Austria’s Interesting Reservation to the Service Convention
Posted on July 22, 2020
The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 15 November 1965 shall not apply to the service of documents addressed to the Republic of Austria, including its political subdivisions, its authorities and persons acting on its behalf; such service shall be effected through diplomatic channels.
What are the implications for US practice? Under the FSIA, § 1608(a), when the defendant is a foreign state or its subdivision, a plaintiff must attempt the prescribed methods of service in a specified order: first, the plaintiff must attempt service according to any “special arrangement for service between the plaintiff and the foreign state.” if one exists. Second, the plaintiff must attempt service via “an applicable international convention on service of judicial documents.” Third, the plaintiff must send the summons and complaint “by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs.” Fourth, if all else fails, the plaintiff must serve process via diplomatic channels.
I don’t think it is safe to skip step (2), at least right away. The reservation is not expressly authorized by the Convention, and so under Article 20 of the Vienna Convention, other states can either accept it or object to it, and if the other state takes no action, it is not deemed to have accepted the reservation for a year following the date of the reservation. But eventually, barring an objection, I think it will be all right to skip step (2). I do not think that the reservation will make it safe to skip step (3), even if the reservation is eventually accepted, though. The effect of the reservation is really a question of public international law that is, as they say, “outside my wheelhouse,” but if I understand the law correctly, the effect of a reservation is simply to modify the provisions of the treaty to which it relates. It doesn’t seem that acceptance of the reservation would create a new agreement between the United States and Austria to serve process in FSIA cases only via diplomatic channels.