70) which reasoned (at 577) that “if the contrary interpretation were correct […] then the Article 10(a) provisions would be terribly misplaced. It would be a provision that allows for the use of the mails, but would not provide any guidance on the issue of service of documents abroad--the only issue that the Hague Convention was intended to address”; Friede & Goldman, Ltd v. Gotaverken Arendal Consultants, AB, 2000 U.S. Dist. LEXIS 3319 (E.D. La. 2000); Heredia v. Transport S.A.S., Inc. (op. cit. note 243); Paradigm Entertainment, Inc. v. Video Systems, Co. (op. cit. note 71); Schiffer v. Mazda Motor Corp. (op. cit. note 66); Brockmeyer v. May (op. cit. note 348) (on the Brockmeyer decision, see para. 275); Papir v. Wurms, 02 Civ. 3273 (RCC), 2005 U.S. Dist. LEXIS 2201, 2005 WL 372061 (S.D.N.Y. 2005) (on the Papir decision, see also para. 276); Ackourey v. Nobelhouse Custom Tailors, 2013 WL 6061365 (E.D.Official Pa. 2013); Barriere v. Juluca, 2014 WL 652831 (S.D. Fla. 2014). State courts: Nicholson v. Yamaha Motor Co., 566 A.2d 135 (Md. Ct. Spec. App. 1989); Gapanovich v. Komori, 605 A.2d 1120 (N.J. Super. Ct. App. Div. 1992); Denlinger v. Chinadotcom Corp. (op. cit. note 66). The New York judicial departments of the Appellate Division are divided on the issue of whether Art. 10(a) of the Convention permits service of process by mail. The Second and Fourth Departments have taken the view that Art. 10(a) does permit the use of postal channels to serve documents, when the State of destination has not objected to this Art. See Fernandez v. Univan Leasing, 15 A.D.3d 343, 344For-345, 790 N.Y.S.2d 155 (N.Y. App. Div. 2005) [2nd Dept. 2005]; Sbarro, Inc. v. Tukdan Holdings, Ltd., 921 N.Y.S.2d 837 (Sup. Ct. Suffolk County 2011); Rissew v. Yamaha Motor Co., 515 N.Y.S.2d 352 (N.Y. App. Div. 1987) at 354-355 [4th Dept. 1987]. The Third Department has recently departed from its previous holding in Reynolds v. Woosup Koh, 109 A.D.2d 97, 490 N.Y.S.2d 295 (N.Y. App. Div. 1985) [3rd Dept. 1985] and has found that service of documents may be effected under Art. 10(a) of the Convention. See New York State Thruway Authority v. Fenech, 94 A.D.3d 17, 938 N.Y.S.2d 654 (N.Y. App. Div. 2012) [3rd Dept. 2012]; see also G.B. Smith & T.J. Hall, “Divergent Views of Service of Process Under the Hague Convention”, 247 N.Y. L.J., p. 115 (15 June, 2012) (elaborating that in support of its conclusion in Fenech, the Third Department Court gave weight to the fact that “many signatories to the Hague Convention had made no objection to service of judicial documents by mail, and the findings of the Special Commission of the Hague Convention and U.S Department of State support this interpretation”). In contrast, the First Department is of the view that Art. 10(a) does not permit the use of mail to serve process. See Sardanis v. Sumitomo Corp. (op. cit. note 374). 376 B. Ristau (op. cit. note 39), p. 205. For further comments on Ackermann (op. cit. note 375), see para. 276. CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 89

(3) First reactions

273. At the 1989 Special Commission meeting, the conflicting views of the courts in the United States were already known. They were the subject of a lively debate after which the experts dismissed the restrictive construction of Article 10(a) in Bankston.377

274. Since the 1989 Special Commission meeting, the split in the case law has widened. The opinion issued by the Legal Adviser of the Department of State condemning the Bankston decision does not seem to have had the desired effect.378 Furthermore, it seems that only courts in the United States have had difficulties with the interpretation of this Article.379

(4) Further evolution leading to a third category

(i) Brockmeyer: a welcome clarification

275. One of the most important US decisions recently rendered on the issue of the meaning of the word “send” in Article 10(a) is undoubtedly Brockmeyer v. MayOnly.380 In Brockmeyer, the Ninth Circuit agreed with the Ackermann decision, according to which Article 10(a) of the Service Convention allows for service by mail on defendants in States which have not objected to postal channels. In Brockmeyer, however, the Court also explicitly held that the Service Convention does “not itself affirmatively authorize international mail service” and that one has to “look outside the Hague Convention for affirmative authorization of the international mail service that is merely not forbidden by Article 10(a)”. In other words, Brockmeyer takes the position advocated in this Handbook,Use according to which the validity of service of a document abroad through postal channels depends first on the law of the forum (see para. 257). The Court then carefully examined Fed. R. Civ. Pro. 4(f) and found that, according to this rule, service by mail is valid only if it is sent by the clerk of the court, using a form of mail requiring a signed receipt (Rule 4(f)(2)(C)(ii)), or if it is approved by the district court (Rule 4(f)(3)).381

377 Official Report of the 1989 SC (op. cit. note 57); for the 2003 Special Commission, see para. 282. 378 In that opinion, published in I.L.M. 1991, p. 260, the Legal Adviser states that in his view, the result reached by the Court in Bankston (op. cit. note 374), to wit, that the Convention does not allow service through postal channels, is incorrect. 379 Space does not allow us to refer to the numerous decisions of other States expressly supporting the viewFor that Art. 10(a) allows for service of process. See, e.g., Noirhomme v. Walklate, Queen’s Bench Division, London, 15 April 1991, reported in The Times dated 2 August 1991, p. 27, and the following decisions cited in Brockmeyer v. May, (op. cit. note 348) (discussed in para. 275): Court of Justice of the European Union (5th ch.) judgment in ED Srl. v. Italo Fenocchio, C-412/97, EU:C:1999:324; Alberta (Canada) Queens Bench, Integral Energy & Envtl. Eng’g Ltd v. Schenker of Canada Ltd., (2001) 293 A.R. 233, 2001 WL 454163; R. v. Re Recognition of an Italian Judgment, Court of Appeal of Thessaloniki (Greece), 2000 WL 33541696. 380 (op. cit. note 348); 2004 U.S. App. LEXIS 18349. In support of Brockmeyer: Julien v. Williams, 2010 WL 5174535 (M.D. Fla. Dec. 15, 2010); The Knit With v. Knitting Fever, Inc., 2010 WL 2788203 (E.D. Pa. 2010); TracFone Wireless, Inc. v. Bequator Corp., Ltd., 717 F. Supp. 2d 1307 (S.D. Fla. 2010); TracFone Wireless, Inc. v. Sunstrike Int’l, Ltd., (op. cit. note 345); Willis v. Magic Power Co., Ltd., 2011 WL 66017 (E.D. Pa. 2011); TracFone Wireless, Inc. v. Bitton, (op. cit. note 345); Tracfone Wireless, Inc. v. Pak China Group Co. Ltd., (op. cit. note 351); LT Game Int’l Ltd v. DEQ Systems Corp., 2013 WL 5536195 (D.N.J. 2013). 381 Note 348 in fine. 90 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

(ii) Papir : a step backwards

276. Although it has not garnered any support for its unusual and possibly erroneous interpretation of the Ackermann decision, a case from the US District Court for the Southern District of New York382 (which is within the Second Circuit and therefore bound by the Ackermann precedent) expressed its disagreement with Brockmeyer’s holding that service by mail must comply with Fed. R. Civ. Pro. 4(f). In this case, the plaintiff relied on mail service under Article 10(a), but did not attempt to comply with Fed. R. Civ. Pro. 4(f)(2)(C)(ii). The defendant challenged service based on the Brockmeyer ruling. The District Court acknowledged that the service effected by the plaintiff did not comply with Rule 4(f)(2)(C)(ii), but held that such service was nevertheless proper. The Court further noted that Ackermann and Brockmeyer were in conflict with each other. However, the Court failed to see that Brockmeyer involved the propriety of outbound service, while Ackermann involved an issue of inbound service.

277. Given the lack of support for Papir’s peculiar holding and its limited precedential value,383 it seems that Brockmeyer is the more favoured interpretation of Ackermann which has been applied by US courts.384 This is in line with the position advocated in this Handbook, namely that service by mail under Article 10(a) is possible under two cumulative conditions: (1) the State of destination must notOnly have objected to this method, and (2) the conditions set by the lex fori for valid service by mail must be met.

(5) Conclusion

278. The analysis of the decisions rendered by US courtsUse on Article 10(a) reveals that there are potentially three categories of decisions385:

(1) the Bankston line: Article 10(a) does not permit service by mail;

(2) the Ackermann line, as applied in Brockmeyer: Article 10(a) permits service by mail, but only if such service also complies with Fed. R. Civ. Pro. 4(f)(2)(C) or 4(f)(3); and

(3) the Ackermann line, as interpreted in Papir: Article 10(a) permits service by mail, regardless of whether such service complies with Rule 4(f)(2)(C). However, to date this decision has not been followed by any district court. Official

382 PapirFor v. Wurms (op. cit. note 375). 383 To date Papir (op. cit. note 375) has only been mentioned in one district court decision, which only noted that Papir followed Ackermann (op. cit. note 375): Europacific Asset Management Corp. v. Tradescape, Corp., 233 F.R.D. 344 (S.D.N.Y. 2005). In addition, under the United State Rules of Appellate Procedure, an unpublished decision issued after 1 January 2007 has limited precedential value. 384 For a recent application of the Ackermann (op. cit. note 375) line, as applied in Brockmeyer (op. cit. note 348), see McCarty v. Roos, 2012 WL 6138313 (D. Nev. 2012) (holding that plaintiff’s attempted service by mail was improper and did not comply with Fed. R. Civ. Pro. 4(f) because the clerk of the court had not addressed and sent the summons and complaint in accordance with Fed. R. Civ. Pro. 4(f)(2)(C)(ii). The Court also noted the plaintiff’s failure to serve in accordance with Japanese law). 385 This conclusion was originally presented by G.P. Hendrix (partner in the Litigation Department of Arnall Golden Gregory) during a presentation at the ABA Section of International Law 2005 Spring Conference in Washington. CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 91

279. As regards category (1), it may be useful to recall that the 1965 Convention was the first text drawn up by the Hague Conference to include an official English version and relating to service abroad. Nevertheless, the verb “adresser” used in the French version of Article 10(a) of the 1965 Convention, rendered in English by the verb “send”, had been used in substantially the same context in the three predecessor treaties drafted in The Hague (the 1896 Civil Procedure Convention, the 1905 Civil Procedure Convention, replacing the 1896 Convention, and the 1954 Civil Procedure Convention, itself replacing the 1905 Convention). While “adresser” is indeed not equivalent to the concept of “service”, it certainly does not exclude the latter. On the contrary, it has been consistently interpreted as meaning service or notice.386 Accordingly, neither the letter nor the history of the Hague Conventions can be used to support the approach applied in Bankston. Moreover, teleologically, there is not much point to the Bankston approach, since it leads to the conclusion that the Convention does not apply to the service of the most important instrument in any proceeding, the writ of summons, but that it does apply to the transmission of instruments of secondary importance, such as procedural documents.387

280. It might be that the descriptions in (2) and (3) above are not truly separate “categories”, but rather subsets of the same category. Nonetheless, they reflect different approaches that can yield different outcomes in specific cases. As explained above, this Handbook rejects Bankston and Papir and advocates the reasoning underlying AckermannOnly and clearly expressed in Brockmeyer: Service by mail under Article 10(a) is possible and effective under two cumulative conditions: (i) the State of destination must not have objected to this method, and (ii) the conditions set by the lex fori for valid service by mail must be met. As noted above, because Papir has not been followed, the prevailing view would appear to be Ackermann as applied in Brockmeyer.

281. To date, the Supreme Court of the United StatesUse has not ruled on the interpretation of Article 10(a).

282. The Special Commission held in 2003 reaffirmed its position that the term “send” in Article 10(a) (English version) is to be understood as referring to “service” through postal channels.388

e) Postal channels and the requirement of translation?

283. Do documents Officialserved through postal channels need to be translated into the language of the State of destination? Under Article 5(3) of the Convention, the Central Authority of the requested State may require that the document to be served be written in or translated into the official language of the requested State when it serves the document or has it served by a method prescribed by its internal law or a particular method requested by the forwarding authority. Informal delivery of the document avoids the requirement of translation For(see para. 178 ). The opening words of Article 5 clearly reflect that this provision addresses the main channel of transmission only (i.e., transmission through the Central Authority of the requested State). Thus, a grammatical and systematic interpretation of Article 5 leads to the conclusion that a translation of the document to be served, and a fortiori of

386 G.A.L. Droz, “Mémoire sur la notification des actes judiciaires et extrajudiciaires à l’étranger”, Prel. Doc. No 2 of October 1963 [in French only], in Actes et documents de la Dixième session (1964), Tome III, Notification, The Hague, Imprimerie Nationale, 1965, pp. 12-13, 15-17. 387 See also D. McClean (op. cit. note 234), p. 44, according to whom the conclusions reached in Bankston (op. cit. note 374), “are wholly unjustified”. 388 C&R No 55 of the 2003 SC. 92 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

its attachments, is not required for service through postal channels.389 Several courts have held that service through postal channels of documents not translated into the language of the State of destination is not in breach of the Convention.390

284. However, it should be noted that both Latvia and Slovenia have made a qualified objection to Article 10(a) noting that documents forwarded under this provision must be in their official language (Latvian or Slovenian, respectively) or be accompanied by a translation into that language (for more information on qualified objections, see para. 262).391 As a result, these language requirements must be satisfied when using the postal channel under Article 10(a) to serve documents in those States.

285. An Austrian judgment rendered under the 1954 Civil Procedure Convention deserves particular attention in this respect: The Supreme Court of Austria held that service through postal channels in Italy of an Austrian claim without a translation into the addressee’s language was “ineffective”, for being contrary to the principles of due process. The Austrian Court referred expressly to the principle of a fair trial guaranteed in Article 6(1) of the ECHR.392 The European Court of Human Rights in Strasbourg, to the best of our knowledge, has not yet had to rule on the requirements of service in the addressee’s language in the course of civil or commercial proceedings. In a criminal case, however, the Court recognised that the absence of a translation was a breach of Article 6(1) and (3)(a) 393 Only of the ECHR.

286. Finally, reference should be made to the recommendation of the Fourteenth Session of the Conference, according to which the Model Form containing a Summary of the document to be served accompanied by a Warning should be used in all cases of service abroad, including in cases of transmission through postal channels (see Annex 3 at pp. 131 et seq.; on the language requirements relating to the ModelUse Form, see para. 151).

Official

389 G.B. Born & P.B. Rutledge (op.cit. note 233), p. 870 and D. McClean (op. cit. note 234), p. 45. 390 Shoei Kako Co., Ltd v. Superior Court (op. cit. note 258) (United States), also holding that the absence of Fora translation into Japanese was not inconsistent with the requirement of due process since the defendant companies understood English; Weight v. Kawasaki Heavy Industries, Ltd., 597 F. Supp. 1082 (E.D. Va. 1984); Lemme v. Wine of Japan Import, 631 F. Supp. 456, 464 (E.D.N.Y. 1986); Sandoval v. Honda Motor Co. Ltd., 527 A.2d 564 (Pa. 1987); McClenon v. Nissan Motor Corp. (op. cit. note 66); Heredia v. Transport S.A.S., Inc (op. cit. note 243); Denise Williams v. Jacqueline LeBrun et al., 2010 WL 3341482 (Conn. Super. Ct. 2010). See also Paris CA (France), 6 April 1979, JT 1980, p. 156; OLG Hamm (Germany), 16 March 1981 (2 U 182/80). 391 For more information on qualified objections, see para. 262. 392 OGH, 16 June 1998, IPRax 1999, p. 260. 393 European Court of Human Rights, Brozicek v. Italie, No 10964/84, ECtHR, 19 December 1989, cited by F. Matscher, “Sprache der Auslandzustellung und Art. 6 EMRK”, (1999) 19(4) IPRax, p. 274. This case involved a person born in Czechoslovakia and residing in Germany, who had been detained in Italy and who had informed the relevant Italian judicial authorities that because of his lack of knowledge of the Italian language he had difficulties in understanding the contents of their communications. CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 93

D. Service through judicial officers, officials or other competent persons of the requested State

a) Direct communication between “judicial officers, officials or other competent persons” (e.g., between huissiers, Art. 10(b))

(1) In general

287. Article 10(b) allows judicial officers, officials and other competent persons of the State of origin to effect service of judicial documents directly through judicial officers, officials and other competent persons of the State of destination. Each State Party may declare an opposition to this form of transmission (Art. 21(2)(a)).394 The declarations of opposition by States Parties are included in the status table of the Convention, which is available on the Hague Conference website. Only 288. The law of the State of origin determines who, in that State, are the judicial officers, officials and other competent persons to forward a request for service under Article 10(b). Likewise, the law of the State of destination determines who, in that State, are the judicial officers, officials and other competent persons to receive and execute requests for service under that provision.395 Importantly, the Special Commission has recommended that “persons forwarding requests for service under Article 10(b) [and] (c) inquire with authorities in the receiving State, before sending a request for serviceUse in order to properly identify to whom the request should be sent”.396

289. The use of this channel of transmission presupposes that both the State of origin and the State of destination have a system of service through judicial officers, officials or other competent persons in place. In practice, such a system of direct communication between

394 It is the declaration that matters, not the content of a State’s internal law. Accordingly, a United States court wrongly held thatOfficial in order to determine whether a State Party opposes a specific channel of transmission, the procedural law of that State should be reviewed to determine whether the proposed method of service would be valid in that State: In re Hunt's Pier Associates (op. cit. note 27). After a review of Ontario procedural law, the Court held that the methods of transmission provided for under Art. 10(b) and (c) of the Convention are not admissible, and accordingly, that Canada objects to them. Some US courts have taken into consideration both the declarations under Art. 10(b) and the law of theFor State of destination: in Marcus Food Co. v. DiPanfilo, 2010 WL 3946314 (D. Kan. 2010), a US court held that in order to determine whether service on a defendant in Canada under Art. 10(b) was proper, it had to verify whether Canada had objected to Art. 10(b), which was not the case, as well as to review the internal procedural law of Ontario (Canada), the State of destination. Notwithstanding the analysis made by the court, and contrary to the holding in In re Hunt's Pier Associates, the court concluded that service of process under Art. 10(b) by a process server is authorised in Canada. See also Capozzo v. Mendal, 2011 WL 7029841 (Conn. Super. Ct. 2011) (holding that service had been validly effected under Art. 10(b) because the Netherlands did not object to Art. 10(b) and service complied with Dutch law). 395 Thus, the decision by the Supreme Court of Portugal dated 10 November 1993, which, referring expressly to the Service Convention and Portuguese procedural law, refused recognition of a decision rendered by an English court on the grounds that service on a Portuguese company through an attorney had not been performed by a competent person, is to be approved: Supremo Tribunal de Justiça, 10 November 1993, CJ (STJ) Ano 1, Vol. III, 117. 396 C&R No 33 of the 2014 SC. 94 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

competent persons operates mainly in States with huissiers de justice.397 The plaintiff or counsel for the plaintiff approaches an huissier in his or her State. The latter then sends the document to be served either directly to a colleague having territorial jurisdiction in the State of destination or to the national professional body of the State of destination, which forwards that request and the document to be served to the huissier having territorial jurisdiction. In order to facilitate this mechanism, some professional bodies have agreed that each State will have a single price for services from abroad.

(2) Position of the United Kingdom (letter of 11 September 1980)

290. At the time of ratification, the United Kingdom declared that, with reference to Article 10(b) and (c), “documents for service through official channels will be accepted in the United Kingdom only by the central or additional authorities, and only from judicial, consular or diplomatic officers of other Contracting States”. This declaration led to the question as to whether the United Kingdom would still intend to allow direct service on its territory by a solicitor admitted to practice in the jurisdiction. In a letter dated 11 September 1980 addressed by the Foreign and Commonwealth Office to the Permanent Bureau, the United Kingdom Government stated that the declaration Onlymade at the time of ratification “does not preclude any person in another Contracting State who is interested in a judicial proceeding (including his lawyer) from effecting service in the United Kingdom ‘directly’ through a competent person other than a judicial officer or official, e.g., a solicitor”.398 Thus, in Tax Lease Underwriters v. Blackwall Green, a United States court accepted the validity of service effected on a United Kingdom resident through an English solicitor.399 At the 1989 Special Commission meeting, the United Kingdom delegation in fact stated a preference for the use of direct serviceUse through English solicitors on residents of England and Wales. This position was reaffirmed at the 2003 Special Commission.400

b) Direct communication between a person interested in a judicial proceeding and a judicial officer, official or other competent person (e.g., a huissier, Art. 10(c))

291. Article 10(c) allows any person interested in a judicial proceeding to effect service of judicial documents directly through a judicial officer, official or other competent person of the State of destination. EachOfficial State Party may declare an opposition to this method of transmission (Art. 21(2)(a)). The declarations of opposition made by States Parties are included in the status table of the Convention on the Hague Conference website. The comments made above with respect to Article 10(b), and in particular the special position of the United Kingdom, apply mutatis mutandis to Article 10(c). As noted above in paragraph 288, the Special Commission has recommended contacting the authorities of the receiving State For 401 in order to identify to whom the request should be sent.

397 Art. IV of the Protocol annexed to the 1968 Brussels Convention provided for such a system of notice from huissier to huissier among States Parties not having objected to this form of notice. This Protocol has not been included in the Brussels Ia Regulation. 398 An extract from the letter is available on the Hague Conference website. 399 Tax Lease Underwriters v. Blackwall Green, 106 F.R.D. 595 (E.D. Mo. 1985). 400 C&R No 58 of the 2003 SC. 401 C&R No 33 of the 2014 SC. CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 95

c) Examples of valid transmissions under Article 10(b) and 10(c)

292. The following transmissions have been held to have led to valid service under these provisions (in addition to the case of the English solicitor mentioned in para. 290 and note 399): transmission to an English “independent process server” for service on a defendant domiciled in the United Kingdom;402 transmission to a California attorney for service on a defendant in the United States;403 transmission by the head of the customs office of Buffalo, New York state, in charge of enquiries conducted by that office, of a request to his Canadian counterpart in Ontario;404 transmission to a private process server in Bermuda for service on a defendant residing in Bermuda (where the UK declaration (see above) also applies);405 transmission to a Swedish notary for service on the manager of the Swedish defendant company;406 transmission by the plaintiff to a private process server in the United States.407 In most cases, the request for service of the document originated with counsel for the plaintiff. Finally, it appears that Article 10(b) has been used for a transmission between a United States attorney and a huissier in France.408

d) Examples of invalid transmissions underOnly Article 10(b) and 10(c)

293. On the other hand, transmission of a writ of summons translated into Japanese to a lawyer in Japan for service on a defendant in Japan has been held to be invalid, as Japan has opposed this method of transmission.409 The sameUse reasoning was applied by the Supreme Court of Finland with regard to a transmission of a default judgment to a Turkish lawyer who then sought the assistance of a Turkish notary to serve the judgment on the alleged representative of the defendant; in this case, service was considered invalid because Turkey had objected to this channel of transmission.410 In one case, a plaintiff established in Germany appointed a huissier in the Netherlands directly to serve a notarised deed on the defendant in Rotterdam. The Appellate Court (Oberlandesgericht) of Düsseldorf held that service to be ineffective on the grounds that the reservation whereby Germany opposes

402 Balcolm v. Hiller, 46Official Cal. App. 4th 1758 (Cal. Ct. App. 1996); White v. Ratcliffe, 674 N.E.2d 906 (Ill. App. Ct. 1996); St. Ventures, LLC v. KBA Assets and Acquisitions, LLC, 2013 WL 1749901 (E.D. Cal. 2013). 403 La Belle Créole v. The GEMTEL Partnership, Tribunal de Commerce de Paris, 2 August 1989. 404 United States v. Islip, 18 F. Supp. 2d 1047 (Ct. Int’l Trade 1998); the US Court of International Trade held that officials and competent persons had been involved on both sides of the border. 405 KoehlerFor v. Dodwell, 152 F.3d 304 (4th Cir. 1998). 406 Vazquez v. Sund Emba AB (op. cit. note 233). It should be noted that the fact that the request had not been translated into Swedish was not an impediment in that case, as the Court held that the requirement of translation only applied to service through the Central Authority. 407 Pitman v. Mol (op. cit. note 92). 408 See D. McClean (op. cit. note 234), p. 45, note 125 and accompanying text, who refers to the decision in Tamari v. Bache & Co. (Lebanon) SAL, 431 F. Supp. 1226 (N.D. Ill. 1977). 409 Kadota v. Hosogai, (op. cit. note 92). This approach was upheld by the Supreme Court of Japan in a decision dated 28 April 1998; the Court was to rule on an application for recognition and enforcement of a ruling by a Hong Kong SAR Court for which service had been performed through a Japanese lawyer by means of direct delivery to the defendants located in Japan. 410 Finnish Supreme Court, Finntyr Oy. v. Bio Dogadan AS., No KKO 2006:28. This case was mentioned in M. Norros, Judicial Co-operation in Civil Matters with Russia and Methods of Evaluation, Helsinki, Kikimora Publications, 2010, pp. 129-135. 96 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER II

the transmission channel provided for under Article 10(c) had a reciprocal (allseitig) effect, i.e., both on services performed on German territory from a State Party and on services from Germany for addressees abroad.411 A Canadian court deemed service to be invalid where it was effected directly on the defendant by the person interested in the judicial proceedings (in this case the plaintiff). The plaintiff had travelled to Barbados and had delivered copies of the claim to the defendants personally. The court noted that Article 10(c) requires the interested person to transmit the judicial document directly through judicial officers, officials or other competent persons of the State of destination, and may not serve the document directly.412

3. Derogatory channels

294. The Convention allows Contracting States to deviate from its main and alternative channels either by agreements among themselves (Arts 11, 24 and 25) or unilaterally (Art. 19). These additional channels are called derogatory channels. See also Explanatory Chart 2 following the FAQ. Only

A. Additional agreements among Contracting States (Art. 11)

295. Under Article 11, two or more Contracting StatesUse may agree to permit other channels of transmission than those provided for under Articles 2 to 10 of the Convention. Article 11 expressly mentions, by way of example, direct communication between the States’ respective authorities (e.g., transmission for service from one court to another, or from one official of a public prosecution service to another).

B. Relationship with supplementary agreements to the Conventions of 1905 and 1954 (Art. 24) and with other Conventions (Art. 25) Official

296. Under Article 24, agreements supplementary to the Hague Conventions of 1905 and 1954 shall be considered as equally applicable to the 1965 Convention, unless the States Parties concerned agree otherwise.

297. ForAccording to Article 25, the Convention does not derogate from conventions to which the States Parties are or will be parties and which contain provisions relating to matters governed by the Convention. This provision accordingly takes account of existing and future bilateral and multilateral agreements.

298. The effect of Articles 24 and 25 is that the mechanisms of such agreements may be used exclusively or alternatively with those of the Convention in relations between the two States concerned. In this respect, it should be pointed out that opposition under Articles 8 or 10,

411 OLG Düsseldorf, 8 February 1999 (op. cit. note 363); see para. 264 above. 412 Mitchison v. Zerona Int’l Inc., 2014 ONSC 4738. CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION 97

for example to direct postal channels, remains ineffective in relation to another State Party with which the State objecting to postal channels has entered into an additional or special agreement specifically permitting postal transmission.

299. Certain multilateral and regional instruments, to wit, the Inter-American Convention on Letters Rogatory, the 2007 EU Service Regulation, and the Model Bilateral Convention proposed by the Asian-African Legal Consultative Organization (AALCO), will be described briefly below (see paras 329 et seq.). Other regional treaties containing provisions on the service of documents abroad are the following:

– the 1974 Nordic Convention on Mutual Assistance in Judicial Matters between Denmark, Finland, Iceland, Norway and Sweden (in particular, this Convention establishes direct communication between courts);

– the 1983 Riyadh Arab Agreement for Judicial Co-operation among members of the Arab League;

– the 1992 Las Leñas Protocol on Judicial Co-operation and Assistance in Civil, Commercial, Labour and Administrative Matters among members of Mercosur;

– the 1993 Minsk and 2002 Kishinev Conventions on LegalOnly Assistance and Legal Relations in Civil, Family and Criminal Matters among members of the Commonwealth of Independent States.

C. Unilateral derogation from the Convention (Art. 19) Use

300. According to Article 19, the Convention does not prevent the internal law of a State Party from permitting other forms of transmission that the Convention does not allow, for the service on its territory of documents from abroad.

301. This provision was added to the Convention at the request of the United States, which feared that the conventional forms of transmission would be too restrictive. In fact, to date it has mainly been applied by courts in the United States. The interpretation of Article 19, however, and in particular of the term “permits”, is not uniform. Certain courts, based on a narrow construction of this provision, consider that only the forms of transmission expressly permitted by theOfficial State Party are allowed. Others, in contrast, consider that Article 19 is to be construed to allow any mechanism for notice that the foreign domestic law does not expressly ban.413

302. In many States Parties, this provision has not been applied, owing to the objections raised Forby those States against the methods of transmission provided for under the Convention.

413 For a statement of the two possible constructions of this provision and a report on legal doctrine and case law on this issue, see Banco Latino, S.A.C.A. v. Gomez Lopez, 53 F. Supp. 2d 1273 (S.D. Fla. 1999). In that decision, the Court adopted the liberal approach and therefore considered that personal delivery of a writ of summons by a detective on a US defendant located in Spain constituted valid service since it was not prohibited by Spanish law. See in support White v. Ratcliffe (op. cit. note 402). For a conservative reading of Art. 19, see Humble v. Gill, 2009 WL 151668 (W.D. Ky. 2009) (finding that the Ontario Rule of Civil Procedure pursuant to which plaintiff attempted service was “not the type of law contemplated by Art. 19 because it does not authorize methods for international service in Canada”); In re J.P.L., 359 S.W.3d 695 (Tex. App. 2011) (holding that while service was effected pursuant to the internal law of Mexico, Art. 19 could not apply, as there was no evidence provided as to how the internal law of Mexico authorises the service of documents specifically coming from abroad). 98 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER III

III. Protection of the defendant (Arts 15 and 16)

303. Unlike the 1905 and 1954 Conventions, the 1965 Convention contains two important provisions of substantive nature which protect the defendant prior to a judgment by default (Art. 15) and after a judgment by default (Art. 16). Article 15 restricts the power of the judge to give a default judgment unless certain conditions have been established (see Explanatory Chart 3 following the FAQ and paras 304 et seq.); Article 16 allows the judge to relieve the defendant from the effects of the expiry of the time for appeal from the default judgment if certain conditions are fulfilled (see Explanatory Chart 4 following the FAQ and paras 322 et seq.). Articles 15 and 16 apply regardless of the channel of transmission used under the Convention.

1. Protection prior to a default judgment: Article 15

A. Stay of entry (Art. 15(1)) Only

304. When a writ of summons or an equivalent instrument has been transmitted abroad in accordance with the Convention and the defendant does not appear,414 Article 15(1) requires the judge to refrain from giving judgment until it has been established that the document was served in accordance with the formal requirements of the requested State or the State of destination (depending on whether the main channelUse or one of the alternative channels has been used), or that the document was actually delivered to the defendant or the defendant’s residence by another method provided for by the Convention. In either case, the service or the delivery must have been effected in sufficient time to enable the defendant to defend.

305. The phrase “equivalent document” includes documents that have identical effects to a writ of summons, such as a notice of appeal,415 a third-party impleader or a cross-complaint under United States law.416 The issue of the defendant’s appearance or non-appearance is determined by the law of the forum.417

Official

For 414 In Wuxi Taihu Tractor Co., Ltd v. York Group, Inc., 2011 WL 488905 (S.D. Tex. 2011), the Court was unable to apply either Art. 15 or 16 since the defendant had made a defective appearance to contest service, rather than following Texas forum rules which required a motion to quash, and thus, the Court found that the defendant had ultimately waived his challenge to service. 415 Report of the 1964 SC (op. cit. note 25), p. 93. See, however, A. Bucher, Droit international privé suisse, Tome I, Basel, Helbing & Lichtenhahn, N 509, 1998, who does not consider that a notice of appeal is an equivalent document within the meaning of Arts 15 and 16. 416 Decision rendered by a German court: OLG München, 17 November 1994 (op. cit. note 118). 417 In a decision of 17 January 1990, Solal v. Semasep (not published), the French Cour de cassation (Ch. Civ. 3) held that the principles of adversarial debate and fair trial were observed, and that the defendant was accordingly not justified in claiming a breach of the Convention, since he had sent the judge letters calling for a postponement of the hearing, thereby demonstrating that he was aware of it, as well as an appeal brief. PROTECTION OF THE DEFENDANT (ARTS 15 AND 16) 99

306. Under Article 15(1), if the defendant has not appeared, judgment shall not be given until two cumulative conditions are established:

a) Valid service or actual delivery

307. First, service must have been performed in accordance with the formal requirements of the requested State (in the case of the main channel of transmission) or the State of destination (in the case of an alternative channel of transmission) (Art. 15(1)(a)), or the document must have actually been delivered to the defendant or the defendant’s residence by another method provided for under the Convention (Art. 15(1)(b)). For example, personal delivery by the French Consul of a writ of summons to the defendant in the United States constitutes a method provided for by the Convention (direct consular channel under Art. 8): there is accordingly no need to stay judgment.418 On the other hand, service of the summons by registered mail on a defendant in Germany is not a means provided for by the Convention, having regard to Germany’s opposition to service by postal channels within the meaning of Article 10(a): the judge must accordingly stay judgment.419 When the method of transmission used includes certain formalities to be observed, it is not sufficient for the defendant to have personally received the writ of summonsOnly or to be actually aware of a judicial document; in such a case, the manner in which the document was served is of importance.420

308. For the purposes of Article 15(1)(a), proof of the service will usually be provided by the Certificate required under Article 6.421 That Certificate, however, gives rise only to a presumption of valid service, which the defendant may rebut (see para. 216). For the purposes of Article 15(1)(b), whether the document was “actuallyUse delivered” is a matter of fact to be determined by the forum judge.422

b) In due time

309. Secondly, service or delivery must have been effected in due time. The forum judge has broad discretion to determine whether the defendant was allowed sufficient time to organise a defence.423 For instance, the Court of Appeal of Milan ruled that a period of 28 days was insufficient to Officialallow a Finnish defendant to appear and prepare his defence before

418 Zavala v. Banque nationale de Paris, Cass., Ch. Civ. 1, 19 May 1981, Rev. crit. d.i.p. 1982, p. 564, noteFor G.A.L. Droz. 419 Dahlgren GmbH v. SA Socatrem, CA Reims (op. cit. note 352). An order issued in breach of Art. 10(a) should accordingly be annulled: Ch. Civ. 1, Section 2, No RG 99/01730, Société Jucker GMBK v. Société L.0.I Thermoprocess GMBH, CA Dijon (op. cit. note 352). 420 G.A.L Droz, note to Zavala v. Banque nationale de Paris (op. cit. note 418). 421 In White v. Ratcliffe (op. cit. note 402), a US Court treated an affidavit as equivalent to the Certificate of service for the purposes of that provision. 422 For example, in Gould Entertainment Corp. v. Bodo, 107 F.R.D. 308 (S.D.N.Y. 1985), a US District Court found that the address to which a summons and complaint were delivered was the residence of the defendant based on prior communications between the parties, and statements made by the defendant’s cleaning lady on whom the documents were served at that address. In White v. Ratcliffe (op. cit. note 402), another US Court determined that summons was delivered to the defendant based on an affidavit of the process server who served the documents. 423 This much was recognised by the Special Commission at its meeting in 1977 (Part I, Section 1 D). 100 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER III

an Italian court.424 However, the Appellate Court of Illinois has held in a case involving the service on a defendant in the United Kingdom that a period of 40 days (from the date of service to the date of the entry of the default judgment) was sufficient,425 and in a case concerning service in Canada, a US District Court has found that a period of approximately one month was sufficient.426 The determination by the court pursuant to Article 15(1) of the sufficiency of time is without prejudice to a later determination of sufficiency by a court in another State for the purposes of deciding an action to enforce the default judgment.427

310. Alhough Article 15(1) requires the judge not to give judgment until the conditions stated are met, the authors of the Convention agreed to admit that the judge could also “postpone the case to a subsequent session while granting the plaintiff additional time to inform the defendant of the action brought against the latter”.428

c) Operation of internal law

311. Article 15(1) does not give the forum judge the power to give judgment by default in circumstances where its conditions are established; this remains a matter for the law of the forum court, which may well provide additional safeguards to protectOnly a defendant who has not appeared. In this sense, Article 15(1) establishes minimum safeguards for judgments in default.

B. Continuation of proceedings and, in particular, delivery of judgment (Art. 15(2)) Use

312. While Article 15(1) is clearly designed to protect the defendant, Article 15(2) provides for a mechanism which is designed to protect the legitimate interests of a diligent plaintiff.429 Thus, under Article 15(2), a Contracting State is free to declare that its judges may give judgment, regardless of whether the conditions of paragraph 1 have been met, if all the following conditions are fulfilled:

(i) the document was transmitted by one of the methods provided for in the Convention;

(ii) a periodOfficial of time considered adequate by the judge, but of not less than six months, has elapsed since the transmission of the document; and

424 AlaskaFor s.a.s. v. Amer Group Ltd — Koho, 14 July 1987, RDIPP 1988, No 3, p. 537. In Sarl on the Roc Production v. Napoleon Exchange World Inc., Judgment of 8 May 2013, the Court of First Instance of Monaco ruled that a period of approximately four weeks (from the date of delivery to the date of the hearing), and the fact that it could not be ascertained that the defendant had received the letter, was insufficient time to enable a Canadian defendant to adequately defend the claim. 425 White v. Ratcliffe (op. cit. note 402). 426 Marcus Food Co. v. DiPanfilo (op. cit. note 394). See also Wadleigh Industries, Inc. v. Drilling Rig Atlantic Tiburon, 2014 WL 1024019 (S.D. Tex. 2014) (finding that a period of three months from the date the defendant was required to respond was a sufficient amount of time). 427 Mahou v. Simons, CA Metz, Ch. Civ., 19 March 1987, Juris-Data 041636. The Court of Appeal of Metz granted exequatur of a Dutch judgment, considering that a period of more than fifteen days between the summons and the day of the hearing was sufficient to enable the defendant to enter a defence. 428 Explanatory Report (op. cit. note 9), p. 377 [translation by the Permanent Bureau]. 429 Ibid. PROTECTION OF THE DEFENDANT (ARTS 15 AND 16) 101

(iii) notwithstanding every reasonable effort with the competent authorities, no Certificate of service or delivery could be obtained.430

313. Most Contracting States have exercised the option provided for by Article 15(2).431

Purpose of Article 15(2)

314. Article 15(2) serves as an exception to – but not a substitute for – Article 15(1). It was intended by the drafters only to be applied rarely, in cases where the defendant evades service in bad faith.432 In States that have made a declaration under Article 15(2), Article 15(1) remains applicable.433 Accordingly, in cases where Article 15(2) does not apply (e.g., due to a Certificate of service or delivery having been received), a default judgment may still not be given unless the conditions of Article 15(1) are established.434

315. Unlike under Article 15(1), the addressee’s actual knowledge of the document is no longer required. If, however, under the law of a State which has made the Article 15(2) declaration, the validity of service is subject to the actual possibility of the defendant’sOnly being informed of the proceedings brought against him or her, the judge may not proceed by virtue of that law, despite the State’s declaration pursuant to Article 15(2). In other words, the expiry of the minimum period of six months under Article 15(2)(b) does not imply that the service is valid; whether service is valid under those circumstances is a matter left to the law of the forum. Article 15(2) merely waives the obligation to stay entry of judgment under Article 15(1) and re-establishes the legal situationUse that would exist without Article 15(1).435

316. The determination of the adequate period is left to the judge’s discretion, provided that it is not less than six months.436 If, at the time of hearing, no Certificate is produced,

430 Contrary to one decision of a US District Court, fulfilling this condition depends on the effort made to obtain the Certificate,Official not on whether the Certificate has been obtained: c.f. Marschhauser v. The Travelers Indemnity Co. (op. cit. note 179), where the Court found that Art. 15(2) was satisfied partly on the basis that a letter, which had been received from an administrator in the requested State suggesting that the service request did not emanate from a proper source (and therefore presumably that the request did not comply with the terms of the Convention), was not a Certificate issued under Art. 6 of the Convention, and therefore that no Certificate had been obtained. 431 ForFor a snapshot of declarations made by all Contracting States pursuant to Art. 15(2), see “Table Reflecting Applicability of Articles 8(2), 10(a)(b) and (c), 15(2) and 16(3)” on the Service Section of the Hague Conference website. 432 See Explanatory Report (op. cit. note 9), p. 377. 433 In the United States, which has made an Art. 15(2) declaration, the courts have applied Art. 15(1) where a Certificate of service or equivalent proof of service has been received. 434 C.f. Burda Media, Inc. v. Viertel, 417 F.3d 292 (2nd Cir. 2005), where a US Court of Appeals found that as a Certificate of service within the meaning of Art. 15(2) had been received, Art. 15 in its entirety could not “serve as a means to challenge the default judgment”. 435 T. Bischof (op. cit. note 11), p. 299, with further references. 436 For instance, exequatur in France has been denied for Belgian default judgments delivered before expiry of the six-month period. Cristal France v. Soliver, Cass., Ch. Civ. 1, 16 December 1980, Rev. crit. d.i.p. 1981, p. 713, note G.A.L. Droz; Girault v. Denys, CA Paris, 27 November 1986, Juris- Data 027200. 102 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER III

certain courts usually grant the plaintiff additional time to allow service on the defendant.437 The practice of Netherlands courts seems to differ when the service has failed because the document’s addressee cannot be located. In a case where it appeared during the attempted service in France that the defendant’s address was incorrect and that the latter could not be located, the District Court of Utrecht immediately delivered a default judgment; the Court stated that if it had appeared that the defendant did have an address in France, it could not have given a default judgment and it would have been necessary to perform a second attempted service.438 In a similar case, the German Central Authority returned a Certificate stating that the respondent had moved out without leaving an address. Before judging in default, the Supreme Court of the Netherlands (Hoge Raad) had set a further period for the appellant, allowing the latter time to publish, at least one month before the date of the hearing, a notice of summons in the local newspaper at the respondent’s former address in Germany.439

317. At the same time, the Explanatory Report makes it clear that despite the discretionary nature of Article 15(2), “it can be a useful tool in the interpretation of the Convention, clarifying the underlying intention by reiterating the interests of ensuring, within reason, the rights of the defence”.440 In a similar vein, the Special Commission has recalled that “the purpose and fundamental importance of Article 15(2) [is] to ensure actual notice to a defender in sufficient time to organise his or her defence”.441 Only

318. For the purposes of Article 15(2)(c), the type of certificate of service or delivery will depend on the channel used to transmit the document. If the main channel was used, the certificate is the Certificate required under Article 6. However, a US Court of Appeal has held that a police report documenting service attempts constituted a “certificate” for the purposes of Article 15(2)(c) even though the document was transmitted via the main channel and no Article 6 Certificate had been received.442 If an alternativeUse channel is used, the “certificate” might be any proof of service.443

319. Furthermore, the Special Commission has expressly noted that the receipt of a certificate that no service could be effected is no obstacle to the giving of a default judgment in accordance with the domestic law of the requesting State when such State has made the relevant declaration.444

320. The requirement that “every reasonable effort” be made to obtain the certificate has been considered by a number of US courts. In one case, a District Court found that placing a single phone call to the Central Authority to obtain oral confirmation of service was insufficient to satisfyOfficial this requirement.445 In a more recent case,446 a Court of Appeals

437 See the decision of the Supreme Court of the Netherlands, Segers and Rufa BV v. Mabanaft GmbH (op. cit. note 29). 438 VanFor Zelm BV v. Martinus Bomas (op. cit. note 137). There is, however, some ambivalence as to whether this was a case of an unknown address, and thus outside the scope of the Convention, see paras 88 et seq. 439 Malenstein v. Heymen (op. cit. note 138). 440 Explanatory Report (op. cit. note 9), p. 378 [translation by the Permanent Bureau]. 441 C&R No 74 of the 2003 SC. 442 Burda Media, Inc. v. Viertel (op. cit. note 434). At the same time, the Court cautioned against attempting to obtain a document that was less “complete and official” for the purposes of demonstrating compliance with Art. 15(2). 443 See Marcus Food Co. v. DiPanfilo (op. cit. note 394). 444 C&R No 35 of the 2009 SC. 445 Universal Trading & Investment Co. v. Kiritchenko, 2007 WL 660083 (N.D. Cal. 2007). 446 Box v. Dallas Mexican Consulate General, 487 F. App’x 880 (5th Cir. 2012). PROTECTION OF THE DEFENDANT (ARTS 15 AND 16) 103

found that in proceedings against a Consulate General of Mexico, notifying the defendant’s counsel amounted to “every reasonable effort” in view of the fact that professional conduct rules under the law of the forum prohibited counsel for the plaintiff from communicating with the defendant otherwise than through its counsel. The Court’s decision was based on the assumption that the legal defendant’s personality extended to all Mexican officials, including those of the Mexican Central Authority and therefore, by contacting the defendant’s counsel, the plaintiff had taken ”the only step ethically permitted”.447

C. Provisional or protective measures (Art. 15(3))

321. Article 15(1) and (2) does not prevent the judge from ordering any provisional or protective measures in emergencies. This is true of provisional measures issued ex parte, and of measures in the course of adversarial proceedings. The only criterion is urgency, determined by the forum judge.

2. Protection after a default judgment: ArticleOnly 16

322. Article 16 allows a defendant who has not appeared, and against whom a default judgment has been entered, an opportunity to apply to the forum judge for relief from the time-bar arising out of the expiry of the period for appeal. Use

Types of relief under Article 16

323. The Special Commission has recognised that the types of relief against a default judgment contemplated in Article 16 are a matter for domestic law.448 In this regard, the term “appeal” is used as an umbrella term in the Convention to encompass a variety of avenues of redress that may be provided for by the law of the forum State, including an appeal in the classic sense (i.e., a legal proceeding by which a case is brought before a higher court for review of the decision of a lower court) and an application to set aside the judgment (typically brought before the court that rendered the judgment).449 Official

For

447 See also Scheck v. the Republic of Argentina (op. cit. note 41) finding that the Art. 15 requirements were satisfied where the plaintiff had properly transmitted the documents to the Argentine Ministry of Foreign Affairs, waited more than nine months without receiving a Certificate and had made every “reasonable effort” to obtain such Certificate by contacting the Argentine Ministry. 448 C&R No 34 of the 2014 SC. 449 See Report of the 1964 SC (op. cit. note 25), p. 99. 104 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER III

324. The time for commencing an appeal in the classic sense is typically fixed and must generally be brought within one month from the date of the judgment.450 In contrast, the time for bringing a motion to set aside a default judgment may be either fixed or flexible. In the United States, depending on the ground for relief invoked, a motion to set aside a final judgment must be filed within one year following the entry of the judgment or within a reasonable time.451 In England and Wales, there is no time-limit for applying to set aside a default judgment, although in considering whether to set aside the judgment the court must have regard to whether the person seeking to set it aside made an application to do so promptly.452 Most Canadian jurisdictions do not impose a time-limit for bringing a motion to set aside a default judgment and it can typically be set aside on such terms as are just.453 In Quebec, however, the time-limit to apply for the revocation of a default judgment is one year after the judgment date if the originating demand had been sent to a foreign State for notification.454

325. The defendant may be relieved of the time-bar if all of the following conditions are fulfilled:

(i) the defendant, without any fault on his or her part, did not have knowledge of the proceedings in sufficient time to defend, or of the decision in sufficient time to appeal;455

(ii) the defendant has disclosed a prima facie defence to the actionOnly on the merits; and

(iii) the defendant files the application for relief within a reasonable time after being informed of the judgment or within the time determined by the State in its declaration to the depositary to this effect; if a State makes such a declaration, the time for application stated by the State in its declaration shall in no case be less than one year following the dateUse of judgment (a table recapitulating

450 See, e.g., in Canada: Rules of Civil Procedure of Ontario, RRO 1990, Reg 194, Rule 61.04 (within 30 days unless a statute or the rules of civil procedure provide otherwise); in England and Wales: Rule 52.4(2) of the Civil Procedure Rules ( “[…] where the court makes no such direction, 21 days after the date of the decision of the lower court that the appellant wishes to appeal”); in France: Art. 538 of the Code of Civil ProcedureOfficial (one month for contentious matters with some exceptions); in Germany: Sections 517 and 520(2) of the Code of Civil Procedure (one month but the grounds for appeal can be submitted within two months); in the United States: Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure (within 30 days after entry of the judgment but the filing of a motion under Fed. R. Civ. Pro. 60 may toll the period to appeal, see for example, Wilburn v. Robinson, 480 F.3d 1140 (D.C. Cir. 2007)). For more information on the deadlines for appeal in EU Member States, see the EuropeanFor e -Justice Portal website at < https://e-justice.europa.eu/ home.do?plang=en&action=home > (under “Tools for courts and practitioners”) [last consulted on 20 November 2015]. 451 Fed. R. Civ. Pro. 60(b). The longest possible deadline applies when the movant relies upon the “judgment is void” ground (rule 60(b)(4)), which motion may be filed at “any time”, see, e.g., S.E.C. v. Internet Solutions, 509 F.3d 1161 (9th Cir. 2007). 452 Rule 13.3 of the Civil Procedure Rules. 453 E.g., the Supreme Court Civil Rules of British Colombia (BC Reg 168/2009, Rule 3-8(11)), the Rules of Court of New Brunswick (NB Reg 82-73, Part 2, Rule 21.08) and the Rules of Civil Procedure of Ontario (RRO 1990, Reg 194, Rule 19.08). 454 Art. 495, Code of Civil Procedure, CQLR, chapter C-25.01. 455 Accordingly, the protection provided for under Art. 16 is not available to a defendant deliberately keeping out of the proceedings; in support, Audiencia Provincial de Huesca, 30 June 1996, AC 1996/1448. PROTECTION OF THE DEFENDANT (ARTS 15 AND 16) 105

the declarations made under Art. 16 is available on the Hague Conference website).456

326. The Supreme Court of the Netherlands (Hoge Raad) stressed that the defendant needed to expressly apply for relief from the time-bar. In that case, as the defendant had not filed an application for relief, the Supreme Court held that the period of one month from delivery of the default judgment laid down by Dutch law should be observed, and could not be extended.457 In France, the option granted to the defendant by Article 16 has been asserted by the judges of exequatur to recognise a foreign judgment despite certain irregularities in its service (in particular, the absence of specification of the nature and periods for appeal in the foreign judgment served).458

327. According to its paragraph 4, Article 16 does not apply to decisions concerning personal status. The aim of that provision is to avoid any uncertainty in the area of decisions relating to divorce or annulment of marriage, more specifically to avoid the challenge of marriages celebrated after a divorce judgment delivered by default.459

328. Article 16 does not impose an obligation on the forum judge to relieve the defendant from the relevant time-bar. It merely establishes a power to do so, and the forum judge has a broad discretion in exercising that power.460 Moreover, Article 16 doesOnly not give the court a power to allow an appeal from (or to set aside) a judgment given in default, or allow the defendant an opportunity to appeal from (or apply to set aside the default judgment); these remain matters for the law of the forum court, which may well afford the defendant with other opportunities to appeal from the judgment.461 Use

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456 Some States have set a period of more than one year, while others (e.g., Switzerland) have not set any period at all. In the latter case, relief is available at any time provided, however, that the application is made within a reasonable period after the defendant has knowledge of the judgment. 457 HRFor 15 June 2000 (op. cit. note 115), p. 642. 458 Guigou v. SPRL Favel, Cass., Ch. Civ., 3 June 1986, Bull. civ. I, 1986, No 149; De Wouters d’Oplinter v. Janson, CA Paris, Ch. Civ. 1, 5 October 1992, Recueil Dalloz 1993, Informations rapides, p. 38; Falcon Cement Co. Ltd v. Pharaon, CA Paris, Ch. Civ. 1, 25 March 1994, Juris-Data 022544. 459 Explanatory Report (op. cit. note 9), p. 377, quoting P. Lagarde, “La Dixième session de la Conférence de La Haye de droit international privé”, Rev. crit. d.i.p. 1965, p. 258. 460 See, e.g., Gould Entertainment Corp. v. Bodo (op. cit. note 422) (holding that defendant’s motion to vacate the judgment filed two days before the expiration of the one-year deadline was untimely. In addition, the Court noted that the defendant had failed to disclose a prima facie defence to the action on the merits pursuant to Art. 16 of the Service Convention or otherwise demonstrate exceptional circumstances pursuant to Fed. R. Civ. Pro. 60(b)). 461 In Australia, uniform legislation implementing the Convention gives the forum judge the power to set aside default judgments in circumstances where the conditions in Art. 16(1)(a) and (b) are fulfilled: see, e.g., r. 11A.12 of the Uniform Civil Procedure Rules 2005 (NSW). 106 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER IV

IV. Regional instruments

329. In parallel to the Service Convention, some regional organisations have also adopted multilateral instruments applicable to cross-border transmission of documents for service. Three of them are briefly mentioned below.

1. The Inter-American Convention on Letters Rogatory

A. General remarks

330. The Inter-American Convention on Letters Rogatory was signed in Panama on 30 January 1975 during the first Inter-American Specialized Conference on Private International Law. It was supplemented by an Additional Protocol at the second Inter- American Specialized Conference on Private International Law in Montevideo, Uruguay, on 8 May 1979.462 This Inter-American Convention deals withOnly the transmission of documents for service abroad and the taking of evidence abroad, but States Parties may, by means of a reservation, exclude the taking of evidence from its scope (Art. 2(b) of the Convention).

331. Like the Service Convention, the Inter-American Convention sets up Central Authorities and requires the use of model forms. The channels of transmission for which it provides are generally similar to those established by theUse Service Convention. Unlike the Service Convention, however, the Inter-American Convention does not seem to be of exclusive character463 as it is limited to the procedural device of letters rogatory and does not preclude alternate means of service.464 The 1979 Protocol, however, appears to have considerably modified the system of transmission channels provided for in the Inter-American Convention. Indeed, the Protocol defines the “procedural acts”, referred to in Article 2(a) of the Convention and determining its scope, as only “procedural acts […] that are served and requests for information that are made by a judicial or administrative authority of a State Party to a judicial or administrative authority of another State Party and are transmitted by a Letter Rogatory from the Central Authority of the State of origin to

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462 For the text and full status of this Convention, see the website of the Organisation of American States (OAS)For at: < http://www.oas. org > [in English and Spanish only] [last consulted on 20 November 2015]. The English text of the Convention is also reproduced in I.L.M. 1975, p. 339; the English text of the Additional Protocol is also reproduced in I.L.M. 1979, p. 1238. The texts in French may be obtained from the OAS. Regarding the Inter-American Convention in general, see D. McClean (op. cit. note 234), pp. 62-68; L.A. Low, “International Judicial Assistance among the American States – The Inter-American Conventions”, Int’l Law 1984, p. 705; see also G.B. Born & P.B. Rutledge (op. cit. note 233), pp. 824 and 895-896; R.D. Kearney, “Developments in Private International Law”, (1987) Am. J. Int’l L., p. 737. 463 For explanations on the terminology used in this respect, see para. 30. 464 Kreimerman, et al., v. Casa Veerkamp (op. cit. note 92), although the impact of the Protocol on this question is not examined here; the decision contains a comparison between the Inter-American Convention and the Hague Conventions of 1965 and 1970; see also Laino v. Cuprum S.A. de C.V., 235 A.D.2d 25 (N.Y. App. Div. 1997), taking into account the Protocol and also referring to Pizzabiocche v. Vinelli, 772 F. Supp. 1245, 1249 (M.D. Fla. 1991). On the non-exclusive nature of the Inter-American Convention, see also G.B. Born & P.B. Rutledge (op. cit. note 233), pp. 895-896. REGIONAL INSTRUMENTS 107

the Central Authority of the State of destination” (Art. 1 of the Protocol). Thus, among States Parties to the Protocol, only the use of the Central Authority system now appears to be permitted; use of a different channel of transmission does not meet the conditions defining Letters Rogatory contained in the Protocol.465 Hence, where a decision (e.g., a judgment rendered by a United States court) will need to be executed in the requested State (e.g., in Mexico), litigants are obliged to employ the Convention and Protocol’s formal channel (i.e., transmission through the Central Authority)466 or run the risk that service will be declared defective during execution proceedings in the requested State.

332. Finally, it should be emphasised that the Inter-American Convention contains no provisions comparable to Articles 15 and 16 of the Service Convention which protect the defendant both at the stage of the proceedings themselves and when a ruling has been entered by default (see paras 303 et seq.).

B. Relationship with the Service Convention

333. Whenever there is a need for a transmission of documents for service between States which are Parties to both the Service Convention and the Inter-AmericanOnly Convention, the issue of the relationship between the two Conventions arises: which of the two instruments applies?

334. Under the terms of its Article 25, the Service Convention does not derogate from other Conventions to which the States Parties are or will be Parties and which contain provisions on the subject-matters governed by the Service Convention. It does not therefore take priority over the Inter-American Convention. TheUse latter, however, contains a similar clause in Article 15 of the Protocol. As a result, any of the two instruments may be applied.467 In practice, the two Conventions are often used in parallel.468 An issue may arise when the request is made under the Inter-American Convention only: in such a case, may the defendant invoke Articles 15 and 16 of the Service Convention? If the conditions for their application are effectively met, these two provisions of the Hague Service Convention should be applied even if the request for service was formally made under the Inter- American Convention; indeed, if this were not the case, the applicant would be able to decide unilaterally on the extent of the protection granted to the defendant. Official

For 465 D. McClean (op. cit. note 234), pp. 66-67. 466 This, of course, only applies if they decide to use the Inter-American Convention; they could also use the Service Convention, under which the full range of possible channels remains open (subject to a State’s declaration); on the relationship between the Inter-American Convention and the Service Convention, see paras 333-334. 467 See also the Report of the 1977 SC (op. cit. note 123), p. 389, which, for Art. 25 in general, indicates that it is accepted in “the Contracting States that the parties may employ either the channels provided in the [Hague] Convention or those provided for by the special agreement”. 468 A Mexican Federal Court has held that the formal requirements set out in the Inter-American Convention do not apply to requests for service prepared under the Service Convention, as these are two distinct treaties. Tribunal Colegiado de Circuito (Federal Circuit Courts), Gaceta del Semanario Judicial de la Federación (Gazette of the Weekly Federal Court Report), Book 2, January 2014, Tome IV, tesis No: VI.1o.C.40 C (10a.), p. 3025. 108 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER IV

2. The Model Bilateral Convention drafted by the Asian- African Legal Consultative Organization (AALCO)

335. During the 1980s, the Asian-African Legal Consultative Organization (formerly Committee) worked on the drafting of a multilateral convention relating to service and the taking of evidence abroad in civil and criminal matters, using the Hague Conventions of 1965 and 1970 as models. This approach was regarded as rather too ambitious and the Twenty-Second Session of AALCO eventually decided to set up two separate model bilateral conventions for service and the taking of evidence, one in civil matters and the other in criminal matters. Following a further meeting of a group of experts – in which the Permanent Bureau participated – a Model for bilateral arrangements on mutual assistance for the service of process and the taking of evidence abroad in civil or commercial matters was adopted during AALCO’s Twenty-Third Session.469

336. The Permanent Bureau has no information on the actual influence this Model Convention may have had on international negotiations. It may nevertheless be noted that the Model Convention is clearly based in such a manner on the Service Convention and the Inter- American Convention that its specific influence would not be too great.Only It should finally be noted that, as is the case for the Inter-American Convention, the Model Convention contains no rules which may be equivalent to the important guarantees contained in Articles 15 and 16 of the Service Convention (see paras 303 et seq.).

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469 The text of this model convention is available on the website of the AALCO at the following address: < http://www.aalco.int > (text in English only: Model for bilateral arrangements on mutual assistance for the service of process and the taking of evidence abroad in civil or commercial matters) [last consulted on 20 November 2015]. The model is followed by an explanatory text. The English text of the model convention is also published in I.L.M. 1984, p. 78. REGIONAL INSTRUMENTS 109

3. Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000

A. General remarks

337. The 2007 EU Service Regulation470 applies from 13 November 2008 between all the Member States of the European Union.471 Its purpose is to facilitate the cross-border transmission of documents between the Member States of the European Union and was adopted to further improve certain provisions of the 2000 EU Service Regulation. 472

338. According to a recent Report on the 2007 EU Service Regulation,Only the most important amendments introduced by this Regulation are:

– “a requirement for the receiving agency to take all necessary steps to effect the service of the document as soon as possible, and in any event within one month of receipt;

– the creation of a new standard form Useto inform the addressee about his right to refuse the document;

– the introduction of a single fixed fee for the costs of service, laid down by the Member States in advance; and

– uniform conditions for service by post.”473

339. The 2007 EU Service Regulation (and its predecessor) draws from many provisions of the Service Convention, while adding a few innovations:

a) Its principalOfficial objective being to accelerate transmission of documents for service, the Regulation provides for a system of decentralisation and direct transmission between competent local agencies. Each Member State may appoint public officers, authorities or other persons competent to transmit documents (“transmitting agencies”), as well as public officers, authorities or other Forpersons competent to receive documents (“receiving agencies”)

470 OJEU L 324, 10 December 2007, pp. 0079-0120. For further information, in particular on the practical operation of the 2007 EU Service Regulation, see the European e-Justice Portal at: < https://e-justice.europa.eu/content_serving_documents-373-en.do > [last consulted on 21 January 2016]. 471 The Regulation applies also to Denmark by virtue of an agreement concluded between the European Union and this State; see the European e-Justice Portal at the link provided above for more information. 472 On 4 December 2013, the European Commission adopted a Report on the 2007 EU Service Regulation (op. cit. note 289) in which it proposed to amend the Regulation for the purpose of dealing inter alia with the electronic service of documents. 473 Ibid., p. 3. 110 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER IV

(Arts 2 and 4).474 It should be noted, however, that a system of direct transmission between local agencies is already provided for under Article 10(b) of the Service Convention.

b) The Regulation also provides that each Member State may appoint either a single transmitting agency and a single receiving agency, or a single agency in charge of both functions (Art. 2(3)), thereby setting up a system equivalent to the system of Central Authorities under the Service Convention.

c) In accordance with the Regulation, a “central agency” must also be appointed which is charged with informing and assisting the local agencies in the event of any difficulties (Art. 3).

d) With the same object of speed, documents must be transmitted “directly”, “as soon as possible” and “by any appropriate means, provided that the content of the document received is true and faithful to that of the document forwarded, and that all information in it is easily legible” (Art. 4(1) and (2)). The Regulation thereby implicitly anticipates the use of e-mail for the transmission of documents. It should be noted again that the Regulation does not set up any system that has not already been provided for by the Service Convention (see Annex 8, The use of information technologyOnly in the operation of the Service Convention).

e) The receiving agency has to inform the addressee that he or she may refuse to accept the document to be served at the time of service or by returning the document to the receiving agency within one week if it is not written in or accompanied by a translation into either of the following languages: the official language of the Member UseState addressed (or, if there are several official languages in that Member State, the official language or one of the official languages of the place where service is to be effected), or a language which the addressee understands (Art. 8(1)). When the addressee refuses to accept the document, the receiving agency “immediately” informs the transmitting agency by means of the certificate and returns the request and the documents for which a translation is requested (Art. 8(2)). The concept of a “language understood by the addressee” is interesting and is a real novelty. In addition, the amended Article 8 addresses the legal consequences that flow from refusal of a document by its addressee on the ground that it is not in an official language of the Member State addressed or in a language which the addresseeOfficial understands;475 however, the Regulation does not specify who of

474 In the Netherlands, for example, bailiffs (huissiers de justice) and the courts where they have statutory tasks of summoning persons or serving documents have been appointed as transmitting agencies (Art.For 2 of the implementing legislation of the Regulation, see P. Vlas, Burgerlijke Rechtsvordering, Verdragen (looseleaf edition), Deventer, Kluwer). On this point, see also R. Dujardin, “L’efficacité des procédures judiciaires au sein de l’Union européenne et les garanties des droits de la défense”, in M.T. Caupain & G. de Leval (ed.), L’efficacité de la justice civile en Europe, Brussels, Larcier, 2000, pp. 74-75. 475 This question was likely addressed in the new Regulation because of the decision rendered by the Court of Justice of the European Union in Götz Leffler v. Berlin Chemie AG, 8 November 2005, EU:C:2005:665, which was submitted by the Supreme Court of the Netherlands (Hoge Raad) for preliminary ruling. The Court held that the general objectives of the Regulation, the purpose of various provisions (in particular Arts 5, 6, 8, and 10) and the need for an autonomous interpretation justify precluding “nullity of the document” where it has been refused by the addressee according to Art. 8(1); the Court affirmed the possibility for the sender to remedy the addressee’s refusal by sending the translation requested. The Court held that “if that refusal could never be remedied, the sender’s rights would be prejudiced in such a way that he would never take the risk of serving an untranslated document, thereby undermining the usefulness of the Regulation and, in particular, REGIONAL INSTRUMENTS 111

the applicant or addressee bears the burden of proving that the latter “understands” the language of the transmitting Member State. Finally, the Regulation does not indicate if the “language which the addressee understands” must be an official language or not. Article 8 equally applies to other means of transmission, e.g., service by diplomatic or consular agents and service by postal services.

f) As regards the date of service, the Regulation lays down a system of double- dates (Art. 9): the date of service is the date when the document was served in accordance with the law of the Member State addressed (para. 1); however, the date to be taken into account in relation to the applicant is that set by the law of the Member State of origin if a document has to be served within a particular period according to the law of that Member State (para. 2). This provision does not allow any derogations from this rule by Member States and has extended its application to other means of transmission (e.g., postal channels). The double-dating system is a real innovation and fills the gap left by the Service Convention on this point. In addition, it is interesting to note that the Special Commission has noted that the absence of a specific rule on the date of service has not caused any major problems in practice.476

g) The Regulation also provides for other modes of transmissionOnly alongside direct transmission between transmitting and receiving agencies. Maintenance of the consular and diplomatic channels (Arts 12 and 13) may appear surprising within the European judicial system. Like the Service Convention, the Regulation also allows any interested person to effect service directly through the judicial officers, officials or other competent persons of the Member State addressed where such direct serviceUse is permitted under the law of that Member State. Contrary to the Service Convention, the Regulation does not allow Member States to exclude postal transmission (Art. 14), but specifies that under this provision documents must be sent by registered letter with acknowledgment of receipt or equivalent.477

h) The important guarantees contained in Articles 15 and 16 of the Service Convention and which provide for protection of a defendant who does not appear, have been reproduced exactly in the Regulation, although combined together into one Article (Art. 19). Official

its provisions relating to the translation of documents, which contribute to the objective of ensuring that documents are transmitted rapidly”. The Court then addressed the questions regarding the period of time and the manner in which the requested translation must be brought to the attention of the addressee. The Court held that the translation of the document must be sent in accordance withFor the procedure laid down by the Regulation “and as soon as possible”, adding that the date of service should be determined by analogy with the double-date system (see main text above under letter (f)). Finally the Court held that “[i]n order to resolve problems connected with the way in which the lack of translation should be remedied that are not envisaged by [the Service] Regulation as interpreted by the Court, it is incumbent on the national court to apply national procedural law while taking care to ensure the full effectiveness of that regulation, in compliance with its objective”. For a comment of this judgment, see M.V. Polak, “De ganse aarde is niet van enerlei spraak en enerlei woorden: taalvereisten en herstelmogelijkheden bij de grensoverschrijdende betekening van stukken”, Ars aequi January 2006, Vol. 55, No 1, pp. 57 et seq. and N. Fricero & G. Payan (op. cit. Note 90), pp. 219-224. 476 See C&R No 36 of the 2009 SC. See also in this regard the developments in paras 205 et seq. 477 The 2013 European Commission Report (op. cit. note 472) identifies several practical difficulties with this method of service, such as the fact that rules on postal service differ significantly in the Member States and problems with regard to the legal framework of postal operators when performing registered delivery of a document to the addressee. See the Report for further information. 112 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | CHAPTER IV

i) Finally, it is important to note that the uniform application of the Regulation is subject to review by the Court of Justice of the European Union. Since many provisions of the Regulation are almost identical with those of the Service Convention, the case law of the Court of Justice will be able, on the one hand, to rely on the case law developed by the courts in the various EU Member States Parties to the Service Convention, and on the other hand, to exert influence, in Europe at least, upon the latter’s construction and application.478

B. Relationship with the Service Convention

340. In accordance with its Article 20(1), the Regulation takes priority over the Service Convention. It may be recalled that in accordance with its own Article 25, the Service Convention does not derogate from other conventions to which the States Parties are or will be Parties and which contain provisions on subject-matters governed by the Service Convention. From a purely technical point of view, it could be argued that the Service Convention only leaves priority to those instruments which also have the status of a convention, which is not the case of the Regulation if the principle of parallel forms is strictly applied. This being said, it seems to be generally accepted that the referencOnlye to conventions includes the Regulation. To conclude therefore, contrary to the Inter-American Convention, the Regulation does not leave any room for the Service Convention in the relationships among the Member States of the European Union. Use

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478 In this latter respect, it should be noted that the majority of decisions rendered in the past by the courts of EU Member States in application of the Service Convention would now fall within the scope of the 2007 EU Service Regulation (see para. 340). These past judgments remain, however, of general interest for the interpretation of the Service Convention and are, therefore, still referred to in this Handbook. These past decisions are of course equally important for the future case law which the EU Member States will continue to develop in application of the Service Convention.

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Annex 1 Use

Text of the Convention

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Official For TEXT OF THE CONVENTION 117

CONVENTION ON THE SERVICE ABROAD OF JUDICIAL AND EXTRAJUDICIAL DOCUMENTS IN CIVIL OR COMMERCIAL MATTERS

(Concluded 15 November 1965)

The States signatory to the present Convention,

Desiring 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,

Desiring to improve the organisation of mutual judicial assistance for that purpose by simplifying and expediting the procedure,

Have resolved to conclude a Convention to this effect and have agreed upon the following provisions:

Article 1 Only (1) The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.

(2) This Convention shall not apply where the address of the person to be served with the document is not known. Use

CHAPTER I – JUDICIAL DOCUMENTS

Article 2

(1) Each Contracting State shall designate a Central Authority which will undertake to receive requests for service coming from other Contracting States and to proceed in conformity with the provisions of Articles 3 to 6.

(2) Each State shall organise the Central Authority in conformity with its own law. Official

Article 3

(1) The authority or judicial officer competent under the law of the State in which the documents originate shall forward to the Central Authority of the State addressed a Forrequest conforming to the model annexed to the present Convention, without any requirement of legalisation or other equivalent formality.

(2) The document to be served or a copy thereof shall be annexed to the request. The request and the document shall both be furnished in duplicate.

Article 4

If the Central Authority considers that the request does not comply with the provisions of the present Convention it shall promptly inform the applicant and specify its objections to the request.

118 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 1

Article 5

(1) The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either –

(a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or

(b) by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed.

(2) Subject to sub-paragraph (b) of the first paragraph of this Article, the document may always be served by delivery to an addressee who accepts it voluntarily.

(3) If the document is to be served under the first paragraph above, the Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed.

(4) That part of the request, in the form attached to the present Convention, which contains a summary of the document to be served, shall be served with the document.

Only Article 6

(1) The Central Authority of the State addressed or any authority which it may have designated for that purpose, shall complete a certificate in the form of the model annexed to the present Convention.

(2) The certificate shall state that the document Usehas been served and shall include the method, the place and the date of service and the person to whom the document was delivered. If the document has not been served, the certificate shall set out the reasons which have prevented service.

(3) The applicant may require that a certificate not completed by a Central Authority or by a judicial authority shall be countersigned by one of these authorities.

(4) The certificate shall be forwarded directly to the applicant.

Article 7 Official (1) The standard terms in the model annexed to the present Convention shall in all cases be written either in French or in English. They may also be written in the official language, or in one of the official languages, of the State in which the documents originate. For (2) The corresponding blanks shall be completed either in the language of the State addressed or in French or in English.

Article 8

(1) Each Contracting State shall be free to effect service of judicial documents upon persons abroad, without application of any compulsion, directly through its diplomatic or consular agents.

(2) Any State may declare that it is opposed to such service within its territory, unless the document is to be served upon a national of the State in which the documents originate. TEXT OF THE CONVENTION 119

Article 9

(1) Each Contracting State shall be free, in addition, to use consular channels to forward documents, for the purpose of service, to those authorities of another Contracting State which are designated by the latter for this purpose.

(2) Each Contracting State may, if exceptional circumstances so require, use diplomatic channels for the same purpose.

Article 10

Provided the State of destination does not object, the present Convention shall not interfere with –

(a) the freedom to send judicial documents, by postal channels, directly to persons abroad,

(b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination, Only (c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.

Article 11 Use

The present Convention shall not prevent two or more Contracting States from agreeing to permit, for the purpose of service of judicial documents, channels of transmission other than those provided for in the preceding Articles and, in particular, direct communication between their respective authorities.

Article 12

(1) The service of judicial documents coming from a Contracting State shall not give rise to any payment or reimbursement of taxes or costs for the services rendered by the State addressed. Official

(2) The applicant shall pay or reimburse the costs occasioned by –

(a) the employment of a judicial officer or of a person competent under the law of the State of destination, For (b) the use of a particular method of service.

Article 13

(1) Where a request for service complies with the terms of the present Convention, the State addressed may refuse to comply therewith only if it deems that compliance would infringe its sovereignty or security.

(2) It may not refuse to comply solely on the ground that, under its internal law, it claims exclusive jurisdiction over the subject-matter of the action or that its internal law would not permit the action upon which the application is based.

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(3) The Central Authority shall, in case of refusal, promptly inform the applicant and state the reasons for the refusal.

Article 14

Difficulties which may arise in connection with the transmission of judicial documents for service shall be settled through diplomatic channels.

Article 15

(1) Where a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and the defendant has not appeared, judgment shall not be given until it is established that –

(a) the document was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory, or

(b) the document was actually delivered to the defendant orOnly to his residence by another method provided for by this Convention,

and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.

(2) Each Contracting State shall be free to declare that the judge, notwithstanding the provisions of the first paragraph of this Article,Use may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled –

(a) the document was transmitted by one of the methods provided for in this Convention,

(b) a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document,

(c) no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.Official

(3) Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency, any provisional or protective measures.

ArticleFor 16

(1) When a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and a judgment has been entered against a defendant who has not appeared, the judge shall have the power to relieve the defendant from the effects of the expiration of the time for appeal from the judgment if the following conditions are fulfilled –

(a) the defendant, without any fault on his part, did not have knowledge of the document in sufficient time to defend, or knowledge of the judgment in sufficient time to appeal, and

(b) the defendant has disclosed a prima facie defence to the action on the merits. TEXT OF THE CONVENTION 121

(2) An application for relief may be filed only within a reasonable time after the defendant has knowledge of the judgment.

(3) Each Contracting State may declare that the application will not be entertained if it is filed after the expiration of a time to be stated in the declaration, but which shall in no case be less than one year following the date of the judgment.

(4) This Article shall not apply to judgments concerning status or capacity of persons.

CHAPTER II – EXTRAJUDICIAL DOCUMENTS

Article 17

Extrajudicial documents emanating from authorities and judicial officers of a Contracting State may be transmitted for the purpose of service in another Contracting State by the methods and under the provisions of the present Convention.

CHAPTER III – GENERAL CLAUSES Only

Article 18

(1) Each Contracting State may designate other authorities in addition to the Central Authority and shall determine the extent of their competence. Use (2) The applicant shall, however, in all cases, have the right to address a request directly to the Central Authority.

(3) Federal States shall be free to designate more than one Central Authority.

Article 19

To the extent that the internal law of a Contracting State permits methods of transmission, other than those provided for in the preceding Articles, of documents coming from abroad, for service within its territory, the present Convention shall not affect such provisions. Official

Article 20

The present Convention shall not prevent an agreement between any two or more Contracting States to dispense with – For (a) the necessity for duplicate copies of transmitted documents as required by the second paragraph of Article 3,

(b) the language requirements of the third paragraph of Article 5 and Article 7,

(c) the provisions of the fourth paragraph of Article 5,

(d) the provisions of the second paragraph of Article 12.

122 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 1

Article 21

(1) Each Contracting State shall, at the time of the deposit of its instrument of ratification or accession, or at a later date, inform the Ministry of Foreign Affairs of the Netherlands of the following –

(a) the designation of authorities, pursuant to Articles 2 and 18,

(b) the designation of the authority competent to complete the certificate pursuant to Article 6,

(c) the designation of the authority competent to receive documents transmitted by consular channels, pursuant to Article 9.

(2) Each Contracting State shall similarly inform the Ministry, where appropriate, of –

(a) opposition to the use of methods of transmission pursuant to Articles 8 and 10,

(b) declarations pursuant to the second paragraph of Article 15 and the third paragraph of Article 16,

(c) all modifications of the above designations, oppositions andOnly declarations.

Article 22

Where Parties to the present Convention are also Parties to one or both of the Conventions on civil procedure signed at The Hague on 17th July 1905, and on 1st March 1954, this Convention shall replace as between them Articles 1 to 7 of the earlierUse Conventions.

Article 23

(1) The present Convention shall not affect the application of Article 23 of the Convention on civil procedure signed at The Hague on 17th July 1905, or of Article 24 of the Convention on civil procedure signed at The Hague on 1st March 1954.

(2) These Articles shall, however, apply only if methods of communication, identical to those provided for in these Conventions, are used.

Official Article 24

Supplementary agreements between Parties to the Conventions of 1905 and 1954 shall be considered as equally applicable to the present Convention, unless the Parties have otherwise agreed.For

Article 25

Without prejudice to the provisions of Articles 22 and 24, the present Convention shall not derogate from Conventions containing provisions on the matters governed by this Convention to which the Contracting States are, or shall become, Parties.

TEXT OF THE CONVENTION 123

Article 26

(1) The present Convention shall be open for signature by the States represented at the Tenth Session of the Hague Conference on Private International Law.

(2) It shall be ratified, and the instruments of ratification shall be deposited with the Ministry of Foreign Affairs of the Netherlands.

Article 27

(1) The present Convention shall enter into force on the sixtieth day after the deposit of the third instrument of ratification referred to in the second paragraph of Article 26.

(2) The Convention shall enter into force for each signatory State which ratifies subsequently on the sixtieth day after the deposit of its instrument of ratification.

Article 28

(1) Any State not represented at the Tenth Session of the Hague ConferenceOnly on Private International Law may accede to the present Convention after it has entered into force in accordance with the first paragraph of Article 27. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands.

(2) The Convention shall enter into force for such a State in the absence of any objection from a State, which has ratified the Convention before such deposit, notified to the Ministry of Foreign Affairs of the NetherlandsUse within a period of six months after the date on which the said Ministry has notified it of such accession.

(3) In the absence of any such objection, the Convention shall enter into force for the acceding State on the first day of the month following the expiration of the last of the periods referred to in the preceding paragraph.

Article 29

(1) Any State may, at the time of signature, ratification or accession, declare that the present Convention shall extend to all the territories for the international relations of which it is responsible, or Officialto one or more of them. Such a declaration shall take effect on the date of entry into force of the Convention for the State concerned.

(2) At any time thereafter, such extensions shall be notified to the Ministry of Foreign Affairs of the Netherlands.

(3) ForThe Convention shall enter into force for the territories mentioned in such an extension on the sixtieth day after the notification referred to in the preceding paragraph.

Article 30

(1) The present Convention shall remain in force for five years from the date of its entry into force in accordance with the first paragraph of Article 27, even for States which have ratified it or acceded to it subsequently.

(2) If there has been no denunciation, it shall be renewed tacitly every five years.

(3) Any denunciation shall be notified to the Ministry of Foreign Affairs of the Netherlands at least six months before the end of the five year period. 124 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 1

(4) It may be limited to certain of the territories to which the Convention applies.

(5) The denunciation shall have effect only as regards the State which has notified it. The Convention shall remain in force for the other Contracting States.

Article 31

The Ministry of Foreign Affairs of the Netherlands shall give notice to the States referred to in Article 26, and to the States which have acceded in accordance with Article 28, of the following –

(a) the signatures and ratifications referred to in Article 26;

(b) the date on which the present Convention enters into force in accordance with the first paragraph of Article 27;

(c) the accessions referred to in Article 28 and the dates on which they take effect;

(d) the extensions referred to in Article 29 and the dates on which they take effect; Only (e) the designations, oppositions and declarations referred to in Article 21;

(f) the denunciations referred to in the third paragraph of Article 30.

In witness whereof the undersigned, being duly authorisedUse thereto, have signed the present Convention.

Done at The Hague, on the 15th day of November, 1965, in the English and French languages, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Government of the Netherlands, and of which a certified copy shall be sent, through the diplomatic channel, to each of the States represented at the Tenth Session of the Hague Conference on Private International Law.

N.B. On 25 October 1980, the Fourteenth Session adopted a Recommendation on informationOfficial to accompany judicial and extrajudicial documents to be sent or served abroad in civil or commercial matters (“Acte final”, in Actes et documents de la Quatorzième session (Proceedings of the Fourteenth Session) (1980), Tome I, Miscellaneous matters, Recommendation G, pp. I-67; idem, Tome IV, Entraide judiciaire, p. 339; Practical Handbook on the Operation of the Hague Service Convention, ForAnnex 3 at pp. 131 et seq.).

Only

Annex 2 Use

Annexes provided for under Articles 3, 5, 6 and 7 of the Service Convention

Official For Only Use

Official For ANNEX TO THE CONVENTION – FORMS 127

ANNEX TO THE CONVENTION Forms

REQUEST FOR SERVICE ABROAD OF JUDICIAL OR EXTRAJUDICIAL DOCUMENTS

Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, signed at The Hague, the 15th of November 1965.

Identity and address Address of receiving of the applicant authority

The undersigned applicant has the honour to transmit – in duplicate – the documents listed below and, in conformity with Article 5 of the above-mentioned Convention, requests prompt service of one copy thereof on the addressee, i.e.: Only (identity and address) ......

a) in accordance with the provisions of sub-paragraph (a) of the first paragraph of Article 5 of the Convention*. b) in accordance with the following particular method (sub-paragraph (b) of the first paragraph of Article 5)*: ...... Use ...... c) by delivery to the addressee, if he accepts it voluntarily (second paragraph of Article 5)*.

The authority is requested to return or to have returned to the applicant a copy of the documents – and of the annexes* – with a certificate as provided on the reverse side.

List of documents ...... Official ......

Done at ...... , the ...... For Signature and/or stamp.

* Delete if inappropriate.

128 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 2

Reverse of the request

CERTIFICATE

The undersigned authority has the honour to certify, in conformity with Article 6 of the Convention,

1. that the document has been served* – the (date) ...... – at (place, street, number) ...... – in one of the following methods authorised by Article 5: a) in accordance with the provisions of sub-paragraph (a) of the first paragraph of Article 5 of the Convention*.

b) in accordance with the following particular method*: ...... c) by delivery to the addressee, who accepted it voluntarily*.

The documents referred to in the request have been deliveredOnly to: – (identity and description of person) ...... – relationship to the addressee (family, business or other): ......

2. that the document has not been served, by reasonUse of the following facts*: ......

In conformity with the second paragraph of Article 12 of the Convention, the applicant is requested to pay or reimburse the expenses detailed in the attached statement*.

Annexes

Documents returned: ...... Official

In appropriate cases, documents establishing the service: ...... For

Done at ...... , the ...... Signature and/or stamp.

* Delete if inappropriate.

ANNEX TO THE CONVENTION – FORMS 129

SUMMARY OF THE DOCUMENT TO BE SERVED

Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, signed at The Hague, the 15th of November 1965.

(Article 5, fourth paragraph)

Name and address of the requesting authority: ...... Particulars of the parties*: ......

JUDICIAL DOCUMENT**

Nature and purpose of the document: ...... Only ...... Nature and purpose of the proceedings and, where appropriate, the amount in dispute: ...... Date and place for entering appearance**: ...... Use ...... Court which has given judgment**: ...... Date of judgment**: ...... Time-limits stated in the document**: ......

EXTRAJUDICIAL DOCUMENT**

Nature and purposeOfficial of the document: ...... Time-limits stated in the document**: ...... For

* If appropriate, identity and address of the person interested in the transmission of the document. ** Delete if inappropriate.

N.B. The Fourteenth Session (1980) recommended that the “Summary of the document to be served” be preceded by a warning and that they be used not only for transmission through the Central Authorities but also through alternative channels. See also the Instructions for filling out the Notice and Guidelines for completing the Model Form, at Annexes 4 and 6.

Only Use

Official For

Only Annex 3

Recommendation on informationUse to accompany judicial and extrajudicial documents to be sent or served abroad in civil or commercial matters, adopted by the Fourteenth Session (25 October 1980)

Official For Only Use

Official For FOURTEENTH SESSION – RECOMMENDATION 133

The Fourteenth Session, [*]

Having taken cognizance of the Report prepared by the Council of Europe on “Information to accompany judicial and extrajudicial documents to be sent or served abroad in civil or commercial matters”, transmitted to the Hague Conference by letter dated 31 October 1979;

Taking note of the benefits that have been derived, both for legal proceedings and for the information of litigants, from the creation of a model “Summary of the document to be served” by the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters;

Recognizing that it is highly desirable that such a form, capable of improvement, accompany any document of a judicial or extrajudicial nature in relation to a civil or commercial matter sent or served abroad in order to give the recipient a preliminary understanding of the nature and purpose of the document;

Being convinced that it is in the interests of good judicial administration that only one form of summary should be used, whether the service is effected through the channels of the Central Authorities created under the 1965 Convention or not; Having taken into consideration that modification of the form of theOnly “Summary of the document to be served” annexed to the 1965 Convention would require revision of that Convention, which it is not opportune to undertake;

I 1 Recommends Member States and States who are not Members but Parties to the 1965 Convention to take appropriate steps to ensure that any judicial or extrajudicial document in relation to a civil or commercial matterUse sent or served abroad – whether or not the service is effected through the channels of the Central Authorities created under the 1965 Convention – will always be accompanied by a summary in the form as annexed to the said Convention, the latter being supplemented by a warning, as set forth hereinafter;

2 Recommends these States to inform the Permanent Bureau from time to time where appropriate regarding any steps taken pursuant to the previous paragraph;

II 1 Expresses the Hope that all States and bodies and institutions whom it may concern, take appropriate steps to ensure that any judicial or extrajudicial document in relation to a civil or commercial matter sent or served abroad will always be accompanied by a warning and a summary of the documentOfficial as set forth hereinafter; 2 Charges the Secretary General to make this Hope known, directly or where appropriate through competent international organizations, to all States, bodies and institutions whom it may concern. For

* This document is reproduced in its original form. Thus, the terminology used in this document remains unchanged and has not been brought into line with the terminology used in the main part of this Handbook (General comments and practical operation of the Convention). 134 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 3

Identité et adresse du destinataire / Identity and address of the addressee / -----:

TRÈS IMPORTANT

LE DOCUMENT CI-JOINT EST DE NATURE JURIDIQUE ET PEUT AFFECTER VOS DROITS ET OBLIGATIONS. LES “ÉLÉMENTS ESSENTIELS DE L’ACTE” VOUS DONNENT QUELQUES INFORMATIONS SUR SA NATURE ET SON OBJET. IL EST TOUTEFOIS INDISPENSABLE DE LIRE ATTENTIVEMENT LE TEXTE MÊME DU DOCUMENT. IL PEUT ÊTRE NÉCESSAIRE DE DEMANDER UN AVIS JURIDIQUE.

SI VOS RESSOURCES SONT INSUFFISANTES, RENSEIGNEZ-VOUS SUR LA POSSIBILITÉ D’OBTENIR L’ASSISTANCE JUDICIAIRE ET LA CONSULTATION JURIDIQUE SOIT DANS VOTRE PAYS SOIT DANS LE PAYS D’ORIGINE DU DOCUMENT. Only

LES DEMANDES DE RENSEIGNEMENTS SUR LES POSSIBILITÉS D’OBTENIR L’ASSISTANCE JUDICIAIRE OU LA CONSULTATION JURIDIQUE DANS LE PAYS D’ORIGINE DU DOCUMENT PEUVENT ÊTRE ADRESSÉES : …

IMPORTANTUse

THE ENCLOSED DOCUMENT IS OF A LEGAL NATURE AND MAY AFFECT YOUR RIGHTS AND OBLIGATIONS. THE ‘SUMMARY OF THE DOCUMENT TO BE SERVED’ WILL GIVE YOU SOME INFORMATION ABOUT ITS NATURE AND PURPOSE. YOU SHOULD HOWEVER READ THE DOCUMENT ITSELF CAREFULLY. IT MAY BE NECESSARY TO SEEK LEGAL ADVICE.

IF YOUR FINANCIAL RESOURCES ARE INSUFFICIENT YOU SHOULD SEEK INFORMATION ON THE POSSIBILITY OF OBTAINING LEGAL AID OR ADVICE EITHER IN THE COUNTRY WHERE YOU LIVE OR IN THE COUNTRY WHERE THE DOCUMENT WAS ISSUED. Official ENQUIRIES ABOUT THE AVAILABILITY OF LEGAL AID OR ADVICE IN THE COUNTRY WHERE THE DOCUMENT WAS ISSUED MAY BE DIRECTED TO: …

---

For Il est recommandé que les mentions imprimées dans cette note soient rédigées en langue française et en langue anglaise et le cas échéant, en outre, dans la langue ou une des langues officielles de l’Etat d’origine de l’acte. Les blancs pourraient être remplis soit dans la langue de l’Etat où le document doit être adressé, soit en langue française, soit en langue anglaise.

It is recommended that the standard terms in the notice be written in English and French and where appropriate also in the official language, or in one of the official languages of the State in which the document originated. The blanks could be completed either in the language of the State to which the document is to be sent, or in English or French.

--- FOURTEENTH SESSION – RECOMMENDATION 135

ÉLÉMENTS ESSENTIELS DE L’ACTE / SUMMARY OF THE DOCUMENT TO BE SERVED / ----

Nom et adresse de l’autorité requérante ...... Name and address of the requesting authority ...... --- ......

* Identité des parties ...... Particulars of the parties ...... --- ......

** ACTE JUDICIAIRE / JUDICIAL DOCUMENT / -----

Nature et objet de l’acte ...... Nature and purpose of the document ...... --- ......

Nature et objet de l’instance, le cas échéant, le montant du litige Nature and purpose of the proceedings and, when appropriate, the amount in dispute --- Only ......

** Date et lieu de la comparution ...... Date and Place for entering appearance ...... Use --- ......

** Juridiction qui a rendu la décision ...... Court which has given judgment ...... --- ......

** Date de la décision / Date of judgment / --- ......

** Indication des délais figurant dans l’acte ...... Time limits stated in the document ...... --- ...... Official

** ACTE EXTRAJUDICIAIRE / EXTRAJUDICIAL DOCUMENT / -----

Nature et objet de l’acte ...... Nature and purpose of the document ...... For--- ......

** Indication des délais figurant dans l’acte ...... Time-limits stated in the document ...... --- ......

* S’il y a lieu, identité et adresse de la personne intéressée à la transmission de l’acte If appropriate, identity and address of the person interested in the transmission of the document --- ** Rayer les mentions inutiles / Delete if inappropriate / --- Only Use

Official For

Only

Annex 4 Use Instructions for filling out the notice established by the author of the Report on the Recommendation adopted by the Fourteenth Session, Mr Gustaf Möller (Finland)

Official For Only Use

Official For INSTRUCTIONS FOR FILLING OUT THE NOTICE 139

a) identity and address of the addressee [*]

The name and address of the intended recipient should appear clearly on top of the warning.

In addition, where the document is not sent to or served upon the addressee in his private capacity, he should be informed that he is receiving it e.g., in his capacity as director of a company, tutor, representative of an estate, trustee, receiver in bankruptcy, etc.

b) enquiries about the availability of legal aid or advice in the country where the document was issued may be directed to ...

Here the name, address and where appropriate the telephone number should be given of the authority or organization in the country where legal action is to be taken which is most qualified to give the recipient full details on the availability of legal aid or advice (e.g., court, legal aid bureau, law society).

Only c) name and address of the requesting authority (where appropriate the words “or authority or person who caused the document to be issued” are to be added)

Besides the name and address, it is also recommended to insert in the corresponding blank of this item the telephone number of the requesting authority or of the authority (or person) who caused the document to be issued, so that the recipient may in a speedy and informal way enquire there for further details.Use

In the event that further information is only available elsewhere, the name, address and telephone number of the authority or person concerned should be given in addition.

d) particulars of the parties

The corresponding blanks of this item should be completed with the names and addresses (perhaps sometimes also the telephone numbers) of the parties, i.e., the plaintiff and the respondent. Where an extrajudicial document is concerned, the name and address of the person interestedOfficial in the transmission of the document should be stated. In the case of a judgment it will be the names of the person entitled to the judgment and the person against whom the judgment is given. If the addressee is one of the parties and the corresponding blank to the item “identity and address of the addressee” has been properly completed, it is of course unnecessary to complete this item with all the particulars of that party. For

* This document is reproduced in its original form. Thus, the terminology used in this document remains unchanged and has not been brought into line with the terminology used in the main part of this Handbook (General comments and practical operation of the Convention). 140 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 4

e) judicial and extrajudicial documents

The “SUMMARY OF THE DOCUMENT TO BE SERVED” distinguishes between a “JUDICIAL DOCUMENT” and an “EXTRAJUDICIAL DOCUMENT”.

Any document relating to litigation, including summary proceedings or uncontested proceedings, e.g., summons, judgment, order or application, is regarded as a judicial document. Any other legal document is to be classified as an extrajudicial document.

If the document to be sent or served is a judicial document, the capitals “EXTRAJUDICIAL DOCUMENT” should be deleted, and vice versa.

f) nature and purpose of the document

The nature and purpose of the document means the legal classification of the document, for example, writ of summons, judgment, order, etc. A brief summary of contents of the document (e.g., claim or judgment for divorce, alimony or maintenance, or for damages) falls under the “purpose of the document”. When the document relates to legal proceedings, the reference to the purpose of the document may beOnly expressed very briefly since the nature and purpose of the proceedings will be described more in detail under the next item (g).

g) nature and purpose of the proceedings and where appropriate the amount in dispute

Under this item, which only relates to judicial Usedocuments, the remedy or relief sought by the claimant should be mentioned more in detail than under the preceding item. Thus, for instance, when a sum of money is claimed, the exact sum should be mentioned and, where appropriate, briefly the ground for the claim, e.g., damages arising out of a traffic accident.

h) date and place for entering appearance

If inappropriate this item, which relates to judicial documents only, should be deleted.

If the recipient Officialwho is to take action on the document sent or served abroad is required to enter appearance before a court or an authority, the exact date and place for entering appearance should be mentioned under this item. In order to avoid any misunderstanding, the month should be written in letters. If possible it may moreover be appropriate to mention the possible qualifications which are required of a representative, e.g., a lawyer authorised by the court concerned. For

INSTRUCTIONS FOR FILLING OUT THE NOTICE 141

i) court which has given judgment and date of judgment

If inappropriate these items, which relate to judicial documents only, should be deleted.

These two items do not seem to present any problems which have to be dealt with in these instructions. In some cases it may, however, be appropriate to mention the address of the court, e.g., when the judgment is a default judgment and the person against whom the judgment is given has the possibility to apply to that court for the re-opening of the judgment on the grounds of default.

j) time-limits stated in the document

If inappropriate this item, which may relate to both judicial and extrajudicial documents, should be deleted.

Any time-limit stated in the document for the institution of legal proceedings or review of a judgment or a decision, should be mentioned under this item. Only Use

Official For Only Use

Official For

Only

Annex 5 Use Explanatory Report on the Recommendation adopted by the Fourteenth Session drawn up by Mr Gustaf Möller

Official For Only Use

Official For MÖLLER REPORT 145

I. Introduction [*]

1 The Recommendation which is the subject of this Report may be seen as one of the fruits of co-operation between two international organizations, the Council of Europe1 and the Hague Conference on private international law.2

2 It was in fact within the Council of Europe3 that the idea was born of a notice which was to accompany any legal document sent or served abroad in civil or commercial matters. Such a notice, it was thought, would help the person (or body) for whom the document was intended first, to be aware of the legal nature of the document, second, to understand its contents and third, to know what action, if any, he might take in connection with it or what the consequences would be of his not taking action.

3 The Committee of Experts of the Council of Europe realized, however, that in a limited area such a notice existed already, this being within the framework of the transmission of legal documents through the system of Central Authorities set up under the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (hereinafter referred to as the “Service Abroad Convention”). This was why the Council of Europe decided to refer the subject to the Hague ConferenceOnly and did so by letter of the Secretary General of the Council of Europe dated 31 October 1979, to which an extensive Report was attached. The larger geographical scope of the membership of the Hague Conference and of the Parties to the Service Abroad Convention could also be expected to enlarge the potential use and effectiveness of the notice.

4 A Special Commission of the Hague Conference met from 14-18 April 1980 to discuss the proposal of the Council of Europe. It adopted a draftUse Recommendation for the attention of the Fourteenth Session of the Hague Conference. The present author wrote the Report on the meeting of the Special Commission (Preliminary Document No 8 for the attention of the Fourteenth Session). After a final discussion on Monday 20 October 1980, the Fourteenth Session of the Hague Conference produced the final text of a “Recommendation on information to accompany judicial and extrajudicial documents to be sent or served abroad in civil or commercial matters”. This Recommendation was prepared by its Commission II, of which Mr Christof Böhmer of the Federal Republic of Germany was Chairman and Mr Johannes Bangert of Denmark Vice-Chairman. The writer of this Report was Rapporteur. The text prepared by the Commission was adopted, after a minor improvement of the French text during the Plenary Session of 24 October 1980. On 25 October 1980 the delegates signed the Final Act of the FourteenthOfficial Session, containing the Recommendation.

* This document is reproduced in its original form. Thus, the terminology used in this document remains unchanged and has not been brought into line with the terminology used in the main part of thisFor Handbook (General comments and practical operation of the Convention). 1 On 1 May 1981 the following States were Members of the Council of Europe: Austria, Belgium, Cyprus, Denmark, France, Federal Republic of Germany, Greece, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, Turkey and United Kingdom. [For an updated list of the Member States of the Council of Europe, see < http://www.coe.int/ >]. 2 On 1 May 1981 the following States were Members of the Hague Conference on private international law: Argentina, Australia, Austria, Belgium, Canada, Czechoslovakia, Denmark, Egypt, Finland, France, Federal Republic of Germany, Greece, Ireland, Israel, Italy, Japan, Luxembourg, Netherlands, Norway, Portugal, Spain, Suriname, Sweden, Switzerland, Turkey, United Kingdom, United States, Venezuela and Yugoslavia. [For an updated list of Member States, see the Hague Conference website]. 3 In the Committee of Experts on Access to Justice (previously known as the Committee of Experts on Economic and Other Obstacles to Civil Proceedings, inter alia, Abroad). The Hague Conference on private international law participated in the work of this Committee as an observer. 146 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 5

5 The first object of this Report is to describe – in a concentrated way – the preparatory work and the final discussions which led to the adoption of the Recommendation. The reader who would like to make a more detailed study will, however, have to refer to the above- mentioned Report of the Special Commission’s meeting and the procès-verbaux and documents to be published in the Actes et documents of the Fourteenth Session of the Hague Conference on private international law.

6 This Report offers, furthermore, short commentaries on the Recommendation. In order to assist persons and authorities filling out the notice, it was decided that the Rapporteur would also give certain examples and instructions. These instructions appear above, following the Recommendation. The commentaries and instructions are based upon the opinions prevailing during the Conference, and the Rapporteur has had the opportunity to have very valuable discussions about these matters with Mr J.H.A. van Loon, Secretary at the Permanent Bureau of the Conference. The Rapporteur has, however, to bear the full responsibility for the opinions expressed in this Report.

II. General Purpose of the Recommendation

Only 7 The number of documents of a judicial or quasi-judicial nature in relation to a civil or commercial matter sent or served abroad has considerably increased and seems still to be increasing. The Hague Convention on civil procedure of 1954 and the Service Abroad Convention of 1965 provide for the service of such documents abroad.4 Moreover, a large network of bilateral treaties provide, in various ways, for the service of documents, whether through judicial or administrative authorities, through consular or diplomatic channels or directly to the intended recipient. Use

8 Where service of a document is to be effected by a central authority, the recipient will usually be informed that this is a legal document and that it is a matter upon which he should take some action. Thus, as was already indicated above, the Service Abroad Convention includes a model form for an informative notice to be served on the addressee of a document transmitted abroad, in cases where service is effected within the framework of that Convention through the channels of the Central Authority created under the Convention. Most conventions, whether multilateral or bilateral, on service of documents abroad in civil or commercial matters, including the Service Abroad Convention, however, allow documents to be served in some other way. A method frequently used as an alternative is transmission through the postal services.Official

9 When service is effected through a central or judicial authority, the State where the service is to be effected may require a translation of the document if it is not written in the language of that State. Such a requirement may not be effectively imposed where service is made through the post. For 10 The problem for the recipient in cases where service is not effected through a central authority is to understand the nature of the document he receives and what it requires him to do, so that he may either consult a lawyer or legal adviser, or take action on his own.

4 On the American continent the Inter-American Convention on Letters Rogatory signed in Panama on January 30, 1975 and its Additional Protocol signed in Montevideo on May 8, 1979 deal with these matters. [For an overview of the Inter-American Convention and other international instruments in this field, as well as their relationship with the Hague Service Convention, see para. 329]. MÖLLER REPORT 147

11 For the reasons given above, the Fourteenth Session shared the opinion of the Council of Europe that it was highly desirable that any legal document in relation to a civil or commercial matter sent or served abroad be accompanied by a notice containing certain information which would help the recipient in understanding the nature and purpose of the document.

III. Contents of the Recommendation

12 As mentioned before, the Service Abroad Convention[5] includes a model form for an informative notice (“Summary of the document to be served”) to be served on the addressee of a document transmitted within the framework of that Convention through the system of Central Authorities (see also Articles 2 to 6 of the Convention, in particular Article 5, last paragraph). The Fourteenth Session took note of the benefits that had been derived both for legal proceedings and for the information of litigants from that form and recognized that it was desirable that such a form, though capable of improvement, accompany any document of a judicial or extrajudicial nature sent or served abroad, in order to give the recipient a preliminary understanding of the nature and the purpose of the document. Only 13 Further, the question was taken up as to whether the recommended use of the Summary should be extended to cover matters which were not civil or commercial, such as administrative, social and fiscal matters. A proposal to that end was, however, rejected. The main reason for this rejection was the fear that the Recommendation would have too broad an application if it were not limited to civil or commercial matters. In particular, a large number of extrajudicial documents would be covered by the Recommendation if it were to include administrative, social and fiscal matters. Use

On the other hand it was suggested that a provision be added to I (1) and to II (1) of the Recommendation to exclude the service of documents on nationals in a foreign country by adding the following wording: “unless the document is to be served upon a national of the State in which the document originates through diplomatic or consular channels”. This proposal was however withdrawn, since it was found evident that it would not be necessary to apply the Recommendation in such cases.

14 It was unanimously agreed that it was in the interest of good judicial administration that only one form should be used, whether the service be made through the channels of Central Authorities under theOfficial Service Abroad Convention or not.

15 A modification of the form of the “Summary of the document” annexed to the Service Abroad Convention would, however, require a revision of that Convention. It was thought that such a revision was neither opportune to undertake nor necessary in order to improve its usefulness. Instead, the Fourteenth Session decided to recommend that the Member States of the ConferenceFor and other States party to the 1965 Convention take appropriate steps to ensure that any judicial or extrajudicial document in relation to a civil or commercial matter sent or served abroad – whether or not the service was effected through the channels of Central Authorities created under the Service Abroad Convention – would always be accompanied by a summary in the form as annexed to the said Convention, the latter being supplemented in the ways indicated under Nos 16-19, below.

[5 For an updated list of the States Parties to this Convention, see the Hague Conference website.] 148 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 5

16 a Following one of the suggestions made by the Council of Europe, the notice given to the recipient should state clearly the identity and address of the intended recipient. This will make it easier for the recipient of the document to know whether or not this document was intended for him personally or in some specific capacity, as this may not be clear from the document itself.

This may be of great importance. For example, the substantive laws of different States as to legal entities are very different, and the existing divergences may be of considerable importance in relation to any proceedings.

The recipient should therefore be enabled to know, at the earliest possible stage, in what capacity he is being required to take some steps or in what capacity a judgment has been given against him.

It was realized that this item might correspond to “particulars of the parties” on the Service Abroad Convention’s Summary. It was thought, however, that this was not sufficient and that an explicit entry at the top of the warning would be useful. Moreover, the recipient might sometimes not be a party but, for instance, a witness.

17 b The Summary of the Service Abroad Convention neitherOnly contains an explicit warning that the document is a legal document which may affect the recipient’s rights or obligations, nor a suggestion that he may need legal advice. According to the principles set out in the aforesaid document prepared by the Council of Europe, such a warning should accompany any judicial or extrajudicial document sent or served abroad in civil or commercial matters. The Fourteenth Session agreed that such a warning, coupled with the suggestion that legal advice may be needed, should be added to the Summary. In addition, the recipient is advised that the “Summary of the document to be served”Use will give him some information about the nature and purpose of the document, but it was found necessary to stress in the warning that the recipient should read the document itself carefully, since it is possible that all the facts of importance for him are not included in the Summary.

18 c Since the recipient may be a person in an economically weak position, it was found necessary to remind the recipient of the possibility of obtaining the benefit of legal aid or advice, above all in the country where the document was issued.

It may very often be difficult for the recipient to find out by himself where he can get information on the availability of legal aid or advice in the country where the document was issued. Therefore it Officialwas deemed appropriate that the possibility of giving the recipient information, identifying the authority or person to whom enquiries about the availability of legal aid or advice may be directed in the country where the document was issued, should be explicitly mentioned in the warning, in a separate paragraph.

19 d It was further agreed to recommend the use of both English and French for the standardFor terms in the notice (warning and summary). It was understood, however, that these terms might also be written in the official language, or in one of the official languages of the State in which the document originated. (The notice leaves space open for this purpose.)6

6 According to Article 7(1) of the Service Abroad Convention, the standard terms in the model annexed to the Convention shall in all cases be written either in French or in English. They may also be written in the official language, or one of the official languages, of the State from which the document originates. To the extent, therefore, that the Recommendation requires the use of both French and English for the standard terms, it goes farther than the Convention. MÖLLER REPORT 149

As to the corresponding blanks, it was decided that these should be completed either in the language of the State to which the document is to be sent, or in English or French.7

20 The question as to whether the notice should contain any further information on action to take on the document – besides information on the date and place for entering appearance – and on consequences to the recipient of his not taking action was raised.

It was thought, however, a) that in many cases it is almost impossible to mention all the possible, or even the immediate, consequences of not taking action; b) that an attempt to further identify legal consequences for the recipient tends to bring on the possibility of legal liability for the author of the form and c) that in any case the notice was to have a very general application. The notice should not replace, but rather supplement the more specific informative notices for certain types of writs and notices prescribed by some national systems of procedural law.

21 Furthermore the Fourteenth Session decided to recommend that Member States, as well as States party to the Service Abroad Convention, inform the Permanent Bureau from time to time, where appropriate, regarding any steps taken pursuant to the Recommendation. The aim of that provision was to provide one centre where information would be available if needed. Only

22 The Fourteenth Session also decided to extend the Recommendation in the form of a “Hope” to States who are neither Members of the Conference nor Parties to the Service Abroad Convention, and to bodies and institutions whom it may concern (international courts or bodies performing judicial tasks, etc.). Use

Official For

7 This is in conformity with Art. 7(2) of the Service Abroad Convention. Only Use

Official For

Only

Annex 6 Use

Guidelines for completing the Model Form

Official For Only Use

Official For GUIDELINES FOR COMPLETING THE MODEL FORM 153

GUIDELINES FOR COMPLETING THE MODEL FORM

These guidelines will help you complete the Model Form annexed to the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

The Model Form is comprised of three (3) parts:

Part 1 – Part 2 – Part 3 – Request Certificate Summary + Warning

Only

Which parts to complete? If you are using UseIf you are using the main channel of transmission… an alternative channel of transmission…

  The use of the Model Form is mandatory. The use of the Model Form is recommended (but not mandatory).

Complete Part 1 (Request) and Part 3 (Summary + Complete Part 3 only (Summary + Warning). Warning). The use of the Warning is recommended (but not mandatory) Do not complete Part 2, which will be completed Do not complete Part 1 and Part 2. later by the Central Authority or other competent authority in the requestedOfficial State.

Choosing a bilingual or trilingual Model Form: The Permanent Bureau has developed several bilingual and trilingual fillable forms in both Word and PDF formats, which can be easily completed and saved (available on the Service Section of the Hague Conference website (< www.hcch.net >)). Check if there is a bilingual or trilingualFor form that would suit your needs. In the absence of a trilingual form in the desired language, use the bilingual forms (English/French or French/English).

Filling out the fields: Complete the Model Form electronically using a word processor. Use plain, understandable language and avoid unnecessary legal or technical language. Do not change or rearrange the items in the Model Form. Write out dates in full (e.g., 1 January 2014). If a particular item does not apply, insert “not applicable” or “n/a” or otherwise indicate that this item is not applicable. The notes accompanying this form provide further information on filling out each field.

Language: The fields in the Model Form must be filled out in English, French, or (one of) the official language(s) of the requested State (Art. 7(2)).

Copies: Part 1 of the Model Form (Request for service) and the document to be served must be furnished in duplicate (Art. 3(2)), except if service is made in electronic form.

154 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 6

No legalisation: The Request does not need to be legalised (or apostillised) (Art. 3(1)). This exemption also applies to the documents to be served.

Translation of the documents to be served: The requested State may require that the documents to be served be translated into (one of) its official language(s) (Art. 5(3)). To find out the requirements of the requested State, check the practical information chart for that State or contact the Central Authority of that State.

Costs: Although services rendered by the Central Authority are free of charge, you may be required to reimburse the costs occasioned by the employment of a judicial officer or other competent person to effect service, or for the use of a particular method of service requested by you (Art. 12(2)). To find out whether service in the requested State gives rise to these costs, and whether the requested State requires reimbursement of them, check the practical information chart for that State.

Terminology: In this Form:

Applicant means the forwarding authority (see below).

Central Authority means the authority designated by a Contracting State to receive requests for service from the requesting State and to execute them or cause them to be executed.

C&R of the SC refers to the Conclusions & Recommendations of the Special Commission. Only Convention means the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial

Documents in Civil or Commercial Matters, the full text of which is available on the Service Section of the Hague Conference website.

Forwarding authority means the authority or judicial officerUse competent under the law of the requesting State to forward requests for service to the Central Authority of the requested State.

Hague Conference on Private International Law (or Hague Conference) means the intergovernmental organisation under whose auspices the Convention was negotiated and adopted.

Model Form means the form annexed to the Service Convention.

Practical information chart means the chart for a given Contracting State, which is available on the Service Section of the Hague Conference website under “Central and other Authorities”.

Requested State means the State to which the request for service is addressed.

Requesting authority means the forwarding authority (see above). Official Requesting State means the State from which the request for service is issued.

Further information: For further information on serving documents abroad under the Convention, visit the Service Section of Hague Conference website, at < www.hcch.net >. For

GUIDELINES FOR COMPLETING THE MODEL FORM 155

REQUEST FOR SERVICE ABROAD OF JUDICIAL OR EXTRAJUDICIAL DOCUMENTS DEMANDE AUX FINS DE SIGNIFICATION OU DE NOTIFICATION A L’ÉTRANGER D’UN ACTE JUDICIAIRE OU EXTRAJUDICIAIRE

Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, signed at The Hague, the 15th of November 1965. Convention relative à la signification et à la notification à l’étranger des actes judiciaires ou extrajudiciaires en matière civile ou commerciale, signée à La Haye le 15 novembre 1965.

Identity and address of the applicant Address of receiving authority Identité et adresse du requérant Adresse de l’autorité destinataire 1. Insert the full name, complete postal address, 2. Insert the complete postal address of the telephone, fax number and e-mail address of the Central Authority of the requested State forwarding authority

The undersigned applicant has the honour to transmit – in duplicate – the documents listed below and, in conformity with Article 5 of the above-mentioned Convention, requests prompt service of one copy thereof on the addressee, i.e.: Le requérant soussigné a l’honneur de faire parvenir – en double exemplaire – à l’autorité destinataire les documents ci-dessous énumérés, en la priant, conformément à l’article 5 de la ConventionOnly précitée, d’en faire remettre sans retard un exemplaire au destinataire, à savoir :

(identity and address) (identité et adresse) 3. Insert the full name and complete contact details of the addressee (the recipient or person to be served with the document) and description of his/her capacity Use

a) in accordance with the provisions of sub-paragraph a) of the first paragraph of Article 5 of the Convention* selon les formes légales (article 5, alinéa premier, lettre a)* b) in accordance with the following particular method (sub-paragraph b) of the first paragraph of Article 5)*: selon la forme particulière suivante (article 5, alinéa premier, lettre b)* :

c) by delivery to the addressee, if he accepts it voluntarily (second paragraph of Article 5)* le cas échéant, par remise simple (article 5, alinéa 2)* Official The authority is requested to return or to have returned to the applicant a copy of the documents – and of the annexes* – with the attached certificate. Cette autorité est priée de renvoyer ou de faire renvoyer au requérant un exemplaire de l’acte – et de ses annexes* – avec l’attestation ci-jointe.

List of documents / Énumération des pièces For • List all the documents attached to the Request (e.g., summons, translations, decision, complaint, etc.)

* if appropriate / s’il y a lieu

Done at / Fait à Insert the location where you signed Signature and/or stamp the Request Signature et / ou cachet

the / le Insert the date on which you signed the Request (spelt out in full)

156 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 6

CERTIFICATE ATTESTATION

The undersigned authority has the honour to certify, in conformity with Article 6 of the Convention, L’autorité soussignée a l’honneur d’attester conformément à l’article 6 de ladite Convention,

1. that the document has been served* que la demande a été exécutée*

– the (date) / le (date): 1. Insert the date when the document was served – at (place, street, number): 2. Insert the place, street and number à (localité, rue, numéro) : where the document was served

– in one of the following methods authorised by Article 5: dans une des formes suivantes prévues à l’article 5 : a) in accordance with the provisions of sub-paragraph a) of the first paragraph of Article 5 of the Convention* selon les formes légales (article 5, alinéa premier, lettre a)*

b) in accordance with the following particular method*: selon la forme particulière suivante* :

c) by delivery to the addressee, if he accepts it voluntarily* par remise simple* Only

The documents referred to in the request have been delivered to: Les documents mentionnés dans la demande ont été remis à :

Identity and description of person: 3. Insert the identity and description of the Identité et qualité de la personne : personUse who received the documents Relationship to the addressee (family, business 4. Insert the relationship to the addressee of the or other): person who received the documents Liens de parenté, de subordination ou autres, avec le destinataire de l’acte :

2. that the document has not been served, by reason of the following facts*: que la demande n’a pas été exécutée, en raison des faits suivants*:

5. Insert facts/reasons why the document has not been served

In conformity with Officialthe second paragraph of Article 12 of the Convention, the applicant is requested to pay or reimburse the expenses detailed in the attached statement*. Conformément à l’article 12, alinéa 2, de ladite Convention, le requérant est prié de payer ou de rembourser les frais dont le détail figure au mémoire ci-joint*.

Annexes / Annexes

Documents returned: Insert a list of the documents that are being PiècesFor renvoyées : returned

In appropriate cases, documents establishing Insert a list of the documents that establish that the service: service has been effected Le cas échéant, les documents justificatifs de l’exécution : * if appropriate / s’il y a lieu

Done at / Fait à Signature and/or stamp Insert the location where you signed the Certificate, Signature et / ou cachet

the / le Insert the date on which you signed the Request (spelt out in full)

GUIDELINES FOR COMPLETING THE MODEL FORM 157

WARNING AVERTISSEMENT

Identity and address of the addressee Identité et adresse du destinataire 1. Insert the name and address of intended recipient (and capacity, if not served in private capacity)

IMPORTANT

THE ENCLOSED DOCUMENT IS OF A LEGAL NATURE AND MAY AFFECT YOUR RIGHTS AND OBLIGATIONS. THE ‘SUMMARY OF THE DOCUMENT TO BE SERVED’ WILL GIVE YOU SOME INFORMATION ABOUT ITS NATURE AND PURPOSE. YOU SHOULD HOWEVER READ THE DOCUMENT ITSELF CAREFULLY. IT MAY BE NECESSARY TO SEEK LEGAL ADVICE.

IF YOUR FINANCIAL RESOURCES ARE INSUFFICIENT YOU SHOULD SEEK INFORMATION ON THE POSSIBILITY OF OBTAINING LEGAL AID OR ADVICE EITHER IN THE COUNTRY WHERE YOU LIVE OR IN THE COUNTRY WHERE THE DOCUMENT WAS ISSUED.

ENQUIRIES ABOUT THE AVAILABILITY OF LEGAL AID OR ADVICE IN THE COUNTRY WHERE THE DOCUMENT WAS ISSUED MAY BE DIRECTED TO: Only

TRÈS IMPORTANT

LE DOCUMENT CI-JOINT EST DE NATURE JURIDIQUE ET PEUT AFFECTER VOS DROITS ET OBLIGATIONS. LES «ÉLÉMENTS ESSENTIELS DE L’ACTE » VOUS DONNENT QUELQUES INFORMATIONS SUR SA NATURE ET SON OBJET. IL EST TOUTEFOIS INDISPENSABLE DE LIRE ATTENTIVEMENT LE TEXTE MÊME DU DOCUMENT. IL PEUT ÊTRE NÉCESSAIRE DE DEMANDER UN AVIS JURIDIQUE. Use SI VOS RESSOURCES SONT INSUFFISANTES, RENSEIGNEZ-VOUS SUR LA POSSIBILITÉ D’OBTENIR L’ASSISTANCE JUDICIAIRE ET LA CONSULTATION JURIDIQUE, SOIT DANS VOTRE PAYS, SOIT DANS LE PAYS D’ORIGINE DU DOCUMENT.

LES DEMANDES DE RENSEIGNEMENTS SUR LES POSSIBILITÉS D’OBTENIR L’ASSISTANCE JUDICIAIRE OU LA CONSULTATION JURIDIQUE DANS LE PAYS D’ORIGINE DU DOCUMENT PEUVENT ÊTRE ADRESSÉES À :

2. Insert the name, address, telephone number and e-mail address of the authority or organisation in your State that is most qualified to give recipient full details on the availability of legal aid or advice

Official It is recommended that the standard terms in the notice be written in English and French and where appropriate also in the official language, or in one of the official languages of the State in which the document originated. The blanks could be completed either in the language of the State to which the document is to be sent, or in English or French.

Il estFor recommandé que les mentions imprimées dans cette note soient rédigées en langue française et en langue anglaise et le cas échéant, en outre, dans la langue ou l’une des langues officielles de l’État d’origine de l’acte. Les blancs pourraient être remplis, soit dans la langue de l’État où le document doit être adressé, soit en langue française, soit en langue anglaise.

158 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 6

SUMMARY OF THE DOCUMENT TO BE SERVED ÉLÉMENTS ESSENTIELS DE L’ACTE

Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, signed at The Hague, the 15th of November 1965 (Article 5, fourth paragraph). Convention relative à la signification et à la notification à l’étranger des actes judiciaires ou extrajudiciaires en matière civile ou commerciale, signée à La Haye le 15 novembre 1965 (article 5, alinéa 4).

Name and address of the requesting authority: 3. Insert the name, address, telephone number and e-mail Nom et adresse de l’autorité requérante : address of the forwarding authority

Particulars of the parties*: 4. Insert the name, address, telephone number and e- Identité des parties* : mail address of each party (e.g., plaintiff and respondent/defendant)

* If appropriate, identity and address of the person interested in the transmission of the document S’il y a lieu, identité et adresse de la personne intéressée à la transmission de l’acte

JUDICIAL DOCUMENT** Only ACTE JUDICIAIRE**

Nature and purpose of the document: 5. Describe the nature and purpose of the document Nature et objet de l’acte :

Nature and purpose of the proceedings and, when 6. DescribeUse the nature and purpose of the proceedings appropriate, the amount in dispute: and, when appropriate, the amount in dispute Nature et objet de l’instance, le cas échéant, le montant du litige : Date and place for entering appearance**: 7. Insert the date and place for entering appearance Date et lieu de la comparution** :

Court which has given judgment**: 8. Insert the name of the court which has given judgment Juridiction qui a rendu la décision** :

Date of judgment**: 9. Insert the date Date de la décision** : Official

Time-limits stated in the document**: 10. Specify limits IndicationFor des délais figurant dans l’acte** : ** if appropriate / s’il y a lieu

EXTRAJUDICIAL DOCUMENT** ACTE EXTRAJUDICIAIRE**

Nature and purpose of the document: 11. Describe the nature and purpose of the document Nature et objet de l’acte :

Time-limits stated in the document**: 12. Specify limits Indication des délais figurant dans l’acte** :

** if appropriate / s’il y a lieu GUIDELINES FOR COMPLETING THE MODEL FORM 159

NOTES ON THE MODEL FORM

Note 1: The blanks of the Model Form must be filled out in English or in French or in the language of the requested State.

Note 2: Where service is to be effected on multiple persons, a separate request for service may need to be issued for each person. If in doubt, contact the Central Authority of the requested State to check whether separate Requests for Service are needed.

NOTES ON PART 1 – REQUEST

Item 1: The name of the plaintiff, or of the counsel representing the plaintiff (when different from the forwarding authority), should not be included in this box. A current list of forwarding authorities is available on the Service Section.

Item 2: A comprehensive and updated list of contact details of Central Authorities is available on the Service Section.

Item 3: Fill out this field carefully. The Convention does not apply if the address of the person to be served with the document is not known (Art. 1(2)). Where available, insert the addressee’s dateOnly of birth (C&R No 30 of the 2009 SC). For Requests addressed to Contracting States that use a writing system other than the Latin alphabet, it might also be helpful to include the name and address of the recipient in (one of) the official language(s) of that State.

Option a): Select this option (by checking the corresponding box) if you would like the documents to be served by a method prescribed by the internal law of the requested State (formal service) and chosen by that State. The most common methods of service are personal service or service by post. Costs may be incurred if a judicial officer or a Useperson competent under the law of the State of destination is employed to effect service (Art. 12(2)(a)).

Option b): Select this option (by checking the corresponding box) if you would like the documents to be served by a particular method. Describe the specific method requested in the field. Note that costs may be incurred when a particular method is chosen (Art. 12(2)(b)).

Option c): Select this option (by checking the corresponding box) if you would like the documents to be served by delivery to an addressee who accepts it voluntarily (informal delivery). The available methods of effecting informal delivery vary among Contracting States and may include postal service, personal service in court in response to summons to attend for service, or service by procedural agents or police.

Official NOTES ON PART 2 – CERTIFICATE

Note 1: The Certificate is to be completed by the Central Authority or other competent authority of the requested State (Art. 6). As such, the forwarding authority should leave the Certificate blank. For Note 2: Properly completed Certificates should be returned to the forwarding authority (C&R No 26 of the 2014 SC).

The Certificate contemplates two main options depending on whether or not the documents have been served:

Option 1: Select this option (by checking the corresponding box) if the documents have been served and proceed to answer items 1-4.

Option 2: Select this option (by checking the corresponding box) if the documents have not been served and proceed to answer item 5. Do not complete items 1-4.

Item 1: The date of service is important to both plaintiff and defendant. Write out the date in full.

160 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 6

Item 2: The place where service has occurred should be indicated here. If your State uses a writing system other than the Latin alphabet, it might also be helpful to include the address in the Latin alphabet if this is used in the requesting State.

Option a): Select this option (by checking the corresponding box) if the documents have been served by a method prescribed by the internal law of your State (formal service). Specify the provisions in the law of your State under which service was effected or include them by way of an attachment (C&R No 30 of the 2009 SC).

Option b): Select this option (by checking the corresponding box) if the documents have been served by a particular method requested by the forwarding authority. If necessary, describe the specific method requested in this field.

Option c): Select this option (by checking the corresponding box) if the documents have been served by delivery to an addressee who accepts them voluntarily (informal delivery).

Item 5: The facts/reasons why service failed are of great importance, because they will determine the course of action that the plaintiff/court will take. Where the defendant cannot be physically located, some States proceed to effect substituted service (e.g., service by publication or by electronic means). Indicate in this field if the address of the defendant was no longer valid, fictitious or incorrect, or if the defendant could not otherwise be found. If informal delivery was attempted, specify if service failed because the defendant did not accept the documents voluntarily.

Item on costs: The requested State may require the forwarding authority to pay the costs associated with effecting service whether or not the document has been served in accordance withOnly Article 12(2) of the Convention. Select this option if any costs need to be reimbursed and attach a statement with a breakdown of such costs if need be.

NOTES ON PART 3 – SUMMARY + WARNING

Use For the Warning

Item 1: When the document is not sent to or served upon the addressee in his or her private capacity, the addressee should be informed that he or she is receiving it in an alternative capacity (e.g., as director of a company, tutor, representative of an estate, trustee, receiver in bankruptcy, etc.).

Item 2: Examples of authorities or organisations that may be qualified to give details on the availability of legal aid or advice include the court seised, legal aid bureau, or law society.

For the Summary

Note: The Summary distinguishesOfficial between judicial documents and extrajudicial documents. Any document relating to litigation, including summary proceedings or uncontested proceedings, e.g., summons, judgment, order or application, is regarded as a judicial document. Any other legal document is to be classified as an extrajudicial document.

Item 3: If you are using an alternative channel of transmission, insert the name, address, telephone number and e-mail address of the authority or person who caused the document to be issued. For Item 4: Where an extrajudicial document is concerned, the name and address of the person interested in the transmission of the document should be indicated. In the case of a judgment, the names of the person/party entitled to the judgment, and the person/party against whom the judgment is rendered, should be entered.

For requests to serve judicial documents

Item 5: The nature and purpose of the document refers to the legal classification of the document, for example, writ of summons, judgment, order, etc. A brief summary of the contents of the document (e.g., claim or judgment for divorce, alimony or maintenance, or for damages) falls under the “purpose of the document”. When the document relates to legal proceedings, the reference to the purpose of the document may be expressed very briefly, since the nature and purpose of the proceedings will be described more in detail under item 6.

GUIDELINES FOR COMPLETING THE MODEL FORM 161

Item 6: Under this item, the remedy or relief sought by the claimant should be mentioned more in detail than under the preceding item. Thus, for instance, when a sum of money is claimed, the exact sum should be mentioned as well as, where appropriate, a brief description of the grounds for the claim.

Item 7: If the recipient who is to take action on the document sent or served abroad is required to enter an appearance before a court or an authority, the exact date and place for entering the appearance should be mentioned under this item. If possible, it may be appropriate to mention the qualifications which are required for representation (e.g., a lawyer authorised by the court concerned). If there is no need for the recipient to enter appearance, insert “not applicable” or “n/a” or otherwise indicate that this item is not applicable.

Items 8 and 9: In some cases it may be appropriate to mention the address of the court, e.g., when the judgment is a default judgment and the person against whom the judgment was entered has the possibility to apply to that court for the re-opening of the judgment on the grounds of default. If no judgment has been rendered, insert “not applicable” or “n/a” or otherwise indicate that this item is not applicable.

Item 10: Any time-limit stated in the document for the institution of legal proceedings, or review of a judgment or a decision, should be mentioned under this item. If there are no time-limits in the document, insert “not applicable” or “n/a” or otherwise indicate that this item is not applicable.

For requests to serve extrajudicial documents

Item 11: The nature and purpose of the document refers to the legal classification of the document.

Item 12: If there are no time-limits in the document, insert “not applicable” or “n/a”Only, or otherwise indicate that this item is not applicable.

Use

Official For Only Use

Official For

Only

Annex 7 Use

Checklist for preparing a Request for service

Official For

Only Use

Official For CHECKLIST 165

Model Form Checklist

□ Have all fields of the relevant parts of the Model Form been filled out in English or in French or in the language of the requested State? Remember, complete Part 1 (Request) and Part 3 (Summary + Warning) if you are using the main channel of transmission, but only complete Part 3 (Summary + Warning) if you are using an alternative channel of transmission.

□ Have the complete contact details of the forwarding authority been provided, including telephone number, fax number, and e-mail address?

□ Have the complete contact details of the receiving authority (Central Authority of the requested State) been provided?

□ Have the complete contact details of the addressee been provided?

□ Has the method of service been selected in the appropriate box on the Model Form?

□ Has the form been duly stamped and/or signed? Only

□ Have documents that will be served been listed and enclosed?

□ Have duplicates (unless Request is submitted in electronic form) of the Request and documents that will be served been enclosed? Use □ Where required, has a translation of the documents that will be served been provided?

□ Where required, has payment for the service of the documents been enclosed?

Official For

Only Use

Official For

Only

Annex 8 Use

The use of information technology in the operation of the Service Convention Official For

Only Use

Official For THE USE OF INFORMATION TECHNOLOGY IN THE OPERATION OF THE SERVICE CONVENTION 169

A. Introduction and background

1. The Service Convention was drafted with only a paper environment in mind. Since then, the environment in which the Convention operates has changed dramatically due to developments in information and communication technology. In the early 1960s, the drafters of the Convention could not have foreseen these developments, in particular the use of e-mail as a means of communication. Indeed, written telecommunications at that time had progressed no further than the operation of limited telex networks.

2. Service by electronic means has become increasingly commonplace, with laws allowing service by e-mail being passed in many jurisdictions. At the same time, initiatives for the modernisation of justice and the digitalisation of court records have been introduced in several States.

3. Moreover, with the increase in e-commerce and the number of transactions concluded via the Internet, many online businesses depend heavily, if not exclusively, on electronic communications to establish their market presence, conclude transactions, and handle customer service, and may not always have or provide a physical address. It is therefore important to study how these and other situations relate to the ServiceOnly Convention.

4. This issue of whether the Convention permits, or prohibits the use of fax, e-mail or similar technology – and on what terms – was raised at a roundtable held in Geneva in 1999 (hereinafter the “Geneva Roundtable”),1 and at the 20032 and 2009 meetings of the Special Commission on the practical operation of the Service (and other Hague) Convention(s). Building on the results of the Geneva Roundtable, the discussions at the Special Commission meetings enabled to furtherUse advance the use of information technology in the operation of the Convention.

5. The Special Commission has concluded:

“Although this evolution could not be foreseen at the time of the adoption of the [Service Convention], […] modern technologies are an integral part of today’s society and their usage a matter of fact. In this respect, the SC noted that the spirit and letter of the [Service Convention] do[es] not constitute an obstacle to the usage of modern technology and that [its] application and operation can be further improved by relying on such technologies.”3 Official

For 1 In September 1999, the Permanent Bureau organised, in collaboration with the University of Geneva, a roundtable to consider the issues of private international law raised by electronic commerce and the Internet. Commission V of the Geneva Roundtable had as its specific assignment a review of the repercussions of new means of electronic commerce on the operation of the Service Convention. The Commission’s findings were published by the Permanent Bureau in a Report by C. Kessedjian, “Electronic Data Interchange, Internet and Electronic Commerce”, which was included in Prel. Doc. No 7 of April 2000 for attention of the Special Commission of May 2000 on General Affairs and Policy of the Hague Conference. This document is available on the Hague Conference website. 2 Prior to the 2003 meeting, a workshop dedicated solely to this issue was held, that clearly showed the advantages and opportunities provided by the use of modern technologies for the purposes of three Conventions: the Service, Evidence, and Apostille Conventions. 3 C&R No 4 of the 2003 SC; see also C&R No 3 of the 2009 SC.

170 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 8

6. In particular, the Special Commission has identified two areas in which information technology (such as fax and e-mail) may be useful in the operation of the Service Convention, which can be immediately explored:

a) the transmission of documents internationally for the purposes of the Convention.4 For more information, see section B of this Annex;

b) communication between the authorities of the requesting State and the authorities of the requested State.5 For more information, see section C of this Annex.

7. With regard to actual service using information technology (e-service), the Special Commission noted at its 2009 meeting that further exploration by the Permanent Bureau was desirable and that only a few States Parties had revised their domestic law to accommodate service by using information technology and there were only a few cases where service was effected by using such technology.6 As will be explained further in this Annex, much has changed since these findings. In addition, the Special Commission has recognised that “[…] given the pace of technological developments, existing problems might well be overcome so as to enable service by [information technology] to become more widely used” and has encouraged States Parties to explore 7 Only ways in which such technologies may be used. For more information on e-service, see section D of this Annex.

8. The Special Commission has taken into consideration all the information technology likely to be used for the international transmission of documents, particularly, fax and e-mail. Each channel of transmission provided for by the Convention should be considered taking into account a functional equivalenceUse approach as well as the channel’s aim and relevant requirements. Once that analysis has been performed, it should be considered whether these requirements could be satisfied in equivalent fashion in an electronic environment.

9. During its discussions, the Special Commission has recalled the importance of the distinction to be drawn between, on the one hand, the transmission of a document from one State Party to another, and, on the other hand, the way to serve the document on the addressee. Indeed, as already mentioned, the Convention deals primarily with the transmission of documents from one State to another; the Convention does not address or comprise substantive rules relating to the actual service of process (with the exceptions of theOfficial direct diplomatic or consular channels and the postal channel, as well as Arts 15 and 16). The Special Commission has acknowledged, however, that “there is a link between domestic law systems and the functioning of the Convention”.8

For

4 See C&R No 62 of the 2003 SC; C&R No 37 of the 2009 SC. 5 See C&R No 63 of the 2003 SC; C&R Nos 24 and 37 of the 2009 SC. 6 See C&R Nos 38 and 39 of the 2009 SC. 7 See C&R No 64 of the 2003 SC; C&R No 37 of the 2009 SC. 8 See C&R No 61 of the 2003 SC; C&R No 37 of the 2009 SC. THE USE OF INFORMATION TECHNOLOGY IN THE OPERATION OF THE SERVICE CONVENTION 171

B. Transmission

a) Transmission of the service request (Art. 5)

10. The transmission of a service request may involve a variety of steps. In all cases, the request is transmitted from the forwarding authority to the Central Authority.9 In some cases, it may also need to be transmitted from the requesting party to the forwarding authority10 and / or from the Central Authority to another authority, official or person for execution. As the Special Commission has noted, each of these steps can and should be performed using information technology, including e-mail. It further found that the transmission of documents by electronic means was already taking place and encouraged Contracting States to transmit and receive requests by electronic means in order to facilitate expeditious execution.11 This is distinct from the situation in which documents are served to the addressee by electronic means.

11. The use of electronic means raises few problems insofar as the wording of the provisions of the Convention is neutral as to the (information) technology to be used.12 This absence of reference to a specific technology in the text Onlyof the Convention is precisely what now allows advances made in the field of telecommunications to be taken into account for the Convention’s operation. There is no doubt that the transmission of documents by electronic means would significantly improve the usefulness and effectiveness of the Convention.13 As requests for service are transmitted instantaneously from one State to another, they can be brought to the knowledge of the addressee more quickly. Use

12. The Special Commission has maintained that the transmission of documents by electronic means does not require a formal revision of the Convention: it concluded that the terms of the Convention do not prevent the use of information technology in order to assist in further improving the operation of the Convention.

13. In practice, forwarding authorities may either issue requests for service in electronic form using a digital signature, or may convert paper requests for service into electronic form by scanning and subsequently signing them digitally. Forwarding authorities may then transmit requests for service by electronic means to the Central Authority of the requested State. Upon receipt, the Central Authority will process the request in a manner that is Officialconsistent with its domestic law. 14

14. In this regard, Contracting States should consider security matters when evaluating methods of electronic transmission.15 However, it is important to not impose security Forrequirements to the electronic transmission of requests for service that are stricter

9 It is for the law of the issuing State to determine whether or not a document in electronic form may be issued. 10 This is the case where the forwarding authority is not itself making the request. 11 See C&R No 62 of the 2003 SC; C&R No 37 of the 2009 SC; C&R No 39 of the 2014 SC. 12 Art. 4 of the 2007 EU Service Regulation applies the same principle and provides for no special communication methods for the transmission of documents, but permits “any appropriate means” for the document to be transmitted “as soon as possible”; see paras 297 et seq. of this Handbook. 13 See Prel. Doc. No 7 (op. cit. note 1 of this Annex), p. 28. 14 This may include printing and certifying the printed copies, or if this is not possible, requesting a hard copy of the documents. 15 C&R No 39 of the 2014 SC. 172 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 8

than those currently existing for the paper transmission of such requests. A few responding States to the 2013 Questionnaire advised that they increasingly transmit and / or receive requests for service using information technology.16 A couple of States further qualified their responses by adding that e-mail and fax are only accepted in urgent cases and / or when a hard copy of the request follows. An example of an innovative practice being implemented in a Contracting State is the following: since 1 January 2013, the Central Authority of China encourages all foreign forwarding authorities to submit only one original request for service in paper form together with a digital copy saved on a disc or transmitted via e-mail in order to facilitate the processing of the request for service.17

15. Moreover, there are regional efforts to encourage the use of information technologies in the issuance and transmission of letters rogatory.18 Some States are amending their laws to provide for the electronic issuance of letters rogatory, which should be electronically signed by a judge.19 States may wish to consider implementing these practices.

(1) Fillable Model Form Only

16. The Permanent Bureau has developed fillable bilingual and trilingual versions of the Model Form in both Word and PDF formats that facilitate completion in electronic form. These forms are available on the Service Section of the Hague Conference website.

Use (2) Contact details of authorities

17. The use of information technology requires that the e-mail addresses and fax numbers of the authorities designated under the Service Convention be known and widely distributed. For this reason, the Special Commission has consistently reminded States of the importance of communicating such information to the Permanent Bureau for publication on the Hague Conference website.20

Official For

16 Question 14 of the 2014 synopsis of responses. 17 See the Frequently Asked Questions drawn up by the Ministry of Justice of China (available via the “Central Authority & practical information” link for China on the Service Section of the Hague Conference website). 18 The Ibero-American Judicial Summit has developed an Ibero-American Protocol on Judicial Co-operation in which it recommends that in cases of urgency, letters rogatory may be transmitted by the Iber@ secure communication system. 19 For instance, see Art. 202 § 3º of the Code of Civil Procedure of Brazil: “[…] the letter of request may be sent by electronic means, in these cases the signature of the judge shall be electronic as provided by law” [translation by the Permanent Bureau]. 20 See C&R No 51 of the 2003 SC; C&R No 8 of the 2009 SC. THE USE OF INFORMATION TECHNOLOGY IN THE OPERATION OF THE SERVICE CONVENTION 173

(3) Copies

18. Under Article 3(2) of the Convention, a request for service is to be accompanied by the judicial document “or a copy thereof, both in duplicate”. This phrase is to be construed functionally when transmission is carried out by electronic means.21 As a document transmitted by electronic means can usually be duplicated (copied and printed out) at any moment and an unlimited number of times, the requirement of a copy or duplicate will be satisfied by the sending of a single message. Other practical difficulties have also been mentioned at the Special Commission,22 in particular when domestic laws require the documents transmitted to be originals or to bear a seal or stamp (see paras 155 et seq. of this Handbook), or when pre-payment is required.

b) Transmission of the Certificate of service (Art. 6)

19. The Special Commission has noted that electronic means may be used for the transmission of the Certificate of service (for more information on the Certificate of service, see paras 209 et seq. of this Handbook). It further noted that this transmission 23 Only can be immediately explored by Contracting States. The issue arises of whether such an electronic document might be used in the original proceedings to prove that the document has been served in compliance with the Convention. This issue is a matter solely for the rules of evidence applicable in the State where the proceedings are taking place. In the event electronic transmission of the Certificate is insufficient for evidentiary purposes, it is considered good practice for Central Authorities to communicate to the forwarding authority thatUse service has been effected, or if the document could not be served the reasons for such failure. In their responses to the 2008 Questionnaire,24 a few States indicated that they have received and / or sent Certificates by e-mail or fax. However, the majority of States would only do so in cases of urgency and require a hard copy to be subsequently transmitted by mail.

c) Transmission under Article 10(b) and (c)

20. In States Parties that have not objected to Article 10(b) of the Convention, this Article allows for judicialOfficial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through judicial officers, officials and other competent persons of the State of destination. As noted in paragraph 289 of this Handbook, this system of direct communication operates mainly in States with huissiers de justice (the French term for judicial officers). The transmission of documents between Forhuissiers may be facilitated by the use of electronic means.

21 See Prel. Doc. No 7 (op. cit. note 1 of this Annex), p. 28. 22 At a more technical level, difficulties may arise in cases where electronic documents are drafted in a language whose writing system may not be recognised by the receiving person's software. 23 See C&R No 63 of the 2003 SC; C&R No 37 of the 2009 SC. 24 See 2009 synopsis of responses, Questions 33(d) and (e). 174 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 8

21. For example, several Member States of the European Union have successfully launched the EJS (e-Justice Service of Documents) project, which seeks to create an electronic platform for the secure cross-border exchange of documents between judicial officers in the European Union.25 This project was co-financed by the European Commission within the framework of the 2007 EU Service Regulation. A platform has been developed and is currently in a test phase.

22. The comments above apply mutatis mutandis to the use of information technology under Article 10(c) of the Convention.

C. Co-operation between authorities

23. One of the Convention’s essential objectives is to improve mutual judicial assistance (see the Preamble to the Convention). The use of information technology facilitates and improves co-operation between authorities of the requesting State and authorities of the requested State. Thus, for example, when a request for service is incomplete, the requested authority may use electronic means of communication to inform the forwarding authority immediately, and to enable the latter to takeOnly the necessary action (e.g., providing the additional information required). Against this background, the Special Commission has recommended that once a request for service has been transmitted, any informal communication between forwarding authorities and Central Authorities may be carried out by any appropriate means, including e-mail and fax.26 In addition, when there is doubt as to the competence of the forwarding authority, the authorities of the requested State should seek confirmation of that authority’s competence, either by referring to the HagueUse Conference website or by initiating informal and speedy contacts, including by e-mail.27 While the use of information technology does indeed require adequate means and resources, it seems that in practice the use of information technology in connection with co-operation between authorities does not raise any particular difficulties and is becoming increasingly commonplace.

D. Service by electronic means (e-service)

24. Service by electronicOfficial means (also referred to as e-service) is a relatively new topic. At its 2009 meeting, the Special Commission noted that “a small number of States Parties had revised their domestic law to make reference to service using modern technologies such as e-mail and fax” and added that “[t]o date, there have been only a few cases where service was effected, typically as a last resort, by using such technologies”.28 The Special Commission indicated that “further exploration of these Forissues is desirable” and invited the Permanent Bureau “to continue studying how

25 The participating Member States were: France (leader), Belgium, Estonia, Hungary, Luxembourg and the Netherlands, with the French Ministry of Justice as partner. The EJS project signed a partnership with e-codex for the purpose, among other things, of improving the interoperability between national systems of electronic communication for the development of e-justice in Europe. For more information, see < http://www.e-codex.eu/home.html > [last consulted on 20 November 2015]. 26 See C&R No 24 of the 2009 SC. 27 See C&R No 49 of the 2003 SC; C&R No 21 of the 2009 SC. 28 C&R No 38 of the 2009 SC. THE USE OF INFORMATION TECHNOLOGY IN THE OPERATION OF THE SERVICE CONVENTION 175

the issues of effecting service by use of modern technologies evolves and relates to the Convention”.29

25. In keeping with this mandate, the Permanent Bureau has conducted research on service by electronic means in States Parties to the Service Convention and has noted that much has happened since the findings of the 2009 meeting of the Special Commission. E-service is a rapidly evolving area of law, which is likely to continue to develop in the years ahead. Service by electronic means is now provided for in the laws of many States. Both courts and legislators are playing a key role in determining whether e-service should be permitted and on what terms. The results of this research were presented at the 2014 meeting of the Special Commission and were welcomed by its participants.30

26. Courts are increasingly faced with the problem of serving process on defendants who are only traceable to an e-mail address or a social networking site. This is particularly so in the case of elusive defendants or disputes arising out of electronic communications. In this regard, it should be recalled that the Service Convention is exclusive and applies if certain requirements are met (see paras 50-51 of this Handbook). Two requirements are particularly relevant in this regard. First, the Service Convention only applies in cases where there is occasion to transmit a document abroad (Art. 1(1) of the Convention) (see paras 29-47 of this Handbook on the nonOnly-mandatory character of the Convention). Secondly, the Service Convention does not apply when the address of the person to be served is not known (Art. 1(2) of the Convention) (see paras 88-96 of this Handbook). These requirements are inextricably linked since it would be impossible to determine whether there is occasion to transmit documents abroad if the whereabouts of the defendant are not known.

27. Moreover, a question arises as to whether, underUse the “functional equivalent” approach, the term “address” ought to include the “electronic address” (e-mail) of the recipient. It can be argued that an e-mail address is incapable of allowing an authority to determine whether there is occasion to transmit a document abroad to another Contracting State because an e-mail address (e.g., hotmail or gmail) is not necessarily associated with a physical address. An additional problem is that one may not know in which State the recipient will access this message (e.g., a non-Contracting State and / or the State where the proceedings are taking place) (for more information, see paras 97 and 98 of this Handbook). In view of these difficulties, it would seem that the Convention would only apply if the physical address of the recipient is known.

28. Importantly, thereOfficial is nothing in the Service Convention that would prevent a State from effecting service by electronic means under the main channel, alternative channel or derogatory channels of transmission.

29. Noting the developments in the use of information technology under the alternative channels of transmission, and in view of the considerations set out above, in 2014 the ForSpecial Commission invited the Permanent Bureau to continue monitoring developments regarding service by electronic means and encouraged Contracting States to report such developments to the Permanent Bureau.31

29 C&R No 39 of the 2009 SC. 30 See C&R No 36 of the 2014 SC. 31 See C&R Nos 37 and 38 of the 2014 SC. 176 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 8

a) e-Service under the main channel of transmission

(1) Formal service (Art. 5(1)(a))

30. A Central Authority may execute requests for service or cause them to be executed (e.g., by a huissier) by electronic means provided that the domestic law of the requested State allows it (see paras 163 et seq. of this Handbook). In practice, service may be effected on the addressee by e-mail or fax. This view has been confirmed by the Special Commission.32 In this regard, it is accepted in principle that service performed in the requested State in accordance with the formal requirements of the latter’s law is a sufficient guarantee of validity, i.e., that the document has been brought to the notice of the addressee in due time for the latter to prepare a defence.

(2) Service by a particular method (Art. 5(1)(b))

31. Pursuant to Article 5(1)(b), a forwarding authority may ask the requested State to effect service by electronic means. The Central Authority must do so,Only unless this particular method would be incompatible with its domestic law (see paras 166 et seq. of this Handbook). The Special Commission has confirmed that requests for service under this provision may be executed by electronic means.33

32. In practice, it would require the applicant to send the request for service by electronic means (see section B a) of this Annex) and the Central Authority would in turn serve the documents on the recipient using such means.Use

(3) By informal delivery (Art. 5(2))

33. A document may be delivered by electronic means to an addressee who accepts the document voluntarily provided that the law of the requested State does not prohibit service by electronic means.34 This has been confirmed by the Special Commission.35 For more information on informal delivery, see paragraphs 169 et seq. of this Handbook. Official

For

32 See C&R No 37 of the 2014 SC. 33 Ibid. 34 See Prel. Doc. No 7 (op. cit. note 1 of this Annex), p. 29. 35 See C&R No 37 of the 2014 SC. THE USE OF INFORMATION TECHNOLOGY IN THE OPERATION OF THE SERVICE CONVENTION 177

b) e-Service under the alternative channels of transmission

(1) Postal channels (Art. 10(a))

34. As noted in paragraph 1, because the Convention was drafted in the 1960s, it understandably makes no reference to information technology. However, these technologies can be of great relevance to the operation of the Service Convention, and in particular to Article 10(a).36

35. Under a “functional equivalence” approach, “postal channels” provided for by Article 10(a) may include information technologies such as e-mail or fax in States Parties that have not objected to Article 10(a) and to the extent that documents are sent by postal agencies. A number of commentators are of the view that “postal channels” may be construed as including service by e-mail.37 In their responses to the 2003 Questionnaire, Contracting States have indicated that they favour an evolution towards the electronic transmission of postal mail. In this regard, the need to use suitable techniques allowing certain security requirements has been stressed. Nevertheless, States remain divided as to whether or not normalOnly e-mail services are within the scope of Article 10(a) (see for example paras 78 et seq. of this Annex in relation to substituted service). Arguably more controversial is whether or not social networking sites, message boards, and text messages fall within the scope of Article 10(a).

36. More recently, however, all but one of the responding States to the 2008 Questionnaire38 advised that they did not interpret fax, e-mail, SMS, or the posting of a message on a website to fall within the meaningUse of postal channels (although many of the responding States had objected to Art. 10).39 Courts have also dealt with

36 Resolution C46/2012 of the Congress of the Universal Postal Union has acknowledged that “letter-post volumes are falling precipitously across the postal market […]” as well as that “people are increasingly using e-mail to receive commercial documents […]” and urged the Union’s member countries and territories “to facilitate the introduction of these electronic postal services […]” (available at the Universal Postal Union website < http://www.upu.int/ >) [last consulted on 20 November 2015]. 37 See C.T. Kotuby, Jr., Official“International Anonymity: the Hague Convention on Service and Evidence and their Applicability to Internet-related Litigation”, (2000) 20 J.L. & Com. 103, p. 116; Y.A. Tamayo, “Catch Me If You Can: Serving United States Process on an Elusive Defendant Abroad”, (2003) 17 Harv. J.L. & Tech. 211, pp. 242-243; J.A. Colby, “You’ve Got Mail: the Modern Trend towards Universal Electronic Service of Process”, (2003) 51 Buff. L. Rev., 337, pp. 351-353; D.P. Stewart & A. Conley, “e-mail Service on Foreign Defendants: Time for an International Approach?”, (2007) 38 Geo. J. Int’l L. For755, pp. 798-800 (noting the advantages of serving documents by e-mail under Art. 10(a) but clarifying that “[r]eading Article 10(a) to include e-mail service would fundamentally alter, and perhaps needlessly complicate, the current debate surrounding that provision”. For more information on the split of authority in the United States of the meaning of the word “send”, see paras 213-220). But see R.J. Hawkins, “Dysfunctional Equivalence: the New Approach to Defining ‘Postal Channels’ under the Hague Service Convention”, 55 UCLA L. Rev. 205 (2007), and T.J. Folkman, “The Year in review 1: Service by e-mail under the Hague Service Convention” 26 December 2011, available at Letters Blogatory (the Blog of International Judicial Assistance) at the following address < http://lettersblogatory.com/2011/12/26/service-by-email/ > [last consulted on 20 November 2015]. 38 See 2009 synopsis of reponses, Question 66 (only the Czech Republic answered in the affirmative for service by e-mail). 39 Rather than signalling a change in policy, responses probably differed because the relevant question in the 2008 Questionnaire was more narrowly formulated than the 2003 Questionnaire. Question 16.2(b) of the 2003 Questionnaire inquired if the use of e-mail under the postal channel 178 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 8

this question in one Contracting State, with only one decision finding that Article 10(a) may be construed as allowing service by e-mail.40

37. Notwithstanding these findings, from a textual reading there is nothing in the Service Convention that would prevent a court or rules of civil procedure from authorising service by e-mail pursuant to Article 10(a) of the Convention provided that the conditions of validity are met, namely: the law of the State of origin allows service by e-mail (and all the conditions set out in that law are met, including any due process considerations) and the State of destination has not objected to Article 10(a). As indicated above, service by e-mail under this provision may be allowed to the extent that documents are sent by postal agencies. It should be noted, however, that States Parties have divergent views on this topic.

38. Sending documents by electronic means via a postal agency would ensure that the transmission has the “postal” character provided for under Article 10(a) of the Convention, and at the same time, it would satisfy security concerns regarding the electronic transmission of documents. A similar reasoning may apply to transmissions via electronic platforms maintained by IT companies.41 In Spain, service by such platforms has been upheld by the Spanish Supreme Court in a domestic case (for more information, see para. 74 of this Annex). Only

39. With regard to postal agencies, and by way of background, it is important to note that the Universal Postal Union Convention (“UPU Convention”) sets out the rules applicable throughout the international postal service.42 Under Article 17 of the UPU Convention adopted in Doha on 11 October 2012, which entered into force on 1 January 2014, member countries of the Universal Postal Union or designated operators may agree with each other to participate in the following electronicUse postal services:

“1.1 electronic postal mail, which is an electronic postal service involving the transmission of electronic messages and information by designated operators; 1.2 electronic postal registered mail, which is a secure electronic postal service that provides proof of sending and proof of delivery of an electronic message and a secure communication channel to the authenticated users; 1.3 electronic postal certification mark, which provides evidentiary proof of an electronic event in a given form, at a given time, and involving one or more parties; 1.4 electronicOfficial postal mailbox, which enables the sending of electronic messages by an authenticated mailer and the delivery and storage of electronic messages and information for the authenticated addressee.”

mightFor be contemplated as including electronic means while Question 66 of the 2008 Questionnaire inquired if the use of postal channels had been interpreted as including fax, e-mail, SMS, posting of a message on a website. It would appear that States understood “interpret” to refer to case law only. 40 Agha v. Jacobs, 2008 WL 2051061 (N.D. Cal. 2008). 41 Given that in the paper environment the use of private couriers has been considered the equivalent of the “postal channel”, there is no reason why an accredited IT company offering services for the secure transmission of electronic messages may not fall within the meaning of “postal channels” (see para. 255 of this Handbook). 42 The UPU Convention has been amended by several Acts of Congresses (i.e., the supreme body of the Universal Postal Union), the latest being: 1994 Seoul, 1999 Beijing, 2004 Bucharest, 2008 Geneva and 2012 Doha. To the best of our knowledge, the first Congress at which electronic mail was mentioned was held in Seoul in 1994. This Congress defined electronic mail as “a postal service which uses telecommunications for transmitting within seconds messages true to the original posted by the sender in either a physical or an electronic form for delivery to the addressee in a physical or electronic form”. THE USE OF INFORMATION TECHNOLOGY IN THE OPERATION OF THE SERVICE CONVENTION 179

40. This article is one of the significant amendments to the UPU Convention that was introduced at the Doha 2012 Congress. This is a very welcome development as the increasing use of electronic postal mail services could have far-reaching effects on the operation of the Service Convention.43

41. At present, several postal agencies are offering services that allow for the secure transmission of documents by e-mail.44 The following options are typically available to a customer: (1) he or she sends a document or letter by e-mail to a postal agency or uploads it onto a postal agency website in the State of origin. The postal agency will in turn deliver it to the addressee’s e-mail account or in paper form; or (2) he or she uses a platform maintained by a postal agency to electronically transmit messages from the sender to the recipient’s e-mail account. The latter would allow for documents to be digitally signed and time-stamped, thus increasing the security of the transmission.

42. Moreover, accredited IT companies are beginning to offer services similar to those offered by postal agencies for the secure transmission of electronic messages. There are a few Contracting States where these services are currently being provided, mainly in domestic cases. In Switzerland two IT companies, in addition to the Swiss Post (for more information, see para. 73 of this Annex), have been accredited by the Swiss Government as recognised platforms under Swiss law for the secure transmission 45 Only of electronic documents and messages. In Spain, although IT companies have not been officially accredited for this purpose, service of documents via an IT company

43 Use In 2012, the Universal Postal Union conducted a study of the developments in the range of electronic post (‘e-post’) services delivered to customers around the world using information and communication technology, including the sending of electronic messages. According to this study, postal e-services are growing globally, but there is a divide between industrialised and developing countries. See “Measuring postal e-services development – A global perspective” (January 2012), available at the following address: < http://www.upu.int/uploads/tx_sbdownloader/ studyPostalEservicesEn.pdf > [last consulted on 20 November 2015]. 44 The French postal service (“La Poste”) offers an electronic registered letter service, according to which the sender uploads a letter or document onto his or her La Poste account and requests the postal agency to either (1) print out, prepare the mailing and deliver the letter to the addressee; or (2) send the letter electronically to the electronic address of the recipient. Interestingly, a sender located outside France is consideredOfficial to be a sender located in France if he or she uses the French postal service’s website. In addition, there is a tracking system for the letter/message and electronic proof of deposit of the message and its contents may be printed out by the sender, and the retention of electronic evidence is warranted by the postal service for a term of three years (for further information, see the La Poste website at < http://www.laposte.fr >). A similar system has been put in place by the Spanish postal agency although it does not offer electronic transmission to the addressee (see, Correos website at < http://www.correos.es/ >). The Swiss postal service uses a platform which digitallyFor signs e-mails and applies a time-stamp, retaining a copy in the records for evidenciary purposes (IncaMail; website at < http://www.incamail.ch >; see para. 73 of this Annex). Canada Post maintains a secure e-post platform that allows to send, receive, and track electronic data and confidential files securely, efficiently and cost-effectively. Other Western postal agencies have begun to provide electronic transmission of documents. 45 Switzerland has temporarily recognised two services: (1) the input platform Open eGov Secure Inbox (website at < https://www.e-service.admin.ch/wiki/display/openegovdoc/OSIS-BV >) [last consulted on 20 November 2015]; and (2) PrivaSphere (website at < https://www.privasphere.com >). PrivaSphere services operate as follows: the sender signs in to the PrivaSphere website, which uses a secure SSL connection, and writes an e-mail. The recipient is notified by e-mail that a secure message is waiting for delivery on the secure PrivaSphere server. If it is the first time the recipient is contacted by the sender through PrivaSphere, she or he must be given a “message to unlock code” by other means of communication (such as phone or SMS). The recipient clicks on the link to the PrivaSphere secure server and enters the “message to unlock code” and is then able to read the message and download documents. 180 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 8

(Evicertia, < https://www.evicertia.com/ >) has been upheld by the Spanish Supreme Court as complying with Spanish law (for more information, see para. 74 of this Annex).

43. The Permanent Bureau is not aware of these facilities being used in practice for cross-border cases.

(2) Article 10(b) and (c)

44. The judicial officers, officials and competent persons in the State of destination may effect service of judicial documents by electronic means provided that the law of the State of destination allows it. For more information on transmission by electronic means under Article 10(b) and (c), see Section B c) of this Annex.

(3) Article 8

45. Diplomatic and consular agents may effect service by electronicOnly means of judicial documents on persons abroad, without the application of any compulsion, provided that the law of the State of origin permits it and the conditions set out under that law are met. For instance, the law of the State of origin may require that service by electronic means not be in contravention of the law of the State of destination. Although technically possible, it is unlikely that applicants will resort to this channel of transmission. For more information on Article 8, see paragraphs 243 et seq. of this Handbook. Use

c) e-Service under the derogatory channels of transmission – the case of Article 19

46. The Convention does not preclude the use of other forms of transmission that are not provided for in the Convention (incl. by electronic means), if the domestic law of the State of destination permits the use of such forms to serve documents coming from abroad within its territory (Art. 19 of the Convention). To illustrate: a Contracting State may permit serviceOfficial by e-mail of incoming judicial documents upon persons residing within its territory, provided that certain conditions are fulfilled.

d) International and domestic developments in service by e-mail For

47. The present section not only deals with service by e-mail in the context of the Service Convention but also outlines general national and international developments on service by e-mail.

THE USE OF INFORMATION TECHNOLOGY IN THE OPERATION OF THE SERVICE CONVENTION 181

48. Recent cases involving foreign defendants before the courts of common law jurisdictions in Australia, Canada,46 the United Kingdom and the United States have shown that service abroad by e-mail will only be permitted as a means of alternative service or substituted service47 where traditional methods of service have been unsuccessful.48 In common law jurisdictions, courts will consider specific factors when exercising their discretion to make an order for alternative service by e-mail, including: whether reasonable steps have been taken to attempt to serve the respondent by traditional means, whether the use of e-mail is a preferred method of communication of the defendant, whether service by e-mail would be just and would be likely to bring the document to the attention of the defendant, and the level of the defendant’s attempts at evasion.49 In addition to these factors, courts in Australia and the United Kingdom are required by statute to only order alternative methods of service, including e-mail service, if the method does not contravene the law of the country where service is being effected.50 However, there are no statutory requirements for consideration of foreign law in the United States, and courts in the United States disagree on whether offence to a foreign country’s laws should be considered when determining whether to order service by e-mail on an individual in that country.51 It would appear that in the majority of cases decided in common law jurisdictions where service abroad by e-mail was permitted as alternative or substituted service, the Service Convention did not apply (see para. 67 of this Annex). Only

Use

Official

46 The rules of civil procedure of Canadian common law jurisdictions allow courts to authorise service by e-mail as a means of substituted service for originating process, see, e.g., Rule 16 of Rules of Civil ProcedureFor, R.R.O. 1990 reg. 194. 47 Black’s Law Dictionary (7th ed.) provides the following definition of substituted service: “Any method of service allowed by law in place of personal service, such as service by mail”. 48 See, e.g., Crystal Decisions Ltd v. Vedatech Corp. [2004] EWHC (Ch) 1872 (England and Wales); LeBlanc v. Whitman, 2005 ABQB 568 (Canada); Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007 (9th Cir. 2002) (United States); Electrolux Home Products Pty Ltd v. Delap Impex Ltd [2013] FCA 600 (Australia). The decisions from Canada and the United States relate to non-Contracting States to the Service Convention. 49 See, e.g., Byrne & Howard [2010] FMCAfam 2009 (Australia); In re Int’l Telemedia Associates, Inc., 245 B.R. 713 (Bankr. N.D. Ga. 2000); also, see generally, D.P. Stewart & A. Conley (op. cit. note 37 of this Annex), p. 755. 50 See, e.g., in Australia the Federal Court Rules 2011, Chapter 2, Div 10.4, Rules 10.43 and 10.44; see also, D.P. Stewart & A. Conley (op. cit. note 37 of this Annex), pp. 779-784. 51 See D.P. Stewart & A. Conley (op. cit. note 37 of this Annex), p. 772. 182 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 8

49. At the same time, several common law jurisdictions have amended their civil procedure rules to provide for service by electronic means of a document, other than the summons, if the person consented in writing.52 It would appear that courts have not yet had the opportunity to review the interaction between these rules and the Service Convention.

50. In a similar vein, civil law States have passed laws authorising service by electronic means provided that the recipient has given his or her prior consent (see paras 69 et seq. of this Annex). By requiring the recipient to agree with this form of service, civil law States ensure that service of documents would comport with due process considerations. In practice, service by electronic means will generally be available in these jurisdictions only for notifications made after service of the summons (notifying the defendant of the proceedings), as only then will the defendant have the opportunity to give his consent for service by electronic means in those particular proceedings.53

(1) Developments in the United Kingdom

51. A case before the Queen’s Bench Division of the High Court of Justice of England and Wales is the first known case where a court has permitted service by e-mail.Only54 On 11 April 1996, Justice Newman of the Queen’s Bench Division granted lawyers permission to serve an Order out of the jurisdiction by electronic means. The plaintiff sought an injunction to prevent the defendant from publishing defamatory messages on the Internet, and was able to establish that it was not possible to reach the defendant by any traditional means since the defendant’s location was not known (the defendant was probably in Europe), and requested substituted service. Substituted service could be granted when the court is satisfied that a practical impossibility of actualUse service existed, and that “the method of substituted service asked for by the plaintiff is one which in all reasonable probability, if not certainty, will be effective to bring knowledge of the writ or the notice of the writ (such as the case may be) to the defendant”. Justice Newman granted the plaintiff’s request to use e-mail since that was the method of communication favoured by the defendant. In this case, it was noted that the defendant’s reply to the e-mail sent to him provided proof that he indeed had knowledge of the service, and that accordingly, the service was valid.

Official 52 E.g., in the United States, Fed. R. Civ. Pro. 5(b)(2)(E) provides for service of pleadings and other documents (not summons) by electronic means if the person consented in writing. In England and Wales, Rule 6.23(6) of the Civil Procedure Rules allows for a party to accept service of documents by electronic means other than fax after proceedings have started. In Australia, pursuant to RuleFor 7.12(b)(iii) of the Family Law Rules 2004, parties may agree to receive service by e-mail or other electronic means if special service of a document is not required. In Canada, the Rules of Civil Procedure of several Canadian jurisdictions allow, in domestic cases, the service of non-originating process by electronic means without the need to request leave of the court or attempt other means of service. Typically, these rules allow service by electronic means when an electronic address (fax number or e-mail) has been provided by a party to a dispute (after the dispute has arisen); see, e.g., the Alberta Rules of Court Nos 11.21 and 11.26 (Alta Reg 124/2010) which allow for the service by electronic means of a document (other than the commencement document) on a person who has provided an address for that purpose, and Rule 16.05(1)(f) of the Ontario Rules of Civil Procedure (R.R.O. 1990, Reg. 194) which provides for service by e-mail on the “lawyer of record” if he or she provides by e-mail an acceptance of service. 53 This is so unless a recipient has given his or her prior consent by contract or otherwise. 54 This decision, referred to as the “English case”, is reviewed in F. Conley, “:-) Service with a Smiley: The Effect of E-mail and Other Electronic Communications on Service of Process”, (1997) 11 Temp. Int’l & Comp. L.J., p. 407. THE USE OF INFORMATION TECHNOLOGY IN THE OPERATION OF THE SERVICE CONVENTION 183

52. Since this first judgment in 1996, the High Court of Justice of England and Wales (Chancery Division)55 affirmed a previous order of 24 October 2003 permitting service out of the jurisdiction on both defendants and alternative service by e-mail on one of the defendants, Mr Subramanian, who was located in Seattle. Mr Subramanian had submitted that the Court had no jurisdiction to hear Crystal Decisions (UK) Limited’s application, since the proceedings had not been properly served. Justice Pumfrey affirmed that the service of the claim form was in accordance with the rules, and that the service on Mr Subramanian was effected pursuant to the Order which permitted alternative service by e-mail to his e-mail address, by post on the lawyers who assisted him in the United Kingdom and other jurisdictions, service under the Hague Convention at his home in Seattle, and in person at the Law Courts on 5 December 2003. In a later appeal, the Supreme Court of Judicature Court of Appeal of England and Wales (Chancery Division) unanimously agreed with Justice Pumfrey’s conclusions as to service, and saw no basis for the appellant’s contentions that the Court had no jurisdiction due to defective service of the proceedings. The Court refused permission to appeal from the judge's rejection of the allegation of defective service.56

(2) Developments in the United States of America Only

53. US courts have made extensive use of e-mail to serve documents on elusive foreign defendants. 57 Indeed, the number of cases dealing with service of process by e-mail keeps growing and shows no signs of abating. It should be noted, however, that in most US decisions permitting service by e-mail, the Convention did not apply (for example, because the defendant was not in a Contracting State or because the defendant’s address was unknown).58 Use

55 See Crystal Decisions OfficialLtd v. Vedatech Corp. (op. cit. note 48 of this Annex). 56 See Vedatech Corp. v. Crystal Decisions Ltd [2005] EWCA Civ 865 (Eng.) at para. 32 as per Lord Justice Parker. Other English decisions authorising service by e-mail on defendants out of the jurisdiction are: Bacon v. Automattic Inc. [2011] EWHC 1072 (QB) (permitting service by e-mail to defendants located in the United States based on the fact that the first and second defendants had expressly consented to service of the Order by e-mail, and would probably have consented if they had been askedFor to service of the claim form by the same means and the third defendant’s website invited service by e-mail. The court cautioned that in the future evidence should be produced as to whether a method is permitted by the law of the State of destination because if it is, service by an alternative method will be unnecessary); General Medical Council v. Homaei [2013] EWHC 1676 (Admin) (authorising service by e-mail on a defendant who was presumably residing in the United States, but whose address was unknown). 57 The Bankruptcy Court for the Northern District of Georgia was the first United States Federal Court to authorise cross-border service of process by e-mail in the United States in the case In re Int’l Telemedia Associates, Inc. (op. cit. note 49 of this Annex) (acknowledging that the only prior judicial decision authorising service of process by e-mail was issued in England in 1996 – see para. 51 of this Annex). 58 This conclusion was originally presented by T.J. Folkman in his blog “Letters Blogatory” (< http://lettersblogatory.com > [last consulted on 20 November 2015]) on 26 December 2011 and in a memorandum addressed to the Permanent Bureau dated 28 October 2013 (on file with the Permanent Bureau). 184 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 8

54. US Federal Courts have reasoned that e-mail service on a defendant located in a foreign country is permitted under Fed. R. Civ. Pro. 4(f)(3).59 US courts have, however, been more reluctant to allow service by e-mail on domestic defendants and have found that the Federal Rules of Civil Procedure do not permit domestic electronic service of process.60

55. Furthermore, some US Courts have indicated that service under Fed. R. Civ. Pro. 4(f)(3) is not a measure of last resort or extraordinary relief.61 Therefore, a plaintiff is not required to attempt service through other provisions of the Federal Rules of Civil Procedure before requesting service under this rule. District Courts may nonetheless require parties to show that they have reasonably attempted to serve the defendants and that the circumstances are such that the District Court’s intervention is necessary.62

56. According to US case law, two conditions must be fulfilled in order for a court to authorise service on a foreign defendant pursuant to Rule 4(f)(3): the means of service (1) is not prohibited by an international agreement and (2) comports with constitutional notions of due process.63 With regard to the first condition, many US courts have held that service by e-mail is not prohibited by an international agreement when the relevant State is not a Contracting State to the Service Convention64 or in cases where the address of the defendant is not known because the Service Convention would not apply under those circumstances.65 With regard to the second condition, someOnly US courts have ruled

Use 59 Under Fed. R. Civ. Pro. 4(f), service of process on any individual not within any judicial district of the United States may be performed in one of three ways: (1) by any internationally agreed means of service that is reasonably calculated to give notice (e.g., the Hague Service Convention); (2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice such as in general actions or as the foreign authority directs in response to a letter rogatory; and (3) by other means not prohibited by international agreement as directed by the court. 60 See, e.g., Joe Hand Promotions, Inc. v. Shepard, 2013 WL 4058745 (E.D. Mo. 2013) (finding that domestic service of process by e-mail is not authorised by Fed. R. Civ. Pro. 4(f)(3) and holding that the plaintiff did not show that it can properly serve process via Facebook). But see, Facebook, Inc. v. Banana Ads, LLC, 2012 WL 1038752 (N.D. Cal. 2012) (allowing service by e-mail on domestic defendants). CommentatorsOfficial have suggested that the Fed. R. Civ. Pro. be amended to allow domestic service by e-mail. See, R.J. Hedges, K.N. Rashbaum & A.C. Losey, “Electronic Service of Process at Home and Abroad: Allowing Domestic Electronic Service of Process in the Federal Courts”, 4 Fed. Cts. L. Rev. 55 (2010), pp. 57-58. A few US states have passed legislation allowing service by e-mail on domestic parties in limited circumstances, see C.M. Specht, “Text Message Service of Process – no LOL Matter: Does Text Message Service of Process Comport with Due Process”, (2012) 53 B.C. L. Rev.For 1929, pp. 1948 -1951 (citing examples such as the Uniform Electronic Transactions Act of South Carolina and Rule 308 of the New York Civil Practice Law). 61 See, e.g., Rio Properties, Inc. v. Rio Int’l Interlink (op. cit. note 48 of this Annex). 62 See S.E.C. v. Anticevic, 2009 WL 361739 (S.D.N.Y. 2009). 63 Ibid. See also F.T.C. v. Pecon Software Ltd., 2013 WL 4016272 (S.D.N.Y. 2013). 64 See, e.g., Liberty Media Holdings, LLC v. Vinigay.com, 2011 WL 810250 (D. Ariz. 2011). 65 See, e.g., U.S. Commodity Futures Trading Commission v. Rubio, 2012 WL 3614360 (S.D. Fla. 2012) (in evaluating whether granting e-mail service in this case would be contrary to international law, the court found that the Hague Convention did not apply because the defendant’s precise location was not known and the only information in the record was that the defendant was in either the Caribbean, Central America, or South America). See also Chanel, Inc. v. He Zhizhong, 2010 WL 985195 (W.D. Tenn. 2010) and RPOST Holdings, Inc. v. Kagan (op. cit. note 146 of this Handbook). Where the plaintiff had not shown that the address of the defendant was “unknown”, the Service Convention was held to apply, see Compass Bank v. Katz (op. cit. note 146 of this Handbook). THE USE OF INFORMATION TECHNOLOGY IN THE OPERATION OF THE SERVICE CONVENTION 185

that the method of service authorised by the court must be “reasonably calculated, under all circumstances, to apprise the interested parties of the pendency of the action and afford them an opportunity to present their objections”.66

57. In a landmark decision in the case of Rio Properties, Inc. v. Rio Int’l Interlink, the United States Court of Appeals for the Ninth Circuit recognised the validity of service at the e-mail address of a foreign defendant company and held that it satisfied the requirements of due process.67 Although the Convention was not applicable in that case, as it concerned service between the United States and a non-Contracting State (), it has become the benchmark for service by e-mail whether or not it concerns a Contracting State to the Service Convention. This is the only Federal Appeals Court decision to date that has ruled on this issue. Rio Properties, Inc. (RIO), which operated hotels and casinos in Las Vegas, brought an action against Rio International Interlink (RII) alleging various trademark infringements and seeking to enjoin the defendant from the use of the name “Rio”. Being unable to locate the defendant company in the United States and in Costa Rica, the plaintiff requested and was granted by the Court at first instance permission to serve the defendant by e-mail. A default judgment against RII ensued. On appeal, RII asserted nullity of the service by e-mail. The Court of Appeals upheld the judgment on the basis that service of process ordered pursuant to Fed. R. Civ. Pro. 4(f)(3) may be accomplished in contravention of the laws of the foreign country, provided Only 68 that it has been ordered by a court and is not in breach of an international treaty. The Ninth Circuit also addressed the due process concern of whether the proposed method of alternative service that was ordered was reasonably calculated to afford RII the opportunity to respond. The Court concluded that service by e-mail was the most likely method of service to reach RII but recognised that service by e-mail has its limitations.69 Commentators have both agreed with, and criticised, this decision, with some even contending that it presents the possibilityUse for service using other forms of information technology.70 Despite its application as precedent being limited to the Ninth Circuit, other US courts have looked to this decision for guidance on interpretation and application of Fed. R. Civ. Pro. 4(f)(3).

Official For

66 Rio Properties, Inc. v. Rio Int’l Interlink (op. cit. note 48 of this Annex), at 1016-1017 (quoting Mullane v. Central Hanover Bank & Trust Co. (op. cit. note 86 of this Handbook)). 67 Ibid. For an explanatory article on this case, see A.R. Chacker, “E-Ffectuating Notice: Rio Properties v. Rio International Interlink”, (2003) 48 Vill. L. Rev., p. 597. 68 Rio Properties, Inc. v. Rio Int’l Interlink (op. cit. note 48 of this Annex). 69 Ibid. at 1017. 70 See, e.g., A.R. Chacker (op. cit. note 67 of this Annex), pp. 620-627. 186 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 8

58. Since that decision, many US courts have upheld service by e-mail as substituted service on a foreign defendant.71 Commentators have identified three common threads in US case law: a) prior attempts by a plaintiff to serve defendants by traditional means of service; b) a defendant’s use of e-mail for communication, and c) evasion of service by a defendant.72 US courts disagree as to whether offense to a foreign country’s law should be considered in determining whether to allow e-mail service on a defendant located in that country.73

59. The Permanent Bureau is aware of only one Federal Court case that has held that Article 10(a) of the Convention may include e-mails but it does not appear to have been followed by other courts.74 In contrast, more recently another Federal Court has consistently held that e-mail and Facebook are not among the means listed in Article 10.75

60. Moreover, service by e-mail has also been ordered by US Federal Courts in cases where the main channel of transmission through the Central Authority has been ineffective. In recent decisions, US courts have authorised service by e-mail in cases where the Central Authority had not responded and had shown no disposition to act76 or where the Central Authority had raised substantive exceptions againstOnly the execution of

71 See, e.g., Williams-Sonoma, Inc. v. Friendfinder, Inc., 2007 WL 1140639 (N.D. Cal. 2007) (authorising e-mail service upon defendants located in several States pursuant to Fed. R. Civ. Pro. 4(f)(3), and international mail to those same defendants under the Service Convention unless the specific Contracting State had objected to Art. 10(a). The plaintiff presented evidence that the physical addresses for a number of the named defendants couldUse not be located, and some of the defendants had refused to accept service. The plaintiff also established that the e-mail accounts it had for the defendants had been effective means of communicating with the defendants, which reassured the court that the defendants would receive adequate notice of the action and have an opportunity to be heard). See also Ryan v. Brunswick Corp., 2002 WL 1628933 (W.D.N.Y. 2002); Williams v. Advertising Sex LLC, 231 F.R.D. 483 (N.D. W. Va. 2005); Philip Morris USA Inc. v. Veles Ltd., 2007 WL 725412 (S.D.N.Y. 2007); Prediction Co. v. Rajgarhia, 2010 WL 1050307 (S.D.N.Y. 2010); Chanel, Inc. v. Zhibing, 2010 WL 1009981 (W.D. Tenn. 2010); Chanel, Inc. v. Song Xu (op. cit. note 146 of this Handbook); Chanel, Inc. v. He Zhizhong, (op. cit. note 65 of this Annex); In re Heckmann Corp. Securities Litigation, 2011 WL 5855333 (D. Del. 2011); RPOST Holdings, Inc. v. Kagan (op. cit. note 146 of this Handbook); Facebook, Inc. v. Banana Ads, LLC (op. cit. note 65 of this Annex); Microsoft Corp. v. Does (op. cit. note 146 of this Handbook). US state courts: Hollow v. Hollow, 747 N.Y.S.2d 704 (N.Y. App. Div. 2002); Snyder v. Alternative Energy Inc., 857 N.Y.S.2d 442 (N.Y. Civ. Ct. 2008). 72 Official D.P. Stewart & A. Conley (op. cit. note 37 of this Annex), p. 772. 73 However, despite no statutory requirement to take into account the legality of service by e-mail in foreign jurisdictions, the Advisory Committee on the Federal Rules of Civil Procedure noted that “an earnest effort should be made to devise a method of communication that is consistent with due process and minimizes offense to foreign law”. Fed. R. Civ. Pro. 4(f)(3) (United States); see also, M.R.For Schreck, “Preventin g ‘You’ve Got Mail’TM from Meaning ‘You’ve Been Served’: How Service of Process by E-mail Does Not Meet Constitutional Procedural Due Process Requirements”, (2005) 38 J. Marshall L. Rev. 1121, pp. 1141-1142. See also D.P. Stewart & A. Conley (op. cit. note 37 of this Annex). 74 Agha v. Jacobs (op. cit. note 40 of this Annex) (holding that Art. 10(a) of the Service Convention may include e-mails and denying motion to serve German defendants based on Germany’s objection to Art. 10(a)). See also, US response to the 2008 Questionnaire (Question 66). 75 See F.T.C. v. Pecon Software Ltd. (op. cit. note 63 of this Annex); F.T.C. v. PCCare247 Inc., 2013 WL 841037 (S.D.N.Y. 2013); Gurung v. Malhotra (op. cit. note 46 of this Handbook). Less explicitly but in the same sense, see Williams-Sonoma Inc., v. Friendfinder, Inc. (op. cit. note 71 of this Annex). 76 See F.T.C. v. Pecon Software Ltd. (op. cit. note 63 of this Annex) (Central Authority returned all documents to be served without providing a report as to the reasons why they were rejected and refused to respond to e-mails and phone calls. It was uncertain whether all the addresses of the defendant were valid); F.T.C. v. PCCare247 Inc. (op. cit. note 75 of this Annex) (Central Authority had not formally served the defendants after approximately five months and had not responded to inquiries regarding service). THE USE OF INFORMATION TECHNOLOGY IN THE OPERATION OF THE SERVICE CONVENTION 187

the requests for service.77 In these cases only the Central Authority channel was available, the relevant State having objected to the alternative channels of transmission under the Convention.

(3) Developments in Australia78

61. Like its common law counterparts, Australian courts have considered applications for substituted service by way of e-mail in both domestic79 and international80 cases. The Federal Court of Australia has permitted service by e-mail in a large number of cases.

62. In one of the first cases decided in Australia,81 the Federal Court considered whether to grant substituted service by way of e-mail on defendants likely to be located outside Australia. Submitting evidence to show that the respondent had previously used a particular e-mail account, the applicant sought substituted service using

77 See Gurung v. Malhotra (op. cit. note 46 of this Handbook) (authorising the plaintiff to effect service upon defendants located in India through e-mail, on the basis of Fed.Only R. Civ. Pro. 4(f)(3). The plaintiff had attempted service through the Central Authority channel established under the Service Convention for almost five months. However, the Government of India had refused to serve the defendant who was a consular agent of India on the basis of immunity of a career diplomat. Despite the arguments of the Government of India to the contrary, the court found that diplomatic immunity is a substantive defence that does not amount to a refusal to execute under Art. 13 of the Convention and was thus improper under the Convention). This decision has been criticised by a commentator, for more information see T. Folkman,Use “Gurung v. Malhotra Is Wrongly Decided” available at Letters Blogatory (the Blog of International Judicial Assistance) at the following address: < http://lettersblogatory.com/2013/12/20/gurung-malhotra-paper/ > [last consulted on 20 November 2015]. 78 Similar to Australia, New Zealand has also granted requests for substituted service by way of e-mail. In Asteron Life Ltd v. Franck, the High Court of New Zealand noted that there are three elements that need to be proved in order for a court to grant service by e-mail: (1) whether reasonable efforts have been made to serve the document on the defendant through other means; (2) whether the document has come to the defendant’s knowledge or it cannot be promptly served; and finally, (3) whether service by e-mail would be likely to bring the document to the notice of the person to be served. In this case the address of the defendant was unknown but he was likely to be in South Africa (see Asteron Life Ltd v. Franck HC MAS CIV-2009-435-77 [2009] NZHC 450). See also Nielsen v. Nielsen [2009] NZHCOfficial 1562. 79 See Electrolux Home Products Pty Ltd v. Delap Impex Ltd. (op. cit. note 48 of this Annex) (authorising service by e-mail on a domestic defendant because personal service was “impracticable” as the defendant was unwilling to provide her address and although searches were conducted these were unsuccessful – the defendant probably resided in Perth, Australia. The court further ordered that service be effected via the Central Authority channel of the Hague Service Convention on defendants locatedFor in Hungary); Bellingen Shire Council v. Lamir-Pike [2010] NSWLEC 195 (decided by the New South Wales Land and Environment Court). 80 See Specsavers Pty Ltd v. Buyinvite Pty Ltd [2012] FCA 230 (although it was unclear whether one of the respondents was in fact overseas, the Court nevertheless granted substituted service for that respondent via e-mail); KerryJ Investment Pty Ltd v. Xiamen Fengwei Energy Technology Co. [2013] FCA 141 (service by e-mail on a defendant in China, see para. 63 of this Annex). But see Ellen G. White Estate, Inc. v. Knudson [2013] FCA 378 (where the plaintiff sought an order for substituted service by e-mail on a defendant located in , a Contracting State to the Service Convention. The defendant successfully challenged the Order and the Court instructed service to be effected in accordance with the Service Convention). In addition, in one of the first reported Australian cases to consider the Service Convention, the Federal Court of Australia authorised the plaintiff to serve the defendants, residing in both the Netherlands and the United Kingdom, by delivering the documents personally in accordance with the Service Convention and by substituted service via fax and e-mail: Australian Competition and Consumer Commission v. Yellow Page Marketing BV [2010] FCA 1218. 81 Australian Competition and Consumer Commission v. Chaste Pty Ltd [2002] FCA 1183, at para. 16. 188 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 8

that e-mail address. The Court considered whether such service would provide the defendant with actual notice and refused to make the orders sought. It found that there was insufficient evidence to establish a connection between the respondent and the e-mail address. Importantly, the decision focussed on the function of service in ensuring due notice to the defendant; it did not reject, as a matter of principle or law, the possibility to order substituted service by e-mail.

63. In another case before the Federal Court, applicants sought to serve documents via e-mail on a defendant located in China. 82 The matter was lengthy and protracted and the applicants adduced evidence that service using the Service Convention could take more than six months. Accepting this evidence, the Court ordered substituted service by e-mail. It held that service using the Service Convention was “not practicable” in the circumstances, noting that such delay may cause potential prejudice to the applicant.83

(4) Developments in Canada

64. Similar to the approach of the courts in the United Kingdom, the United States, and Australia, Canadian courts also consider actual notice, previousOnly service attempts, and the evasiveness of the defendant, when determining whether methods of service such as service by e-mail should be authorised as a means of substituted or alternative service. In particular, the Rules of Civil Procedure in some common law jurisdictions in Canada allow courts to authorise service by e-mail as a means of substituted service for originating process (see note 46 of this Annex). Canadian courts have not had the opportunity to examine the interaction of such rules and the rules on service abroad in Convention cases, so it is unclear whether a courtUse would allow substituted service by e-mail where the Service Convention applies.

65. Some Canadian provincial courts have allowed service by e-mail in both domestic84 and international85 cases. In 2005 the Alberta Court of Queen's Bench (Canada) in the Judicial District of Edmonton authorised e-mail service as valid substituted service on a resident of the United Arab Emirates, a non-Contracting State to the Service Convention, based on the evasiveness of the defendant and the inability to serve him through traditional methods.86 The parties were a separated couple and the defendant husband had relocated to Abu Dhabi for work. The plaintiff wife was attempting to sell the matrimonial home and in her application for service by e-mail, she discussed the previous failedOfficial attempts to serve the defendant, the defendant's attempts to evade service, and e-mail correspondence with the defendant. The Court accepted service

For

82 KerryJ Investment Pty Ltd v. Xiamen Fengwei Energy Technology Co. (op. cit. note 80 of this Annex). 83 While this judgment was silent on the use of postal channels under the Convention, it should be noted that this channel was not available in light of China’s objection. 84 See Y.H. v. H.L., 2003 CanLII 27840 (QCCS) (Quebec); Unibéton, division de Ciment Québec Inc. v. Construction Express Inc., 2012 QCCQ 7394 (CanLII) (Quebec); Saputo Inc. v. Petkov, 2012 QCCS 2679 (CanLII) (Quebec); Droit de la famille – 122813, 2012 QCCS 4910 (CanLII) (Quebec); Commission des droits de la personne et des droits de la jeunesse v. Tobin, 2012 QCTDP 3 (CanLII) (Quebec); Manson v. Doe, 2011 ONSC 4663 (CanLII) (Ontario); Holland v. Holland, 2011 ABQB 359 (Alberta). 85 See Droit de la famille – 12670, 2012 QCCS 1225 (CanLII) (Quebec); Droit de la famille – 122637, 2012 QCCS 5095 (CanLII) (Quebec). 86 LeBlanc v. Whitman (op. cit. note 48 of this Annex). THE USE OF INFORMATION TECHNOLOGY IN THE OPERATION OF THE SERVICE CONVENTION 189

by e-mail, but denied the plaintiff’s motion to authorise the sale of the home only a week after the e-mail was sent, in order to allow the plaintiff more time to respond and to address due process concerns of whether the defendant had actual notice of the proceedings.87

66. Moreover, the Quebec Superior Court (Canada) has allowed service by e-mail in separate divorce proceedings on residents of Contracting States to the Service Convention, namely Germany88 and the People's Republic of China.89 In the first case, the Court authorised substituted service by way of e-mail based on the fact that the plaintiff communicated occasionally with the defendant by e-mail as well as the previous failed attempts to serve the defendant.90 In the second case, the Court authorised the plaintiff to effect service by either e-mail, fax, via the counsel of the defendant, or through the e-Service platform “Notabene” maintained by the Chambre des huissiers de justice (Chamber of Judicial Officers) of Quebec (at the address < https://notabene.huissiersquebec.qc.ca/ >).91

(5) Conclusions: Developments in common law jurisdictions and a mixed jurisdiction of common law and civil law Only

67. It would appear that in the majority of cases decided in common law States and a mixed jurisdiction of common law and civil law (i.e., Quebec) where service abroad by e-mail was permitted as alternative or substituted service, the Service Convention did not apply. The main reasons for this were because the case concerned a domestic recipient or a person in a non-Contracting State, or because the address of the defendant was not known. In a few cases, however, courts ordered Usesubstituted service by e-mail and refused to have recourse to the Service Convention because service under the Service Convention was considered “not practical” due to time delays (see para. 63 of this Annex) or because the Central Authority showed no disposition to act (see para. 60 of this Annex). In yet other cases, courts have ordered service by e-mail in cases involving recipients residing in Contracting States to the Service Convention, without considering the Service Convention (see para. 66 of this Annex).

68. In these cases, where the court refused to have recourse to the Convention or did not consider it, the State of destination (i.e., China, Germany and India, respectively) had objected to the postal channels under Article 10(a) of the Convention and therefore, service by e-mailOfficial was not possible under this channel of transmission (for more information on the conditions of validity, see paras 34 et seq. of this Annex). It is important to bear in mind that the Convention is exclusive and time delays are not a sufficient reason to circumvent the Convention, particularly if no previous attempts have been made under the Convention’s channels of transmission.

For

87 Ibid. at para. 11. 88 Droit de la famille – 12670 (op. cit. note 85 of this Annex). 89 Droit de la famille – 122637 (op. cit. note 85 of this Annex). 90 The Court did not specify if the Service Convention was used in this case. 91 Please note that these cases make no reference to the Service Convention. 190 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 8

(6) Developments in civil law States

69. Some civil law States are also amending their laws and developing systems to enable service by electronic means. These amendments primarily concern domestic cases and typically only apply if the addressee has given his or her prior consent to service by such means. For instance, as part of a broad reform on electronic communications, France introduced amendments to civil procedure laws, inter alia, to allow for the service of documents by electronic means.92 Specifically, these amendments provide that the addressee must give his or her consent to the use of electronic means, unless specific provisions require otherwise.93 In addition, the technical means must guarantee, subject to specific conditions established by decree, the reliability and the identification of the parties engaged in electronic communications, the integrity of the documents transmitted, the security and confidentiality of the communication, and must allow to keep a record of the transmissions made, and to establish with certainty the dates of transmission and receipt of the documents by the addressee.94

70. Following the amendments to the Code of Civil Procedure, French reforms were made in two parts: first, Orders were made to allow for communication by electronic means among lawyers, as well as between lawyers and jurisdictions.95 Secondly, legislation96 Only97 was enacted to allow huissiers de justice to communicate using electronic means ; then on 10 January 2013, the Chambre nationale des huissiers de justice (National Chamber of Judicial Officers) launched the “e-Palais” website (< https://www.e-palais.fr/ >) which is

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92 Decree No 2005-1678 of 28 December 2005 (op. cit. note 15 of this Handbook) introduced new provisions regarding electronic communications in the French Code of Civil Procedure, see Chapter XXI entitled “Communication by electronic means” (Arts 748-1 to 748-7) (French legislation is available at < http://www.legifrance.gouv.fr/ >). 93 Art. 748-2 of the CPC. 94 Ibid., see Art. 748-6. 95 See, Order of 7 AprilOfficial 2009 on the communication by electronic means before the “tribunaux de grande instance”; Order of 5 May 2010 on the communication by electronic means in proceedings without mandatory representation before the courts of appeal; and finally the Orders of 23 December 2010, 30 March 2011 and 20 December 2012 on the communication by electronic means in proceedings with mandatory representation before the courts of appeal [translations by the Permanent Bureau]. 96 See,For Art. 20 of Law No 2010-1609 of 22 December 2010 and the Decree No 2012-366 of 15 March 2012 concerning the Service of Documents of the huissier de justice by Electronic Means and International Service amended several provisions of the Code of Civil Procedure, and Decree No 56-222 of 29 February 1956 modified Adopted for the Purposes of the Ordinance of 2 November 1945 concerning the Status of Huissiers de Justice. See also, the Order of 28 August 2012 regarding the Application of the Provisions of Chapter XXI of the First Book of the Code of Civil Procedure to huissiers de justice [translations by the Permanent Bureau]. 97 This legislation also set out the requirements for giving consent: Art. 9 of Decree No 2012-366 of 15 March 2012 (op. cit. note 96 of this Annex) provides that the addressee must expressly consent to electronic service of documents by electronically submitting a declaration using the model form established by the Chambre nationale des huissiers de justice for that purpose. This declaration must contain: (1) the identity and particulars of the person wishing to receive electronic service of documents and proof of identity; (2) the nature of the acts for which he or she gives his or her consent; (3) the period for which consent is being given; and (4) the form in which consent may be revoked ([translation by the Permanent Bureau]). THE USE OF INFORMATION TECHNOLOGY IN THE OPERATION OF THE SERVICE CONVENTION 191

a secure electronic platform that allows huissiers de justice to serve documents (actes du palais) by electronic means on lawyers and public prosecutors (where a copy of the document is subsequently sent to the court clerks). In addition, huissiers may also use electronic means to effect service on any person on whom a document must be served, in accordance with applicable rules of procedure.

71. “e-Palais” allows for documents to be electronically signed and stamped by the relevant huissier de justice. The platform then alerts the recipient, who can access the documents after entering a login name and password.98 This platform provides, at a minimum, safeguards equal to those provided by personal service of documents in paper form, as it ensures the identity of the parties participating in the transmission by use of a login name and password, as well as the integrity of the documents, and confidentiality of the information exchanged through the secure portal.99 Furthermore, as a defendant must agree and register to be served via the e-portal, this approach addresses concerns of due process and whether the method of communication will provide the defendant with notice of the document.

72. Similarly, Switzerland has revised its Code of Civil Procedure and passed laws on electronic communications to enable service via electronic means, provided that the addressee has given his or her prior consent.100 The Swiss OrdinancesOnly on Electronic Communication within the Framework of Civil and Criminal Procedures, as well as the Debt Collection and Bankruptcy Procedures and on Electronic Transmission in Administrative Procedures, both of which came into force on 1 January 2011, set out the framework for the recognition of secure platforms for electronic communication (incl. service of documents) between parties and authorities. Since July 2013, the Swiss Federal Department of Justice and Police is responsible for the recognition of secure platforms. Use

73. There are several Swiss platforms that have been provisionally recognised for the electronic transmission of documents and messages, including the Swiss Post (referred to as “IncaMail”, available on the website < http://www.incamail.ch >). As part of the technical requirements, platforms should ensure the encrypted and secure

98 Similar platforms have been implemented by the Chambre des huissiers de justice of Quebec, see < https://notabene.huissiersquebec.qc.ca/ >, and by the Ministry of Justice of Spain which has implemented LexNetOfficial (a platform for the secure exchange of information between courts and lawyers); for more information on LexNet, see < https://www.administraciondejusticia.gob.es/ >. Judicial officers have noted that platforms currently in use in Europe facilitate the service of documents and allow significant savings in postal and staff costs. This information was obtained at the EJS (e-justice service of documents) Conference: The dematerialisation of civil procedures in Europe, legal certainty and digital economy, held on 10 October 2013 in Brussels, Belgium. For more information,For see M. Chardon et al. (op. cit. note 16 of this Handbook), pp. 57-70. 99 Art. 748-6 of the CPC. 100 See Art. 139 of the Code of Civil Procedure of Switzerland, (available at < http://www.admin.ch/opc/en/classified-compilation/20061121/index.html > [last consulted on 20 November 2015]), the Ordinance of 18 June 2010 on Electronic Communication within the Framework of Civil and Criminal as well as the Debt Collection and Bankruptcy Procedures (available at < http://www.admin.ch/opc/de/classified-compilation/20100599/index.html > [last consulted on 20 November 2015]), the Ordinance of 18 June 2010 on Electronic Transmission in Administrative Procedures (available at < http://www.admin.ch/opc/de/classified-compilation/20100598/ index.html > [last consulted on 20 November 2015]) and the Regulation of the Federal Tribunal of 5 December 2006 on Electronic Communication with Parties and Lower Courts (available at < http://www.admin.ch/opc/de/classified-compilation/20063299/index.html > [last consulted on 20 November 2015]) [non-official translation of the titles]. It is noteworthy that under Art. 1 of the Regulation of the Federal Tribunal, international treaties prevail concerning electronic communications for service from or to addresses located abroad. 192 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 8

transmission of documents, be able to time-stamp communications between authorities and parties, keep a record of the transmission, and issue receipts. In addition, the platform must be accessible 24 hours a day, seven days a week, and operate in a secure and reliable environment. Like the French platform, the provisionally recognised Swiss platforms provide safeguards at least equal to those provided by personal service.

74. Furthermore, Article 162 of the Spanish Code of Civil Procedure101 permits service by electronic means provided that the court and the addressees have the necessary technical equipment, and the technology used guarantees the authenticity of the document and its contents, the integrity of the communication, and the exact time when the documents were delivered and received by the addressee. In March 2013, the Supreme Court of Spain (civil chamber) upheld service by e-mail on a Spanish resident through a commercial and secure platform in accordance with Article 162 of the Code of Civil Procedure and Law No 59/2003 of 19 December 2003 on electronic signatures. Despite several attempts, the attorney had been unable to serve the addressee through other means.102 The Permanent Bureau understands that this is the first case in which a domestic service via a secure platform has been upheld in a civil law State.

75. A number of civil law States, particularly in Europe, have also amended their laws to allow service by electronic means, including Argentina, Austria,Only Belgium, Brazil, Bulgaria, the Czech Republic, Estonia, Finland, Georgia, Germany, Hungary, Italy, Lithuania, Macedonia, , , Slovakia, Slovenia, and Sweden.103

101 See also, Law 18/2011 of July 2011 on Information and Communication Technologies in the Justice Administration. Use 102 See Spanish Supreme Court, Civil Chamber, 21 March 2013, ATS 2501/2013. In this case, service was effected via the commercial platform Evicertia (available at < https://www.evicertia.com >). This platform allows for documents to be digitally signed and time-stamped; it also retains a copy, and upon request, can issue affidavits. 103 See, e.g., Argentina (Law 26.685 of 2011 and a series of decrees of the Argentinean Supreme Court were passed for the purpose of providing guidelines with regard to electronic filing, electronic address and service by electronic means – see, in particular, Decree No 38/13 of October 2013); Austria (Federal Law on the Service of Official Documents No 200/1982 – Zustellgesetz – provides for service by electronic means under certain circumstances); Belgium (Art. 2281 of the Civil Code provides for service by telegram, fax, e-mail or an equivalent means of communication and Art. 32 of the Judiciary Code allows service by e-mail to the judicial e-mail address, among other methods); Brazil (the Code of CivilOfficial Procedure was amended by Law No 11.419 of December 2006 to allow defendants who have registered with the court to be served electronically, by posting the documents to be served on a web portal); Bulgaria (Art. 42(4) of the Code of Civil Procedure provides for service upon a party at an electronic address); Czech Republic (section 45(f) of the Code of Civil Procedure No 99/1963 Coll. provides for service using modern technology if and when the addressee has explicitly requested such service and provides his e-mail address. An electronic signature is also required. In addition, the Law on Electronic Transactions, Personal Numbers and an authorised ConversionFor of Documents No 300/2008 Coll. regulates delivery to a data box through a public data network); Estonia (section 311(1) of the Code of Civil Procedure provides for the service by electronic means of procedural documents); Finland (service of a trial document other than the writ of summons may be served electronically to the e-mail address or fax number of one of the parties as notified to the court); Georgia (Art. 70(3) of the Code of Civil Procedure allows for a writ of summons to be served by fax, e-mail or similar technology or by judicial officers); Germany (Art. 174 of the German Code of Civil Procedure permits the use of new technologies, subject to the addressee's express consent to the use of such technologies and the addressee's confirmation of receipt); Hungary (Code of Civil Procedure, Act III of 1952, sections 394/A to 394/C provide that in certain types of cases parties may choose to bring a case to court by electronic means. If so, judicial documents will be served electronically on the plaintiff and his or her counsel, and on the defendant if he or she has voluntarily accepted this form of service); Italy (Presidential Decree 2001/123 provides for electronic transmission as a means of effecting service but the bailiff may still serve the document in the conventional way if there are difficulties with electronic transmission); Lithuania (Art. 117 of the Code of Civil Procedure provides for service through telecommunications, provided that THE USE OF INFORMATION TECHNOLOGY IN THE OPERATION OF THE SERVICE CONVENTION 193

(7) Developments in the European Union

76. The possibility of cross-border electronic service among EU Member States is not foreseen in the 2007 EU Service Regulation. As contemplated by Article 24 of that Regulation, the European Commission has conducted a periodic review of the Regulation’s operation, and has proposed amendments for the purpose of dealing, inter alia, with the electronic service of documents, and the establishment of common minimum standards.104 As a result of this review, the European Commission has published a Report on the overall application of the Regulation, concluding inter alia that “[t]he introduction of electronic service as one of the methods foreseen in the Regulation may foster an effective use of technology and could reduce the expense and delays of long distance litigation.”105 The Report further notes that several pilot projects are being carried out for this purpose, in particular “e-Justice Service of Documents”, which is co-funded by the European Union. For more information on this project, see paragraph 21 of this Annex.

77. The above-mentioned proposal is in line with the Stockholm Programme of the European Council – an Open and Secure Europe Serving and Protecting Citizens (for the period 2010-2014) which noted that the “European Council alsoOnly considers that all modern means of electronic communication should be used to the fullest extent, and that the judicial authorities as soon as possible should be given means for secure electronic communications to enable safe correspondence”.106

Use

the addressee has consented); Macedonia (the Code of Civil Procedure has been amended by Law No 110 from 2 September 2008 to allow service of documents by e-mail. Service by e-mail takes place via the judicialOfficial IT system and is transmitted to the addressee’s secure inbox); Montenegro (Montenegrin laws allow service by telefax and e-mail under certain conditions and the Laws on Electronic Signature and on Electronic Document provide the legal framework for this); Romania (Art. 92 of the Code of Civil Procedure sets out the methods of service and includes personal service, postal service, registered or ordinary letter, fax and electronic means); Slovakia (Art. 45 of the Code of Civil Procedure allows for service by electronic means on a party if that party or his legal counsel so requestsFor and provides an address for service by such means. The document is considered served on the fifth day of transmission, even if the addressee did not read it. This method of service does not apply to court decisions, summons or other documents that must be personally served “into own hands”); Slovenia (Art. 141.a of the Civil Procedure Act provides that documents in electronic form can be served in physical form or by secure electronic means); Sweden (§17 of Law 2010:1932 on service of documents provides for service by electronic means by, for example, e-mail or fax). 104 See Roadmap Proposal for a Regulation amending the 2007 EU Service Regulation, available at the following address: < http://ec.europa.eu/governance/impact/planned_ia/docs/2012_just_006_ proposal_service_of_documents_en.pdf > [last consulted on 20 November 2015]. 105 Report on the 2007 EU Service Regulation (op. cit. note 289 of this Handbook). 106 OJEU C 115 of 04.05.2010, IV: Notices from European Union Institutions, Bodies, Offices and Agencies, European Council: The Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens available at the following address: < http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:115:0001:0038:EN:PDF > [last consulted on 20 November 2015], p. 14. 194 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 8

(8) Practical and technical difficulties with allowing service by e-mail

78. As described above, it would appear that common law States effect substituted service of documents by using e-mail services (including Gmail or Yahoo), whereas civil law States tend to use secure platforms for the transmission of documents and often have a statutory requirement that messages be digitally signed.107

79. The greatest concerns regarding service of process by e-mail services are that typically messages sent via a normal e-mail service are unencrypted, may be intercepted by third parties, and can be modified because there is no digital signature to guarantee their inalterability.

80. Another concern is that it is difficult to prove that the defendant actually received the e-mail and attached documents.108 Courts and commentators have noted that because of the inability to confirm whether the intended recipient has received an e-mail message, electronic service may violate a defendant’s right to due process.109 However, common law courts have resolved due process concerns by finding that where e-mail is the defendant’s sole or preferred means of communication, service by e-mail provides the most reasonable method of service to give the defendant noticeOnly of the action.110

81. Some commentators also argue that if a defendant sees an e-mail from an address with which s/he is unfamiliar, it is possible that the defendant will treat it as junk mail and simply delete it.111 In addition, some e-mail services automatically filter e-mail messages to remove spam, and sometimes valid e-mails are sent automatically to the spam folder. However, it would be harder for a defendant to argue that an e-mail was treated as junk and automatically filtered into a spam folderUse if that defendant had previous e-mail dealings with the plaintiff. In such a case, the plaintiff’s address should have been removed from the e-mail service’s junk mail algorithm. Another criticism is that file formats are not consistent and not all computers are capable of reading the same files.

107 As indicated above, it should be noted that common law States have permitted cross-border service by e-mail, while civilOfficial law States have not yet done so. 108 For instance, a court in the United States assumed that an e-mail had reached the defendant when it did not bounce back. See Chanel, Inc. v. Zhixian, 2010 WL 1740695 (S.D. Fla. 2010). To ensure receipt of an e-mail, a plaintiff can use a number of tracking and receipt methods. A plaintiff can use free online services to automatically track receipt of an e-mail (known as “e-mail tracking”). When the defendant opens an e-mail containing service of process, an automatic confirmation is sent to theFor plaintiff. Another method is to use Microsoft Outlook Express or another e-mail client program and request a “read receipt”. The sender selects the receipt request option prior to sending the message, and then upon receipt, each recipient has the option of notifying the sender that the message was received and / or read by the recipient. However, not all e-mail applications or services support read receipts, and the recipient can choose not to send the receipt when reading the e-mail. A delivery status notification (DSN) is another kind of receipt. A request is made to the recipient’s e-mail server to send to the sender a notification about the delivery of the e-mail. The notification is an e-mail which tells the sender if the delivery succeeded, failed, was delayed, or if any e-mail server involved was unable to give you a receipt. See R.J. Hedges, K.N. Rashbaum & A.C. Losey (op. cit. note60 of this Annex), pp. 63 and 71-72; M.R. Schreck (op. cit. note 73 of this Annex), pp. 1134-1140. 109 C.T. Kotuby, Jr. (op. cit. note 37 of this Annex), p. 119. 110 See In re Int'l Telemedia Associates, Inc. (op. cit. note 49 of this Annex), at 719; U.S. Commodity Futures Trading Commission v. Rubio (op. cit. note 65 of this Annex). 111 M.R. Schreck (op. cit. note 73 of this Annex), pp. 1136-1139. THE USE OF INFORMATION TECHNOLOGY IN THE OPERATION OF THE SERVICE CONVENTION 195

However, at the present time, file formats have largely been standardised to Word, PDF, or RTF, and most computers are capable of reading these formats. Although there are certainly exceptions, concerns about incompatible files are not sufficient grounds to dismiss service of process via e-mail altogether.

82. On the other hand, secure platforms for the transmission of messages would seem to allow for the secure transmission of messages. Messages sent through these platforms are encrypted and bear a digital signature. In addition, these platforms prevent third parties from intercepting messages, allow for the identification of the sender, and issue an indisputable proof that the message has been sent and received. For more information on secure platforms, see section D of this Annex.

e) International and domestic developments in service by social networking sites, message board, Internet and text messages

83. With the increasing popularity and use of Facebook and social networking sites as methods of instantaneous online communication, some common law courts have considered, and granted, applications for alternative and substitutedOnly service by Facebook, Twitter and online message boards. Similar to decisions authorising service by e-mail, courts have considered whether traditional methods of service have been used as well as the evasiveness of the defendant and whether this type of service will bring the documents to the attention of the defendant in a timely manner (see section D of this Annex). To date, service of documents by Facebook and other social networking sites has been primarily permitted for domestic defendants and in conjunction with other types of service. Use

(1) Facebook

84. One of the first known cases where a court ordered service by Facebook, was a case involving domestic service before the Supreme Court of the Australian Capital Territory (Australia) in 2008.112 A mortgage lender obtained a default judgment against two defendants after the lender had made a number of unsuccessful attempts to contact the defendants at their residence and via e-mail. The Court ordered service of a foreclosure noticeOfficial on the defendants by way of message on the defendants’ Facebook pages with the legal documents attached, and by leaving a sealed copy of the Order of default judgment at the defendants’ last known addresses.113

112 MKMFor Capital Property Ltd v. Corbo and Poyser SC608/2008 (ACT, Australia, per Master Harper) (Australia). The case was reported in the Australian media and referred to in the Australian Attorney- General’s Department’s Discussion Paper, “Reducing legal complexity of cross-border transactions and relationships: Driving micro-economic reform through the establishment of more cohesive and clearer jurisdictional, applicable law and choice of court rules”, included in Annex 1 of A. Dickinson et al. (ed)., Australian Private International Law for the 21st Century, Facing Outwards, Oxford and Portland, Oregon, Hart Publishing, 2014, p. 241. The decision is also mentioned in A. Shultz, “Superpoked and Served: Service of Process via Social Networking Sites”, (2009) 43 U. Rich. L. Rev. 1497, pp. 1497-1498 (the author acknowledged that the limitations of Facebook are “more severe than those associated with e-mail” and mentions the absence of the confirmation of receipt feature in Facebook). 113 Another case in which service was effected by way of Facebook: Byrne & Howard (op. cit. note 49 of this Annex) (ordering service of a child support and parentage testing application by Facebook and other electronic means on a domestic defendant based on the fact that it was impracticable to personally serve documents on him. Shortly after service was effected, the defendant took down 196 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 8

85. Following this novel decision, a number of other courts have since permitted service by Facebook as a means of substituted service. In 2009, Master Breitkreuz of the Court of Queen’s Bench of Alberta (Canada)114 ordered substituted service of the statement of claim on one of multiple defendants by sending a notice of the action to the Facebook profile of the defendant, by publishing a notice in a newspaper circulated daily in Edmonton Alberta, and also by forwarding a copy of the statement of claim and notice to the human resources department of the defendant’s former employer.115 This was the first domestic case in Canada in which a court allowed service by Facebook.116

86. A case before the Hastings County Court (England and Wales) in 2011 is the first known case where an English court has permitted service by Facebook.117 The Court authorised substituted service by Facebook on a domestic defendant on the proviso that attempts to personally serve the defendant were unsuccessful by a specific date. Having been unable to effect personal service, the solicitor sent a private message to the defendant’s Facebook page. Within approximately 20 minutes of posting the message, the defendant replied to the solicitor, acknowledging receipt.118 Whilst this was an interesting ruling, decisions made in the county courts are generally not binding on any other courts in future cases.

87. A year later, in England and Wales, Justice Teare in the High CourtOnly119 granted permission for a claim to be served by Facebook. The case involved a claim against TFS Derivatives

his site which signalled that the proceedings had been brought to his attention. The plaintiff presented a copy of the public entry of the defendant on Facebook which had a photograph of him, as well as his profile and Facebook friends, and wasUse able to establish that the defendant uses Facebook regularly. The court noted that while this course was “unusual”, it was “demonstrative of social movements and the currency of the times”). 114 Knott v. Sutherland (5 February 2009), Edmonton 0803 02267 (Alta. Q.B.M.) (Canada) (a copy of this decision is on file with the Permanent Bureau). 115 Following this decision, other Canadian courts have ordered service by Facebook: 1280055 Alberta Ltd v. Zaghloul, 2012 ABQB 10 (ordering service ex juris and substituted service by e-mail and Facebook private messaging on the defendant) and Juzytsch v. Terlecki (in a paternity action, the Court considered if certain conditions had been met in order to grant a motion for substituted service by Facebook, namely whether the whereabouts of the defendant were unknown despite diligent investigation, whether the Facebook profile belonged to the defendant and whether the person was an active user of that social network) (Ontario Superior Court of Justice, unreported, 7 January 2014, a copy of this decisionOfficial is on file with the Permanent Bureau). Quebec has also allowed service by Facebook in Boivin & Associés v. Scott, 2011 QCCQ 10324, para. 5 and Droit de la famille – 111764, 2011 QCCS 3120; Droit de la famille – 132630, 2013 QCCS 4707 (CanLII) (ordering service by post, e-mail and Facebook on a defendant residing in the United Arab Emirates). 116 One month later, Associate Justice Gendall of the Wellington High Court (New Zealand) ruled that substituted service by e-mail could be made on an overseas defendant. The Court further instructed thatFor a notification of e-mail service be made through the defendant’s Facebook. Axe Market Gardens Limited brought a claim against its minority shareholder, Craig Axe, for allegedly embezzling a considerable amount from the company’s account. Mr Axe was residing in England and the plaintiff company had experienced difficulty in locating, and serving, Mr Axe. He had corresponded via e-mail and was also known to have a Facebook page. This is the first case in which a New Zealand court has allowed a notification of e-mail service via Facebook. It should be noted that this is distinct from the situation in which substituted service is effected via Facebook as the sole means of service. See Axe Market Gardens Ltd v. Axe CIV-2008-485-2676, High Court Wellington, 16 March 2009 (New Zealand) (a copy of this decision is on file with the Permanent Bureau). 117 Williams v. Dew, Hastings County Court (31 January 2011), Claim Number 0HS00670 (United Kingdom) (a copy of this decision is on file with the Permanent Bureau). 118 Subsequently, the solicitor swore an affidavit confirming that service was made and attaching inter alia a copy of the Facebook page showing that the e-mail had been sent at a specific time and date. 119 AKO Capital LLP & Another v. TFS Derivatives & Others (unreported), High Court, 17 February 2012 (United Kingdom). THE USE OF INFORMATION TECHNOLOGY IN THE OPERATION OF THE SERVICE CONVENTION 197

in respect of commission charges, for which TFS Derivatives sought to join a former employee to the action by serving a claim form upon him. The claim form had been served at the employee’s last known address, but it was not known whether he still resided there. The lawyers for TFS had to prove to the Court that the Facebook account belonged to the employee. The lawyers presented evidence of the number of Facebook friends he had who were also former employees of TFS, and that his Facebook page was regularly accessed by him. Justice Teare held that there was adequate evidence to persuade him that the Facebook account belonged to the employee and orders for service by Facebook were granted. The relevant documents were sent as PDF attachments to a message, via the employee’s Facebook page.

88. More recently, in 2013, the Federal District Court for the Southern District of New York (United States) allowed service by Facebook as a supplemental means of e-mail service on defendants residing in India.120 The plaintiff had attempted to serve documents on the defendants via the Indian Central Authority under the Service Convention but was unsuccessful. In addition, India has objected to the alternative channels of transmission provided for by the Convention and therefore, service via postal channels was not possible in this case. The defendants, however, were made aware of the proceedings through informal communications of the plaintiff, as evidenced by their appearance through counsel. The Court acknowledged that service by FacebookOnly is a novel concept and that it is possible that defendants will not in fact receive notice by this means. The Court concluded that service by e-mail and Facebook satisfied the due process inquiry because the defendants ran an online business, communicated with customers via e-mail, and advertised their business on Facebook pages. While the Court expressed doubt as to whether Facebook alone would satisfy due process, it did not have to resolve this issue.121 Use 89. In general, courts have exercised caution when permitting requests for service by Facebook. On several occasions, courts have held that service by way of a social networking site is not an acceptable means of service in cases where it will not bring the documents to the attention of the defendant in a timely fashion. In Flo Rida v. Mothership Music Pty Ltd., the New South Wales Court of Appeal (Australia) set aside a decision allowing service by Facebook.122 Although the Court of Appeal did not reject the use

120 F.T.C. v. PCCare247 Inc. (op. cit. note 75 of this Annex). 121 See also, Baidoo v. BloodOfficial-Dzraku, 5 N.Y.S.3d 709 (N.Y. Sup. Ct. 2015), where a state court granted permission to serve the defendant solely via Facebook, holding that service by such a networking site, albeit novel and non-traditional, if certain procedures were followed, was reasonably calculated to provide notice and thus would comport with due process considerations under the circumstances of that case. In this regard, it is noteworthy that a legislature in a US state (Texas) will consider a bill that would allow substituted service of citation through social networking sites, such as Facebook andFor Twitter. House Bill “HB 1989”, introduced by Representative Mr Leach, proposes to allow substituted service in Texas through a social media website if a court finds that (1) the defendant maintains a social media page on that website; (2) the profile on the social media page is the profile of the defendant; and (3) the defendant regularly accesses the social media page account and the defendant’s account. On 5 March 2013, the bill was referred to the Judiciary & Civil Jurisprudence Committee of the Texas Legislature. For more information, see the website of the Texas Legislature Online at < http://www.capitol.state.tx.us/Home.aspx > [last consulted on 20 November 2015]. 122 Flo Rida v. Mothership Music Pty Ltd [2013] NSWCA 268. The case concerned a rap music artist from the United States who was contracted to perform at a festival in New South Wales (Australia) but failed to appear. As a result, the organisers sued the artist and his management agent. After several unsuccessful attempts to effect personal service, the plaintiff requested substituted service on the defendants through Facebook, request which was granted by the District Court in Mothership Music Pty Ltd v. Darren Ayre (trading as VIP Entertainment & Concepts Pty Ltd.) and Flo Rida (also known as Tramar Dillar) (No 2) [2012] NSWDC 111. The Court of Appeal however reversed this decision on jurisdictional grounds. 198 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 8

of Facebook as a means of substituted service, it did find that, in the circumstances of the case, the use of Facebook would not bring notice to the defendant in a timely manner given that it had not been demonstrated that the Facebook page was in fact that of the defendant. However, it should be noted that the thrust of the decision focused on the limitations to the jurisdiction of the District Court.

(2) Twitter

90. In an unreported decision in 2009, the High Court (England and Wales) became the first court to authorise service of documents through Twitter.123 The Court allowed the plaintiff to serve an injunction against an anonymous Twitter user who had been posing as the plaintiff through a Twitter account by using plaintiff’s photo and links to his blog. The order demanded the person to reveal his or her identity and to stop posing as the plaintiff. Because of the 140-character limit of the messages in Twitter, the order was served by a direct message containing a link to the injunction.

(3) Message Board Only

91. The first reported case where a court ordered service by an online message board was a case involving defamation before the Supreme Court of British Columbia (Canada) in 2013.124 Defendants posted allegedly defamatory messages on different message boards against the plaintiff. Considering that the plaintiff did not know the identity of the defendants or where they were located, theUse Court ordered service to be effected via the message board, as it was reasonably likely that notice of the proceedings would come to their attention by using this method. The Court also ordered that a similar notice be published in one edition of a national Canadian newspaper.

(4) Other electronic means

92. Service by other electronic means, such as uploading a webpage on the Internet, SMS messages, or posting a message on LinkedIn, is rare, or at least it has not been used in the States researchedOfficial in this Annex.

93. In Liberty Media Holdings, LLC v. Sheng Gan,125 the Federal District Court for the District of Colorado (United States) denied a request to serve documents through the Internet. The plaintiff sought service by publication on a webpage on the Internet pursuant to Fed. R. Civ. Pro. 4(f)(3). The plaintiff suggested creating a website on the Internet with the Forname of the case, the name of the defendant and an announcement of the lawsuit with attached PDF links to the complaint and summons. The Court cited the two requirements for the application of Rule 4(f)(3), and found that as the defendant’s address was unknown, the Service Convention did not apply, and the alternate means of service was therefore not prohibited by international agreement. The Court found

123 Blaney v. Persons Unknown (October 2009). Cited by several website articles: L. Bylett, “You’ve Been Served – by Facebook? How do you ‘like’ that?” (2012), Rawlinson Butler LLP website (a copy of this article is on file with the Permanent Bureau); The Telegraph, “High Court serves injunction via Twitter”, available at < www.telegraph.co.uk > [last consulted on 20 November 2015]. 124 Burke v. John Doe, 2013 BCSC 964. 125 2012 WL 502265 (D. Colo. 2012). THE USE OF INFORMATION TECHNOLOGY IN THE OPERATION OF THE SERVICE CONVENTION 199

that the plaintiff’s proposal to serve the defendant via Internet publication failed to comply with constitutional notions of due process, specifically, there was no indication that the defendant was independently aware of the litigation and there was no reasonable assurance that the publication would be likely to reach the defendant. The Court found that “no matter how technologically sophisticated [the defendant] may be, no individual can have a full mastery of the entire [I]nternet. The [I]nternet is nearly infinite in nature”.126

94. A commentator has argued that text messages “offer the ability to serve process on individuals efficiently and cost-effectively” but has acknowledged its limitations and notes that as the technology currently stands, it would be difficult to use text messages because of their informality, lack of acknowledgment of receipt and the inability to attach documents.127

(5) Conclusions: Developments regarding service by social networking sites, message board, Internet and text messages

95. It would appear that in all but one case decided in common law StatesOnly where service by social networking sites or online message boards was permitted, the Service Convention did not apply. These cases either concerned a domestic recipient and / or the whereabouts of the defendant were not known.

f) International and domestic developments in service by fax Use

96. Many States have passed laws allowing service by fax. For instance, a large number of European States permit service by fax under their civil procedure laws.128 Likewise, a growing number of states of the United States (in particular California, Illinois, Idaho, New York,129 Oregon, and Washington) are contemplating service by fax.130 In addition, the Rules of Civil Procedure of all Canadian jurisdictions allow service by fax within their territory when certain conditions are met.131

97. Moreover, it should be noted that fax technology is evolving. Since approximately 1999, it has been possible to send and receive faxes to / from an e-mail account using a computer or mobileOfficial device. Therefore, many of the practical and technical difficulties with allowing service by e-mail described in paragraphs 78 et seq. of this Annex may also apply to service by fax. A few cases on service by fax are included below. For

126 Ibid., at 3. 127 See C.M. Specht (op. cit. note 60 of this Annex), pp. 1964-1965. 128 For more information, see paras 69 et. seq. of this Annex. 129 Before the procedural law of the state of New York was amended to allow service by fax, a New York court had considered that service of a procedural order by means of fax on a party residing in the state was valid, Calabrese v. Springer Personnel, 534 N.Y.S.2d 83 (N.Y. Civ. Ct. 1988). 130 See US response to the 2008 Questionnaire (Question 60) and D.A. Sokasits, “The Long Arm of the Fax: Service of Process Using Fax Machines”, (1990) 16 Rutgers Computer & Tech. L.J., p. 531, pleading in favour of general use (in the U.S. at least) of fax for service. 131 To access the rules of civil procedure of Canadian jurisdictions, visit the website < www.canlii.org >. 200 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | ANNEX 8

98. In Molins plc v. GD SpA.,132 the English Court of Appeal (Civil Division) allowed the appeal and set aside the order of a first instance court on the basis that service by fax authorised by an Italian court on a person in the United Kingdom was invalid. In this case, the defendant requested the English court to stay proceedings, alleging lis alibi pendens because proceedings had been commenced in Italy, and the plaintiff in the UK proceedings had already been served by fax. The Court noted that such service did not comply with the English Civil Procedure Rules, and therefore with the Service Convention.133 For service by fax to be effective, the recipient must indicate in writing that he or she is willing to accept service by such means and provide a fax number to be used for this purpose. The Court noted that the inclusion of a fax number in a heading on writing paper does not amount to acceptance to service by fax. As a result, and in accordance with Article 21 of the 1968 Brussels Convention, the Court refused to stay the proceedings in England and considered that the Italian court was not seised of the cause of action because the relevant documents were not properly served on the plaintiff.134

99. The cases mentioned above suggest that a functional and evolving interpretation of Article 10(a) allows for the use of fax under that provision. It has to be stressed, however, that service under Article 10(a) is allowed only if service by fax is allowed by the law of the State of origin, and all the conditions imposed by that law forOnly service by fax have been met, and the State of destination has not objected to the use of Article 10(a) (see paras 256 et seq. of this Handbook).

g) Other issues regarding service by electronic means

Use (1) Clauses in contracts for service by electronic means

100. An issue that has arisen is whether parties may include in their contract a clause for service, whereby they agree that a judicial or extrajudicial document can be served on either of them by electronic means.135 While State practice differs on this point,

132 Court of Appeal (Civil Division), [2000] C.L.C. 1027. 133 This case took place Officialbefore the 2000 EU Service Regulation entered into force on 31 May 2001. 134 In support of this judgment see the domestic case: Andrew Brown & Others v. Innovatorone Plc & 7 Others, [2009] EWHC 1376 (Comm) (noting that in order to effect service on the defendant’s solicitor by fax under the amended 2008 Civil Procedure Rules Part 6 and the new Practice Direction A, the claimants must be informed that the solicitors are acting on behalf of the defendants and are authorised to accept service). 135 In Forthe United States a similar outcome could be achieved by means of a waiver of service, whereby a defendant waives service from the plaintiff (see Fed. R. Civ. Pro. 4(d)). Instead of sending a summons to the defendant, the plaintiff sends the defendant (by postal channels or any other appropriate means) a document entitled waiver of service. By that document, the form and contents of which are determined by law, the plaintiff informs the defendant that action has been brought before a specific court. The defendant may refuse or accept this document. If accepted, the defendant must return the form to the plaintiff. The period is 30 days if the document is received in the United States, and 60 days if received abroad. Acceptance of the waiver of service by the defendant releases the plaintiff from the duty to serve a summons on the defendant. Acceptance of the waiver of service does not deprive the defendant of the right to deny the court’s jurisdiction. In addition, acceptance does not hold periods of limitation in abeyance and may not be used as the basis for judgment by default. If the defendant refuses the waiver of service, the summons is to be served by ordinary channels. In wholly domestic litigation, a defendant who loses the lawsuit and who refused to waive service may be taxed the costs of effecting service. That particular provision, however, does not apply in litigation involving a foreign party: the provisions for shifting the expenses of service to a defendant THE USE OF INFORMATION TECHNOLOGY IN THE OPERATION OF THE SERVICE CONVENTION 201

some Contracting States to the Convention allow parties to enter into such clauses. More specifically, some common law jurisdictions have adopted regulations (e.g., rules of court) allowing parties to a contract to agree on a method of service.136 In order to be valid, the method of service must comply with the relevant legislation which may, for instance, require that if applicable the Service Convention be used when serving documents in other Contracting States.137 The 2003 Questionnaire invited the States Parties to inform the Permanent Bureau whether they would consider such clauses to be valid under their domestic laws. Only a few States138 answered in the affirmative, subject in most cases to compliance with certain requirements.139 Moreover, the 2008 Questionnaire inquired how likely it was for a Contracting State to recognise and enforce such clauses. A few States140 advised that it was likely or very likely that they would recognise and enforce such a clause, while many have indicated that it is very unlikely. For more information on such clauses, see paragraph 49 of this Handbook.

101. The Appellate Division of the New York Supreme Court (United States) held that the requirements of the Service Convention could be waived by contract and upheld the validity of service by e-mail upon the defendant while residing in the Netherlands. In this case, the defendant had entered into an agreement which contained a provision waiving personal service of process and authorising service of notices, demands, requests or other communications by e-mail at two specified e-mailOnly addresses. It further noted that holding otherwise would allow people to unilaterally negate their clear and unambiguous written waivers of service by leaving the country.141

Use

that declines to waive service apply only if the plaintiff and defendant are both located in the United States. The Commission of the 1999 Geneva Roundtable did not have time to consider in detail the various aspects of waiver of service. One may argue, however, that the sending of a request for a waiver of service by electronic means is all the more justified since it is not in fact a judicial document, but a mere communication transmitted to the defendant. This view is supported by the Advisory Committee notes to Fed. R. Civ. Pro. 4(d): “It is hoped that, since transmission of the notice and waiver forms is a private non-judicial act, does not purport to effect service, and is not accompanied by any summons or directive from a court, use of the procedure will not offend foreign sovereignties, even those that have withheld their assent to formal service by mail or have objected to the ‘service-by-mail’ provisions of the former rule. Unless the addressee consents, receipt of the request under the revisedOfficial rule does not give rise to any obligation to answer the lawsuit, does not provide a basis for default judgment, and does not suspend the statute of limitations in those states where the period continues to run until service.” (Fed. R. Civ. Pro. 4(d), 1993 Notes of Advisory Committee, para. 20). 136 This is the case in several Canadian jurisdictions, e.g., Rule 11.3 of the Alberta Rules of Court (op. cit. note 52 of this Annex), Rule 4-5(7) of the Supreme Court Civil Rules of British Columbia, BC RegFor 168/2009, Rules 28.1 and 36 of the Supreme Court of the Northwest Territories, NWT Reg 010-96, and Rules 11 (5) and (6) and 13 (9) and (10) of the Rules of Court of Yukon, OIC 2009/65 (2009) Y Gaz II 27. 137 Ibid., e.g., Rules 11.3(2) and 11.26 of the Alberta Rules of Court (op. cit. note 52 of this Annex). 138 This is the case for Germany, Canada (Alberta), China (Special Administrative Region of Hong Kong), the United States and Ireland. 139 E.g., only agreements relating to the service of extrajudicial documents may be accepted. 140 These States were Bulgaria, France, Latvia, Norway, Slovakia, the United Kingdom and the United States. In some Canadian jurisdictions, the rules of civil procedure would give effect to such clauses only where service is to be effected within the jurisdiction in which the rules apply, whereas in other Canadian jurisdictions, the rules of civil procedure would also give effect to such clauses for service abroad. Canadian courts have thus far not had the opportunity to rule on the interaction between these rules and the Service Convention. 141 Alfred E. Mann Living Trust v. ETIRC Aviation S.A.R.L., 910 N.Y.S.2d 418 (N.Y. App. Div. 2010). Only Use

Official For

Bibliography

Please note that the list below is not comprehensive. The books and articles listed are not necessarily cited in the body of the Handbook.

Conférence de La Haye de droit international privé / Hague Conference on Private International Law: Only

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-- Protocole Final, in Actes de la Quatrième Conférence de La Haye pour le droit international privé (16 mai – 7 juin 1904), The Hague, Van Langenhuysen Frères, 1904, p. 205 [in French only].

-- Propositions relatives à la procédure civile, in Documents relatifs à la Quatrième Conférence de LaOfficial Haye pour le droit international privé, The Hague, Van Langenhuysen Frères, 1904, p. 2 [in French only].

-- Projet de Convention relative à la procédure civile, in Actes de la Septième session tenue du 9 au 31 octobre 1951, Tome I, The Hague, Imprimerie Nationale, 1952, p. 390 [in French only]. For -- Projet de Convention relative à la procédure civile, in Documents relatifs à la Septième session tenue du 9 au 31 octobre 1951, Tome II, The Hague, Imprimerie Nationale, 1952, p. 61 [in French only].

-- Note du Secrétaire général sur un mémoire de l’Union internationale des huissiers de justice et officiers judiciaires relatif à la signification d’actes à l’étranger, Preliminary Document of September 1960, in Actes et documents de la Neuvième session (1960), Tome I, Matières diverses, The Hague, Imprimerie Nationale, 1961, p. 165 [in French only].

204 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | BIBLIOGRAPHY

-- Procès-verbal de la séance plénière du 25 octobre 1960, in Actes et documents de la Neuvième session (1960), Tome I, Matières diverses, The Hague, Imprimerie Nationale, 1961, p. 177 [in French only].

-- Actes et documents de la Dixième session (1964), Tome III, Notification, The Hague, Imprimerie Nationale, 1965.

-- Procès-verbal No 3, Proposal Puhan, in Actes et documents de la Dixième session (1964), Tome III, Notification, The Hague, Imprimerie Nationale, 1965, p. 167 [in French only].

-- Procès-verbal No 8, in Actes et documents de la Dixième session (1964), Tome III, Notification, The Hague, Imprimerie Nationale, 1965, p. 254 [in French only].

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-- Rapport de la Commission spéciale, by V. TABORDA FERREIRA, in Actes et documents de la Dixième session (1964), Tome III, Notification, The Hague, Imprimerie Nationale, 1965, p. 74 [in French only]. Only

-- Mémoire sur la notification des actes judiciaires et extrajudiciaires à l’étranger, by G.A.L. DROZ, Document préliminaire No 2 d’octobre 1963, in Actes et documents de la Dixième session (1964), Tome III, Notification, The Hague, Imprimerie Nationale, 1965, p. 11 [in French only].

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-- Final Act of the Fourteenth Session, in Actes et documents de la Quatorzième session (1980), Tome I, Miscellaneous matters, Recommendation G, The Hague, Imprimerie Nationale, 1982, p. I-67.

-- Recommendation adopted by the Fourteenth Session October 25th, 1980, in Actes et documents de la Quatorzième session (1980), Tome IV, Judicial co-operation, The Hague, Imprimerie Nationale,Official 1983, p. 339.

-- Report on the work of the Special Commission on the operation of the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (21 – 25 November 1977), in Actes et documents de la Quatorzième session (1980), Tome IV, Judicial co-operation, The Hague, Imprimerie ForNationale, 1983, p. 380 (also available on the Hague Conference website).

-- Diplomatic Sessions of the Hague Conference on private international law, 1893-1993, in Proceedings of the Seventeenth Session (1993), Tome I, Second Part, Centenary, The Hague, SDU Publishers, 1995, p. 65.

-- Report of the Special Commission, by P. NYGH and F. POCAR, in Proceedings of the Twentieth Session (2005), Tome II, Judgments, Cambridge/Antwerp/Portland, Intersentia, 2013, p. 207 (also available on the Hague Conference website).

-- 2003, 2008 and 2013 Questionnaires on the Service Convention, synopses and/or summary of responses (for more information see Glossary) (available on the Hague Conference website). BIBLIOGRAPHY 205

-- Conclusions on the Most Important Points Considered by the Special Commission, (1990) RabelsZ, p. 370.

-- Report on the work of the Special Commission of April 1989 on the operation of the Hague Conventions of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (available on the Hague Conference website, also published in I.L.M. 1989, p. 1561).

-- Report of the Geneva Roundtable (Commission V - Service abroad), which took place on 2-4 September 1999. This Report forms part of Preliminary Document No 7 of April 2000 (“Electronic Data Interchange, Internet and Electronic Commerce”) for the attention of the Special Commission of May 2000 on General Affairs and Policy of the Conference, prepared by C. KESSEDJIAN, Deputy Secretary General (available on the Hague Conference website).

-- Conclusions & Recommendations adopted by the 2003, 2009 and 2014 meetings of the Special Commission (available on the Hague Conference website). Only -- Conclusions & Recommendations adopted by the Workshop on the Hague Service Convention, which took place on 28 November 2011 in Mexico City (available on the Hague Conference website).

-- Practical Handbook on the Operation of the Evidence Convention, 3rd ed., The Hague, 2016. Use

* * *

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STORSKRUBB, E., Civil Procedure and EU Law: A Policy Area Uncovered, Great Britain, Oxford University Press, 2008. Official STRAUSS, D.A., Kreimerman v. Casa Veerkamp, S.A. De C.V.: The Fifth Circuit Severely Limits the Scope of the Inter-American Convention on Letters Rogatory, (1995) 3 Tul. J. Int’l & Comp. L., p. 249.

STRUYCKEN, A.V.M., Betekening van gerechtelijke stukken in het buitenland, Met recht verkregen.For Bundel opstellen aangeboden aan mr. Ingrid S. Joppe, Kluwer, Deventer, 2002, p. 185.

-- De betekening aan een persoon die in het buitenland is gevestigd, (1979) 30 Het Personeel Statuut, p. 74.

-- De betekening van de dagvaarding in echtscheidingsprocedures tegen personen van Duitse nationaliteit, (1978) 29 Het Personeel Statuut, p. 66.

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SWITZERLAND, FEDERAL DEPARTMEMT OF JUSTICE AND POLICE / OFFICE OF JUSTICE, Message concernant la ratification de quatre instruments internationaux relatifs à l’entraide judiciaire en matière civile et commerciale, du 8 septembre 1993, FF 1993 III 1261, offprint (references are to the page numbers of the offprint).

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TOMUSCHAT, C., Grundrechtsfestung Deutschland? (zu BVerfG, 7.12.1994 – 1 BvR 1279/94, unten S. 112, Nr. 10a, und BVerfG, 10.1.1995 – 1 BvF 1/90, 1 BvR 342/90 und 348/90, unten S. 115, Nr. 10b), (1996) 16(2) IPRax, p. 83.

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Only Use

Official For Only Use

Official For

Index of cited case law

Figures refer to page numbers.

Australia Australian Competition and Consumer Commission v. Chaste Pty Ltd [2002] FCA 1183 ...... Only 184 Australian Competition and Consumer Commission v. Yellow Page Marketing BV [2010] FCA 1218 ...... 184 Bell v. Steele [2011] FCA 1390 ...... 33 Bellingen Shire Council v. Lamir-Pike [2010] NSWLEC Use195 ...... 184 Byrne & Howard [2010] FMCAfam 2009 ...... 178, 192 Caswell v. Sony/ATV Music Publishing (Australia) Pty Ltd [2012] NSWSC 986 ...... 22, 29, 38 CSR Ltd v. Cigna Insurance Australia Ltd (1997) 189 CLR 345, 392 ...... 73 Davenport & Rattray [2012] FMCAfam 1097 ...... 16, 22 Electrolux Home Products Pty Ltd v. Delap Impex Ltd [2013] FCA 600 ...... 178, 184 Ellen G. White Estate, Inc. v. Knudson [2013] FCA 378 ...... 184 Flo Rida v. Mothership Music Pty Ltd [2013] NSWCA 268 ...... 194 Gloucester (Sub-HoldingsOfficial 1) Pty Ltd v. Chief Commissioner of State Revenue [2013] NSWSC 1419 ...... 16 Int’l Maritime Services Pty Ltd v. PDG SNA Tuhaa Pae [2013] FCA 92 ...... 10 KerryJ Investment Pty Ltd v. Xiamen Fengwei Energy Technology Co. [2013] FCA 141For ...... 184, 185 MKM Capital Property Ltd v. Corbo and Poyser SC608/2008 (ACT, Australia, per Master Harper)...... 192 Mothership Music Pty Ltd v. Darren Ayre (trading as VIP Entertainment & Concepts Pty Ltd) and Flo Rida (also known as Tramar Dillar) (No 2) [2012] NSWDC 111 ...... 194 Schneider v. Caesarstone Australia Pty Ltd [2012] VSC 126 ...... 16, 29 Specsavers Pty Ltd v. Buyinvite Pty Ltd [2012] FCA 230 ...... 184

224 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | INDEX OF CITED CASE LAW

Canada 1280055 Alberta Ltd v. Zaghloul, 2012 ABQB 10 ...... 193 Boivin & Associés v. Scott, 2011 QCCQ 10324, para. 5 ...... 193 Burke v. John Doe, 2013 BCSC 964 ...... 195 Commission des droits de la personne et des droits de la jeunesse v. Tobin, 2012 QCTDP 3 (CanLII) (Quebec) ...... 185 Droit de la famille – 111764, 2011 QCCS 3120 ...... 193 Droit de la famille – 122637, 2012 QCCS 5095 (CanLII) (Quebec) ...... 185 Droit de la famille – 122813, 2012 QCCS 4910 (CanLII) (Quebec) ...... 185 Droit de la famille – 12670, 2012 QCCS 1225 (CanLII) (Quebec) ...... 185 Droit de la famille – 132630, 2013 QCCS 4707 (CanLII) ...... 193 Gray v. SNC-Lavalin Group Inc., 2012 ONSC 3735 ...... 8, 16 Holland v. Holland, 2011 ABQB 359 (Alberta) ...... 185 Integral Energy & Envtl. Eng’g Ltd v. Schenker of Canada Ltd., (2001) 293 OnlyA.R. 233, 2001 WL 454163 ...... 89 Juzytsch v. Terlecki, Ontario Superior Court of Justice, unreported, 7 January 2014, a copy of this decision is on file with the Permanent Bureau ...... 193 Khan Resources Inc. v. Atomredmetzoloto JSC, 2013 ONCA 189 ...... 22, 38 Knott v. Sutherland (5 February 2009), Edmonton 080Use3 02267 (Alta. Q.B.M.) ...... 193 LeBlanc v. Whitman, 2005 ABQB 568 ...... 178 LLS America LLC (Trustee of) v. Grande, 2013 BCSC 1745 ...... 86 Manson v. Doe, 2011 ONSC 4663 (CanLII) (Ontario) ...... 185 Metcalfe Estate v. Yamaha Motor Powered Products Co., Ltd, 2012 ABCA 240 ...... 22, 38 Mitchison v. Zerona Int’l Inc., 2014 ONSC 4738 ...... 96 Pharm Canada Inc. v. 1449828 Ontario Ltd (c.o.b. Trinity Worldwide Services Inc.), 2011 ONSC 4808 ...... 22 Pitman v. Mol, 2014 ONSCOfficial 2551 ...... 22, 95 Saputo Inc. v. Petkov, 2012 QCCS 2679 (CanLII) (Quebec) ...... 185 Unibéton, division de Ciment Québec Inc. v. Construction Express Inc., 2012 QCCQ 7394 (CanLII) (Quebec) ...... 185 Y.H. v.For H.L., 2003 CanLII 27840 (QCCS) (Quebec) ...... 185 Zaniewicz v. Yungui Haixi Corp., 2012 ONSC 4904 ...... 16

China (Hong Kong) Continental Mark Ltd v. Verkehrs-Club De Schweiz, Court of First Instance, 31 October 2001, HCA 7999/2000 ...... 82 Hui Suet Ying v. Sharp Corp. and Sharp-Roxy (Hong Kong) Ltd, Court of First Instance, 15 February 2000, HCPI 1269/1997 ...... 82

INDEX OF CITED CASE LAW 225

European Court of Human Rights Brozicek v. Italie, No 10964/84, ECtHR, 19 December 1989 ...... 92 Case X. v. France, No 18020/91, ECtHR, 31 March 1992, para. 32 ...... 65 Trudov v. Russia, No 43330/09, ECtHR, 13 December 2011 ...... 83

European Union and its Member States Airbus Industrie GIE v. Patel [1999] 1 AC 119, 133...... 73 AKO Capital LLP & Another v. TFS Derivatives & Others (unreported), High Court, 17 February 2012 ...... 193 Alaska s.a.s. v. Amer Group Ltd – Koho, 14 July 1987, RDIPP 1988, No 3, p. 537 ...... 100 Alder v. Orlowska, C-325/11, EU:C:2012:824 ...... 21 Andrew Brown & Others v. Innovatorone Plc & 7 Others, [2009] EWHC 1376 (Comm) ...... Only 197 Arcalon v. Ramar, HR 21 February 1986, NJ 1987, p. 149, RvdW 1986, p. 50; English translation at I.L.M. 1989, p. 1578 ...... 25 Arrondissementsrechtbank Breda, 21 April 1981 ...... 60 Arrondissementsrechtsbank Middelburg, 4 July 1984, NIPR 1984, p. 329 ...... 58 Audiencia Provincial de Alicante, 5th section, 8 OctoberUse 1997, AC 1997/2443 ...... 61 Audiencia Provincial de Huesca, 30 June 1996, AC 1996/1448 ...... 104 Bacon v. Automattic Inc. [2011] EWHC 1072 (QB) ...... 180 BGH, 9th Zivilsenat, 18 February 1993, IPRax 1993, p. 396...... 70 Blaney v. Persons Unknown (October 2009) ...... 195 BVerfG, 24 January 2007, 2 BvR 1133/04 ...... 74 BVerfG, 25 July 2003, 108, 238 ...... 72 BVerfG, 7 December Official1994, 91, 335, 343 ...... 72 BVerfG, 7 December 1994, NJW 1995, p. 649; RIW 1995, p. 320 (note Morisse, p. 370); IPRax 1996, p. 112 (note Tomuschat, p. 83); EuZW 1995, p. 218 (note Kronke, p. 221); JZ 1995, p. 716 (note Stadler, p. 218); EWiR 1995, p. 161 (note Geimer); IPRspr. 1994 No 160b ...... 19, 72 BVerfG,For 9 January 2013, 2 BvR 2805/12 ...... 72, 74 BVerwG, 20 May 1999, NJW 2000, pp. 683-684 ...... 77 Cass., 16 December 1980, Rev. crit. d.i.p. 1981, p. 708, note G.A.L. Droz ...... 5 Cass., Ch. Civ. 1, 28 March 2006, No 03-18284 ...... 82 Cass., Ch. Civ. 1, 4 November 2010, No 09-15913 ...... 82 Charly Holding AG v. Giorgio Gomelsky, HR 2 December 1988, NJ 1989, p. 374, RvdW 1988, p. 211 ...... 33 Cie Union et Phénix espagnol v. Skandia Transport, CA Paris, Chamber 5, Section A, 25 February 1987, Juris-Data 023490 ...... 57 Claude Duval v. Société Abbey Spanier Rodd & Abrams LLP, CA Versailles, 4 November 2009, No 09/07252, the Court of Appeal of Versailles ...... 5 226 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | INDEX OF CITED CASE LAW

Coimbra Court of Appeal (Tribunal da Relação de Coimbra), case No 3327/12.5TBLRA-B.C1, 19 December 2012 ...... 22 Cristal France v. Soliver, Cass., Ch. Civ. 1, 16 December 1980, Rev. crit. d.i.p. 1981, p. 713, note G.A.L. Droz ...... 101 Crystal Decisions Ltd v. Vedatech Corp. [2004] EWHC (Ch) 1872 ...... 178, 180 Dahlgren GmbH v. SA Socatrem, CA Reims, Ch. Civ. 1, Section 1, 25 November 1998, Juris-Data 049772 ...... 82, 99 De Wouters d’Oplinter v. Janson, CA Paris, Ch. Civ. 1, 5 October 1992, Recueil Dalloz 1993, Informations rapides, p. 38 ...... 105 Decision of 18 December 2012, No 37255 ...... 82 Decision of 4 November 1993, Pasicrisie belge, 1993, 1st part, p. 927 ...... 66 Delos v. Sté Yunsa, CA Paris, Chamber 5, Section B, 19 March 1998, Juris-Data 021646 ...... 60 Delvis Int’l v. Seric, CA Poitiers, Ch. Civ. 2, 30 October 1991, Juris-Data 050388 ...... 60 Direction générale d'exploitation des aéroports de l'Etat d'Ankara v. Julien Roche, CA Paris, Chamber 1, Section C, 17 june 1994, No RG 92.24984 ...... Only 58 eBay Inc., Société eBay Int’l AG v. Société Louis Vuitton Malletier, CA Paris, Chamber 4, Section B, 22 May 2009, No 07/219187 ...... 6 ED Srl. v. Italo Fenocchio, C-412/97, EU:C:1999:324 ...... 89 Erdogan v. Erdogan, CA Metz, Ch. Famille, 29 June 2010, No 09/02294 ...... 60 Faillite Breyer v. Sté Total Belgique, Cour Supérieure deUse Justice, 21 January 1981, Rev. crit. d.i.p. 1981, p. 708, note Georges Droz ...... 5, 67 Falcon Cement Co. Ltd v. Pharaon, CA Paris, Ch. Civ. 1, 25 March 1994, Juris-Data 022544 ...... 105 Federation Francaise d'études et de sports sous-marins v. Société Cutner & Associates P.C., CA Paris, Chamber 1, 25 February 2010, No 08/22780 ...... 32 Fessmann GmbH v. Réorganisation Modernisation de l'industrie alimentaire, CA Colmar, Ch. Civ. 2, 25 February 1994, Juris-Data 044246 ...... 58 Finntyr Oy. v. Bio DogadanOfficial AS., No KKO 2006:28 ...... 95 General Medical Council v. Homaei [2013] EWHC 1676 (Admin) ...... 180 Gerechtshof Den Bosch, 19 November 1980, NJ 1982, p. 416 ...... 78 Girault v. Denys, CA Paris, 27 November 1986, Juris-Data 027200 ...... 101 Götz LefflerFor v. Berlin Chemie AG, 8 November 2005, EU:C:2005:665 ...... 110 Guigou v. SPRL Favel, Cass., Ch. Civ., 3 June 1986, Bull. civ. I, 1986, No 149 ...... 105 HD Plastics Ltd v. SA Dematex, Cour de Liège (7th Chamber), 9 May 1995, JT 1996, p. 82 ...... 67 HR 15 June 2000, NJ 2000, p. 642 ...... 28, 105 HR 31 May 1996, NJ 1997, p. 29 ...... 56, 81 Insinger de Beaufort v. Harm, Banque Populaire du Luxembourg et Stark, CA of Luxembourg, 20 March 2001, No 24934 ...... 67 Isabelle Lancray SA v. Peters und Sickert KG (BGH, 20 September 1990 (IX ZB 1/88)), IPRspr. 1990, No 200, pp. 409-411 ...... 56 John Caygill v. Stena Offshore AS, Court of Session, Outer House, 20 March 1996 ...... 66 INDEX OF CITED CASE LAW 227

K.X. v. N.Y., Cass., Ch. Civ. 2, Arrêt No 2039 of 10 November 2010 (No 09-66214) ...... 34 Katz v. Recettes des Contributions, Discount Bank et Etat du Grand-Duché de Luxembourg, Court of Appeal (summary), 8 July 1997...... 41 KG Berlin, 22 April 1997 ...... 78 KG Berlin, 5 July 1994, IPRspr. 1994, p. 159 ...... 72 La Belle Créole v. The GEMTEL Partnership, Tribunal de Commerce de Paris, 2 August 1989 ...... 95 LG Berlin, 5 February 1997 ...... 78 LG Hamburg, 27. Zivilkammer, 7 February 2013, available at Juris Das Rechtsportal at < http://www.juris.de >...... 84 Liège CA, 26 May 1992, Pasicrisie belge 1992, II 73 ...... 57 Lisbon Court of Appeal (Tribunal da Relação de Lisboa), case No 3/2009-6, 12 February 2009 ...... 22 LTU Lufttransportunternehmen GmbH & Co. KG v. Eurocontrol, C-29/76, EU:C:1976:137 ...... Only 29 Mahou v. Simons, CA Metz, Ch. Civ., 19 March 1987, Juris-Data 041636 ...... 100 Malenstein v. Heymen, HR 20 February 1998, NJ 1998, p. 619 ...... 34, 102 Marty v. Basinco Group, CA of Luxembourg, 30 November 1999, No 22952 ...... 67 Milleman v. U Lee Johnson Inc., Cass., Ch. Civ. 1, 9 November 1993, Judgment No 1388 ...... Use 5 Molins plc. v. GD SpA., Court of Appeal (Civil Division), [2000] C.L.C. 1027 ...... 197 Monnet v. Laurent, Civ. Namur (réf.), 3 May 1996, JT 1996, p. 763 ...... 67 Nieuwersteeg v. Colonia Versicherungen AG, HR 2 February 1996, NJ 1997, p. 26 ...... 16 Noirhomme v. Walklate, Queen’s Bench Division, London, 15 April 1991 ...... 89 Nuance Mode v. Alberto Baroni Spa, CA Paris, Chamber 1, Section C, 14 January 1993, Juris-Data 023584 ...... 81 OGH, 16 June 1998, IPRaxOfficial 1999, p. 260 ...... 92 OLG Celle, 14 June 1996 ...... 28 OLG Celle, 14 June 1996, 16 VA 2/96 ...... 72 OLG Celle, 6 July 2007, NJW-RR 2008, 78 (2007) ...... 73 OLG KölnFor, 16 August 1988, RIW 1989, pp. 814-815 ...... 8 OLG Düsseldorf OLGR, 14 June 2006, 393 (2007) ...... 73 OLG Düsseldorf, 10 January 1996, IPRax 1997, p. 260 ...... 73 OLG Düsseldorf, 12 March 1999, 3 W 13/99 ...... 56 OLG Düsseldorf, 3rd Zivilsenat, 19 February 1992, NJW 1992, pp. 3110-3112 ...... 71, 72 OLG Düsseldorf, 3rd Zivilsenat, 2 September 1998, IPRax 2000, pp. 289-291 ...... 58 OLG Düsseldorf, 3rd Zivilsenat, 8 February 1999, ZfIR 1999, pp. 324-326 ...... 84, 96 OLG Düsseldorf, 6 June 2003, I-3 VA 6/2003 ...... 72, 74, 75 OLG Frankfurt am Main, 13 February 2001, No 20 VA 7/00 ...... 72, 75 OLG Frankfurt am Main, 26 March 2008, No 20 VA 13/07 ...... 72, 73 228 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | INDEX OF CITED CASE LAW

OLG Hamm, 16 March 1981 (2 U 182/80)...... 92 OLG Hamm, 27 February 1985, 20 U 222/84, IPRax 1986, p. 104...... 57 OLG Hamm, 35th Zivilsenat, 30 September 1994, IPRax 1995, pp. 255-256 ...... 78 OLG München, 15 July 1992, IPRax 1993, p. 309 ...... 28 OLG München, 17 November 1994, RIW 1995, p. 1026 ...... 29, 98 OLG München, 28 September 1988, IPRax 1990, p. 111 ...... 82 OLG München, 9 May 1989, RIW 1989, p. 483; annotation IPRax 1990, p. 157 ...... 26 OLG München, Case number 7 W 3138/86, 30 December 1986, NJW 1987, p. 3086 ...... 19 OLG Saarbrücken, 1 October 1993, IPRax 1995, p. 35 ...... 56 OLG Saarbrücken, 5th Zivilsenat, 15 June 1992, RIW 1993, pp. 418-420 ...... 58 Owel v. Staat der Nederlanden, Rb ‘s Gravenhage, 22 December 1993, NIPR 1995, p. 418 ...... 9 Paris CA, 6 April 1979, JT 1980, p. 156 ...... 92 Plumex v. Young Sports NV, C-473/04, EU:C:2006:96...... Only 76 R. v. Re Recognition of an Italian Judgment, Court of Appeal of Thessaloniki, 2000 WL 33541696 ...... 89 Rabi v. Serrano et al., Cass., Ch. Civ. 1, 23 June 2011, (No 09-11.066) ...... 68 Re State of Norway’s Application, House of Lords, 16 February 1989, All E.R. 1989, p. 745, I.L.M. 1989, p. 693 ...... Use 25 Richard Ott v. S.A. Montlev, Cass., Ch. Civ. 1, 25 April 1974, Clunet 1975, p. 547 ...... 58 Roda Golf & Beach Resort SL, C-14/08, EU:C:2009:395 ...... 30 Schimpf v. Helaba Luxembourg, Landesbank Hessen-Thueringen International, CA of Luxembourg, 21 February 2001, No 24191 ...... 5 Segers and Rufa BV v. Mabanaft GmbH, HR 27 June 1986, NJ 1987, p. 764, RvdW 1986, p. 144 ...... 8, 13, 15, 16, 20, 102 Société Jucker GMBK v. Société L.0.I Thermoprocess GMBH, CA Dijon, Ch. Civ. 1, Section 2, No RG 99/01730Official ...... 82, 99 Société La Comtesse du Barry v. Société Crédit Agricole des Savoie, Cass., Ch. Civ. 2, 21 February 2013, (No 11-24.813) ...... 68 Société Nationale Industrielle Aerospatiale v. Lee Kui Jak [1987] AC 871, 892 ...... 73 Solal v.For Semasep, Ca ss., Ch. Civ. 3, 17 January 1990 (not published) ...... 98 Sté de droit britannique Bard Int’l Ltd v. Morison, CA Paris, Chamber 22, Section A, 24 September 1985, Juris-Data 025625 ...... 54 Sté Lorch Weingut Weinkellerei GmbH v. Sté Geyl et Bastian SA, CA Colmar, Ch. Civ. 2, 18 January 1991, Juris-Data 043183 ...... 60 Stolzenberg v. Sté Daimler Chrysler Canada Inc., Cass., Ch. Civ. 1, 30 June 2004, Juris-Data 2004-024353; Opinion of Mr Jerry Sainte-Rose, JCP E, 2005, II, 237 ...... 35 Sturge et al. v. Naatra Rotterdam BV, 25 March 1992, NJ 1993, p. 44 ...... 5 Supreme Court, 11 December 1995, Cyp. L.R., 1995, p. 1069 ...... 82 Supreme Court, Civil Chamber, 21 March 2013, ATS 2501/2013 ...... 189 Supremo Tribunal de Justiça, 10 November 1993, CJ (STJ) Ano1, Vol. III, 117 ...... 93 INDEX OF CITED CASE LAW 229

Tecom Mican SL, C-223/14, EU:C:2015:744 ...... 30 Thessaloniki First Instance Court (single member), judgment 22340/2012 ...... 32 Tribunal da Relaçao de Lisboa, 13 May 1999 ...... 78 Tribunal de Relaçao (Porto), 8 November 1994, CJ Ano XIX, Vol. V, 1994, 208 ...... 58 V. v. Raad voor de Kinderbescherming te Rotterdam, HR 20 May 1994, NJ 1994, p. 589 ...... 56 Van Zelm BV v. Martinus Bomas, Rechtbank Utrecht, 6 December 1995, NJ 1996, p. 756 ...... 34, 56, 102 Vedatech Corp. v. Crystal Decisions Ltd [2005] EWCA Civ 865 (Eng.) at para. 32 ...... 180 Vogel v. Mannesmann Kienzle GmbH, CA Paris, Chamber 21, Section B, 29 January 1987, Juris-Data 022287 ...... 54 VS v. Delsman, HR, 3 October 1997, NJ 1998, p. 887 ...... 10 Weber v. Sarl Alwelis, CA Colmar, Ch. Civ. 1, 30 May 1984, Juris-Data 040920 ...... 60 Wifac NV v. van Meerten, Hof Amsterdam, 21 December 1989, NJ 1991,Only p. 485 ...... 16 Willems v. Moser, HR 10 May 1996, NJ 1997, p. 27 ...... 69 Williams v. Dew, Hastings County Court (31 January 2011), Claim Number 0HS00670 (a copy of this decision is on file with the Permanent Bureau)...... 193 Zavala v. Banque nationale de Paris, Cass., Ch. Civ. 1, 19 May 1981, Rev. crit. d.i.p. 1982, p. 564, note G.A.L. Droz ...... Use 99

Israel Israel Credit Lines Complementary Financial Services Ltd v. Roni Elad, RCA 1056/10 ...... 82

Japan Official H. Saeki Inc. v. Y. Ozaki, Tokyo District Court, 26 March 1990, Kin’yu-Shoji Hanrei (857) 39 [1991] ...... 61 Hachioji Branch of Tokyo District Court, Judgment, 8 December 1997 ...... 86 SupremeFor Court, 28 April 1998...... 95 Tokyo District Court, Judgment, 24 February 1998 ...... 78, 85

Mexico Tribunal Colegiado de Circuito, Gaceta del Semanario Judicial de la Federación, Book 2, January 2014, Tome IV, tesis No: VI.1o.C.40 C (10a.), p. 3025 ...... 107

Monaco Sarl on the Roc Production v. Napoleon Exchange World Inc., Judgment of 8 May 2013 ...... 100 230 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | INDEX OF CITED CASE LAW

New Zealand Asteron Life Ltd v. Franck HC MAS CIV-2009-435-77 [2009] NZHC 450 ...... 184 Axe Market Gardens Ltd v. Axe, CIV-2008-485-2676, High Court Wellington, 16 March 2009 (a copy of this decision is on file with the Permanent Bureau)...... 193 Nielsen v. Nielsen [2009] NZHC 1562 ...... 184

Switzerland Cantonal Court of Cassation, 10 September 2009, GVP.2009.65 ...... 54 Cantonal Court of Fribourg, 10 February 1999 ...... 28, 29 Cantonal Court of Valais, Civil Chamber, 1 September 1998 ...... 77 Crédit Commercial de France (Suisse) SA v. X, TF, 15 June 1999, SJ 2000, p. 89...... 54 Federal Supreme Court of Switzerland, 4 March 2008, 4A_392/2007 /len ...... 51 Federal Supreme Court of Switzerland, 7 October 2010, 5A_286/2010 ...... 78Only Federal Supreme Court, 14 April 2008, 5A_633/2007/bnm ...... 83 Federal Supreme Court, 23 October 2012, 5A_230/2012 ...... 86 Federal Supreme Court, 30 April 2010, 5A_840/2009 ...... 47, 58 Federal Supreme Court, 5A_703/2007, judgment of 6Use April 2009 ...... 82 Federal Supreme Court, 7 January 2011, 5A_160/2010 ...... 49 Federal Supreme Court, 7 July 2011, 5F_6/2010 ...... 85 Handelsgericht St. Gallen, 13 November 2008, HG.2007.87 ...... 54 Kantonsgericht St. Gallen, Einzelrichterin in Rechtshilfesachen, RH.2008.64, 19 May 2008 ...... 38, 73 Obergericht Aargau, 2 June 2008, ZBE.2008.3/EG/SH/bl ...... 82 Obergericht Basel-Land, 18 September 1995, SJZ 1996, p. 316...... 67, 81 Prozess {T 7}, K 18/04,Official order of 18 July 2006 ...... 28, 38 Supervisory authority on debt enforcement proceedings for the Canton of Schaffhausen of 13 September 2002 (ABSH-2002-87 94) ...... 51 Supreme Court of the Canton of Zurich, decision of 21 April 2008, case No NV080003 ...... 72 X. SAFor v. Y. AG, Federal Supreme Court, 15 September 2003, ATF 129 III 750, 4C.132/2003, p. 756 ...... 50, 51, 58, 71

United States Acapalon Corp. v. Ralston Purina Co., 1991 Mo. App. LEXIS 1322 (Mo. Ct. App. 1991) ...... 19 Ackermann v. Levine, 788 F.2d 830 (2nd Cir. 1986) ...... 88, 89, 90, 91 Ackourey v. Nobelhouse Custom Tailors, 2013 WL 6061365 (E.D. Pa. 2013) ...... 88 INDEX OF CITED CASE LAW 231

Advanced Aerofoil Tehnologies, AG v. Todaro, 2012 WL 299959 (S.D.N.Y. 2012) ...... 82 Agha v. Jacobs, 2008 WL 2051061 (N.D. Cal. 2008) ...... 178, 186 Alfred E. Mann Living Trust v. ETIRC Aviation S.A.R.L., 910 N.Y.S.2d 418 (N.Y. App. Div. 2010) ...... 201 Alternative Delivery Solutions v. R.R. Donnelley & Sons Co., 2005 U.S. Dist. LEXIS 15949 (W.D. Tex. 2005) ...... 17 Ambriz Trading Corp. and Ilya Lobanov v. URALSIB Financial Corp., 2011 U.S. Dist. LEXIS 133928 (S.D.N.Y. 2011) ...... 9 Anbe v. Kikuchi, 141 F.R.D. 498 (D. Haw. 1992) ...... 87 Apollo Technologies Corp. v. Centrosphere Industrial Corp., 805 F. Supp. 1157, 1189 (D.N.J. 1992) ...... 17 Arco Electric Control Ltd v. Core Int’l, 794 F. Supp. 1144 (S.D. Fla. 1992) ...... 87 Baidoo v. Blood-Dzraku, 5 N.Y.S.3d 709 (N.Y. Sup. Ct. 2015) ...... 197 Balcolm v. Hiller, 46 Cal. App. 4th 1758 (Cal. Ct. App. 1996) ...... 95 Banco Latino, S.A.C.A. v. Gomez Lopez, 53 F. Supp. 2d 1273 Only (S.D. Fla. 1999) ...... 97 Bankston v. Toyota Motor Corp., 889 F.2d 172 (8th Cir. 1989) ...... 87, 89, 90, 91 Barriere v. Juluca, 2014 WL 652831 (S.D. Fla. 2014) ...... 88 Bays et al. v. Mill Supplies, Inc. et al., 2011 WL 781464 Use(N.D. Ind. 2011 ) ...... 18 Blades v. Illinois Central Railroad, 2003 U.S. Dist. LEXIS 3823 (E.D. La. 2003) ...... 14, 18 Borschow Hospital & Medical Supplies, Inc. v. Burdick-Siemens Corp., 143 F.R.D. 472 (D.P.R. 1992) ...... 16, 88 Bowers v. Wurzburg, 519 S.E.2d 148 (W. Va. 1999) ...... 16 Box v. Dallas Mexican Consulate General, 487 F. App’x 880 (5th Cir. 2012) ...... 102 Broad v. Mannesmann Anlagenbau, A.G., 10 P.3d 371 (Wash. 2000) ...... 16 Brockmeyer v. May, 383Official F.3d 798 (9th Cir. 2004) ...... 81, 88, 89, 90, 91 Brown v. Bellaplast Maschinenbau, 104 F.R.D. 585 (E.D. Pa. 1985) ...... 58 Brown v. Brookville Transport Ltd., 1999 WL 99193 (Conn. Super. Ct. 1999) ...... 54 Burda Media, Inc. v. Viertel, 417 F.3d 292 (2nd Cir. 2005) ...... 101, 102 CalabreseFor v. Springer Personnel, 534 N.Y.S.2d 83 (N.Y. Civ. Ct. 1988) ...... 199 Capozzo v. Mendal, 2011 WL 7029841 (Conn. Super. Ct. 2011) ...... 93 Cardona v. Kreamer, 235 P.3d 1026 (Ariz. Sup. Ct. 2010) ...... 82 Cephalon, Inc. v. Sun Pharmaceutical Industries, Inc., 2011 WL 6130416 (D.N.J. 2011) ...... 18 Chabert v. Bacquie, 694 So.2d 805 (Fla. Dist. Ct. App. 1997) ...... 31 Chamberlain v. Integraclick, Inc., 2011 WL 1456878 (N.D. Fla.) ...... 49 Chanel, Inc. v. He Zhizhong, 2010 WL 985195 (W.D. Tenn. 2010) ...... 184, 186 Chanel, Inc. v. Song Xu, 2010 WL 396357 (W.D. Tenn. 2010) ...... 35, 186 232 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | INDEX OF CITED CASE LAW

Chanel, Inc. v. Zhibing, 2010 WL 1009981 (W.D. Tenn. 2010) ...... 186 Chanel, Inc. v. Zhixian, 2010 WL 1740695 (S.D. Fla. 2010) ...... 194 Chung v. Tarom, S.A., et al., 990 F. Supp. (N.D. Ill. 1998), 581 ...... 18 Cipolla v. Picard Porsche Audi Inc., 496 A.2d 130 (R.I. 1985) ...... 58 Compass Bank v. Katz, 287 F.R.D. 392 (S.D. Tex. 2012) ...... 35, 184 Cooper v. Makita Electric Works Ltd., 117 F.R.D. 16 (D. Me. 1987) ...... 87 Cupp v. Alberto-Culver USA, Inc., 2004 U.S. Dist. LEXIS 4182 (W.D. Tenn. 2004) ...... 16, 87 Curcuruto v. Cheshire, 864 F. Supp. 1410 (S.D. Ga. 1994) ...... 88 Daewoo Motor America, Inc. v. Dongbu Fire Insurance Co., Ltd., 289 F. Supp. 2d 1127 (C.D. Cal. 2001) ...... 17 Davies v. Jobs and Adverts Online, 94 F. Supp. 719 (E.D. Va. 2000) ...... 17 Dee-K Enterprises, Inc. v. Heveafil SDN, BHD, 174 F.R.D. 376 (E.D. Va. 1997) ...... 80 Denise Williams v. Jacqueline LeBrun et al., 2010 WL 3341482 Only (Conn. Super. Ct. 2010) ...... 92 Denlinger v. Chinadotcom Corp., 2 Cal. Rptr. 3d 530 (Cal. Ct. App. 2003) ...... 16, 88 Devi v. Rajapaksa, 2012 WL 309605 (S.D.N.Y. 2012) ...... 11 Devi v. Rajapaksa, 2012 WL 3866495 (S.D.N.Y. 2012) ...... 11 Doty v. Magnum Research Inc., 994 F. Supp. 894 (N.D.Use Ohio 1997) ...... 19 Dr. Ing HCF Porsche AG v. Superior Court, 177 Cal. Rptr. 155 (Cal. Ct. App. 1981) ...... 78 Dupont de Nemours v. Rhodia, 197 F.R.D. 112, 123 (D. Del. 2000) ...... 17 Eli Lilly et Co. v. Roussel Corp., 23 F. Supp. 2d 460 (D.N.J. 1998) ...... 88 EOI Corp. v. Medical Marketing Ltd, 172 F.R.D. 133, 142 (D.N.J. 1997) ...... 80 Eto v. Muranaka, 57 P.3d 413 (Haw. 2002) ...... 17 Europacific Asset Management Corp. v. Tradescape, Corp., 233 F.R.D. 344 (S.D.N.Y.Official 2005) ...... 90 Export-Import Bank v. Asia Pulp & Paper Co., Ltd, 2005 U.S. Dist. LEXIS 8902 (S.D.N.Y. 2005) ...... 80 F.T.C. v. PCCare247 Inc., 2013 WL 841037 (S.D.N.Y. 2013) ...... 186, 197 F.T.C.For v. Pecon Software Ltd., 2013 WL 4016272 (S.D.N.Y. 2013) ...... 184, 186 Facebook, Inc. v. Banana Ads, LLC, 2012 WL 1038752 (N.D. Cal. 2012) ...... 184, 186 Fernandez v. Univan Leasing, 15 A.D.3d 343, 344-345, 790 N.Y.S.2d 155 (N.Y. App. Div. 2005) [2nd Dept. 2005] ...... 88 Fleming v. Yamaha Motor Co., 774 F. Supp. 992 (W.D. Va. 1991) ...... 18 Frankenmuth Mutual Insurance Co. v. ACO Inc., 484 N.W.2d 718 (Mich. Ct. App. 1992) ...... 87 Frazer v. Johnson Controls, Inc., 2013 WL 5519831 (N.D. Ala. 2013) ...... 19 FRC Int’l, Inc. v. Taifun Feuerlöschgerätebau und Vertriebs GmbH, 2002 WL 31086104 at 9 (N.D. Ohio 2002) ...... 45 INDEX OF CITED CASE LAW 233

Frederick v. Hydro Aluminum S.A., 153 F.R.D. 120 (E.D. Mich. 1994) ...... 54, 66 Friede & Goldman, Ltd v. Gotaverken Arendal Consultants, AB, 2000 U.S. Dist. LEXIS 3319 (E.D. La. 2000) ...... 88 Gallagher v. Mazda Motor of America, Inc., 781 F. Supp. 1079 (E.D. Pa. 1992) ...... 87 Gapanovich v. Komori, 605 A.2d 1120 (N.J. Super. Ct. App. Div. 1992) ...... 88 Gebr. Eikhoff Maschinenfabrik v. Starcher, 328 S.E.2d 492 (W. Va. 1985) ...... 22 Golub v. Isuzu Motors, 924 F. Supp. 324 (D. Mass. 1996) ...... 16, 87 Gonnuscio v. Seabrand Shipping, 908 F. Supp. 823 (D. Or. 1995) ...... 87 Gould Entertainment Corp. v. Bodo, 107 F.R.D. 308 (S.D.N.Y. 1985) ...... 99, 105 Gramercy v. Kavanagh, 2011 WL 1791241 (N.D. Tex. 2011) ...... 34 Greene v. Le Dorze, 1998 U.S. Dist. LEXIS 4093 (N.D. Tex. 1998) ...... 45, 70 Gurung v. Malhotra, 279 F.R.D. 215 (S.D.N.Y. 2011) ...... 11, 186, 187 Harris v Browning-Ferris Industries Chemical Services, Inc., 100 F.R.D. 775 (M.D. La. 1984) ...... Only 58 Harris v. NGK North American, Inc., 19 A.3d 1053 (Pa. Super. Ct. 2011) ...... 38, 58 Heredia v. Transport S.A.S. Inc., 101 F. Supp. 2d 158 (S.D.N.Y. 2000) ...... 58, 88, 92 Hollow v. Hollow, 747 N.Y.S.2d 704 (N.Y. App. Div. 2002) ...... 186 Holloway v. Arkansas, 435 U.S. 475 (1978) ...... Use 45 Humble v. Gill, 2009 WL 151668 (W.D. Ky. 2009) ...... 97 In re Cinar Corp. Securities Litigation, 186 F. Supp. 2d 279 (E.D.N.Y. 2002) ...... 80 In re Cyphermint, Inc., 445 B.R. 11 (Bankr. D. Mass. 2011) ...... 9 In re Hayes Lemmerz Int’l, Inc., 271 F. Supp. 2d 1007, 1009 (E.D. Mich. 2003) ...... 17 In re Heckmann Corp. Securities Litigation, 2011 WL 5855333 (D. Del. 2011) ...... 186 In re Hunt's Pier AssociatesOfficial, 156 B.R. 464 (Bankr. E.D. Pa. 1993) ...... 8, 16, 93 In re Int’l Telemedia Associates, Inc., 245 B.R. 713 (Bankr. N.D. Ga. 2000) ...... 181, 183, 194 In re J.P.L., 359 S.W.3d 695 (Tex. App. 2011) ...... 97 In re JenniferFor O., 108 Cal. Rptr. 3d 846 (Cal. Ct. App. 2010) ...... 31 In re Sinohub, Inc. Securities Litigation, 2013 WL 4734902 (S.D.N.Y. 2013) ...... 34 Int’l Cultural Property Society v. Walter de Gruyter & Co., 2000 U.S. Dist. LEXIS 9447 (S.D.N.Y. 2000) ...... 18 Intelsat Corp. v. Multivision TV LLC, 736 F. Supp. 2d 1334 (S.D. Fla. 2010) ...... 87 Intercontinental Industries Corp. v. Luo, 2011 WL 221880 (C.D. Cal. 2011) ...... 38, 82 ITEL Container Int’l Corp. v. Atlanttrafik Express Service Ltd., 686 F. Supp. 438 (S.D.N.Y. 1988) ...... 65 Jenco v. Martech Int’l, 1987 WL 13793 (E.D. La. 1987) ...... 82 234 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | INDEX OF CITED CASE LAW

Joe Hand Promotions, Inc. v. Shepard, 2013 WL 4058745 (E.D. Mo. 2013) ...... 184 Johns v. van Brunt Motors, Inc., 89 A.D.3d 1188 (N.Y. App. Div. 2011) ...... 23 Julen v. Larsen, 25 Cal. App. 3d 325 (Cal. Ct. App. 1972) ...... 61 Julien v. Williams, 2010 WL 5174535 (M.D. Fla. Dec. 15, 2010) ...... 89 Kadota v. Hosogai, 608 P.2d 68 (Ariz. Ct. App. 1980) ...... 22, 95 Kawasaki v. Guam, 1990 WL 320758 (D. Guam 1990) ...... 17 Kern County Department of Human Services v. Superior Court, 113 Cal. Rptr. 3d 735 (Cal. Ct. App. 2010) ...... 31 Kim v. Frank Mohn A/S, 909 F. Supp. 474 (S.D. Tex. 1995) ...... 17 King v. Perry & Sylva Machinery Co., 766 F. Supp. 638, 640 (N.D. Ill. 1991) ...... 19 Knapp v. Yamaha Motor Co., 60 F. Supp. 2d 566 (S.D. W. Va. 1999) ...... 87 Koehler v. Dodwell, 152 F.3d 304 (4th Cir. 1998) ...... 95 Kott v. Superior Court, 45 Cal. App. 4th 1126 (Cal. Ct. App. 1996) ...... 34 Kreimerman, et al., v. Casa Veerkamp, 22 F.3d 634 (5th Cir. 1994) ...... Only 22, 106 Laino v. Cuprum S.A. de C.V., 235 A.D.2d 25 (N.Y. App. Div. 1997) ...... 106 Lebel v. Mai, 210 Cal. App. 4th 1154 (Cal. Ct. App. 2012) ...... 35 Lemme v. Wine of Japan Import, 631 F. Supp. 456, 464 (E.D.N.Y. 1986) ...... 92 Liberty Media Holdings, LLC v. Sheng Gan, 2012 WL 502265Use (D. Colo. 2012) ...... 198, 199 Liberty Media Holdings, LLC v. Vinigay.com, 2011 WL 810250 (D. Ariz. 2011)...... 184 Loeb v. First Judicial District Court, 309 P.3d 47 (Nev. 2013) ...... 16 Lombard-Knight v. Rainstrom Pictures Inc., 2013 WL 6839775 (Cal. Super. Ct. 2013) ...... 32 LT Game Int’l Ltd v. DEQ Systems Corp., 2013 WL 5536195 (D.N.J. 2013) ...... 89 Lyman Steel Corp. v. Ferrostal Metals Corp., 747 F. Supp. 389 (N.D. Ohio 1990) ...... Official 82 Marcus Food Co. v. DiPanfilo, 2010 WL 3946314 (D. Kan. 2010) ...... 93, 100, 102 Marschhauser v. The Travelers Indemnity Co., 145 F.R.D. 605 (S.D. Fla. 1992) ...... 45, 101 Mateo v. M/S Kiso, 805 F. Supp. 792, 796 (N.D. Cal. 1992) ...... 87 McCartyFor v. Roos, 2012 WL 6138313 (D. Nev. 2012) ...... 90 McClenon v. Nissan Motor Corp., 726 F. Supp. 822 (N.D. Fla. 1989) ...... 16, 18, 87, 92 Meek v. Nova Steel Processing Inc., 706 N.E.2d 374 (Ohio Ct. App. 1997) ...... 87 Melia v. Les Grands Chais de France, 135 F.R.D. 28 (D.R.I. 1991) ...... 18 Menon v. Water Splash, Inc., 2015 WL 3982547 (Tex. App. 2015) ...... 87 Mezitis v. Mezitis, N.Y. L.J., 21 November 1995, at 25, col. 5 (Sup. Ct. NY County) ...... 80 Microsoft Corp. v. Does, 2012 WL 5497946 (E.D.N.Y. 2012) ...... 35, 186 Mitchell v. Volkswagen Group of America, 753 F. Supp. 2d 1264 (N.D. Ga. 2010) ...... 82 INDEX OF CITED CASE LAW 235

Mommsen v. Toro Co., 108 F.R.D. 444 (S.D. Iowa 1985) ...... 8, 87 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652 (1950) ...... 20, 185 Myers v. ASICS Corp., 711 F. Supp. 1001, 1007-08 (C.D. Cal. 1989) ...... 88 Myrtle v. Graham, 2011 WL 446397 (E.D. La. 2011) ...... 70 New York Marine Managers, Inc. v. M.V. Topor-1, 716 F. Supp. 783 (S.D.N.Y. 1989) ...... 19 New York State Thruway Authority v. Fenech, 94 A.D.3d 17, 938 N.Y.S.2d 654 (N.Y. App. Div. 2012) [3rd Dept. 2012] ...... 88 Newport Components, Inc. v. NEC Home Electronics (USA), Inc., 671 F. Supp. 1525 (C.D. Cal. 1987) ...... 88 Nicholson v. Yamaha Motor Co., 566 A.2d 135 (Md. Ct. Spec. App. 1989) ...... 88 Norrenbrock Co., Inc. v. Ternium Mexico, S.A. De C.V., 2014 WL 556733 (W.D. Ky. 2014)...... 16 Northrup King Corp. v. Compania Productora Semillas Algodoneras Selectas, S.A., 51 F.3d 1383 (8th Cir. 1995) ...... Only 47 Nuance Communications, Inc. v. Abbyy Software House, 626 F.3d 1222 (Fed. Cir. 2010) ...... 9 Nuovo Pignone v. Storman Asia M/V, 310 F.3d 374, 384 (5th Cir. 2002) ...... 87 Ohntrup v. Kurumu, 1992 U.S. Dist. LEXIS 271 (E.D. Pa. 1992) ...... 11 Opella v. Rullan, 2011 WL 2600707 (S.D. Fla. 2011) ...... Use 35 Owen v. Sports Gymnastics Federation of Russia, 2012 WL 346661 (D. Me. 2012) ...... 9 Papir v. Wurms, 02 Civ. 3273 (RCC), 2005 U.S. Dist. LEXIS 2201, 2005 WL 372061 (S.D.N.Y. 2005) ...... 88, 90, 91 Paradigm Entertainment, Inc. v. Video Systems, Co., 2000 WL 251731 (N.D. Tex. 2000) ...... 17, 88 Pennsylvania Orthopedic Association v. Mercedes-Benz AG, 160 F.R.D. 58 (E.D. Pa.Official 1995) ...... 59, 66 Philip Morris USA Inc. v. Veles Ltd., 2007 WL 725412 (S.D.N.Y. 2007) ...... 186 Philip v. Monarch Knitting Machinery Corp., 169 A.D.2d 603 (N.Y. App. Div. 1991) [1st Dept. 1991] ...... 87 Pittsburgh National Bank v. Kassir, 153 F.R.D. 580 (W.D. Pa. 1994) ...... 20, 82 PizzabioccheFor v. Vinelli , 772 F. Supp. 1245, 1249 (M.D. Fla. 1991) ...... 106 Pochop v. Toyota Motor Corp., Ltd., 111 F.R.D. 464 (S.D. Miss. 1986) ...... 87 Power Integrations, Inc. v. System General Corp., 2004 U.S. Dist. LEXIS 25414 (N.D. Cal. 2004) ...... 80 Prediction Co. v. Rajgarhia, 2010 WL 1050307 (S.D.N.Y. 2010) ...... 186 Primary Succession Capital, LLC, v. Schaeffler, KG, 2010 WL 4236948 (S.D.N.Y. 2010)...... 19 Prom v. Sumitomo Rubber Industries, 592 N.W.2d 657 (Wis. Ct. App. 1999) ...... 66, 81, 87 Quaranta v. Merlini, 237 Cal. Rptr. 19 (Cal. Ct. App. 1987) ...... 65 Quinn v. Keinicke, 700 A.2d 147, 154 (Del. Super. Ct. 1996) ...... 17 236 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | INDEX OF CITED CASE LAW

R. Griggs Group Ltd v. Filanto Spa, 920 F. Supp. 1100 (D. Nev. 1996) ...... 80, 88 Raffa v. Nissan Motor Co., 141 F.R.D. 45 (E.D. Pa. 1991) ...... 16, 87 Randolph v. Hendry, 50 F. Supp. 2d 572, 575 (S.D. W. Va. 1999) ...... 17 Reynolds v. Woosup Koh, 109 A.D.2d 97, 490 N.Y.S.2d 295 (N.Y. App. Div. 1985) [3rd Dept. 1985] ...... 88 Rhodes v. J.P. Sauer & Sohn, Inc., 98 F. Supp. 2d 746 (W.D. La. 2000) ...... 18, 82 Richardson v. Attorney General of the British Virgin Islands, WL 4494975 (D.V.I. 2013) ...... 11 Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007 (9th Cir. 2002) ...... 181, 184, 185 Rissew v. Yamaha Motor Co., 515 N.Y.S.2d 352 (N.Y. App. Div. 1987) at 354-355 [4th Dept. 1987] ...... 88 Robillard v. Asahi Chemical Industry Co., Ltd, 1995 WL 681553 (Conn. Super. Ct. 1995) ...... 66 Rose v. Deer Consumer Products, Inc., 2011 WL 6951969 (C.D. Cal. 2011) ...... 17 RPOST Holdings, Inc. v. Kagan, 2012 WL 194388 (E.D. Tex. 2012) ...... Only 35, 184, 186 Rubicon Global Ventures, Inc. v. Chongquing Zongshen Group Import/Export Corp., 494 F. App’x 736 (9th Cir. 2012) ...... 14 Ryan v. Brunswick Corp., 2002 WL 1628933 (W.D.N.Y. 2002) ...... 186 S.E.C. v. Anticevic, 2009 WL 361739 (S.D.N.Y. 2009) ...... 184 S.E.C. v. Credit Bancorp, Ltd., 2011 WL 666158 (S.D.N.Y.Use 2011) ...... 31 S.E.C. v. Internet Solutions, 509 F.3d 1161 (9th Cir. 2007) ...... 104 Sandoval v. Honda Motor Co. Ltd., 527 A.2d 564 (Pa. 1987) ...... 92 Sankaran v. Club Med, Inc., 1998 U.S. Dist. LEXIS 11750 (S.D.N.Y. 1998) ...... 19 Sardanis v. Sumitomo Corp., 279 A.D.2d 225 (N.Y. App. Div. 2001) [1st Dept. 2001] ...... 87, 88 Sbarro, Inc. v. Tukdan Holdings, Ltd., 921 N.Y.S.2d 837 (Sup. Ct. Suffolk County 2011) ...... 88 Scheck v. the Republic ofOfficial Argentina, 2011 WL 2118795 (S.D.N.Y. 2011) ...... 11, 48, 103 Schiffer v. Mazda Motor Corp., 192 F.R.D. 335 (N.D. Ga. 2000) ...... 16, 88 Sheets v. Yamaha Motor Co., 891 F.2d 533 (5th Cir. 1990) ...... 18 Shoei Kako Co. Ltd v. Superior Court, 33 C.A.3d 808, 109 Cal. Rptr. 402 (Cal. Ct.For App. 1973) ...... 61, 92 Snyder v. Alternative Energy Inc., 857 N.Y.S.2d 442 (N.Y. Civ. Ct. 2008) ...... 186 Société Nationale Industrielle Aérospatiale v. United States District Court for the Southern District of Iowa, 482 U.S. 522 (1987) ...... 39 St. Ventures, LLC v. KBA Assets and Acquisitions, LLC, 2013 WL 1749901 (E.D. Cal. 2013) ...... 95 Stone v. Ranbaxy Pharmaceuticals, Inc., 2011 WL 2462654 (S.D.N.Y. 2011) ...... 18 Suzuki Motor Co. v. Superior Court, 200 Cal. App. 3d 1476 (Cal. Ct. App. 1988) ...... 87 Tamari v. Bache & Co. (Lebanon) SAL, 431 F. Supp. 1226 (N.D. Ill. 1977) ...... 95 Tax Lease Underwriters v. Blackwall Green, 106 F.R.D. 595 (E.D. Mo. 1985) ...... 94 INDEX OF CITED CASE LAW 237

Taylor v. Uniden Corp. of America, 622 F. Supp. 1011 (E.D. Mo. 1985) ...... 56 Teknekron Management Inc. v. Quante Fernmeldetechnik GmbH, 115 F.R.D. 175 (D. Nev. 1987) ...... 59 Teller v. Dogge, 2013 WL 508326 (D.Nev. 2013) ...... 35 The Knit With v. Knitting Fever, Inc., 2010 WL 2788203 (E.D. Pa. 2010) ...... 89 The People v. Mendocino County Assessor’s Parcel No. 056-500-09, 58 Cal. App. 4th 120 (Cal. Ct. App. 1997) ...... 35 TracFone Wireless, Inc. v. Bequator Corp., Ltd., 717 F. Supp. 2d 1307 (S.D. Fla. 2010) ...... 89 Tracfone Wireless, Inc. v. Bitton, 278 F.R.D. 687 (S.D. Fla. 2012) ...... 80, 89 Tracfone Wireless, Inc. v. Pak China Group Co. Ltd., 843 F. Supp. 2d 1284 (S.D. Fla. 2012) ...... 82, 89 TracFone Wireless, Inc. v. Sunstrike Int’l, Ltd., 273 F.R.D. 697 (S.D. Fla. 2011) ...... 80, 89 Trump Taj Mahal, Associates v. Hotel Services, 183 F.R.D. 173 (D.N.J. 1998) ...... 88 U.S. Commodity Futures Trading Commission v. Rubio, 2012 WL 3614360 (S.D. Fla. 2012) ...... Only 184, 194 United States ex rel Bunk v. Birkart Globistics GmbH & Co., 2010 WL 423247 (E.D. Va. 2010) ...... 28 United States v. Int’l Brotherhood of Teamsters, 945 F. Supp. 609 (S.D.N.Y. 1996) ...... 19 United States v. Islip, 18 F. Supp. 2d 1047 (Ct. Int’l TradeUse 1998)...... 95 Universal Trading & Investment Co. v. Kiritchenko, 2007 WL 660083 (N.D. Cal. 2007) ...... 102 Uppendahl v. American Honda Motor Co., 291 F. Supp. 2d 531 (W.D. Ky. 2003) ...... 16, 87 Vazquez v. Sund Emba AB, 152 A.D.2d 398 (N.Y. App. Div. 1989) ...... 57, 95 Volkswagen Aktiengesellschaft v. Schlunk, 486 U.S. 694; 108 S. Ct. 2104 (1988); I.L.M. 1988, p. 1093, annotated in: Am. J. Int’l L. 1988, p. 816; IPRax 1989, p. 313 ...... 6, 13, 14, 15, 16, 18, 19, 20, 22, 39, 87 Vorhees v. Fischer & KreckeOfficial GmbH, 697 F.2d 574 (4th Cir. 1983) ...... 58 Wadleigh Industries, Inc. v. Drilling Rig Atlantic Tiburon, 2014 WL 1024019 (S.D. Tex. 2014) ...... 100 Wasden v. Yamaha Motor Co., 131 F.R.D. 206 (M.D. Fla. 1990)...... 87 WAWA,For Inc. v. Christensen , 44 Fed. R. Serv. 3d 589 (E.D. Pa. 1999) ...... 88 Weight v. Kawasaki Heavy Industries, Ltd., 597 F. Supp. 1082 (E.D. Va. 1984) ...... 92 Weinstein v. Volkswagen of America, 1989 U.S. Dist. LEXIS 3809 (E.D.N.Y. 1989) ...... 16 White v. Ratcliffe, 674 N.E.2d 906 (Ill. App. Ct. 1996) ...... 95, 97, 99, 100 Wilburn v. Robinson, 480 F.3d 1140 (D.C. Cir. 2007) ...... 104 Williams v. Advertising Sex LLC, 231 F.R.D. 483 (N.D. W. Va. 2005) ...... 186 Williams-Sonoma, Inc. v. Friendfinder, Inc., 2007 WL 1140639 (N.D. Cal. 2007) ...... 186 Willis v. Magic Power Co., Ltd., 2011 WL 66017 (E.D. Pa. 2011) ...... 89 238 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | INDEX OF CITED CASE LAW

Wuxi Taihu Tractor Co., Ltd v. York Group, Inc., 2011 WL 488905 (S.D. Tex. 2011) ...... 98 Yates v. Yee Mei Cheung, 2012 WL 3155700 (N.D. Cal. 2012) ...... 35 Zaboli v. Mazda Motor Corp., 1999 U.S. Dist. LEXIS 21756 (N.D. Ga. 1999) ...... 88 Zwerling v. Zwerling, 636 N.Y.S.2d 595 (N.Y. Sup. Ct. 1995)...... 87

Only Use

Official For

Index by subject

Figures refer to paragraph numbers.

Entries underlined and with an asterisk are defined in the Glossary.

Only A

Accession*, 14-15 State agencies and States, 23 et seq.; see also Diplomatic channel (indirect) Access to Justice Convention (Hague), 4 Use Agent for service, 12, 33 et seq., 43 et seq., 48, 112, 169 Additional agreements, 5, 295, 296 et seq.; see also Treaties Alternative channels of transmission*, 236-293 Address

Consular channel, see this expression Electronic~, see e-mail address Diplomatic channel, see this expression E-mail address, 97-98 Annex 8: 27 Electronic service under ~, see this Fictitious~, 89 Official expression Incomplete~, 89-90, 219 Judicial officers, officials and other Incorrect~, 89-90, 93 competent persons (service through), Unknown~, 88 et seq. see this expression Model Form, 153 AddresseeFor – Person to be served* Postal channels, see this expression Summary of the document to be served Agent for service, 12, 33 et seq., 43 et seq., and Warning, 153, 286; see also 48, 112, 169 Summary of the document to be served Defendant (protection of), see Protection of Terminology, 236 the defendant Translation of the document, 180, 246, Election of domicile, 18, 32, 42 283 et seq. Military personnel, 91 Parent company, see Subsidiary (service on Alternative service, see Substituted service domestic) Several residences, 19 Anti-suit injunction (service of), 225; see also Injunction 240 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | INDEX BY SUBJECT

Appeal, 81, 323 Model Form, 147, 148, 213; see Annexes 2-6 Relief of time-bar to ~, 322 et seq.; see also Omission in the ~, 147, 215 Relief from expiry of time for appeal Sending to the applicant, 210-212 Signature of the Central Authority or Applicant*, see Forwarding authority judicial authority (requirement of the forwarding authority), 148, 209-210

Transmission of the Certificate by Arbitration proceedings (documents), electronic means, see Annex 8: 19 84 et seq.

Channels of transmission provided for by Asian-African Legal Consultative the Convention Organization (AALCO; Model Bilateral Convention), 299, 335 et seq. Alternative channels of transmission, see this expression

Derogatory channels of transmission, B see this expression Main channel of transmission,Only see this Brussels Ia Regulation*, 16, 57, 74, 289 expression

Civil matters, see Civil or commercial matters C Use Civil or commercial matters*, 56-65 Central Authority*, 111-120 Administrative law, 58 Communication with the Central Autonomous and liberal interpretation, Authority, 134; see also Annex 8: 23 59, 62-65, 72-75 Federal States, 120 Bankruptcy law, 60, 62, 72 Organisation, 113 et seq. Criminal law, 58, 59, 70 Other authorities, 118, 119 Enforcement instrument, 71 Outsourcing, 116 Evidence Convention, 56, 60 et seq.; Transmission of the ROfficialequest to the see also this expression Central Authority, 134; see also Insurance and employment law, 62, 71 Annex 8: 10 Other international instruments referring to this notion, 56, 57, 60, 74 Certificate (of service)*, 147-149, Public law, 58, 62, 71 209-216; see also Annexes 2 and 6. For Punitive damages, 61, 70; 224, 233-234

Recovery of proceeds of crime, 65 Competent authority to complete the Refusal to execute the request, 159 Certificate (Central Authority or any other designated authority), 209 Substantive nature of the matter, 69, 235 Effect (rebuttable presumption), 216, 308 Tax law, 58-60, 62 Failure to serve, 147, 165 Treble damages, 70 Guidelines for completing the ~, see Annex 6 Civil Procedure Convention (1954, Items printed, 151 Hague)*, 3-5, 56, 107, 285

INDEX BY SUBJECT 241

Class actions, see Collective redress Copies (of documents to be served), 136-137 Clause in a contract opting out of the Convention’s rules, 49 Electronic~, 158, Annex 8: 18

~ choosing service by electronic means, Costs for service, 186-194 see Annex 8: 100-101 Electronic payments, 194 Collective redress, 99, 233-234 Formal service, 188, 190 Informal delivery, 187, 193 Commercial matters, see Civil or Service by a particular method, 191-192 commercial matters

Competent authority to complete the Certificate, see Certificate (of service) D

Compulsion (service without), see Consular Date of service*, 202Only et seq. channels; Diplomatic channels; Informal delivery Defendant (protection of), see Protection of the defendant Conclusions and Recommendations* Double-dates, 205 et seq., 339 In due time, 309 et seq. Consular channels*, see also Alternative JudgmentUse by default, see this expression channels of transmission Lack of service (continuation of proceedings), 312 et seq. Description, 241-242 Period for performance of the request, Direct~, 243-245 195 et seq. • Service without any compulsion, Principle of diligent proceedings, 243 195 et seq. • Translation of the document, 180, Time allowed for appearance or appeal 238, 243 (expiration), 195 et seq., 219 Indirect~, 246 Official • Receiving authority, 246 Deadline, see Date of service • Translation of the document, 180, 238, 246 Declaration Objection of the State of destination, see this expression For Article 15(2), 312 et seq.

Article 16, 322 et seq. Contracting State*, see State Party Declaration about translation requirement, 181, 182 Convention, see Service Convention Declaration of objection, see Objection of the State of destination Co-operation between authorities, 197 Qualified objections, see this expression

By electronic means, 158, Annex 8: 23 Default judgment, 312 et seq.; see also Judgment by default

242 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | INDEX BY SUBJECT

Defendant, see Addressee – person to be Direct communication, see Derogatory served; Evasive (elusive) defendant; channels of transmission; Judicial officers, Protection of the defendant officials and other competent persons (service through) Multiple defendants, see Annex 6 Documents to be served Delay in effecting service, see Date of service Appeal, statement of, 81 Consents for adoption, 78 Depositary*, 113 Deeds, 78 Demands for payment, 78 Derogation, see Derogatory channels of Determination of the list of documents to transmission; Unilateral derogation from the be served (application of the lex fori), Convention (Art. 19) 54, 160 Divorce orders, 78 Derogatory channels of transmission, Duplicate, 136-137, 219, Annex 8: 18; 294-302 see also Copies (of documents to be served) Judgments and decisionsOnly, 77 Additional agreements among States, 295 Judicial and extrajudicial document, Direct communication between see these expressions Authorities, 295 Legalisation (exemption), 155 et seq. Regional instruments, see this expression Notarial documents, 78 Supplementary agreements to the 1905 NoticesUse, 78 and 1954 Conventions, 296 et seq. Objections to marriage, 78 Unilateral derogation, 300 et seq. Original (not necessary), 156 et seq., Annex 8: 18 Difficulties arising between Contracting Private documents, 78 States, 107 et seq. Protests, 78 Requests for discovery of evidence, 77 Diplomatic channels*, 239-240, Screen by the Central Authority, 159 et seq. 243 et seq., 247-249; see also Alternative Subpoenas, 77 channels of transmission Summons by huissiers, 78 Official Testamentary documents, 78 Description, 239, 240 Translation (requirement), see this Direct~, 243 et seq. expression • Service without any compulsion, Writ of summons, see this expression 243

• ForTranslation of the document, 180, 238, 243 Double-dates, see Date of service Indirect~, 247, 249 • Exceptional circumstances, 247 Due process, 35, 43-48, 95, 185, 285, Annex 8: 37, 50, 56 et seq., 65, 71, 80, • Service upon a foreign sovereign 88, 93 State, 247; see Service

• Translation of the document, 180, 238 Objection of the State of destination, see this expression

INDEX BY SUBJECT 243

E Execution of the Request for service, 162- 207; see also Electronic service (e-service) Election of domicile, see Addressee – Person to be served Formal service, see this expression

Informal delivery, see this expression Electronic means, see Information Service by a particular method, see this Technology (IT); Annex 8 expression

Electronic service (e-Service), also known Exequatur, see Recognition and Enforcement as service by electronic means (Exequatur)

~ under Article 19, Annex 8: 46 Explanatory Report of the Service ~ under the alternative channels of Convention* transmission, Annex 8: 34 et seq.

~ under the main channel of Extrajudicial documents*, 78 et seq.; transmission, Annex 8: 30 et seq. see also Judicial documents; Documents to be Developments in service by e-mail, served Only Annex 8: 47 et seq.

Developments in service by fax, Broad interpretation, 82 Annex 8: 96 et seq. Characterisation, 80 Developments in service by social networking sites, message board, Internet and text messages, Use Annex 8: 83 et seq. F

E-mail (service by), Annex 8: 47 et seq.; see also Electronic service (e-service) Facebook (service by), Annex 8: 84-89; see also Electronic service (e-service)

EU Service Regulation (2000 and 2007)*, 337-340 Fax (service by), 98, 252, Annex 8: 96 et seq.; see also Electronic service (e-service)

Relationship with the Service Convention, 340 OfficialFees , see Costs for service

Evasive (elusive) defendant, 96, Form, see Model Form Annex 8: 25, 53, 64-65, 83 Formal service, 163-165 EvidenceFor Convention (Hague)*, 56, 60 et seq., 232 ~ by electronic means, Annex 8: 30 Costs for service, see this expression Conflicts with Service Convention, 77 Translation (requirement), see this expression Exclusivity, 50-51 Validity of service, 48, 49, 53, 165, 307, 315; Annex 8: 30 Derogatory channels of transmission, see this expression Forum State* Terminology, 30 Forwarding authority*, 121-133 244 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | INDEX BY SUBJECT

Agent for service, 169, see also this Authority or judicial officer, 121, expression 129 et seq. Costs, see Costs for service Competence (under the law of the Refusal by the addressee to accept the requesting State), 123, 125-127, 132 document, 147, 170 Costs, 186, 191 Translation, 178, 179 Lawyers, 129 et seq. Validity of service, 48, 49, 53, 165, 307, Model Form (good practices), 67, 127, 137, 315; 141, 142. Private person (exclusion), 122, 132, 133 Information technology (IT), Annex 8 Private process server, 132, 133 Solicitors, attorneys, 129 et seq. Co-operation between authorities by electronic means, see this expression Functional equivalence (approach), Electronic service (e-Service), see this Annex 8: 8, 19, 27, 35 expression Electronic transmission, see Transmission abroad

Only H Infringement of sovereignty and security, see Refusal to execute the Request (final) Hague Conference on Private International Law (“Hague Conference”)* Injunction (service of), 226; see also Anti- suitUse injunction Member of the* Inter-American Convention on Letters Hague Conventions* Rogatory and its Protocol*, 299, 330-334

History of the Convention, 1 et seq. Non-exclusive character, 331 Relationship with the Service Convention,333 et seq. Huissier de justice (judicial officer)*

Costs, 188, 191 Official Direct communication, 287 et seq., 292 J Forwarding authority, 124, 289 International Union of Judicial Officers, 2 Judgment by default, see also Protection of Service effected by ~ (signification), 55, 164, the defendant 287For et seq., 291, 292 Delivery of judgment (Art. 15(2)), 312 et seq. Provisional or protective measures I (Art. 15(3)), 321 Relief from expiry of time for appeal Immunity (State), 24 (Art. 16), 322 et seq. Stay of entry (Art. 15(1)), 304 et seq. Informal delivery, 169-170 Judicial documents*, 76 et seq.; see also ~ by electronic means, Annex 8: 33 Extrajudicial documents; Document to be served INDEX BY SUBJECT 245

Broad interpretation, 82 Electronic service under ~, see Electronic Characterisation, 80 service (e-service) Writ of summons or equivalent Formal service, see this expression document, 77, 279, 305 Informal delivery, see this expression Service by a particular method, see this Judicial officers, officials and other expression competent persons (service through), 287-293 Mandatory character of the Convention (non), 31-49 Attorney, 290, 292 Customs officers, 292 Clause in a contract opting out of the Direct communication between ~, Convention, see this expression 287 et seq. History of the negotiations of the Direct communication between a person Convention, 39 et seq. interested in the proceedings and ~, Key judgments (Mabanaft and Schlunk), 291, 292, 293 31 et seq. Huissier de justice, see this expression National practice, 42 et seq. International Union of Judicial Officers, 2 Terminology, 30 Only Notary, 292 Objection, 287, 291, 293 Message board (service by), Annex 8: 91; Person interested in the proceedings, 291 see also Electronic service (e-service) Private process server, 132, 133, 292 MilitaryUse personel (service upon), 91 Receiving authorities (application of the law of the State of destination), Model Form*, 136-158, Annexes 2-6 288 et seq. Solicitor (English), 290 Alternative channels of transmission, 154 Translation of the document, 238 Bilingual and trilingual ~, 142, see also United Kingdom, 290 Annex 6 and Annex 8 para: 16 Validity of service, 52 Certificate of service, 147, 148; see also this expression OfficialDuplicate, 136, 137, 219 L Electronic copies, 158, Annex 8: 18 Electronic version (fillable) of ~, 142; Annex 8: 16 Legal aid or advice, 4, 150, Annexes 3-6, Guidelines for completing the Model see also Summary of the document to be Form and good practice, 140-142, servedFor; Warning see also Annex 6 Legalisation (exemption), 155 et seq. Legal persons, 23 et seq. Mandatory use, 153 Request form, 143 et seq. Summary of the document to be served, M 150, see also this expression Translation, 151-152

Transmission, 135, see also this expression Main channel of transmission*, 111 et seq.; see also Central Authority Warning, 150

246 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | INDEX BY SUBJECT

Monitoring the practical operation of the Permanent Bureau* Convention, 100 et seq. Role of ~, 101-102, 105 Motion to set aside a default judgment, 322 et seq. Person interested in a proceeding, 291

Postal channels (Art. 10(a))*, 250-286; N see also Alternative channels of transmission

Notification au parquet, 2, 8-11, 17, 44, 260 ~ by electronic means, 252; see also Annex 8: 34 et seq.

Accredited IT companies, Annex 8: 42

Notion, 251 et seq. O Objection, 259-261, 263 et seq. • Infringement of sovereignty and OAS Convention, see Inter-American security, 260 Convention on Letters Rogatory and its • Notification auOnly parquet (application Protocol of the objection), 260 • Qualified ~, 262 Objection of the State of destination • Reciprocity, 263 et seq. • Service on the Secretary of State Direct communication (Arts 10(b) and (c)), (application of the objection), 260 287, 291 PrivateUse courier service, 253 et seq. Direct consular or diplomatic channels Recognition of the judgment, 268- 269 (Art. 8(2)), 243 Translation (requirement), 264, 283 et seq. Postal channels (Art. 10(a)), 259 et seq. United States (special position), 270 et seq. Qualified ~, 262, 284 Universal Postal Union Convention, 252; Reciprocity, 263 et seq. Annex 8: 39-40 Validity of transmission in the event of an Validity (criteria of), 256 et seq., objection, 259, 293 et seq. Annex 8: 37; see also above United States (special position) Objectives of the Convention,Official 6 et seq.; • Lex fori (application of), 257, 258 see also Annex 8:23 • No objection, 259 et seq.

Open character of the Convention, Practical information chart per 14 et seq. Contracting State, see Service Section For Private courier service, see Postal channels P Private persons, 23, 82, 122, 132-133 Parquet, see Notification au parquet Private process server, see Judicial officers, officials and other competent persons (service Particular method see Service by a , through); Forwarding authority particular method

Protection of the defendant, 6 et seq., Payment in electronic form, 194 303-328

INDEX BY SUBJECT 247

Continuation of proceedings (Art. 15(2)), Recognition and Enforcement 312 et seq. (Exequatur), 216, 235, 238, 268-269; Delivery of judgment by default see also Protection of the defendant (Art. 15(2)), 312 et seq. “Every reasonable effort”, 312, 320 Postal channels, 268, 269 In due time, 309 et seq. Public policy, 235 Operation of internal law, 311 Validity of the service, 165 Protection prior to a judgment (Art. 15), 304 et seq. Refusal by the addressee to accept the Protection after a default judgment document (informal delivery), 147, 170 (Art. 16), 322 Provisional or protective measures Refusal to execute the Request, 217-235 (Art. 15(3)), 321

Relief from expiry of time for appeal Final~, 220 et seq. (Art. 16), 322 et seq. • Anti-suit injunction, 225 Stay of entry (Art. 15(1)), 304 et seq. • Class actions, 233-234 Writ of summons or equivalent document, 305 • Entitity makingOnly the Request, 235 • Exclusive jurisdiction over the subject-matter, 231 Provisional or protective measures (Art. 15(3)), 321 • Infringement of sovereignty and security, 220 et seq.

• Injunction, 226 Publication of the document to be served, Use• Lack of jurisdiction of the foreign 93-96, 204, 316, Annex 8: 85, 91, 93 court (exception not relevant), 231

• Public policy, 222-223, 235 Public policy, 222 et seq., 235, 261 • Punitive damages, 233-234

• Time-limits have lapsed or are too Punitive damages, 61, 70, 224, 233-234 short, 235

• Treble damages, 70

• Unacceptable grounds for refusal, Q 230 et seq. OfficialTemporary~, 218, 219 Qualified objection, 262, 284 • Absence of a copy of the document, 219

• Expiration of the time for Questionnaires (2003, 2008 and 2013)* appearance, 219

• Incomplete address, 89-90, 219 For

R Regional instruments, see Treaties

Ratification*, 14-15 Relationships with the 1896, 1905 and 1954 Conventions, 3 et seq. Receiving authority*, see Central Authority Supplementary agreements to the 1905 and 1954 Conventions, see Additional Reciprocity of objection, see Objection agreements

248 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | INDEX BY SUBJECT

Relief from expiry of time for appeal Mandatory, see Mandatory character of the (Art. 16), 322-328 Convention (non) Natural and legal persons, State agencies Appeal, see this expression and States, 23 et seq. Decisions concerning personal status Personal ~, 23 et seq. (exclusion), 327 Place of service as determining factor, Motion to set aside a default judgment, 16 et seq. see this expression Service, see this expression Time (declarations), 325 States Parties, 20 et seq. Territorial ~, 16 et seq. Request for service* 136 et seq., Annexes 2, Transmission abroad, see Mandatory 3 and 6 character of the Convention (non), Exclusivity Blanks, 151-152 Unknown address of the addressee, 88 et seq. Documents to be served, see this expression

Duplicate, See Documents to be served Secretary of State (service upon), 12, Execution of the request for service, 43-44, 260; see also Agent for service see this expression Only

Form, see Model form Service* Forwarding authority, see this expression

Guidelines for completing ~, Annex 6 ~ clause, see this expression Items printed, 151 ~ on Embassies and Consulates, 28 Sending ~ to the Central Authority, Use 134-135, Annex 8: 10 et seq. ~ on government entities, 23 et seq. ~ on States, 23 et seq. Requested State* ~ on the Secretary of State, see Secretary of State (service upon)

~ Section*, 100 Requesting authority*, see Forwarding authority Addressee – person to be served, see this expression

Concept, 53 Requesting State* Costs for service, see this expression Official Date of service, see this expression Reservation, see Objection Electronic means (service by), see Electronic

service (e-service)

Failure to serve, 147, 165 For S Judicial officers, officials or other competent persons (service through), see this expression Scope of the Convention, 16 et seq. Method, 162-170

• Formal service, see this expression Civil or commercial matters, see this expression • Informal delivery, see this expression Collective redress, see this expression • Service by a particular method, see this expression Exclusivity, see this expression Notification au parquet, see this expression Extension of application of the Convention, see this expression Place of service, 16 et seq. Judicial and extrajudicial documents, Substantive rules, 7, 8, 52, Annex 8: 9 see these expressions Substituted service, see this expression INDEX BY SUBJECT 249

Terminology, 52-55 State Time of execution, 195 et seq. Validity, 48, 49, 53, 165, 257 et seq., 307, ~ Agencies, 23 et seq. 315, Annex 8: 30, 37 ~ Immunity, 24 ~ of destination* Service by a particular method, 166-168 ~ of origin* ~ Party, see State Party ~ by electronic means, Annex 8: 31-32 Addressee, see Addressee – person to be Costs, see Costs for service served, see also Diplomatic channel Translation (requirement), see this (indirect) expression Contracting State, see this expression Validity of service, 48, 49, 53, 165, 307, Requested ~* 315, Requesting ~* Service upon a foreign sovereign State, Service Convention (Hague)* 23 et seq., see also Diplomatic channel (indirect) Full text of ~, Annex 1 Sovereignty or security (infringement of), 24, 159, 220 et seqOnly. Monitoring the practical operation of ~, 100 et seq. Objectives, 6 et seq. State of destination* Origins, 2 Relationship to other treaties, 296 et seq., State of origin* 329 et seq. Use Relationship to the 1896, 1905 and 1954 State Party*, 14-15, 20 et seq. Conventions,3 et seq. Relationship to the Evidence Convention, Status table* 56, 60, 62, 68, 77, 111, 115, 232

Scope of the Convention, see this expression Stay of entry (Art. 15(1)), 304 et seq.

Service Section*, 100 Conditions,306 et seq.

• In due time, 309-310 Set aside a default judgment, 322 et seq. Official • Valid service, 307-308

Continuation of proceedings (Art. 15(2)), Signification (service by a huissier or 312 et seq. judicial officer; definition), 55 Provisional or protective measures (Art. 15(3)), 321 SolicitorsFor (attorneys, advocates), Writ of summons or an equivalent see Forwarding Authority; Judicial officers, instrument, 304-305 officials and other competent persons (service through) Subsidiary (Service on domestic), 44 et seq.

Sovereignty or security (infringement of), see Refusal to execute the request (final) Substituted service, 12, 43, 260, Annex 8: 48 et seq., 83 et seq.; see also

Address (unknown); Evasive (elusive) Special Commission*, 103 et seq. defendant

Summary of the document to be served*, 150, Annexes 2-6 250 PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION | INDEX BY SUBJECT

Alternative channels of transmission, Transmission abroad 153, 286 Blanks, 151-152 Channels of transmission provided for by Items printed, 151 the Convention, see Channels of Guidelines for completing ~, Annex 6 transmission Mandatory use (main channel), 153 Condition for the application of the Convention, see Mandatory character of Translation, 151, 177, 182-183, 185 the Convention (non); Exclusivity Warning, 150, Anexes 3-6 Court-to-court transmission, 295

Transmission of the Certificate of service Supoenas (service of), 77 by electronic means, Annex 8: 19 Transmission of the service request by electronic means, Annex 8: 10 et seq. T Transmission to the foreign Central Authority (form), 134, 135

Transmission under Article 10(b) and (c) Technology, see Information Technology by electronic means, Annex 8: 20 et seq.Only Territories, extending the applicability of the Convention to, 22 Treaties (regional instruments), 296-299, 329-340 Text messages (SMS) (service by), Annex 8: 94; see also Electronic service Asian-African Legal Consultative (e-service) UseOrganization (AALCO; Model Bilateral Convention), 299, 335 et seq. Time allowed for appearance, reply or EU Service Regulation (1393/2007), 299, appeal provided for by national procedural 337 et seq. laws, 8, 195 et seq., 203 et seq., 219, 235 Inter-American Convention on Letters Rogatory and its Protocol, 299, Timelines for the execution of Requests 330 et seq. for service, 197 et seq. Las Leñas Protocol on Judicial Co- operation and Assistance in Civil, Commercial, Labour and Translation (requirement) Administrative Matters, 299 Official Minsk and Kishinev Conventions on Legal Alternative channels of transmission, 180, Assistance and Legal Relations in Civil, 238, 246, 283 et seq. Family and Criminal Matters, 299 Declaration in advance, 181 et seq. Nordic Convention on Mutual Assistance Due process,For 185 in Judicial Matters, 299 Main channel of transmission, 171 et seq. Riyadh Arab Agreement for Judicial Model Form, 151-152; see also this expression Co-operation, 299 Official translation, 175 Postal channels, 283 et seq. Treble damages, 70 Recommendations, 185 Several official languages, 175 Twitter (Service by), Annex 8: 90; see also Electronic service (e-service) Summary of the document, 151

INDEX BY SUBJECT 251

U

Unilateral derogation from the Convention (Art. 19), 300 et seq.

V

Validity of service, see Service (validity); Postal channels (validity)

Veto (right of), 14

W Only Waiver of service, Annex 8: 100

Warning*, 150; see also Summary of the document to be served and Annexes 3-6 Use Writ of summons*, 52, 77, 81, 261, 279, 293, 304 et seq., Annex 8: 75; see also Protection of the defendant

Cross-complaint (USA), 77, 305 Notice of appeal, 81, 305, 323 Third-party impleader, 305 Official For

Only Hague Conference on Private International Law Permanent Bureau Churchillplein 6b 2517 JW The Hague The Netherlands Use

+31 70 363 3303 +31 70 360 4867 [email protected] www.hcch.net

Official

For

Practical Handbook on the Operation of the Service Handbook on the Operation ConventionPractical s v

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