Ukraine and the Hague Service Convention 1965: Key reservations to be aware of when dealing with Ukraine
27 May 2021
The article is published in Linkedin
The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters dd. 15 November 1965 (“the Hague Service Convention”) is a legal instrument that facilitates the serving abroad of judicial and extrajudicial documents in civil or commercial matters.
Regardless of its name, the Hague Service Convention does not regulate the itself process of serving the documents on ultimate legal/ natural persons residing abroad, but rather provides for agreed channels of transmission of the judicial and extrajudicial documents from the Originating State to the Requested State, when there is a need for proper notification of the foreign party (defendant) of a foreign case. The actual service method on a foreign defendant, in contrast, is regulated by the domestic law of the Requested State effecting the service in its territory as if for domestic litigation purposes, unless requested otherwise by the Originating State and is not contrary to the law of the Requested State.
The whole ‘service abroad’ procedure can be figuratively divided into two parts (“levels”):
- Formation and transmission of the Originating State’s competent authority’s request for service abroad via the agreed transmission channels under the Hague Service Convention with the Requested State’s opposition and declarations taken into account (e. either through formal or alternative channels) (a so-called “inter-state level”);
- Processing of the Originating State’s request and effecting its service on a defendant in the territory of the Requested State under the latter’s domestic method of service, unless otherwise requested and permitted (a so-called “internal level”).
Given the above, the whole ‘service abroad’ procedure is believed to be complex to the extent that to accomplish it properly, it is needed to observe the requirements of the domestic laws of both States – of the Originating State and of the Requested one.
This is particularly important when the Originating State’s competent authority aims to effect the alternative channels of transmission of the requested documents on the foreign defendant. Should the alternative channels of transmission of judicial and extrajudicial documents (say, directly by post) be allowed by the Originating State’s law, it shall be possible to avail of this option only if the law of the Requested State permits that as well.
When acceding to the Hague Service Convention in year 2000, Ukraine opposed to certain sections of it and made some declarations to its applicability, available at https://www.hcch.net/en/states/authorities/details3/?aid=251
Ukraine, inter alia, entirely opposed to the application of Article 10 of the Hague Service Convention which allowed for the use of alternative channels of transmission of the Originating State’s request for service abroad.
In such a way, the foreign competent authority/ judicial officers, officials or any person interested in a judicial proceeding needing to serve its documents on the defendant residing in Ukraine, shall be precluded from the direct use of postal channels, directly to persons in Ukraine (Article 10(a)), directly through judicial officers, officials or other competent persons of Ukraine (Article 10 (b, c)).
That said, for Ukraine the main acceptable channel of transmission of foreign judicial and extrajudicial documents for service in Ukraine is via its designated Central Authority, which is the Ministry of Justice of Ukraine.
Also, Ukraine made a declaration on application of Article 15 (2) of the Hague Service Convention which, in certain cases, gives the ‘green light’ to the courts to proceed with deciding a case, notwithstanding the absence of the foreign defendant before the court.
As such, by default under Article 15 (1) of the Hague Service Convention to give a judgment by a court in a case where a foreign defendant hasn’t appeared, the court first has to establish whether a writ of summons was transmitted abroad and duly served by a method prescribed by the internal law of the Requested State for the service of documents in domestic actions upon persons who are within its territory, and the service was effected in sufficient time to enable the defendant to defend.
In other words, before bringing a judgment a court has to verify the certificate of service, received from the foreign Requested State, and make sure that the foreign defendant who failed to appear, had been duly served with the notice.
At the same time, should there be unreasonable delay or failure in receiving the certificate of service from the foreign Requested State, Ukraine by virtue of its declaration of applicability of Article 15 (2) of the Hague Convention enabled itself to render a judgment in the absence of the foreign defendant before the court, provided all of the cumulative conditions are met:
- the requested document was transmitted by one of the methods (channels) provided for in the Hague Service Convention;
- a period of time of not less than 6 (six) months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document;
- 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 Requested
To sum up, the proper application of the Hague Service Convention 1965 shall guarantee the observance of due legal process and thus facilitate smooth and effective recognition & enforcement of foreign judgements. For this purpose, one should never forget to first check the existing oppositions and declarations of the Contracting State which you aim to request to effect the service.
 Article 10 of the Hague Service Convention, 1965:
Provided the State of destination does not object, the present Convention shall not interfere with – a) the freedom to send judicial documents, by postal channels, directly to persons abroad, b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination, c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.
 Article 15 of the Hague Service Convention, 1965:
Where a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and the defendant has not appeared, judgment shall not be given until it is established that – a) the document was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory, or b) the document was actually delivered to the defendant or to his residence by another method provided for by this Convention, and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.
Each Contracting State shall be free to declare that the judge, notwithstanding the provisions of the first paragraph of this Article, may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled – 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, 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.
The publication is accessible at the link: https://www.linkedin.com/pulse/ukraine-hague-service-convention