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Sometimes it is Rocket Science: Service of Process on Defendants in a Foreign Country

by | Oct 5, 2016 | Family Law

As you probably know, we handle a lot of international family law issues from international divorce to division of international property to international custody to international child abduction. In short, at The Manely Firm, we do a lot of international family law. Since so much of our practice is international, we have to know how to successfully move within, not just our own courts but the courts of many other jurisdictions and how to bring international parties before our courts so that resolution of legal issues can be achieved.

Constitutional due process requires service of process of the defendant in all litigation in state and federal courts. Georgia courts established a long time ago that our courts have no extraterritorial jurisdiction, and cannot automatically make citizens of foreign states amenable to their process, or conclude them by judgment in personam, without their consent.”

What it all essentially means is that if your opposing party lives in a foreign country you must comply with special rules of service abroad, unless that party consents to the Georgia jurisdiction. Otherwise, the service will be improper and any judgments received in Georgia without proper service could be set aside. We, at the Manely Firm have a vast experience in serving abroad. We have successfully served defendants in many countries from Mexico to Mauritius, from Germany to Greenland, from Chile to China, and all points in between.

Service upon persons in a foreign country is regulated by O.C.G.A. § 9-11-4(f)(3). One of the methods dictated by the statute is the service by any internationally agreed means reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents. I will concentrate on Hague Convention service in this post.

The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters was concluded a long time ago, on November 15, 1965.Different countries joined the Hague Convention on service at different times, so the first step is always to check whether or not the country where your opposing party lives is a signatory to the Hague Convention on Service. The second step is to check on limitations that particular country imposed while signing the convention – countries can allow some additional methods of service in addition to traditional service through a Central Authority. Under the Convention, each country that joined the Convention has to designate an agency or competent authority to be the contact point for the service and to accept and process the service documents. Some countries appoint more than one competent organ. For example, in Germany they have 17 Central Authorities (local courts) depending on the location of defendant. In France, on the other hand, you have a choice of the public prosecutor’s office or the court bailiff, but the Central Authority of the location where defendant lives must be used. And, of course, the Convention does not apply where the address of the person to be served with the document is not known.

The Hague Convention on Service commands that the Request, Certificate, and Summary with Warning be served on the defendant. If the documents originate in Georgia, we send the Complaint and related Motions, Summons, and certificate with a summary. Another very important step is to make sure that your documents are translated properly. The accepting country dictates the language of the service documents. In Switzerland, for example, there are 17 cantons with four different language requirements (French, German, Romansh, and Italian) and the choice of the language or languages depends on the particular Canton in which the defendant resides. Translation has to be certified.

Depending on the country, different nations handle Hague Convention service differently. For example, China has a very stiff protocol for sending documents and there is no communication with the Central Authority once you have sent all the required documents. The wait time to receive confirmation of service can be from six to eight months. International service is not for the inexperienced or the faint of heart.

Considering all the experience and success we had with Hague Convention service, if you are faced with serving someone abroad, please give us a call and schedule a free consultation. We would love to help you navigate in the tortuous sea of international service.

Dina Khismatulina