by Jeremy D. Morley*
Family lawyers handling cases with foreign-based defendants need to understand the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Service Convention”).
The Convention, to which the United States is a party, regulates the procedures for service of process between member countries. It is intended to provide a simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions receive actual and timely notice of suit, and to facilitate proof of service abroad.[1]
When the Convention Applies
The Convention applies whenever a judicial or extrajudicial document that relates to a civil or commercial matter is to be served from one Contracting Party to another, as long as the address of the person to be served is known. (Article 1).
Whenever these conditions are fulfilled, the Convention’s requirements for services must be applied.
As of March 2024, 84 countries were parties to the Convention.[2]
Central Authorities
The Convention requires signatory countries to establish a Central Authority through which to receive requests for service of documents from other countries, and to serve those documents by methods compatible with the internal laws of the receiving state.[3]
The Convention provides a specific process by which foreign defendants can be served with process. A model form must be used. Each contracting state designates a Central Authority to accept incoming requests for service. A “Judicial Officer” who is competent to serve process in the state of origin is permitted to send a request for service directly to the Central Authority of the state where service is to be made. The Central Authority then arranges for service to be made in a manner permitted under the law of that state and is required to complete a certificate of service in the form of the model annexed to the Convention. The Department of Justice is the U.S. central authority, although its functions are outsourced to a private company.
Service through the standard method is often slow, sometimes extremely slow. China, India and Mexico have reputations for being particularly dilatory in effecting service.
Translations
Each Central Authority may require the documents that are to be served to be written in, or translated into, the official language or one of the official languages of the recipient country. (Article 5). Translation requirements for each destination country are set forth in the Declaration filed by each country, which may be accessed through the Status Table for the Convention available on the website of the Hague Conference on Private International Law.[4]
Without the proper translation, a central authority might reject the submission or the service might be deemed invalid.
Unknown Address
Article 1 of the Convention provides that, “[t]his Convention shall not apply where the address of the person to be served with the document is not known.” Although that language does not expressly require that parties relying on it must prove that they engaged in diligent efforts to locate the address of the defendant, courts have held that such a requirement is necessarily implied.
Thus, in a California juvenile dependency proceeding concerning a parent who was a resident of Mexico, the Department of Children and Family Services failed to conduct a reasonable due diligence search for the father’s address that was a “thorough, systematic investigation and inquiry conducted in good faith.” Accordingly, service had to be made in compliance with the Service Convention.[5]
Other Methods of Service
Service through a central authority is not the exclusive way to effectuate service in compliance with the Convention. The Convention expressly authorizes several alternate methods of service.
Article 10 of the Convention provides for service by mail (in Article 10(a)), or by or through judicial officers––officials or other competent persons of the state of destination (Article 10(b) and (c) ) Article 10 provides in full as follows:
“Provided the State of destination does not object, the present Convention shall not interfere with—
(a) the freedom to send judicial documents, by postal channels, directly to persons abroad,
(b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,
(c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.”
All treaty partners have the right to issue declarations in which they object to any or all of the specified alternate methods of service and many countries have done so. Such declarations are required to be filed with the Ministry of Foreign Affairs of the Netherlands in accordance with Article 21 of the Convention and they are authoritatively recorded and published on its website by the Hague Conference on Private International Law, which promulgated the treaty.
Effect of Central Authority Failure
Article 15 of the Convention authorizes a judge in any Contracting State to give judgment if service has been effectuated under a non-Convention method if no certificate of service or delivery has been received from the relevant Central Authority, if all the following conditions are fulfilled:
- a) the document was transmitted by one of the methods provided for in this Convention,
- b) a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document, and
- c) no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.
Service by Mail
Article 10(a) of the Convention states that, “[p]rovided the State of destination does not object, the present Convention shall not interfere with (a) the freedom to send judicial documents, by postal channels, directly to persons abroad…”
States which permit parties to use such alternative means of service make a separate designation in the documents that they file pursuant to the Convention.
The Supreme Court has ruled that that language permits service of process by mail to litigants in those member countries that have not objected to such service.[6]
The following countries (and possibly others) have formally objected to service by mail: Argentina, Bulgaria, China, Croatia, Czech Republic, Egypt, Germany, Greece, Hungary, Iceland, India, Japan, Korea, Kuwait, Lithuania, Macedonia, Mexico, Norway, Poland, Russian Federation, San Marino, Serbia, Seychelles, Slovak Republic, Sri Lanka, Switzerland, Turkey, Ukraine and Venezuela.
In any such case, the party asserting the propriety of service by mail must establish (a) that such service was made in compliance with the service rules of the forum state, and (b) that the destination country has not objected to service by mail.
Service by a “Competent Person”
Courts have construed Article 10(c)’s “other competent persons” as an individual permitted to serve process in the foreign country.[7]
In one case, the court rejected the “tortured reading” that “competent persons of the State of destination” refers only to “competent persons who are employed by the destination State.”[8]
Thus, upon the submission of satisfactory proof that a licensed Colombian attorney was authorized by the law of Colombia to serve process and was duly authorized to do so through a Limited Power of Attorney by the Plaintiff, and since Colombia had not objected to Article 10(c) as a means of effecting service, and that Colombia permitted service in the manner effectuated by the attorney (by affixing the papers at the entrance of the defendants’ domicile and sending them by certified mail), a New York court upheld the attorney’s service of the New York petition.[9]
Service by Email
Courts have split on whether such an objection to Article 10 service methods also prohibits service by email, which is not explicitly listed in Article 10(a).”
One camp holds that because “the Hague Convention outlines specific methods of service,” any “methods of service that are not specifically authorized are impermissible under the Convention.”[10] These courts reason that “[t]he Convention … doesn’t simply offer options for service abroad—options that plaintiffs can resort to or not at their discretion. Rather, unless an exception applies, the Convention-delineated methods of service … are exclusive.”[11]
Other courts reject this notion. For example, the Tenth Circuit held that “the relevant inquiry under Rule 4(f)(3) is not whether the [international] agreement affirmatively endorses service,” but “whether the alternative service method in question is ‘prohibited’ by the agreement.”[12] Although the court did not address email service in particular, it found that if “the Convention does not contain a specific prohibition on [a] form of service,” a district court could properly authorize that form of service under FRCP Rule 4(f)(3).[13]
Regarding email service on a Chinese defendant specifically, the Fifth Circuit has found that it does not violate the Hague Convention and can be appropriate under Rule 4(f)(3) of the Federal Rules of Civil Procedure.[14] However, in that case, the plaintiff initially attempted service under the Hague Convention and the district court had authorized service by email only after the Chinese Central Authority had failed to serve the defendants after eight months. In contrast, a district court in Texas ruled that email service against a defendant in China when such conditions did not exist was barred by the Convention.[15]
Service for Urgent Provisional or Protective Measures
Article 15 of the Convention outlines the circumstances in which a court may enter judgment notwithstanding a defendant’s failure to appear. The last sentence of the Article provides that, “Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency, any provisional or protective measures.”
That language has been interpreted to authorize relief such as temporary restraining orders or preliminary injunctions, which are quintessential “provisional or protective measures,” notwithstanding a failure to effectuate service under the Convention.[16] Unlike alternative service, these measures are designed precisely for the purpose of providing interim relief. See 13 Moore’s Federal Practice § 65.20 (3d ed. 2025) (“The purpose of the preliminary injunction is to preserve the status quo between the parties pending a final determination of the merits of the action.”).[17] Additionally, under Federal Rule of Civil Procedure 65(a), preliminary injunctions require only “notice”—as opposed to formal Rule 4 “service”—to the party against whom relief is sought. Fed. R. Civ. P. 65(a). “[D]etermination of the adequacy of [Rule 65(a)] notice falls within the exercise of the district court’s sound discretion.” See 13 Moore’s Federal Practice § 65.21[2] (3d ed. 2025). Thus, although a plaintiff cannot obtain final relief until complying with the Convention’s proscribed methods of service, it may still be able to obtain a restraining order to restrain defendants and freeze their assets by providing notice in a manner that requires substantially less than what service under the Convention requires.[18]
Burden of Proof
The burden is on the plaintiff to show that service of process on the defendant comported with the Hague Convention, or why the Hague Convention did not apply.[19]
Default Judgments
Article 15 sets out two sets of conditions that each permit a court to grant default judgment. Put more simply, from the perspective of a plaintiff, Article 15 creates two separate “routes” to secure a default judgment. [20]
Under “route one,” a plaintiff serves a foreign defendant “by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory” or verifies that “the document was actually delivered to the defendant or to his residence by another method provided for by this Convention.” If a plaintiff has served a defendant in either of these two ways and “service or the delivery was effected in sufficient time to enable the defendant to defend,” then the court can grant default judgment.
Under “route two,” a plaintiff first transmits the service document “by one of the methods provided for in this Convention.” After such service, if “a period of time of not less than six months, considered adequate by the judge in the particular case” has passed and “no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed,” then the court can grant default judgment.
Effect of Noncompliance
Failure to follow the Convention’s requirements renders the service of process on a foreign defendant in a signatory nation void, even if the defendant has actual notice of the lawsuit.
Thus, in a Utah case the husband in Utah sued the wife, who had retained the parties’ child in Mexico, for divorce and ancillary relief. He served the wife by mail in accordance with the normal service of process provisions of the Utah Rules of Civil Procedure. The Utah court entered a default judgment against the wife. Two years later, the wife moved to set aside the default decree, asserting that she had just learned of the petition. The trial court denied her motion, but the Utah Court of Appeals reversed, because service on the wife had not comported with the requirements of the Service Convention.[21]
Likewise, in a case in Ohio, the family lived in Ohio until the wife took the children to Egypt for a visit and then refused to return them.[22] The husband commenced a case in Ohio for divorce and custody. He served the wife by courier service in Egypt pursuant to the express authorization of the trial court. The wife defaulted and the court entered judgment for a divorce, with custody to the father and a division of marital property. On appeal, the court determined that Egypt required service to be made only through its central authority. Since that had not been accomplished, and there had not been a waiver of the defense of lack of service by the wife, the judgment of the lower court was vacated in its entirety.
Similarly, a Texas court vacated a default divorce when the husband, who resided in India, was not served in accordance with the Convention.[23]
And even though the trial court granted the husband’s motion to order that service of divorce papers be made upon the wife in Mexico by registered mail, return receipt requested, it was subsequently held that such service was ineffective since the husband had not complied with the Hague Convention by not attempting to serve the wife through the Mexican Central Authority with divorce papers in Mexico and by failing to complete a request form as required by the Convention.8
Effect of Actual Notice
The fact that the defendant receives actual notice of the case does not excuse a failure to effectuate service under the Convention.
Thus, a parent who resided in India was not properly served, even though she had actual notice of custody proceedings in New York, because the Central Authority of India did not send a certificate of service to the father, as required by Article 15 of the Hague Convention, nor had a showing been made that the Central Authority actually transmitted the documents to the mother or that a period of not less than six months had elapsed after the date of the father’s transmission of the documents to the Central Authority.[24]
Similarly, even though the wife living in Germany had actual notice of the husband’s Ohio divorce proceedings and a German lawyer filed a purported answer, the action was dismissed for lack of service because the husband failed to send the papers to the German Central Authority translated into German, in accordance with the requirements of the Convention as adopted by Germany.
*www.international-divorce.com; jmorley@international-divorce.com
[1] Volkswagenwerk Aktiengesellschaft v. Schlunk 486 U.S. 694, 698, 108 S.Ct. 2104 (1988).
[2] https://www.hcch.net/en/instruments/conventions/status-table/?cid=17
[3] Richmond Techs., Inc. v. Aumtech Bus. Sols., No. 11-CV-02460-LHK, 2011 WL 2607158, at *11 (N.D. Cal. Jul. 1, 2011) (citing Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698-99 (1988)).
[4] https://www.hcch.net/en/instruments/conventions/status-table/?cid=17
[5] In re D.R. (2019) 39 Cal.App.5th 583, 591–592, 252 Cal.Rptr.3d 283.
[6] Water Splash, Inc. v. Menon, 137 S. Ct. 1504, 197 L. Ed. 2d 826, 41 I.E.R. Cas. (BNA) 1816 (2017).
[7] Zamora v JP Morgan Chase Bank, 2017 WL 2954680 (SDNY 2017), citing Ingram Micro, Inc. v. Airoute Cargo Express, Inc., No. 99 Civ. 12480 (SAS), 2001 WL 282696, at *6 (S.D.N.Y. Mar. 22, 2001) and In re Am. Internat’l Grp., Inc. 240 F.R.D. 608 (S.D.N.Y. 2007) (private process servers were “competent persons” within the meaning of Article 10(c)).
[8] Koehler v. Dodwell, 152 F.3d 304, 307–08 (4th Cir. 1998)
[9] Zamora, supra.
[10] Smart Study Co., 620 F. Supp. 3d at 1393.
[11] Facebook, Inc. v. 9 Xiu Network (Shenzhen) Tech. Co., 480 F. Supp. 3d 977, 983 (N.D. Cal. 2020).
[12] Compania de Inversiones Mercantiles, S.A. v. Grupo Cementos de Chihuahua S.A.B. de C.V., 970 F.3d 1269, 1294 (10th Cir. 2020).
[13] Id. at 1294–95.
[14] Nagravision SA v. Gotech Int’l Tech. Ltd., 882 F.3d 494, 498 (5th Cir. 2018).
[15] BuDhaGirl, LLC v. Yiwushijulimaoyiyouxiangongsi, 2025 WL 1645830 (USDC, N.D.TX, May 21, 2025).
[16] Overnight Blowout LLC v. Shenzhen Kairuijia E-Commerce Co., Ltd., 2025 WL 2381588 (USDC, SDNY, August 13, 2025).
[17] Id.
[18] Id.
[19] Lebel v. Mai 210 Cal.App.4th 1154, 1160, 148 Cal.Rptr.3d 892 (2012); In re R.L., 4 Cal. App. 5th 125, 208 Cal. Rptr. 3d 523 (4th Dist 2016).
[20] Bestway Inflatables & Material Corp. v. Individuals, Corporations, 2025 WL 1696438 (N.D. Ill., June 17, 2025).
[21] Saysavanh v. Saysavanh, 2006 UT App 385, 145 P.3d 1166,
[22] Tadross v. Tadross, 2017-Ohio-930, 86 N.E.3d 827 (Ohio Ct. App. 8th Dist. Cuyahoga County 2017).
[23] Chukkapalli v. Mandava, 2017 WL 2871416 (Tex. App. Dallas 2017).
[24] Vikram J. v. Anupama S., 123 A.D.3d 625, 999 N.Y.S.2d 411 (1st Dep’t 2014).
[24] Ward v. Ludwig, 149 Ohio App. 3d 687, 2002-Ohio-5948, 778 N.E.2d 650 (4th Dist. Pike County 2002).