Agrégateur de flux

Written by Danilo Ruggero Di Bella,
attorney-at-law (Bottega DI BELLA), member of the Madrid Bar and the Canadian Institute for International Law Expertise (CIFILE)

The USA is a Contracting Party to the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (the “Hague Service Convention”, which it ratified in 1967. The Hague Service Convention is a multilateral treaty whose purpose is to simplify, standardize, and generally expedite the process of serving documents abroad, thus it plays a central role in international litigation. The Hague Service Convention specifies several allowed methods of service to provide due notice of a proceeding in one Contracting State to a party in another.
The primary method (and main alternative to service through diplomatic channels) — laid out in Articles 2 to 7 of the Convention — is via a designated Central Authority in each Contracting State. When a Central Authority receives a request for service, it must serve the documents or arrange for their service. This method is usually faster than service through diplomatic and consular agents (which remain available under Article 8 of the Convention), along with the possibility that two or more Contracting States may agree to permit channels of transmission of judicial documents other than those provided for in the Convention.
Further, at Article 19 the Convention clarifies that it does not preempt any internal laws of its Contracting States that permit service from abroad via methods not otherwise allowed by the Convention. Thus, it could be argued that a sort of favor summonitio (borrowed by the principle of favor contractus) permeates the entire instrument, in that the Convention strikes a fair balance between the formal notice of a proceeding and the validity of an effective summon in favor of the latter, to allow for swift international litigations. Indeed, another fast method of service expressly approved by the Convention is through postal channels, unless the receiving State objects by making a reservation to Article 10(a) of the Convention. This is considered the majority view shared by multiple jurisdictions. However, in the United States different interpretations existed on this point, because Article 10(a) of the Convention does not expressly refer to “service” of judicial documents (it instead uses the term “send”). Consequently, it was an unsettled question whether Article 10(a) encompassed sending documents by postal channels abroad for the purpose of service, until the US Supreme Court has been called to interpret this instrument.
US Supreme Court’s interpretation of Article 10(a) of the Hague Service Convention
The USA did not make any reservation objecting to service by mail under Article 10 of the Convention. In Water Splash, Inc. v. Menon, 581 U.S. ___ (2017), the US Supreme Court pronounced itself on Article 10(a) of the Hague Service Convention to resolve these conflicting views, according to some of which the Convention was to be read as prohibiting service by mail.
After a detailed contextual treaty interpretation and also a comparison of the text with the French version (equally authentic), the US Supreme Court found that that Article 10(a) unmistakably allows for service by mail. The Supreme Court further clarified that “this does not mean that the Convention affirmatively authorizes service by mail.” It held that “in cases governed by the Hague Service Convention, service by mail is permissible if two conditions are met: first, the receiving state has not objected to service by mail; and second, service by mail is authorized under otherwise-applicable law.” This means that it is not The Hague Service Convention to authorize service by mail, but it must be the lex fori to do so (the Convention simply permits service by mail). So, where the Convention applies, it is not enough to make sure that a summon effectuated abroad is valid under the Convention just because that foreign jurisdiction allows for service by international registered mail. It further must be ascertained that the jurisdiction in which the case is pending authorizes service by mail requiring a signed receipt. However, by a simple reading of the US Federal Rules of Civil Procedure, it is possible to note how this set of rules misunderstood the scope of The Hague Service Convention.

The US Federal Rules of Civil Procedure and the Hague Service Convention
In cases pending before a US federal court where the Hague Convention applies and where the foreign jurisdiction (in which the defendant resides or is registered) allows for service by mail, the plaintiff – who serves the defendant abroad – should further wonder whether US Federal law authorizes serving the defendant in a foreign country by mail.
Rule 4 of the Federal Rules of Civil Procedure (FRCP), dealing with summons, answers this question. In particular, Rule 4(h)(2) FRCP deals with serving a corporation abroad by remanding to Rule 4(f) FRCP, which in turn deals with serving an individual. So, the same rule applies to serving either an individual or a corporation abroad. Rule 4(f)(1) FRCP makes express reference to the Hague Service Convention:
“(f) Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served at a place not within any judicial district of the United States:
(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;”
However, as stated by the US Supreme Court in Water Splash, Inc. v. Menon, the fact that Article 10(a) of the Hague Service Convention encompasses service by mail does not mean that it affirmatively authorizes such service. Rather, service by mail is permissible if the receiving State has not objected to service by mail and if such service is authorized under otherwise-applicable law.
Probably, the words “[…]as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;” in Rule 4(f)(1) FRCP should be more correctly rephrased with “[…]as those allowed by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;” in order to be in line with the jurisprudence of the US Supreme Court.
So, as Rule 4(f)(1) FRCP does not provide the final answer, the plaintiff needs to look at Rule 4(f)(2)(C)(ii) FRCP, which expressly authorizes the use of any form of mail that requires a signed receipt.
Hence, in cases pending before a federal US court where the Hague Service Convention applies and the receiving states permits service by mail, a plaintiff may serve a company or an individual abroad by means of international registered mail by virtue of Rule 4(f)(2)(C)(ii) FRCP (rather than Rule 4(f)(1) FRCP remanding to The Hague Service Convention). Consequently, the FRCP should be amended to avoid further misunderstandings as to the scope of application of the Hague Service Convention by replacing the word authorized with the term allowed at Rule 4(f)(1).

Article 27/A of Law on Civil Registry Services provides an exception to the recognition and enforcement regime under Turkish law. Foreign decisions that shall be subjected to the recognition process envisaged under Article 27/A of the Law on Civil Registry Services are specified as those relating to divorce, annulment or nullity of a marriage or a declaratory action to show the existence or non-existence of a marriage. In this regard, the decisions relating to custody, child maintenance, marital property or compensation shall not be given any effect pursuant this new process under Article 27/A of Law on Civil Registry Services. “Regulation on Registration of Decisions Rendered by Administrative or Judicial Authorities to Civil Registry” (Regulation) further stipulates conditions required for a divorce decision to be recognised pursuant this new process.

For the realisation of the recognition under this process, the foreign decision on the aforementioned subject matters, shall be final and rendered by a duly authorised administrative or judicial authority. Where the foreign divorce decision is manifestly contrary to Turkish public policy, it shall not be recognised. Finally, there shall not be any ongoing legal proceedings or dismissed claims relating to the decision which is subjected to recognition pursuant Article 27/A of the Law on Civil Registry. Where the conditions under Article 27/A are not fulfilled and hence the registration request at the civil registry is denied, recognition proceedings may be initiated before Turkish courts pursuant the Turkish Private International Law and International Civil Procedure Code (PIL Code).

When compared with the recognition and enforcement regime under the PIL Code, two significant differences are particularly noticed. Firstly, through this new process the foreign decision is given an affect outside of the court proceedings, though a direct amendment made at the civil registry provided that the aforementioned conditions are fulfilled. In order to be able to make the amendment regarding their civil status, the parties, their legal representors or attorneys shall apply to the civil registrar either together or separately provided that there shall not be more than 90 days between the separate applications of each party or their representatives.

Secondly, the administrative decisions may also be recognized in Turkey pursuant this process. In principle, pursuant Article 50 of the PIL Code, there needs to be a court decree as a pre-requisite for recognition of a foreign decision and thus, the administrative decisions will not be recognised in Turkey. Indeed, prior to Article 27/A being implemented, foreign divorce decisions rendered by foreign municipalities were refused to be enforced in Turkey. Non-recognition of foreign municipality decisions caused criticism amongst Turkish legal scholars. Whilst this exception regarding recognition of administrative decisions under Article 27/A of the Law on Civil Registry is considered as a positive development certain issues are open for discussion. Amongst the issues that raised doctrinal discussions are the appeal procedure regarding the registration made at the civil registry made pursuant this process and the interpretation of public policy exception by the civil registrar bearing in mind that Turkish statutory sources do not provide a definition for Turkish public policy and that interference of public policy requires a complex legal reasoning. Finally, the legal nature of the process under Article 27/A is also argued as to whether it may be considered as a recognition decision in its technical sense.

A series of webinars devoted to the Conventions of the Hague Conference on Private International Law will be offered from 16 to 18 September by the the Supreme Court of the Philippines, the Philippine Judicial Academy and the Department of Foreign Affairs of the Philippines.

Speakers include Christophe Bernasconi, Secretary General of the Hague Conference, Philippe Lortie, First Secretary of the Conference, and Ning Zhao, Senior Legal Officer at the Conference’s Permanent Bureau.

See here for more information available.

Telenor Magyarország
Liberté d'établissement
La Cour interprète, pour la première fois, le règlement de l’Union consacrant la « neutralité d’Internet »

The editorial team in charge of the EAPIL blog is delighted to announce that a new editor has joined the team.

Her name is Anna Wysocka-Bar, and she teaches Private International Law at the Jagiellonian University in Kraków.

Her first post has just been published.

Welcome on board, Anna!

The Polish periodical Problemy Współczesnego Prawa Międzynarodowego, Europejskiego i Porównawczego (Review of International, European and Comparative Law – PWPM) launched an international competition for original papers in the field of international law, European law or comparative law, written in English by scholars aged 35 or less.

The deadline for submissions is 15 November 2020.

The winning papers will be published on the journal  and the authors of the two best articles will receive cash prizes of 500 and 300 Euros, respectively. 

On a more general note, the journal is currently calling for paper from any scholars to be published in  volume XVIII (2020), which will be out in Spring 2021. Here, again, the deadline is 15 November 2020. 

PWPM is one of the leading legal periodicals in Poland. It is a peer-reviewed, open-access academic journal based at the Institute of European Studies of the Jagiellonian University in Kraków. While focuses on international, European and comparative law, the journal also covers other areas of law, including private international law.

More details on the competition and the journal are available here.

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