The standards of the foreign defendants notification in the economic disputes resolution

Abstract

Notification of a foreign defendant is of fundamental importance for the effective realization of the right to a fair trial. At the same time judicial practice identifies controversial issues concerning the assessment of such notification. In the new geopolitical conditions, the situation is complicated by the sanctions imposed by the states, thus reinforcing the relevance of the research. The purpose is to examine the standards of foreign defendants’ notification established in the Russian court practice, as well as to analyze the sanctions impact on the conventional notification mechanisms on the example of one of the high-profile cases. The authors rely on general scientific research methods (analysis and synthesis, induction and deduction, dialectical method) and special methods (formal legal, comparative legal). The article concludes that in the Russian court practice a different standard - the so-called standard of effective notification based on evidence of the actual awareness of the party about the foreign proceedings - is formed as a counterbalance to the strictly formal standard of notification. The authors note that the standard of effective notification, fulfilling its useful function, should not lead to unjustified refusal to follow the international conventions on foreign persons notification. These conventions retain their binding effect including exclusive situations where they should be applicable. The authors conclude that it is necessary to clarify both the conditions for effective notification standard application and the requirements for the effective notification standard. The sanctions have affected the application of notification mechanisms: Russian courts recognize a foreign court request to notify a Russian sanctioned person as contrary to public policy in a situation where an anti-suit injunction on a foreign proceeding was previously issued.

About the authors

Elena V. Mokhova

Higher School of Economics (HSE University)

Author for correspondence.
Email: emokhova@hse.ru
ORCID iD: 0000-0001-9729-6546
SPIN-code: 8084-5013

Candidate of Legal Sciences, Associate Professor of the Department of Legal Regulation of Business, Faculty of Law

3 Bolshoy Trekhsvyatitelsky lane, Moscow, 109028, Russian Federation

Iana S. Butakova

Higher School of Economics (HSE University)

Email: yanabutakova@yandex.ru
ORCID iD: 0000-0002-8686-5384
SPIN-code: 7327-2494

postgraduate student of the Graduate School of Law

3 Bolshoy Trekhsvyatitelsky lane, Moscow, 109028, Russian Federation

References

  1. Anthimos, A. (2017) Fictitious service of process in the EU - requiem for a nightmare? Czech Yearbook of international law. VIII, 3-34. http://dx.doi.org/10.2139/ssrn.2782431
  2. Bessonova, A.I. (2021) Notification of parties to a procedure located abroad in the digital technology era. Arbitrazh and civil procedure. (8), 53-54. https://doi.org/10.18572/1812-383X-2021-8-53-54 (in Russian).
  3. Bonilla, M.K. (2022) Rethinking the process of service of process. St. Mary's Law Journal. 53(1), 255-285 Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol53/iss1/6 [Accessed 11th February 2023].
  4. Campbell, C.B. (2010) No Sirve: The Invalidity of Service of Process Abroad by Mail or Private Process Server on Parties in Mexico Under the Hague Service Convention. Minnesota Journal of International Law. 19(1), 107-136.
  5. Torremans, P. (ed.). (2017) Cheshire, North & Fawcett on Private International Law. Fifteenth Edition. Oxford University Press. NY.
  6. Coyle, F.J., Effron, R.J. & Gardner, M. (2019) Contracting around the hague service convention. UC Davis Law Review Online. (53), 53-61.
  7. Dodge, W.S. (2022) Substituted Service and the Hague Service Convention. William & Mary Law Review. 5(63), 1485-1530. Available at: SSRN: https://ssrn.com/abstract=3889597 [Accessed 11th February 2023].
  8. Dominelli, S. (2018) Current and future perspectives on cross-border service of documents. Editore: Aracne. Available at: SSRN: https://ssrn.com/abstract=3259980 [Accessed 11th February 2023].
  9. Doryaev, M.G. & Kryazhevskikh, K.P. (2012) Refusal to serve foreign court documents: an analysis of the practice of applying Article 13 of the Hague Convention of 1965. International Соmmercial Arbitration Review. (2), 110-119. (in Russian).
  10. Eliseev, N.G. (2016) Service of summons to a defendant residing out of jurisdiction. Zakon. (6), 121-137. (in Russian).
  11. Gössl, S.L. (2016) The public policy exception in the European civil justice system. The European legal forum - forum iuris communis Europae. (4), 85-92. Available at: https://ssrn.com/abstract=2887020 [Accessed 11th February 2023].
  12. Hay, P. (2018) Private international law and procedure. Cheltenham, UK, Edward Elgar Publishing.
  13. Hedges, R.J, Rashbaum, K.N. & Losey, A.C. (2009) Electronic service of process at home and abroad: allowing domestic electronic service of process in the Federal Courts. The Federal Courts Law Review. 1(4), 54-77.
  14. Kostin, A.А. (2014) Issues of proper notification of a foreign defendant in international civil proceedings. Zakon. (8), 75-83. (in Russian).
  15. Kostin, A.А. (2017) Due and timely service of process on the defendant as a prerequisite for recognition and enforcement of foreign judgment. Zakon. (4), 120-131. (in Russian).
  16. Krokhalev, S.V. (2006) The category of public order in international civil procedure. Saint Petersburg, Publishing House of Saint Petersburg State University. (in Russian).
  17. Kudelich, E.A. (2015) Cross-border enforcement of foreign judgments in russia: imprisoned by stereotypes or making headway? Zakon. (5), 143-157. (in Russian).
  18. Lewis, K.V. (2008) E-Service: ensuring the integrity of international e-mail service of process. Roger Williams University Law Review. 13(1), 285-306.
  19. Reisenfeld, K. (1990) Service of United States process abroad: a practical guide to service under the hague service convention and the federal rules of civil procedure. The International Lawer. 24(1), 55-83.
  20. Schack, H. (2001) Internationales Zivilverfahrensrecht. International Civil Procedure Law. Translated from German. M.: BEK Publ. (in Russian).
  21. Tamayo, Y.A. (2000) Are you being served?: e-mail and (due) service of process. South Carolina Law Review. (51), 2-37. Available at: https://ssrn.com/abstract=976446 [Accessed 11th February 2023].
  22. Upchurch, A. (2016) ‘Hacking’ service of process: using social media to provide constitutionally sufficient notification of process. University of Arkansas at Little Rock Review. (38), 559-625. Available at: https://ssrn.com/abstract=2883377 [Accessed 11th February 2023].
  23. Weis, J.F. (1994). Service by mail - is the stamp of approval from the hague convention always enough? Law and Contemporary Problems. 57 (3), 165-177.
  24. Willig, S. (2009) Out of service: the causes and consequences of russia’s suspension of judicial assistance to the United States under the hague service convention. University of Pennsylvania Journal of International Law. 32 (2), 593-620.
  25. Yarkov, V.V. (2012) Judicial notifications in international civil proceedings (the example of notification of Russian citizens by UK courts). Zakon. (8), 33-38. (in Russian).

Copyright (c) 2023 Mokhova E.V., Butakova I.S.

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