Although there are strict rules around international service of process, a number of courts have concluded that there can be some flexibility around the requirements. In some cases, courts are willing to accept service as being effective as long as the defendant was in fact notified, even if the rules of service weren’t strictly followed.
The Hague Service Convention and FRCP 4
The Hague Service Convention was put in place to make it easier for plaintiffs in different countries to serve one another. However, the process can still be complicated, lengthy, and expensive.
Federal Rule of Civil Procedure 4 (FRCP 4) provides a kind of alternative route and is often faster and less expensive than service under the Hague Convention. In short, FRCP 4 states that serving individuals or corporations in foreign countries is allowed “by any internationally agreed means of service that is reasonably calculated to give notice.”
However, FRCP 4 also allows process servers some additional leeway in cases where there is no internationally agreed means of service or where international agreement allows but doesn’t specify alternative methods of service. This means that process servers may be able to complete service through mail or by using other methods so long as these methods aren’t prohibited by international agreement.
A case in point
A recent example is a case of international process service in China: TLV International v. Zhejiang Shenghui Lighting Co. Ltd, Case No. 19-cv-00393 (W.D.N.C. Feb. 3, 2021). In this case, the plaintiff, TLV International, was awarded damages and expenses after a deal between the two companies turned sour. TVL tried to confirm this award through international service of process.
In response, the defendant, Zhejiang Shenghui Lighting Co. Ltd, asserted that it had not been served in accordance with FRCP 4 and the Hague Service Convention and moved to dismiss.
Zhejiang Shenghui argued that because TVL had conducted service via email and had followed that up with hard copies delivered by FedEx to its outside counsel, the service should be considered invalid. Instead, they argued, TVL should have attempted to coordinate with the Chinese Central Authority to effectuate service as called for by the Hague Convention. Zhejiang Shenghui also objected to the fact that TVL had served its counsel rather than the company itself.
China is a signatory to the Hague Service Convention but doesn’t allow service of process by mail or through any other informal method of service. As such, it won’t uphold any ruling or judgment where service hasn’t been completed through the formal method. The original contract between Zhejiang Shenghui and TVL allowed for service of process in accordance with FRCP 4, but FRCP 4 doesn’t specifically allow for service by email or to a company’s representatives.
In this case, the court rejected Zhejiang Shenghui’s motion to dismiss the case for insufficient service of process, saying it was “abundantly clear” that it should be denied. It rejected Zhejiang Shenghui’s argument on two grounds.
First, it pointed out that the defendants had actual notice of the petition, which the court said was sufficient under the requirements of the Federal Arbitration Act. Second, it pointed out that the defendants had consented to service by both mail and email to their representatives (in this case, their attorneys) when they signed the original contract agreeing to service by FRCP 4. In short, the fact that actual notice was given to the defendant was more important than strict adherence to the rules.
TLV International v. Zhejiang Shenghui Lighting Co. Ltd provides an important lesson for American companies doing business with foreign entities. While it’s always smart to follow the rules of international service of process as closely as possible, it’s heartening to note that courts will sometimes accept service as effective, provided that notice was actually given to the defendant.
Increasingly, companies doing business internationally are including clauses in their contracts that allow them to get around the restrictions of the Hague Convention by using the FRCP 4. This can substantially limit litigation costs and the lengthy delays that are typical of serving internationally.
Want to make sure your case is completed in accordance with international requirements for service of process? Get in touch. Our experienced team is here to help.