International Service of Process in Europe
The Basics of International Service of Process
There are two main methods to choose from when serving documents on the European Union, both methods, are proposed by the Hague Convention of 1965 and have the same legal value, no hierarchy exist between them, but one is less reliable than the other, the legal effects are basically the same. We propose a third method, a mixture of the above which we call “Hybrid”. Any other methods employed are outside the Hague Convention or irregular.
The basic legal methods of the Hague Convention are the following;
One, a public service of the “Judicial Administration” called “Centralized Authority” because it uses the “Government” to transmit documents. Is is intergovernmental, in principle a free service but submitted to economical constrains with high possibilities of no completion.
Two, by the use of a service provider, alternative method, called “decentralized”, it can use an “International private process server”, “Mail” or “Local Bailiffs”; All under the Hague Convention regulations, Art. 10. It’s applicability varies with the country’s opposition. As a Private method, it is paid, and therefore submitted to market and quality control.
International Service of Process, by either method, is ruled by two different legal systems, linked by the treaty of the Hague. The main law, called « Lex Fori, » is the law where the documents are issue and where judgment takes place, “Lex fori forum”. These rules, govern service of process validity and recognition in the “lex fori forum”, but not necessarily its effects and legality in the jurisdiction where documents where served, “Lex loci”. Recognition and enforcement by the “Lex loci forum” depend on the respect for internal laws of civil procedure and the procedure of “exequatur” It is then to each “lex fori” and their “foum” to determine their requirements for an “acceptable service” but being their powers limited in space they can not enforce it abroad, so necessarily need to keep in mind that: The act of notification is completed under a different legal system with different exigences, those of a sovereign state which must be taken in consideration, based on International treaties and for future enforcement. Based on International Legal Principles, we can affirm that a “Lex fori forum” can not accept in a procedure a “foreign illegal procedural actuation”, an act that violates foreign laws.Oon the other hand the “Lex Loci forum” will not enforce a judgment obtained under these circumstances in. Because of this, you must act in harmony with local codes of procedure and the Hague Convention and not only with your own laws,.or, your liability will be engaged in a Criminal or Civil manner.
The Centralized method seems to be the most appropriate and reliable, but it is not, is not mandatory nor exclusive, as explained by the Hague Convention itself (visit the Department of State’s1 web pages for more information). Therefore the “Central Authority” is not the only organ proposed as available to serve documents abroad as is the general believe or as promoted by many translation companies or unscrupulous servers who have created a :”Vox Populi” that takes advantage of ignorance of the treaty, to sell Translations and Apostilles.
Luckily for the legal profession, there are a series of alternatives or decentralized channels, Art. 10 a,b and c of the Convention, often more reliable and always faster and efficient. The method to employ must be in no conflict with the laws of Civil Procedure of both jurisdictions involved and both must be signatory countries as explained in Art. 5,b.: That is a legal harmony of “Lex fori” and “Lex loci”. These laws must be applied simultaneously when serving.
All signatory countries have accepted the “Centralized” method and not all accept all the channels of the the “decentralized method”. In Europe most countries accept both entirely. The reason is that most people believe that the alternate decentralized method does nor exist. The legal text are not interpreted or applied properly as it ends as a “Fraud to International law” and service is Void or Voidable. Managed IT Services Markham
The liberty of method is inspired by “International Civil Procedural Liberty” Convention, as expected by the Hague of 1954 giving flexibility to the Convention of 1965. The evolution of both and their application and Interpretation by jurisprudence has given a positive empiric result. Mondialisation of process, which needed a fast way for Judicial information exchange and judgment that adapts to it. World trade, has opened the door to more efficient and fast ways of litigation and serving process, resulting in a gain of time and money by cutting “Red Tape”. Nonetheless, there are limits to this liberty that trensform into critics to the methods and which are based on the need to eliminate some absurds requirements like the risky exam of legality prior to service or the choice given to defendant to refuse service if documents are not translated and the lacunae such as no distinction between service to Individuals or Multinational Companies, Nonresistance of presumptions and many more will see later..
The Hague Convention’s Centralized method has, as said many “legal lacunae” or serious defects:, the main one is that is a free governmental service that does not uses a “fast Independent Private Process Server.”, as is requested by many courts and litigants, it is defective and often deceptive method. It promotes the use costly translation and the contents of summons is exam for legality before they can be served. These requirements makes it slow and therefore not adapted to modern international litigation. It is also contradictory because under the veil of gratuity there are a series of unnecessary expenses that result in an expensive service, more that using private channels. I consider it promotes unnecessary translations because, if documents are not translated, the defendant can refuse service and in other cases the central authority will not be able to exam their legality, Article 5..
It is advisable not to have the documents translated unless you do it properly with the right qualified professional. As a preventive measure, if you do a translation to avoid “possible” future problems, the translation itself can be easily “questioned” in court during enforcement because European courts only accept as valid translations from tindividuals that give the necessary legal guarantees, either by Certification and/or Registration. Is is considered that only those listed each year by the different Courts or the Foreign Affairs Ministries. do reliable translations. There are other “glitches” that appear at the home Jurisdiction but these can be kept at home.