Sunday, February 22, 2009

Prof. Campbell posts article on service of process

Faulkner Prof. Charles Campbell recently posted No Sirve: The Invalidity of Service of Process Abroad by Mail or Private Process Server on Parties in Mexico Under the Hague Service Convention.  The abstract follows:

Mexico acceded to the Hague Service Convention in 1999, with entry into force in 2000. In its instrument of accession, Mexico designated the Directorate-General of Legal Affairs of its Ministry of Foreign Affairs as its Central Authority to receive and forward requests for service of judicial and extrajudicial documents from other contracting States, and objected to alternative methods of serving documents under Articles 8 and 10 of the Convention. Unfortunately, a mistake occurred in the English courtesy translation of Mexico's Article 10 declaration, making it appear that Mexico's opposition applies only to the alternative methods of service of process under Article 10 when attempted through diplomatic or consular agents. The original Spanish declaration relating to Article 10 contains no such limitation. It instead expresses across-the-board opposition to all of the alternative methods of service provided in Article 10. When a contracting State objects to all of the alternative methods of service in Articles 8 and 10 of the Convention, service through the Central Authority is in effect the exclusive means. Accordingly, United States courts are bound to refrain from alternative methods of service of process on parties in Mexico and must use its Central Authority.

The mistake in the English translation of Mexico's opposition to alternative methods of service under Article 10 has led state and federal courts in the United States to conclude that al-ternative forms of service are appropriate in Mexico under the Hague Service Convention. The U.S. Department of State circular on service of process likewise suggests that service of process by international registered mail on parties in Mexico is appropriate, at least if a party does not anticipate enforcing the judgment in Mexico. This article briefly points out the error in the Eng-lish translation of Mexico's Article 10 declaration, explains how the mistake is misleading courts in the United States, and concludes that service of process in U.S. litigation on parties in Mexico pursuant to the Hague Service Convention should always proceed through Mexico's Central Au-thority in accordance with Articles 3 through 7 of the Convention.

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Interesting article. It's worth mentioning that the average turn around on service requests through the Central Judicial Authority of Mexico is six months. As such other forms of service should be considered if it is not desired that the judgement be enforceable in Mexico. ie a subpoeana to appear in court in many civil matters.


Posted by: Carlos | Feb 23, 2009 6:44:48 AM

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