Hague Conventions Briefing Note

The skyline of the Hague

The Hague Conventions, a series of treaties and declarations, have been instrumental in creating a systematic framework to govern legal interactions between nations.

The term “Hague Convention” refers to international treaties that were negotiated and agreed upon at international conferences held in The Hague, Netherlands. The conventions cover a broad range of international legal issues, including civil procedure, family law, private international law, and the legalisation of documents.

One of the most significant among these is the Apostille Convention, or the Hague APOSTILLE Convention. Formally known as the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, it established a simplified method of “legalisation” for documents to be used in countries that are members of the convention.

CONVENTION ABOLISHING THE REQUIREMENT OF LEGALISATION FOR FOREIGN PUBLIC DOCUMENTS

(Concluded 5 October 1961)

The States signatory to the present Convention, Desiring to abolish the requirement of diplomatic or consular legalisation for foreign public documents, Have resolved to conclude a Convention to this effect and have agreed upon the following provisions:

Article 1

The present Convention shall apply to public documents which have been executed in the territory of one Contracting State and which have to be produced in the territory of another Contracting State.

For the purposes of the present Convention, the following are deemed to be public documents:

a)     documents emanating from an authority or an official connected with the courts or tribunals of the State, including those emanating from a public prosecutor, a clerk of a court or a process-server ("huissier de justice");

b)  administrative documents;

c)  notarial acts;

d)  official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures.

However, the present Convention shall not apply:

a)  to documents executed by diplomatic or consular agents;

b)  to administrative documents dealing directly with commercial or customs operations.

The Hague Service Convention, also known as the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, is a multilateral treaty that was adopted on 15 November 1965 in The Hague, The Netherlands. It was created by member states of the Hague Conference on Private International Law with the aim of providing litigants with a reliable and efficient method of serving documents to parties residing, operating, or based in another country. The convention specifically applies to the service of process in civil and commercial matters, EXCLUDING CRIMINAL MATTERS.

Additionally, Article 1 of the convention states that it does not apply if the address of the person to be served with the document is unknown.

The Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (HCCH 1965 SERVICE Convention) provides for the channels of transmission to be used when a judicial or extrajudicial document is to be transmitted from one Contracting Party to the Convention to another Contracting Party for service in the latter. The Convention establishes a main channel of transmission via a designated Central Authority, as well as alternative channels of transmission. The Convention deals primarily with the expedient transmission of documents; it does not address or comprise substantive rules relating to the actual service of process. 

Canada and Ireland are both parties to the Hague Service Convention, meaning you use its procedures for cross-border service, but they have specific rules: Canada handles service via Central Authorities (like provincial sheriffs, often with fees & translation needs), while Ireland generally requires using the Central Authority or a solicitor, but objects to direct service via postal/bailiff methods (except for solicitor-to-solicitor). The core is the Convention, but local implementation differs, requiring careful adherence to each country's designated methods and translation rules. 

This means that formal service of process between these countries must follow the strict procedures outlined in the Convention to ensure validity and enforceability of judgments.

IRELAND

The Republic of Ireland acceded to the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, also called the Hague SERVICE Convention, signed on April 5, 1994. The treaty entered into force for Ireland on June 4 of the same year.

In addition to the Statute of the Hague Conference, Ireland is a state party to ten instruments elaborated under the auspices of the Hague Conference, either on the basis of ratification or accession by Ireland or as a result of approval or accession by the EU of the instrument.

https://assets.gov.ie/static/documents/Convention_Abolishing_the_requirement_of Legalisation_for_Foreign_Public_Documents.pdf

The Convention was signed on behalf of Ireland on 29 October 1996. Provision in law for the obligations assumed by the State pursuant to the Convention was made by the Superior Court Rules Amendment Nº 3 - Rules of the Superior Courts (Nº1) (Proof of Foreign Diplomatic, Consular and Public Documents) 1999. It was ratified on 8 January 1999 and entered into force with respect to the State on 9 March 1999. Upon ratification, pursuant to paragraph 1 of Article 6 of the Convention, Ireland designated the Consular Section of the Department of Foreign Affairs and Trade as the authority competent to issue the certificate known as the “apostille”.

The requirement for legalisation of certain foreign public documents has been completely abolished as between Ireland and other contracting parties pursuant to the terms of the Convention Abolishing Legalisation of Documents in Member States of the European Communities which was done at Brussels on 25 May 1987.

https://assets.gov.ie/static/documents/Convention_on_the_Service_Abroad_of_Judicial_and_Extrajudicial_Documents.pdf

The Convention was signed on behalf of Ireland on 20 October 1989. Provision in law for the obligations assumed by the State pursuant to the Convention was made by the Rules of Courts. It was ratified on 5 April 1994 and entered into force with respect to the State on 4 June 1994. The Master of the High Court (address: The Four Courts, Inns Quay, Dublin 7) has been designated as the Central Authority for Ireland in accordance with Article 2 of the Convention and, pursuant to Article 6, is the appropriate authority for completion of certificates in the form of the model annexed to the Convention.

Upon ratification Ireland made the following declarations and objections:

Article 3: The authority or judicial officer competent under the laws of Ireland for the purpose of Article 3 of the Convention are the Central Authority, a practising Solicitor, a County Registrar or a District Court Clerk.”

Article 10: “In accordance with the provision in Article 10 of the Convention the Government of Ireland objects to (i) the freedom under Article 10(b) of judicial officers, officials or other competent persons of the State of origin to effect service in Ireland of judicial documents directly through judicial officers, officials or other competent persons and (ii) the freedom under Article 10(c) of any person interested in a judicial proceeding to effect service in Ireland of judicial documents directly through judicial officers, officials or other competent persons, but this is not intended to preclude any person in another Contracting State who is interested in a judicial proceeding (including his lawyer) from effecting service in Ireland directly through a solicitor in Ireland.”

CANADA

Canada officially joined the Hague Convention on January 11, 2024.

How does this affect the legalisation of documents for use in Canada?

Documents that are being legalised for use in Canada will now be processed under the same format that each country under the Hague Convention uses for apostilles.

Canadian attorneys should consult provincial precedent — Canadian courts take a more nuanced view of the Convention but effectively reach the same conclusion: its limitations must be observed.

Regardless of forum court requirements, the service rules of the receiving country must be observed, or enforcement of a judgment may become impossible.

Hague Service Issues Unique to Ireland

You may think therefore that it is a straightforward matter to effect service on Irish citizens or residents in litigation cases as the Hague Service Convention provides for a number of methods of service including

• Post or mail with a return receipt (however, see caveat below re service by mail)

• Directly through the Central Authority of the country in which you wish to serve documents

• Instructing a local solicitor in Ireland to deal with the matter of service.

However, a quick look at the background of Ireland’s ratification of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matter is worthwhile and may save you a lot of money, time and heartache.

International service of process in Ireland can be completed through the Hague Convention. Ireland signed the Convention on October 20, 1989, and ratified it on April 5, 1994. The conventions were put into force on June 4, 1994.

Ireland objected to other methods of service provided for in Article 10 of the Hague Service Convention and made declarations pursuant to Articles 3 and 15.

The specific articles opposed by Ireland are:

Article 10(b)

Article 10(c)

The objection Ireland made under Article 10 was to:

i. the freedom under Article 10(b) of judicial officers, officials or other competent persons of the State of origin to effect service in Ireland of judicial documents directly to judicial officers, officials or other competent persons and

ii. the freedom under Article 10(c) of any person interested in a judicial proceeding to effect service in Ireland of judicial documents directly through judicial officers, officials or other competent persons.

However, this objection is not intended to preclude any person in another contracting State who is interested in a judicial proceeding or his lawyer, from effecting service in Ireland directly through a solicitor in Ireland.

This objection raises two questions which have to be answered before the service of foreign process in Ireland is valid:

1. Whether the mode of service followed is valid under the law of the State of origin and

2. The competency of the Irish official who effects service.

Under the terms of this objection, therefore, there are only two officials who possess the necessary competence to effect service under the Convention in Ireland.

These are the Central Authority in Ireland (the Master of the High Court) and a solicitor in Ireland. No one else is to validly effect service in Ireland under the terms of the Convention.

This means that although service may ultimately be valid according to the law of the State of origin, it is not good service for the purposes of the Convention.

Therefore, if you wish to ensure valid service in accordance with the Hague Convention, the use of legal services agents or town agents or law agents DIRECTLY will not suffice and will not be good service in accordance with the Hague Convention.

This is not explicitly stated anywhere but arises by implication from Ireland’s objection to the ratification of the Hague Convention as outlined above.

This can cause serious problems because service can only be effected directly through the Central Authority or by using an Irish solicitor who will submit the documents and request form on your behalf.

In summary Ireland’s ratification of the Hague Convention was done in such a way as to leave only 2 avenues of good service in accordance with the Hague Convention open to you:

• through the Central Authority

• by instructing a solicitor in Ireland.

Objection to these sections of Article 10 precludes the use of most informal methods of process serving. However, the Government of Ireland allows the effecting of service through a solicitor in Ireland.

​​Serving a subpoena in the Republic of Ireland is handled under the Hague EVIDENCE Convention, under which subpoenas are instead sent as requests to foreign governments and courts using Letters Rogatory.

Although Ireland has formally objected to Article 10, which allows service by private process server, it has not precluded the use of an Irish solicitor to handle the service. This means that in addition to appealing to the Master of the High Court, plaintiffs also have the option of hiring a qualified solicitor based in Ireland. This is sometimes a faster route than dealing directly with the Master of the High Court. It also allows the plaintiff to request that personal service on the defendant be effectuated by the local solicitor. 

Service in the Republic of Ireland is complicated by the divided governance of the country. The threshold issue in any service request is location — a valid address is required for all service abroad — and nowhere is this more vital than in Ireland. The island was partitioned at the beginning of the Irish Free State, shortly after the First World War, and it remains divided to this day.

Unfortunately, the Irish Central Authority is currently not functioning, so litigants are left with only one option for personal service: service via Irish solicitors. Also, the Permanent Bureau of the Department of Foreign Affairs Legal Division in Ireland does not respond to legal queries from private persons or legal practitioners concerning the operation of the various Hague Conventions.

Service via solicitor does not run afoul of Irish law, and the Republic does not object to the method. As such, the method of service should not prevent recognition of a US or Canadian judgment by an Irish court.

Ireland does not require translation of documents already in English. In all cases, however, documents must reasonably be understood by the defendant in order to fulfil procedural fairness (Canada) requirements.

Service Through Alternative Channels

As stated above, the Republic of Ireland objects to alternative service under Article 10(b), with one exception: service via a solicitor.

Ireland also does not object to service via the postal channel, but mail service pursuant to the Hague Service Convention is fraught with issues, including the need to have it executed in accordance with the forum court’s local rules, and where service abroad is proper when the destination country has not affirmatively stated that it is not opposed to mail service. Service by registered mail is allowed but only records delivery to an address, not a specific person.

Under the Irish legal system assistance is not provided in locating a party on whom documents are to be served, as it is the right and duty of the party seeking to effect service to process the proceedings, including locating the other party. Where a party cannot effect service though the methods prescribed by law, a court, if satisfied that it is appropriate to do so, can make an order for substituted service.

Ireland does not apply points (a) or (b) of Article 7(1) and the courts do not act of their own motion to ascertain the address of a party to legal action.

Where personal service is requested under Article 11(2), Article 15 such service will be carried out by a law agency, private investigator or solicitor at a fee agreed between the parties which fee is normally in the region of €70 to €100.

ARTICLE 20 – Direct Service

There is nothing to prevent any person interested in a judicial proceeding effecting service of judicial documents directly through the competent officials of the Member State addressed. In Ireland these include solicitors and summon servers.

The Hague Service Convention does not pertain to subpoenas.  Repeat - you can’t just SERVE a subpoena abroad.  In the Republic of Ireland, you have to send a Letter Rogatory because Ireland is not party to the Hague EVIDENCE Convention.  Dramatically different from serving a summons or notice.

Article 10 Alternative Methods

• Mail service is available, depending on where you are, but it’s a bad idea anyway.

• Service via private agent (process server) is available under Article 10(b). This is the only truly viable option for serving defendants in the Republic.   Absolutely critical—make sure to have the process server instructed by a solicitor, or the attempt to serve is ineffective, as it violates the Irish position on Article 10.