International Service of Process – Methods
When seeking to institute an action against a defendant in a foreign country caution must be exercised when choosing the method of service to be employed or the result could be vacation and dismissal years after judgement. Questionable service can be avoided by using the method of service that is most appropriate to the judicial and regulatory conventions of the foreign country in question.
The United States is party to two multilateral treaties, The Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters and the Inter-American Convention on Letters Rogatory and Additional Protocol. The Hague Convention is the most commonly used method for serving parties outside the U.S. and is meant to provide a common practice among the signatories to the convention but some countries have made reservations regarding specific methods of service so it is necessary to discover whether the country where the service is to be made has made any reservation and if so to what method or methods of service. Perhaps the safest method of service in a country signatory to the Hague Convention is through that countries designated Central Authority. The form needed for the transmittal of service requests to a foreign central authority is USM-94 and is available from the U.S. Marshals Service web page.
The Inter-American Convention is a treaty between the United States and a number of South and Central American countries, but it is worth noting that only countries party to both the Convention and the Additional Protocol have a treaty with the United States. A request for service in a country party to the Convention and Additional Protocol should be submitted on form USM-272 (English) and USM 272A (Spanish). The forms are available from the office of any United States Marshal or from The U.S. Department of Justice’s contractor.
Service can be made by certified or registered mail with return receipt to many countries as long as this method of service is not prohibited by the laws of the country involved. The International Mail Manual, which is available at your local Post Office, or the U.S. Postal Service web page can provide the information on whether such a service applies in the particular foreign country.
If personal service is needed in a country not party to the Hague Service Convention it may be advisable to engage a local attorney to serve process unless this is not permissible under the laws of that country. American process servers or other agents may be subject to arrest and/or deportation if they are not allowed to serve process under the laws of the foreign country.
In some countries the only recognised method of service is by Letters Rogatory and requirements of procedure can vary dependant upon the country involved. Letters Rogatory should only be utilised if there is no other avenue open as this method is unwieldy and time consuming.
Another method is service by publication but only where allowable under the laws of the foreign country. Waiver of service may be a viable option but, again, this method may not be permitted by the foreign country. Waivers of service may be executed before a U.S. consular official abroad in the form of an acknowledgement or affidavit.