The constant expansion of foreign investment and trade in the United States and the resulting increase in multinational litigation present one of the more vexing problems for American litigators: serving notice of a pending litigation on parties located in foreign countries. For the inexperienced, complying with the requirements for service on a non-U.S. party can be frustrating, time-consuming and expensive. This most basic of requirements for the commencement of a lawsuit can lead to extensive—and, for the plaintiff, sometimes disastrous—motion practice.  

To most litigation lawyers, service on a U.S. party is a simple and somewhat mechanical process; and, with the availability of service by mail, this perception has been reinforced. But, as litigators involved in international practice have known for some time, the same cannot be said for extraterritorial service, as to which the procedure is far less mechanical or simple.

Recognizing the difficulties posed by serving foreign parties, the drafters of the Federal Rules of Civil Procedure and the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“The Hague Service Convention” or the “Convention”) have each undertaken to construct a mechanism to permit international service of process to stay abreast of modern business realities. However, as well intended and encompassing as these two processes are, both are subject to limitations. Thus, the Federal Rules of Civil Procedure are, in some cases, limited in application to the extent they conflict with the laws of foreign nations, and The Hague Service Convention applies only to signatories of that instrument. Further complicating matters, service by mail, despite its advantages, is not recognized under the laws of some foreign countries and may occasionally provoke diplomatic protests. One such country is Switzerland.

As early as 1961, Switzerland expressed its opposition to the use of international mail to effectuate service of process on parties located within its boundaries. Consequently, any such attempt to apprise a Swiss party of a pending lawsuit is subject to a challenge to the sufficiency of such service and to the risk that a judgment will be unenforceable in Switzerland. To dispel some of the mystery associated with extraterritorial service, this chapter reviews the procedure by which service of process can be properly effectuated on a party located in Switzerland.