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A Comparative Analysis: Notice Requirements in Germany, Japan, Spain, the United Kingdom and the United States [Article]
Item Type Article; text
Authors Raley, G. Brian
Citation 10 Ariz. J. Int'l & Comp. L. 301 (1993)
Publisher The University of Arizona James E. Rogers College of Law (Tucson, AZ)
Journal Arizona Journal of International and Comparative Law
Rights Copyright © The Author(s)
Download date 25/09/2021 04:51:19
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Link to Item http://hdl.handle.net/10150/659414 A COMPARATIVE ANALYSIS: NOTICE REQUIREMENTS IN GERMANY, JAPAN, SPAIN, THE UNITED KINGDOM AND THE UNITED STATES
G. Brian Raley*
I. INTRODUCTION
With the rapid development of international trade and investment during the past thirty years, 1 the volume of transnational litigation has increased dramatically. Plaintiffs frequently find it necessary to bring suits against legal persons located outside the boundaries of their own countries. Likewise, parties today more readily find themselves subject to lawsuits originating from abroad. Although the concept of giving notice serves the basic function of informing the defendant of a pending lawsuit,2 the pitfalls of giving notice are numerous and the penalties severe for failure to comply strictly with the service of process rules of the appropriate forum. To respond effectively to the complexities of modem international litigation, lawyers must have a working knowledge of the law and practice of giving notice abroad. This article provides an analysis of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (hereinafter Hague Service Convention or Convention), 3 and illustrates the current status of national and international laws
* Law clerk to the Honorable Joel J. Fryer, Atlanta, Georgia. B.S., Samford University, 1988; J.D., University of Georgia, 1991; LL.M., Vrije Universiteit Brussel, 1992. For their gracious assistance in the preparation of this article, the author thanks Rachel Barlow, Erik Bertelsen, David Marko, Fraser McKie, and Kimberly Cronkright Raley. 1. The 1960s brought the realization of liberalized trading through multilateral passage of the General Agreement on Tariffs and Trade (GATT), growth of transnational companies, decolonization and sustained economic growth in the member states of the Organization for Economic Cooperation and Development. These factors resulted in soaring international trade and investment. R. Doak Bishop, InternationalLitigation in Texas: Service of Process and Jurisdiction,35 Sw. L.J. 1013 (1982). 2. Kenneth B. Reisenfeld, Service of United States Process Abroad: A Practical Guide to Service Under the Hague Service Convention and the Federal Rules of Civil Procedure, 24 Intl Law. 55, 56 (1990). 3. Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, opened for signature Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638, 658 U.N.T.S. 163 [hereinafter Hague Service Convention]. The Convention may be found in Hague Conference on Private International Law, Practical Handbook on the Operation of the Hague Convention of Nov. 15, 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 3 302 Arizona Journal of Internationaland Comparative Law [Vol. 10, No. 2 designed to ensure that defendants receive adequate notice. Subsequent to an examination of the multilateral convention is a comparative study of notice requirements in Germany, Japan, Spain, the United Kingdom and the United States. Notice requirements generally exist to protect the interests of the defendant. In practically every legal system, a party is entitled to notice of a pending lawsuit and an opportunity to defend in the proceedings. Service of process is the formal delivery of documents that is legally sufficient to charge the defendant with notice of a pending action. 4 However, compliance with a country's notice requirements normally does not bestow personal jurisdiction over the defendant. Instead, personal jurisdiction exists only when the party is amenable to suit in the particular forum and notice is given through valid service of process.5 Thus, in most jurisdictions service of process only fulfills the second notice requirement, the opportunity to defend in proceedings. From a practical standpoint, the legal strategy for any international lawsuit is affected by the notice requirements in a foreign country. If proper service is not made before the relevant statute of limitations lapses, the suit may be dismissed with prejudice, thus, preventing the plaintiff from further pursuing the cause of action. Because service of process abroad typically takes longer than domestic service, a quicker procedure for effectuating notice will be necessary if time is of the essence. 6 In some cases, the failure to observe notice requirements in a foreign country may result in the lodging of a formal diplomatic note of protest from the foreign government.7 In addition, after initiating a suit, a party may encounter difficulties in obtaining evidence, such as documents or testimony from foreign non-parties. Because acguiring evidence abroad from a non-party often proves practically impossible, it may be necessary to make any foreigner (1983). 4. Black's Law Dictionary 1368 (6th ed. 1990). 5. Service of Process Abroad: A Nuts and Bolts Guide, 122 F.R.D. 63, 64 (1989) [hereinafter Service of Process Abroad]. Some countries accept personal jurisdiction when the defendant is served personally within the forum state. Id. at 64. See, e.g., infra text accompanying note 174. 6. Reisenfeld, supra note 2, at 60. 7. For example, both Germany and Switzerland lodged protests with the United States Department of State regarding the service of process by mail from the United States. See generally Biehl Offshore, Inc. v. Campbell Industries, No. H-80-1015 (S.D. Tex. 1980); Atlantic Steamers Supply Co. v. Intl Maritime Supplies Co., 268 F. Supp. 1009 (S.D.N.Y. 1967). 8. Service of ProcessAbroad, supra note 5, at 64. Under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, opened for signature March 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444, 847 U.N.T.S. 231, some countries refuse to execute requests for pretrial discovery of documents. These countries include Germany, Italy, Luxembourg, Portugal and Spain. Other countries, such as Denmark, Finland, France, the Netherlands, Norway, Sweden and the United Kingdom limit enforcement of such pretrial discovery requests to individual documents specified in the request by the party. 1 B. Ristau, International Judicial Assistance: Civil and Commercial § 3-41 (1984). 1993J Comparative Analysis of Notice Requirements possessing the relevant materials and information a party to the lawsuit and then validly serve process on that party.9 Failure to follow notice requirements may also result in the unenforceability of the lawsuit's judgment in a foreign country. If a method of service which violates the foreign country's laws is used and the prevailing party must resort to the foreign court to collect the judgment, such judgment would likely be unenforceable.1 0 Thus, a plaintiff should always respect the notice requirements of a foreign country whenever a foreign defendant is involved. To alleviate this problem of unenforceable judgments, the Member States of the European Community codified the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (hereinafter Brussels Convention). 11 The primary objective of the Brussels Convention is to provide for uniform recognition and enforcement practices among the Member States. 12 Its entry into force has led to greater legal certainty and predictability in the enforcement of judgments within the European Community. Furthermore, the Brussels Convention simultaneously protects the rights of the defendant by requiring adequate and timely notice. 13 In addition, the Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 14 extends the rules of the Brussels Convention to those countries belonging to the European Free Trade Association. While adherence to particular notice requirements is essential to the success of any international lawsuit, notice provisions vary substantially from country to country. An analysis of current standards for giving notice must begin with an in-depth examination of the Hague Service Convention. In order to fully comprehend this Convention, the historical events leading to its adoption must be addressed, followed by a step-by-step analysis of the Convention's provisions, including its purpose and scope, the methods of service allowed, and the measures
9. Service of Process Abroad, supra note 5. 10. Reisenfeld, supra note 2, at 58-59. 11. European Communities Convention on Jurisdiction and Enforcement' of Judgments in Civil and Commercial Matters, 1969 O.J. (C 97), 8 I.L.M. 229 (1969). The Brussels Convention is currently in force in all Member States of the European Community except Spain and Portugal, where the ratification processes are still pending. Cheshire & North, Private International Law 283 n.3 (1987). 12. Joseph Halpern, "Exorbitant Jurisdiction" and the Brussels Convention: Toward a Theory of Restraint, 9 Yale J. World Pub. Ord. 369, 382 (1983). 13. See, e.g., Case 125/79 Denilauler v. Couchet Freres, 1980 E.C.R. 1553, 1569- 71. 14. Convention 88/592, Convention of September 16, 1988 on Jurisdiction and the Enforcement of Judgments in Civil Matters and Commercial Matters, 1988 O.J. (L 319) 9. The Lugano Convention has not yet entered into force. It has been signed by Belgium, Denmark, Finland, France, Germany, Greece, Iceland, Italy, Luxembourg, Netherlands, Norway, Portugal, Sweden, Switzerland and the United Kingdom. Jean Thieffry, European Integrationand TransnationalLitigation, 13 B.C. Intl & Comp. L. Rev. 339, 351 (1990). 304 Arizona Journal of Internationaland ComparativeLaw [Vol. 10, No. 2 taken to reduce the likelihood of a default judgment.
11. THE HAGUE SERVICE CONVENTION
A. Histor
Following the conclusion of World War II, the international business and economic ties among many countries expanded considerably. 15 However, the process of establishing a modernized system of international judicial assistance had stagnated in the pre-war era because of the refusal of the United States to cooperate in negotiations for a unitary approach. Instead of adopting a multilateral solution to the problem, the United States historically followed a policy of "judicial isolationism" in the area of private international law. 16 For example, in 1854 the United States rejected an offer from France to enter into a bilateral agreement promoting mutual judicial assistance. 17 Similarly, the United States declined to participate at the Hague Convention on Civil Procedure of 1905, a Convention designed to promote judicial assistance between countries.1" By 1951, this defiant position of the United States was so well- known in international circles that the Seventh Hague Conference of 1951 did not even extend an invitation to the United States.19 This position of the United States was based mainly upon the inherent differences between the civil law systems of most European nations and the United States' common law system and the potential difficulties of uniformity envisaged in the United States' federated judicial system, in which states maintain separate jurisdictional procedures.20
15. Commission on International Rules of Judicial Procedure Establishment, S. Rep. No. 2312, 85th Cong., 2d Sess. (1958), reprinted in U.S. Code Cong. & Admin. News 5201 (1958). 16. Armando L. Basarrate, II, Comment, International Service of Process: Reconciling the Federal Rules of Civil Procedure with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 21 Vand. J. Transnat'l L. 1071, 1072-73 (1988) [hereinafter International Service]. 17. Harry L. Jones, International Judicial Assistance: Procedural Chaos and a Programfor Reform, 62 Yale L.J. 515, 557 (1953). 18. Id.; see also InternationalService, supra note 16, at 1073. 19. Jones, supra note 17, at 558. 20. Gary A. Magnarini, Comment, Service of Process Abroad Under the Hague Convention, 71 Marq. L. Rev. 649, 652 (1988) [hereinafter Service of Process]. Ironically, the existence of the United States' federated system was also cited for support of the proposition that the United States should sign an international treaty on judicial assistance. According to Lloyd Wright, President of the American Bar Association in 1958: 19931 Comparative Analysis of Notice Requirements
However, as the volume of international litigation increased in the post- World War II era, the formulation of an international treaty became necessary to allow American litigants the opportunity to give notice and effectuate service of process on foreigners.2 1 United States plaintiffs were finding it increasingly difficult to give notice in a manner which complied with foreign law and which satisfied domestic U.S. due process requirements. Thus, in 1956, the United States ended its longstanding isolationism by sending an observer group to the Hague Conference on Private International Law.2 2 Then, in 1963, President Lyndon B. Johnson authorized the United States to become a full-fledged member of the Hague Conference on Private International Law.23 The 1964 meeting of the Conference produced the Hague Service Convention. 24
B. Purpose and Scope of the Convention
The purpose of the Convention, as stated in its preamble, is "to create appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time,"25 and "to improve the organization of mutual judicial assistance ... by simplifying and expediting the procedure." 2 6 The Convention attempts to solve the problem of nonuniformity in the international service of process rules in the following
With 49 separate procedural jurisdictions in the U.S .... a unitary approach is the only solution. We can hardly expect [a foreign government] to look favorably on a program of separate negotiation with the representatives of each of the 48 states and with the representatives of the Federal Government. The problems must be solved through a single, unified set of discussions, the results of which will be effective for all the 49 jurisdictions. S. Rep. No. 2392, 85th Cong., 2d Sess. (1958); reprinted in U.S. Code Cong. & Admin. News 5201, 5206 (1958). 21. Service of Process, supra note 20, at 653. 22. International Service, supra note 16, at '1074. The Hague Conference on Private International Law was initiated in 1888 and meets every four years to attempt to solve problems in private international law. Id. at 1074 n.16. 23. Id. at 1074. At the prompting of President Johnson, the Senate and House of Representatives passed a joint resolution authorizing the President to accept membership in the Hague Conference on Private International Law and allocating appropriate funds. H.R.J. Res. 778, 88th Cong. 1st Sess., (1963), 77 Stat. 775. 24. According to the United States Department of State, as of April 1992 the following twenty-nine countries were parties to the Hague Service Convention: Antigua & Barbuda, Barbados, Belgium, Botswana, Canada, China, Cyprus, Czechoslovakia, Denmark, Egypt, Finland, France, Germany, Greece, Israel, Italy, Japan, Luxembourg, Malawi, the Netherlands, Norway, Pakistan, Portugal, Seychelles, Spain, Sweden, Turkey, the United Kingdom, and the United States. The United Kingdom ratification also extends to Bermuda, the British Virgin Islands, the Cayman Islands, and Hong Kong. Treaties in Force 351 (U.S. Dep't St. 1993). 25. Hague Service Convention, supra note 3, at Preamble. 26. Id. 306 Arizona Journal of Internationaland ComparativeLaw [VoL 10, No. 2 ways: first, by providing an adequate and effective system of international judicial assistance; and second, by respecting basic due process considerations regarding notice. Three important provisions limit the scope of the Convention. Under Article 1, the Convention applies "in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad."27 However, the Convention does not apply in cases where the "address of the party to be served with the document is not known. "28 Importantly, no agreement exists as to the meaning of the term "civil or commercial matters" found in the first limiting provision. Although many signatory nations interpret this phrase differently in separate legal areas such as administrative law, family law, or fiscal law, the phrase is generally viewed as excluding criminal matters.29 The second requirement that there be occasion for a document to be transmitted for "service abroad" has also created complications, specifically in the United States. In 1988, the United States Supreme Court held that whenever service can be accomplished domestically (under state law) on an imputed agent of a foreign corporation, then the Hague Service Convention does not apply. Thus, foreign defendants must be aware that in the United States, the Convention no longer provides the exclusive means of serving foreign entities. Finally, for the Convention to apply, the address of the foreign defendant must be known. However, member countries generally3 1will not automatically reject the request for service where the address is incorrect
C. Methods of Service Allowed Under the Convention
The Hague Service Convention provides for three possible categories of notice methods. First, service may be given through the Central Authority of the receiving country.32 Second, other "non-objectionable" service methods, i.e. 33 service methods not objected to by the receiving country, may be employed. Finally, notice may be given by any method permitted by the internal law of the receiving country.34
27. Id. at art. 1 (emphasis added). 28. Id. (emphasis added). 29. Service of Process, supra note 20, at 666. 30. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988). See infra notes 231-237 and accompanying text. 31. Permanent Bureau, 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, 17 I.L.M. 319, 321 (1977). 32. Hague Service Convention, supra note 3, at art. 5. 33. Id. at arts. 8-11. 34. Id. at art. 19. 19931 Comparative Analysis of Notice Requirements
1. Service Through the Central Authority
Transmitting documents through a Central Authority is the principal method of service under the Convention. 5 Each member country must designate a Central Authority which receives requests for service.3 6 For a service request, the applicant must send to the Central Authority the document to be served, or a copy, as well as the following three model forms required by the Convention: (1) the "Request";3 (2) a "Summary of the Documents to be Served"; and (3) a "Certificate." 7 Procedurally, the Request and Summary must be filled out by the requesting party while the Certificate will be completed by the Central Authority.38 The Central Authority is responsible for determining whether the request conforms to the Convention. If the request is found to conform, the Central Authority then serves the document. But if the request is defective in any way, the Central Authority must "promptly inform" the applicant and declare its 39 objections. Once 4the0 request is served, the Central Authority certifies and returns the Certificate. The Hague Service Convention provides for two means of service by the Central Authority. First, Article 5(a) allows the Central Authority to serve the documents by a method prescribed under the country's internal laws. This method has proven advantageous since it typically ensures the enforceability of a 4 1 judgmentif the plaintiff is forced to resort to the foreign court system. Second, Article 5(b) allows the requesting party to specify a particular method of service provided that such a method is compatible with the internal law of the receiving country. Under this method of service, the Central Authority may always serve a document by delivery to an addressee who accepts such delivery 42 voluntarily. Commonly known4 3as "remise simple," this form of service has proven quite successful in Europe. 2. Other Service Methods Under the Convention
The Hague Service Convention provides several alternatives to giving notice through a Central Authority. Article 8, for example, allows for direct service by the requesting country's diplomatic or consular agents. However, approximately one-half of the member countries oppose this form of service and do not use it.44
35. Service of Process, supra note 20, at 670. 36. Hague Service Convention, supra note 3, at art. 2. 37. Id. at arts. 3-5. 38. Id. at art. 6. 39. Id. at art. 4. 40. Id. at art. 6. 41. Reisenfeld, supra note 2, at 69. 42. Hague Service Convention, supra note 3, at art. 5. 43. Reisenfeld, supra note 2, at 70. 44. Id. at 71. The widespread opposition to service performed by diplomatic or consular agents arises from the desire of receiving countries to maintain control over 308 Arizona Journal of Internationaland ComparativeLaw [Vol. 10, No. 2
Article 10 of the Convention provides for additional alternative service methods. Article 10(a) is the single most litigated provision of the Convention45 because the actual text of the Convention allows the requesting party to "send" judicial documents rather than "serve" them.46 Consequently, some national courts are divided on the issue of whether the Convention permits service by mail.47 Articles 10(b) and 10(c) provide for service of process by judicial officers, officials, or other competent persons of the state. Although these provisions appear to permit service by either a court-appointed process- server or a foreign process-server hired directly, many countries object to these articles, thus, diminishing their availability. 48 In addition, whether the scope of the phrase "judicial officers, officials or other competent persons" covers private process servers appointed in civil law countries remains unclear.49 Thus, articles 10(b) and 10(c) provide little certainty for5 0plaintiffs attempting to effectuate service without using the Central Authority. 3. Service According to the Internal Laws of the Receiving Country
Article 19 provides for service by means of additional methods authorized by the receiving country for the transmission of documents from abroad. Contracting states generally construe this provision narrowly, thus permitting51 service only by means specifically enumerated in the receiving country's laws. The Hague Service Convention also requires a receiving country to accept service which complies with the terms of the Convention. If the request for service abides by the terms of the Convention, the receiving state must accept it unless such compliance will "infringe its [the receiving state's] sovereignty or security."52 By limiting the scope of a state's power to refuse requests for service to cases involving national sovereignty, Article 13 of the Convention represents an important enforcement mechanism.
D. Default Judgment Provisions Under the Convention The Hague Service Convention also strives to ensure that a defaultjudgment the actual service of process. 45. Service of Process, supra note 20, at 677. 46. Hague Service Convention, supra note 3, at art. 10(a). 47. See, e.g., supra text accompanying note 118. 48. Reisenfeld, supra note 2, at 72. The objectors include Germany, Japan and the United Kingdom. Id.; see supra note 44. 49. Id. 50. It should be noted that Article 11 of the Convention allows two or more contracting states to enter into bilateral or multilateral agreements permitting service by channels other than those provided for in the Hague Service Convention. Hague Service Convention, supra note 3, at art. 11. 51. Service of Process, supra note 20, at 681-82. 52. Hague Service Convention, supra note 3, at art. 13. 19931 Comparative Analysis of Notice Requirements
will not be entered against a defendant unless that defendant actually receives notice. Articles 15(a) and 15(b) provide that judgment shall not be given unless service is made according to the internal law of the receiving nation or service is "actually delivered" to the defendant at his or her residence by another method provided for in the Convention.5 3 In either instance, service must be given in sufficient time to allow the defendant to defend.54 By severely restricting the instances in which a default judgment may be entered, these two provisions serve as procedural safeguards to defendants. However, under the second half of Article 15, a contracting state may declare that a default judgment can be entered if the following conditions are satisfied: (1) service is transmitted by a method accepted under the Convention; (2) at least six months have elapsed since the transmission of notice; and (3) every "reasonable effort" has been made to obtain the certificate of service from the authorities of the receiving state, but no certificate of any kind has been received.55 Yet the ability to utilize this provision is limited. Under a strict interpretation of Article 15, it is unlikely that a party will make a "reasonable effort" to obtain proof of service unless he or she attempts service through the Central Authority of the receiving state. And if the plaintiff uses a method of service through the Central Authority, Article 6 of the Convention requires the Central Authority to complete a certificate either indicating proof of service or explaining why the document could not be delivered. Since both of these responses must be made in the form of a certificate under Article 6, the Article 15 requirement that "no certificate of any kind has been received" would not be satisfied in either instance. Thus, the only scenario for entry of a default judgment under Article 15 occurs when the Central Authority of a receiving state refuses to respond to the plaintiff as required by Article 656 The Convention also provides for relief from the entry of default judgments in Article 16. Under this section, a defendant subject to a default judgment may be allowed extra time for appeal from the judgment as long as the defendant without fault had no knowledge of the service document in time to defend or appeal, and as long as the defendant shows a prima facie defense to the action on the merits.57 Although some analysts construe this article as providing courts with the power to vacate default judgments, 58 the actual language of the text merely indicates that the judge may "relieve the defendant from the effects of the expiration of the time for appeal" if the necessary conditions are fulfilled. Thus, only the judge has the authority to extend the time period during which the
53. Id. at art. 15(a)-(b). 54. Id. at art. 15. 55. Id. at art. 15. 56. Service of Process, supra note 20, at 683-84. 57. Hague Service Convention, supra note 3, at art. 16. 58. See, e.g., Philip W. Amran, The Proposed International Convention on the Service of Documents Abroad, 51 A.B.A. J. 650, 653 (1965); Bishop, supra note 1, at 1043. 310 Arizona Journal of International and Comparative Law [VoL 10, No. 2 defendant may appeal a default judgment, but the judge does not possess the authority to vacate such a judgment. In addition, each contracting state may declare that an application for relief provided59 for under Article 16 will not be entertained after a certain period of time.
III. A COMPARATIVE ANALYSIS OF NOTICE REQUIREMENTS
While the Hague Service Convention succeeds in liberalizing the recognition of a number of methods of serving process while also safeguarding the rights of individual due process and of national sovereignty, an analysis of the Convention alone does not provide a complete analysis of notice requirements in the modern legal community. Although the Convention basically applies to most civil or commercial disputes, it does not apply to service in criminal cases or, in some countries, to proceedings concerning taxation, administrative law or family law. Additionally, the Convention is inapplicable when the defendant's address is unknown or if there is no occasion for the transmittal of service documents abroad. Furthermore, many significant countries have never ratified or even signed the Hague Service Convention. 60 For these reasons, it is necessary for today's lawyer to be familiar not only with the requirements for proper service under the Convention, but also with the domestic provisions of foreign countries that outline the proper ways to give adequate notice. This section of the article will first discuss certain domestic laws regarding notice before analyzing the applicability of the Hague Service Convention in five of the countries most involved in transnational litigation today: Germany, Japan, Spain, the United Kingdom and the United States.
A. Germny 1. Domestic Notice Provisions In Germany, legal provisions regarding notice are enumerated in the Zivilprozessordnung (hereinafter German Civil Procedure Code or Code).61 The act of serving process is significant in Germany because it serves the purpose of providing proof of notification to the defendant and, thus, guarantees the essential right of a defendant to ajudicial hearing. Since the German Constitution protects the right to a judicial hearing, 62 a person who has not been legally notified of an
59. Not less than one year. Hague Service Convention, supra note 3, at art. 16. 60. These countries include Australia, Austria, China, Ireland, Mexico, Poland, Russia, and Switzerland. 61. Zivilprozessordnung [ZPO]. 62. Grundgesetz [Constitution] [GG] art. 103 (F.R.G.). 19931 Comparative Analysis of Notice Requirements action pending against him or her may properly bring a constitutional complaint before the Federal Constitutional Court.63 Originally, parties in Germany were able to give notice without the involvement of the courts.64 However, a series of amendments led to increased use of the "ex-officio" method of service common in civil law countries. Today, plaintiffs use this method of service almost exclusively. 65 Domestic service of process in Germany may be performed by using one of four possible methods. First, the court may serve the defendant personally by hand delivering service to either the defendant, a representative empowered to receive complaints for the defendant or the defendant's agent who possesses power of attorney for commercial matters.66 If personal service is not possible, German law permits substitute service on another person competent to receive notice. Thus, the court may serve an adult who is a member of the defendant's family and household, or an employee located in either the household or the business residence of the defendant.67 If either the defendant, an adult or an employee refuses to accept service, it may be left at the place of service and is considered served.68 If it is impracticable to leave the service at the premises, the documents may be given to the postal services, which will then employ the third available method of service by delivering the notice to the defendant's mailbox. 69 In the event that neither an adult nor an employee can be located, the court may serve the landlord as long as he or she resides in the same building as the defendant and is willing to receive the notice.70 In Germany, the summons and complaint may be served on the defendant wherever he or she can be found.7 1 This broad statutory provision enables a competent officer to serve a defendant anywhere within the territory of the country regardless of the jurisdictional boundaries of the court in which the proceedings were filed. In addition to personal service, service on another competent party and72 service by mail, German procedural law permits service by publication. However, a court may use this method of giving notice only when it can be shown that the residence of the intended recipient is unknown. If this is proven, then the court will post the document to be served on the bulletin board of the court where the action was filed, and the document is deemed served thirty days
63. Id. at art. 93(4)(a). 64. The German Code of 1877 in its original text provided for service by the parties. Simon L. Goren, The Code of Civil Procedure Rules of the Federal Rules of Germany of Jan. 30, 1877, and the Introductory Act for the Code of Civil Procedure Rules of Jan. 30, 1877, 44 (1990). 65. See ZPO § 270. 66. Id. §§ 170-171, 173. 67. Id. § 181(1). 68. Id. § 186. 69. Id. § 182. 70. Id. § 181(l). 71. Id. § 180. 72. Id. § 203. 312 Arizona Journalof Internationaland Comparative Law [Vol. 10, No. 2 after it is posted.73 This manner of service remains valid even if the posted notice is torn down or damaged before the thirty-day period ends.74 In the typical case where a summons must be served along with the complaint, the court must also publish the summons in the Federal Bulletin (Bundesanzeiger),service being effectuated thirty days after the final publication in the Bundesanzeiger. The court, however, has the discretion in any case to require that the notice be displayed for longer than thirty days. The court may also order that notice be published several times or in different bulletins, journals or newspapers to further enhance the opportunity for the defendant to receive actual notice.
2. Gernan Application of the Hague Service Convention The Hague Service Convention entered into force in the Federal Republic of Germany on December 22, 1977. In addition, in the fall of 1990 the six federal states of the German Democratic Republic acceded to all laws and treaty obligations of the Federal Republic of Germany, including the responsibilities under the Hague Service Convention, under Grundgesetz Article 23. 7' Under the Convention, Germany establishes as its Central Authority the Ministry of Justice for each state (Bundesland), as opposed to maintaining one Central Authority for the entire country. 76 This decision renders service of process more difficult in Germany if the decision is made to give notice through the Central Authority, because the plaintiff must initially ascertain the particular state in which the intended recipient resides. Following the reunification of the Federal Republic of Germany with the German Democratic Republic, the number of designated Central Authorities rose from eleven to sixteen. 7' Germany accedes to the view that the Convention is the exclusive means of effectuating service abroad.78 By adopting this position, Germany interprets the Convention to mean that any service within the country on subsidiaries, branches or agents of foreign corporations must be performed in accordance with the rules of the Hague Service Convention. This position, which is supported by other major signatories to the Convention, 79 was recently called into question by the United States Supreme Court's ruling in Volkswagenwerk Aktiengesellschaft v. Schlunk,80 in which the Court held that if a foreign subsidiary operating in the
73. Id. § 206(1). 74. Id. § 206(3). 75. GG art. 23. 76. Hague Service Convention, supra note 3, at annex n.10. 77. Id. 78. Klaus J. Beucher & John B. Sandage, United States Punitive Damage Awards in German Courts: The Evolving German Position on Service and Enforcement, 23 Vand. J. Transnat'l L. 967, 975 (1991). 79. Other countries adopting the view that the Convention constitutes the exclusive means for service abroad include France, Great Britain and Japan. Id. at 975; see infra text accompanying notes 112 and 186. 80. Schlunk, 486 U.S. 694; see infra notes 231-237 and accompanying text. 19931 Comparative Analysis of Notice Requirements
United States can be served under American state law, then the rules of the Hague Service Convention do not apply. However, even though it now appears that such service is valid within the United States, German courts have held that a judgment premised on the type of service sanctioned in Schlunk is unenforceable in Germany.81 With regard to the scope of the Hague Service Convention under Article 1, Germany interprets the phrase "civil or commercial matters" to include all proceedings except criminal matters and cases concerned with the enforcement of public law.82 The more controversial issue in Germany concerns whether "civil or commercial matters" covers complaints requesting punitive damages. Some German commentators are of the opinion that punitive damage actions are criminal in nature and, thus, fall outside the scope of the Convention. 83 The Court of Appeals at Munich (OberlandesgerichtMtlnchen) recently addressed this very issue in its Decision of May 9, 1989.84 The case involved a dispute between a United States insurance company and a Munich-based reinsurance company over a claim for reimbursement. The American company alleged that the German company was guilty of malicious and intentional delay of reimbursement and filed suit for damages, including a claim for punitive damages. The plaintiff subsequently filed a request for service of process under the8 5Hague Service Convention with the Bavarian Ministry of Justice and was denied. The OberlandesgerichtMtlnchen held that punitive damages are civil in nature and concluded that the Bavarian Ministry of Justice must cooperate with the United States request for service according to the Hague Service Convention. In its analysis, the court assessed the nature of punitive damages. Three factors were persuasive to the court. First, punitive damages normally arise in cases between private parties, while criminal sanctions are only imposed in state prosecutions. 86 Second, punitive damage awards are almost exclusively bestowed upon private entities.87 Finally, a defendant who is required to pay punitive damages does not receive a criminal record of any type.88 For these
81. Beucher & Sandage, supra note 78, at 976. The basis for such a holding is ZPO, section 328, subsection 1(4), which permits a German court to refuse to enforce an otherwise valid judgment on the ground that it violates German public policy. Id. In fact, the United States Supreme Court anticipated this outcome. Schlunk, 486 U.S. 694, 706. 82. Reisenfeld, supra note 2, at 66. 83. See, e.g., Schutz, Die Aneckennung und Vokstreckberkeitserklarung US- americanischerSchadensersatzuricle in Produktheftungssachen in Res Bundesrepublik Deutschland, in Festschrift Fir Heinrich Nagel 392, 395-97 (1987). 84. Oberlandesgericht Mtlnchen [German Court of Appeals] [OLG] Decision of May 9, 1989, in 35 Recht Der Internationalen Wirtschaft 483 (1989) [hereinafter Decision of May 9, 1989]. 85. Id. at 483. 86. Id. at 484. 87. Id. 88. Id. 314 Arizona Journalof Internationaland Comparative Law [Vol. 10, No. 2 reasons, the court concluded that requests for punitive damages are necessarily civil and, thus, fall within the parameters of the Hague Service Convention. Although the decision by the OberlandesgerichtMUnchen is not binding, 89 it is important since it reaffirms the views expressed by many commentators in Germany90 and gives an indication of the position other German courts will take on the issue of punitive damages under the Hague Service Convention. 91 In Germany, a plaintiff must give notice under the Convention by way of the Central Authority. Although the plaintiff must request service through the particular German state in which the defendant resides, service by the Central Authority is the most certain way to ensure that legally effective notice is given in Germany. 92 A requesting party must note, however, that service through the Central Authority will only be valid if the documents to be served are translated into German. 9 3 Because Germany objects to other means of alternative service methods in its declarations to the Hague Service Convention, service through the Central Authority is required. Germany opposes service through the diplomatic or consular agents of contracting states under Article 8,94 and permits this type of service only when the documents are to be served on a national of the sending state located in Germany. 95 In addition, Germany accepts no service under Article 10 of the Convention, which includes service by mail or by judicial officers.9 6 Although Germany does permit delivery of documents by mail for informational purposes, postal channels may not be used to effectuate service of process.97
89. Although prior decisions by courts in civil law countries may be invoked as persuasive authority, they do not have binding effect on judges in subsequent cases. Beucher & Sandage, supra note 78, at 979. 90. See, e.g., Sturner & Stadler, Zustellung von "punitive damage"-Klagen an deutsche Beklagie nach dem Haager Zustellubereinkomment 157, 159 (1990); see also mII1 D. Martiny, Handbuch des Internationalen Zivilverfaurens-Rechts ann. 507 (1984). 91. Beucher & Sandage, supra note 78, at 980. 92. Reisenfeld, supra note 2, at 68 n.60. 93. Hague Service Convention, supra note 3, at annex n.10. In its decision of May 9, 1989, the OLG also ruled on a peripheral point regarding the translation of documents. It held that the failure to translate some appendices of a claim is permissible so long as the translations are subsequently given. Decision of May 9, 1989, supra note 84, at 484. 94. Hague Service Convention, supra note 3, at art. 8. 95. Id. 96. Id. at art. 10. 97. Reisenfeld, supra note 2, at 71. 19931 Comparative Analysis of Notice Requirements
B. Japan
1. Domestic Notice Provisions
Japanese rules concerning the giving of notice are enumerated in the Minji Soshoho (hereinafter Code of Civil Procedure or Code).9 8 As is the case in most civil law countries, Japan views service of process as a purely judicial function. 99 The act of serving process is an exercise of sovereignty within the state and as such, may only be performed by an empowered governmental agency. 1° ° The Japanese Code of Civil Procedure provides that the court clerk 10 1 shall administer service of process. Japanese law recognizes four methods of domestic service of process. First, the court may deliver service personally to the defendant. 1 02 This includes service by delivery, substitute service on a competent party residing at the intended recipient's domicile and service by leaving the document on the premises. Second, the court may give notice to the legal representative of one who lacks litigation capacity. 103 Third, if personal service fails, the court may effectuate service by mail.104 Using this method, the court clerk sends a copy of the necessary documents by registered mail to the defendant's address. Service is valid in this instance from the time of mailing, irrespective of whether the defendant actually receives it.105 Finally, Japanese law recognizes service by publication under certain conditions.10 6- The court may serve by publication only where the party's domicile, residence or other place for service is unknown. Such publication includes posting at the court where the proceedings were filed and may include publication in an official gazette or newspaper, at the judge's
98. See Takaaki Hattori & Dan F. Henderson, Civil Procedure in Japan § 7.01 (1985). 99. Minsoho [Japanese Code of Civil Procedure] [hereinafter Japanese Civil Procedure Code] art. 160; see Hattori & Henderson, supra note 98, § 7.01(3). 100. Chin Kim & Eliseo Z. Sisneros, Comparative Overview of Service of Process: United States, Japan, and Attempts at International Unity, 23 Vand. J. Transnat'l L. 299, 301-02 (1990). 101. Japanese Civil Procedure Code, art. 161; see Hattori & Henderson, supra note 98, § 7.01(3). 102. Japanese Civil Procedure Code, art. 164; see Hattori & Henderson, supra note 98, § 7.01(4)(a). 103. Japanese Civil Procedure Code, arts. 164, 171-172; see Hattori & Henderson, supra note 98, § 7.01(4)(a)-(c). 104. Japanese Civil Procedure Code, art. 172; see Hattori & Henderson, supra note 98, § 7.01(4)(d). 105. Japanese Civil Procedure Code, art. 173; see Hattori & Henderson, supra note 98, § 7.01(4)(d). 106. Japanese Civil Procedure Code, art. 178; see Hattori & Henderson, 'supra note 98, § 7.01(4)(f). 316 Arizona Journalof Internationaland ComparativeLaw [Vol. 10, No. 2
discretion. 107 The Reciprocal Judicial Aid Law governs the service of foreign documents in Japan, absent a multilateral convention or bilateral agreement.' 0 8 Under this law, Japanese courts will provide international judicial assistance if several conditions are met. First, the foreign court must make a request for service of process through diplomatic channels. Second, the request must be in writing and must state the name, nationality, domicile or residence of the intended recipient. Third, the request must include a translation into Japanese of all documents to be served. Fourth, the state where the requesting foreign court is located must insure that it will pay any expenses incurred in effectuating service. Finally, the state of the foreign court must ensure that it will provide like judicial assistance to requesting Japanese courts in actions of a similar nature. 109
2. Japanese Application of the Hague Service Convention
The Japanese Code of Civil Procedure provides in Article 175 that the proper authorities may enter into multilateral conventions or bilateral agreements on the service of process. Under this authority, Japan signed and ratified the Hague Service Convention, which entered into force on June 5, 1970.110 The designated Central Authority for Japan under Article 2 of the Convention is the Ministry of Foreign Affairs.111 Japan accepts the Convention as the exclusive means of giving notice to foreign defendants.1 12 This interpretive position led to the lodging of a diplomatic note of protest by Japan following the United States Supreme Court decision in the Schlunk case.r113 The note specifically indicated that Japan was dissatisfied with the Schlunk decision because it conflicted with the letter and spirit of the Hague Service Convention and undermined the Convention's mandatory character. 114 With regard to the application of the Convention to "civil and commercial matters," Japan excludes only administrative and criminal matters from the breadth of the Convention's application. 115 Under Japanese law, a party may effectuate service under the Convention through the Central Authority, but all documents must be accompanied by a
107. Japanese Civil Procedure Code, art. 179(1)-(2); see Hattori & Henderson, supra note 98, § 7.01(4)(f). 108. Hattori & Henderson, supra note 98, § 12.03(1)(a). 109. Japanese Civil Procedure Code, art. 175; see Hattori & Henderson, supra note 98, § 12.01(1). 110. Hattori & Henderson, supra note 98, § 12.01(1) n.3. 111. Hague Service Convention, supra note 3, at annex n.13. 112. Beucher & Sandage, supra note 78, at 975. 113. Schlunk, 486 U.S. 694; see infra notes 231-237 and accompanying text. 114. Brief for the United States as Amicus Curiae Supporting Respondent, at 8 n.11, addenda A-D, Schlunk, 486 U.S. 694, microformed on U.S. Supreme Court Records and Briefs, (Microform, Inc.). 115. Reisenfeld, supra note 2, at 66. 19931 Comparative Analysis of Notice Requirements translation into Japanese. 116 This provision is consistent with Japanese internal law. Japan does not object to alternative methods of service in the Hague Service Convention, with the exception of articles 10(b) and 10(c). Thus, Japan clearly will not accept service by judicial officers or other interested parties.117 This position is again consistent with Japanese internal law, where the act of serving process is viewed as a judicial responsibility, rather than as the responsibility of the private litigants themselves. Japan's failure to object to Article 10(a), which allows process to be sent by mail, has caused the most controversy in Japan's application of the Hague Service Convention. In its original declarations to the Convention, Japan did not object to Article 10(a). However, Japan recently clarified its position by indicating that while it does not object to the "sending" of documents through postal channels to its citizens, it does not accept the validity of "serving" process by mail. The statement of the Japanese government reads as follows:
Japan has not declared that it objects to the sending of judicial documents, by postal channels, directly to persons abroad. In this connection, Japan has made it clear that no objection to the uses of postal channels for sending judicial documents to persons in Japan does not necessarily imply that the sending by such a method is considered valid service in Japan, it merely indicates11 8that Japan does not consider it an infringement of its sovereign power. Thus, it seems that the safest method of serving process in Japan is through the Central Authority and to include a translation of all documents into Japanese.
C. Spain
1. Domestic Notice Provisions
In Spain, the Civil Procedure Act of February 3, 1881119 (hereinafter Civil Procedure Act or Act) enumerates the applicable notice requirements. The Act provides that once a complaint is filed, it must be served on the defendant along with a summons to appear in the proceedings. 120 An authorized marshall is responsible for performing service on the defendant. Under Spanish law, there are four possible means of service of process: personal service, service by certificate,
116. Hague Service Convention, supra note 3, at annex n.13. 117. Id. 118. Reisenfeld, supra note 2, at 72 n.89. 119. Civil Procedure Act of February 3, 1881. 120. B. Cremades & E. Cabiedes, Litigating in Spain: Considerations for Foreign Practitioners, Including International Assistance, Enforcement of Foreign Judgments, Bankruptcy, Arbitration and Other Civil Proceedings 149 (1989). 318 Arizona Journal of Internationaland Comparative Law [Vol. 10, No. 2 service by publication and service by certified mail with return receipt. 12 1 The method of service depends on three main factors. First, it must be determined if the defendant's domicile is known. Second, whether the defendant's domicile is located within the district where the complaint is filed must be ascertained. Finally, whether or not the defendant can be located at2 his or her domicile, which will affect the means of service, must be considered. 12 Service of process is performed by delivering a copy of the complaint and the "emplazamiento," which requires the defendant to appear before the appropriate court. 123 In the ordinary case in which the defendant's domicile is known, service of process is made personally to the defendant by an authorized marshall. 124: However, if the defendant is not present at his or her domicile, the marshall must leave a certificate known as a "cedula" with either the closest125 relative older than fourteen present at the domicile or the closest neighbor. This service by certificate is permissible only if the certificate states the following: the court before which the proceedings were instituted; the name and address of the individual being served; a statement of the purpose for service (typically, the initiation of civil proceedings against the defendant); the plaintiffs name; the period within which the defendant must appear in court and a statement that if he or she does not appear then appropriate court sanctions may be applied; 12 7 and the date of service.126 In addition, the marshall must sign the certificate. Furthermore, a statement containing the following information must be included in the court record: that service was made by certificate; the name, civil status and occupation of the person receiving the certificate; that person's relationship to the defendant; and an attestation by the marshall that the recipient of the certificate was informed of his or her legal obligation to either deliver the 128 certificate to the addressee or to tell the addressee of its receipt. Finally,12 the marshall and the recipient of the certificate both must sign the statement. V If the defendant's whereabouts are unknown, the court may provide notice using the third available method under Spanish law: service by publication, also known as "edictos."130 Under this method, the court posts the certificate for service in the courthouse where the proceedings were instituted and publishes the
121. Id. 122. Id. at 149-50. 123. Id. at 150. It should be noted that the emplazamiento is also used in some cases to sununon non-parties to appear before the court. The certificates for emplazamientos for non-parties are exactly the same as those for parties, except for the statement of the purpose of service. Id. 124. Spanish Civil Procedure Act, supra note 119, at art. 266. 125. Id. 126. Id. at arts. 272-274. 127. Id. at art. 274. 128. Id. at art. 271. 129. Id. at art. 268. 130. Cremades & Cabiedes, supra note 120, at 150. 19931 Comparative Analysis of Notice Requirements certificate in either the court bulletin or the official provincial gazette. 13 1 In appropriate cases, the judge may, at his or her discretion, also require publication in the Madrid Gazette.132 Finally, when the defendant's domicile is not within the judicial district where the action is brought, service may be performed by certified mail with return receipt. When this method of service is employed, the court clerk must include in the record a statement of the contents of the mail envelope. 13 3 Should the receipt not be returned within fifteen days, or if it is returned indicating that the defendant has not been located, the court will send a "letter requisitorial" along with an attached copy of the certificate to the judge of the defendant's domicile. 1 3 4 The judge will then initiate the ordinary methods for service of process. Under special circumstances, a judge may allow for service of13 process by either telegram or "any other appropriate means of communication." 5 When a Spanish national residing abroad has proceedings instituted against 13 6 him or her, the Civil Procedure Act provides for consular service of process. The Spanish court transmits the certificate for service to the consul or head of the diplomatic mission in the foreign country where the defendant resides. This transmission enjoins the consul to make service on the Spanish citizen located in 1 37 his or her territory. Giving notice of a foreign lawsuit in this context necessarily includes two distinct scenarios. In the first scenario, a Spanish national may need to give notice to a foreign defendant residing outside of Spain that he or she is being sued. In the second, a plaintiff from abroad may need to notify a Spanish defendant that proceedings have been instituted. In both situations, Spain provides international judicial assistance whenever procedural acts need to be performed in a country other than the country where the action was initiated. Under Spanish law, to give proper notice to a foreign defendant, first, service must be made as provided by any applicable treaties. However, if no treaties are in effect between Spain and the country where the defendant resides, service is 13 8 made through diplomatic channels. Spain has ratified two major international treaties 13 9 in the field of notice.
131. Spanish Civil Procedure Act, supra note 119, at art. 269. 132. Id. 133. Cremades & Cabiedes, supra note 120, at 151. 134. Id. 135. Spanish Civil Procedure Act, supra note 119, at art. 261. In addition, the Organic Law for the Judiciary, which is a statute separate from the Spanish Civil Procedure Act, but equally binding, indicates that notice may be given by mail, telegram or "any other method which permits the verification of its utilization and of its essential circumstances as determined by procedural laws." Ley Orginica del Poder Judicia [L.O.P.J.] 6/85 art. 271 (1985). 136. Cremades & Cabiedes, supra note 120, at 152. 137. Id. 138. Spanish Civil Procedure Act, supra note 119, at art. 300. 139. Convention Relating to Civil Procedure, Mar. 1, 1954, T.I.A.S. No. 4173, 320 Arizona Journalof Internationaland Comparative Law [Vol. 10, No. 2
The first convention, the 1954 Hague Convention Respecting Civil Procedure (hereinafter the "1954 Hague Convention") 140 provides for notification by petition filed with the Spanish consulate in the country of the defendant's residence. Under the Convention, the petition must be drafted in the language of the receiving country and must contain the names of all parties to the suit, the address of the party to be served, and the name of the judicial authority issuing the notice. 141 The petition must be accompanied by two copies of the process to be served, which must be translated into the language of the receiving country. 142 The Spanish consul will then transmit the petition to the foreign country's Ministry of Justice, which then effectuates service through the appropriate court and returns a receipt showing proof of service. The second and most commonly applicable treaty that Spain has ratified is the Hague Service Convention of 1965. The Spanish application of the Convention will be discussed in the following section. If no relevant treaties are in force between Spain and the foreign count143 involved in the lawsuit, notice must be given through diplomatic channels. This process begins with the requesting court filing both a letter rogatory and the process to be served with the Ministry of Foreign Affairs of the requesting country. The Ministry then transmits the petition to its counterpart in the country where the defendant resides. The receiving Ministry of Foreign Affairs relays the petition to the Ministry of Justice, which transmits the petition to the court of the domicile of the defendant. The court then serves the defendant according to its own procedural rules. Proof of service follows the same path, only in a reverse fashion. 144 This procedure is employed both by a foreign plaintiff suing a Spanish national and by a Spanish national suing a foreign party, but only in the instance where no applicable treaty obligations regarding notice exist. Under Spanish law, defective notice is grounds for an appeal from final judgment where "defenselessness" can be proved. According to the Civil Procedure Act, grounds for cassation include "breach of the essential formalities of the proceedings due to violations of the rules regulating the judgment or those which govern procedural acts and guarantees provided that, in the latter case, the defenselessness of the party was produced."145 In other words, to satisfy the "defenselessness" requirement, the procedural defect must be such that its correction would modify the final judgment. Once this burden is met, a successful cassation appeal can follow. The Spanish Civil Procedure Act also deems void service of process not
286 U.N.T.S. 265 [hereinafter Hague Service Convention of 1954]; Hague Service Convention, supra note 3. 140. Hague Service Convention of 1954, supra note 139. 141. Id. at arts. 2-3. 142. Id. at art. 3. 143. Spanish Civil Procedure Act, supra note 119, at art. 300. 144. Cremades & Cabiedqs, supra note 120, at 425. 145. Spanish Civil Procedure Act, supra note 119, at art. 1692(3) (1984 rev.). 19931 Comparative Analysis of Notice Requirements performed in accordance with the rules of the Act,14 6 including, for example, unauthorized service, service outside of working hours and service by use of intimidation or force. 14 7 Finally, Spanish procedural law provides for certain safeguards against the entry of a default judgment in cases where the defendant receives no notice of the proceedings. Typically, a defendant's failure to appear after service of process has been properly executed results in a declaration of default, known as "rebeldia." 148 However, two circumstances exist in which the failure to receive notification provides the defendant with the right to an appeal for annulment of the default judgment. Known as the "recurso de rescision,"1 49 this appeal is available in the following circumstances. First, the appeal is available when the defendant is served by certificate which is not delivered to him or her due to causes not attributable to him or her, in which case an appeal must be made within eight months of the publication of the judgment in the official provincial gazette. 15 0 Second, the appeal is available where the defendant is served by publication and can prove his or her absence from the place of the original proceedings from the time of service until the time of publication, in which case the defendant has one year from the publication of the judgment in the official provincial gazette to bring the appeal. 15 1 These provisions serve to guarantee that defendants in Spain will receive proper notification of the institution of proceedings against them.
2. Spanish Application of the Hague Service Convention
Under Spanish procedural law, notice to a foreign defendant by a Spanish
146. Spanish Civil Procedure Act, supra note 119, at art. 279. 147. Id. at arts. 249, 256 and 442. 148. Id. at art. 281. An exception to this rule is found in Article 258 where the Civil Procedure Act provides that in proceedings for large claims in which service was made either by certificate or by publication, the defendant should be served a second time after his or her original failure to appear. The second notification allows the defendant one-half of the original time period to respond. If no appearance is made by the end of this second term, a default is declared. Id. at art. 528. 149. This appeal is sometimes referred to as the "recurso de audiencia," or "appeal for a hearing," since Article 773 of the Civil Procedure Act provides for a "hearing against a final judgment which terminated the proceedings, in order to obtain its annulment and a new hearing." Id. at art. 773. 150. Id. at art. 776. 151. Id. at art. 777. A defaulting defendant in Spain also has the right to an appeal if he or she is able to show that the absence was due to uninterrupted force majeure. Force majeure is defined as a natural and inevitable necessity arising wholly above the control of human agencies and occurring independently of human act or neglect. Black's Law Dictionary, 645 (6th ed. 1990). In such a case, the appeal must be brought within four months of publication of the judgment in the official provincial gazette. Spanish Civil Procedure, supra note 119, at arts. 774-775. 322 Arizona Journalof Internationaland ComparativeLaw [VoL 10, No. 2 national or to a Spanish defendant by a foreign national is effectuated according to the applicable treaties. 15 2 The Hague Service Convention is applicable law in Spain, having been ratified and entered into force on August 3, 1987.153 Spanish courts uniformly interpret the Convention liberally. For example, the reach or applicability of the term "civil and commercial matters," which describes the scope of the Convention in Article 1, is interpreted by Spanish courts to include all non-criminal matters. 15 4 In addition, Spain broadly accepts the methods of service provided for in the Convention. Each method of service via the Central Authority is permitted. In Spain, the designated Central Authority is the Ministry of Justice.15 5 In ratifying the Convention, Spain refrained from instituting the requirement that documents be translated into Spanish. This point is significant because under the 1954 Hague Convention, Spain required all petitions, service documents and other means of notification to be translated into Spanish if notice to a Spanish defendant was sought. 15 6 Finally, Spain accepts the validity of service by alternative methods provided for in Articles 8 through 11 of the Hague Convention, including service by mail under Article 10(a).15 7 The only Spanish reservations to the Hague Service Convention concern the provisions on default judgments. Under Article 15, Spain declares that its courts may enter a default judgment as long as service is transmitted by a method approved under the Convention, at least six months have elapsed since the transmission of the document, and no certificate of any kind has been received. 1 58 The effects of this declaration are minimal, however, since it appears from the language of Article 15 that even a certificate from the recipient country explaining why service was not made would prevent the application of a default judgment under Article 15. In addition, under Article 16, Spain allows a defendant against whom a default judgment has been entered to apply for relief from the expiration of the time for appeal up to sixteen months from the date of the judgment, 15 9 which is four months longer than the minimum period 160 established by the Convention.
152. Spanish Civil Procedure Act, supra note 119, at art. 300. 153. Hague Service Convention, supra note 3, at annex n.19. 154. Reisenfeld, supra note 2, at 71. 155. Hague Service Convention, supra note 3, at annex n.19. 156. Hague Service Convention of 1954, supra note 139, at arts. 2-3. 157. Cremades & Cabiedes, supra note 120, at 425. 158. Hague Service Convention, supra note 3, at annex n.19. 159. Id. 160. Id. at art. 16. 19931 Comparative Analysis of Notice Requirements
D. United Kingdom
1. Domestic Notice Provisions 16 1 A lawsuit in the United Kingdom commences with the filing of the writ. The purpose of the writ is to notify the defendant that legal proceedings have been instituted against him or her and to require the defendant to file a "memorandum of appearance" with the court.1 62 The writ includes the names of both the plaintiff and the defendant and contains either a "general indorsement" or a "special indorsement." A general indorsement sets out a concise statement of the nature of the claim or the relief requested in the action. 1 63 In addition, the general indorsement may need to state other particulars depending on the type of claim brought by the plaintiff. For example, in a contract action the plaintiff should include the date of the contract, whether the contract was oral or written, the breach and the remedy sought.1 64 In a tort action, the indorsement should include the date, place and nature of the alleged tort. 165 If the action is for a fixed amount of money, the plaintiff must include in the general indorsement a statement informing the defendant that if he or she pays the amount claimed and 1 66 costs within fourteen days of service, the proceedings will be stayed. The general indorsement is separate from the formal "statement of the claim," which is usually served after the defendant enters an appearance. However, the plaintiff always has the option of serving the statement of the claim at the same time as the writ. This is known as the "special indorsement" and is typically used only where the plaintiff feels certain that the defendant has no defense and that a summary judgment may be granted. 167 If the plaintiff opts to serve the statement of the claim at the same time as the writ, he or she must simply set out the statement of the claim on the back of the writ where the general indorsement would normally be placed. The writ is then filed at the appropriate district registry where one copy is left with the court and one copy is
161. In the Chancery Division, proceedings are initiated by the filing of the "originating summons." This alternative form of process is used in cases where the issues of fact are not in dispute. D. Barnard, The Civil Court in Action 53 n.1 (1977). 162. The memorandum of appearance must be entered within fourteen days of service of the writ. R.S.C. Ord. 12. It should be noted that most civil proceedings in the United Kingdom are governed by a code of rules known as the "Rules of the Supreme Court" (R.S.C.). The Judicature Acts of 1873-1875 authorized these rules which were amended by the Rules Committee, headed by the Lord Chancellor. The R.S.C. may be found in the Annual Practise, also known as the Whitebook. P. James, Introduction to English Law 63 (1989). 163. R.S.C. Ord. 6, n.2. 164. Barnard, supra note 161, at 54. 165. Id. 166. R.S.C. Ord. 6, r. 2(1)(b). 167. Barnard, supra note 161, at 56. 324 Arizona Journal of Internationaland ComparativeLaw [Vol. 10, No. 2 returned to the plaintiff. 168 Service of the writ in the United Kingdom is the responsibility of the plaintiff, not the court. Typically, the plaintiff mails a copy of the writ and the sealed original to the defendant's solicitors, who must sign and return the original indicating that they accept service on behalf of their client.169 However, if the defendant does not have a solicitor empowered to accept service, the plaintiff must attempt personal service, which can be accomplished in several different ways. The server may simply give the defendant a copy of the writ if he or she is satisfied that the person served is, in fact, the defendant. 170 If the defendant is a company, personal service may be performed either by leaving the writ at the company's office or by mailing it to the company's registered office.171 In the case of a firm or partnership, the plaintiff may personally serve one partner or leave the writ at the principal place of business with any person having control of the management of the partnership business at the time of service. 172 For minors, the plaintiff must serve either the child's guardian or the child's father, or, in the event that the child has no guardian or father, the person with whom he or she resides. 173 Once personal service is made using any of these methods, the server must enter on the original writ the day, date and place of service, and the name of the person upon whom the writ was served. 174 Should the defendant refuse to accept the writ, service is made effective if the server informs him or her of the nature of the document and leaves it as nearly in the defendant's possession 175 as practicable. If personal service is not possible, the United Kingdom allows for substitute service by alternative methods: most notably, by letter to the defendant's last- known address or by publication. The plaintiff must first indicate in an affidavit to the court the efforts made to trace the defendant. In addition, the plaintiff must show that the substitute service is likely to be effective in giving actual notice to the defendant. 176 Thus, the court will not allow substitute service where the plaintiff has no idea of the defendant's whereabouts. However, two exceptions to this rule exist. First, if the plaintiffs action is for personal injury arising out of a traffic accident, the law of the United Kingdom allows for service on the defendant's insurer. Second, if the plaintiff's action is for possession of land, the court may permit service by publication on the land even if such service by publication is unlikely to bring about actual notice. 177 The plaintiff must serve
168. Id. at 54-55. 169. R.S.C. Ord. 10, r. 1(2). 170. R.S.C. Ord. 65, r. 2. 171. Barnard, supra note 161, at 56. 172. R.S.C. Ord. 81, r. 3. 173. R.S.C. Ord. 80, r. 16. 174. R.S.C. Ord. 10, r. 1(4). 175. Barnard, supra note 161, at 56. 176. Id. at 57. 177. R.S.C. Ord. 10, r. 4. 19931 Comparative Analysis of Notice Requirements the writ within twelve months of the date it is filed with the district registry.178 A renewal of the writ is possible after twelve months, but only upon a showing of reasonable grounds for the failure to serve. Regarding service on foreign parties, domestic law holds that any individual served within the United Kingdom has submitted to the jurisdiction of its courts. 179 Historically, if the defendant was located abroad, the court refused jurisdiction over him or her. 180 Currently, however, R.S.C. Order 11 considerably broadens the instances in which notice of the writ may be effectuated abroad for purposes of obtaining jurisdiction over the defendant. First, the action must be one that falls within the categories set out in Order 11, rule 1, which include: torts committed within the United Kingdom, contracts made within the United Kingdom, breaches of contract occurring within the United Kingdom, land disputes over property situated in the United Kingdom, or actions where one of two defendants is within the United Kingdom. 181 Second, the case must be brought in the most appropriate forum.' 82 To receive permission to serve abroad, the plaintiff must make an ex parte application to the court for leave to serve out of the jurisdiction, accompanied by an affidavit indicating the nature of the case, demonstrating that it falls under rule 1 of Order 11, a statement of the solicitor's belief that the plaintiff has a proper cause of action, and 1the83 name of the country and place where the defendant is most likely to be found. 2. The U nited Kingdom's Application of the Hague Service Convention The United Kingdom was an original signatory to the Hague Service Convention 184 in 1965 and ratified the Convention on February 10, 1969.185 Unlike the United States, the United Kingdom had long been an active participant in matters concerning international judicial assistance. Since its ratification of the Convention, the United Kingdom has held to the view that the Convention constitutes the exclusive means of effectuating service abroad.186 This position led the United Kingdom to formally complain to the United States government following the Schlunk decision by the United States Supreme Court. The United Kingdom transmitted a note protesting that the decision failed to appreciate the
178. Barnard, supra note 161, at 57. 179. See, e.g., Watkins v. North American Land & Timber Co. Ltd., 20 Times Law Reports [T.L.R.] 534, 535-36 (1904). 180. Barnard, supra note 161, at 58. 181. R.S.C. Ord. 11, r. 1. 182. Id. 183. Barnard, supra note 161, at 58. 184. Hague Service Convention, supra note 3. 185. Stephen F. Downs, The Effect of the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 2 Cornell Int'l L. J. 125 (1969). 186. Beucher & Sandage, supra note 78, at 975. 326 Arizona Journalof International and Comparative Law [Vol. 10, No. 2 mandatory nature of the Convention and, therefore, undermined its spirit. 187 In addition, the United Kingdom liberally interprets the limitation of the scope of the Convention to "civil or commercial matters"188 to include all non-criminal matters, including administrative proceedings. Under Article 2, the United Kingdom designates as its Central Authority the Principal Secretary of State for Foreign Affairs. 189 Additional authorities19u are designated for England and Wales (Service Master of the Supreme Court), Scotland (Crown Agent for Scotland) and Northern Ireland (Master for the Queen's Bench). Under Article 5 of the Hague Service Convention, service performed through the Central Authority must be translated into English to be valid. 191 The United Kingdom's only objections to service through the alternative methods enumerated in Articles 8 through 11 of the Convention concern Articles 10(b) and 10(c). The United Kingdom does not accept service by judicial officers, officials or other competent persons of the requesting State. Such documents for service in the United Kingdom must first be accepted by the Central Authority or additional authorities, who will then serve them according to the provisions of the Convention. In addition, such documents may only come from judicial, consular or diplomatic officers of other contracting States. 19 2 Thus, it is impossible for a foreign plaintiff to directly serve valid process on a defendant by way of Articles 10(b) and 10(c), and furthermore, it is not possible for an individual to serve process under Articles 10(b) and 10(c) without assistance from officials of their home country.
E. United States of America 1. Domefstic Notice Provisions
For notice to be valid in the United States, it must comply with the constitutional requirement of due process. The due process standard requires that notice be reasonably calculated to give actual notice to the defendants and an opportunity to respond. 193 This standard applies to domestic service within the United States, service of United States documents in a foreign 19 4 country and service of foreign documents in the United States. The rules for service of process in the United States federal courts are set out in the Federal Rules of Civil Procedure, Rule 4,195 and most of the fifty
187. Reisenfeld, supra note 2, at 65 n.45. 188. Id. at 66. 189. Hague Service Convention, supra note 3, at annex n.22. 190. Id. 191. Id. 192. Id. 193. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1956). 194. Kim & Sisneros, supra note 100, at 303. 195. Fed. R. Civ. P. 4. 199.31 Comparative Analysis of Notice Requirements
American states have an analogous rule or statute. Rule 4 provides that a summons and complaint must be served on the defendant. 196 The summons must be signed by the court clerk with whom the complaint was filed.197 In addition, the summons must contain the names of the plaintiff and defendant, the name of the court, the name and address of the plaintiffs attorney, the time within which the defendant must appear and defend,198 and a notification that failure to appear by the defendant will result in default. As is the case in other common law countries, the responsibility for effectuating service in the United States primarily lies with the plaintiff, as opposed to the court.199 The Federal Rules of Civil Procedure allow any person who is not a party to the suit and who is at least eighteen years of age to serve the summons and complaint.200 The only exceptions to this rule occur when a complaint is proceeding in forma pauperis, in actions involving a seaman, in actions where the United States government is a party, or where a federal court orders service by a United States marshall.20 1 In these circumstances, a United by the court must perform States marshall2 or a person specially appointed service.20 The two primary methods of service in the United States are personal service and service by mail. First, a plaintiff may perform personal service on an individual by delivering a copy of the summons and the complaint to the individual, or by leaving such copies at the individual's residence with a person of suitable age and discretion that resides therein. 203 A plaintiff shall make personal service on a corporation, partnership or association by delivering process to an officer, a managing or general agent, or any other agent authorized to receive service. 20 4 If the United States government is the defendant in the action, the plaintiff must first deliver a copy of the summons and complaint to the U.S. Attorney for the district in which the action is brought, or to an assistant U.S. Attorney or clerical employee designated by the United States Attorney to receive process.205 Second, the plaintiff must also send a copy of the summons and complaint by registered or certified mail to the Attorney General of the United States in Washington, D.C.206 If the defendant is an
196. Fed. R. Civ. P. 4(a). 197. Fed. R. Civ. P. 4(a)-(b). 198. Fed. R. Civ. P. 4(a)-(b). 199. See Jack H. Friedenthal et al., Civil Procedure § 3.22 (1985). 200. Fed. R. Civ. P. 4(c)(2)(A). 201. Fed. R. Civ. P. 4(c)(2)(B)(i)-(iii). 202. Fed. R. Civ. P. 4(c)(2)(B). 203. Fed. R. Civ. P. 4(d)(1). 204. Fed. R. Civ. P. 4(d)(3). 205. Fed. R. Civ. P. 4(d)(4). 206. Fed. R. Civ. P. 4(d)(4). If the action attacks the validity of an order of an agency of the United States and that agency is not made a party to the suit, the plaintiff must also send a copy of the summons and complaint by registered mail to the agency. Id. 328 Arizona Journal of Internationaland ComparativeLaw [Vol. 10, No. 2 officer or agency of the United States, the plaintiff must mail a copy of the summons and complaint by certified or registered mail to the officer or agent.207 Finally, in cases where the plaintiff is suing a state organization or a municipal corporation, service must be effectuated by delivering process to the chief executive officer or in any manner proscribed under the laws of the particular state. The Federal Rules also allow for service by mail under certain circumstances. Under Rule 4(c)(2)(C), a plaintiff may give an individual or a corporation (including a partnership or an unincorporated association) notice by mail. The plaintiff must send a copy of the summons and the complaint by first-class mail with prepaid postage, along with two copies of an acknowledgment form and a return envelope addressed to the plaintiff with postage prepaid.208 If the plaintiff does not receive an acknowledgment of service within twenty days from the date of the original posting of the service, he or she must resort to a method of personal service provided in Rule 4(d).209 In addition to personal service and service by mail, the Federal Rules of Civil Procedure allow for other means of service if one is unable to locate the defendant or if the defendant no longer resides in the particular state where proceedings have been instituted. Under Rule 4(e), where the defendant cannot be found within the area of the court's jurisdiction, the plaintiff may serve the defendant by using any method allowed under federal law or provided under the particular state law where the federal court is located. 210 This provision in the Federal Rules most commonly permits service by means of publication, a method of giving notice which has been codified in all fifty states.211 Typically, statutes concerning notice by publication allow for such service only after the plaintiff shows by affidavit that the defendant either resides outside of the state or cannot by due diligence be,found within the state.2 12 Once this standard is met, the court clerk shall publish in a local newspaper 2 13 a notice containing the names of the parties and the court, a description of the character of the action, the date of the court order for service by publication, and the requirement that the defendant must answer within sixty days of the date of the court order for service by publication. 214 Under the Federal Rules, verification of service should be made by the
207. Fed. R. Civ. P. 4(d)(5). 208. Fed. R. Civ. P. 4(c)(2)(C). 209. Fed. R. Civ. P. 4(c)(2)(C)(ii). 210. Fed. R. Civ. P. 4(e). 211. 62B Am. Jur. 2d Process § 241 (1990). 212. See, e.g, O.C.G.A. § 9-11-4(e)(1)(A); see also 735 ILCS.5/2-206 (1992). 213. The length of the period for publication in the local newspaper varies from state to state. In Georgia, for example, the publication must be printed four times within sixty days, with each time being at least seven days apart. O.C.G.A. § 9-11- 4(e)(1)(C). Illinois, however, only requires publication once a week for three consecutive weeks. 735 ILCS 5/2-207 (1992). 214. See, e.g., O.C.G.A. § 9-11-4(e)(1)(C); see also 735 ILCS 5/2-206 (1992). 1993 1 Comparative Analysis of Notice Requirements plaintiff. The server may indicate proof of service by means of an affidavit filed with the court. 2 15 This affidavit should be filed before the deadline within which the defendant must respond to the notice. If service is made by mail, the plaintiff216 must file with the court the acknowledgment received from the defendant. Furthermore, the plaintiff must adhere to time limits for effectuating service of process. Rule 40) allows the plaintiff 120 days from the filing of the complaint to give notice to the defendant. If the plaintiff fails to meet this deadline, he or she must show good cause for the delay or the action will be dismissed without prejudice. 217 Federal Rule of Civil Procedure 4 also sets forth acceptable methods of accomplishing service in foreign countries. Although the Hague Service Convention supersedes Rule 4,2 18 the Rule will still apply to an American plaintiff attempting to perform service in a non-Convention country or in cases where the action is outside the scope of the Convention. Rule 4(i) offers five methods for service abroad. First, a plaintiff may give notice by any method prescribed by the law of the receiving country. 2 19 Although this method increases the possibility of enforcing the judgment abroad, it may result in increased legal costs to determine which methods of service are valid in the defendant's home country. 220 Second, the plaintiff may effectuate service by letters rogatory. These are formal requests to the foreign court to deliver service of process and inform the American court when service has been made.221 Third, a plaintiff may personally serve the defendant in the foreign country. 2 2 2 This method must, of course, be acceptable under the notice laws of the foreign country. Fourth, a plaintiff may serve a defendant through direct mail.22 3 Although direct mail represents the simplest means of service, it relies upon the defendant's willingness to accept the service and return a signed receipt. In addition, some countries strongly object to this method of service as a violation of their sovereignty, thus decreasing the chances for subsequent enforcement of a judgment.224 Finally, Rule 4(i)(1)(E) permits service as directed by a court order. This method allows the court discretion to order service by a method acceptable to the receiving country. Importantly, under U.S. law, each of these methods is valid only if it meets with the constitutional due process standard.225
215. Fed. R. Civ. P. 4(g). 216. Id. 217. Fed. R. Civ. P. 40). 218. See infra notes 227-29 and accompanying text. 219. Fed. R. Civ. P. 4(i)(1)(A). 220. Reisenfeld, supra note 2, at 74. 221. Fed. R. Civ. P. 4(i)(1)(B). 222. Fed. R. Civ. P. 4(i)(1)(C). 223. Fed. R. Civ. P. 4(i)(1)(D). 224. Some countries regard direct mail service as an uninvited infringement of a foreign legal process upon nationals within otherwise sovereign boundaries. Reisenfeld, supra note 2, at 75. 225. U.S. Const. amends. V, XIV. 330 Arizona Journal of Internationaland ComparativeLaw [Vol. 10, No. 2
2. United States Application of the Hague Service Convention
The Hague Service Convention entered into force in the United States on February 10, 1969.226 The United States was the first country to ratify the Convention, signifying a reversal of its isolationist policy toward international judicial assistance. Under the Supremacy Clause of the United States 2 27 Constitution, the Hague Service Convention, as a multilateral treaty ratified by the United States, has the force of law and preempts the application of inconsistent methods of service. 22 8 This means that conflicting state laws of service are ineffective when the action falls within the scope of the Convention. In addition, federal courts generally hold that conflicting federal laws on service are preempted by the methods prescribed in the Convention. 2 29 The scope of the Hague Service Convention, as determined by U.S. courts, has precipitated the most recent controversy regarding the proper means of giving notice. Although the U.S. courts broadly interpret the application of the Convention to all "civil or commercial matters" so as to include any proceeding which is not criminal,2 30 the courts' interpretation of the requirement that there be occasion to transmit documents "for service abroad" has not been so progressive. In June 1988, the Supreme Court held that the Hague Service Convention does not apply when service of process on a foreign corporation is
226. The Convention entered into force following ratification by three countries -the United Arab Republic, the United Kingdom and the United States-as required by Article 27 of the Convention. Others nations which at that time had signed the Convention but not yet ratified it were as follows: Belgium, Denmark, Finland, Israel, Netherlands, Norway, Sweden, Turkey and West Germany. Downs, supra note 185, at 125. 227. U.S. Const. art. VI, cl. 2, reads as follows:
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the land; and the Judges in every state shall be bound thereby, anything in the Constitution or Laws of any state to the contrary notwithstanding. 228. Restatement (Third) of Foreign Relations Law § 471 cmt. e, and reporter's notes 2, 5 (1986). 229. In order to support the predominance of the Hague Service Convention over any conflicts with Rule 4 of the Federal Rules of Civil Procedure, some courts have applied the doctrine of "implied repeal," which states that the enactment which occurred later in time prevails. See, e.g., Vorhees v. Fisher and Krecke, 697 F.2d 574, 575-76 (4th Cir. 1983). However, this argument may ultimately prove unpersuasive because Rule 4 has been amended since the Convention's ratification in 1969. Other courts have reasoned that since the Hague Service Convention is specically aimed at giving notice in foreign countries, the Convention supersedes the Federal Rules which generally address the situation. See, e.g., Harris v. Browning-Ferris Industries Chemical Services, Inc., 100 F.R.D. 775 (M.D. La. 1984). 230. Reisenfeld, supra note 2, at 66. 19931 Comparative Analysis of Notice Requirements made by serving the foreign corporation's domestic subsidiary under applicable 2 3 1 state law. In the Schlunk case, the plaintiff, on behalf of his parents who were killed in an automobile accident, filed a wrongful death action in Illinois alleging that a design defect in the car, which was designed and sold by Volkswagen of America, Inc. and manufactured by Volkswagenwerk Aktiengesellschaft of West Germany, contributed to his parents' death.2 32 Schlunk attempted to effectuate service on Volkswagenwerk Aktiengesellschaft by serving their wholly-owned subsidiary, Volkswagen of America, Inc. Under Illinois law, a domestic subsidiary is deemed to be a foreign corporation's involuntary agent and, thus, is able to be served on the parent company's behalf.23 3 Volkswagenwerk Aktiengesellschaft objected to could only give proper notice under the the service and insisted that Schlunk 23 4 provisions of the Hague Service Convention. In its analysis, the Supreme Court agreed that the Convention, by virtue of the Supremacy Clause, precludes inconsistent state laws.2 35 However, because the Convention does not define the term "service abroad" in Article 1, the Court concluded that the internal law of the forum state determines whether the particular method of service of process requires the transmission of documents abroad. 2 36 Thus, since under Illinois law service on the parent could properly be made to its wholly-owned subsidiary, there was no occasion to transmit documents for service abroad and the Hague Service Convention did not apply. The Supreme Court's decision to allow state law to determine the requirements of service of process undermines the goals of the Convention to provide a means of consistent and reliable service abroad. By failing to interpret the Convention's provisions in light of its broadly stated purpose and scope, the Court deferred the question of the applicability of the Convention to the internal law of the forum state. Such a reading may theoretically result in fifty separate interpretations regarding when the Convention is applicable in the United States, as well as separate applicability standards for each signatory nation. As Justice Brennan noted in his concurring opinion: "I find it implausible that the Convention's framers intended to leave each contracting nation, and each of the 50 States within our Nation, free to decide for itself under what circumstances, if any, the Convention would control. 237 The Schlunk decision, thus, undermines the mandatory nature of the Convention by allowing individual states and other nations to circumvent the Convention's provisions by merely altering their service laws. Thus, foreign defendants should be aware that the Hague Service Convention does not constitute the exclusive means of service abroad as far as the
231. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988). 232. Id. at 696. 233. Id. 234. Id. 235. Id. at 699. 236. Id. at 700. 237. Id. at 697; cf.note 20 and accompanying text. 332 Arizona Journal of Internationaland Comparative Law [VoL 10, No. 2
United States courts are concerned. Regarding the methods of service provided for under the Convention, the United States accepts service through the Central Authority enumerated in Article 5.238 The United States Department of Justice is the designated Central Authority pursuant to Article 2.239 Under Article 5, even though the United States does not declare that a translation of documents to be served on an American defendant is required, due process considerations would likely require such translations.240 Under Article 8, the United States does not object to service by a requesting country's diplomatic or consular agents in United States territory. Nevertheless, this method is not typically available to American of State regulations prohibit foreign plaintiffs since the United States Department24 1 service officers from serving process. The United States accepts service of process by the methods provided under Article 10 of the Hague Service Convention: mail service and service by judicial officers, officials or other competent persons of the receiving State. However, the actual meaning of Article 10(a) has proven to be the subject of much dispute in the United States. Prompted by the use of the word "send" instead of "serve," several federal courts have concluded that service by mail is not permitted under 242 exists, nevertheless, as the Second the Convention. A split of authority 243 Circuit Court of Appeals has held that "send" does include "service. " The only significant United States declarations to the Hague Service Convention are in the area of default judgments. Under Article 15, the U.S. has indicated that an American judge may declare a default even though no certificate of service has been received, as long as six months have elapsed, the document is transmitted by a prescribed method under the Convention, and no certificate of any kind has been received. 244 Although the practical effect of this declaration has yet to be tested, based on the language of Article 15245 the declaration would
238. Hague Service Convention, supra note 3, at annex n.23. 239. Id. 240. Reisenfeld, supra note 2, at 70. 241. 22 C.F.R. § 92.85 (1988). 242. Bankston v. Toyota Motor Corp., 123 F.R.D. 595 (W.D. Ark. 1989); Cooper v. Makita, USA, Inc., 117 F.R.D. 16 (D. Me. 1987); Pochop v. Toyota Motor Co., Ltd., 111 F.R.D. 464 (S.D. Miss. 1986); Mommsen v. Toro Co., 108 F.R.D. 444 (S.D. Iowa 1985). 243. Ackermann v. Levine, 788 F.2d 830, 839 (2d Cir. 1986); see also 1 Ristau, supra note 8, at § 4-28. 244. Hague Service Convention, supra note 3, at annex n.23. 245. Article 15 of the Hague Service Convention reads, in pertinent part, as follows:
Each contracting State shall be free to declare that the judge, notwithstanding the provisions of the first paragraph of this article, may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled - (a) the document 19931 Comparative Analysis of Notice Requirements seemingly take effect only wherea receiving nation refuses to respond at all to requests for service. In addition, under Article 16, which allows a judge to extend the time for a defendant's appeal against a default judgment, the United States will allow such a defendant to apply for relief according to either the period allowed for application by the court where the judgment has been246 entered or up to one year following the judgment, whichever is later in time.
IV. CONCLUSION
In the current era of rapidly increasing international trade and investment, the international lawyer must be aware of the notice requirements in foreign countries because countries differ in the ways they seek to insure actual notice of lawsuits to defendants. Domestic notice provisions in civil law countries, such as Germany, Japan and Spain, require that the court accomplish service of process on defendants, and in each of these three countries, the court may give notice to defendants using similar methods. Germany, Japan and Spain each allow personal service on the defendant, substitute service if the defendant can not be located, service by postal channels and, as a last resort, service by publication. In common law countries, such as the United Kingdom and the United States, service of process is the responsibility of the individual parties, not the court. However, despite this difference, the methods of service legal in the United Kingdom and the United States are practically identical to the methods of service allowed in Germany, Japan and Spain. Although countries may differ concerning the technical aspects of service, such as the elements that the summons and complaint must contain, the minimum age of a party receiving substitute service, or the length of time notice must be published at the courthouse, the underlying theme is the same in all of these countries. The purpose of each set of laws is to best insure that a defendant receives actual notice of a lawsuit in time to defend. Under the Hague Service Convention, Germany, Japan, Spain, the United Kingdom and the United States each interpret the limitation of the scope of the Convention to "civil or commercial matters" to exclude criminal cases. In addition, Germany excludes cases dealing with public law, while Japan declares that the Convention does not apply to administrative law matters. Spain, the United Kingdom and the United States all interpret the scope of the Convention broadly to cover all non-criminal cases. In all of these countries except the United States, the Convention is the
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. Hague Service Convention, supra note 3, at art. 15. 246. Id. 334 Arizona Journal of Internationaland Comparative Law [Vol. 10, No. 2 exclusive means of providing service in cases involving foreign judicial assistance. With respect to the methods of service allowed under the Convention, each of the five countries examined accept service by means of their designated Central Authorities. In addition, all but Germany accept service by diplomatic or consular agents under Article 8 of the Convention. Service by judicial officers, officials or other competent officials under Articles 10(b) and 10(c) is only accepted by Spain and the United States. Germany, Japan and the United Kingdom officially require requests for service to be translated into their respective native language. Even though the United States does not declare that such documents must be translated into English, basic constitutional due process considerations would most likely require it. The application of the Hague Service Convention is not without controversy. In Germany, the courts still attempt to determine whether claims for punitive damages fall within the scope of the Convention. In Japan, an official statement was necessary to clarify that service by mail is not authorized in Japan. In the United States, controversy arose in the form of a Supreme Court decision that applicable state law determines whether the Convention applies. Knowledge of Hague Service Convention provisions provides an attorney with the ability to effectively give notice to defendants in contracting states when cases arise in civil or commercial matters. Where a case falls outside the scope of the Convention or involves a party from a country not signatory to the Convention, knowledge of the domestic notice provisions in the defendant's resident state is essential. Through careful attention to the details of notice requirements in the particular forum, an attorney can avoid numerous pitfalls and take the initial step toward a successful lawsuit.
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