Service of process abroad under Russian law
December 2018 | SPECIAL REPORT: INTERNATIONAL DISPUTE RESOLUTION
Financier Worldwide Magazine
December 2018 Issue
Legal disputes involving foreign parties (both natural and legal persons) regularly fall within the jurisdiction of Russian courts. As a consequence, there arises the issue of service of process abroad, i.e., the manner in which a foreign defendant is notified about the proceedings pending before a Russian court.
Complying with the procedural rules for service of process is important for foreign litigants for the following reasons. Firstly, a judgment rendered in the absence of a party which has not been duly notified about the proceedings is subject to annulment by the Appellate Court. Secondly, violation of the rules concerning service of process may impede further recognition or enforcement of the Russian judgment within the domicile of the foreign defendant.
Taking this into consideration, this article discusses the rules for service of process established by the Civil Procedure Code (CPC), applied by the court of general jurisdiction competent to hear disputes between natural and legal persons, and the Arbitrazh Commercial Procedure Code (APC), applied by arbitrazh commercial courts competent to hear commercial disputes between legal persons and entrepreneurs.
Service of process under the CPC
Under the CPC, foreign natural and legal persons must be served with process in the same manner as Russian citizens, unless an international treaty provides otherwise. It follows from the CPC a court may notify foreign defendants by means of registered mail, subpoena or telegram, unless the applicable international treaty has other established procedures.
Such treaties concerning the method for service of process on foreign parties include bilateral treaties for legal assistance on civil and family matters, and the 1954 Hague Convention on civil procedure. The Hague Convention provides that, as a general rule, service of process will be effected at the request of the consul of the requesting state. In practice, this means that a Russian court will make a request through the Ministry of Justice to the Ministry of Foreign Affairs which, in turn, will instruct the relevant Russian consul to issue a diplomatic note to the competent authority of the state where the defendant resides.
Thus, service of process, the principal means of notification under the Hague Convention, is to a large extent cumbersome and time-consuming. However, it should be noted that the Convention states that foreign defendants may be also served by the following means, unless their country of residence objects: (i) through postal channels directly; (ii) through bailiffs or other competent authorities of the state where service of process takes place; and (iii) through consular or diplomatic officers.
The 1965 Hague Convention on the service abroad of judicial and extrajudicial documents in civil or commercial matters also provides for principles and rules governing delivery of courts documents. It states that each contracting state will designate a central authority which is authorised to receive requests for service of process. The Convention also states that central authorities may serve documents themselves or arrange for them to be delivered in a manner provided by internal law – for the service of documents in domestic actions upon persons who are within its territory, or by a particular method requested by the applicant, unless such method is incompatible with the law of the requested state.
As regards the mechanism for service of process established by the 1965 Hague Convention, it should be noted that, in this instance, central authorities for service of process communicate directly, i.e., there is no need to apply to diplomatic channels, which results in a more expedient procedure for service of process.
The application of relevant treaties by courts of general jurisdiction can be exemplified by a 2016 Appellate ruling of the Sverdlovsk (Ekaterinburg) regional court. This matter concerned recovery of payment for utility services in arrears. The court of the first instance (district court) notified the defendant by means of a telegram served at their apartment in Sverdlovsk. However, the judgment of the court was quashed by the Appellate court due to the defendants not being notified as per the 1954 Hague Convention on civil procedure, as well as the defendants being permanently resident in Germany.
Service of process under the APC
The APC states that foreign parties to proceedings incorporated or residing abroad will be informed by means of a letter of rogatory. The detailed rules for applying the APC are set out in a 2017 decree of the Supreme Court of Russia, which concerns the resolution of economic disputes involving foreign parties. It provides inter alia that in case of service of process on foreign parties, a Russian court will issue a letter of rogatory to a foreign court.
With regard to the provisions of the relevant treaty or the APC, service of process may be effected in the following manner: (i) by mailing the documents directly to the defendant; (ii) by means of direct delivery to the competent court of the foreign state; (iii) by direct delivery to the central authorities of the foreign state; (iv) by direct delivery to territorial bodies of the Ministry of Justice and the Ministry of Foreign Affairs of the Russian Federation to the competent authority of the foreign body; (v) by delivery to the central, territorial and other bodies of justice institutions to the competent court (authority) of the foreign state; and (vi) through the territorial bodies of the Ministry of Justice and the Ministry of Foreign Affairs in the manner of international courtesy.
Ruling letters of rogatory are submitted to the bodies of the Ministry of Justice and the Ministry of Foreign Affairs in the Russian language. Nevertheless, parties to a dispute may submit to the APC for a notarised translation of any judicial documents to be served abroad.
The application of the APC is exemplified by a ruling by the Cassation Arbitrazh commercial court of Moscow, which involved service of process on a party residing in France. In this matter, the Cassation court ruled that since France did not make any reservation to the 1965 Hague Convention, the relevant party may be served with process directly by post.
Russian procedural law establishes a rather rigid set of rules concerning service of process abroad. As a general rule, the main method of serving a foreign defendant is a letter of rogatory, sent through diplomatic channels (Hague Convention 1954) or through central authorities (Hague Convention 1965). However, the rigidness of the rules is mitigated by the fact that several international treaties, including the 1965 Hague Convention, allow service of process by alternative means, such as through postal channels.
Victoria Kholodova is a junior associate and Alexander Kostin is an attorney at law at Khrenov & Partners.
© Financier Worldwide
Victoria Kholodova and Alexander Kostin
Khrenov & Partners