All litigation starts with service of process – and sometimes it looks as though it ends there as well. Some time ago, we needed to serve proceedings in India. One action originated from the Stuttgart District Court, one from Frankfurt. At first sight, things looked straightforward, since India had become a party to the Hague Service Convention of 1965 in August 2007, just in time for our matters which started in 2008 and 2009. So far, so good. But real life is different. Service never happened. And here is one of the reasons why:
This picture was taken two or three years ago inside the Bombay High Court; it shows one of its administrative offices. To cut a long story short: Papers were sent, as per the Convention, to the Indian Central Authority. And then, nothing happened. No response to reminders. No communication whatsoever. Absolutely none.
So what does this mean in legal terms? It is clear that a claimant must not wait forever for service to be effected abroad. At some point in time, he is entitled to apply to the court for service by other means, in particular, by publication of the court papers (öffentliche Zustellung) in accordance with Sec. 185 No. 3 German Code of Civil Procedure (ZPO).
What is not so clear is how long he has to try service under the Convention until that approach is deemed to have failed. The Federal Court of Justice (Bundesgerichtshof) had provided some guidance in a case concerning Russia: In January 2009, the Federal Supreme Court had held that a waiting period of six to nine months was not enough to justify public service, as it was not unusual for the service of process to take up to one year in cross-border matters. As a consequence, the request to order public service was denied. So one thing was clear: We had to wait more than a year.
In our India case, the Stuttgart court eventually enquired with the Federal Office of Justice, Germany’s Central Authority. They stated that “the situation in India is chaotic, and its is questionable whether service is effected at all, and if so, how.” On the basis of this statement and the fact that in the meantime, more that 15 months had expired, the Stuttgart court ordered service by publication of the statement of claim and the respective court order. The Frankfurt court allowed a bit more time, but followed that approach. The two India cases are, in my opinion, illustrative of the way German courts would generally approach the issue of service in difficult jurisdictions.
All well that ends well? Yes, but only if the judgment is to be enforced in a jurisdiction where a German default judgment issued on the basis of service by publication is recognized. There are some, but India is not one of them…
In the case of India, maybe there is hope: Shouldn’t courts all over the world introduce Defect Curing Counters like the Supreme Court of India in Delhi has?