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Question Réponse / Reply État / State
6.4. Exclusive
character of the Conv. –
any development?
country, the service itself was already performed domestically and the addressee is then only notified informally of
the domestic service. German law does also provide for situations of this kind under section 184 of the German Code
of Civil Procedure (service by mail), although not specifically for the writ of summons, but rather for the final
judgment.
This refers instead to cases in which service abroad is effected, factually at least, also under the law of the country
where the court has venue, but not on the basis of the Hague Convention on the Service of Documents.
Particularly in relations with the United States of America, for instance, defendant industries have
reported that only a portion of services abroad are performed on the basis of the Hague Convention on
the Service of Documents and that consequently, in practice, the priority accorded to the Convention
under Rule 4 f) of the Federal Rules of Civil Procedure is not always observed. Instead, service is performed
– partly in addition to service in accordance with the Convention and simultaneously with it – on subsidiaries located
in the USA and the effects of service are extended to the defendant foreign parent company. In addition, Rule 4 d)
of the Federal Rules of Civil Procedure endorses the waiving of service that is performed on the basis of
international treaties, whereas it ensures the defendant a longer period of time in which to file statements, but at
the same time possibly (in domestic service) charges the defendant for all costs connected with the service.
Ultimately, cases of service by mail to Germany frequently occur, although Germany objected to this
form of service on the basis of the Hague Convention on the Service of Documents.
A further problem exists in the practical incapacity to effect service on U.S. soldiers who are stationed in a third
State. Service under the Convention is repeatedly refused by U.S. authorities whilst making reference to the
necessity of performing service via the third State in which the respective soldier is stationed. However, the third
State then refuses service, since the U.S. soldiers stationed there do not fall under their jurisdiction. As a result,
service cannot be effected.
There is little controversy that the Hague Service Convention's procedures are generally considered mandatory
and exclusive when litigants must make service outside of the United States. As addressed by the U.S. Supreme
Court in Volkswagenverk A.G. v. Schlunk, 486 U.S. 694 (1988), however, there is a narrow exception where service
can be made on persons or entities within the United States pursuant to procedures under specific local law.
Although that law is binding on all state and federal courts within the United States, and service under local rules
may be utilized when available under applicable local law, most outgoing service of process requests continue to be
made under the Hague Convention.
No / Non
[F] Comme indiqué dans le manuel provisoire, la Cour d'appel a récemment indiqué que la Convention n'est pas
exclusive (voir page 16 du Manuel).
[E] As mentioned in the provisional manual, the Court of Appeal has recently indicated that the Convention is not
exclusive (see page 16 of Manual).
The Slovak authorities have always accepted this aspect. We have, however, encountered a repeated disregard
for this kind of interpretation by the German courts in relation to Slovak parties to the proceedings. The German
Etats-Unis
Allemagne, Bélarus,
Bulgarie (depuis 2000),
Canada (IPE, Alberta),
Chine (Macao),
Espagne, Finlande,
France, Italie, Japon,
Luxembourg, Norvège,
Pays-Bas (voir rép.
complète), Portugal,
Suisse
Canada (Québec)
Rép. Slovaque
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