When negotiating contracts with international parties, counsel
should consider how their clients would, if necessary, serve
judicial documents on counterparties based outside of Canada. The
Hague Convention on the Service Abroad of Judicial and
Extra-Judicial Documents in Civil or Commercial Matters, to
which Canada is a signatory,sets out the channels for international
transmission and service of documents and applies "in all
cases, in civil or commercial matters, where there is occasion to
transmit a judicial or extrajudicial document for service
abroad" between signatory states. Recent court consideration
of the Hague Convention, previously discussed by our
here, generally requires plaintiffs to comply with the
convention when serving documents on parties in signatory
Often service under the Hague Convention will have to
be effected via the designated central authority in the destination
state. However, service via the central authority is not always
practical or even possible. Plaintiffs may encounter
difficulties with the Hague Convention's procedures,
such as delays in service and unilateral revocation by the
destination state. Central authorities are under no obligation to
expedite service of process to ensure parties meet the required
deadlines for service under the rules of the transmitting state,
such as the Alberta Rules of Court. Article 13 of the
convention allows signatory states to cite infringement of
sovereignty or security as a basis for refusing to effect
In light of the potential delays and uncertainty in effecting
service of process under the Hague Convention, parties to
a contract can take steps to avoid its application. Relying on Rule
11.3 of the Alberta Rules of Court and similar rules in
other provinces, parties to a contract can agree to appoint an
agent located in Alberta upon whom service may be effected. Serving
process on a local agent avoids the need to transmit documents
outside of Canada, thereby avoiding the Hague
Convention's rules on service abroad.
Contract provisions appointing a local agent for service of
process must be specific. A general notice provision designating
where all notices must be sent for the purposes of the agreement
may not be sufficient for service of process under applicable
provincial rules. Courts in Alberta, for example, have ruled that
service under a general notice provision that does not specifically
refer to commencement documents or process will not be considered
Recent amendments to the Alberta Rules of Court may
allow for validation of service regardless of whether the Hague
Convention applied or was followed, as previously discussed
here. However, it remains advisable to require international
counterparties to appoint a local agent for service of process,
such as a local subsidiary or local counsel, in order to minimize
potential delays and avoid uncertainty in how the rules may be
applied in the future.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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