Guest lecture on service of documents abroad

We have a great pleasure to announce that the guest lecture 2021 will be delivered by professor Alina Ontanu from Tilburg University in the Netherlands. Professor Ontanu will speak about service of documents in cross-border disputes. The lecture will take place in MS Teams on Monday, 5^th December 2021 at 11:30. 

Any person interested in this lecture may register by writing at anna.wysocka@uj.edu.pl

Below, you will find an introduction to the lecture prepared by profesor Ontanu. 

Service of documents in cross-border disputes

Imagine that a claim against you has been filed with a court in Austria. The owner of the hotel where you stayed during your holiday in Austria is claiming that you left without paying the bill. How would you know about the existence of court proceedings against you in Austria after returning to Poland? And why should the Austrian court make any efforts to notify you the proceedings and subsequently the judgment in Poland? Can the Austria court consider that you have been presumably informed of the proceedings by service being carried out at an address in Austria although you are resident in Poland? 

Based on Article 6(1) European Convention of Human Rights and Article 47 Charter of Fundamental Rights any party involved in a civil or commercial dispute is entitled to benefit from a fair trial. Although the concept of fair trial is not defined by the EU Treaties, the European Convention of Human Rights, the Charter or secondary EU legislation, the case law of the European Court of Human Rights interprets the right to a fair trial as including inter alia the following rights: access to justice, fair public hearing, the right to adversarial proceedings, equality of arms, and effective enforcement of the decision issued. These guarantees secure that parties in civil litigation are able to present their position adequately and benefit from an equal treatment in court. But without the defendant being informed that proceedings are ongoing against him or her it is not possible for the party to actually access justice, appear in a court hearing to defend one’s position or respond to the court in relation to the claims put forward by the claimant. Service of documents in cross-border claims is more challenging than in purely national situations. As service of procedural documents or summons by the court for an oral hearing are carried out by members of the court staff or independent legal professionals who are exercising public power, their actions are limited territorially to the country that appointed them. As each country is sovereign, foreign authorities or legal practitioners exercising public power cannot validly pursue valid legal procedural steps unless they have been authorised in this regard by local authorities or actions are carried out based on international agreements.

While we do not yet have a global convention dealing with service of judicial documents worldwide, a number of international instruments exist in this regard. One of the international instruments that has the broadest application is the Hague Service Convention of 1965 that was established by the Hague Conference in order to facilitate the service abroad of judicial and extrajudicial documents in proceedings concerning civil or commercial matters. The second most broadly applied international instrument when it comes to service of documents in cross-border disputes is the EU Service Regulation. The adoption of the first Service Regulation in 2000 (Regulation 1348/2000) was motivated by the EU Member wish to establish a more direct system of transmission of documents between Member States compared to the Hague Convention. 

Within the EU the regulation takes priority over the Hague Service Convention when service is to be carried out cross-border between EU Member States. In practice, the Service Regulation has proved key in facilitating transmission of procedural documents and guaranteeing access to a fair trial within the EU. In a search to further improve its application and address identified weaknesses the Service Regulation was reviewed in 2007 (Regulation 1393/2007), and again in 2020 (Regulation 2020/1784). The new Service Regulation will become applicable in 2022. Its text maintains the model of service methods inspired by the Hague Service Convention, while providing some new tools that aim to further facilitate service of cross-border documents such as the integration of information and communication technology at various stages and the possibility to request the cooperation of national authorities in identifying a valid address for serving documents on the defendant when the initial whereabouts prove inaccurate.

The lecture will be centred around the two instruments with the broadest international application in facilitating service of documents cross-border: the Hague Service Convention and the reviewed Service Regulation (Regulation 2020/1784). In our discussion we will focus not only on the methods of service, the procedural requirements that need to be observed for a legally valid communication of documents in cross-border litigation, and language requirements for this purpose, but also on the latest technology solutions that are to be integrated to further improve and speed up communication of procedural documents.