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United States: Department of Justice Instructions for Serving Foreign Judicial Documents in the U.S. and Processing Requests for Serving American Judicial Documents Abroad*

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[Reproduced from the text provided to International Legal Materials by the U.S. Department of Justice. The page numbers in the table of contents have been changed to indicate the I.L.M. pages.

[The Convention on the Service Abroad of Judicial and Extra-judicial Documents appeared originally at 4 I.L.M. 341 (1965). The Convention, together with reservations and declarations, is reproduced in Appendix A of the Department of Justice instructions at I.L.M. page 1339.

[United States Public Law 88-619 of October 3, 1964, to improve judicial procedures for serving documents, obtaining evidence, and proving documents in litigation with international aspects appears at 3 I.L.M. 1081 (1964).]

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page 1333 note 1 Barbados, Belgium, Botswana, Denmark, Egypt (U.A.R.), Fiji, Finland, France, Israel, Japan, Luxembourg, Malawi, Netherlands (Holland), Norway, Portugal, Sweden, Turkey, United Kingdom (extended to: Antigua; Bermuda; British Honduras; British Solomon Islands Protectorate; British Virgin Islands; Cayman Islands; Central and Southern Line Islands; Falkland Islands and Dependencies; Gibraltar; Gilbert and Ellice Islands Colony; Guernsey; Hong Kong; Isle of Man; Jersey; Montserrat; Pitcarin; St. Helena and Dependencies; St. Lucia; St. Vincent; Seychelles; and the Turks and Caicos Islands) and the United States. (Note: Eight other countries, which are signatories to the Convention, have not yet ratified it: Austria, Federal Republic of Germany, Greece, Italy, Ireland, Spain, Switzerland and Yugoslavia. The Convention will not bind these countries until they formally ratify it.)

page 1333 note 2 The Convention is also conveniently reprinted as an annotation to 28 U.S.C.A., Rule-4(i), F.R. Civ.P.; and in Volume VI, Martindale-Hubbell, Law Directory, 4285 (1976).

page 1334 note 3 E.g., Section 308(4) of the New York Practice Laws and Rules provides that “where service under paragraphs one [personal delivery] and two [delivery to a person of suitable age at the usual dwelling place, etc.], cannot be made with due diligence, [personal service may be made] by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by mailing the summons to such person at his last known residence.”

page 1336 note 4 In actions pending in State courts, State law designates the person authorized to effect service. If state law authorizes someone other than an official to serve process, a reference to the statutory authority should appear prominently on the “Request”, e.g., “Authorized to serve judicial process under Section 00 of the XYZ Code of Civil Procedure.” If such information does not appear, the foreign authority may return the request unexecuted, for failure to comply with Article 3 of the Convention which provides that the service documents shall be transmitted by the “authority or judicial officer competent under the law of the state in which the documents originate.” In most foreign countries, only designated officials may serve process and they may therefore be reluctant to serve documents under the Convention which originate with private persons or attorneys.

page 1336 note 5 In addition, a list of the various “Central Authorities”, together with the “reservations” and “declarations” made under the Convention by each country, is printed in the Annotation to Rule 4(i), F.R.Civ.P., 28 U.S.C.A., Pocket Part.

page 1336 note 6 Since most countries view service of process in terms of providing effective notice, and since notice will not be effective where the person served cannot understand the documents because they are written in a foreign language, we strongly recommend that - unless it is known that the recipient is familiar with the English language - the documents to be served be accompanied by translations. At the very least, the documents to be served should be accompanied by a translated summary of their contents so that the recipient is placed on notice concerning such essential elements as the origin and nature of the documents, time limits for entering an appearance or making a reply, etc. Cf., “Notice of suit” against a foreign state or political subdivision, agency or instrumentality thereof under the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1608(a) and (b); 42 Fed. Reg. 6367 (1977) (to be codified in 22 C F R § 93-2).

page 1337 note 7 Some countries require an authentication of the seal of the court to satisfy their courts of the authenticity of a foreign letter of request. (For a similar requirement in our domestic law, see Rules 44(a)(2), F.R.Civ.P., and 902C3), F.R. Ev.)

page 1338 note 8 The application for the issuance of the letter of request, or any memorandum of points and authorities in support thereof should not be attached for transmission abroad. Such extraneous papers will only serve to create confusion and delay.

page 1338 note 9 28 U.S.C. 1783(a) empowers federal courts to order the issuance of a subpoena requiring the appearance as a witness before it, or before a person or body designated by it [viz., a “Master”, or a grand jury], of a national or resident of the United States who is in a foreign country, or requiring the production of a specified document or other thing by him, if the court finds that particular testimony or the production of the document or other thing by him is necessary in the interest of justice, and, in other than a criminal proceeding, if the Court finds in addition, that it is not possible to obtain his testimony in admissible form without his personal appearance or to obtain the production of the document or other thing in any other manner. [Emphasis added]

page 1338 note 10 Ignorance or disregard of this salutary rule has led to a damage suit abroad for malicious trespass against an Assistant U.S. Attorney who served a subpoena at a private residence in the Bahamas, and to a criminal indictment of an SEC staff attorney who served an administrative subpoena in France.

page 1338 note 11 Information regarding computation and payment of travel and attendance expenses should be obtained from the Office of Management and Finance (Special Authorizations, Management and Budget Section, Operations Support Staff; FTS 739-3547).

page 1354 note 1 All documents to be served must be translated into Swedish.

page 1355 note 2 Alternate Designation:

Her Majesty’s Principal Secretary

of State for Foreign Affairs

Ministry for Foreign Affairs

London, England

page 1355 note 3 Extended to:

* [Reproduced from the text provided to International Legal Materials by the U.S. Department of Justice. The page numbers in the table of contents have been changed to indicate the I.L.M. pages.

[The Convention on the Service Abroad of Judicial and Extra-judicial Documents appeared originally at 4 I.L.M. 341 (1965). The Convention, together with reservations and declarations, is reproduced in Appendix A of the Department of Justice instructions at I.L.M. page 1339.

[United States Public Law 88-619 of October 3, 1964, to improve judicial procedures for serving documents, obtaining evidence, and proving documents in litigation with international aspects appears at 3 I.L.M. 1081 (1964).]

United States: Department of Justice Instructions for Serving Foreign Judicial Documents in the U.S. and Processing Requests for Serving American Judicial Documents Abroad*

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