The institution of proceedings in national courts against sovereign States is an important subject, including in relation to enforcing arbitral awards against States and obtaining relief in national courts in support of arbitration. The prospect, for example, of significant claims in arbitration against the Russian Federation arising from expropriation of assets brings these issues into sharp focus. If a national court exercises jurisdiction over the State, it will have done so despite the general entitlement of foreign States to immunity in the courts of another State.1 This includes the initiation of enforcement proceedings against sovereign States in respect of international arbitration awards.

In most (if not all) jurisdictions, the requirements for service of process on sovereign States are more onerous than for service on private parties, and will often involve service through diplomatic channels.2 Courts around the world, including in the United States and England and Wales (as discussed below), have recently confirmed that claimants must strictly comply with these service requirements. A failure to do so may significantly delay progress of the proceedings and result in increased costs (or worse). The recent decisions that uphold strict compliance with service requirements underscore the exceptional nature of national courts exercising jurisdiction over sovereign States, and the importance of taking specialist advice prior to commencing claims against States.

Below we survey the requirements for effecting service of proceedings on sovereign States under the Hague Service Convention, United States law and English law.3 We then set out some practical takeaways that emerge from this survey.

Hague Service Convention

In 1965, the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (Hague Service Convention) was concluded. Seventy-nine countries are State Parties to the Hague Service Convention.4

The purpose of the Hague Service Convention is to simplify, expedite, and generally improve the process of serving documents abroad. The Hague Service Convention applies "in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad" (i.e., from one contracting State to another).5 The law of the State of origin determines whether or not a document must be transmitted abroad for service in the other State.6 The Hague Service Convention provides for one main channel of service and four alternative channels (although there is no hierarchy between any of the channels).

The main channel of service is effected via a Central Authority. Under the Hague Service Convention, each Contracting State must designate a Central Authority to receive requests for service coming from other Contracting States.7 Each State must organise its Central Authority in accordance with its own national law. For example, in the United States the Central Authority is the Office of International Judicial Assistance at the Department of Justice,8 and in the United Kingdom it is the Senior Master of the Royal Courts of Justice.9

Requests for service must be sent by the relevant authority of the State of origin to the Central Authority of the State of destination.10 Once the Central Authority receives a request for service, it may either refuse or effect service.

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Footnotes

1. See, e.g., Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), Judgment, ICJ Reports 2012, p. 99, at para. 86. 

2. See, e.g., Hazel Fox and Philippa Web The Law of State Immunity (Revised and Updated 3rd ed, Oxford, 2015), at p. 1. 

3. Special thanks to our colleague, Kristin Bender, for reviewing our summary and analysis of US law.

4. See Status Table, last updated 17 June 2021, available at https://www.hcch.net/en/instruments/conventions/status-table/?cid=17. 

5. Article 1.

6. See Practical Handbook on the Operation of the Service Convention, FAQ, question 3, available at https://assets.hcch.net/docs/aed182a1-de95-4eaf-a1ae-25ade7cd09de.pdf.

7. Article 2.

8. See United States of America - Central Authority & practical information, available at https://www.hcch.net/en/states/authorities/details3/?aid=279. 

9. See United Kingdom - Central Authority & practical information, available at https://www.hcch.net/en/states/authorities/details3/?aid=278. 

10. Article 3. Requests for service must be in the form annexed to the Hague Service Convention and be accompanied by the documents to be served.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.