We aren’t building rockets here. But we are building a ship of sorts, and a leaky vessel means the cargo may not make it to its destination. If that ship is going between the Mediterranean Sea and the western hemisphere, odds are it sails by Gibraltar. This article is posted from atop The Rock itself (see above– no, really).
Serving process in Gibraltar is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter. The tiny headland is an overseas territory of the United Kingdom, which has extended the treaty’s effect to most of the remaining parts of its former Empire; this includes the UK declarations.* A fair number of U.S. tourists spend time in Gibraltar (including your author), just a short drive from the resorts of Spain’s Costa del Sol. It’s also a tax haven and high-tech hub (read: e-Gaming and fintech), so a not-insignificant amount of U.S. litigation involves entities situated on its 2.3 square miles.**
Some background is in order, if you’re so inclined, before we cut to the chase.
- The roadmap to the overall process—the recipe to our Secret Sauce.
- The structure of the Convention itself is discussed in this four-part series.
- And an absolutely critical note: the Hague Service Convention does not pertain to subpoenas. Repeat after me—you can’t just SERVE a subpoena abroad. You have to file a Hague Evidence Request. Dramatically different from serving a summons or notice.
Now, for the chase scene. Here’s how service is effected in Gibraltar:
Article 5 Service
- Translate the documents. The UK’s declaration to Article 5(3) requires that documents be in English. Game over, right? Pack up and go home? Not so fast, counsel… make sure your defendant speaks English, because his U.S. Due Process rights follow him, in a sense. Anybody sued in a U.S. court must be served in a language they understand, so if they don’t speak English, translation is still necessary.
- Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney. If it is not, make sure that the person signing is commissioned by the court.
- Sit tight. It may take a while—possibly several weeks or months from submission to return of proof.
Article 10 alternative methods
- Mail service is available, but it’s a bad idea anyway.
- Service via private agent (process server) is available to U.S. litigants under Article 10(c). This is absolutely critical—make sure to have the process server instructed by a solicitor, or the attempt to serve is ineffective, as it violates the UK’s position on Article 10.
Pretty straightforward stuff in Gibraltar. For more insight, the UK’s declarations and Central Authority information can be found here.
Bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client. The plaintiff may not have done it correctly.
* Declarations (also called reservations in treaty law) frustrate the hell out of U.S. practitioners who aren’t aware that they change the effect of statutory text. If a country declares its opposition to Article 10 (Germany and China do, for example), then Article 10 does not exist between it and the United States. The methods described there aren’t even part of the agreement.
** Depends on who you ask. The local government says 2.25, other sources say 2.5 or 2.6… point is, it’s itty bitty. And much of the itty bitty is a vertical rock, so the occupied land is ittier bittier. And psychotically easy to get around.
Author’s note: this little headland was always a curiosity in my youth, and I’m finally visiting just shy of my 54th birthday. It was in the opening scene of the much-maligned (fairly or unfairly) Timothy Dalton debut as 007 in The Living Daylights. It was also the centerpiece of corporate branding for insurance giant Prudential. The company’s 1970s & 80s jingle was stuck in my head until I made the ill-fated decision in my twenties to sign on as a Prudential agent. I was terrible at prospecting, and failed miserably. But my short stint as a gravel salesman (little pieces of Rock… get it?) proved an amazing learning experience, and I’m still a Prudential client three decades later.