Session 2 Service of Procees

Dispute Resolution
(Resolution of Private International Disputes)
Session 2a: Service of Process
FTU Master Program

February 2020
Prof. Dr. Wolfgang Wurmnest, LL.M. (Berkeley)
Service of Process
Dispute Resolution 2
Introduction – What is “service of process”?
Definition (practice varies)

 summons ordering appearance before a specific court under sanction of
default judgment
 must be handed over to the defendant
Consequence of proper service: lawsuit is pending
Rule 4 FRCP: Summons

C) Service with Complaint (…)
(1) A summons shall be served together with a copy of the complaint. (…)
Sec. 166 (1) German Code of Civil Procedure

The term “service” designates the issuance of a document to a person in the
form stipulated in this (…) Code.
Introduction (2)
Which documents need to be served and on whom?
 Both question decided by lex fori (procedural law of the court seized)
 Judicial documents usually to be served:
• Document initiating the proceedings
• Other important documents for the trial (judgment, court orders etc.)
Service shall comport with the following (in part contradictory) aims
 Knowledge about pending proceeding (interest of person served)
 Timely notice (interest of person initiating service)
 Proof of effective service (interest of court)
Service – general model
U.S. law (and in many common law systems)

 Rule 4 FRCP: A summons shall be served together with a copy of the complaint.
The plaintiff is responsible for service of a summons and complaint […] and
shall furnish the person effecting service with the necessary copies of the
summons and complaint.
• Service often effected by private investigators/firms
• Service “in hand” of defendant or corporate registered agent
German law (and other “continental” legal systems in Europe) + Vietnam
 Sec. 166(2) German Code of Civil Procedure: “Where service is prescribed by
law or by order of a court, documents are to be served ex officio unless
otherwise ordered.”
 Art. 22(1) Vietnamese Code of Civil Procedure: “The courts shall have the
responsibility to transfer directly or via postal service their judgments, decisions,
summons, invitations and other relevant documents to the participants in the
civil procedures according to the provisions of this Code.”
 Service effected – in principle (there are exceptions) by court officials!
Substitute service
 What happens if plaintiff does not know where defendant is domiciled in a

foreign country? What happens if the plaintiff tries to serve abroad but
service cannot be effected?
 Service by publication, e.g. § 185 German Code of Civil Procedure
“The documents may be served by publishing a notice (service by
publication) wherever:
1. The abode of a person is unknown and it is not possible to serve
the documents upon a representative or authorised recipient, (…)
3. it is not possible to serve the document abroad, or if such a service
does not hold out any prospect of success (…).”
 What is the problem with such forms of service?
Service of process at home and abroad
Codes of civil procedure usually distinguish between
 Service at home (on the territory of the court state)
 Service abroad
Territory of a state: defined by public international law
 Service of writ to defendant on board of a plane flying over Arkansas on a

non-stop flight from Memphis/Tennessee to Dallas/Texas is proper service
within the territory of Arkansas (Grace v. MacArthur, 170 F.Supp 442
(1959)).
Service of process at home and abroad (2)
Dividing line between service at home and abroad is not obvious!
 Often national systems allow a form of service at home even though the
person served is domiciled abroad.
 Classic example: French remise (notification) au parquet
 Sec. 185 German Code of Civil Procedure (service by publication)
 Effective service is in these cases a “fiction”
Service under the Hague Service Convention
When does the Hague Service Convention apply?
 Service between two states that have ratified the Hague Service Convention
(and that are not two EU-States, because there is special EU legislation on
service)
 Over 60 Contracting States, list available at hcch.net (inter alia China,

France, Germany, Great Britain, India, Japan, Russian Federation, USA…)
 Vietnam has recently ratified the Hague Service Convention (in 2016)
 Civil matter (Art. 1 Hague Convention)
Example: Hague Convention covers, for example, service of a

document from a German court on a U.S.-based defendant in a tort
case.
When does the Hague Service Convention („HSC“
apply?
Service abroad
Art. 1 HSC: “The present Convention shall apply in all cases, in civil or
commercial matters, where there is occasion to transmit a judicial or
extrajudicial document for service abroad.”
 What is service abroad?
 Who defines under which circumstances service must be effected abroad?
 We come back to these points in a minute and first take a look at the
channels provided by the HSC for service abroad
Channels of service
Via central authorities (Arts. 2-7 HSC)

 “Formal” service (Art. 5(1) HSC)
• Translation may be required (Art. 5(3) HSC), for example in
Germany/Vietnam
• Even if addressee understands foreign language
• According to the law of the receiving state (with compulsion)
 “Informal” service
• Without translation,
• If addressee accepts document voluntarily (Art. 5 (2) HSC)
 The manner in which service should be carried out can be requested by the
applicant
 Read Art. 5 HSC
Transmission via a central authority
 Each state has to designate a central authority

 (Vietnam: Ministry of Justice of SRV, Ha Noi)
 List available online (www.hcch.net)
Competent authority or Request for Central authority of the

officer of requesting state service state in which service shall
(Court, Marshall etc.) take place
 Checks: Does request comply
Certificate in form of
with HSC (Art. 4 HZÜ)?
the HSC-model
What can applicant do if the
 Public order violated, Art. 13
annexed (Art. 6 HSC)
document could not be HSC?
served abroad or when  Request specifies
even after months the formal service, Art. 5 (1) HSC
central authority to whom informal service, Art. 5 (2) HSC?
the request was sent does  Effecting service usually
not answer? Art. 15 (2) according to lex fori
HSC
Service via diplomatic or consular agents
Arts. 8 & 9 Hague Service Convention

 Service through diplomatic or consular agents (embassy, consulates etc.)
 Read Art. 8(1) HSC
 Old fashioned (and very slow) method of service + no compulsion (but
helpful for suits against a foreign government)
 Consular agents may also forward documents to central authority, Art. 9
HSC
 Reservation possible (Art. 8 (2) HSC): foreign state may only serve its own
nationals
• What is a reservation under public international law
• Why would a contracting state want to declare such a reservation?
• How can I find out if a reservation was declared (www.hcch.net)
• E.g. China, Germany & Vietnam have declared reservations
Direct service, for example by registered mail?
Art. 10 (a) HSC
 Would speed up process significantly
 But: many states have declared reservations, e.g. Germany, China, Russian
Federation (not: Vietnam)
Background: Service is seen as an “Act of state”
 Consequence: service by registered mail on person domiciled in country

that has declared a reservation is not possible.
When must the channels in the Hague Service
Convention be used?
Depends on the definition of “service abroad”
Art. 1 HSC: “The present Convention shall apply in all cases, in civil or
commercial matters, where there is occasion to transmit a judicial or
extrajudicial document for service abroad.”
 What is service abroad?
 Who defines under which circumstances service must be effected abroad?
Volkswagen Aktiengesellschaft v. Schlunk (1988)
 Facts of the case?
 Service abroad?
 How was service effected under U.S. law?
Protection of the person served
Art. 13 Hague Service Convention (≈ ordre public clause)

 Read Art. 13 HSC
 Refusal possible when class action and/or action for punitive damages is
served on defendant in a country with a legal order that does not allow for
punitive damages?
 May a different procedural system allow a contracting state to refuse
service?
Example: Organizations and individuals representing more than 30,000
Afro- American South-African citizens file a class action in New York
against (inter alia) U.S. and German firms. The plaintiffs allege that the
firms have supported the South-African “apartheid policy” and claim
punitive damages. The complaint is served via the central authority in
Germany upon a German defendant. The defendant argues that service
isn’t effective because service should have been denied under Art. 13
HSC given that the U.S. legal system has many plaintiff-friendly features
that are not consistent with German public policy.
Art. 13 HSC
What are these special features? (remember our discussion in session 1)

 Class action
 Punitive damages
 Pre-trial-discovery
Decision practice of German courts

 Art. 13 HSC has to be interpreted narrowly: service may only be refused if
service would violate the basic tenets of the legal order of the state in which
service shall be effected.
 Special features of U.S. law do not as such violate German public policy
 An action may be abusive (and consequently service must be refused) if
• the amount claimed has obviously no basis in the law,
• the defendant has obviously not participated in the alleged unlawful
behavior,
• or the action shall put significant (media) pressure onto the defendant to
force him into a settlement on an unjustified basis.
 No case reported in which service was ultimately not effected in Germany.
Questions, discussion, quick quiz
 Any questions?
 Does national law or international law decide whether there ought to be

service abroad under the Hague convention?
 What kinds of channels for service are allowed under the Hague Service
Convention
 Can the central authority of the state in which the service shall take place
reject the request?
 Should Vietnam ratify this convention?
Service under the EU Service Regulation (overview)
Introduction: Some general remarks about the Service Regulation

 Regulation 1393/2007 of the European Parliament and of the Council on the
service in the Member States of judicial and extrajudicial documents in civil
or commercial matters (service of documents) (…)
 Seeks to improve and expedite the transmission of judicial and extrajudicial
documents in civil or commercial matters for service between the Member
States.
 Similar to Hague Service Convention (note: no reservations + amendments
to facilitate service abroad)
 Regulation has no equivalent to Art. 13 Hague Service Convention,
• Service cannot be refused on grounds of public policy
• Reason: European judicial area, principle of mutual trust
General scope of application
Read Art. 1 Service Regulation
Scope of application
- Litigation concerns a civil & commercial matter (Art. 1(1) SR)
- Service between two EU Member States (without Denmark) (Art. 1 (3) SR) (but
Denmark applies rules of the Regulation via an international treaty)
- Service abroad (“for service there”) (Art. 1(3) SR)
• Note service abroad cannot be entirely defined by the EU Member States

(ECJ, Case C-325/11 - Alder v. Orlowska)
• Regulation may not be applied only if address of respondent is not known

(Art. 1(2) Service Reg) or if a service agent (e.g. an attorney-at-law) has
been appointed.
• In all other constellations: service pursuant to service regulation mandatory
Channels of service
Service via transmitting and receiving agencies

 Transmitting and receiving agencies, Art. 2 Service Reg
In Germany: transmitting agencies are courts that have to serve documents;
receiving agencies are the local courts in whose district the documents need to
be served.
 Assisted by central authority, Art. 3 Service Reg
 Use of standard forms, Art. 4 Service Reg
 Service under rules of lex fori, unless otherwise applied for and not incompatible
with law of the serving state, Art. 7 Service Reg
Transmission by consular or diplomatic channels + service by diplomatic or

consular agents
 Art. 12 Service Reg = Art. 9 Hague Service Convention
 Art. 13 Service Reg = Art. 8 Hague Service Convention
Channels of service (2)
Article 14 Service Reg: Service by postal services
“Each Member State shall be free to effect service of judicial documents

directly by postal services on persons residing in another Member State by
registered letter with acknowledgement of receipt or equivalent.”
Note:
 Not parties, but only central authorities may directly mail documents to
addressee!
Channels of service (2)
Article 15 Service Reg: Direct service

“Any person interested in a judicial proceeding may effect service of judicial
documents directly through the judicial officers, officials or other competent
persons of the Member State addressed, where such direct service is
permitted under the law of that Member State.”
 Germany follows the principle that the court has to serve important
documents.
 Direct service on a party in Germany is only possible when the concerned
documents are ones that can be served by parties (for example an
interlocutory injunction).
Language issues
Article 8 Service Reg Refusal to accept a document

“1. The receiving agency shall inform the addressee (…) that he may refuse to accept
the document to be served at the time of service or by returning the document to the
receiving agency within one week if it is not written in, or accompanied by a translation
into, either of the following languages:
(a) a language which the addressee understands; or
(b) the official language of the Member State addressed (…).
2. Where the receiving agency is informed that the addressee refuses to accept the
document (…), it shall immediately inform the transmitting agency (…) and return the
request and the documents of which a translation is requested.
3. If the addressee has refused to accept the document pursuant to paragraph 1, the
service of the document can be remedied through the service on the addressee in
accordance with the provisions of this Regulation of the document accompanied by a
translation into a language provided for in paragraph 1. (…)”
 “Smarter” rule than under HSC; P: When does the defendant “understand” a certain
language?
 Which documents need to be translated?
How can service be effected in a state that has not
ratified international convention / bilateral treaty?
 Under public international law: no obligation to comply with foreign request

for service
 But: principle of comity among States
 Against this background many States take action upon a foreign request for
service albeit with some reservations
• Usually service without compulsion only
• Principle of reciprocity?
• P: to which authority shall requesting court/agency send the request?
Service abroad – the legal situation in Vietnam
Example: German court needs to serve a defendant in Vietnam. What to do?

 Service by registered mail not allowed by Vietnam
 Request must be addressed to the Supreme Court of the Socialist Republic
of Vietnam
• Name and address of person served must be written in Vietnamese
lettering.
• Documents must be translated into the Vietnamese language (if
defendant is the national of a third state, all documents have also to be
translated in the official language of that third state)
• Signatures and “seal” on the request and the documents must be
verified by the president of the requesting German court.
• Request and documents (three copies) will be delivered to the Supreme
Court via the German embassy in Hanoi
 In exceptional circumstances the German Embassy in Hanoi may effect
service (without compulsion) onto Vietnamese or non-Vietnamese residents
in Vietnam (applicant must state reasons for service by Embassy).
Situation in Vietnam (2)
What happens if service is not possible or fails?

 Substitute service may come into play
 E.g. service by publication
Questions, discussion, quick quiz
 Any questions?
 Lessons learned
• International/regional conventions ameliorate cross-border litigation
• Closer trade relations necessitate the facilitation of service abroad (at

least if litigation is seen as a key dispute resolution mechanism)
 Which channels of service are common in international conventions?
 Which model is right for Vietnam?
 Is the EU-model suitable for Vietnam and its neighboring states?
Thank you very much for your attention!

Session 2 Service of Procees

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Session 2 Service of Procees

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Dispute Resolution

(Resolution of Private International Disputes)

Session 2a: Service of Process

FTU Master Program

Definition (practice varies)

Rule 4 FRCP: Summons

Sec. 166 (1) German Code of Civil Procedure

Which documents need to be served and on whom?

 Judicial documents usually to be served:

• Document initiating the proceedings

 Knowledge about pending proceeding (interest of person served)

 Timely notice (interest of person initiating service)

 Proof of effective service (interest of court)

U.S. law (and in many common law systems)

 What happens if plaintiff does not know where defendant is domiciled in a

Codes of civil procedure usually distinguish between

 Service at home (on the territory of the court state)

Territory of a state: defined by public international law

 Service of writ to defendant on board of a plane flying over Arkansas on a

Dividing line between service at home and abroad is not obvious!

 Classic example: French remise (notification) au parquet

 Sec. 185 German Code of Civil Procedure (service by publication)

 Effective service is in these cases a “fiction”

When does the Hague Service Convention apply?

 Over 60 Contracting States, list available at hcch.net (inter alia China,

 Civil matter (Art. 1 Hague Convention)

Example: Hague Convention covers, for example, service of a

 What is service abroad?

 Who defines under which circumstances service must be effected abroad?

Via central authorities (Arts. 2-7 HSC)

 Each state has to designate a central authority

Competent authority or Request for Central authority of the

Arts. 8 & 9 Hague Service Convention

Art. 10 (a) HSC

 Would speed up process significantly

Background: Service is seen as an “Act of state”

 Consequence: service by registered mail on person domiciled in country

Depends on the definition of “service abroad”

 What is service abroad?

 Who defines under which circumstances service must be effected abroad?

Volkswagen Aktiengesellschaft v. Schlunk (1988)

 Facts of the case?

 How was service effected under U.S. law?

Art. 13 Hague Service Convention (≈ ordre public clause)

What are these special features? (remember our discussion in session 1)

Decision practice of German courts

 Does national law or international law decide whether there ought to be

 Should Vietnam ratify this convention?

Introduction: Some general remarks about the Service Regulation

Read Art. 1 Service Regulation

- Litigation concerns a civil & commercial matter (Art. 1(1) SR)

- Service abroad (“for service there”) (Art. 1(3) SR)

• Note service abroad cannot be entirely defined by the EU Member States

• Regulation may not be applied only if address of respondent is not known

• In all other constellations: service pursuant to service regulation mandatory

Service via transmitting and receiving agencies

Transmission by consular or diplomatic channels + service by diplomatic or

Article 14 Service Reg: Service by postal services

“Each Member State shall be free to effect service of judicial documents

Article 15 Service Reg: Direct service

Article 8 Service Reg Refusal to accept a document

 Under public international law: no obligation to comply with foreign request

 But: principle of comity among States