Business, family, legal, entertainment services, forms and more! GO TO

Sunday, June 10, 2012

They're in India...I'm in Los Angeles, now what? (Part 2 of 3) Series on International Law

In my previous article the focus was on simply the general service of process and I closed with a list of "friendly" states/countries that were signers to the Hague Convention which has guidelines for international service of process, moving in the same direction, I'd like to put you on to some of the particulars

Take, for example, the case of a defendant located in India. In India, service is governed not just by US state or federal rules but also by terms of a judicial assistance treaty (the 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters or “Hague Convention”) and Indian law. US courts have consistently held that, where the Hague Convention is in effect, application of that treaty’s provisions is mandatory and that its channels supercede and abrogate inconsistent state and federal rules for service. In short, if your defendant is in a Hague signatory country,Hague rules exclusively dictate how service can be effected. Hague Convention rules, in turn, defer to the laws of the destination state. 

Each signatory nation is asked to file formal declarations and reservations regarding permissible methods of service in its territory. In this regard, India declared that it objected to direct service by diplomat (as provided by Article 8), service by mail (as provided by Article 10(a)) and service by judicial officer (as provided by Article 10(b)). Thus, any attempt by a US attorney to serve by mail or agent in Indian territory – even if provided for under US domestic rules – would result in defective service under both US and Indian law. How then must service be accomplished? The “Requesting Authority” in the United States must file a formal Hague Service Request with a designated “Central Authority” in India (as provided by Article 5) – in this case, the Indian Ministry of Law and Justice. The Indian Central Authority then vets the Service Request to ensure compliance with the treaty and, in turn, refers the court papers to a competent lower court for service. There, a judge instructs a court bailiff to effect service pursuant to the laws of India. Once the papers are served, the lower court returns its local proof to the Indian Central Authority, which annexes it to a Hague Certificate, or international proof of service, along with a duplicate copy of the papers served, and sends the entire file back to the United States.

In India, service takes from four to nine months; it is virtually impossible to expedite execution of a Hague Service Request through the Indian court system. Since most state and federal rules provide that service must be effected within 30 to 120 days, counsel for the plaintiff will need to show diligence in attempting service to the US court and apply for special extensions of time. There are sometimes other issues associated with service in India. Since India is a common law country, the court bailiff generally effects personal service, but occasionally service is effected by insertion in a letterbox, or by posting at an abandoned “registered office” for the defendant. While this may constitute good service under Indian law, anything short of personal service is likely to be problematic from the point of view of US law, since due process rights under the US Constitution dictate that service must be reasonably calculated to give the defendant actual notice. Did the owner of the letterbox in which service was left receive actual notice? 
A second attempt – and another four to nine months – may be needed to cure such service. Likewise, language can add a wrinkle to the process. India is home to several hundred languages. Because English is one of its official languages, a translation of the court papers to be served is rarely required. At the same time, under US notions of due process, plaintiffs have a duty to serve documents upon defendants in a language that the recipient will be likely to understand. For example, if an Indian court bailiff elects to effect sub-service of English language court papers upon a security guard who does not speak English, has service been perfected? 

On that mouthful, and a boring mouthful for some of my readers, we'll get to the answer in my next and final installation to this series on international service of process....until then....

No comments: