The United States is a signatory in two treaties of service processes, the Hague Service Convention and the Inter-American Service Convention. The Hague Service was signed into a treaty on November 15, 1965 in Hague, Netherlands. The Inter-American Service convention was made into a treaty on January 30, 1975 in Panama.
The Inter-American Service Convention was made into a treaty by the countries comprising the North and South American States which includes the following: United States, Brazil, Chile, Columbia, Ecuador, Guatemala, El Salvador, Panama, Mexico, Peru, Paraguay, Uruguay and Venezuela.
This treaty allows each of these American countries to effect service to persons who are residents of the other signatory states. As compared to the Hague Service Convention, this treaty makes use of Letters of Rogatory. As defined under international law, a Letter of Rogatory is a formal request sent, by the sending state in which court an action is pending, to the court having jurisdiction over the place of residence of the party upon whom the document is to be served. This method has been eradicated by the innovation and onset of the Hague Service Convention but is a requisite under the Inter-American Service Convention.
To compare these two treaties, the Hague Service Convention was signed into a treaty by the members of the Hague International Convention. The Inter-American Convention which came a few years later was exclusively signed into a treaty by the American states. The reason for this is due to the fact that not all American states are members of the Hague Service Convention. In order to allow these states to avail of a similar method of legal process service offered under the Hague Service, the Inter-American Service Convention was brought into existence. Under both treaties, only the member states or signatory states could make use of the method of process service indicated therein. However, US courts have long held that service under the Inter-American Convention is not exclusive to its member states.
The treaty was also approved in order to provide for a uniform procedure of process service among the member states in the American Region.
The Inter-American Convention provides that the procedure can only be availed of and is limited to be used in civil and commercial cases. However, under article 16 of the convention, it allows that the provisions of the treaty could be applied even in criminal cases. So far, only Chile has acceded to this provision and manifested that it will use the Inter-American Service Convention in such cases.
The procedure in the Inter-American Convention is similar with the Hague Service Convention. The following are the step-by-step procedure as specified and prescribed under the provisions of the treaty:
- The signatory states have to set up a Central Authority, which shall have the exclusive authority to receive all legal documents and communications sent thereto by the sending state where the case is filed or is pending.
- A particular form is prescribed by the convention to be used as an official request form. This is available in the office of the US State Marshal, which is the designated Central Authority by the US government.
- The request form shall consist of an original and two duplicate copies.
- The request forms shall be accompanied by three copies of the summons and complaint and other legal documents.
- Under Art. 3 of the Inter-American Service Convention provide that a Letter Rogatory should accompany the request form. In the United States, the courts ruled that the request form suffices this requirement making the Letter Rogatory dispensable.
- The additional documents (summons, complaint etc.) required to be an adjunct to the request form should be translated to the language of the receiving state. Translation is not required with regard to the formal request form. However, by custom usage and by reasons of convenience, the request form may be translated to facilitate ease in effecting the service in the receiving state.
- Under the Inter-American Service Convention, it is required that the formal request form bear the seal and signature of the clerk of the court where the action is filed or is pending.
- It is also required that the documents bear the stamp or seal and signature of the Central Authority of the state where the court is located.
- A return or certificate of the service shall be sent to the sending state in the reversed manner.
Note that under the Inter-American Convention, the request for service should be sent to the Central Authority of both the sending and the receiving states. Failure to address the request to the Central Authority shall render the request unserved and shall be sent back to the sending state.
Once received by the receiving state, the Central Authority shall forward the legal documents to the local court having jurisdiction over the place of residence of the person upon whom service is to be made. The local court then will serve the legal documents using the mode of service required by its municipal laws.
The Inter-American Service Convention is silent on the point of service by registered mail. However, by analogy, it is believed that service by registered mail may be resorted to by the receiving state as a method of process service if the same is allowed by its local laws.