Australia has recently taken further steps to strengthen its global position in cross-border dispute resolution by ratifying the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. By adding channels of document service to international litigants, the changes add certainty and clarity to international procedures whilst reducing costs.
Australia has ratified the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 (“the Convention”), which came into effect on 1 November 2010.
The goals of adopting the Convention include:
- adding channels of service to international litigants beyond diplomatic means
- adding certainty and clarity to international service procedures whilst reducing costs, and
- giving greater effect to Australian judicial decisions internationally.
Channelling success: impact and implementation
The Convention provides for one main channel of service transmission and several alternative channels. ‘Service’ refers to the delivery of court-authorised documents. Under the main channel, a judicial officer in the requesting party’s State will serve the document directly to the Central Authority of the State where the intended recipient is located. For example, in Australia the Central Authority is the Commonwealth Attorney-General’s Department. The Central Authority will then use their internal systems to have that document delivered to the recipient. The Authority is obliged not to charge for delivery, thereby reducing the financial burden on the parties.
Once service is affected, a certificate of service will be completed by the Central Authority and transmitted back to the applicant. That certificate will then satisfy the judiciary that the recipient was served in accordance with the Convention and can be used as evidence in proceedings.
Diplomatic and postal channels are still open to litigants, as are direct communications between judicial officers and the interested parties.
Familiar faces: signatories and benefits
The 62 signatories to the Convention comprise some of Australia’s largest trading partners. These include the United States, China, the United Kingdom and members of the European Union. When disputes arise between entities in these countries, the Convention provides a clear set of procedures for transmission of document service that may largely bypass the diplomatic channels.
On ratification, legislators are looking to achieve streamlines of service between political and judicial authorities. The hope is to increase efficiencies in the service of documents between member-states that will reduce the time and cost of litigious disputes. The Convention makes it easier to prove service abroad and will give Australians more time to defend an action when one is raised against them.
To prevent default judgment being made by a court, additional protections are in place to ensure a defendant is served documents with sufficient time.
It should be noted that the Convention applies to all civil procedures and cases where there is no known address for service. Criminal matters are not subject to the accord.
The Convention in context
The ascension of the Convention continues a recent trend by Federal Parliament to bring Commonwealth law into line with international agreements, particularly in the area of international arbitration. A flurry of legislative activity emerged following the release of the updated UNCITRAL Model Law, with the newly enacted International Arbitration Amendment Act 2010 bringing domestic procedure into line with the Convention. The Civil Dispute Resolution Act 2010 has also adopted the measures of flexibility and finality proposed in the international law.