German-American Legal Dealings:

 Service of Judicial Documents and Statements of Claim.

German-American Legal Dealings, Insight by Dr. Thomas Hausbeck, Rechtsanwalt der Kanzlei Buse Heberer Fromm

The increasing globalization is leading to international procedural law becoming more and more important for German court practice. German businessmen operating internationally often face the problem of being a party to an interstate legal dispute. Therefore, the service of judicial documents and statements of claim between the Federal Republic of Germany and the United States of America (USA), as one of their most important trade partners, is particularly important.

International Rules Governing Service According to the Hague Convention (1965)

In international civil proceedings, the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Convention) of 1965 is of central importance. The Convention governs the service abroad of judicial and extrajudicial documents. In legal dealings between Germany and the USA, the service of statements of claim takes place according to the Hague Convention as both the Federal Republic of Germany and the USA have ratified the Hague Convention, with the Hague Convention having precedence over national regulations on service in the USA.

Articles 2 – 6 of the Hague Convention contain the general rules on the service of judicial documents abroad. In the area of application of the Hague Convention, every state undertakes to commission a central national authority with the service of documents. These national authorities responsible for the service in the country of destination have to accept foreign requests for service and serve the judicial documents on the domestic recipients.

Service of American Documents in Germany

This means that there is a principle that every time a summons with a statement of claim or a request needs to be served between the USA and the Federal Republic of Germany, the central authority needs to be brought in. It is instructed to serve the respective judicial documents. On a state level, the USA have established the Office of International Judicial Assistance, Civil Division, Departments of Justice as their central authority.

If an American statement of claim is to be served in Germany, the foreign plaintiff in the USA needs to use the so-called Fom USM-94. It is available at any US Marshal’s office. The filled-in form needs to be sent directly to the central authority in Germany together with the documents to be served as well as their German translations.

The service of the American documents takes place afterwards by way of the so-called formal service, for which the central authority in Germany is being engaged. Unlike in the USA, however, there is no central federal authority in Germany. The federal states have each set up their own central authorities. In Bavaria, for example, this is the president of the German Provincial High Court and Court of Appeal (Oberlandesgericht, OLG) in Munich.

After receipt of the form, the central authority of the addressed state (for example Germany) checks whether the request for service made by the USA is formally correct. After that, the central authority arranges the national serving on the recipient by registered mail. In practice, the service takes between three weeks and three months.

The US Attorney-at-Law as Central Authority

Unlike the German Rechtsanwalt (attorney), the American attorney-at-law has the possibility, as central authority, to direct the request for service to the respective central federal state authority himself. This is because the U.S. Department of Justice also includes attorneys in the English terms for “central authority” (“authority” and “judicial officer”) in the Hague Convention.

Apart from attorneys, private individuals and organizations can also be entitled to serve internationally by American courts. This requires a judicial resolution that permits the concrete person or organization to serve on a concretely named foreign person in a concrete individual case. Consequently, a number of American companies have specialized in the service of judicial documents abroad in the meantime. On the one hand, these companies perform the service on the concerned authorities in Germany, which can cost between USD 300.00 and USD 650.00. On the other hand, they also offer the translation of the relevant documents, whereas they currently calculate around USD 0.38 per word for the translation.

Service of Documents from Germany in the USA

In comparison to the service of American documents in Germany, the service of a German statement of claim in the USA is relatively easy for the domestic originator. This is because the appealed German court is responsible itself to take care of the proper service of process abroad if the action that has been brought in Germany. However, German courts also require a publicly certified English translation – arranged by the plaintiff – attached to the statement of claim. For the moment, German authorities do not charge separate costs for the service of process abroad as a rule.