Disclaimer:THE INFORMATION IN THIS CIRCULAR RELATING TO THE LEGAL REQUIREMENTS OF SPECIFIC FOREIGN COUNTRIES IS PROVIDED FOR GENERAL INFORMATION ONLY AND MAY NOT BE TOTALLY ACCURATE IN A PARTICULAR CASE. QUESTIONS INVOLVING INTERPRETATION OF SPECIFIC FOREIGN LAWS SHOULD BE ADDRESSED TO FOREIGN COUNSEL OR THE FOREIGN CENTRAL AUTHORITY FOR THE INTER-AMERICAN CONVENTION AND ADDITIONAL PROTOCOL.
In Force:ARGENTINA, BRAZIL, CHILE, COLOMBIA, ECUADOR, GUATEMALA, MEXICO, PANAMA, PARAGUAY, PERU, UNITED STATES, URUGUAY and VENEZUELA.
Summary:The Inter-American Convention on Letters Rogatory and Additional Protocol (IACAP) are a pair of international agreements designed to facilitate judicial assistance between countries. The United States interprets those agreements as limited to covering service of process and countries must be a party to both agreements in order for a treaty relationship to exist. Replacing the traditional letters rogatory process, the IACAP provides a mechanism for service of documents by a foreign central authority. The Department of Justice is the U.S. Central Authority under the IACAP. Requests from the United States are transmitted via a private contractor carrying out the service functions of the U.S. Central Authority on behalf of the Department of Justice.
Scope of the Convention:While the terms of the IACAP limit its application to civil and commercial matters, it also permits countries to choose to apply it to criminal and administrative matters. Only Chile has declared that it will apply the IACAP in such cases. For general information about the use of formal letters rogatory to effect service in criminal or administrative matters, see our general Preparation of Letters Rogatory and Service of Process flyers. Note that foreign countries may have different legal interpretations as to what types of actions are considered “administrative matters.”
Mandatory Convention Form: The required form may be found online at the website of the Department of Justice’s contractor. Formal letters rogatory are not required.
Number of Copies:The request for service should include the original and two copies of the form, and three copies of the summons and complaint or other documents to be served.
Translations:While it is not necessary to translate the form into the language of the foreign country, the documents to be served, such as a summons and complaint, must be translated into the foreign language.
Signature of Clerk of Court in U.S. Required:Unlike the Hague Service Convention, the IACAP requires the form to bear the seal and signature of the judicial or other authority of the country of origin and the signature and stamp of the Central Authority. The clerk of the court in the U.S. where the action is pending must place their seal and signature on the form where it reads "Signature and stamp of the judicial or other adjudicatory authority of the state of origin". The Department of Justice’s contractor will execute the signature/stamp of the U.S. Central Authority.
Fees:While the IACAP provides that processing requests shall be free of charge, it also permits Central Authorities to seek payment by parties for costs incurred for services necessary to effect service in accordance with local law. Some foreign countries will charge fees of $25.00 to the foreign central authority. Mexico and Argentina have made declarations that they do not charge the fee. Other countries parties to the Convention and Additional Protocol have been silent on the subject. Therefore, if service is sought in countries other than Mexico and Argentina, a certified check or money order in the amount of $25.00 made payable to the foreign central authority should be forwarded along with the form and the documents to be served. If no fee is charged the check will be returned.
Proof of Service:The foreign central authority will execute page 7 of the form as proof of service.
Special Note Re Border States:The IACAP permits courts in border areas of the states parties to directly execute the requests and such requests shall not require authentication. It is important to note that if attorneys representing clients in border states transmit requests directly to foreign Central Authorities, those Central Authorities transmit the proof of service to the U.S. Central Authority. It is important therefore that the request state where the executed request should be returned. This information should include the name and address of the attorney. The U.S. Central Authority also advises that Mexico requires that a request transmitted from a border state to the Mexican Central Authority be authenticated in accordance with the Hague Apostille Convention.
Time Frame:The time required to execute a Convention request is not much faster than the letters rogatory procedure in some countries. As a general rule it may take from 6 months to a year for a request to be executed. The U.S. Central Authority advises that Argentina and Peru have succeeded in processing requests more quickly, generally within three months.
Service by Mail:Neither the Convention nor the Additional Protocol expressly provide for service by mail. Litigants should consult local counsel to determine if mail or other methods of service are available, and what effect the use of alternative methods might have on later efforts to have a U.S. judgment locally enforced.
U.S. Reservation Concerning Obtaining Evidence:The United States made a reservation pursuant to the Convention excluding its application to requests to obtain evidence. Litigants may wish to consult local counsel to determine what methods are available. For general information on seeking evidence overseas through the letters rogatory process, see our website.
Service in the U.S. Under the Convention:While alternative methods for service such as personal or mail service are permitted in the United States, the private contractor carrying out the service functions of the U.S. Central Authority on behalf of the Department of Justice also accepts requests from foreign Central Authorities for service of process in the United States. The private contractor does not charge a fee for service requests made pursuant to the Convention and Additional Protocol.
Foreign Central Authorities:Information on foreign Central Authorities may be found on the Organization of American States’ website.