The Hague Service Convention was signed into a treaty on November 15, 1965 in Hague Netherlands. The treaty was originally signed by the members of the Hague Conference on International Law. Later other countries adopted and adhered to the terms and stipulations found in the treaty.
The purpose for which Hague Service Convention was initiated was to facilitate a fast and efficient means of service of legal documents and processes to other countries where a party resides.
Before the existence of the Hague Service, the mode of service of legal and court processes to other countries is via Letter Rogatory. A Letter Rogatory is an official request from the country where a litigation or court proceeding is pending addressed to the judicial tribunal of the country where a party resides. With this obsolete kind of service, the legal document usually passes through the Department of Foreign Affairs of the sending state and to the same department of the receiving state. The latter would then forward the legal document to the local court having territorial jurisdiction over the residence of the party upon whom service is to be made. The court would then assign its own process servers or employee to serve the document personally to the person to whom service is to be made. The inconvenience brought by this olden and primeval mode of service was brought to end by the advent of the Hague Service Convention.
Under the provisions stipulated under the Hague Service Convention, a simplified and practical mode of service of processes was developed. In a more simplistic approach, the treaty now imposes to the signatory states that each member state should designate a Central Authority deputized to receive requests for service straight from the court where the action was commenced or is pending. The Central Authority would then forward the legal document to the court exercising territorial jurisdiction over the place of residence of the party and arrange that the document be served upon said person. After service is made, the Central Authority will send a return or certificate of service to the judicial tribunal from where the request originated.
In the United States, the agency or bureau deputized by the government is the US Marshals Service where all requests for legal service is filed.
Article 10 of the Hague Service Convention specifically provides that the treaty shall not interfere with the following:
- the freedom to send judicial documents, by postal channels, directly to persons abroad;
- the freedom of judicial officers, officials or other competent persons of the state of origin to effect service of judicial documents directly through judicial officers, officials or other competent persons of the state of destination;
- the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the state of destination.
Note that in paragraph (a) the judicial tribunal is not enjoined by the treaty not to resort to service by registered mail directly to persons residing outside the sending state. The contracting states are likewise not proscribed to negotiate with other contracting states other means or methods of service, other than those prescribed in the treaty, through their deputized officials.
Also, under article 12 of the Hague Service Convention, it was clearly stipulated that the service of judicial documents from a contracting state shall not produce any obligation on its part to pay for the expenses or taxes incurred by the receiving state in the process of the service of the document. The sending state shall only pay or reimburse the expenses of the service in two occasions: (a) employment of a judicial officer or of a person competent under the law of the state of destination and (b) the use of a particular mode of service such as service by publication.
In case the defendant, upon whom the service was made, failed to appear, a decision shall not be issued unless it is proven that the document was served by the method prescribed by the internal law of the state addressed for the service of documents in domestic actions upon persons within its territory, or the document was actually delivered to his residence by another method provided for by the convention and in both cases, that the service should have been made in a sufficient time in order to allow the defendant to intelligently file his own defenses.
Failure to establish these facts cannot compel the issuance of a decision which is adverse to the rights of the defendant. However, the judge may order provisional remedies or protective measures to ensure and protect the right of the party plaintiff.
In the enforcement of a judgment rendered in our courts to a foreign country, the provisions of the Hague Service Convention in the service of the execution is recognized in all of the member states. There is no more need to take into consideration the method of service required in the receiving state since the modes of service prescribed in the Hague Service Convention is widely accepted and adopted by all of the signatory states.
In using the methods prescribed in the convention, visit its website at www.hcch.net where all forms and documents necessary for the use of the extra territorial service is available in pro forma.