International Service Of Process In Europe
There are two main methods to select 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 next;
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 means of a service provider, alternative method, called “decentralized”, it could use an “International private process server”, “Mail” or “Local Bailiffs”; All under the Hague Convention regulations, Art. 10. It is applicability varies with the country’s opposition. As a non-public method, it’s 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 within 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” rely on the respect for internal laws of civil procedure and the procedure of “exequatur” It’s then to each “lex fori” and their “foum” to find out their requirements for an “acceptable service” but being their powers limited in space they can’t enforce it abroad, so necessarily have to keep in mind that: The act of notification is completed under a special legal system with different exigences, those of a sovereign state which should be taken in consideration, based on International treaties and for future enforcement. Based on International Legal Principles, we will affirm that a “Lex fori forum” cannot accept in a procedure a “foreign illegal procedural actuation”, an act that violates foreign laws.Oon the opposite hand the “Lex Loci forum” won’t enforce a judgment obtained under these circumstances in. Due to this, it’s essential to act in harmony with local codes of procedure and the Hague Convention and never only with your individual 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’s not, shouldn’t be 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” just isn’t the one organ proposed as available to serve documents abroad as is the overall 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 tactic to employ must be in no conflict with the laws of Civil Procedure of both jurisdictions involved and both should be signatory countries as explained in Art. 5,b.: That could be a legal harmony of “Lex fori” and “Lex loci”. These laws should be applied simultaneously when serving.
All signatory countries have accepted the “Centralized” method and never all accept all the channels of the the “decentralized method”. In Europe most countries accept both entirely. The reason is that most individuals believe that the alternate decentralized method does nor exist. The legal text aren’t interpreted or applied properly because it ends as a “Fraud to International law” and service is Void or Voidable.
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 quick 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 that are based on the necessity to eliminate some absurds requirements just 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 akin to no distinction between service to Individuals or Multinational Companies, Nonresistance of presumptions and plenty of more will see later..
The Hague Convention’s Centralized method has, as said many “legal lacunae” or serious defects:, the main one is that could be 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 sometimes deceptive method. It promotes the use costly translation and the contents of summons is exam for legality before they are often served. These requirements makes it slow and therefore not adapted to modern international litigation. It’s 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 usually are not translated, the defendant can refuse service and in other cases the central authority is not going to be able to exam their legality, Article 5..
It’s advisable not to have the documents translated unless you do it properly with the appropriate qualified professional. As a preventive measure, when 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 required legal guarantees, either by Certification and/or Registration. Is is considered that only those listed annually by the different Courts or the Foreign Affairs Ministries. do reliable translations. There are other “glitches” that appear at the home Jurisdiction but these may be kept at home.
However, an essential defect of using the Centralized, is the requirement of an exact address of defendant. A problem, because there is no such thing as a possibility of “locating a defendant” or “Skip tracing” The Central Authority doesn’t “searches” for people or Corporations. If a defendant changes address or the address is not correct , if he’s a tourist or illegal, service is paralyzed and returned, waisting your time and money, sending you back to square one while court time is running. Interesting to say is the situation of corporations which might change the address of the registered headquarters and should not have an immediate obligation to notify this changes to the Mercantile registry. The central authority will not pay tfor any expenses comparable to access to a mercantile regustry.
Another defect, is within the requirement for “Personal Private Service”, concept that’s understood in alternative ways in different countries: Bailiffs or Local Judicial Officers apply the local Code of Civil Procedure and never the special instructions received from foreign jurisdictions. In practice, what is understood in Common law as “Personal” is understood in Europe as “Substitute” and the issue increases if we distinguish between service to corporations from service to individuals. When servicing corporations, this must be completed within the person of those individuals who have the power to represent short trendy wigs the corporation, that is to say the “officers” publicly listed in the mercantile registry. Therefore service to the front desk, secretary, gardener or any employee of a corporation, is “Substitute service”. For individuals, most local laws allow officers to depart documents on the address specified or leave a note in the door as equivalent of service. These officers, do not need to understand the hierarchy of the Hague Convention in this sense and what are the “Lex fori Forums” needs . Instructions for service to the central authority, transform into let’s do it our legal which is not necessarily valid on the opposite jurisdiction.
Remark therefore, that the use of “insistence and perseverance” just isn’t possible by the “Centralized method”, its efficiency is just not good and it is only, by way of a non-public personal server that you could achive one of the best results, have more legal security on service and what is essentially the most relevant, you will be courteous to your adversary and sure of your case.
These above reasons explain why most common Law Attorneys have used as many many “tricks” as possible or patches to remove these obstacles of the “Central” method, I don’t blame them. Sometimes by way of “an agent” which regularly is, their local process server, their friendly “tacky” translation company or their neighborhood’s Private Investigators. The fact is, that on the long term, not only they’ve waisted money and time but they are liable of fraud to international law, defamation, Ilegal practice of law,Revelation of Secrets… and to finish the apocalypse, if not prosecuted or challenged, the judgment obtained won’t pass “Exequatur”.(Enforcement).
Little doubt then, that ignoring European laws, rights of image and privacy amongst other can happen and may have undesired consequences. Jurisprudence has considered that services completed this ways as irregular and have engage the liability of the plaintiff.
The “Lex fori forum” and “Plaintiff’s Attorney” are obliged ex-lege to respect the lex-loci or the legal requirements of the jurisdiction where documents will probably be served and these starts at home with confidentiality, secrecy and a correct translation of documents as the basic right of defendant.
Service of Process must protect the defendant abroad. It’s my understanding that “Lex fori” process servers, Non Certified Translations Companies, even with offices in Europe and other intruders within the chain of International litigation can severely contaminate a case.
There are, a series of channels in an “alternatives or decentralized method” , more reliable and with more efficient ways to serve, these are replacing the anachronistic central method.
Centralized Service of Process has the next characteristics:
- Translation: a. High Cost b. Unnecessary c. No distinction between Individuals and Corporations
Service Speed: Slow and might paralize eassily
Prior Exam of legality a. Slows down b. Contradictory
Non Personal Service
Hague’s Alternative method of International Service of Process
The choice method is composed by channels , using them has the same legal value and effects because the “Centralized” method, if the country of “Lex Loci” has presented no express opposition to them,.there is no such thing as a hierarchy between “Centralized” and “Decentralized” methods.
Art. 10 a, Service by a Currier, UPS, Fedex, DHL, Postal, fax, internet (email or messenger), as confirmed by different jurisprudence usually are not reliable, even when they’re contemplated and accepted in some countries. The reason is that they lack of “legal guarantees of delivery of contents” violating the Principle of Contradiction,and Equality in a good Judgement. These channels can bring the defendant into “defenseless”. Therefore they are mostly considered by jurisprudence as “evidence of an address” greater than evidence of a Legal Notification. The Hague Convention permits these in Article 10, but they require some logical complements to be “Legally binding” even when the Convention does not indicates those. Indeed, one can serve blanc pages by mail or fax since nobody will check the contents and thereto obtain a judgment by default. Because of this, I recommend a “Certification of Contents” necessary either on the sending Jurisdictions or within the receiving Jurisdiction by a qualified, but done by a professional professional that has “Public trust” The postal of fax receipt aren’t an affidavit.
Understand that the objective of service of process abroad is transmitting information, a legal notification to a defendant, inform him of a “cause” in which he is a component and which could have serious consequences in his patrimony, rights and obligations as they are going to in your personal jurisdiction. These rights have to be respected and protected by the principles of the legal art to be able to avoid Arbitrary application of law and fraud to International law. To avoid this, the Hague Convention canalizes these notifications by taking in consideration internal laws Art. 5 but without providing a way to regulate it or a procedure for appeal..It imposes the protection of defendant’s rights and obligations as well as those of the plaintiff but doesn’t says exactly how this could be materialized. Please determine, not if the notification was done but if it was “properly done. Service by mail, fax or email are very fragile channels that must be avoided..
These alternate channels are symbol of the “Liberty of Transmittal” but have enter into excesses, for exqample the e-mail, reason why the decentralized method, has been wrongly understood by many Common law Attorneys,. Translators and Private Agents. This happened because the “mechanism of service” applied and employed has been the “known one” the one which sound logical, unconsciously applied in violation of foreign laws. Professionals have use what they know, as a reflex, they’ve used the identical manners as for his or her state notifications and have sent abroad a joke. This has resulted, in failure to enforce, impossibility of judgment recovery or simply a challenged of service. A distinction must be made between a banal Service of Process and an international Service of Process and to honor international justice even when the effects of your judgment will remain in your jurisdiction do that international service properly, is only a matter of International legal courtesy.
The philosophy behind and the rational explanation, is that the concept of “Public trust” could be very different to each culture and their legal order. Think about that opposite to Europe,- No Governmental Identification Card exist in common law countries, there is no such thing as a central land and/or property registry, sometimes Notaries are simple individuals, Process Server and/or Translators have minimal requirements. In old and experienced Europe, everything is “suspicious” and therefore surrounded by the maximum guarantees of legal security enforced by the state at “Felony or Criminal level” to avoid any possible “misunderstanding”, “fraud”,”deviation” or “Abuse”.
In Europe. service of process, either for internal purposes, European Purposes or for International foreign courts, is considered as a penetration of “Jurisdictional Power”, when completed it is definitely a “delegation of powers” to the server. In Europe. the monopoly of legal representation, actuation and consultation, has been given, traditionally and since middle ages, to the different “Legal Corporations”. Private agents are excluded of these basic requirements.
The legal professional associations are those of “Huissiers de Justice”,”Procuradores”, “Ufficiali Judiciario”,”Abogados”,”Avocats”,”Advogados”…. Unlike common law countries where almost anyone mentaly capable can perform these “legal contents and jurisdictional acts”. Please, know that only qualified legal professionals can serve properly and legally in most of Europe since are the only professionals, who can offer “Ex-lege” the required and necessary legal guarantees. Service by a “Agent” as known in common law does not exist in Europe nor within the Hague Convention, it has been used but this usage does not rises service by agents to a legal stage.
Logically explained: If any country’s laws of Civil Procedure establishes for internal service of process, a procedure that requires guarantees of public trust; given only by the use qualified professionals, how come, for International Service, you possibly can expect to use anyone An agent In conclusion: When in Rome, do because the Romans!
We must distinguish between communications to the Central authority or with the Server and notification or service of process to the defendant. One is an organ and the other a defendant. Communication with the Central Authority of to the server might be by any means, even e-mail Also note that the Hague Convention obliges service of process to have two explicit and implicit requirements for acceptance: voluntarily and short trendy wigs knowingly. These might be compared to a “bilateral obligation in Civil Law” (See Article 5 (b) alinea of the Hague Convention). Therefore, if the defendant is not “capable to grasp” what he’s receiving, service is viced and the “Defendant can refuse service”. If documents usually are not translated he is just not “capable to know”. The defendant will not be sense to know foreign laws or could be economically challenged, but some presumption exist: If the defendant just isn’t served multilingual Attorney at law and advise in the mean time of Service or if the documents contain No Legal Notice and etceteras, the defendant is in “Procedural defenseless”.and therefore service of process isn’t valid and useless. . Service to Corporations doing International Business, those under the Hague of 1956 for “Company recognition” it should be presumed that they speak the language of the Jurisdiction through which the carry business and know their laws. The Hague Convention doesn’t distinguishes between services in accordance with defendant; Individual or Corporations. Therefore, I consider the Hague as placing an obstacle in service to corporations, because the plaintiff is oblige to translate the documents. Logically Corporations should never use the central authority, they do not need it.
The Hague Convention indicates “voluntary acceptance” as a condition of service, this does not mean “Refusal at all times and systematically to get civil or commercial impunity”. In this sense, service by Certified Mail, email, fax and other unilateral acts of service, which we might be consider as “Adherence” from defendant to service, have the common denominator that the defendant shouldn’t be accepting voluntarily, since he is receiving something with unknown contents. The contents will discover later and he’s accepting first, therefore contradicting the Hague convention confirming this fashion that these channels as good for a verification of an address but not of service. In conclusion, Certified Mail, email and fax should not proper ways of serving and a Court accepting this kind of service are refusing rights to the defendant except if they are back up by a certified professional’s Affidavit of service.
“Service by Agent” as understood in common law, is not contemplated within the Hague Convention on Service of Process, it is another automatic reflex and has been used by many common law Attorneys. These agent services have required translations of documents because the Agent used, most often speaks the language of the Attorney requiring service. Often he’s a foreign national within the country of service, sometimes illegal, but in any case not qualify to do this sort of Job. They provide “Shaky” services based on the fact that they speaks the language of the Attorney requiring service and dare to violate all sorts of laws, anyways most of them don’t have anything to loose..
These “Merchants of Process serving” use translations to increase profit and to reduce the potential for future challenge of service. In most European countries, it is considered. that “Legal Guarantees”, are only given to, and are given by “registered and insured professionals, recognized and controlled by the governments and grouped in special associations or corporations submitted to strict ethics control: These agents are an insult to law and order. The law and confirmed Jurisprudence protects “defendant’s rights” against poor « qualities and qualifications » of a “dummy server” or anyone from here or there, an intruder, who for a “fist full of dollars” will issue an affidavit. Therefore service by “Agent” is possible if and provided that the Agent to be used is a certified legal professional within the country of service.
It is a interesting anecdote, that I found an “International service of process company in Spain” that also does “plumbing” services from the same office, a business run by a felon issuing affidavits even to service completed to non existing address or people he never saw.. It’s a shame that Justices and Attorneys in North America often, accept, for international service of process, affidavits of persons that do not offer any guarantees or have the essential “Public trust”, looking down and with disrespect the rights of defendants and the laws of procedure of a foreign country. Indeed, employing anyone for international service of process, is a disregard on justice and disrespect for International and local law. To serve properly you need to respect foreign laws of procedure! You should understand the European concepts involved in a “Procedural Notification” and respect for “Justice”.
Finally, art. 10 c, considers as “Agent” a Judicial officer or bailiff. Service by these agent rely on the kind of person to served: Physical or Juridical. In some jurisdictions, serving a corporation must be to a “Registered Officer” as it appears on the mercantile registry of their country or to their legal department or representative and the place of service needs to be the registered headquarters otherwise it is going to be a substitute service (Individuals or Corporations may be served at their Attorney’s office). If Individuals, an agent can served them at their home or place of labor., but not in a public place.
One excess of the Hague Convention is the requirement for an exact address for service, meaning that the requester should have the exact information. This requirement reduces the rights of the plaintiff since a certified legal professional acting as agent can complete service to two addresses to avoid impunity of defendants, that’s to say, serve the address within the writ of summons and the legal or present address.
Service might be completed by directly instructing a Judicial officer of a Bailiff, article 10 c of the Convention, employing them as organ and as server, but they are going to issue am “Act” or document within the official language of the country, you’ll have to pay for a supplent for translation into English language and eventually the legalization of signature. Our Hydrid service take’s care of everything.
Please remember, the principle in Europe is the “Protection of the rights and obligations of litigants” by due diligence completed with integrity and by qualified and reliable professional not an “affidavit” obtained in obscure circumstances at any judicial cause price or at justice expense.
Summarizing: The 2 main methods both have the identical legal value within the Hague Convention and no “Hierarchy”exist amongst them, one is bad and the opposite is worse, they are equally poor, but combining them is feasible and results into a more reliable international service:
WARNING: Translations and Apostilles (Legalizations) are not necessary but when you employ them remember that the Translator should be “Certified” by the “Foreign Affairs department” or the “Local Appellate or Superior Court”. The use of a local Notary Public to certify the signature in a translation doesn’t corrects the errors of “tacky” translations. The usage of a non registered “Attorneys at Law” under most jurisdictions of the European Union for acts reserved to the legal profession causes “contamination of your case”, engaging your liability: Protecting the rights of litigants is your obligation. Don’t use simply anyone willing to issue a statement of service affidavit if not qualified.
Inventing International Service of Process: The Hybrid system
Our “Hybrid system of international personal private service of process” combines, not only “methods”, but also the different channels or options of the convention, applied by steps and in less time that the “centralized”. The result’s a greater service that takes the positive side of each method in order to acquire the very best legal guarantees: We consider it as “System” , greater than a method, please consult us so we can discuss your case service in detail and how our system applies.
The hybrid system for International Service of Process, heals the disadvantages of the Hague Conference’s centralized method and the abuses in the use and application of the decentralized alternate method. It is a non complicated service of process having the characteristics of Legality, reliability and fast. However, the “system” applies the principles of the Hague Convention combined to each jurisdiction, incoming and outgoing, and their respective laws of procedure. The “legal order” is to acquire with the utmost legality and protection of litigants, its main characteristic is that: Service is double, a preliminary International service and an Euro service.
The system provides that the rights of the plaintiff and defendants are guarantee and protected by registered and insured multilingual Attorneys at Law in the country of service. Documents are delivered personally in all confidentiality by a legal professional who will give advise within the language of the defendant, making it comprehensive by giving complete legal notice and explaining how to proceed. All services are completed with mandatory secrecy and neutrality, Courtesy and professionalism under the respect for internal laws of Civil procedure.
The defendant does not have an option to refuse service, or claim to be “unprotected” there is no such thing as a “a priori” exam of contents or delay, no translation’s cost or apostilles, no promises of service but a “Jurisdictional act completed based on local law by a professional legal professional”, Note the advantages;
a. The defendant does not have an choice to refuse service, or claim to be “unprotected” b. Liberty to choose process server within the legal profession market value. c. There is no “a priori” exam of contents or delay in exams d. No translation’s cost Nor apostilles, stapples,stamps or clips! e. Little question on delivery of Contents e. Service with “Professional Integrity” f. Customer support and Affidavit in English g. Une of Bailiff when required h. Service is guaranteed in delivery i. Service is guaranteed in court
…..and rather more
Our price list, reflect the need of taking in consideration many legal and practical aspects of service in Europe, specially to avoid incidents and possible cchallenge, appellate “quash” proceeding”, we offer services which might be cheaper than the “Centralized” method and with the same value.
The different classes of service we proposed vary in keeping with the required time for service: Urgent, and every has different protections. We always start by a “Skip Trace or Locate” so as to obtain an actual address as per mandatory requirement of the Hague Convention and to avoid you unnecessary expenses, then we mail a preliminary service of process to verify the address of delivery and physical existence. Our letter, asking for an appointment or an interview and placing ourselves as neutral Attorneys at Law available as required by law to avoid defenseless by counseling the defendant. Through the interview, in presence of an area Judicial Officer or Bailiff when required, we verify the identity of the receiver, his knowledge of the language during which documents are written and explain intimately their rights and obligations. All of this procedure is condensed in a Custom made affidavit that is legalized by the Notary Public of the diplomatic representation of the lex fori (That’s to say: the Consul).
short trendy wigs