Service of Process Abroad

Service of Process Abroad in the United States

Consular Law: SERVICE PURSUANT TO THE FOREIGN SOVEREIGN IMMUNITIES ACT

28 U.S.C. 1608, the Foreign Sovereign Immunities Act of 1976 (FSIA) (28 U.S.C. 1330, 28 U.S.C. 1602) provides for service of process on a foreign state with the assistance of the Department of State in an action where the foreign state is a defendant and where service cannot be effected by the other methods prescribed in the Act. (See 22 CFR 93). Information about the service provisions of the FSIA is available from the Department of State, Bureau of Consular Affairs Internet page. See also the Service Provisions of the FSIA.

Requests for service of FSIA cases (requests sent directly to the consular officer by a U.S. court or attorney) are rare, but complex, demanding special attention on the part of the consular officer and the Department of State.

Consular Role

The consular officer is required to effect service on the defendant foreign state by diplomatic note. Proof of service is made by attaching a certified copy of the Embassy’s note to the second set of documents (summons, complaint, and notice of suit) and returning those documents, with the note, to the Department of State for relay to the clerk of the court.

Not Discretionary

Service pursuant to the FSIA is a statutory obligation; the consular officer may exercise no discretion in complying with the Act. The officer must report to the Department of State the date the documents were received by the embassy, the date they were transmitted to the foreign ministry, and the date the executed request was sent to the Department of State for relay to the court. This report must also give the invoice, registry, and pouch numbers by which the documents were returned to the Department of State.

Proof of Service

The embassy should affix the consular certification to a certified copy of the diplomatic note transmitting the summons, complaint and notice of suit (or default judgment) to the Foreign State. The original/certified copy should be sent via express courier service to the Department of State for transmittal to the U.S. court.

Response by the Foreign Government

Any response by the foreign government to the U.S. Embassy diplomatic note should be conveyed to the U.S. Department of State, with a consular officer certification of any diplomatic note. Under United States law and procedure, neither the Embassy nor the Department of State is in a position to comment on the present suit. Under the laws of the United States, any jurisdictional or other defense including claims of sovereign immunity must be addressed to the court before which the matter is pending, for which reason it is advisable for the foreign government to consult an attorney in the United States.

Consular Law: Service in Section 340 Immigration and Nationality Act Cases

Consular officers must deliver, or assist in delivering, to designated persons documents relating to proceedings pursuant to 8 U.S.C. 1451 (Section 340 of the Immigration and Nationality Act (INA), in the cancellation of certificates of naturalization when such documents are received from duly authorized officials of the Federal courts.

Responsibility for providing detailed instructions on the procedure for delivering such documents rests with the court or with the U.S. attorney concerned; consular officers must follow such instructions carefully. Certificate of service, affidavit of consular officer serving process, and affidavit of second consular officer (or diplomatic officer) constitute proof of service.

SERVICE AT REQUEST OF CONGRESS OR U.S. GOVERNMENT AGENCIES

Consular officers have no authority to serve legal process, such as subpoenas or citations, in connection with congressional investigations, on persons in their consular districts, nor may they serve such process at the request of U.S. Government agencies other than the Department of State. Consular offices should refer to the Department of State all requests for such service. (See 22 CFR 92.91).

SERVICE ON U.S. MILITARY PERSONNEL ABROAD

Neither the Department of Defense (DOD) nor the military departments have a uniform policy concerning the service of civil or criminal process on military personnel abroad or at sea. The Department of Defense and its components, however, in accordance with applicable policies and procedures, will allow and assist in the service of civil process on their personnel in certain circumstances, to be initially determined by the staff judge advocate of the appropriate Department of Defense component. Significantly different policies and procedures apply to service of criminal process. In cases concerning civil or criminal service of process on U.S. military personnel, the Department of State and the Department of Defense may work together.

Generally, commanders or other officials in charge when contacted about service of process on an employee will bring the matter to the attention of the individual and will determine whether he or she wishes to accept service voluntarily. If the individual does not desire to accept service, the party requesting such service will be notified and will be advised to follow the procedures prescribed or recognized by the laws of the foreign country.

In countries party to The Hague Service Convention or Inter-American Service Convention and Additional Protocol, the foreign Central Authority may attempt to accomplish service under the applicable Convention if the prevailing Status of Forces agreement (SOFA) permits access to the base. Installation commanders may impose reasonable restrictions upon persons who enter their installations to serve process. It may therefore be necessary for the foreign Central Authority to effect service on the individual outside the installation. Some foreign Central Authorities may decline jurisdiction over cases involving U.S. military personnel depending on the SOFA agreement applicable (if any).

Likewise, a request for service on U.S. military personnel pursuant to a letter rogatory may prove difficult as the foreign court may decline jurisdiction. It may be necessary to retain the services of a private attorney or other agent to effect service on the individual outside the U.S. military installation. Service by registered mail is also another option.

Other issues:

  • Inquirers may be directed to the Judge Advocate General’s office for the appropriate branch of the U.S. military at the U.S. base abroad for further guidance (See Judge Advocate General Corps).
  • Relevant “Status of Forces” agreements in some countries may prohibit local authorities from serving American judicial process on U.S. military installations.
  • Commanders may impose restrictions upon persons entering their installations, limiting the service of process to registered mail or service outside the military installation.

SERVICE ON DEPARTMENT OF STATE PERSONNEL

Note: about official capacity, the information in this legal Encyclopedia and 22 CFR 172 for service on U.S. State Department personnel in their official capacity.

In relation to Personal Capacity, the The Department of State is not an agent for the service of process upon its employees with respect to purely personal, non-official litigation. Service is usually attempted by private litigants by international registered mail, return receipt requested, or by an agent, usually a foreign attorney retained for that purpose. The Department recognizes that its employees overseas should not use their official positions to evade their personal obligations and will counsel and encourage Department employees to accept service of process in appropriate cases. (See 22 CFR 172.2(d)).

Service of Process Abroad in the Context of Service of Process on Foreign Defendants

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Analysis of the Service of U.S. Process Abroad on Foreign Defendants Under Rule 4(f) of the Federal Rules of Civil Procedure in relation with the Contemporary U.S. Rules Governing Service of Process on Foreign Defendants.

Rule 4(f)(1): Service Abroad Pursuant to Hague Service Convention and Other ?Internationally Agreed Means

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Rule 4(f)(2): Alternative Mechanisms of Service Abroad

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Analysis of the Service of U.S. Process on Foreign States

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Service of Process Abroad Pursuant to the Inter-American Convention on Letters Rogatory in International Civil Litigation

Analysis of the Service of Process Abroad Pursuant to the Inter-American Convention on Letters Rogatory

Service of Process Abroad in the Context of Service of Process on Foreign Defendants

Service of U.S. Process Abroad Under Old Rule 4(i) of the Federal Rules of Civil Procedure in International Civil Litigation

Analysis of the Service of U.S. Process Abroad Under Old Rule 4(i) of the Federal Rules of Civil Procedure in relation with the Contemporary U.S. Rules Governing Service of Process on Foreign Defendants.

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Service of Process Abroad in the Context of International Disputes

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Find out more information about the Service of U.S. Process Abroad Selected Issues in International Civil Litigation in the U.S. Courts in this American Encyclopedia of Law.

Service of Process Abroad in the Context of Service of Process on Foreign Defendants

No Service of U.S. Process Abroad by U.S. Consuls in International Civil Litigation

Analysis of the No Service of U.S. Process Abroad by U.S. Consuls in relation with the Contemporary U.S. Rules Governing Service of Process on Foreign Defendants.

Service of Process Abroad in the Context of Service of Process Abroad

Service of Process Abroad and the Default Judgments Under Article 15 of the Hague Service Convention in International Civil Litigation

Analysis of the Service of Process Abroad and the Default Judgments Under Article 15 of the Hague Service Convention

Service of Process Abroad in the Context of Service of Process Abroad

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Resources

See Also

  • Choice of Law Rule
  • Judicial Branch Jurisdiction
  • Legislative Jurisdiction
  • Choice of Forum Provision
  • Choice of Forum Clause Definition
  • Choice of Forum Clause Sample
  • Abuse of Process
  • International Judicial Assistance in Civil Matters
  • International Judicial Assistance in Criminal Matters
  • International Judicial Assistance in Administrative Matters
  • Cross-Border Discovery
  • Abroad Evidence
  • Forum Selection
  • Choice of Law
  • Supreme Court Jurisdiction
  • Judicial Jurisdiction Definition

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