NYSBA AUTUMN 2009 | VOL. 22 | NO. 2 International Law Practicum A publication of the International Section of the New York State Bar Association Practicing the Law of the World from New York Practical Aspects of The Hague Service and Evidence Conventions .......................................... 79 Birgit Kurtz International Intellectual Property Protection: The Berne Convention, The Madrid Agreement and Protocol, and Other International Agreements ....................... 83 L. Donald Prutzman Litigating in Canada: Five Things U.S. Lawyers Might Find Surprising ..................................... 91 Stephen J. Maddex A National Infrastructure Development Bank for the United States: Lessons from the Brazilian Model ............................................................................................. 93 Andrew J. Dell’Olio Dual Citizenship: Living on Both Sides of the Global Fence ....................................................... 105 Jan H. Brown DISTRIBUTION CONTRACTS IN THE USA AND EUROPE: Key U.S. Distribution Contract Provisions .................................................................................... 114 Andre R. Jaglom International Distribution Contracts: A Guide to Drafting Key Contract Provisions from a European (and, in Particular, French) Perspective ........................................................ 130 Franz Hepp de Sevelinges TAXATION IN ASIA: Overview of PRC Income Taxation of Resident Enterprises and Nonresident Enterprises ...... 146 Julie H. Cheng The Tax Regime of Singapore ........................................................................................................ 152 Pieter L. de Ridder Taxation in India ............................................................................................................................. 155 Shreya Rao and Parul Jain PRACTICUM: FORM AND POLICY The International Law Practicum is a semi-annual publication of the International Section of the New York State Bar As so ci a tion. The Practicum welcomes the submission of articles prepared by practicing attorneys. The length of an article, as a general rule, should not exceed 3,500 words, footnotes in clud ed. Shorter pieces, notes, reports on current or regional developments, and bibliographies are also wel- comed. All manu scripts must be sent either (i) in laser printed triplicate accompanied by a 3½" disk formated in Microsoft Word or WordPerfect to: The Practicum, c/o Daniel J. 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A searchable index is also available. 78 NYSBA International Law Practicum | Autumn 2009 | Vol. 22 | No. 2 Practical Aspects of The Hague Service and Evidence Conventions By Birgit Kurtz I. Introduction C. Operation of Hague Service Convention This article is designed to provide practical information Each signatory country designates a “Central Authority” for the practicing lawyer on the use of the Hague Service and to accept incoming requests for service.5 In the United States, Evidence Conventions. that is the Department of Justice in Washington, D.C. II. The Hague Service Convention A “Judicial Offi cer” who is authorized to serve process in the country of origin may send the request for service A. Background directly to the “Central Authority” of the country in which The full title of the Hague Service Convention is service is to be made.6 In the United States, any attorney ad- “The Convention on the Service Abroad of Judicial and mitted to the bar is a “Judicial Offi cer.” Extrajudicial Documents in Civil or Commercial Matters.”1 Once the request is received, barring any objections,7 the It applies in all civil and commercial cases in which there receiving state’s “Central Authority” arranges for service to is a need to transmit judicial or extrajudicial documents be made, generally in accordance with that country’s laws.8 for service abroad where two signatory countries are in- volved. 2 The Hague Service Convention was signed on Once service has been effected, the “Central Authority” 15 November 1965 by Members of the Hague Conference transmits back to the original “Judicial Offi cer” a certifi cate on Private International Law and entered into force on 10 that is evidence of proper service (not unlike those used in February 1969. The full text and a list of the current signatory U.S. state and federal courts).9 countries can be found on the offi cial website of the Hague Conference on Private International Law: http://www.hcch. D. Forms net.3 There are three forms, two of which must be completed by the party seeking to effect service in order for a country’s The purpose of the Hague Service Convention is to ac- “Central Authority” to serve the documents. The three forms complish the following: are available online.10 • Create appropriate means by which judicial and extra- The forms should be completed in English or French.11 judicial documents served abroad shall be served on The Central Authority of each signatory country may, how- an addressee in suffi cient time. ever, require that the documents to be served be translated • Improve international mutual judicial assistance by into that country’s offi cial language.12 simplifying and expediting the process for service (1) The fi rst form is the “Request for Service Abroad of abroad.4 Judicial or Extrajudicial Documents.” This document B. Procedure Before the Enactment of the Hague formally requests service by one of three methods: Service Convention – “by a method prescribed by its internal law for Before the enactment of the Hague Service Convention, the service of documents in domestic actions service was generally made by use of “letters rogatory.” A upon persons who are within its territory”; letter rogatory is a formal request from a court in the country – “by a particular method requested by the appli- where the proceedings are underway to a court in the coun- cant, unless such a method is incompatible with try where the party on whom service is desired is a resident. the law of the State addressed”; or In order to use this method, the court in which proceed- – voluntary acceptance by the person to be served. ings are underway transmits the document(s) to be served to its own country’s Ministry of Foreign Affairs (in the United (2) The second form is the “Summary of the Document States, the State Department), which forwards the request to to Be Served.” The form requires the serving party its counterpart in the country of destination. The latter then to provide a concise description of the action, for transmits the document(s) to its local court, which arranges example: for the party to be served. Once completed, a certifi cate of – Name and address of the requesting authority; service is sent back, using the same process in reverse. – Identities of the parties in the action; Letters rogatory are still used in cases where the country of destination has not ratifi ed the Hague Service