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A Comparative Analysis: Notice Requirements in Germany, Japan, Spain, the United Kingdom and the United States [Article]

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A Comparative Analysis: Notice Requirements in Germany, Japan, Spain, the United Kingdom and the United States [Article] 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 Item License http://rightsstatements.org/vocab/InC/1.0/ Version Final published version 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.
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