Es scheint sich in den US-Gerichten eine Tendenz abzuzeichnen, die Haager Konvention dann auszuhebeln, wenn die Zustellung nach der Haager Konvention scheitert, weil sich die deutschen Behörden mangels Nichtvorliegen der Voraussetzungen nach der Haager Konvention weigern zuzustellen. Für US-Gerichte kann die Lösung heißen „service by alternate means“, also zum Beispiel Zustellung im Wege der Veröffentlichung in deutschen Tageszeitungen. Die akademische Diskussion befindet sich noch am Anfang…… jedoch bereits jetzt ein sehr ernstzunehmender Punkt im transatlantischen Rechtsverkehr / Gerichtsverfahren, den es bei Ausarbeitung der Prozessstrategie zu berücksichtigen gilt.
Im folgenden ein gekürzter Auszug und ohne Querverweise / Fussnoten aus dem Gerichtsverfahren “ re South African Apartheid Litigation, 643 F.Supp.2d 423 (S.D.N.Y., 2009)“, 22.Juni 2009.
„Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.'“ Under Federal Rule of Civil Procedure 12(b)(5), a court may dismiss an action against one or more defendants on the ground of „insufficient service of process.“ Plaintiffs carry the burden of proving the sufficiency of service.55 Absent perfected service, a court lacks jurisdiction to dismiss an action with prejudice; therefore dismissal pursuant to Ruke 12(b)(5) must be without prejudice.
Rule 4(h), Rule 4(f), and the Hague Convention
The acceptable methods of service of a summons and complaint in federal court are set forth in Rule 4 of the Federal Rules of Civil Procedure. Rule 4(h) specifically establishes that „a foreign corporation . . . must be served in a judicial district of the United States . . . or at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery. . . .“ In turn, Rule 4(f) permits service outside the United States „by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention. . . .“
„The [Hague] Convention provides simple and certain means by which to serve process on a foreign national“; one such means is „service through the Central Authority of [a] member state.“ Pursuant to the Hague Convention, each signatory must „designate a Central Authority which will undertake to receive requests for service coming from other Contracting States.“ Upon proper delivery of a request for service to the Central Authority, the Central Authority „shall itself serve the document or shall arrange to have it served by an appropriate agency.“ „Where a request for service complies with the terms of the [Hague] Convention, the State addressed may refuse to comply therewith only if it deems that compliance would infringe its sovereignty or security.“ As Germany has objected to service by judicial agent, by mail, or by diplomat, service via the Central Authority is the only means by which an American plaintiff may serve a German defendant.
„Although the Hague Convention `carefully articulates the procedure which a litigant must follow in order to perfect service abroad, . . . it does not prescribe the procedure for the forum Court to follow should an element of the procedure fail.'“ Where a plaintiff „attempted in good faith to comply with the Hague Convention“ and the defendant does „not dispute having received the complaint in this action . . . there is no prejudice to him [or her].“
Rule 4(m) and Service in a Foreign Country
„Federal Rule of Civil Procedure 4(m) provides that actions are subject to dismissal without prejudice unless service is made within 120 days.“ However, by its express terms „subdivision (m) does not apply to service in a foreign country,“ and the Federal Rules include no alternative deadline. Failure to „attempt to serve the defendant in the foreign country“ remains grounds for dismissal, but „the 120-day time period for service can be extended for service outside of the United States.“69 „District courts have discretion to grant extensions even in the absence of good cause.“
Once documents have been properly transmitted to a Hague Convention Central Authority, the period for completion of service of process may be extended, as „the timing of service is out of a plaintiff’s control.“ However, where a plaintiff had alternative means to achieve service within the ordinary time period— without the aid of a judicial order—equity does not require an extension.
Even when nations have expressly agreed on a means of service, Rule 4(f)(3) provides that a defendant may be served „by other means not prohibited by international agreement, as the court orders.“ „A court is `afforded wide discretion in ordering service of process under Rule 4(f)(3).'“ „Court-directed service is particularly appropriate where a signatory to the Hague Service Convention has `refused to cooperate for substantive reasons.'“
Under the Hague Convention, a court may claim jurisdiction over a foreign defendant when a plaintiff has not received a certificate of service or delivery only if
a) the document was transmitted by one of the methods provided for in this Convention, b) a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document, [and] c) no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.
Although Germany has objected to specific forms of service otherwise enumerated in the Hague Convention, it has not expressly barred alternative forms of effective service not referenced in the Hague Convention.
With respect to the range of alternative means of service the Court may order, „the basic inquiry is whether the method is reasonably calculated, under all the circumstances, to give actual notice to the party whose interests are to be affected by the suit or proceeding, and to afford him an adequate opportunity to be heard; and the practicalities in a given case are a factor in determining whether constitutional requirements have been satisfied.“