Zealous and Cost-Effective Representation across Borders
Scarcia-Scheel Law Firm provides a wide range of domestic and cross border litigation and alternative dispute resolution services; always with an eye towards the costs and benefits of each strategic decision. Particularly in respect of international legal proceedings, the firm capitalizes on its unique cross-jurisdictional legal expertise based upon a sound understanding of the procedural differences between the various legal systems. The firm’s services include:
- Out-of-court settlements;
- Representation in the federal and state courts of New York in commercial disputes (such as breach of contract claims) and employment litigation (such as wage and hour claims under the Fair Labor Standards Act);
- Assistance of financially distressed entities and individuals in protecting their rights;
- Arbitration and mediation.
The Hague Service Convention: How to Serve Foreign Defendants
If one is seeking to serve a foreign defendant in a legal proceeding before a U.S. court, one may need to comply with the Hague Service Convention. The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention) is an international treaty that governs the service of legal documents between countries. It was concluded on November 15, 1965, in The Hague, Netherlands, and has since been ratified by numerous countries around the world, among them, inter alia, the United States and Germany.
The primary objective of the Hague Service Convention is to establish a simplified and standardized process for serving legal documents in cross-border civil or commercial matters. It provides a framework for ensuring that judicial and extrajudicial documents (such as summons, complaints, subpoenas, and other judicial notices) are properly transmitted and delivered to the intended recipients in other member countries.
Key provisions of the Hague Service Convention include:
- Central Authorities: Each member country designates a Central Authority responsible for receiving and processing incoming requests for service and transmitting them to the appropriate recipients within their jurisdiction. The Central Authority serves as the main point of contact for transmitting requests for service between the member countries of the Convention.
- Methods of Service: The Convention outlines various methods for the service of documents, including service by postal channels, directly to the addressee, or through judicial officers or other competent persons. The choice of method is determined by the internal law of the receiving country.
- Language Requirements: Documents must generally be served in the official language of the receiving country. However, certain exceptions allow for the use of translations or alternative language options.
- Certificate of Service: After the documents have been served, the Central Authority or other competent authority of the receiving country provides a certificate or other proof of service, which is sent back to the requesting party.
By establishing a standardized framework for cross-border service of documents, the Hague Service Convention promotes international judicial cooperation, streamlines legal proceedings, and ensures due process rights for individuals involved in civil or commercial matters that span multiple countries.
It’s important to note that the Hague Service Convention applies only to civil and commercial matters and does not cover criminal or administrative proceedings.
Every federal state (Land) has its own Central Authority. Requests for service shall, in principle, be addressed to the Central Authority of the federal state (Land) where the German defendant resides. However, requests may also be transmitted to the Federal Office of Justice in its capacity as Federal Central Authority; the Federal Office of Justice will forward the request to the competent Central Authority in the respective Land.
Central Authority: The primary method for service in Germany is through the designated Central Authority. It will serve the documents as permitted by German civil procedural law.
Alternative Methods: Apart from the Central Authority, the Hague Service Convention also permits service of process through alternative methods, as long as they are not contrary to the law of the receiving country. In Germany, alternative methods may include service through judicial officers or through diplomatic or consular agents. However, it’s important to note that Germany has made a declaration under Article 10(b) of the Hague Service Convention, which means that it does not accept service by postal channels directly from abroad.
The Foreign Sovereign Immunities Act (FSIA): Can You Sue a Foreign State Just Like Any Other Person?
No, you can’t just sue a foreign government like any other person. Generally, foreign governments enjoy a legal doctrine called sovereign immunity, which means they cannot be sued in the courts of another country without their consent. This is laid down in the Foreign Sovereign Immunities Act (FSIA), a United States federal law that governs the immunity of foreign states from the jurisdiction of U.S. courts. Under the FSIA, foreign states are generally immune from the jurisdiction of U.S. courts unless one of the specified exceptions applies.
– The commercial activity exception is one such exception under the FSIA. It is found in Section 1605(a)(2) of the FSIA and provides an avenue for individuals and entities to sue foreign states in U.S. courts for certain commercial activities. According to the commercial activity exception, a foreign state is not immune from the jurisdiction of U.S. courts if the case involves:
A claim based upon a commercial activity carried out by the foreign state in the United States,
A claim based upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere, or
A claim based upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere, and that act causes a direct effect in the United States.
To fall within the exception, the commercial activity must have a sufficient nexus with the United States, either by taking place within the U.S. territory or by having a direct effect in the United States. If the commercial activity exception is met, a lawsuit can proceed against the foreign state in U.S. courts.
– Waiver of immunity: Under Section 1605(a)(1) of the FSIA a foreign government may explicitly waive its sovereign immunity and agree to be sued in a particular jurisdiction or under specific circumstances.
– Tort exception: The tort exception applies when a foreign sovereign engages in tortious conduct (wrongful or negligent act) that causes harm or injury to a U.S. citizen or entity within the United States (Section 1605(a)(5) of the FSIA).
– Terrorism and human rights violations: The terrorism exception is found in Section 1605A of the FSIA. The terrorism exception allows US citizens and residents to sue foreign states that are designated as state sponsors of terrorism for the injuries or losses suffered as a result of the act of terrorism.
– Property expropriation exception: The expropriation exception is outlined in Section 1605(a)(3) of the FSIA. It applies when a foreign state takes property belonging to a U.S. citizen or a U.S. corporation, and the taking violates international law norms regarding the protection of property rights.
– Treaties and international agreements: Certain treaties or international agreements may provide mechanisms for resolving disputes or allow for legal actions against foreign governments. These treaty provisions can create exceptions to the general immunity granted under the FSIA.
Notice: The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Information on this website may not constitute the most up-to-date legal or other information.
Scarcia-Scheel Law Firm P.C. is a specialist international law firm based in New York City. The firm provides top-notch legal services in the most important areas of business law including commercial litigation, contract law, cross-border dispute resolution and litigation, employment-based U.S. immigration law, German practice, and international business law, while maintaining a competitive and transparent price structure.
Scarcia-Scheel Law Firm P.C. serves a diverse group of domestic and international clients, including private individuals, small and medium sized enterprises, entrepreneurs wishing to enter the U.S. market or expand their operations there, and public authorities. The firm is well-versed not only in domestic legal matters but also exceptionally well-equipped to master the challenges posed by cross-border legal cases on the basis of its acquired unique linguistic and cross-jurisdictional expertise.