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Notes from the State Department

Some time ago, I put a few questions to the State Department with a request for comment. Here are the answers I received.

LB:  State Department guidance and recent cases indicate that certain foreign central authorities are not carrying out their obligations under multilateral conventions on judicial assistance. For example, the State Department’s guidance on judicial assistance in Russia states that Russia has unilaterally suspended cooperation with the US under the Hague Service Convention, and reports from practitioners indicate problems with Mexico’s implementation of the Convention. In a recent case, China refused, on Article 13 grounds, to execute a request for service of process. On the macro level, what steps is the Department taking to try to encourage foreign central authorities to give judicial assistance when requested, and on the micro level, can the Department provide assistance to litigants in particular cases who run into problems?

State: In coordination with the Justice Department (which is the U.S. Central Authority under the Hague Service Convention, the Inter-American Convention on Letters Rogatory and Additional Protocol, and the Hague Evidence Convention), we consult directly with authorities in other countries when issues arise relating to implementation of those conventions.

In addition, the Hague Conference on Private International Law periodically convenes Special Commissions of all contracting parties to consider the operation of the Hague conventions, including the judicial assistance conventions.

U.S. persons who encounter problems in particular cases are encouraged to refer to http://travel.state.gov, which provides general and country-specific information on judicial assistance. The State Department cannot, however, provide interpretations of law as they apply to a particular case or otherwise provide legal advice to private parties.

LB: Before the Hague Service and Evidence Conventions came into effect, parties had to make use of the letter rogatory procedure more often than they do today. While that had obvious disadvantages, one advantage was that because letters rogatory had to be legalized and then transmitted through the diplomatic channel, the State Department had a way of keeping statistics about the use of letters rogatory, problems encountered in obtaining judicial assistance in response to letters rogatory, etc. How does the Department try to keep its eye on requests for judicial assistance today, when the process of transmitting requests under the  Conventions typically does not pass through the State Department?

State: We note that U.S. law does not require that letters rogatory be sent through diplomatic channels. See 28 U.S.C. 1781(b).  [Ed. Good point! Not all letters rogatory need to be transmitted through the diplomatic channel]. The laws of a foreign country that is not a party to judicial assistance conventions may require, however, that requests for service of process or the obtaining of evidence be sent through diplomatic channels.

Incoming requests under the Hague Service Convention (or the Inter-American Convention on Letters Rogatory and Additional Protocol) for service through the U.S. Central Authority generally must be sent to Process Forwarding International, the Justice Department’s contractor. For countries that are non-parties, such requests may be sent through diplomatic channels. Accordingly, it is possible to track the volume of those two types of requests. However, private parties may avail themselves of other methods of service that do not involve PFI or the State Department, and we have no means of tracking such requests.

Outgoing requests from private parties for service under the Hague Convention do not go through the Justice Department or PFI. PFI does, however, have responsibility for forwarding outgoing service requests under the Inter-American Convention.

The Justice Department receives and handles incoming requests under the Hague Evidence Convention. It does not handle outgoing requests under that Convention. Voluntary production of evidence within the United States, or production compelled by interested parties under 28 U.S.C. 1782, does not involve the Executive Branch.

LB: What is the status of the Hague Judgment Convention, which has been signed but not yet ratified? [Ed. The Department, in its response, made it clear that the title of the Convention is the Convention on Choice of Court Agreements. I use “Hague Judgment Convention” as a shorthand, but maybe that is too imprecise because it could give the impression that the Convention provides a general mechanism for enforcement of foreign judgments.]

State: The Convention is not yet in force; only one country, Mexico, has deposited its instrument. The United States signed the Convention in 2009. The State and Justice Departments have been consulting with domestic stakeholders regarding the best means of implementing the Convention domestically, with a view to submitting the Convention to the Senate for its advice and consent.

LB: What role, if any, does the Department play in the drafting and promulgation of state laws on the recognition and enforcement of foreign judgment, and what are the Department’s views about the desirability of a federal law to unify the American approach to recognition and enforcement?

State: As part of the consultations noted above, the State and Justice Departments are working with the Uniform Law Commission on the development of implementing legislation, at both the federal and state level, for the Hague Convention on Choice of Court Agreements. Under the proposed implementation scheme, states could elect to implement the Convention by enacting a uniform state act that would apply in lieu of the federal implementing law.

I do have some follow-ups, which I’ll put to the Department, and I’ll let you know what I hear. In particular, I’m interested in the consultation with domestic stakeholders. Aside from the Uniform Law Commission, who are the stakeholders, and what has gone on in these consultations? I’m also interested in what assistance the State Department can or cannot provide to private litigants. The Department notes that it does not provide “legal advice to private parties.” Makes sense. But does the Department provide diplomatic or consular assistance if a US litigant seeking judicial assistance abroad runs into trouble? If so, what form does that assistance take?

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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