Service by Mail. Is the Stamp of Approval from the Hague Convention Always Enough?

Abstract

When the Federal Rules of Civil Procedure were amended in 1963, the drafters hoped that their example would encourage foreign states to be receptive to a new convention that would ease restrictions on service of process in transnational litigation. Philip Amram, one of the United States's leading lawyers in the international law field, announced that the rules and legislative changes did not depend on reciprocity.1 But certainly there was an underlying anticipation that the United States's example would be followed by other nations agreeing to allow more flexibility in service of process. To some extent, that goal was achieved. Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters2 succeeded in providing a framework that substantially improved the means of serving process in transnational litigation. The Europeans obtained a more formal method for serving process in the United States and the Americans gained assurances that service on U.S. defendants would be reasonably calculated to give them actual notice.3 Although the Hague Convention relaxed the rules for international service of process, many restrictions still apply and the means provided for service are not as simple as those applicable in U.S. domestic cases. Generally, it seems that U.S. lawyers, particularly those active in the products liability field, are less than enthusiastic about the Hague Convention. Those familiar with the treaty chafe at what they consider time-consuming and unnecessarily complex steps required to accomplish what is routine in domestic litigation. In the absence of energetic judicial direction, the bar has attempted to avoid the Convention's procedures and, instead, use the more familiar domestic methods.