Cross-Border Litigation
and Dispute Resolution
Hague Service Convention
Hague Evidence Convention
Recognition of Foreign Judgments
Birgit Kurtz
1 April 2014
..
1. Hague Service Convention
2. Hague Evidence Convention
3. Recognition of Foreign Judgments
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Hague Service Convention
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Hague Service Convention
Commence lawsuit:
file summons and complaint with court – then serve documents on defendant
How to serve defendant located abroad?
» Fed. R. Civ. P. 4(h)(2) corporation, partnership or association
» Fed. R. Civ. P. 4(f)(1) individual
“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”
» www.hcch.net
– Text
– List of contracting states
– Reservations, declarations and notifications
» Also reprinted: after Fed. R. Civ. P. 4
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Hague Service Convention
» When does Convention apply?
 forum country and country where person or company to be served is
located must be signatories
 “civil and commercial matters”
 “occasion to transmit a judicial or extrajudicial document for service
abroad”
But:
 transient / tag jurisdiction (Burnham case, U.S. S.Ct. 1990)
 substituted service (Schlunk case, U.S. S.Ct. 1988)
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Hague Service Convention
Procedure
 3 forms
 translations (if required by receiving country)
 send to Central Authority of receiving country
 Central Authority will forward to local authority for proper
service under local law
 certificate of service is sent back
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Hague Service Convention
» If not signatory to treaty (e.g., Austria):
Fed. R. Civ. P. 4(f)(2)
» Service on Foreign Sovereign
28 U.S.C. § 1608(a) state or political subdivision
28 U.S.C. § 1608(b) agency or instrumentality
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Hague Service Convention
» Attack improper service:
 Fed. R. Civ. P. 12(b)(5)
motion to dismiss for insufficient service of process
 CPLR 3211(a)(8)
motion to dismiss for lack of personal jurisdiction
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Hague Evidence Convention
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Hague Evidence Convention
» 28 U.S.C. § 1781
Transmittal of letter rogatory or request
(a) Via State Department
(b) Directly by court
» www.hcch.net
– Text
– List of contracting states
– Reservations, declarations and notifications
» Also reprinted: after 28 U.S.C. § 1781
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Hague Evidence Convention
When does it apply?
 forum country and country where evidence / witness
is located must be signatories
 “civil and commercial matters”
 “for use in judicial proceedings, commenced or
contemplated”
 request “to obtain evidence, or to perform some other
judicial act”
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Hague Evidence Convention
Letter of Request
 Names / addresses of requesting & receiving authorities
 Names / addresses of all parties and their counsel
 Short description of nature of proceeding
 Evidence to be obtained
 Any special instructions
 Check language requirement
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Hague Evidence Convention
Art. 23:
“A Contracting State may at the time of
signature, ratification or accession, declare that
it will not execute Letters of Request issued for
the purpose of obtaining pre-trial discovery of
documents as known in Common Law
countries.”
 Most signatory countries have made Art. 23
declarations
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Hague Evidence Convention
Societe Nationale case (U.S. S.Ct. 1987)
Hague Evidence Convention is not the
exclusive means for obtaining documents and
information abroad
International Comity analysis:
1. Particular facts of case
2. Sovereign interests involved
3. Likelihood that resort to Convention will be an
effective discovery device
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Hague Evidence Convention
Societe Nationale case (cont.)
“American courts, in supervising pretrial proceedings,
should exercise special vigilance to protect foreign
litigants from the danger that unnecessary, or unduly
burdensome, discovery may place them in a
disadvantageous position. Judicial supervision of
discovery should always seek to minimize its costs and
inconvenience and to prevent improper uses of
discovery requests. When it is necessary to seek
evidence abroad, however, the district court must
supervise pretrial proceedings particularly closely to
prevent discovery abuses.”
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Hague Evidence Convention
If not signatory:
 28 U.S.C. § 1781 Letters Rogatory
 Inter-American Convention on Letters Rogatory
 Other, bilateral or multilateral treaties?
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Hague Evidence Convention
Conflict with foreign laws, e.g.,
 Blocking statutes
 Privileges
 EU Data Privacy
* EU Data Protection Directive 94/46/EC
* 158 WP – EU working paper (2-11-09)
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Hague Evidence Convention
Volkswagen case (Texas S.Ct. 1995)
Restatement (3d) of Foreign Relations – 5 factors:
1. importance to the investigation or litigation of the documents or other
information requested;
2. degree of specificity of the request;
3. whether the information originated in the U.S.;
4. availability of alternative means of securing the information; and
5. extent to which noncompliance with the request would undermine important
interests of the U.S., or compliance with the request would undermine
important interests of the state or country where the information is located.
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Hague Evidence Convention
28 U.S.C. § 1782
Assistance to foreign and international tribunals and to
litigants before such tribunals
» Intel v. AMD (U.S. S.Ct. 2004)
4 Elements:
1. target of discovery request must “reside or [be] found” in district
2. purpose of discovery must be “for use in a proceeding”
3. proceeding must be “in a foreign or international tribunal”
4. application by foreign or international tribunal or by “interested person”
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Hague Evidence Convention
State Department website
 country-specific information re. judicial assistance abroad
www.travel.state.gov
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Recognition of Foreign Judgments
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Recognition of Foreign Judgments
Hague Convention on Choice of Court Agreements (“COCA”)
Not yet in force!
www.hcch.net
• Text
• List of contracting states
• Declarations, etc.
 Art. 5(2): chosen court must hear case
 Art. 6: court not chosen has no jurisdiction
 Art. 8: recognition and enforcement
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Recognition of Foreign Judgments
Foreign country money judgment in U.S.
State law: Uniform Act or International Comity
New York: CPLR Art. 53
Generally recognized except, e.g.,
 inadequate legal system
 no jurisdiction
 untimely service
 obtained by fraud
 repugnant to public policy
 conflicts with another judgment
 contrary to forum selection clause
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Recognition of Foreign Judgments
U.S. Judgment Abroad
→ apply local law
E.g., Germany: ZPO § 328
No recognition if:
 No jurisdiction
 Defective or untimely service
 Conflicts with another judgment
 Ordre public
 No reciprocity
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Recognition of Foreign Arbitral Awards
 New York Convention
» www.uncitral.org
• Text
• Parties
• Notes
»
»
»
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FAA 9 U.S.C. §§ 201 et seq.
Recognize written arbitration agreements
Compel arbitration
Recognize arbitral awards – limited exceptions
 Panama Convention
» FAA 9 U.S.C. §§ 301 et seq.
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Thank you for your attention!
Comments and questions:
Birgit Kurtz
Crowell & Moring LLP
590 Madison Avenue, 20th floor
New York, NY 10022
Tel. +1-212-803-4016
Fax +1-212-223-4134
BKurtz@crowell.com
www.crowell.com
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