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Monday, July 2, 2012

Asia finally, the third and final Installation of my series on International Service of Process!

Service Taiwan pursuant to letter rogatory:

Not all foreign countries are signatory to the Hague Convention. Service of process in Taiwan, for example, presents a completely different set of issues. In the absence of any treaty, service in Taiwan is governed by US rules and Taiwanese law. US rules must be met in order to commence the action in US court. At the same time, Taiwan rules should be strictly observed: Taiwan has indicated that it will not enforce any ensuing US judgment if service of the underlying action was not effected through its courts. In other words, it is possible to arrange for service by private agent in Taiwan pursuant to US rules only, but if the case is won, and a US money judgment is awarded, the judgment will be unenforceable in Taiwan because the original service is deficient under Taiwanese law.

The US company may well have litigated its case for nothing. How does a US company avoid this type of issue? It must seek issuance of an international judicial assistance request, or letter rogatory, and transmit it through diplomatic channels. A letter rogatory is a formal request from a US court seeking judicial assistance from a foreign court. US attorneys draft the letter rogatory, and then apply to the US court for its issuance. In the letter rogatory, the US court asks a foreign court to arrange for service on its behalf through a foreign judicial officer on the basis of reciprocity and international comity. Once issued, the letter rogatory is transmitted to the US State Department which sends it by diplomatic pouch (for a hefty transmission fee of $2,275) to the US embassy in-country, which presents it to the foreign government which in turn, assigns it to one of its courts for execution.

The entire letter rogatory, including the court papers, must be accompanied by a certified translation in the language of the destination state. Once executed, the letter rogatory is returned to the US through the same chain of authorities. To make matters more complex, the United States has no diplomatic relations with Taiwan, does not recognize its existence, and maintains no embassy there. Indeed, US courts are prohibited from sending letters rogatory which refer to Taiwan as “the Republic of China.” Instead, the US maintains a “cultural center” (The American Institute in Taiwan), to handle its local affairs, including the transmission of letters rogatory. Currently, it takes between five and seven months to perfect service in Taiwan by letter rogatory. Again, it is difficult to expedite this process. Because international service is expensive, time-consuming and fraught with unexpected problems, it behooves US plaintiffs to do their homework in advance. It is always best to effect service by the most conservative means possible (generally through the foreign court system and its judicial officers): to do it once, to do it properly, and to give your attorneys the time they need to secure jurisdiction over the defendant.

Accordingly, as a US company, you should always consult with a qualified attorney and process server with international litigation experience to obtain the best advice on how to proceed. Now with all that having been said....your all the better to litigate that international matter...IF YOU DARE!

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