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The Service of Process on a Foreign State*

Published online by Cambridge University Press:  21 May 2009

L.A.N.M. Barnhoorn
L.A.N.M. Barnhoorn
Affiliation:
Head, Department of Public International Law of the T.M.C. Asser Instituut.
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Extract

The doctrine of immunity of States has always had the interest of Bert Voskuil. The question whether a foreign State may be summoned before a national court has been raised and answered by him in numerous essays. Therefore, a study of the question how to summon a foreign State before the national judiciary is not out of place in a collection of essays on international procedural law, dedicated to Bert Voskuil.

Type
Research Article
Information
Netherlands International Law Review , Volume 39 , Special Issue S1: Law and Reality , October 1992 , pp. 1 - 17
Copyright
Copyright © T.M.C. Asser Press 1991

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References

1. Cf., inter alia, ‘De Nederlandse rechtspraak betreffende de staatsimmuniteit’, [Dutch judicial decisions regarding state immunity], in Mededelingen van de Nederlandse Vereniging voor Internationaal Recht [Reports of the Netherlands International Law Association], No. 68 (1973)Google Scholar; ‘The International Law of State Immunity, as Reflected in the Dutch Civil Law of Execution’, 10 NYIL (1979) pp. 245–289Google Scholar and Dutch report on state immunity for the International Law Association (ILA) Committee in preparation for the ILA Queensland Conference (T.M.C. Asser Instituut, September 1989).

2. This article not only deals with the service of a writ of summons, but also with all the other methods of service of process on a foreign State. Unless it appears from the context that it clearly concerns the service of a writ of summons proper, me term service of a writ of summons is used in its wider sense as expressed by the term service of process.

3. Kane, Mary Kay notes in her article: ‘Suing Foreign Sovereigns: A Procedural Compass’, that so far, the application of rules of U.S. legislation has caused hardly any problems, 34 Stan. L. Rev. (1982) pp. 385–425 at p. 399.CrossRefGoogle Scholar

4. See infra, Chapter 5.

5. The national acts and die ILA Draft mentioned in Chapter 5 contain specific provisions for State agencies. For further explanations, see the literature quoted in that chapter.

6. Cf., Belinfante, W.G., ‘Het Europees verdrag inzake de immuniteit van Staten’ [The European Convention on State Immunity], in Mededelingen van de Nederlandse Vereniging voor Internationaal Recht, No.67 (1973) p. 19.Google Scholar

7. Cf., de Muralt, R.W.G., ‘De Nederlandse rechtspraak met betrekking tot buitenlandse ambassades en consulaten’ [Dutch judicial decisions on foreign Embassies and Consulates], NJB (1987) pp. 1191–1194.Google Scholar

8. Thus: the Ktg. Rotterdam 13 April 1978, De Praktijkgids (1979) pp. 21–23Google Scholar; 10 NYIL (1979) pp. 442–444 regarding the Consulate-General of Belgium in Rotterdam and Rb. 's-Hertogenbosch 17 January 1986, Nieuwsbrief Volkenrecht [Public international law Newsletter] 8–2Google Scholar; mentioned in 19 NYIL (1988) p. 436 a 21: applicability of Art. 14 on the Budel army camp of Germany.

9. Trb. 1962 no. 101; 500 UNTS 95. The Convention entered into force tor the Netherlands on 7 October 1984.

10. Trb. 1965 no.40; 596 UNTS 261. The Convention entered into force for the Netherlands on 16 January 1986. Thus: Rb. The Hague 8 November 1983, NJ 1985 no. 814 with a note by J.C. Schultsz regarding the Embassy of Cape Verde in The Hague; Rb. The Hague 16 November 1984, Nieuwsbrief Volkenrecht 8–3Google Scholar; mentioned in 21 NYIL (1990) p. 380, regarding the Embassy of the United Kingdom; and the Ktg. The Hague 1 August 1985, Nieuwsbrief Volkenrecht 8–1Google Scholar; 19 NYIL (1988) p. 435; NIPR 1987 no. 387 regarding the Embassy of Turkey.

In Schultsz' above mentioned note, he states that the representation has to be considered as die residence of the foreign State concerned. This contention, however, is irrelevant for the rendering of the writ of summons, since the inviolability of representations prohibits such action.

11. Cf., Steinberger, H., in Bernhardt, R., ed., Encyclopedia of International Law, vol. 10 (1987) p. 437.Google Scholar

12. De Muralt, , loc. cit. n. 7, p. 1191Google Scholar, wrongly assumes that these petition procedures are not prohibited by the valid rules of international law.

13. Steinberger, , loc. cit. n. 11, p. 437.Google Scholar

14. According to Art. 13a of the Act the courts' judicial jurisdiction and the execution of court decisions and deeds are subject to the exceptions acknowledged under international law, while under Art. 13(4) of the Regulation, the bailiff is not allowed to serve a notification where he has been given notice by the Minister of Justice that the service would be contrary to me obligations of the State under international law. The term ‘international law’ includes customary international law. Cf., Explanatory Memorandum to the Bill for the approval of die European Convention on State Immunity of 1972, Bijl. Hand. II. 1981–1982, 17.485, No. 3, p. 3; 14 NYIL (1983) p. 251. The fact that Art. 13(4) came into being because of Art 13a, leads Teekens to conclude diat Art 13(4) is also limited to the service of notifications with respect to die execution of court decisions or deeds. (Teekens, M., ‘De Gerechtsdeurwaarder en het volkenrecht’ [The Court-Bailiff and public international law], De Gerechtsdeurwaarder (1987) pp. 218–223, at p. 219)Google Scholar. This may be die case with respect to the obligation to comply with the notice from the Minister. However, from the purpose of both Articles, viz., to prevent a foreign State being wrongly involved in a legal proceeding, it may be inferred that the issuing of writ of summons may be included.

15. Cf., Rb. The Hague 16 November 1984, supra n. 10.

16. Idem in Ktg. The Hague 1 August 1985, supra n. 10.

17. In the following cases in which the defendant State did not appear and the court continued the proceedings, it is not clear whether the clerk had sent the notification to the foreign representative or to the office of the public prosecutor according to the rules to be discussed below: Ktg. Rotterdam 15 November 1977, Institute's Collection No. 1271 with respect to the Consulate-General of the U.S A. at Rotterdam; Ktg. The Hague 14 November 1979, 11 NYIL (1980) p. 291 fn. 9; Ktg. The Hague, 3 March 1986, NIPR 1987 no. 137; 19 NYIL (1988) p. 438 fn. 27, Embassy of Australia at The Hague; Ktg. The Hague 4 May 1987,20 NYIL (1989) p. 297, Embassy of Zaire at The Hague.

18. Belinfante, , loc. cit. n. 6, p. 19.Google Scholar

19. Cf., Soek, J.W., ‘The Service of Documents Abroad and the Protection of Defendants Resident Abroad’, 29 NILR (1982) pp. 72–99 at p. 74.CrossRefGoogle Scholar

20. Art. 10 specifies that the periods have to be established by order-in-council. The provisions mentioned here are laid down in the Royal Decree of 3 November 1934, Stb. 566, amended by Royal Decree of 24 March 1950, Stb. K 105 and Royal Decree of 5 April 1972, Stb. 172.

21. I.e., Andorra, Austria, Belgium, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Monaco, Norway, Portugal, San Marino, Spain, Sweden, Switzerland, United Kingdom and Yugoslavia.

22. This period was, for instance, applied in the case of Azeta BV v. Republic of Chile. The process server served on die office of the Public Prosecutor 4 My 1984 asking Chile to appear before the court on 7 November. The Rb. Rotterdam gave a judgment by default on 5 December, 5 NYIL (1986) p. 256. In the judgment nothing was said about the part of the service by the Ministry of Foreign Affairs or about the fact that the writ finally reached Santiago. As stated, under the system provided by Dutch national law the court is not obliged to consider these things.

23. Cf., Kosters, J. and Dubbink, C.W., Nederlands internationaal privaatrecht [Dutch private international law] (1962) p. 876.Google Scholar

24. By virtue of the last phrase of the provision at Art. 5(j). Art. 5(j) reads:

‘Consular functions consist in: (a). … (j) transmitting judicial and extra-judicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending State in accordance with international agreements in force or, in the absence of such international agreements, in any other manner compatible with the laws and regulations of the receiving State;…’.

The Convention has entered into force for 115 States; cf., NIPR 1990 no. 170 and Boele-Woelki, K., Tekstuitgave IPR [Private international law texts] (1991) p. 590.Google Scholar

25. In conformity with the provision in the last phrase of Art S(j) of the Vienna Convention on Consular Relations, see supra n. 24. Cf., François, J.P.A., Grondlijnen van het volkenrecht [Outlines of public international law] (1967) pp. 376 and 381Google Scholar and Kosters-Dubbink, , op. cit. n. 23, p. 876.Google Scholar

26. Steinberger, , loc. cit. n. 11, p. 437.Google Scholar

27. The Convention was signed on 1 March 1954, Trb. 1954 no. 40; 286 UNTS 265. Besides the Netherlands, the Convention entered into farce for Argentina, Austria, Belgium, Czechoslovakia, Denmark, Egypt, Finland, France, Germany, Hungary, Israel, Italy, Japan, Lebanon, Luxembourg, Morocco, Norway, Poland, Portugal, Rumania, Soviet-Union, Spain, Surinam, Sweden, Switzerland, Turkey, Vatican City and Yugoslavia. Cf., NIPR 1990 no. 155 and Boele-Woelki, , op. cit. n. 24, p. 595.Google Scholar

28. The possibility of concluding other agreements is expressly mentioned in Art. 1(4). The Netherlands has made use of it in relations with Germany, Austria and Belgium. Cf., Soek, , loc. cit. n. 19, p. 79.Google Scholar

29. The Convention was signed on 17 July 1905, Stb. 1909 no. 120; 199 Parry CTS 1. As far as the Netherlands is concerned the Convention is only effective in relation to Iceland.

30. Soek, , loc. cit. a 19, p. 78.Google Scholar

31. The complete title of the Convention reads ‘Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters’ and was signed on 15 November 1965, Trb. 1966 no. 91; 658 UNTS 163. Besides the Netherlands the Convention entered into force for Antigua and Barbuda, Barbados, Belgium, Botswana, Canada, Cyprus, Czechoslovakia, Denmark, Egypt, Finland, France, Germany, Greece, Israel, Italy, Japan, Luxembourg, Malawi, Norway, Pakistan, Portugal, Seychelles, Spain, Sweden, Turkey, United Kingdom and United States of America. Cf., NTPR 1990 no. 174 and Boele-Woelki, , op. cit. n. 24, p. 596Google Scholar. Art. 22 of the Convention states that where Parties to the Convention are also Parties to one or bom of the Conventions on Civil Procedure of 1905 and 1954 the Convention shall replace as between them Arts. 1 to 7 of the earlier Conventions.

32. Cf., Explanatory Memorandum to the Bill of Approval, Bijl. Hand. II, 1972–1974, 12865, No. 3, p. 3Google Scholar; Soek, , loc. cit. n. 19, pp. 83–84Google Scholar; Vlas, P., Burgerlijke Rechtsvordering [Civil procedure], looseleaf, Part: Verdragen [Treaties], Chap. G, pp. 2–10.Google Scholar

33. See Art. 8, Enforcement Act, Stb. 1975 no. 5 and Boele-Woelki, , op. cit. n. 24, p. 458.Google Scholar

34. Soek, , loc. cit. n. 19, p. 84Google Scholar, Explanatory Memorandum to the Bill of Approval, loc. cit. n. 32, No. 3, p. 4.Google Scholar

35. In conformity with Art. 6(3) of the 1905/1954 Conventions. This method is based on international customary consular law as discussed in Chapter 1 and is applied, as said, by die Netherlands, following the Art. 4(8) CCP procedure with respect to a State not being a party to any convention in the service of documents. Cf., Soek, , loc. cit. n. 19, p. 85Google Scholar and Explanatory Memorandum to the Bill of Approval, loc. cit. n. 32, No. 3, p. 4.Google Scholar

36. As an extension, Art 10(2) contains the method of process server of the State of origin directly through process servers of the State of destination.

37. Actes et Documents, vol. III, p. 375.Google Scholar

38. Judgment of 18 June 1987, S & S 1988 no. 55; NIPR 1987 no. 469; 20 NYIL (1989) pp. 290–294 at p. 292.

39. Explanatory Memorandum to die Bill of Approval to the European Convention of 1972, loc. cit. n. 14, p. 9Google Scholar. To a lesser extent, Memorandum of Reply, Bijl. Hand II, 1982–1983, 17485, No. 6, p. 5.Google Scholar

40. Trb. 1973 no. 43; ETS No. 74; 11 ILM (1972) p. 470; ILA, Report of the Fifty-Ninth Conference (Belgrade 1980) p. 219.Google Scholar

41. Trb. 1985 no. 38. For seven omer States, viz., Austria, Belgium, Cyprus, Germany, Luxembourg, Switzerland and the United Kingdom, the Convention entered into force. Cf., Chart Showing Signatures and Ratifications cf Conventions and Agreements Concluded within the Council of Europe (Strasbourg 1991)Google Scholar (updated as of 1 July 1991); NIPR 1990 no. 183 and Boele-Woelki, , op. cit n. 24, p. 592.Google Scholar

42. Bijl. Hand. II, 1982–1983, 17485, No. 3, p. 23 (para. 59).

43. Explanatory Memorandum, loc. cit. n. 14, p. 9Google Scholar; 14 NYIL (1983) p. 257.

44. Belinfante, , loc. cit. n. 6, p. 20Google Scholar; Explanatory Report to the Convention, loc. cit n. 42, p. 22 (para. 58).Google Scholar

45. Cf., Memorandum of Reply, loc. cit. n. 39, p. 2Google Scholar. The difference may give rise to the question whether Art 16 should be considered as self-executing or whether further rules for implementation were required. In the Explanatory Memorandum, loc. cit n. 14, p. 9Google Scholar; 14 NYIL (1983) p. 257, the Minister stated that Art 16 needed no further implementing legislation. 46. Belinfante, , loc. cit. n. 6, p. 19.Google Scholar

47. Ibid., p. 20.

48. Explanatory Report to the Convention, loc. cit. n. 42, p. 23 (para. 60).Google Scholar

49. Belinfante, , loc. cit. n. 6, p. 20.Google Scholar

50. According to the Memorandum of Reply the absence of mis caused most of the problems in international practice, loc. cit. n. 39, p. 5.

51. Belinfante, , loc. cit. n. 6, p. 20.Google Scholar

52. Explanatory Memorandum, loc. cit n. 14, p. 9Google Scholar; 14 NYIL (1983) p. 258.

53. Also with respect to its predecessors. In the case Westwind African Line and others v. State of the Netherlands, the President of the Rechtbank van Koophandel [Commercial Court] at Antwerp therefore wrongly accepted mat the Netherlands could be summoned by having the Belgian process server mail the writ (dated 19 September 1983) to (1) the Procurator-General to the HR, herewith probably applying the rules of the Dutch-Belgian Treaty of 1937/1938 (Stb. 1938 no. 18, see supra n. 28), and to (2) the Public Prosecutor at the Rb. The Hague, the ‘central authority’ under The Hague Convention on the Service of Documents of 1965. However, the Rb. Middelburg did not recognize the judgment by default against the Netherlands given by the President on 20 September, because the writ of summons was not served on time. Thus the Rb. also did not recognize mat according to Art 16 of the European Convention the writ should have been sent to the Dutch Ministry of Foreign Affairs (Judgment of 25 June 1986, mentioned in the judgment on appeal by the Hof The Hague of 20 March 1990, S & S 1991 no. 51).

54. Explanatory Memorandum, loc. cit. n. 14, p. 9Google Scholar; 14 NYIL (1983) p. 258.

55. 15 ELM (1976) p. 90; UN Legislative Series, ‘Materials an Jurisdictiooal Immunities of States and Their Property’ (New York 1982) ST/LEG/SER.B/20, p. 41Google Scholar; ILA, op. cit. n. 40, p. 241Google Scholar; discussed by Kane, , loc. cit. n. 3, pp. 397–402.Google Scholar

56. 17 ILM (1978) p. 1123; UN Legislative Series, op. cit. n. 55, p. 55.Google Scholar

57. UN Legislative Series, op. cit. n. 55, p. 28.Google Scholar

58. Ibid., p. 20.

59. Ibid., p. 34.

60. Ibid., p. 9; 21 ILM (1982) p. 798.

61. 25 ILM (1986) p. 715.

62. Cf., Molot, H.L. and Jewett, M.I., ‘The State Immunity Act of Canada’, 20 Can. YIL (1982) pp. 79–122 at p. 119.Google Scholar

63. [1986] 1 WLR 979.

64. See supra, Chapter 1.

65. House Report No. 94–1487, UN Legislative Series, op. cit n. 55, pp. 98–128 at p. 115.Google Scholar

66. The House Report also mentions die method of transmittal by the Department of State to the Embassy of the foreign State in Washington. This is analogous to the practice preferred by the U.S A. when it is being summoned before foreign courts. Cf., Instruction of 16 June 1961, 56 Am. J. Int. L. (1962) pp. 532–533.

67. House Report, op. cit. n. 65, p. 115.Google Scholar

68. Ibid.; Restatement of the Law, Third, The Foreign Relations Law of the United States, vol. 1 (1987) p. 424.Google Scholar

69. See supra, Chapter 4.

70. ILA, Report of the Sixtieth Coherence (Montreal 1982) p. 9.Google Scholar

71. Ibid., pp. 333–334.

72. ILA, Report of the Sixty-Fourth Conference (Queensland 1990) pp. 430–431.Google Scholar

73. Ibid., p. 430.

74. UN Doc. A/CN.4/388. ILC Yearbook 1985, vol. II (Part One) p. 45Google Scholar; UN Doc. A/CN.4/396, ILC Yearbook 1986, vol. II (Part One) p. 31.Google Scholar

75. ILC Yearbook 1986, vol. I, pp. 7, 10, 11, 12, 14, 15, 17, 18 and 20.Google Scholar

76. ILC Yearbook 1986, voL II (Part Two) pp. 12 and 20–21.Google Scholar

77. Ibid., p. 20.

78. Ibid.

79. UN Doc. A/CN.4/415 of 20 May 1988 at p. 127. Also published in Report of the ILC on the work of its 41st Sess., GAOR, 44th Sess., Suppl. 10 (A/44/10) pp. 324–327 and UN Doc. A/CN.4/431 of 11 April 1990 pp. 41–43.

80. Report of the ILC onthe work of its 44nd Sess., GAOR, 45th Sess., Suppl. 10 (A/45/10) p. 107.

81. Report ofthe ILC on the work of its 43rd Sess., GAOR, 46th Sess., Suppl. 10 (A/46/10) p. 145.

82. Ibid., p. 148.

83. A clear support for the European solution may be found in the Inter-American Draft Convention on Jurisdictional Immunity of States, approved by the Inter-American Juridical Committee on 21 January 1983. Article 9 of the Draft resembles more or less the method of Article 16 of the European Convention, 22 ILM (1983) p. 292.