International Service of Process – Legal Authority
When serving process abroad the legal authority that pertains to the foreign country must be ascertained. For signatories to either the Hague Convention or the Inter – American Convention international law governs the serving of process, for non- treaty countries the service of process will be informal.
Service of process in countries under the Hague Convention is either through the central authority designated by the foreign country or by any of the methods stated in Article 10 of the convention. The Inter-American Convention on Letters Rogatory and Additional Protocol is a treaty between the United States and many Central and South American Countries that regulates the international service of process in the signatory countries. Letters Rogatory are the means by which a court in one country requests the assistance of the judiciary in the foreign country where the defendant is situated, to effect performance of an act that could constitute a violation of the sovereignty of that country if done without sanction of the foreign court.
The default service of process in non-treaty countries is Letters Rogatory if permissible by the laws of the foreign country although a small number of non-treaty countries will actually allow service of process by a private process server. The usual method of transmission of Letters Rogatory is via diplomatic channels and can be time consuming. This can be circumvented by transmitting a copy of the request through a local legal representative if this is allowed in the foreign country where service is to be effected.
The foreign court will execute Letters Rogatory in accordance with the rules and regulations in force in that country. For instance many foreign courts do not permit attorneys from other countries to participate in court proceedings; some foreign courts do not employ court reporters nor provide verbatim transcripts of proceedings. Occasionally the presiding judge will provide his or her own recollection of proceedings and responses of the witness.
When executed by the foreign authorities the Letters Rogatory are normally returned by diplomatic channels to the Department of State whereupon the Office of American Citizens Service will forward them to the requesting court in the United States via certified mail and requesting counsel will also be notified. The requesting counsel can have the executed Letter Rogatory and proof of service returned directly to them at the request of the court.