BY PATRICK ALAYON—In my limited experience in the field of international law, the issue of international service of process has proved to be a significant hurdle to bringing a successful lawsuit. Some countries do not have a treaty with the US that deals with service of process, and a litigant is left to the whims of the local government and the international system of letters rogatory. Some other Latin American countries are party to the Inter-American Convention on Letters Rogatory, which provides a systematic framework for using letters rogatory; despite such a framework, delays that stretch into years still persist. The most fortunate of litigants find that the target of their lawsuit is located in a country that has signed the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. As signatories to the Hague Convention, these countries simply ask you to send them three forms and attach a translated copy of the document to be served. If these countries find the documents satisfactory, they will arrange for proper service to be effected according to their internal laws. The Hague Convention even includes possible alternatives to this method of service. If the receiving state has not objected, service may be had by mail, through direct communication between judicial officers of both countries (including attorneys), and through direct communication between an interested party and a judicial officer of the receiving state (anyone in the receiving country can arrange for a competent process server to effect service).
Colombia has recently acceded to the Hague Convention. The convention has entered into force as of November 1, 2013. Also, Colombia has apparently not objected to any of the alternative means of service proposed in the Hague Convention. Therefore, service of process has just become much easier when dealing with a defendant in Colombia. This blog entry will discuss some benefits of the new law as well as some potential pitfalls of using service by mail in Colombia.
Through the Hague Convention, Colombia now allows a lawyer to directly send the document to be served to the Central Authority designated by its government. Previously, the lawyer had to petition the court to direct the document to the Central Authority in Columbia. Now, once the lawyer receives a certificate from the Central Authority in Colombia attesting that service is complete, that certificate creates a rebuttable presumption of valid service and allows the proceedings to move forward in the US.
One of the Hague Convention’s alternative means of service is service by mail, to which Colombia has not objected. However, there are a few issues that may complicate such service. First, Colombia must permit service of process by mail in its internal judicial system. It seems as though such service is permitted, but there is some doubt as to whether a foreign litigant who sought to have a judgment based on such service enforced in Colombia would have trouble getting Colombian courts to recognize the foreign judgment. Second, within the US, there is a Circuit split as to the meaning of the word “send” as it is used with regards Hague Convention Article 10(a), on mailing service of process. The 5th and 8th Circuits both hold that “send” does not mean “serve,” and therefore initial process must be served by other means. The Second and Ninth Circuits have taken the opposite position, and the State Department, which is given great deference by the judiciary in its interpretation of treaties, has criticized the 8th circuit’s decision. Further, a special commission charged with overseeing the implementation of this convention at the international level has seconded the opinion of the State Department.
So while practitioners are advised to proceed cautiously when sending service by mail, it seems that US law outside the 5th and 8th Circuits tends to favor this method. So long as a judgment can be effectively satisfied from assets within the jurisdiction of the United States (avoiding the murky waters of Colombian Code of Civil Procedure Article 320), service by mail is a strong weapon in a Plaintiff’s lawyer’s quiver.
 http://www.hcch.net/upload/conventions/txt14en.pdf [hereinafter Hague Convention].
http://188.8.131.52/senado/basedoc/codigo/codigo_procedimiento_civil_pr010.html (See Article 320). There is a question as to whether this rule applies only to local proceedings or can be used in the international context.