International Private Service of Process

Theory of International Service: Part 1; The need of "Reliability"

There are different methods accepted to serve documents in Civil and Commercial matters, issue by a Local Court, in a Foreign Jurisdiction, these are; by the International Treaty of the Hague Convention of 1965, by treaty between Countries and of course Outside the Hague Convention or "free service".

Being International Service of Process the first step in a Judicial Procedure it must be "true", otherwise the rest of the procedure will be vice (Not Squash) of "arbitrariness". International Service is in the essence of "Good legal understanding" between nations. Presently this is what we have;

1. The Hague Convention which proposes two channels for service: Formal and Informal, both having the same legal value or hierarchy, one more efficient tan the other.

1.a Formal service refers to service using the local governmental institutions "agreed" called “Central Authorities”. The use of this channel is complex, does not Skip traces, requires translation of documents and is often slow or it fails.

1.b The second channel propose by the convention is composed of 3 different ways to serve documents: Postal, Private hiring of Judicial officers and Legal Currier or anyone with interest.

These “bypasses” of the "Central Authorities" are regulated in Article 10 a,b and c of the Convention and must be validated by an “Applicability table” per country. This table is in constant evolution and updated periodically and unfortunately not the treaty itself. This applicability table reflect what “bypasses” are accepted or opposed by the Country receiving service. Often, these oppositions are "declarations or reserve" indicating some internal rules to apply to Article 10. Once a country has adhere, without any reserve or opposition to article 10, it applies overlapping local laws of Civil Procedure but in no moment can have more legal value than the "Constitutional Laws of that Country", which is not always respected.

Nevertheless, these methods and channels are a result of old concepts of sovereignty and depended on "Countries will" that have no space in the present Global economies, reason why International Service of Process, must be reform to follow “Global legal guarantees”, which can be reduced to “Non existence of defenseless or a due process” and avoid "International Service of Process Fraud" like is happening today.

There are many aspects to consider and reform, but basically are;

1. Acknowledgement: Addressee is properly Inform of a Court Case in which he takes part and why.
2. Understanding: Addressee understands the object of the case.
3. Warning: Addressee if informed of consequences of not responding to the "Court call".
4. Legality: Addressee is informed of the laws applied to service.
5. Approach: Addressee could “deny or oppose” during service and to the Process Server who must inform the "Addresser" of this.
6. ADR: Addressee is given te option to use a “Mediator”, “Arbitrator” or “Waiver” during service.
7. Passive legitimation: Addressee must recognize service.
8. Time: Addressee has enough time to respond to service.
9. Qualifications: Process server is “Legally Competent to serve” and must indicate in his statement exactly what he has served, not only by title of document but by number of pages.

The different study commissions of the Hague Convention recommend the use of their proposed “form”, for formal or informal service. This is a rudimentary documents that must be perfection and which will become a valid document or “Affidavit of Service” including to non Hague signatories, if its contents is the following;

a. Signing Process Server: Must have “International Personal Responsibility”, either by attachment to the local or to the foreign jurisdiction. Indeed, the following servers must not be accepted as "Signers",

a.1. Illegal Aliens or Non legal residents of the Country of service.

a.2. Limited Liability Corporations or "Offshore Corporations"

a.3. Felons or persons with a Criminal record or Convicted yn the Country of addresser or addressee.

a.4. Couriers that are not “Binded or Control by Professional Associations” or submitted to an "Ethical Behavior" that could allow addressee to verify identity.

1. Defense: Addressee is informed of where to obtain Legal Aid.
2. Evidence: Addresser must received a confirmation “Affidavit” clearly stating these considerations.

Language: International Service of Process must be in English language.

b. Service by Mail (Post, DHL, Fedex....) must not be a simple “Existence of an Address”, reception by addressee must be confirmed either by its signature on the reception receipt of an "Anonymous delivery driver" or if substitute service by telephone or electronic confirmation to "Liason server", who will detailed description of content sent to addressee in those numbered pages.

c. Service by local Judicial Officer: Must be limited and strictly submitted or according to local laws of Civil Procedure and not to any treaty imposition and an option should be given to addressee to refuse service if no legal Advise is included, but not the language of the documents.

..... A series of "presumptions" of knowledge of English language must be also indicated in the affidavit by the private international process server: Individuals who have lived in an English speaking country or have been married with an English mother tongue" person.... for corporations: The fact of doing International Business conducted in English...

To the best of my knowledge!

Joseph A. de LA CUETARA HERGER, JD.

Tel. +34 687 70 49 40 [email protected]

https://www.servefast.eu/

"Ius gentium est quod naturalis ratio inter omnes homines constituit"?