Essay: Service Convention

Introduction
Twentieth century has seen rapid advancement of science and technology along with the development of an international economy which is interdependent, eventually the importance and significance of national boundaries with regard to the daily life of many people and businesses has been reduced substantially. Thus, in the light of the same, it can be logically seen that international litigation pertaining to civil matters has become increasingly frequent. As a solution to the inequities and difficulties which might arise in the course of litigation at the international level, twenty-six nations entered into an agreement at the international level in order to set forth the methods to be adopted in relation to Service in litigation matters concerning the residents of the signatory countries. This agreement, “The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters” , hereinafter referred to as The Service Convention, was subsequently adopted by most western industrial nations.
In the current project the authors will discuss about the procedure of Service under the Service Convention along with analysing the lacunae of the same.
Service Convention – History and Background
The policy of judicial isolationism has been adopted and followed historically by the United States in matters related to private international law. This was the situation which was persistent before the United States entered into the Service Convention. France offered the United States to enter into an agreement in order to mutually promote judicial assistance between the two countries in the year 1854. The offer of France was declined by the United States which consistently refused to accept any of the similar offers from foreign nations and eventually did not participate at The Hague Convention of Civil Procedure of 1905 which was an effort at the international level to promote the same. In the view of the United States, such an agreement would lead to superseding of the rules of the civil procedure of respective states which might be portrayed as a blow to the federalism which was prevalent in the American system of governance. The United States’ position on the same was so clear upon the global level that eventually when the Seventh Hague Conference took place in 1951, the United States was not even invited.
Eventually, as the United States was reluctant to participate in the international judicial agreements and there was substantial increase in the interdependence of the economies of the world, the attorneys and their clients in United States which were involved in international litigations started facing problems. International litigation incidences increased at a rapid pace after the end of the World War II. American Bar associations in order to resolve this situation adopted a resolution in the year 1950 whereby they urged the then president Truman to explore the options to facilitate and promote international judicial cooperation. This growth in the need of an international cooperative measure so as to facilitate the litigation at the commercial level forced the United States to reconsider his long held stand and join in the international effort. As a result, a delegation of the observers was sent by the United States in the year 1956 to the Hague Conference on Private International Law. It was later in the year 1963 when the United States was authorised by the president Lyndon B. Johnson to join the Hague Conference on Private International Law as a full member. The conference when convened in the year of 1964 produced many international agreements and Service Convention was one of those. At the tenth session of the conference the Convention was adopted which was an association of nations with the single minded focus on harmonisation of conflict of law rules.
Therefore, in this way the Service Convention was promulgated and eventually marked as great break in the field of judicial assistance at the international level.
The Convention
The Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965, is divided according to the subject matters into three broad categories, that is, judicial documents, extrajudicial documents and final clauses.6 the breakup of the Convention on the basis of its functionality can be given as follows:
Scope of the Convention (Preamble and Articles 1 and 17):
The main purpose of creating this Convention is to provide expeditious and simplified procedure in order to ensure proper serving of documents and timely notice of the documents to the addressee. The applicability of Convention extends in all the cases involving judicial or extrajudicial documents whether it is transmitted in commercial or civil matters, the Convention does not provide for Service in case the address of a person is unknown.
The applicability of the Service Convention as stated extends to all “civil or commercial matters” among its signatory nations with regard to the Service of documents. Even though great emphasis has been made to this term, there is no clear definition of this phrase in the Convention. Thus, the same has been interpreted differently by different nations. Example, the United States and the United Kingdom extend the meaning of this term to all noncriminal matters. According to the interpretation done by France, this term includes everything except fiscal and criminal matters. Japan does not consider the applicability of the Convention to matters related to administrative proceedings.
Also, it is portrayed to note that when the problems related to interpretation of the Convention’s scope arises, it is not clear still as to whether the interpretation adopted is to be that of the nation receiving the request or the nation of origin. The drafters knew that such a problem would arise but they abstained from defining the scope in such matters as it would be impossible to define the scope so as to be satisfactory to all the signatory nations. It is, however, stated by the experts that the Convention would be construed by the signatory nations liberally. It has also been observed that till now almost all the central authorities have ensured cooperation and have attempted to honour the spirit of the Convention in all matters except for those related to criminal and tax related matters.
Duties of Central Authority and Mechanics of Service (articles 2-13, 18-20):
The Service Convention provides for designating a central authority by each signatory nation which would become the centre where the requests for Service might be sent by the litigants from another signatory country. The Convention also allows for flexibility in the organisation of creation of the central authority between the contracting nations. In order to request for Service, the request as to be made to the central authority by a competent authority or officer of the signatory country where the requests originate, and along with the request the documents’ copies which has to be served must also be attached. The central authority then would analyse the documents and if they find any kind of defect or irregularity the same needs to be notified to the applicant along with the reasons for finding such defect. Diplomatic channels are to be used in order to resolve the disputes arising of such finding.
Once the request has been received for Service, the document would be served by the Centre authority or arrangements would be made in order to ensure that the Service of the documents is done appropriately. The nation who would receive the request, the Service would be done in accordance with the domestic law that nation or the same should be done in the manner which has been specified by the applicant is that manner is in consonance with the internal law of the nation in which the Service is to be done. A Service Convention model certificate is to be prepared by the central authority after the Service of the document has been done which would include details regarding the Service such as the date, the place of Service, and the method, and the same would be sent to the litigant who applied for Service. If in case the Service has not been completed, then the Centre authority needs to complete the Service Convention model certificate and along with the same attach an explanation as to why the Service as requested was not done.
Apart from the use of central authority, the Service Convention also provides for method of Service which can also be used. The Service Convention allows the bypassing of the central authority, and Service can also be made diplomatic officers of a nation from where the documents have originated; however the nation in which the Service has to be done in also bar Service in this manner unless the Services to be made to a resident of the nation from their the documents have been originated. Consular channels are also permitted by the Service Convention and, if there exists extraordinary circumstances, diplomatic channels can also be utilised in order to transmit requests and documents for Service to the central authority of the receiving nation.
Service Convention’s Article 10 outlines several broad methods in order to affect Service within a signatory nation without involving the central authority of the nation. The methods given in Article 10 are restricted to some extent, however, they can only be used in cases where the signatory nation of the destination does not object to the same. The Article 10(a) provides that the signatory nations will not prohibit the nations from mailing the documents through postal channels to persons within a signatory nation. Article 10(b) and 10(c) allows the competent persons or officials belonging to the state where the documents have been originated to serve process through competent parties in the state of destination provided the officials have an interest in the litigation.
Thus, the Service Convention provides for various methods in order to affect the Service of process abroad within a signatory nation. The Service Convention, however, fails to provide whether it is the sole means of serving process within a signatory nation or other means can also be utilised.
Default and De-fault Judgment (Articles 15-16):
If the foreign parties does not respond to Service affected under this Convention then such a situation is governed by Articles 15 and 16 which talk about granting of default and default judgements. An unresponsive defendant would be held to have committed default only when the Service was delivered for him in sufficient time in order to enable him to defend himself. Also, it is to be seen that the accomplishment of the Service was in accordance with the law of the nation where the defendant was residing and the Services must be either actually delivered to the defendant or must be left at the residence of the defendant in accordance with the Convention. A default judgement might also be rendered by the court if the document to the Serviced was transmitted to the Centre authority of the state then it has to be delivered in accordance with the Convention, if a reasonable time has passed since transmission (this is generally decided by the judge which cannot be in any case less than six months), and it must also be shown that every effort to recover the certificate of Service from the receiving nation has failed.
If a defendant can show that the document was not delivered within sufficient time so as to enable him to defend himself or to appeal, and he should have prima facie defence on the merits of the case, then in such a case even after the expiration of the appeal period, the judge may decide to set aside a default judgement. After the defendant learns about the judgement, he or she should immediately file an application for relief and the same should be done within a reasonable time, the nation has the power to refuse to entertain such application if the same has been filed after the lapse of period of one year.
Administrative Provisions (Articles 14, 17, 21-31):
If any conflict arises then as per the provisions of the Convention the states are directed to make use of diplomatic channels in order to resolve the same. The Convention supersedes the sections which were present in the Hague Conventions on civil procedure of 1905 and 1954. If there were some agreements which supplemented the prior Conventions then the same would remain effective for the present one as well. If any of the nations have entered into agreements subsequently after this Convention then in such a case the Convention would not supersede the same. Until and unless a member state denounces the provisions of the Convention, the Convention would remain in force indefinitely, and if denounced then the Convention would still govern the remaining of the members.
Conclusion
The project dealt with the Service Convention and the procedure of Service under the same in particular. The Service Convention was formulated in the year 1965 after several attempts of the international community towards harmonisation of Service procedure in order to ease the difficulty faced by the litigants in the international litigation matters. The procedure of Service under the convention provides for establishment of a Central Authority which verifies the documents and ensures the Service of the same. The Convention also provides for issuing of a Model Certificate of Service in cases where the Service has been done successfully and if not then along with the certificate an explanation as to why the same could not be done has to be attached. So far as the question of the scope of applicability of the Convention goes, the same extends only to Judicial and Extra Judicial – Commercial and Civil matters. The Convention has not defined this and thus it depends on the nation to perceive the same according to their own interpretation. The Convention also talks about the relief available to the defendant in the cases where the service has been done but the defendant has failed to reply for the same. Administrative provisions of the Convention have also been dealt with in the project which relates to the resolution of conflicts arising out of the provisions of the Convention.