Federico (M. A.) Cincotta, CEO, International Advisory Firm | Senior Board, Business & Legal Advisor, UK, LATAM & Emerging Markets Experience, Vice-President of SOBAL
Agustin R. Spotorno, Senior Associate Attorney at Winston & Strawn London LLP (International Arbitration, Foreign Direct Investments and Cross-Border Disputes)
Introduction
Service of process is known as the procedure whereby one party bringing legal proceedings provides another party appropriate notice of the initiation of legal action. It is a fundamental element of due process in Argentina and the United Kingdon as it allows a defendant to take notice of a claim against it and prepare its defense.[i] Service of process is not to be confused with the concept of jurisdiction which means the power courts have to adjudicate claims before them.
Service of Process Out of Jurisdictions in Argentina and the United Kingdom.
Argentina
Argentine law requires a Court seized of a matter to first ascertain its jurisdiction over it.[ii] If so asserted, the party bringing proceedings must then serve the key legal documents on the defendant’s personal domicile [iii] Article 339 of the Code of Procedure on Civil and Commercial Matters (CPCC) states that the service of proceedings shall be done by means of notice. It may also be notified by any other suitable means that ensures its receipt. In turn, Article 136 of the CPCC states that “service of process must be effectuated personally or by cédula and shall be carried out at the domicile of the person to be notified.” If the domicile of the person to be served is unknown and cannot be located, the court may order the notifications to be made at the place where the person is commonly present or carries out regular activities, or at any other place that ensures reception by the person. If these are also unknown the domicile shall be that which has last been known of.
In the case of a company, service of proceedings must be made at the company’s place of incorporation.[iv] Service of proceedings is required to be carried out through a judicial officer and in paper. Failure to serve proceedings correctly carries severe penalties, such as turning the service and subsequent procedures null and void.[v] Given Argentina’s federal structure, with each province regulating their procedural law issues, it is common for provinces’ local judiciaries to have cross-border cooperation agreements to regulate issues pertaining to service of proceedings.
The CPCC provides that judicial notifications can be made via notarial act, telegram with certified copy, and document letter via post with delivery notice. Certain “specified orders” such as “service of claim [and] counterclaim,” however, can only be served by means of a formal notification conducted by a judicial officer.[vi]
Argentina is a party to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”). The Argentine Constitution states that Conventions are above domestic laws.[vii] The Hague Service Convention broadens the domestic law scope of methods of service of claims. In addition to the CPC, the General Law of Companies provides the following in relation to service of process on overseas companies operating in Argentina:
“The summons of a company incorporated overseas may be served in the Republic… a) Originating in an isolated act, in the person of the attorney-in-fact who intervened in the act or contract which is the cause of the litigation; b) if there is a branch, seat or any other kind of representation, in the person of the representative.“[viii]
United Kingdom
For a party to serve proceedings out of the jurisdiction English law requires a party to seek permission from the Court which needs to be satisfied that it has jurisdiction, although in some statutorily defined cases the prior court requirement can be dispensed with.[ix][x][xi] Before requesting permission, a party must ascertain whether there is an alternative to serving the defendant out of the jurisdiction. This includes for example whether there exist:
(1) a contractually agreed method[xii]; or
(2) an overseas company carrying on business in the jurisdiction. It is possible to serve a claim form under either the Companies Act 2006 or the Civil Procedure Rules (CPR) (whichever is more advantageous to a claimant). The CPR provides that in the case of unregistered companies, proceedings may be served on any place of business within the jurisdiction. However, a claimant cannot validly serve proceedings on a foreign defendant by sending the claim form to the UK registered office of the parent company if it is not a place of business of the company.[xiii] Nor can it do so at the UK registered office of a UK company within the same group as the defendant[xiv] A party cannot use CPR 6.5 – personal service – to serve a foreign company which does not carry on business within the jurisdiction by serving the claim form personally on one of its directors while they are present in the jurisdiction.[xv]
The UK Companies Act also contains provisions on service of proceeding on overseas companies enabling documents to be served on their registered establishment. An establishment is defined broadly as either a branch[xvi] or any place of business that is not such a branch, i.e., anywhere that a company regularly conducts business or has premises that indicate that a company may be contacted there.
The UK establishment is not a separate legal entity, but rather the same legal entity as, and an arm of, its overseas company. Service of process is effected by leaving the document at, or sending it by post to, the registered address of any authorized person resident in the UK. In the case of “place of business” service can be effected by leaving the document at, or sending it by post to, any place of business of the company within the UK.[xvii] This provision permits service on an overseas company via a place of business that does not constitute a branch (e.g., warehouse). In both cases there is no requirement that the proceedings should relate to the business conducted in England.[xviii]
Finally, the Companies Act 2006 permits a document to be served on a company director (or secretary) by leaving it at or sending it by post to the person’s registered address “whatever the purpose of the document in question”.[xix]
Should neither of the alternative methods be applicable, the claimant needs to determine whether or not it must seek court permission to serve out of the jurisdiction.
There are limited situations where that is not required such as
- when proceedings relate to consumer and individual employment contracts provided certain conditions are met;[xx]
- when the English court has jurisdiction under the Hague Convention on Choice of Court Agreements 2005 which sets international rules concerning which court has jurisdiction in cases where parties have agreed to resolve disputes in a particular court;[xxi] and
- where for each claim a contract contains a term to the effect that the English court has jurisdiction to determine the claim.
Permission may be granted if the claim fits within one of the common law jurisdictional gateways.[xxii] Further, the applicant must be able to show that it has at least a reasonable prospect of success regarding one of them. The English Court needs to be satisfied that there is a “good arguable case” that it has jurisdiction to hear the claim. As the application is made without notice, the claimant must make full and frank disclosure of all material facts, including anything detrimental to the claimant’s case. [xxiii]
The Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.
With the UK and Argentina[xxiv] being parties to it, the 1969 Hague Service Convention is an obvious way through which service of proceedings between UK and Argentine can be effectuated. With the goal of simplifying, standardizing and ensuring the effective and timely service of legal documents across international borders, the Hague Service Convention stipulates a “principal” and “alternative” methods of service with each signatory. Further, each signatory designates a “Central Authority” from within its jurisdiction that will handle the receipt, processing and return certificate of service. There is also a designated local authority known as “forwarding authority” which is chosen by the country where the case is heard as private parties cannot send documents to the Central Authority of other countries.
The “principal” method[xxv] consists of the forwarding authority sending the documents to the Central Authority of the receiving state which then arranges for service according to its internal law. The Central Authority then provides a certificate of service as evidence that the documents have been served. The alternative methods include: (a) diplomatic/consular channels; [xxvi] (b) postal channels; (c) direct service through judicial officers[xxvii]; (d) two contracting states agreeing to methods other than those provided in the Convention; and (e) direct communications between judicial authorities.[xxviii]
When it comes to serving proceedings on States or its instrumentalities, it is recommended to do so exclusively through diplomatic channels as detailed below – and not through the Hague Service Convention, to minimize the risk of the service later being deemed invalid, given the lack of clarity as to the Convention’s applicability here.
Service from the UK to Argentina
Outside the framework of the Hague Service Convention, a UK private person or entity who wishes to serve proceeding on an Argentine private resident individual or entity may do so through the government of Argentina, through a British Consular authority therein. Alternatively, it could be done through the appointment of a local process server or legal professional in Argentina or even the UK court may authorize alternative practical methods such as service via email.
Within the Hague Service Convention, a person in the UK trying to serve proceedings on a person based in Argentina will typically need to send the Request for Service to the English forwarding authority (Senior Master of the Royal Courts of Justice) which in turn will have to send the specific documents to be served along with the “Request for Service” form to the Argentine Central Authority (Ministry of Foreign Affairs, International Trade and Worship) with the latter then handling the service through local judicial officers. Once completed, the Ministry will return a certificate of service back to the UK.
Service from Argentina to the UK
Outside the Hague Service Convention, service of process out of jurisdiction typically takes place via a rogatory letter which is a formal letter of request from the Argentinean court via the Argentinean foreign ministry to the Argentinean embassy in the defendant’s domicile (or place of incorporation). Then, the embassy sends a summons to the foreign ministry of the defendant’s domicile, which then serves notice of the proceedings on the defendant in accordance with the usual rules of service in that jurisdiction.
Within the Hague Service Convention, the person in Argentina will send the relevant documents and the “Request for Service” form to the Argentine forwarding authority (a judicial officer) which will send it to the UK Central Authority (the Foreign Process Section of the Royal Courts of Justice) which will facilitate the service subsequently either directly or through a designated process server. Once the service is completed the UK Central Authority will return a service certificate to the Argentine party.[xxix]
Service of Process to Argentine or UK State and their Instrumentalities.
United Kingdom
The UK State Immunity Act 1978 (SIA) governs immunity of foreign states from UK court jurisdiction enshrining the principle that foreign states are generally immune from court jurisdiction, with only defined exceptions (e.g. commercial activity, waiver). The UK Supreme Court highlighted the mandatory nature of section 12(1) SIA which requires formal service through diplomatic channels unless consent is provided otherwise by the foreign state.[xxx] Article 12 reads:
“Any writ or other document required to be served for instituting proceedings against a [foreign] State shall be served by being transmitted through the Foreign, Commonwealth and Development Office to the Ministry of Foreign Affairs of the State and service shall be deemed to have been effected when the writ or document is received at the Ministry.”
In Kuwait Airways Corp. v Iraqi Airways Co[xxxi] proceedings were served on the Iraqi Embassy in London rather than directly on the Iraqi Ministry of Foreign Affairs. The Court of Appeal held that SIA s12(1) requires service to be effected at (and not merely ‘on’) the Ministry of Foreign Affairs and thus service could not be fulfilled by serving proceedings on a diplomatic mission in a foreign state. The Court agreed that while it would have been possible to provide for service within the jurisdiction on the Embassy, on the analogy of a foreign company carrying on business within the jurisdiction, it was considered more diplomatic that the foreign sovereign should not by reason merely of his mission’s presence in the UK for the purpose of diplomatic intercourse between the two countries, be deemed to have a legal presence within the jurisdiction.[xxxii]
English courts have also held that English statutory requirements for service cannot be overridden by foreign laws unless expressly provided by those laws.[xxxiii] In cases of absence of diplomatic relations English courts have permitted alternative service (e.g. by courier) which would satisfies SIA s12 requirement even if rejected by the receiving entity.[xxxiv]
Argentina
Argentine law No. 24.488 governs immunity of foreign states from Argentine court jurisdiction (SIL) also enshrining the principle that foreign states are generally immune from foreign court jurisdiction. So too, the SIL contemplates exceptions (e.g. state consent, commercial activity). Naturally, immunity protection[xxxv] only applies to sovereign acts (and not commercial acts). Given the recognized principle of state immunity from suit, the regime on service differs from that under the Code of Civil Procedure (CPC). The Court must transmit the claim form and key documents to the Argentine Ministry of Foreign Affairs so that it informs the foreign State. This is consistent with the Vienna Convention on Diplomatic Relations, as well as Argentine Decree 1285/58.[xxxvi]
In Argentina, failure to serve properly can carry severe penalties as held by the Court of Appeal. In one case, a claimant was involved in an employment dispute with the Greek Embassy in Argentina. There service of proceedings and subsequent judicial actions were deemed null and void due to notification irregularities – the Embassy was served directly by the private party’s solicitor instead of via diplomatic channels. The Court found a breach of the Vienna Convention on Diplomatic Relations for failure to conduct diplomatic mission affairs via the Foreign Affairs Ministry or an agreed host State Ministry.[xxxvii]
In line with English case law, several Argentine judgments have emphasized the importance of strict compliance with formal requirements of service. In Reynalds Mercedes Noemi v. Korea Trade Center, the Argentine Courts rejected the Embassy of Korea’s claim that there was a breach of service requirements under Decree 1285/58 when serving proceedings directly on the Defendant. The Court held that as the KTC was not registered within the organs to whom sovereign immunity was recognized by Argentina (a status that only the Argentine executive branch can grant) then it was not subject to the Decree ambit.[xxxviii]
Conclusion.
Service of process out of the jurisdiction in Argentina and the United Kingdom presents procedural differences. At the substantive level, though, we see significant similarities. In both jurisdictions where the Rule of Law prevails, service of process is intrinsically linked to the right to a fair trial – i.e. proper notice of a claim and preparation of defense. And it is because of the importance of this principle in both jurisdictions that its justices tend to analyse such issues restrictively.
Finally, the existence of the Hague Service Convention shows the importance of international mutual cooperation, such that fundamental principles such as the right to a fair trial benefit from even more legal certainty.
[i] ROCA, Eduardo, A., “La irregular irregularidad de las sociedades extranjeras no inscritas”, ED, 16/12/96.
[ii] Article 4 CPC (Declaration of lack of jurisdiction): Any civil and commercial proceedings must be filed with the competent judge. When from the face of the facts set out in the complaint it emerged that the judge lacks jurisdiction, he must so declare on its own motion. Once the respective decision is consented or enforced, the case shall be remanded to the judge who has asserted jurisdiction over the case. In cases of exclusively pecuniary nature, a declaration of lack of jurisdiction based on geographic or territorial location shall not proceed.
[iii] Article 73 defines domicile as follows: the “place where a person habitually resides and establishes her principal place of residence.” There are three types of domiciles i.e. (i) real or actual domicile, which is the place where a person habitually resides with the intention of establishing therein the center of their life and personal relationships; (ii) legal domicile; the place determined by law for carrying out certain legal acts or for judicial procedures; (iii) elected domicile: the address specifically chosen for specific legal matters often used in contracts and legal documents (Articles 74 through 76).
[iv] See Article 339 CPC.
[v] Article 345 CCP states that “if the service is made [not in accordance with the CCP] any proceedings served shall be null and void”.
[vi] Article 136 CPC. s
[vii] The Constitutional Reform of 1994 established that treaties are above the law (Article 75 (22)), from which it followed the impossibility of international law being derogated from by local law.
[viii] Case law and scholarly opinion generally agree that Article 122 GLC could also be invoked to summon the named representative of a foreign company who is the shareholder of a local Argentine company, so long as the cause of action relates to its role as shareholder therein. The Companies Reform Bill, in relation to the summons of a company, provides that it shall be possible to effectuate personal service on the legal representative with respect to the incorporation of the company or the exercise of the rights as shareholder; and if the litigation relates to immovable property, service can be made on the attorney-in-fact involved in the acquisition thereof.
[ix] CPR Part 6. The requirement to seek permission to serve out of the jurisdiction provides an important filter to prevent claims that have no proper connection with England being pursued in the English courts. See Wheat v Alphabet Inc/Google LLC & another [2018] EWHC 550 (Ch).
[x] For example, if (i) the contract was made within the jurisdiction; or (ii) the contract was governed by English law; or (iii) the contract provides for English court jurisdiction for the resolution of disputes arising therefrom; or if (iv) the breach was committed within the jurisdiction of England and Wales.
[xi] See CPR 7.5(2)), as applications for permission to serve out are generally made without notice, the claimant has a duty to give full and frank disclosure. Where the claim form is to be served out of the jurisdiction, it must be served within six months of the date of issue, and the claimant must support its application by written evidence in the form of a witness statement invoking the specific grounds upon which it relies. It must also submit evidence that England is the proper place to bring the claim (also known as forum conveniens). It shall also show that the claimant believes that the claim has “reasonable prospects of success”; and he/she knows the defendant’s address for service or, at least, the place or country in which the defendant is likely to be found.
[xii] For example, if one party is based in Argentina, and it and the English party to a contract agreed to submit their potential future contractual disputes to the English courts. Parties typically stipulate for service to be made on nominated solicitors in England. Parties may stipulate a contractual method of service in transactions without any foreign element, but this type of provision is commonly used where one or more of the parties to a transaction is based outside England, and the parties have agreed to submit their disputes to the English courts. Typically, the relevant provision will provide for service on nominated solicitors (or other agent) in England, thereby avoiding the need to arrange for service out – which may require permission from the court.
[xiii] Chopra and another v Bank of Singapore Ltd and another [2015] EWHC 1549 (Ch)
[xiv] BW Legal Services Ltd v Glassdoor Inc 2022 EWHC 979 (QB)
[xv] SSL International Plc and another v TTK LIG Ltd and others [2011] EWCA Civ 1170
[xvi] Within the meaning of the Eleventh Company Law Directive (89/666/EEC) (Directive). This Directive deals with the formation and operation of European companies with regard to their branch offices in member states. Specifically, it defines a “branch” as a distinct and permanent establishment of a company that is not incorporated in that member state but operates there. Under this Directive, a branch is considered to be an office or location where a non-resident company conducts business activities within the jurisdiction of a member state, without forming a separate legal entity. The Directive sets out the requirements for the registration and operation of branches, including obligations regarding notifications, legal representation, and financial disclosures to ensure compliance with local regulations.
[xvii] A document may be served on an overseas company whose particulars are registered under section 1046—(a) by leaving it at, or sending it by post to, the registered address of any person resident in the United Kingdom who is authorised to accept service of documents on the company’s behalf, or (b) if there is no such person, or if any such person refuses service or service cannot for any other reason be effected, by leaving it at or sending by post to any place of business of the company in the United Kingdom. See, Section 1139(2) of the Companies Act 2006.
[xviii] There is no requirement either in section 1139(2), nor in the Overseas Companies Regulations 2009, that the process served on a registered address pursuant to section 1139(2) should concern transactions involving the UK establishment itself. See Legal Update, Service valid on UK establishment of overseas company although claim not in respect of establishment (High Court) discussing Teekay Tankers Limited v. STX Offshore & Shipping Co [2014] EWHC 3612 (Comm). See more generally useful note on Service of Process Outside the Jurisdiction in Practical Law, UK.
[xix] Section No. 1140. Service of documents on directors, secretaries and others (1) A document may be served on a person to whom this section applies by leaving it at, or sending it by post to, the person’s registered address. (2) This section applies to— (a) a director or secretary of a company; (aa) a person who is a registrable person or a registrable relevant legal entity in relation to a company (within the meanings given by section 790C); (b) in the case of an overseas company whose particulars are registered under section 1046, a person holding any such position as may be specified for the purposes of this section by regulations under that section; (c) a person appointed in relation to a company as— (i) a judicial factor (in Scotland), (ii) an interim manager appointed under section 76 of the Charities Act 2011or section 33 of Charities Act (Northern Ireland) 2008 or (iii) a manager appointed under section 47 of the Companies (Audit, Investigations and Community Enterprise) Act 2004 (c. 27); (3) This section applies whatever the purpose of the document in question. It is not restricted to service for purposes arising out of or in connection with the appointment or position mentioned in subsection (2) or in connection with the company concerned. (4) For the purposes of this section a person’s “registered address” means any address for the time being shown as a current address in relation to that person in the part of the register available for public inspection. (5) If notice of a change of that address is given to the registrar, a person may validly serve a document at the address previously registered until the end of the period of 14 days beginning with the date on which notice of the change is registered; (6) Service may not be effected by virtue of this section at an address—(a) if notice has been registered of the termination of the appointment in relation to which the address was registered and the address is not a registered address of the person concerned in relation to any other appointment; (b) in the case of a person holding any such position as is mentioned in subsection (2)(b), if the overseas company has ceased to have any connection with the United Kingdom by virtue of which it is required to register particulars under section 1046; (7) Further provision as to service and other matters is made in the company communications provisions (see section 1143); (8) Nothing in this section shall be read as affecting any enactment or rule of law under which permission is required for service out of the jurisdiction. Finally, if the defendant is out of jurisdiction, it is possible to apply to the court for permission to serve a claim form relating to a contract on the defendant’s agent within the jurisdiction and thus skipping the requirement to obtain an order for permission to serve out of the jurisdiction. Here the conditions generally require (1) the defendant be out of the jurisdiction; (2) the contract to which the claim relates to be entered into within the jurisdiction, with or through the defendant’s agent; and (3) at the time of the application either the agent’s authority has not been terminated or the agent is still in business relations with the defendant.
[xx] Namely the conditions are: (i) that there are no parallel proceedings elsewhere in the UK; (ii) either the defendant is the other party to a consumer contract; (iii) or the defendant is an employer and party to a contract of employment.
[xxi] Thus, English courts can assert jurisdiction over a matter involving a foreign defendant because the defendant and the claimant have agreed that the UK courts will resolve their disputes. This means that the UK court has the authority to proceed with the case based on this international agreement.
[xxii] These are where (1) a defendant is domiciled in England; (2) a branch in England; (3) injunction to do (or not to do) an act in England; (3) co-defendant; (4) additional claim under Part 20; (5) interim remedy; (6) contract made in England (by party or its agent); (7) contract governed by English law; (8) breach of contract in England; (9) declaration that no English contract exists; (10) assisting a breach of contract; (11) tort; damage sustained in England or resulting from an act in England; (12) enforcement of judgment or arbitral award; (13) property in England; (14) trust governed by English law; (15) trust subject to English jurisdiction; (16) trust administered in England; (17) trust created in England (18) declaration that no trust has arisen; (19) breach of trust in England; (20) administration of estate of person domiciled in England; (21) probate claim; (22) constructive trust with English connection; (23) assisting a breach of trust; (24) breach of fiduciary duty with English connection; (25) assisting in a breach of fiduciary duty; (26) declaration that no fiduciary duty has arisen; (27) restitution with English connection; (28) declaration of non-liability; (29) revenue claim; (30) third party costs claim; (31) admiralty claim; (32) claims under various enactments; (33) breach of confidence or misuse of information with English connection; (34) declaration of no duty of confidentiality; (35) assisting a breach of confidence; (36) contempt applications; (37) information orders against third parties.
[xxiii] The claimant should include draft particulars of claim, together with any other relevant documentation. In NML Capital Ltd v Republic of Argentina [2011] UKSC 31, the UK Supreme Court considered the implications where a materialrepresentation made at the without notice application for permission to serve out turned out to be unfounded, with the result that permission to serve out had been granted on a false basis. The court held that, if there was nevertheless a valid basis for subjecting the defendant to the jurisdiction of the English court, then it had the power to grant permission to amend the claim and to serve out on the valid basis, and to dispense with re-service.
[xxiv] Argentina employs several international treaties to govern the service of judicial documents abroad, including (1) The Hague Service Convention; (2) Inter-American Convention on Letters Rogatory (1975) and its Additional Protocol (1979) (this Convention facilitates judicial cooperation among American states, providing for document transmission through diplomatic channels). Also, the Argentine Civil and Commercial Code incorporates provisions for international judicial cooperation in the service of process, mandating adherence to international treaties. Finally, Law No. 23,761 on International Judicial Cooperation outlines Argentina’s obligations under international agreements regarding the procedural aspects of judicial assistance.
[xxv] See Convention (Chapter I – Judicial Documents) Article 2. Each Contracting State shall designate a Central Authority which will undertake to receive requests for service coming from other Contracting States and to proceed in conformity with the provisions of Articles 3 to 6. Each State shall organise the Central Authority in conformity with its own law.
[xxvi] See Articles 8 and 9 of the Hague Service Convention. Article 8 (Consular or Diplomatic Officers) allows the contracting states to serve documents directly through consular or diplomatic officers, but this method can be opposed by the receiving state if it is incompatible with its law. Article 9 (Consular Channels) provides that documents can be forwarded through diplomatic or consular channels to the designated authorities of the receiving state who can then arrange for service.
[xxvii] See Article 10(b) and 10(c). These methods involve using judicial officers, officials, or other competent persons for service in the receiving state. Article 10(b): Allows for the “judicial officer, official, or other competent persons of the state of destination” to effect service of judicial documents directly if the receiving state does not object. Article 10(c): Permits “any process server, judicial officer, official, or other competent persons” to effectuate the service of judicial documents directly through local legal professionals if the receiving state does not object. Finally pursuant to Article 11, States can also agree on other means of transmission.
[xxviii] See Article 15 and 19. In certain cases, service may also be completed through direct communication between judicial authorities. Indeed, Article 15 establishes provisions for indirect service if the defendant does not voluntarily appear and proper service has not been conducted but appropriate efforts have been made. In turn, Article 19 provides that the Convention does not preclude any state from agreeing to methods of service that are not included in the Convention. Furthermore, several other Articles of the Convention ensure safeguards and effectiveness of the service. See e.g., Article 12 (concerning the costs involved in serving documents). And see also Article 13 (allowing refusing to comply with a request for service if it endangers the sovereignty or security of the state). In turn, Article 14 concerns the complete or partial waiver by a state of the territories concerned by such service. Article 15 deals with when judgment can be granted if a certificate of service is not provided, but proper attempts have been made. Then, finally, Article 16 addresses the opportunity to reopen proceedings if service has not been effectuated.
[xxix] It stipulates various ways of serving documents. This consists of an authorized officer pursuant to the requesting State who sends a service petition pursuant to a template form to which the relevant document must be attached, to the Central Authority of the requested State that, once received and not finding any non-compliance with the Hague Convention rules, shall serve it as follows: (i) in accordance with the prescribed forms by the law of the State in which service is made; (ii) in accordance with the specific form requested by the requesting party provided it is not incompatible with the laws of the requested State; (iii) by the mere delivery of the document to the recipient who accepts it voluntarily. In any of the above cases, the Central Authority of the requested State shall issue a certificate pursuant to the template form annexed to the Hague Convention in which it shall certify compliance with the petition. According to CPR 6.36, the claimant needs permission from the court to serve proceedings outside the jurisdiction unless a specific provision under an international convention applies.
[xxx] Therefore, there are special rules (SIA) for serving a claim against a State -service on a State shall be done through the diplomatic channels.
[xxxi] [1995] 1 Lloyd’s Rep 25
[xxxii] In Mr B Animashaun v Nigeria High Commission, however, the Employment Appeal Tribunal took a more flexible approach to service.Here Claimant Mr. B Animashaun brought an employment claim against his employer the Nigeria High Commission (the diplomatic mission of Nigeria in the United Kingdom). Service was effectuated in accordance with Section 12 SIA except that the Federal Republic of Nigeria was not named as Respondent. The Court found that the Nigeria High Commission was not a separate entity from the Federal Republic of Nigeria; and that it, as a diplomatic mission, formed an integral part of the Nigerian state. This meant that the NHC could not be sued or served as if it were a distinct entity. Since the High Commission was found to be part of Nigeria, serving the High Commission equates to serving the state of Nigeria even if Nigeria was not named as a party. The Court took a pragmatic approach taking also into account that Nigeria was on notice of the proceeding. The Court held “Given that I consider that the naming of the Nigerian High Commission was, in substance, to be treated as naming the Federal Republic of Nigeria as the Respondent to these proceedings, I see no reason why the state was not properly served with the Claimant’s proceedings. There is no dispute that service was effected through the correct channels, as required by section 12 of the 1978 Act”
[xxxiii] Embassy of Brazil v Mr D A De Castro Cerqueira [2014] ICR 7031. This case examined whether service in compliance with section 12(1) SIA was valid under English law even if it conflicted with Brazilian law. The Employment Appeal Tribunal upheld that service via the Foreign and Commonwealth Office to the Ministry of Foreign Affairs in Brazil was effective under English law. The Tribunal clarified that Parliament did not intend for UK statutory service requirements to be overridden by foreign laws unless expressly prohibited by those laws, which was not the case here.
[xxxiv] See Certain Underwriters At Lloyd’s London v Syrian Arab Republic [2018] EWHC 385. Given the absence of diplomatic relations between the UK and Syria, the Court permitted alternative service by courier, highlighting that physical receipt by the Ministry of Foreign Affairs satisfied section 12 SIA requirements even if the documents were subsequently rejected. This ruling acknowledges extraordinary circumstances and validates service attempts that adhere to the statutory framework despite practical difficulties.
[xxxv] These privileges and immunities – say the Convention – have been established not in favour of the individuals but in order to guarantee the efficient deployment of relationships amongst states. That is why, they are only applicable when and if the given officer is carrying out its functions in that capacity. In Argentina, it is the Executive Branch of the Nation, via the Ministry of Foreign Affairs, who informs if any given person has diplomatic status and can avail itself of immunity (Vienna Convention 1961, Articles 22, 30 and 31).
[xxxvi] They state that “service of process out of the jurisdiction on a foreign state shall not be authorized without prior compliance with the requirement of notifying a diplomatic representative of the foreign state (E.g. UK) by means of the Argentine Ministry of Foreign Affairs, of the legal proceeding against it, and seeking its consent to be subject to court jurisdiction.” See Article 41 (2). See also Decree No. 1285/58.
[xxxvii] Argentinian Law on Sovereign Immunity (Law 24.488) reaffirms the immunity and privileges conferred by the Vienna Convention, mandating adherence to these protocols. The Greek Embassy received notice of proceedings directly instead of through appropriate diplomatic channels as required by Article 41. That in turn led to the nullification of the service and subsequent judicial actions.
[xxxviii] See also, Louge, A. Beltran v. United Kingdom, where UK Government sought the annulment of the service of proceedings as well as the process that led to a default judgment against it. The Argentine Court held that even if the annulment request had been untimely, for the entire process to be valid in the first place it was necessary to comply with Argentine law and inform the UK of legal proceedings via the Argentine Minister of Foreign Affairs and seek its express consent to be subject to Argentine court jurisdiction. Claimant never did.
SOBAL 