FAQ / Q. How do I effect service on an agency or instrumentality of a foreign State (28 U.S.C. 1608(b)?

A. 28 U.S.C. Section 1608(b) governs service on an agency or instrumentality of a foreign State.

28 U.S.C. 1608(b)(1) provides for service by special arrangement between the plaintiff and the agency or instrumentality. Examples of such arrangements are found in V, G. Delaume, Transnational Contracts, Appendix (ed. l98l).

28 U.S.C. 1608(b)(2) offers three methods of service:

[1] "by delivery of a copy of the summons and complaint either to an officer, a managing or general agent;" or

[2] "by delivery of a copy of the summons and complaint "to any other agent authorized by appointment or by law to receive service of process in the United States;" See H.R. Rep. No. 94-1487, 94th Cong., 2d Sess., (1976), reprinted in part in 1976 U.S. Code Cong. & Ad. News, at 6604, et. seq. In particular, the Report states in pertinent part "if no such arrangements exists, than service must be made under subsection (b)(2) which provides for service upon officers, or managing, general or appointed agents in the United States of the agency or instrumentality". Id. at 6624. Section 1608(b)(2) does not offer a third alternative for service upon an agent abroad. If there is no agent in the United States to be served and no applicable international convention on service of judicial documents [1608(b)(2)], then service should be attempted under Section 1608(b)(3).

[3] "in accordance with an applicable international convention on service of judicial documents." There are two multilateral treaties on service of process.

(1) The Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters , 20 UST 36l; TIAS 6638; Martindale-Hubbell Law Directory (Law Digest Volume, Selected International Conventions); 28 USCA Appendix, Federal Rules of Civil Procedure, Rule 4;

(2) The Inter-American Convention on Letters Rogatory and Additional Protocol with Annex [regarding service of process], Senate Treaty Doc. 98-27; 98th Congress; 2d Session; 14 Int'l. Leg. Mat. 339 (March 1975).

The Department of State, Office of Overseas Citizens Services has information flyers concerning both these conventions and how to prepare and transmit a request for service in accordance with the conventions available via our autofax service (Documents #1051 (Hague Service) or # 1208 (Inter-American)) or from our home page on the Internet.

28 U.S.C. 1608(b)(3) provides three alternative methods of service:

1608(b)(3)(A) pursuant to a letter rogatory; If service is attempted under Section 1608(b)(3)(A), by letters rogatory, the request must be transmitted through the diplomatic channel, i.e., the Office of Policy Review and Interagency Liaison, Overseas Citizens Services, to the American Embassy in the country in question for transmittal to the Foreign Ministry. In cases under the FSIA, letters rogatory requests are handled exclusively by our Office of Policy Review and Inter-Agency Liaison. However, our general information flyer on preparation of letters rogatory (designed for cases other than the FSIA) will be of assistance. This is available via our home page on the Internet at http://travel.state.gov under Judicial Assistance or via our autofax service at (202) 647-3000 using the phone on your fax machine. (See "Additional Information" below.) Ignore references in the "Preparation of Letters Rogatory" flyer to our Office of American Citizen Services and Crisis Management, as that office is not responsible for FSIA cases. Rather, transmit the request to the Office of Policy Review and Inter-Agency Liaison, Room 4817 N.S., Department of State, 2201 C Street, N.W., Washington, D.C. 20520. The letter rogatory and accompanying documents (summons, complaint, and translations) should be submitted in duplicate (that is, one original in English with seal of court and signature of the judge, English photocopy and two copies of the translation.) No notice of suit is required. Effective June 1, 2002, there is a $650.00 consular fee for processing letters rogatory (See Federal Register, May 16, 2002, Volume 67, Number 95, Rules and Regulations, Pages 34831-34838; 22 CFR 22.1, item 51). Counsel are requested to submit a certified bank check in the amount of $650.00 payable to the U.S. Embassy (insert name of capital of the foreign country, for example, "U.S. Embassy Tokyo"). Personal checks are not acceptable.

1608(b)(3)(B) by any form of mail requiring a signed receipt to be addressed to the agency or instrumentality to be served. Because of the length of time involved in executing letters rogatory, courts may find it preferable to effect service on the agency or instrumentality under Section 1608(b)(3)(B) by international registered mail or other form of mail requiring a signed receipt addressed to the agency or instrumentality.

Proviso: Formal Objection of Foreign State to Service by Mail Upon Accession to the Hague Service Convention: If a foreign state which is a party to the Hague Service Convention formally objected to service by mail when it acceded to the Convention, service under Section 1608(b)(3)(B) should not be attempted, and the plaintiff should proceed to service under other methods available under Section 1608(b). If service is requested pursuant to a letter rogatory under Section 1608(b)(3)(A), the cover letter to the Department of State, Office of Overseas Citizens Services should cite the foreign state's objection to service by mail as noted in its accession to the Hague Service Convention. To determine which foreign state has objected to service under Article 10(a) of the Hague Service Convention via postal channels, see our information on the Hague Service Convention and the Hague Conference on Private International Law web site .

1608(b)(3)(C) by order of the court in the United States consistent with the law of the place where service is to be made . In the absence of a signed return receipt as proof of service, the plaintiff may find it necessary to proceed with Section 1608(b)(3)(A) and initiate the letter rogatory process or look to 1608(b)(3)(C) to ascertain whether there is any other method of service which the court may order consistent with the law of the place where service is to be made, i.e., the foreign country, such as service by agent or service by publication. The legislative history clarifies the meaning of the phrase "consistent with the laws of the place where service is to be made". [T]his latter language takes into account the fact that the laws of foreign countries may prohibit the service in their country of judicial documents by process servers from the United States. It is contemplated that no court will direct service upon a foreign state by appointing someone to make a physical attempt at service abroad, unless it is clearly consistent with the law of the foreign jurisdiction where service is to be attempted. It is also contemplated that the courts will not direct service in the United States upon diplomatic representatives (1976 U.S. Code Cong. & Ad. News 6624.), See also, Hellenic Lines Ltd., v. Moore, 345 F. 2d 978 (D.C. Cir. 1965), or upon consular representatives, Oster v. Dominion of Canada, 144 F. Supp. 746 (N.D.N.Y. 1956), aff'd, 238 F. 2d 400 (2d Cir. 1956). Therefore, before service is attempted under Section 1608(b)(3)(C), the FSIA calls for the Court to look to the laws of the foreign state regarding service of documents, apparently to ensure that the judicial sovereignty of the foreign state is not violated inadvertently. As a practical matter, U.S. courts sometimes inquire concerning this method by contacting the Department of State for information regarding service under the laws of the foreign country. In addition to providing the court or plaintiff's counsel with available information on service, the Department often refers the inquirer to the law library of the Library of Congress and may provide the inquirer with a list of foreign attorneys who may be in a position to provide an authoritative opinion on the subject. It should be noted that the Department of State is not a repository of foreign laws.

Keywords: document, hague convention,