The basics of international service of process
Two main options are available for serving documents on EU. Both are suggested by the Hague Convention of 1995 and have the same legal value. They are all the same, there is no hierarchy between them, however, one is more reliable than the other and the legal effects are the same. A third option, which we refer to as “Hybrid”, is a combination of both the above. Other methods are not covered by the Hague Convention and may be considered irregular.
These are the basic legal principles of the Hague Convention:
One is a public service under the “Judicial Administration”, called “Centralized Authority” as it uses the “Government to transmit documents. It is an intergovernmental service, which in principle is free but subject to high economic constraints and the possibility of not being completed.
Two, through the use of a service supplier, an alternative method, called “decentralized”, can be used. It can use an “International Private Process Server”, “Mail”, or “Local Bailiffs”. All in accordance with the Hague Convention regulations Art. 10. Its applicability depends on the country’s opposition. It is a private method and it is subject to quality control and market pricing.
International Service of Process can be done by either method. They are governed by two legal systems that are linked by the Hague treaty. The main law, also known as Lex Fori >>, is the law under which the documents are issued and the place where they are ruled upon, the “Lex fori forum”. These rules govern the validity and recognition of service in the “lexfori forum”, but they do not affect the legality and effects in the jurisdiction where the documents were served. Respect for the internal laws of civil procedure, and the procedure for “exequatur”, is what governs recognition and enforcement by “Lex loci Forum”. However, these rules do not necessarily apply to the legality and effects of service of process in the jurisdiction where documents were served, “Lex loci”. We can confirm that the “Lex fori” forum cannot accept in a proceeding a “foreign unlawful procedural actuation”, which is an act that violates foreign law. However, the “Lex Loci” forum will not enforce a decision made under such circumstances. This means that you must comply with the Hague Convention and local codes of procedure. Otherwise, you will be held liable in a Civil or Criminal manner.
Although the Centralized method appears to be the most reliable and appropriate, it is not the only one. The Hague Convention itself explains this. For more information, visit the Department of State’s1 webpages. The “Central Authority” does not have to be the only one that can serve documents overseas. This is also the general belief or the promotion of many translation companies and unscrupulous server who have created a “Vox Populi”, which takes advantage of the treaty’s ignorance to sell Translations or Apostilles.
There are many alternatives, or decentralized channels, available to the legal profession. Art. 10 a, b, and c of this Convention are often more reliable, faster, and more efficient. Both the Civil Procedure laws of the jurisdictions must not be conflicted with the method chosen. Additionally, both countries must sign Article. 5,b. 5,b. When serving, these laws must be applied simultaneously.
All signatory nations have accepted the “Centralized method” but not all of them accept the “decentralized method”. Most European countries will accept both. Most people believe there is no alternate decentralized method. Because it ends in a “Fraud of International law”, the legal text cannot be properly interpreted and applied. The service is void or unenforceable.
“International Civil Procedural Liberty” Convention is the inspiration for liberty of method. This Convention was expected to be adopted by the Hague of 1954, which gave flexibility to the Convention of 1965. Both their evolution and application, as well as the interpretation by jurisprudence have produced a positive empiric outcome. The globalization of the process required a quick way to exchange Judicial information and for judgments to be adapted. The world trade has allowed for faster and more efficient litigation and served process. This has resulted in time and money savings and a reduction of “Red Tape”. However, this freedom has its limits. They are based on the need for eliminating some absurd requirements such as the risky examination of legality before service, the option given to defendant to refuse service if documents have not been translated, and the lacunae such no distinction between service to individuals or multinational companies, Nonresistance to presumptions, and many others that we will later see.
As stated, The Hague Convention’s Centralized Method has many “legal lacunae”, or serious defects. One is that it is a free government service that doesn’t use a fast Independent Private Process Server. It is often misleading and deceptive and is frequently requested by courts and litigants. It encourages costly translation, and summons contents are examined for legality before they may be served. This makes it slow and not adaptable to modern international litigation. This is because it conceals gratuity, which can lead to expensive services. It encourages the use of unnecessary translations, as defendants can refuse to receive service if they are not translated. In other cases, the central authority won’t be able examine their legality. Article 5.
If you are not qualified to translate the documents, it is best to avoid doing so. To avoid future problems, you can have the translation translated. However, it is possible to “question” the translation in court during enforcement. European courts will only accept valid translations that are certified or registered by the proper professional. It is believed that only those individuals are listed by the Foreign Affairs Ministries or Courts each year. Do reliable translations. Other “glitches”, which may be found at the home Jurisdiction, can also be kept at home.
However, the Centralized has one major flaw: the need for an exact address. This is a problem because the Central Authority doesn’t “search” for individuals or corporations. A defendant can change his address, or if the address is incorrect, service will be returned. This will waste your time and money and send you back to square one, while court time is running. It is interesting to note that corporations can change the address at their registered headquarters, but they are not required to notify the Mercantile registry immediately. The central authority won’t pay for expenses like access to a merchant regustry.
Another flaw is the requirement for Personal Private Service. This concept is not understood correctly in every country. Bailiffs and Local Judicial officers apply the local Code of Civil Procedure, not special instructions from foreign jurisdictions. Common law defines “Personal” as “Personal”, but Europe understands it as “Substitute”. This problem is compounded if you distinguish between service to corporations and service to individuals. This must be done in the person of the individuals authorized to serve the corporation, i.e. the “officers” listed on the mercantile register. Substitute service is therefore the service to the front desk, secretary or gardener of a corporation. Individuals can leave documents at their address or leave a note on the door. Most local laws allow for this type of service. These officers do not have to know the Hague Convention hierarchy in this sense or what the “Lex fori Forums’ requirements are. Instructions to serve the central authority are transformed into “Let’s do it our legal”, which may not be valid in the other jurisdiction.
Be aware that “insistence” and “persistence” are not possible with the “Centralized Method”. Its efficiency is poor and you will not be able to achieve the best results.
These are the reasons why Common Law Attorneys use as many “tricks” or patches as possible to remove obstacles from the “Central” method. I don’t blame them. Sometimes they use “an agent”, which can often be their local process server or their friendly “tacky translation company” or their neighborhood’s private investigators. They are not only guilty of fraud, defamation, international law, Ilegal practice of legal,Revelation of Secrets…and to complete the apocalypse. If the judgment is not challenged or prosecuted, it will not be “Exequatur”. (Enforcement).
It is clear that disregarding European laws, privacy rights, and rights of image, amongst others, can lead to unintended consequences. The liability of the plaintiff is imposed by Jurisprudence if services are rendered in such a way as it is irregular.
Ex-lege is owed to the “Lex fori forum”, and the “Plaintiff’s Attorney” to comply with the lex-loci, or legal requirements of the jurisdiction where documents are served. These starts at home with confidentiality and secrecy as well as a proper translation of documents.
Service of Process must protect defendants abroad. My understanding is that non-certified translations companies, such as Lex fori, can contaminate cases.
There are a number of channels that make up an “alternative or decentralized method”, which are more reliable and more efficient than the central method.
These are the characteristics of Centralized Service of Process:
1.Translation: High Cost b. Unnecessary cost b.
2.Service Speed: Slow, can paraalize eassily
3.Prior Examination of legality a. Slows Down b. Contradictory
5. Non Personal Service
7. No Confidentiality
Hague’s alternative method of international service of process
There is no hierarchy between the “Centralized”, and “Decentralized” methods.
Art. Art. They lack “legal guarantees of delivery” which violates the Principle of Contradiction and Equality in a fair Judgment. These channels could make the defendant “defenseless”. These channels are often referred to by jurisprudence more as evidence of an address than evidence of a Legal Notice. These are allowed by the Hague Convention in Article 10, but they must be logically complemented to be legally binding, even if it does not indicate them. One can send blanc pages via fax or mail, since no one will review the contents and thereto obtain an order by default. This is why I recommend that a “Certification Of Contents” be done on either the sending or receiving Jurisdictions by a qualified professional who has “Public Trust” The postal and fax receipts are not an affidavit.
Understanding that service of process abroad’s purpose is to transmit information, a legal notice to a defendant, inform him about a “cause”, which could have serious consequences for his patrimony, rights, and obligations, as they would in your jurisdiction. These rights must be protected and respected by the rules and laws of the legal art to avoid arbitrary application of law or fraud to International law. The Hague Convention channels these notifications by considering internal laws Art. The Hague Convention canalizes these notifications by taking into consideration internal laws Art. 5 but doesn’t provide a way of controlling it or a procedure to appeal. It is not important if the notification was sent, but if it was properly received. It is best to avoid sending service by mail, fax, or email.
These alternative channels are symbols of the “Liberty of Transmittal”, but they have entered into excesses (email, for example), which is why many Common law Attorneys have misunderstood the decentralized method. Translators and private agents. This was because the “mechanism” of service used and employed was the “known one”, the one that sounds logical, but is unconsciously applied in violation foreign laws. As a reflex, professionals have used what they know and sent a joke abroad using the same methods as they did for state notifications. This has led to the impossibility of enforcing judgment recovery or just a challenged service. It is important to distinguish between an International Service of Process or a Banal Service of Process. To honor international justice, even though the effects of your judgement will remain within your jurisdiction, it is only a matter of International legal grace.
The rationale behind the concept of “Public Trust” is that each culture’s legal system and its philosophy is different. Consider the opposite of Europe: There is no Governmental Identification Card in common law countries, no central land or property registry, and sometimes Notaries are just individuals. Process Servers and Translators only have minimal requirements. Everything is considered “suspicious” in Europe. The state ensures maximum legal security at the “Felony and Criminal level” to prevent any “misunderstanding”, fraud, deception or abuse.
Europe. Service of process for either internal purposes or European Purposes is considered a penetration of “Jurisdictional Power”, and when it is completed, it is actually a delegation of powers to the server. Europe. The different “Legal Corporations” have held the monopoly on legal representation, consultation and actuation since the middle of the last century. These basic requirements are not applicable to private agents.
The legal professional associations are those of “Huissiers de Justice”,”Procuradores”, “Ufficiali Judiciario”,”Abogados”,”Avocats”,”Advogados”…. These “legal contents” and “jurisdictional acts” are not available in common law countries, where anyone can do them. Only qualified legal professionals are able to serve legally and properly in most parts of Europe. They are the only professionals who can provide the necessary legal guarantees. The concept of “Agent” in Europe is not recognized in common law. However, the Hague Convention does recognize it as such.
Logically, it is clear: If any country has laws on Civil Procedure that establish internal service of process, which requires guarantees of public faith; given only by qualified professionals, then how come you can expect to use anybody for International Service? A representative? Final thoughts: Do as the Romans when you’re in Rome!
It is important to distinguish between communications with the Server or the Central authority and notifications or service of process to defendants. The one is an organ, the other a defendant. The Central Authority of the server can communicate with them by any method, including e-mail. Also, the Hague Convention requires service of process to comply with two requirements: voluntary and knowingly. These are similar to a “bilateral requirement in Civil Law” (See article 5 (b), alinea Hague Convention). If the defendant is not able to understand what he is being given, service can be refused. He is not capable of understanding documents if they are not translated. Although the defendant may not be able to understand foreign laws or could face economic challenges, there is a presumption: If the defendant does not receive multilingual counsel and advice at the time of service, or if the documents do not contain Legal Notice, etc., then the defendant is “Procedural defenseless”. Service of process is invalid and unutile. . Service to Corporations doing International Business. Those who are subject to the Hague Convention of 1956 for “Company Recognition” must assume that they can speak the language and understand the laws of the Jurisdiction where they do business. The Hague Convention doesn’t distinguish between services according to defendants; individuals or corporations. The Hague Convention is a barrier to corporate service. This is because the plaintiff must translate the documents. Logically, corporations should not use the central authority. They don’t need it.
While “voluntary acceptance” is a condition for service under the Hague Convention, it does not mean “Refusal at any time and systematically to obtain civil or commercial impunity”. Service by Certified Mail, email, and fax, as well as other unilateral acts, are considered “Adherence” from the defendant to service. They all have the common denominator of the defendant not accepting the service voluntarily since he is getting something with unknown contents. He will find out the contents later, and so he accepts first. This is contrary to the Hague Convention which states that these channels are good for verifying an address but not service. The Court will not accept Certified Mail, Email, or Fax as a method of serving the defendant unless it is supported by an Affidavit.
“Service by Agent”, as it is understood in common law is not included in the Hague Convention on Service of Process. However, it is an automatic reflex that many common law Attorneys have used. Because the Agent spoke the language of the Attorney who required service, translations were necessary for these agent services. He is often a foreign national, sometimes illegally, who does not have the right to perform this type of job. They offer “Shaky” services because they speak the language of the Attorney who requires service.
These “Merchants of Process Serving” use translations to increase profits and reduce the risk of future challenges of service. It is accepted in most European countries. Legal Guarantees are granted only to registered and insured professionals. They are recognized by the governments and placed in special associations or corporations subject to strict ethics control. These agents are an insult of law and order. “Defendant’s Rights” are protected by law and confirmed Jurisprudence against “dummy servers” and anyone else from the world. They can also issue affidavits for “fistful of dollars”. Service by Agent is only possible if the Agent is qualified in the country of service.
An interesting anecdote is that I discovered an “International Service of Process Company in Spain” that also did “plumbing” services out of the same office. This business was run by a felon who issuing affidavits to any address or persons he has never seen. It is shameful that North American Justices and Attorneys often accept for international service of process affidavits from persons who do not provide any guarantees or have the essential “Public Trust”, and look down on the rights of defendants as well as the laws of procedure in a foreign country. Employing anyone to serve international process is disrespectful of International and Local law. Respect foreign procedures in order to serve effectively Understanding the European concepts in a “Procedural Notice” is essential, as well as respecting “Justice”.
Art. Art. These agents can serve either a physical or judicial person depending on their type. Some jurisdictions require that a corporation be served by a “Registered officer” (as it appears on their country’s mercantile registry) or their legal department or representative. The place of service must be their registered headquarters. Otherwise, it will be a substitute service. Individuals and corporations can be served at their attorney’s office. An agent can serve individuals at their place of business or home, but not in public places.
The Hague Convention has one exception. It requires that the address be given to the service requester. This restriction reduces the rights for the plaintiff because a qualified lawyer acting as agent may complete service at two addresses to avoid impunity. That is, the address in the summons and the legal address can be served.
You can request service by instructing a Bailiff’s Judicial Officer, article 10c of the Convention. They will serve as an organ and server but will issue an “Act”, or document, in the official language. To have the document legalized, you will need to pay for a translator into English. Hydrid takes care of everything.
Remember, the principle of Europe is “Protection and the rights and obligations litigants” through due diligence and integrity. It is not an “affidavit”, obtained in obscure circumstances at any judicial price or at justice expense.
Summarizing: Both main methods have the same legal value in the Hague Convention. There is no “Hierarchy” among them. They are both equally poor. However, combining them can make an international service more reliable.
WARNING: While translations and Apostilles (Legalizations are not required), if you do use them, the Translator must be certified by the “Foreign Affairs department”, or the “Local Appellate/Superior Court.” A local Notary Public cannot certify the signature of a translation. This does not correct errors in “tacky translations”. Non-registered “Attorneys at Law” for acts reserved to lawyers in most European Union jurisdictions can “contaminate your case” and you are liable. If you are not qualified, do not use anyone who is willing to sign a statement of service.
The Hybrid System: Inventing International Service of Process
Our hybrid system of international private personal service of process combines not only “methods”, it also includes the various channels or options available to the convention. It is applied in steps and takes less time than the “centralized” method. It is a better service, which takes the positive sides of each method to get the best legal guarantees. Please contact us to discuss your case and how our system can apply.
The International Service of Process hybrid system addresses the shortcomings of the Hague Conference’s central method and the abuses of the alternative method. This service of process is simple and has the characteristics of legality, reliability, and speed. The “system” on the other hand applies the principles and laws of the Hague Convention to each jurisdiction, incoming or outgoing, as well as their respective procedures. The purpose of the “legal order” was to ensure maximum legality and protection for litigants. Its main feature is that service is doubled, with a preliminary international service and an Euroservice.
The system guarantees that the rights of plaintiffs and defendants are protected by multilingual registered and insured Attorneys at Law in each country. The documents are delivered by the legal professional in full confidentiality. He will provide advice in the defendant’s language, giving detailed legal notices and explaining the next steps. All services are performed with mandatory secrecy, neutrality, Courtesy, and professionalism in accordance with Civil procedure’s internal laws.
The defendant cannot refuse service or claim that he is “unprotected”. There is no “a posteriori” examination of contents or delay, translation’s costs or apostilles, and no promises of service. However, a “Jurisdictional Act” has been completed in accordance with local law by a qualified lawyer.
a. The defendant cannot refuse service or claim that he is “unprotected”. b. Liberty of choosing a process server according to the market value of the legal profession. c. There is no pre-examination of the contents, or delay in exams. d. Translation’s costs are not included. e. No apostilles or stamps, or clips. e. There is no doubt about delivery of Contents e. Customer service and Affidavit of English g. Une of Bailiff h. Delivery is guaranteed i. Service is guaranteed by the court
….. and many more
Our pricing list reflects the fact that we have to take into account many legal and practical aspects in order to provide service in Europe. We also offer services that are less expensive than the “Centralized” option and the same value.
We propose different types of service depending on the time required for service. Urgent has different protections. To obtain the exact address required by the Hague Convention, we always conduct a Skip Trace or Locate. In order to save you unnecessary expenses and avoid any additional costs, we then mail a preliminary service to process to verify physical existence and address. We ask for an interview or appointment and place ourselves as neutral Attorneys at Law as required by law. Counseling the defendant is not possible. We verify the identity and knowledge of the receiver and discuss their rights and obligations. This procedure is summarized in a Custom made Affidavit, which is legalized by Notary Public of diplomatic representation of lex fori (That’s to say: the Consul).