Introduction to the Hague Service Convention
The Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 1965 (also known as the Hague Service Convention) is an international treaty that sets out the rules for serving judicial and extrajudicial documents abroad in civil or commercial matters. It was adopted by the Hague Conference on Private International Law (an international organization that works to harmonize and improve the rules of private international law) on November 15, 1965, and entered into force on March 5, 1969.
The Hague Service Convention attempts to ensure that judicial and extrajudicial documents are conveyed between countries efficiently and reliably, and that they are served in conformity with the laws of the country where they are to be served. It applies to all civil, commercial, labour, and administrative legal actions.
Over 90 nations have accepted the Hague Service Convention, including the United States, Canada, Australia, and the majority of European Union members. It standardizes the service of documents overseas and eliminates the necessity for diplomatic channels or consular officers to send documents between nations.
A court in Ontario cannot issue a court order, including for substituted service, if the Hague Service Convention applies, unless reasonable efforts have been made to serve papers in conformity with the Convention (temporary orders in urgent situations are an exception). Therefore, all lawyers must have a comprehensive understanding of when the Hague service rules apply and how to implement them.
For example, prior to the Wang v. Lin (“Wang”) case in 2015, the Hague Service Convention provisions were not applied in Ontario family court matters. However, the Divisional Court reversed Wang in 2016 holding that the Hague Service Convention provided that it applied in all cases, in civil or commercial matters, where there was occasion to transmit a judicial or extrajudicial document for service abroad. The matters described in Rule 1(2) of the Family Law Rules were civil matters and, furthermore, the countries that signed the Hague Service Convention intended that it should apply to family law matters. The facts underlying the matter could not give rise to an access to justice exception to the Hague Service Convention, even if one existed.
A party intending to serve documents overseas must first attempt to do so through the central authority of the nation where the documents are to be served, according the Hague Service Convention. According to the laws of the country, the central authority is responsible for transmitting the documents to the proper court or individual. The Convention allows for alternative methods of service if the central authority is unable to serve the documents, including service by mail, service through a judicial officer or other authorized person, or service through the diplomatic or consular agents of the country where the documents are to be served.
Before any court orders are made, it is essential to confirm that court documents have been properly served. If an order is made without adhering to the proper foreign service regulations, the order may be contested on the grounds that it was made without jurisdiction. This can lead to expensive and time-consuming litigation that diverts attention from the underlying issues at hand.
Procedures for Service in States That Are Parties to the Convention and Those That Are Not
The Hague Service Convention divides international service of documents into two regimes: one for non-contracting states and one for contracting states. In non-contracting states, the previous method of service still applies, and a person may be served in a way that is specified by the rules for service in the province or in a way that is provided by the law of the jurisdiction where service is made, as long as the method of service would reasonably be expected to come to the attention of the person being served. For contracting states, there are two different ways to serve documents, depending on whether the state is a “objecting state” or a “non-objecting state.” When the Hague Service Convention is applicable, its requirements are obligatory and its methods of service are exclusive. Exceptions in the forum’s rules of procedure should not be used to validate service that does not fulfill these requirements.
Contracting States That Object to Service and Those That Do Not
If the state is an objecting state, documents must be served through the Central Authority designated for this purpose by the contracting state. No private service is permitted. However, in objecting states that have made separate declarations under Article 8, diplomatic or consular agents may perform service on nationals of the state performing the service. The website of the Hague Conference on Private International Law, linked above, contains additional information regarding these objections and declarations. A state may only refuse to perform service if doing so would compromise its sovereignty and security.
If the state is a non-objecting state, documents may be served in a manner approved by Article 10 of the Convention and by the rules for service of the state from which the documents were sent, or in a manner permitted by the legislation of the location where service is effected, provided that the method of serving is likely to attract the notice of the person being served. Article 10 permits service through “judicial officers, officials or other competent persons of the State of destination,” or by mail. In non-objecting states such as the United States and the United Kingdom, for instance, private means of service may continue to be utilized as they were prior to the Convention.
Certain forms must be utilized when service is carried out by a Central Authority. These forms comprise a summary of the document to be served, together with the request and certificate of service. In addition, the Hague Convention recommends that any request be accompanied by a document containing a warning and summary of proceedings. According to Article 7, paperwork may be written in either French or English, but the Central Authority may require a translation into the official language or one of the official languages of the state in which the document is to be served.