Tag Archive for: international

The supreme court of Brazil, known as the Supreme Federal Court (STF), recently ratified the ruling of an American court regarding a legal dispute between an American and Brazilian company.

 

The Case

The matter at issue involves a decision by a New York court that ordered copyright distributor Latin Stock Brazil Produces to pay $362,740 USD to American company Shutterstock, which provides videos, images, and music. In order for the judgment to be enforceable in Brazil, however, the country’s judiciary had to ratify the New York Court’s decision.

Brazil’s Superior Court of Justice (STJ) accepted use of service of process by process of mail — a landmark ruling — the method by which was previously agreed to by the litigants in a clause in the contract between the parties. The parties further agreed in their contract that in the event of litigation, the matter would be resolved by a New York court where service of process can be perfected by mail. The STJ ratified the New York Court’s ruling as the agreement and acknowledgment receipt of mail was attached to the lawsuit.

 

The Ruling

 

The STF recently confirmed that a foreign court’s decision could be ratified without requiring a Brazilian company to be served with process in the legal dispute by letter rogatory. A letter rogatory is a formal request from a court to a foreign court for judicial assistant — typically asking the foreign court permission before performing a judicial act without which the foreign court’s sanction would result in a violation of that country’s sovereignty. The STF upheld a ruling of a lower Brazilian court, the Superior Court of Justice (STJ), that released an American company from the obligation of serving the Brazilian company through letters rogatory. According to an article published by Mondaq, between January 2015 and September 2020 the STJ granted nearly 90% of requests to ratify a foreign ruling. The STF held that the STJ’s judgment granting Shutterstock’s request was well-founded and also supported by the infra-constitutional law. Public policy also supported the decision as it provided greater legal certainty to foreign investors who wish to execute agreements with Brazilian companies — business relationships that can attract foreign capital to the country.

 

The Effects

After the STF endorsement of service of process by mail, numerous foreign companies now have the option of possibly establishing another method of process of service aside from letters rogatory, making international service both faster and cheaper. It is expected that companies with international agreements will include a similar clause in their contracts.

 

For service in Brazil, visit our site.

France’s highest court, the Court of Cassation (CoC), ruled earlier this month to resolve procedural issues in favor of six not-for-profit groups in their lawsuit against oil giant Total Uganda.

 

In 2019, six French and Ugandan nonprofit civil society organizations (CSOs) brought a lawsuit against Total Uganda. According to an article published by Jurist.org, he CSOs included:

  • Friends of the Earth France,
  • Survie;
  • National Association of Professional Environmentalists (NAPE); and
  • Navigators of Development Organization (NAVODA).

 

The Case

The CSOs argued that Total Uganda’s oil projects in Tanzania and Uganda violated France’s new duty of vigilance law, which required the oil giant to prevent human rights violations and environmental harm. The law holds France-based parent companies of transnational corporations responsible for the effect of their actions globally.

The plaintiffs and defendants have been fighting over procedural issues for two years. The plaintiff-CSOs claim their case should have been heard by a civil court, while defendant Total Uganda argued that the case should be evaluated in a commercial court. In January 2020, a Nanterre civil court held that jurisdiction over the legal dispute fell under commercial courts. In October of the same year the decision was affirmed by the Versailles Court of Appeal. In response to that decision, the CSOs appealed to the CoC. The CoC recognized in its recent decision that the CSOs have a right to choose litigation in a civil or a commercial court because they are non-commercial plaintiffs. As a result of the CoC’s decision, the plaintiffs’ case will be heard on the merits in Nanterre’s civil court.

 

The Takeaway

 

The Total Uganda case is the first of its kind based on France’s law on the duty of vigilance of transnational companies. Unlike commercial courts that draw their legitimacy from knowledge of the business world, lawsuits that are brought under France’s duty of vigilance law address the protection of the planet as well as human rights. As a result, the legal dispute cannot be turned into a purely commercial matter. The decision by the CoC falls in line with a recently adopted law by the French Parliament, which is expected to be enacted into procedural law soon, that gives Paris civil courts jurisdiction over all cases that are based on France’s duty of vigilance law.

For service of process in France, visit our site. 

For more information on the Total Uganda case, visit here. For more information on France’s duty of vigilance law, visit here.

 

On May 8, 2019, the Higher Regional Court of Frankfurt (“HRCF”) in Germany held that although a translation of the statement of claim is not required under the law, a plaintiff is responsible for doing so if he or she opts for a translation under Regulation (EC) No. 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (the “Regulation”). If the process of service of the statement of claim (“statement”) is delayed for lack of translation, the plaintiff bears the legal risk under applicable German law that the time limitations on filing a suit are not tolled because the statement was served months after the filing.

 

The Case

 

The lawsuit was filed by a plaintiff-insolvency administrator against a defendant that was domiciled in France. According to applicable law, the deadline to file a claim expired on December 31, 2015. Plaintiff initiated the claim on December 15, 2015 at Darmstadt Regional Court (“DRC”) without a translation of the statement of the claim. Instead, the plaintiff asked the DRC to obtain a translation and paid the fee in advance to the court. DRC had difficulty finding a translator and, as a result, only received the translated statement of claim in October of 2016. The translated statement of claim was served on the defendant in December of 2016. Not surprisingly, the defendant alleged the statute of limitations had passed.

 

Court Decisions

 

The DRC ruled in plaintiff’s favor, allowing the case to proceed, and cited Section 167 of the German Code of Civil Procedure (“ZPO”). UnderSection 167, the deadline to serve a statement of claim is suspended with its filing if it is served “in the near future” and the party seeking service did not cause the delay. The DRC found that the delay in the service of the statement of claim was not due to the plaintiff but, rather, the court’s slow handling of the translation. Defendant appealed.

 

The HRCF reversed the DRC’s decision and dismissed the lawsuit, determining it was statute-barred. The HRCF held that the plaintiff did not do all that was reasonably required to ensure service was effectuated “in the near future” under Section 167 of the ZPO. The court did not address the question of whether service of a statement of claim a year after its filing could be construed as “in the near future.” The HRCF held that under Article 5(1) of the Regulation, the plaintiff is not required to provide a translation of the statement of claim for the defendant. That being said, Article 8(1) of the Regulation allows a defendant to refuse service if he or she does not understand the content of the document or it is written in another language than that of the receiving member state. If a defendant refuses to accept, then the document must be served with a translation. Notably, the relevant service date for tolling a statute of limitation under Article 8(3) of the Regulation is the initial service attempt.

 

For more information on the case, visit Baker McKenzie’s Global Litigation News.

For international service of process; visit Ancillary Legal.

Investigation Exposes Weaknesses in Vatican City’s Judicial System

 

A recent criminal investigation into a Vatican City real estate investment has revealed weaknesses in the Holy See’s judicial system, including a lack of protections for those accused. The result, it seems, is that the judicial system and procedures are incompatible with European norms.

 

Understanding Vatican City

 

Never a democracy, the Vatican instead has been a moral authority on a global scale and at the same time a monarch. The pope has the ultimate power — being the supreme legislator, executive, and judge — who can make laws and regulations (and waive them) as well as hire and fire officials, prosecutors, and judges. Marc Odendall, a former long-time papal advisor recently gave up his consulting roles in protest of the grave issues he saw coming out of the real estate probe because something had to be done.

 

The Investigation

 

The probe was into a 350 million-euro London real estate investment. The investigation came to light in October, 2019 when the pope’s security officials raided the offices of the central government of the Holy See — the Vatican secretariat of state. These body guards also raided the AIF, the Vatican’s financial watchdog authority. Notably, Pope Francis had personally authorized the raids in response to information that a trusted ally had alerted the Vatican’s prosecutors of questionable circumstances surrounding the investment. The Pope defended the raids on the AIF despite steep criticism.

 

While the investigation portrayed Pope Francis as a leader who was cracking down on corruption, there is evidence of financial mismanagement by Vatican officials, including agreeing to pay tens of millions of euros in fees to Italian middlemen. Suspects of the investigation claim Pope Francis was aware of the payment, even that he purportedly personally approved it, and that top Vatican leaders authorized the transaction.

 

Vatican Law

 

The case itself is highlighting the limitations embedded in Vatican law, which is based on Italian code from 1889. Not only is this code no longer in use in modern-day times, but compared to modern legal systems, it also diminishes the rights of defendants during an investigative phase of a case. One example of this is Pope Francis authorizing the Holy See’s prosecutors to us a “summary rite” during the investigation. This allows them to deviate from typical procedures and grants them discretion to interrogate and perform searches and seizures without any oversight from an investigating judge.

 

Complexity of International Law

 

The real estate investment investigation at Vatican City highlights how complicated international law can become. If you are pursuing a lawsuit against an international defendant, the last thing you want to be concerned with is proper service of process. The team at Ancillary Legal can handle all of your processing needs so you can focus on the substantive aspect of your case. Contact us today.

In our last post, we explained that the Convention on the Service Abroad of Judicial & Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”) is a multilateral treaty adopted on November 15, 1965 by member nations of the Hague Convention on Private International Law (the “Convention”). This Hague Service Convention created unified rules on several issues, including international service of process and has been ratified by 74 countries.

 

The Convention provides a streamlined way to effectuate international service of process through  each signatory nation’s Central Authority of each signatory nation. Until recently, it has been unclear as to whether service by mail is allowed and many plaintiff’s choose this method because it is faster than the methods provided under the Hague and other methods for non-signatory nations.

Unclear Position From Japan

 

The Japanese government did not object to service of process by mail at any point since signing the Hague Convention in 1970 until 2018. That being said, litigation with Japanese defendants did not clarify the issue until the United States Supreme Court (SCOTUS) issued a decision in Water Splash. In that case, a U.S. company sued a former employee in Texas state court. At the time of the lawsuit, the defendant was residing in Canada and was served by public mail, private mail, and email. The Texas state court entered a default judgment against the defendant for failure to respond. The former employee filed suit arguing lack of proper service and the parties argued whether the Hague Service convention allowed service of process by mail. The SCOTUS used the second interpretation of Article 10(a) and allowed service by mail.

 

Because the position of the Japanese government was not clear and courts could interpret that under the Hague service of process by mail is prohibited irrespective of whether a signatory objected to this method, using service by mail for Japanese defendants was a risk. Accordingly, many careful plaintiffs used service through the Japanese Central Authority (JCA) under the Hague Service Convention. Until the SCOTUS decision in Water Splash, the Japanese government had halted direct service of process by mail.

 

Bottom Line

 

After the SCOTUS decision in Walter Splash, it was more likely that service of process made directly to defendants located in Japan by mail would be permitted. Japan’s declaration, however, has annulled this alternative method of service. As a result, in contemplating future lawsuits against Japanese defendants, the parties to a deal may enter into negotiations where service under the Hague Service Convention is avoided by a potential plaintiff and in exchange the Japanese-stationed party can get favorable concessions in exchange for voluntarily accepting service of process. Indeed, an American party may request a Japanese counterpart to designate a United States agent for service of process in the event of a lawsuit in contract negotiations. Of course, the Japanese party should analyze the implications of agreeing to this.

 

More on this topic can be found here.

For info on service in Japan please go here. 

Attorneys and paralegals frequently ask “Is India a member of the Hague Convention?” The short answer is yes. However, the question is a bit more complicated than a simple yes.

The “Hague Convention” is a term that is used interchangeably for several different treaties that many countries are parties to. Overall, there are 42 “Hague Conventions”. The most commonly referred to treaty is the Service Treaty. The full name is The Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. So when asking about the Service Convention, yes, India is a member.

This means that process service in India must conform to the protocols and requirements of the Convention. This is mandated by international law and the Supreme Court of the United States. However, India has gone one step further and declares that the only valid service is service through Article 5 of the Convention. Thus, India’s central authority is the only recognized agency for service. Even further, India has special requirements for their pleadings and transmittal of the service documents. Failure to comply with India’s requirements means you will lose time and money.  When you have a service request for India, make sure to hire someone that knows India’s rules.

Ancillary has decades of experience serving process in India. We have relationships with their agents and know exactly what they need for service. Ancillary guarantees its translations and submissions to India for accuracy to India’s specific requirements. We are happy to help you serve documents in India, with competitive prices, attorney-reviewed documents, and decades of knowledge to make sure your request is not returned for improper submission.