G. Evan Spencer and Noe S. Hamra ●
Maritime disputes often find their way to arbitration. Whether the arbitrations are sited in the United States or another country, collection of arbitration awards frequently requires that the prevailing party initiate a civil lawsuit to recognize and enforce the arbitration award in a U.S. federal court. In instances where the award debtor is foreign, serving process pursuant to U.S. rules often presents a significant hurdle to enforcing the award.
Rule 4 of the Federal Rules of Civil Procedure (“FRCP”) provides that service of process can be effected on a foreign defendant by any internationally agreed means that is reasonably calculated to give notice or, if no such agreed means exists, by service reasonably calculated to give notice that is in compliance with the foreign country’s laws or in a manner otherwise not prohibited by that country’s laws or international agreement. Without effective service of process, U.S. courts are usually reticent to award a default judgment, and may be forced to grant a motion to dismiss under FRCP Rule 12(b).
The most common internationally agreed means of service arises under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Convention”). The Hague Convention provides for service through a ratifying country’s Central Authority, which is the governmental body designated to facilitate service of process. Service via the Central Authority is reliable and relatively cost effective, but can take a significant amount of time—sometimes more than six months—to accomplish, leading to increased delay and expense in enforcement actions.
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