Service of Process in Latin America: Potential Pitfalls - Part 3 Chapter 17 - The Practice of International Litigation - 2nd Edition
Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
Lawsuits must be commenced in a formal way, so as to assure that defendants are property informed of the complaints against them. With respect to foreign defendants not present in the United States, there are issues that are more complex with respect to service of process. The concerns are, first, to effect service in a way that puts the defendant on actual notice of lawsuit and, second, to do so in a way that will later permit the judgment hoped to be obtained – particularly if it is obtained by default – to be enforced in the foreign country.
To avoid having an unenforceable judgment, one must, of course, be mindful of issues of jurisdiction over the defendant, but questions of how service is effected are also of critical importance. The advice given by local lawyers in many Latin American countries is that service of process that may comply with state or federal law in the United States may not necessarily be recognized as valid service. In many Latin American countries, formalities are of great importance in litigation. For example, it is usual for service of papers commencing a lawsuit to be effected by court officers, rather than, as here, by or through counsel for the plaintiff.
Thus, it is often the advice of Latin American counsel that, to make an expected U.S. judgment have the greatest chance of being recognized, service of process should be effected through diplomatic channels – in accordance with international agreements, to the extent they exist. For example, Brazilian courts will only enforce a foreign money judgment against a Brazilian party that did not appear if that Brazilian party was served pursuant to a letter rogatory.
One of the most important agreements for service of process in Latin American is the Inter-American Convention on Letters Rogatory (the “IAC”), 14 I.L.M. 339, and the Additional Protocol thereto, 18 I.L.M. 1238 (1984). This Convention provides for service to be effected on a state-to-state basis, unlike the Hague Convention on Service of Process, which permits private parties in the country where the action is commenced to initiate the process. Unfortunately, the Inter-American Convention has serious deficiencies with respect to at least one country – Venezuela – that are so extensive as to make it virtually impossible to effect service on Venezuelan defendants in a way that may not present problems for the enforcement of judgments in that country.