The Service of Process on Defendants Abroad - Chapter 4.2 - Transnational Litigation and Commercial Arbitration - 3rd Edition
Joseph Lookofsky is Professor of Private and Commercial Law at the University of Copenhagen. He received his B.A. in Economics from Lehigh University, his J.D. from the New York University School of Law, and was admitted to the New York State Bar in 1971. He received his Danish law degrees (cand.jur. and dr.jur.) from the University of Copenhagen and joined the Law Faculty there in 1982. Professor Lookofsky has lectured on the CISG and other international commercial law topics for the Danish Bar Association (Advokatsamfund), the Duke University Law School in North Carolina, the University of Bologna (Facoltá di Giurisprudenza), the Albert-Ludwigs-Universität Freiburg (Institut für Ausländisches und Internationales Privatrecht), and the Cornell-Paris I (Sorbonne) Summer Institute of International & Comparative Law. He is also Secretary General of the Danish Committee for Comparative Law (Association Internationale des Sciences Juridiques.
Ketilbjorn Hertz is Senior Consultant with the Danish Ministry of Justice, which he joined in 1997, and in that capacity he has participated in the drafting of important legislation, including the Bill, which led to the adoption of the Danish Arbitration Act 2005 He received degrees from the University of Copenhagen, B.A. in law in 1991, cand.jur. in 1993, B.A. in French in 1998, and Ph.D. in law in 1998.
4.2. THE SERVICE OF PROCESS ON DEFENDANTS ABROAD
“Service of process” is a designation for the formal transmission of documents to a party involved in litigation, for the purpose of providing it with notice of claims, defenses, decisions, or other important matters.1 In many jurisdictions, the date of service also marks the formal commencement of the action and may trigger the tolling of applicable statutes of limitation.2
According to general principles recognized under both European and American law, a court cannot exercise jurisdiction unless the applicable requirements for service of process have been met. In some jurisdictions, service is more than just a prerequisite to the exercise of jurisdiction; it is the very basis upon which jurisdiction comes to rest. This is, for example, the traditional English view, although it has been partially displaced as regards EU domiciliary defendants under the Brussels I Regulation; in those cases where that Regulation does not apply, the High Court still “acquires” jurisdiction through service of the proceedings upon the defendant.3 Although modern American theory, like the Brussels I Regulation, rejects the traditional Common law equation of jurisdiction and service,4 many European and American States still regard the act of “tagging” (serving process upon) a defendant who is present within the forum territory – even for a brief period: so-called “transient presence” – as providing a viable jurisdictional base.5
4.2 The Service of Process on Defendants Abroad 4.2.1 Introduction 4.2.2 Service under European Law 4.2.3 Service under American Law 4.2.4 The Hague Service Convention Volkswagenwerk Aktiengesellschaft v. Schlunk (1988) Notes, Questions and Commentary