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.
One of the most vexing problems faced by lawyers engaged in international litigation is serving notice on parties located in foreign countries. Serving such parties is often time-consuming, difficult, and expensive. Even if service is made, there is often a basis for concern that the method used was not permitted under applicable law and that the service will be successfully challenged as ineffective. The consequences of ineffective service range in seriousness from the merely irritating to the disastrous when a statute of limitations is missed.
The Federal Rules of Civil Procedure (F.R.C.P.) have since the early 1960s contained specific provisions dealing with the problem of serving parties in foreign countries. In a number of instances, however, these provisions have failed to provide the just, speedy and inexpensive determination of actions that is the central mission of the F.R.C.P.
In 1983, the Federal Rules were amended and a new form of service by mail was authorized for parties outside the state in which the action was commenced. Recently, counsel in several cases have attempted to use this new form of service to serve parties in foreign countries. The purpose of this Chapter is to review those attempts and the benefits and disadvantages of relying on this new form of service, as compared to the traditional forms of service on parties in foreign countries.