Too Much Process, Not Enough Service: International Process Under the Hague Service Convention
Volume 86, No. 2, Winter 2014
By Eric Porterfield [PDF]

Service of process under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention or Convention) is too costly, time consuming, and unreliable. The Hague Service Convention’s defining feature—the Central Authority system—adds unwarranted expense and delay to the already expensive and protracted process of civil litigation. Worse, however, is the fact that the Central Authority completely fails to effect service on a foreign party in a significant percentage of cases. For decades, courts and commentators have argued over whether the Hague Service Convention actually permits litigants to sidestep the Central Authority and serve process simply, reliably, and directly—by mail. Regrettably, the divide among the circuit courts as to whether the Convention actually permits service by mail seems irreconcilable. This Article does not attempt to resolve the service-by-mail controversy. Rather, this Article proposes a different resolution: federal legislation establishing a domestic agent for service of process on foreign defendants that are subject to personal jurisdiction in the United States. While imperfect and most useful against foreign defendants likely to have domestically available resources subject to enforcement of any resulting judgment, this legislation reduces the expense, burden, and uncertainty of service under the Convention, while remaining consistent with federalism, comity, due process of law, and the Hague Service Convention itself.