The Hague Convention

The Seventh Session of the Hague Conference, comprised of 15 European countries and Japan, adopted the Statute of the Hague Conference on Private International Law in 1951. It went into effect July 15, 1955. The lofty purpose of the Hague conference “is to work for the progressive unification of the rules of private international law.” More than 50 years of diplomatic cooperation have led to 40 Conventions with subjects not only in international civil procedure, but also child adoption, family law, and legalization of documents.

One of the best known Conventions or Treaties promulgated by the Hague Conference is the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, (“Hague Service Convention”), a multilateral treaty formulated in 1964 by the Tenth Session of the Hague Conference. The Hague Service Convention establishes the procedures and methods by which litigants must effect service in a foreign country (“Destination State”). In 1988 Justice Sandra Day O’Connor, writing for the US Supreme Court held that use of the Hague Convention “is mandatory in all cases to which it applies.” Volkswagen Aktiengesellschaft v. Schlunk, 486 US 694, 705 (1988).

The Treaty is designed to make sure foreign defendants are given notice and the right to defend in a timely fashion. It describes who may request service, how the defendant is to be served, and what the proof of service should look like.

The Hague Service Convention does not:

  1. Guarantee service will be effected. In most countries, if the given address for service is improper, the judicial authorities will simply return to the applicant the documents along with a Hague Certificate of non-service.  Except for a few European countries and random helpful bureaucrats scattered abroad (they exist!), the foreign authorities will not attempt to locate the defendant.
  2. Impact in any way how much time the defendant has to answer. The Summons/Citation/Writ is the only document that controls by when the defendant must answer.
  3. Apply where an address is unknown. The very first Article of the Hague Convention reads, “This Convention shall not apply where the address of the person to be served with the document is not known.” Article 1 does not necessarily mean litigants can jump straight to service by publication if the defendant’s address is unknown. Some jurisdictions require litigants to try diligently to locate a defendant’s address. We can help – we have agents around the world who are able to investigate and confirm residential and corporate addresses.

The International Court of Justice, the Peace Palace, located in the Hague, the Netherlands. Image courtesy of Karina Shreefer.

Conceived in the knowledge that the framework of the Hague Convention would have to accommodate a wide variety of judicial systems and government bureaucracies around the world, the Treaty offers flexibility by way of its Declarations and Reservations. Declarations and Reservations modify or exclude a provision of the Treaty. For example, even though the Treaty permits service directly through a private judicial officer, member countries may declare opposition to this option, just as Germany, China and many other countries have done.

When a member country accedes to or ratifies the Hague Convention, it must lodge its Declarations with the Hague Conference. In addition to other issues, Hague Service Convention Declarations deal with:

  • Which methods of service are available in its territory
  • Who qualifies as “competent” to serve under Article 10 of the Hague Convention.
  • Who is authorized to request service abroad under Article 5 of the Hague Convention.
  • When and if litigants can seek default judgments in their forum courts.

To understand how the Treaty functions in each country, it is therefore mandatory to study that country’s Declarations to the Hague Service Convention. Or call Shreefer Law at 913.933.6222 for advice and assistance.