Service of process is the fairly mundane
procedure by which a party to a lawsuit gives an appropriate notice of initial
legal action to another party (such as a defendant) in an effort to
exercise jurisdiction over that person so as to enable that person to
respond to the proceeding before the court, body, or other tribunal.
Notice is typically furnished by delivering a set of court documents
(called "process") to the person to be served.
Within the United States, this is
usually a fairly simple matter that involves having a licensed process
server (or in some cases, a U.S. Marshal or Sheriff) deliver a hard copy of the
Summons or other legal document to the Defendant or to a corporate
representative, in the case of a corporation. For some corporations, it
may be sufficient to serve the Secretary of State where the company is
incorporated.
In those cases where a party to be
served is difficult to locate, the court may permit substitute service through
publication in a local newspaper.
For the vast majority of cases,
process can be routinely served in one or more of these manners, and
a defendant would have a tough time arguing that he was not properly served, if he chooses to default and claim that he didn't know about the
case.
But for brand owners
whose infringers often reside well outside the United States, service
of process can become a rather tricky prospect -- one that may even frustrate
all relief entirely.
International service of foreign
judicial and extrajudicial documents is governed in general by the 1965 Hague Service
Convention.
Prior to the enactment of the Hague
Service Convention, service of process in civil cases was generally effected by
a letter rogatory,
a formal request from the court in the country where proceedings were initiated
or underway to a court in another country where the defendant resided.
This procedure generally required the
use of consular and diplomatic channels as
the request had to be made to the foreign minister (Secretary of State in the
United States) of the defendant's country by the foreign minister of the
originating court.
Since 1965, member states designate a
central authority for service of process and requests go directly there.
In addition, some governments allow
some type of service directly by mail or personal service by a person otherwise
authorized to service process without involvement of local courts.
By way of example, the United Kingdom
and Hong Kong permit a person or corporate entity to be served through simple
International Registered Mail. The People's Republic of China, however, formally objected to this process and insists that any form of such service is not only
ineffective, it is illegal.
Therefore, the process
of service of process on a Chinese national can take months
or sometimes years, and cost tens of thousands of dollars. In some cases,
the documents must be translated into a foreign language such as Cantonese or Mandarin.
And, to make matters even more
challenging, assuming that the Chinese national or entity does not
participate in the foreign proceeding, there is no guarantee that the Chinese
government will enforce a foreign default judgment against his assets located
there.
The end result is that that the People's Rebublic of China
has effectively insulated approximately 1/5 of the world's population from
simple service of legal process from abroad.
