Georgetown, GINA, July 15, 2016
Day Two of the Hague Convention Conference being hosted by Guyana in collaboration with UNICEF and Hague Conference on Private International Law began with presentations centered on Hague’s Service Convention.
Participants heard that Service Convention provides for the channels of transmission to be used when a judicial or extrajudicial document is to be transmitted from one State party to the Convention, to another State party for Service in the latter.
The Hague Service Convention primarily deals with the transmission of documents; it does not address or comprise substantive rules relating to the actual service process.
Daniel Klimow, Attorney Adviser, Office of Legal Affairs, Overseas Citizens Services, Bureau of Consular Affairs, US Department of State, in making his presentation, informed participants how the US implements the convention.
He explained that from the US’ perspective, it applies for civil proceedings, particularly cases that deal with public law. The US is open to service process which means that Federal Express and postal services can be utilised to effect service. “There’s not a lot of difference to the service process in the US, to a state who is not a contracting party to the convention…the convention lays out their rules and provides a point of contact for service and contact request… we find the convention helpful even for non-contracting members to effect service within the US,” Klimow explained.
Jewel Major, Office of the Attorney General and Ministry of Legal Affairs, the Bahamas, Central Authority for the Hague 1965 Service Convention, said the convention is quick and cuts down time on the beaucracy to getting the person served, thereby simplifying the process. She also added that the Authority charges a flat service fee of $80, which can increase if the service is not executed on the first occasion officers visit the given address.
“From 2006-2016, and during that time, we had 753 requests- 2006- 103, 2010 84, 2009 82, as of June, 35 requests for service. The stats range from a total of 39 countries including Brazil, Norway, Thailand, and Ukraine. The top eight requests came from US, Italy, Russia, France, Switzerland, Greece, Canada and Netherlands. Seven hundred (700) were affected, 42 were not effected because the address given did not locate the person while 11 were not in compliance,” Major explained.
She added the top most frequent cases utilising this service relate to those of divorce, child support and law suit proceedings.
Ryan Johnson, Attorney General and Ministry of Legal Affairs, Antigua and Barbuda, Central Authority for the Hague 1965 Service Convention, informed participants how the Convention is implemented in his country. Johnson also said his country has deployed the use of ICT to the extent that a website is established which is dedicated to giving information. The website contains service requested, the status of the service and can be accessed in other languages.
Secretary General on the Hague Conference on Private International Law, Dr. Christophe Bernasconi, said the actual service is left to the member country to apply the best method, it does not seek to impose on domestic laws but rather, to remove the barriers to service that may exist.
Participants were given an opportunity to ask questions to clarify areas of importance.
One question posed sought clarity on how to integrate Service Convention into Civil Procedure Rules of the High Court. Honourable Major from the Central Authority in Bahamas explained that the court must be satisfied that the letter of service actually came to the attention of the person being served.
“If that obligation is there domestically, it doesn’t interfere, the domestic state receiving an official request will seek to impose its own standards in effecting that service,” Major explained.
Dr. Bernasconi explained that the provisions of the Service Convention are non-mandatory which means that there needs to be a triggering action from the domestic law of the requesting state before the Convention is applied. In other words, the convention does not dictate what action must be taken to alter domestic laws in regard to service, but rather provides a framework for a swifter channel of service.
“If you have a catalogue of channels at your disposal going through either one of the channels or the central authority…only if one of this fails and you would have done whatever is possible and it doesn’t work you can go back to your judge and say you cannot reach this person then rely on the substituted form of service in the domestic jurisdiction, which in some instances may cater for a newspaper advertisement,” Dr Bernasconi explained.
Lorraine Williams, High Court Judge representing the Organisation of Eastern Caribbean States (OECS) said in the British Virgin Islands (BVI) the Convention has worked very well, however the main complaint is that in some instances delays were seen because of the procedure to be followed.
The Hague Service Convention provides for one main channel of transmission and several alternative channels. Under the main channel, the authority or judicial officer, competent under the law of the requesting State (State where the document to be served originates) transmits the document to be served to the Central Authority of the requested State (State where the service is to occur).
The request for service transmitted to the Central Authority must comply with a model form which creates the standard of service to be obtained, and must be accompanied by the documents to be served.
Participants also heard that the Convention contains two provisions which protect the defendant prior to a judgement by default and after a judgment by default.
Article 15 and 16 require the judge to stay entry of judgment (Article 15) or allow the judge to relieve the defendant from the effects of the expiry of the time for appeal (Art.16), subject to certain requirements.
To ensure the efficacy of the Convention, a Practical Handbook was published in 2006 by the Permanent Bureau, and the monitoring of the Convention was last done in 2009 by a Special Commission.
The Session on Service Convention was chaired by Sir Charles Dennis Byron, President of the Caribbean Court of Justice, Trinidad and Tobago.
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