| International
Service of Process Liability in Europe By Joseph A. de LA CUETARA Attorney at law in Europe If you are a Process Server know this before engaging your liability for a fist full of dollars. There are two main methods to choose from when serving documents in Southern Western European Civil Law Countries, both are proposed by the Hague Convention and have the same legal value, one is less reliable than the other, but the legal effects of both methods are the same. One, a public service of the "Judicial Administration" called "Centralized" because it uses the "Central Authority" or government to transmit the documents. A intergovernmental free exchange method submitted to constrains. Two, by the use of a private service provider, alternative method, called "decentralized", it uses an "International personal private process server" and can also be completed under the Hague Convention. Paid, and therefore submitted to quality. International Service of Process, by either method, Centralized or alternative decentralized, is ruled by two different legal systems, linked by the treaty of the Hague. The main law, called « Lex Fori, » is the law of the country where the documents are issue and where initial judgment's take place:: "Lex fori forum". These rules, govern service of process validity and recognition, but not necessarily its effects in the jurisdiction where documents where served. Recognition and effects depend on internal laws of civil procedure and "exequatur". Nevertheless, It corresponds to each "lex fori" and their "foum" to determine their "acceptable service" requirements for the service of process abroad, but keeping in mind that: The act of notification is performed under a different legal system with different exigences, those of a sovereign state. The "lex fori forum", must respect the law of procedure of where the documents are served: Specially for those laws considered as "imperative or necessary", as well as those related to "Confidentiality", "Privacy" and "Image" under the "felony and misdemeanor" umbrella. These "legal obligations" exist even if the effects of the judgment will remain at the "lex fori forum" as could happen with a local "divorce", indeed, depending on the "litis causae". In effect, a "Lex fori forum" can not accept in procedure a "foreign illegal procedural actuation" that violates foreign laws. Because of this, you must act with due diligence and in harmony with local codes of procedure. Or, your liability will be engaged in a "Criminal or Civil" manner, if not "quashed". The Centralized method seems to be the most appropriate and reliable but is not, is not mandatory, as explained by the Hague Convention It is not therefore the only method available to serve documents abroad as is the general believe or as explained by many "translation companies", or even the U.S. Department of State in their web pages. There are, nevertheless, a series of alternatives channels more reliable as contemplated in the convention and which have been well accepted by the signatories countries. They present and have more advantages than the centralized. This character of "not mandatory" is inspired by "International Civil Procedural Liberty", as expected by the Hague Convention of 1954, plus the flexibility of the Conventions of 1965. Both, have opened the door to a more efficient and fast way of serving, resulting in a gain of time and money by cutting "Red Tape", reducing obstacles, the cost of translation and eliminating the risky exam of legality prior to service or the choice given of defendant to refuse service if documents are translated. "Liberty to notify" in the "Convention of Civil Procedure" has been wrongly understood by many "Common law Attorneys" because the "mechanism of service" applied and employed unconsciously has been in violation of internal laws of Procedure of Civil Law Countries. They have used as a reflect the same server as for their state notifications. This results, in general, in a future impossibility of judgment enforcing, Non exequatur or a simple "quash". Common law countries "mechanism of notification" can not be impose or use to serve in Civil Law Countries", they lack the required guarantees, such as of confidentiality, Privacy, Reliability, Integrity and many other aspects of the special protection of defendant's rights and obligations of Civil Law Codes. These rights and obligations are proposed since the first "Roman Napoleonic Codes". The philosophy behind is that the "concept" of "trust" is different in each lega system, No Governmental Identification Card exist in common law, there is no central land registry, Notaries are simple individuals...In Civil Law everything is suspicious and therefore surrounded by "guarantees" enforced by the state.. We provide a system for International Service of Process, a third method, healing the disadvantages of the Hague Conference's Centralized method and critics over the abuses in the use and application of the decentralized method. Indeed, we provide a non complicated service of process legal, reliable and fast. We call it a "Hybrid system of Process". Our service of process research to arrive to this system is based on our qualifications as European Attorneys at Law and therefore our knowledge of Civil law in Spain, France, Italy and Portugal. Indeed, more than a method, we propose a "system of service" that applies the principles of the Hague Convention combined to each jurisdiction and their laws of procedure, in order to obtain the maximum legality and protection of litigants. This is done gradually and by steps. Our system can only be applied in SWE Roman-Napoleonic Civil law countries and should not be generalized to other Civil Law Countries inside or outside Europe. The choice of method depends on many practical and cultural legal aspects, reliability, cost, time1 and of future desired or undesired effects on your liability.. On the other hand, our "Hybrid system of international personal private service of process" combines, not only "methods", but also the different "smaller" channels or options, by steps, to take the maximum advantages offered and obtain the best legal guarantees: We consider it as "Quash of Service" or "Liability" proof, please consult us so we can discuss your case service in detail2. The Hague Convention Centralize method has many "legal lacunae" or serious defects: As a free governmental service that does not uses a "Fast Independent Private Process Server.", as is requested by many courts and litigants. Unlike our service, it obliges to costly translation and the contents of summons can be exam for legality before they can be served. Otherwise, the defendant can refuse service, without possible appeal, delaying your work. The translation itself can be easily "questioned". In Europe, courts only accept translations from translators that are "Certified by them" and these are listed each year by the different court of appeal. Therefore, better is, not to translate the documents. On the other hand, an essential element on the "Centralized" is the requirement of an exact address of addressee. A problem, because there is no possibility of "locating a defendant". If a defendant changes address or the address is not correct , service is paralyzed and returned, waisting your time and money. The requirement of "Personal Service" is understood in a different way and in practice, service is completed as what is known in Common law as "Substitute service". Remark therefore that the use of "insistence and perseverance" is not possible by the "Centralized method". These above reasons explain why, most Common Law Attorneys have used patches to remove obsta-cles: The use of their local process server, their friendly translation company or their neighborhood's Private Investigators. Unfortunately for all of them, without knowing that by doing this, in disrespect for foreign law, they are liable of "fraud to international law", "Defamation", .... and to complete the apocalypse, the judgment obtained will not pass "Exequatur".. No doubt then that ignoring, the Euro-pean right of image and privacy amongst other felonies incurred has undesired consequences. Jurisprudence has considered services completed the "American way" as irregular and have engage the liability of the legal intruders.. The "Lex fori Forum" and the "Plaintiff" are obliged to respect the legal requirements of the European jurisdiction where documents will be served. The objective of service of process abroad is transmitting a notification to a defendant, inform him of a "cause" in which he is part and what are his rights and obligations. These rights must be respected and protected by the rules of the legal art and in order to avoid "Procedural defenseless".. The Hague Convention canalizes these notifications taking in consideration internal law, imposes the protection to the defendant rights and obligations as well as those of the plaintiff. The "Lex fori Forum". in the origin country or in the destination country must determine, not if the notification was done but if it was "properly done". In "Civil Law Countries". Service of Process, for internal courts or for foreign, is considered a manifestation of "Jurisdictional Power" In Europe. the monopoly of legal representation, actuation and consultation, has been given traditionally, since middle ages, to the different "Legal Corpora-tions" or legal professional groups. Unlike common law countries where "Private detectives", "Trans-lators" or almost anyone over a certain age and capable can perform these "legal contents acts", in Southern Western Europe only legal professionals can serve. Logically explained, if internal laws of Civil Procedure in Civil Law Countries establishes for internal service of process a procedure, that requires guarantees given only by the use of these recognized "liberal professionals" How come for International Service of Process you can expect to use anyone, instead of a "Legal professional" thought to do so! Would you use a non-certified Process Server in your State to serve documents in another state where he is neither certified as a Process Server? When in Rome, do as the Romans! The need of legal notice, information and the form of the notification itself are present at all moments and can become an serious issue. Nonetheless, all kinds of service must follow these internal rules of procedure adding under certain circumstances a risk of non completion or irregular competition. In Europe a Court notification must be preceded with an explanation on how to respond and the available options to defendant. The Hague Convention obliges service to be accepted by defendant voluntarily and knowingly like a "bilateral obligation in Civil Law" (See Article 5 (b) alinea of the Hague Convention). Therefore, if the defendant is not "capable to understand" what he is receiving, the service has a "Legal Vice" and is "Voidable" and the "Defendant can refuse it "Void". If he is not advised by an Attorney at law and by Legal Notice, he is in "Procedural defenseless".and therefore service of process is "Void" and unenforceable. The Hague Convention compels to the "voluntary acceptance".of service.. Indeed many courts have refuse to accept in exequatur a judgment having an irregular service of process because: the lack of trust in the qualifications and methods employed by the Process Server; "Service of process is not throwing summons over the fence", : "you can not service documents on an inexistent address, but the affidavit of the server says documents were served!" ... Other "smaller" channels of service of process exist and have different legal value and effects. Service by a "Private Individual or Currier, UPS, Fedex, DHL, Postal, fax, internet (email or messenger), as confirmed by different jurisprudence, they lack of "guarantees of delivery of contents" they are mostly considered as "evidence of an address",.We use these residual channels to reinforce our "Hybrid System of International Private Service of Process". And verify an address before personal service.. Unscrupulous Service of Process Providers in common law countries, intruders in Civil Law Countries. intermediaries in the International Service of Process, use and recommend mostly the "Central Authority" because their profit is generated by the cost of "shaky" translations of documents and eventually the "locate Investigation" service. Often, service providers in common law countries promote that they know a lawyer in Europe when they dare to propose the "Decentralized method" and contaminating your file with defamation.. Another extra income comes from the suggested "APOSTILL"3 or the use of a local Notary Public. These are unnecessary expenses and they both require a costly translation. Some "Investigators" intruder servers will even propose you an "affidavit" indicating the "Status of service" for a couple of dollars, Indeed, you will be charge very cheap for a free governmental Service of Process, but your "needed cost" will "surprime" and surprise you. It is a shame that Justice in Common law countries procedures often accepts for international service of process persons that are not even certified "Process Servers" in their own jurisdiction, employing anyone for international service is a disregard on justice and disrespect for International law. In "Civil law Countries", it is considered that "Legal Guarantees, are only given to and are given by "registered and insured legal professionals, recognized and controlled by the governments and grouped in special associations or corporations submitted to ethics. The law and confirmed Jurisprudence protect's the "defendant's rights" against poor « qualities and qualifications » of a "dummy" server. The principle is, the "Protection of the rights and obligations of litigants" by due diligence. We propose ourselves as expert witness over any dispute related to an international service of process completed in Southern Western European Jurisdictions. Please be aware, I accuse, and I insist:: Translations by " Translators", that are not "Certified" by the "Local Appellate or Superior Court" are useless, just like the Apostil or the use of local Notary Public. . Service. The use of a non registered "Attorneys at Law" in any jurisdiction of the European Union for acts reserved to the legal profession causes "contamination of your case", engaging your liability. "Protecting the rights of litigants", is not possible when using a "Non Certified translation company to service or as intermediary", a "Private detective", an "American Process Server" or simply anyone. Summarizing: The two main methods have the same legal value within the Hague Convention and no "Hierarchy"exist amongst them, one is bad and the other is worse, they are equally poor, but combining them is possible and results to be more reliable, you obtain all legal possible guarantees: Our Hybrid system; An Independent Private Personal Service of Process by steps and advise eliminates the "problematic"and fills the "Lacunae" of the Hague Convention4 methods Our hybrid system provides that the rights of the plaintiff and defendant are guarantee and protected by registered and insured multilingual Attorney at Law in the Civil law Country of service.. Documents are delivered personally in all confidentiality by a legal professional who will advise, in the language of the defendant, giving complete legal notice and explaining how to proceed. All services are completed with mandatory secrecy and neutrality, professionalism and respect for internal laws of Civil procedure. The defendant does not have an option to refuse service, or claim to be "unprotected" there is no "a priori" exam of contents or delay, no translation's cost or apostils, no promises of service but a "Jurisdiction act performed according to local law by a qualified legal professional" Our price list, herewith included, reflect the need of taking in consideration many legal and practical aspects of the service of process in Southern Western European Civil Law Countries specially to avoid incidents and if challenged, appellate "quash" proceeding". Please fill out and send us the "quotation form" included, if you have specific requirements and can not adapt to our price proposition, we can always propose you a more adapted fee to your specific requirements. We hope we will count with you amongst our clients, please visit our website for more copies of forms, and do not hesitate to contact us by telephone, from U.S. dial 011 33 4 93 16 27 38 or by email us to info@process-servers.eu if you have any questions or need written legal advise. We are eager to serve our foreign colleagues and will be happy to send you our professional references. Thanking you in advance for your time and consideration, I am, Joseph A. de LA CUETARA Attorney at law in EuropeJoseph A. de LA CUETARA,JD-MBA Attorney at Law/Abogado/Avocat Palais Alphonse Karr 2, Rue Rossini Nice 06000 France Tel-Fax 33 4 93 16 27 38 delacuetaraj@yahoo.es International Private Service of Process do's and don't The Ideal international service of process in Southern Western European Civil law Countries can only be completed in a "Plaintiff's Attorney to Attorney Server to Defendant" direct environment, having the following characteristics: 1.Method Confidentiality: obtained only by Attorney secrecy obligation 2.Respect for the local Code's of Civil Procedure and Civil Codes 3.Use of Judicial Officer when required by local law for internal service 4.Due diligence of name and address of addressee defendant 5.Voluntary acceptance of Service by defendant 6.Offer of legal option, advise and Court Notice to defendant 7.Diplomatic legalization of the affidavit of Service 8.Summons and complaints pages numbered It is unnecessary to; A. Use the Central Authority B. Translate the documents C. Apostil the affidavit of Service D. Use a local Notary Public E. Prior Legal compliance exam Avoid to use: a. Process Server of your country or from your country b. Private Investigators, Courier, Intermediaries or detectives c. Mail, email or fax, which are only evidence of address d. Non Certified or Not listed Translators by the local Court. e. A non inscribed or non barrister Attorney at Law in Europe f. People or business locator service Thanking you in advance for your time and consideration, I am, Joseph A. de LA CUETARA Attorney at law in Europe |