Japanese Government Objects to Service by Mail Under the Hague Convention- Part 1

When it comes to international litigation, things can get complicated. Not only are you dealing with international laws and foreign sovereigns, but the rules and regulations governing international service of process also differs vastly from rules applicable to domestic cases. The Convention on the Service Abroad of Judicial & Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”) is a multilateral treaty. This treaty was adopted on November 15, 1965 by member nations of the Hague Convention on Private International Law (the “Convention”). This treaty created unified rules on several issues, including international service of process. Approximately 74 countries have ratified the Convention.


The Convention Explained


The Convention provides a streamlined way to effectuate service of process through the Central Authority of each signatory nation. Under Article II, each nation designates its Central Authority to receive documents for and effectuate service on its domestic subjects. When countries have no agreements or treaties like the Hague Service Convention, a common method for service of process is through diplomatic channels. Because this method usually involves agencies, like the Ministry of Foreign Affairs, of both countries to transmit the documents, it takes much longer.


Efforts of International Service


In order to have a more predictable time frame of effectuated service and reduce costs for serving through the Central Authority, many parties who bring international lawsuits against a foreign defendant try to do so via service by mail. In such a scenario, the plaintiff directly sends legal documents to the defendant by express delivery (such as DHL, UPS, or FedEx) or mail service.


Article 10(a) of the Convention states that it would not interfere with direct service by mail provided the state of destination does not object. Historically, there were two interpretations of Article 10(a):


  • The sending of judicial documents does not include service of process, and the only method of service allowed by the Convention is through the Central Authority. Whether or not the destination sovereign has objected, service by mail is prohibited; or
  • The sending of judicial documents does include service of process, and if the destination sovereign has not objected, service by mail is allowed. If the destination sovereign has objected, then it is prohibited.


As can be seen, international service of process can be complicated. More details on this case can be found in our second part of this series.


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