[Originally published at vikinglaw.us]
The Hague Service Convention is mandatory doctrine in U.S. law. Wherever the treaty applies, plaintiffs must follow its dictates. Failure to strictly adhere means their attempts at service—whether successful or not—are ineffective. The safest avenue to a sound legal footing is by filing a request with a foreign country’s Hague Central Authority pursuant to Article 5 of the Convention.
A properly formatted request, which prompts the foreign Authority to serve a defendant, results in a Hague Certificate of Service, a globally standard attestation by the foreign Authority that service is complete. The court hearing the case cannot look behind the Certificate to analyze whether service was effective under the foreign country’s law.
But what if the underlying request is itself invalid? Herein lies a flaw in the practice undertaken by many plaintiffs. On a standard Hague form (commonly, the USM-94 in the United States) the requestor should indicate a basis for his or her authority to forward the request.
While the designation of method and of who can serve in the foreign country is determined by that country’s declarations to the Convention, the determination of who can forward a request (that is, sign the form) is made by the country where the case originates.
Under U.S. law, that means a court official or an attorney. A Hague request signed by a non-lawyer who is neither a court official nor specifically commissioned by the court is invalid…
Although a few foreign Authorities do balk at flawed statements of a requestor’s right to file, most give the matter scant thought. As such, service is carried out, but on an invalid basis.
By and large, Hague Certificates are unassailable. The forum court is not the most competent finder of foreign law (that is best left to the foreign country’s authorities!), so it has to take the Certificate at face value, but that is only part of the issue. The request itself must comply with U.S. law at its inception, regardless of the foreign country’s execution.
Many don’t comply, so quashing is always an option.