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The Basics of International Service of Process in Continental Europe

The purpose of this note is to present you arguments in order to convince you and invite you to employ Attornys for your service of Judicial or Extra Judicial documents, Commercial or Civil in the Jurisdictions of Europe.

I intent hereto give enough legal and logical arguments about a “Hybrid System” for service of process to prevent any possible challenge.

International Personal Service of Process (IPSOP) is one of the services of Joseph any International law Attorney providing litigation support services, judicial assistance as well as regular legal services on the European Union. Please verify that are Attorneys registered and insured, having physical offices in the European union and by the virtues of the treaty of Rome, creating the European Union, those who can practice in all of the Union's Jurisdictions.

There are two main methods to choose from when serving documents on the European Union, both methods, are proposed by the Hague Convention of 1965 and have the same legal value, no hierarchy exist between them, but one is less reliable than the other timewise, the legal effects are basically the same but not the cost. There is a third method, a mixture of the above which called “Hybrid” that cambines the above as I will explain.

Any other methods employed, are outside the Hague Convention and therefore with high chances of being irregular. The basic legal methods of the Hague Convention are the following;

One, a public service of the “Judicial Administration” called “Centralized Authority” because it uses the “Government” to transmit documents. Is is an intergovernmental service, in principle a free service but nevertheless submitted to economical constrains with high possibilities of no completion on time.

Two, by the use of a service provider, alternative method, called “decentralized”, it can use an “International private process server”, “Mail” or “Local Bailiffs”; All under the Hague Convention regulations, Art. 10. It's applicability varies with the country's opposition or tolerance of the method emplyed. As a Private method, it is paid, and therefore submitted to market and quality control and efficientcy.

International Service of Process, by either method, is ruled by two different legal systems, linked by the treaty of the Hague. The main law, called « Lex Fori, » is the law where the documents are issue and where judgment takes place, “Lex fori forum”. These rules, govern service of process validity and recognition in the “lex fori forum”, but not necessarily its effects and legality in the jurisdiction where documents where served, “Lex loci” and "Lex Celebrationis". Recognition and enforcement by the “Lex loci forum” depends on the respect for their internal laws of civil procedure and eventually the procedure of “exequatur”. It is then to each “lex fori” and their “foum” to determine their requirements for an “acceptable service” but being their powers limited in space, they can not enforce it abroad, so it is necessarily need to keep in mind that:

The act of notification is completed under a different legal system with different exigences, those of a sovereign state, which must be taken in consideration, based on International treaties and for future enforcement, otherwise all efforts will be lost.

Based on International Legal Principles, we can affirm that a “Lex fori forum”, a Judge, can not accept in a procedure he is directing a “foreign illegal procedural actuation”, an act that violates foreign laws. On the other hand the “Lex Loci forum” will not enforce a judgment obtained under these circumstances and will not like the desition taken in violetion of his space. Because of this, you must act in harmony with local codes of procedure and the Hague Convention and not only with your own laws,or, your liability will be engaged in a Criminal or Civil manner.

The Centralized method seems to be the most appropriate and reliable, but it is not, is not mandatory nor exclusive, as explained by the Hague Convention itself (visit the Department of State's web pages for more information in relatioon to the U.S.). Therefore the “Central Authority” is not the only organ proposed as available to serve documents abroad as is the general believe or as promoted by many translation companies or unscrupulous servers who have created a :”Vox Populi” that takes advantage of ignorance of the treaty, to sell Translations and Apostilles.

Luckily for the legal profession, there are a series of alternatives or decentralized channels, Art. 10 a,b and c or even arts 5 and 8 of the Convention, often more reliable and always faster and efficient. The method to employ must not be in conflict with the laws of Civil Procedure of both jurisdictions involved and both must be signatory countries as explained in Art. 5,b.: That is, a legal harmony of “Lex fori” and “Lex loci” in the transJuisdictional procedure. These two sets of laws must be applied simultaneously when serving.

All signatory countries have accepted the “Centralized” method to simplify servicxe abroad but not all accept all the channels of the the “decentralized method”. In Europe most countries accept both methods entirely. The reason for accepting or not is that most people believes that the alternate decentralized method does nor exist or is not legal. The legal texts are not interpreted or applied properly as it has happened resulting from the wrong application a “Fraud to International law” and service that is Void or Voidable.

The liberty of method is inspired by “International Civil Procedural Liberty” Convention, as expected by the Hague of 1954 giving flexibility to the Convention of 1965. The evolution of both and their application and Interpretation by International jurisprudence has given a positive empiric result: Service but protecting litigants rights. Mondialisation of judicial process needed a fast way for Judicial information exchange and judgment that adapts to it: Time is money.

World trade, has opened the door to more efficient and fast ways of litigation and serving process, resulting in a gain of time and money by cutting “Red Tape” and formalism. Nonetheless, there are limits to this liberty and which that transform into critics to the methods proposed by the Convention based on the need to eliminate some absurds requirements like the risky exam of legality prior to service a civil or Commercial document or the choice given to defendant to refuse service if documents are not translated or the lacunaeof no distinction between service to Individuals or Multinational Companies, Non existance of presumptions and many more that will see later.

The Hague Convention's Centralized method has, as said, many “legal lacunae” or serious defects, the main one is that is a free governmental service not submitted to market, a way that does not uses a “fast Independent Private Process Server”, as is requested by many courts and litigants, it is defective and often deceptive method timewise and economically because it promotes the use costly translation, delaying service since passing from hand to hand, also the contents of summons are exam for legality before they can be served. "Legality or Red tape". These exigences makes it slow and therefore not adapted to modern international litigation causing the intrution of "Legal Paper Currier" service provifers in violations of the most elementary principles of law. It is also contradictory, because under the veil of gratuity there are a series of unnecessary expenses that result in an expensive service and at the end it is more expensive than using private channels. I consider it promotes unnecessary translations because, if documents are not translated, the defendant can refuse service or the person in the Central Authority might not understand them, or the local judicial officer with jurisdiction in the area does not speaks the language and in other cases the central authority will not be able to exam their legality or the Judicial officer know how to porceed according to the kind of document. See Article 5.

It is advisable then not to use the central method, not to have the documents translated, and if you do translate them properly with the right qualified and certified professional. As a preventive measure, if you do a translation to avoid “possible” future problems, the translation itself can be easily challenged in court and during enforcement. European courts prefer translations from tindividuals that give the necessary legal guarantees, either by Certification and/or Registration. Is is considered that only those listed each year by the different Courts or the Foreign Affairs Ministries.

On the other hand, an essential defect of using the Centralized method, is the requirement of an exact address of defendant. A problem, because there is no possibility of “locating a defendant” or “Skip tracing”. The Central Authority does not “searches” for Individuals or Corporations. If a defendant changes address or the address is not correct, if he is a tourist or illegal, service is paralyzed and returned, waisting your time and money, sending you back to square one while court time is running. Interesting to mention is the situation of corporations which can change the address of the registered headquarters and do not have an immediate obligation to notify this changes to the Mercantile registry. The central authority will not pay for any expenses such as access to a mercantile registry to obtain information of where and to whom to serve, that is your job.

Another defect, is in the requirement for “Personal Private Service”, concept that is understood in different ways in different countries: Bailiffs or Local Judicial officers apply the local Code of Civil Procedure and not the special instructions received from foreign jurisdictions to serve a apecific named person.It varies with the country if there is a presumption of service, if a substitute service is completed. In practice, what is understood in Common law as “Personal service” is understood in many Continental European countries as “Substitute”. The problem increases if we distinguish between service to corporations from service to individuals.Substitute service to Corporations do not exist and the only valid service to a Corporation is to their legal department or to a "Registered Officer".

When servicing corporations, service must be completed in the person of those individuals who have the power to represent the corporation, that is to say the “corporate officers” publicly listed in the mercantile registry and who are responsible for the corpotion. Therefore service to the front desk, secretary, gardener or any employee of a corporation, is a “Substitute service” that does not exist. For individuals, most local laws allow officers to leave documents at the address specified or leave a note in the door as equivalent of service. These officers, do not need to understand the hierarchy of the Hague Convention in this sense and what are exactly the “Lex fori Forums” constraints. Instructions for service given to the central authority, transform into "let's do it our legal way" and which is not necessarily the way you need things done. Remark therefore, that the use of “insistence and perseverance” is not possible by the “Centralized method”, its efficiency is not good enough and it is only, by the use of a private personal server that you can achive the best results, have more legal security on service and what is the most relevant, you will be courteous to your adversary and sure of your case, it will be cheaper on the long run!.

These above reasons explain why most Common Law Attorneys have used as many “tricks” as possible or patches to remove these obstacles and problems of the “Central” method, I do not blame them. Sometimes by the use of “an agent” which often is, their local process server, their friendly “tacky” translation company or their neighborhood's Private Investigators. The reality is, that on the long run, not only they have risk to waist time and money, but they could have been liable of fraud to international law, defamation to defendant, accomplices of Ilegalpractice of law, Revelation of Secrets... and to complete the apocalypse, if not prosecuted or challenged, the judgment obtained often does not pass the “Exequatur” exam or Foreign Judgment Enforcement. No doubt then, that ignoring European laws, rights of image and privacy amongst other can happen and happens as it can have undesired consequences. Jurisprudence has considered that services completed this ways as irregular and have engage liability.

The “Lex fori forum” and “Plaintiff's Attorney” are obliged ex-lege to respect the lex-loci or the legal requirements of the jurisdiction where documents will be served and these obligations starts at home with respect for confidentiality, secrecy and a proper translation of documents as the basic right of defendant. Service of Process must protect the defendant who is abroad. It is my understanding that “Lex fori” process servers, Non Certified Translations Companies, even with offices in Europe and other intruders in the chain of International litigation can severely contaminate a case if the law does not guarantees their professional secretcy.

There are, a series of channels in what we can call an “alternatives or decentralized method” being more reliable and more efficient, better ways to serve, these are replacing the anachronistic central method, in summary the centralized Service of Process has the following characteristics:

1. Translation: a. High Cost b. Unnecessary c. No distinction between Individuals and Corporations

2. Service Speed: Slow and can abort

3. Prior Exam of legality a. Slows down in steps b. Contradictory

4. Exact Address required 5. Non Personal Service 6. No Courtesy 7. No Confidentiality 8. ....

Hague's Alternative method of International Service of Process The Alternative method is composed by channels, using them has the same legal value and effects as the “Centralized” method as said before but to which I insit, if the country of “Lex Loci” has presented no express opposition to them,there is no hierarchy between the “Centralized” and “Decentralized” methods. It is true that Art. 10 a, Service by a Currier, UPS, Fedex, DHL, Postal, fax, internet (email or messenger), as has been confirmed by different jurisprudence are not reliable channels, even if they are contemplated and accepted in some countries. The reason is that they lack of “legal guarantees of delivery of contents” violating the Principle of Contradiction and Equality in a fair Judgement. This channels can bring the defendant into “defenseless”. Therefore they are mostly considered by jurisprudence as “evidence of an address” more than evidence of a Legal Notification. The Hague Convention permits the use of these channels in Article 10, but they require some logical complements to be “Legally binding” even if the Convention does not indicates which one they are it is logical to think that a "reception confirmation" is necessary. Indeed, one can serve blanc pages by mail or fax since and nobody will check the contents and thereto obtain a judgment by default. Because of this, I recommend a “Certification of Contents” necessary either on the sending Jurisdictions or in the receiving Jurisdiction by a qualified person, but I insist done by a qualified professional that has “Public trust” The postal of fax receipt are not an affidavit of service. Understand then that the objective of service of process abroad is transmitting information, a legal notification to a defendant, inform him of a “cause” in which he is part and which could have serious consequences in his patrimony, rights and obligations as they will in your own jurisdiction.

These rights must be respected and protected by the rules of the legal art in order to avoid arbitrary application of law and fraud to International law. To avoid this, the Hague Convention canalizes these notifications by taking in consideration internal laws but without providing a way to control it or a procedure for appeal on the local jurisdcition other than a posteriori non exequatur. It imposes the protection of defendant's rights and obligations as well as much as those of the plaintiff. Please determine, not if the notification was done but if it was “properly done". Service by mail, fax or email are very fragile channels that must be avoided.

These alternate channels are without any doubt symbol of the “Liberty of Transmittal” but have enter into excesses, for example the use of facebook or an email are examples that the decentralized method has been wrongly understood by many Common law Courts and Attorneys. This happened because the “mechanism of service” applied and employed has been the “available one” the one that sound logical, unconsciously applied in violation of foreign laws. Professionals have use what they know, as a reflex, they have used the same manners as for their state notifications and have sent abroad a service in their "Legal logical way of thinking". This has resulted, in failure to enforce, impossibility of judgment recovery or simply a challenged of service.

A distinction must be made between a banal Service of Process and an International Service of Process and to honor international justice even if the effects of your judgment will remain in your jurisdiction do that international service properly, is just a matter of International legal courtesy. The philosophy behind and the rational explanation, is that the concept of “Public trust” is very different to each culture and their legal logical order. Think about that opposite to Latin Europe, No Governmental Identification Card exist in common law countries, there is no central land and/or property registry, sometimes Notaries are simple individuals, Process Server and/or Translators have minimal requirements. In old and experienced Europe, everything is “suspicious” and therefore surrounded by the maximum guarantees of legal security, enforced by the state at “Felony or Criminal level” to avoid any possible “misunderstanding”, “fraud”,”deviation” or “Abuse”.

In Europe. service of process, either for internal purposes, European Purposes or for International foreign courts, is considered as a manifestation of the “Jurisdictional Power”, when completed it is actually a “delegation of powers” to the server. In Europe. the monopoly of legal representation, actuation and consultation, has been given, traditionally and since middle ages, to the different “Legal Corporations”. Translators, Private agents or detectives are excluded of these basic requirements.

The legal professional associations are those of “Huissiers de Justice”,”Procuradores”, “Ufficiali Judiciario”,”Abogados”,”Avocats”,”Advogados”.... Unlike common law countries where almost anyone mentaly capable can perform these “legal contents and jurisdictional acts” this is not the case in Continental Europe. Please, know and confirm that only qualified legal professionals can serve properly and legally in most of Latin Europe since they are the only professionals, who can offer “Ex-lege” the required and necessary legal guarantees. Service by a “Agent” as known in common law does not exist in Europe nor in the Hague Convention, it has been usedas a patch, but this usage, does not rises service by agents to a legal stage, it is not common law practice of law who creates a precedent in European Jurisdictions.

Logically explained: If any country's laws of Civil Procedure establishes for internal service of process, a procedure that requires guarantees of public trust; given only by the use qualified professionals, how come, for International Service, you can expect to use anyone? An agent? A detective? A Translator? In conclusion: When in Rome, do as the Romans!

We must distinguish now between communications to the Central authority or with the Server and notification or service of process to the defendant. One is an organ and the other a defendant. Communication with the Central Authority or to the server can be by any means, even e-mail. But when notifying a defendant, note that the Hague Convention invites service of process to have two explicit and implicit requirements for acceptance: voluntarily and knowingly. These can be compared to a “bilateral obligation in Civil Law” (See Article 5 (b) alinea of the Hague Convention). Therefore, if the defendant is not ”capable to understand” what he is receiving, service is viced and the “Defendant can refuse service”, this is the essense of the "Translation". If documents are not translated he is not “capable to understand”. But even more, in international law the presumtion of knowing the law inverts. The defendant is not sense to know foreign laws or could he be economically challenged to know them. If the defendant is not served by a multilingual Attorney at law and advise at the moment of Service or if the documents delivered contain No Legal Notice and etceteras, the defendant is in “Procedural defenseless” and therefore service of process is not valid and is useless.

Service to Corporations doing International Business, those under the Hague of 1956 for “Company recognition” must be presumed that they speak the language of the Jurisdiction in which the carry business and know their laws. The Hague Convention does not distinguishes between services according to defendant; Individual or Corporations. I consider the Hague as placing an obstacle in service to corporations, since the plaintiff is constraint to translate the documents. Logically Corporations should never use the central authority, they do not need it. The central authority has sense when dealing with individuals.

The Hague Convention indicates “voluntary acceptance” as a condition of service, this does not mean “Refusal at all times and systematically to get civil or commercial impunity”. In this sense, service by Certified Mail, email, fax and other unilateral acts of service, which we can be consider as “Adherence” from defendant to service, have the common denominator that the defendant is not accepting voluntarily, since he is receiving something with unknown contents. The contents will be discover later and in tghis cases he is accepting first, therefore contradicting the Hague convention. These channels are good for a verification of an address but not of service.

In conclusion, Certified Mail, email and fax are not proper ways of serving and a Court accepting these kind of services are refusing o linitating the rights of the defendant, except if they are back up by a qualified professional's Affidavit of service.

“Service by Agent” as understood in common law, is not contemplated in the Hague Convention on Service of Process,whet is contempleted is "Service by a qualified person" it is another automatic reflex and has been used by many common law Attorneys: "Agent" translated into "Private Investigator, detective or translations company". These agent services require often translations of documents because the Agent used, in most cases speaks the language of the Attorney requiring service. Often he is a foreign national in the country of service, sometimes illegal, but in any case not qualify to do this kind of Job. They provide “Shaky” services based on the fact that they speaks the language of the Attorney requiring service and dare to violate all kinds of laws of procedure, anyways most of them have nothing to loose.

These “Merchants of Process serving” use translations to increase profit and to reduce the possibility of future challenge of service. In most Latin European countries, it is considered. that “Legal Guarantees”, are only given to and are given by ”registered and insured professionals, recognized and controlled by the governments and grouped in special associations or corporations submitted to strict ethics control: Emplyoing these "agents" is an insult to law and order and to the legal professionals. The law and confirmed Jurisprudence protects “defendant's rights” against poor « qualities and qualifications » of a “dummy server” or anyone from here or there serviving, an intruder, who for a “fist full of dollars” will issue an affidavit.

In conclusion service by “Agent” is possible if and only if the Agent to be used is a qualified legal professional in the country of service as is what the Hague Convention requires.

It is a interesting anecdote, that I found an “International service of process company in Spain” that also does “plumbing” services from the same office, a business run by a felon issuing affidavits even to service completed to non existing address or people he never saw. In southern Italy, the server was a U.S. Citizen without any work permit, Social Security or anything but a false ID.

It is a shame that Justices and Attorneys in North America often, accept, for international service of process, affidavits of persons that do not offer any guarantees or do not have the essential “Public trust”, looking down and with disrespect the rights of defendants and the laws of procedure of a foreign country. Indeed, employing anyone for international service of process, and for depositions, is a disregard on justice and disrespect for International and local law. To serve properly you must respect foreign laws of procedure! You must understand the European concepts involved the "Legal Logic of the Curiae" in a “Procedural Notification” and respect orthe concepts of “Justice”.

Finally, art. 10 c, considers as “Agent” a Judicial officer or bailiff. Service by these agent depend on the kind of person to served: Physical or Juridical. In some jurisdictions, serving a corporation must be to a “Registered Officer” as it appears on the mercantile registry of their country or to their legal department or representative and the place of service has to be the registered headquarters otherwise it will be a substitute service (Individuals or Corporations can be served at their Attorney's office). If Individuals, an agent can served them at their home or place of work., but not in a public place. One excess of the Hague Convention is the requirement for an exact address for service, meaning that the requester must have the exact information. This requirement reduces the rights of the plaintiff since a qualified legal professional acting as agent can complete service to two addresses to avoid impunity of defendants, that is to say, serve the address in the writ of summons and the legal or present address. Service can be completed by directly instructing a Judicial officer of a Bailiff, article 10 c of the Convention, employing them as organ and as server, but they will issue am “Act” or document in the official language of the country, you will have to pay for a supplent for translation into English language and eventually the legalization of signature. Our Hydrid service take's care of everything. Please remember, the principle in Europe is the “Protection of the rights and obligations of litigants” by due diligence completed with integrity and by qualified and reliable professional not an “affidavit” obtained in obscure circumstances at any judicial cause price or at justice expense. Summarizing: The two main methods both have the same legal value within the Hague Convention and no “Hierarchy”exist amongst them, one is bad and the other is worse, they are equally poor, but combining them is possible and results into a more reliable international service: WARNING: Translations and Apostilles (Legalizations) are not necessary but if you use them remember that the Translator must be “Certified” by the “Foreign Affairs department” or the “Local Appellate or Superior Court”. The use of a local Notary Public to certify the signature in a translation does not corrects the errors of “tacky” translations. The use of a non registered “Attorneys at Law” under most jurisdictions of the European Union for acts reserved to the legal profession causes “contamination of your case”, engaging your liability: Protecting the rights of litigants is your obligation. Do not use simply anyone willing to issue a statement of service affidavit if not qualified. Inventing International Service of Process: The Hybrid system Our “Hybrid system of international personal private service of process” combines, not only “methods”, but also the different channels or options of the convention, applied by steps and in less time that the “centralized”. The result is a better service that takes the positive side of each method in order to obtain the best legal guarantees: We consider it as “System", more than a method, please consult us so we can discuss your case service in detail and how our system applies. The hybrid system for International Service of Process, heals the disadvantages of the Hague Conference's centralized method and the abuses in the use and application of the decentralized alternate method. It is a non complicated service of process having the characteristics of Legality, reliability and fast. On the other hand, the “system” applies the principles of the Hague Convention combined to each jurisdiction, incoming and outgoing, and their respective laws of procedure. The “legal order” is to obtain with the maximum legality and protection of litigants, its main characteristic is that: Service is double, a preliminary International service and an Euro service. The system provides that the rights of the plaintiff and defendants are guarantee and protected by registered and insured multilingual Attorneys at Law in the country of service. Documents are delivered personally in all confidentiality by a legal professional who will give advise in the language of the defendant, making it comprehensive by giving complete legal notice and explaining how to proceed. All services are completed with mandatory secrecy and neutrality, Courtesy and professionalism under the respect for internal laws of Civil procedure. The defendant does not have an option to refuse service, or claim to be “unprotected” there is no “a priori” exam of contents or delay, no translation's cost or apostilles, no promises of service but a “Jurisdictional act completed according to local law by a qualified legal professional”, Note the advantages; a. The defendant does not have an option to refuse service, or claim to be “unprotected” b. Liberty to choose process server within the legal profession market value. c. There is no “a priori” exam of contents or delay in exams d. No translation's cost Nor apostilles, stapples,stamps or clips! e. No doubt on delivery of Contents e. Service with “Professional Integrity” f. Customer service and Affidavit in English g. Une of Bailiff when required h. Service is guaranteed in delivery i. Service is guaranteed in court .....and much more Our price list, reflect the need of taking in consideration many legal and practical aspects of service in Europe, specially to avoid incidents and possible cchallenge, appellate “quash” proceeding”, we provide services that are cheaper than the “Centralized” method and with the same value. The different classes of service we proposed vary according to the required time for service: Urgent, and each has different protections. We always start by a “Skip Trace or Locate” in order to obtain an exact address as per mandatory requirement of the Hague Convention and to avoid you unnecessary expenses, then we mail a preliminary service of process to verify the address of delivery and physical existence. Our letter, asking for an appointment or an interview and placing ourselves as neutral Attorneys at Law available as required by law to avoid defenseless by counseling the defendant. During the interview, in presence of a local Judicial Officer or Bailiff when required, we verify the identity of the receiver, his knowledge of the language in which documents are written and explain in detail their rights and obligations. All of this procedure is condensed in a Custom made affidavit that is legalized by the Notary Public of the diplomatic representation of the lex fori (That is to say: the Consul)..

Joseph A. de LA CUETARA,JD-MBA Attorney at Law/Abogado/Avocat Palais Alphonse Karr 2, Rue Rossini Nice 06000 France email=Tl-Fax=http:// 011 33 4 93 16 27 38 .info