"What if the defendants do not live or are not found in the country?"
"What if the defendants do not live or are not found in the country?"
There are civil and commercial proceedings instituted against defendants who do not reside or are not found in the Philippines. Conversely, there are also similar proceedings commenced in a foreign country against those who reside or are found in the Philippines.
In these cases, it cannot be avoided that judicial documents such as orders, resolutions, judgments, official documents issued by courts, pleadings, and other court submissions by the parties, be served extraterritorially (Section 5 (f), Part I, Administrative Order [AO] No. 251-2020).
In the past, I had received requests from foreign lawyers seeking assistance to serve summons, court documents, or pleadings to defendants in the Philippines. I also had cases where judicial documents were prepared and issued in the Philippines but were served to individuals and juridical entities found in or holding business in a foreign country.
Before its amendment in 2019, our Rules of Civil Procedure mandated that extraterritorial service of summons to individuals shall, with leave of court, be: (a) by personal service; (b) by publication in a newspaper of general circulation and by sending a copy of the summons and order by registered mail to the last known address of the defendant; or (c) in any manner the court may deem sufficient (Section 15, Rule 14).
However, the 2019 amendments to the Rules of Civil Procedure made effective on 1 May 2020 included extraterritorial service of summons as “provided for in international conventions to which the Philippines is a party” (Section 17, Rule 14). Significantly, on 4 March 2020 and before the effectivity of the amendments to the Rules of Civil Procedure, the Philippines deposited its Instruments of Accession to the Hague Service Convention to be effective on 1 October 2020.
Although there is a separate provision on the extraterritorial service of summons to a foreign juridical entity not registered in the Philippines, there is no provision in the 2019 amendment for the use of international conventions. The modes of extraterritorial service of summons are: (a) by personal service; (b) by publication in the country where the defendant may be found and service of the summons and order by registered mail to the last known address of the defendant; (c) by facsimile or electronic means; or (d) by other means the court may direct (Section 14, Rule 14, 2019 Amendments to the Rules of Civil Procedure [2019 ARCP]).
The service of pleadings or judicial documents was limited to personal service, registered mail, or ordinary mail in the 1997 Rules of Civil Procedure, but now includes service by accredited courier, electronic mail, facsimile transmission, other electronic means, or as provided for in international conventions to which the Philippines is a party (Section 5, Rule 13, 2019 ARCP).
Interestingly, there is a separate provision on service by the courts of final judgments, final orders or final resolutions by personal service or registered mail. In the 2019 amendments, service by accredited courier of final judgments or final orders upon ex parte motion of a party who is willing to shoulder the expenses was introduced (Section 13, Rule 13, ARCP).
The insertion of the phrase “as provided for in international conventions to which the Philippines is a party” in both Rules 13 and 14 of the 2019 ARCP was evidently in anticipation of the accession of the Philippines to the Hague Service Convention. It is worth noting that the Philippines acceded to the Hague Apostille Convention, a different convention, on legalization of foreign public documents on 12 September 2018, which took effect on 14 May 2019.
With this development, the Supreme Court issued the Guidelines to implement the Hague Service Convention. This was to simplify and expedite the service of documents abroad, and to guarantee that the service will be brought to the notice of the recipient in sufficient time (AO No. 251-2020).
Under the said guidelines, for outbound judicial documents, a party may apply, in a civil or commercial proceeding, to determine whether extraterritorial service through the Hague Service Convention is necessary in accordance with Rules 13 and 14 of the 2019 Rules of Civil Procedure. The motion must be accompanied, in duplicate, by a copy of the Model Form, the original documents to be served, the translations when necessary, and the commitment to pay the fees in full (Section 1, Part II, AO No. 251-2020).
If the court finds that extraterritorial service under the Hague Service Convention is warranted, it shall issue an Order to that effect. The Order shall include a directive to the requesting party to procure and submit a prepaid courier pouch which shall be used for the transmission of documents from the court to the Central Authority of the Requested State (Section 2, Part II, AO No. 251-2020).
The Central Authority refers to the authority in charge of receiving requests for service from Requesting States and executing them or causing them to be executed. In the Philippines, the Office of the Court Administrator (OCA) is the designated Central Authority. (Section 5, Part I, AO No. 251-2020).
The Judge in the case of lower courts, or the Justice or the Clerk of Court in the case of collegiate courts, as forwarding authorities, shall accomplish and sign the Request using the Model Form, check the completeness of documents, and ensure compliance with the requirements of the Hague Service Convention and that of the Requested State (Section 2, Part II, AO No. 251-2020).
Once all the requirements are submitted by the party requesting the extraterritorial service through the Hague Service Convention, the court shall coordinate with the Central Authority of the Requested State and transmit, among others: (a) the order granting the extraterritorial service; (b) the filled-out Request and Summary of the Document to be served; (c) the documents sought to be served; and (d) certified translations of the Model Form when necessary (Section 4, Part II, AO No. 251-2020).
The court shall also furnish the OCA with a copy of the request and shall update the OCA on the status of its request. The Central Authority of the Requested State shall then process the request and attempt service in accordance with its domestic laws (Sections 4 and 5, Part II, AO No. 251-2020).
On the other hand, inbound judicial documents shall be referred to the OCA. The request, including the documents to be served, must also conform to the Model Form. The intended recipient should be indicated with sufficient specificity, and as much as practicable shall include the house number, building, street name, barangay, municipality/city, province, and zip code. Post office boxes shall not be allowed (Sections 1 and 2, Part III, AO No. 251-2020).
All requests must be accompanied by a payment of One Hundred U.S. Dollars (US$100.00) for each recipient to be served, for the costs of service. For multiple recipients residing in the same address, only one fee shall be paid. The Forwarding Authority of the Requesting State (the foreign country) from where the documents originated shall transmit the request, together with all the documents, and proof of payment, to the OCA through electronic transmission, registered mail, or courier services (Sections 3 and 4, Part III, AO No. 251-2020).
If, upon evaluation of the OCA, the request fails to comply with any of the requirements, or there are objections for the execution of the request, the OCA shall inform the Forwarding Authority. If the objections are resolved, the processing of the request shall proceed. Otherwise, all documents shall be returned to the Forwarding Authority, along with a notice of objection or denial (Section 5, Part III, AO No. 251-2020).
When the request is sufficient in form, the OCA shall forward the request to the court having jurisdiction over the area where the intended recipient resides. The Executive Judge in mutiple-sala courts, or the Presiding Judge in single-sala courts, shall immediately assign a sheriff, process server, or any other competent personnel to serve the document in accordance with the Rules of Court (Sections 6 and 7, Part III, AO No. 251-2020).
The officer assigned to serve the document shall execute a return on the service in accordance with the Rules of Court within five (5) days from service. The return shall state that the document and attachment/s have been served, and shall include the method, the place and the date of service, and the person to whom the document was delivered (Section 8, Part III, AO No. 251-2020).
Within thirty (30) calendar days from receipt of the request, the judge shall transmit the duly accomplished Certificate and the Return of Service to the Forwarding Authority of the Requesting State. It shall be the duty of the judge to furnish the OCA with a copy of all the documents transmitted to the Requesting State, for monitoring purposes (Section 10, Part III, AO No. 251-2020).
The implementation of the Hague Service Convention by the Supreme Court is a step towards making the service of judicial documents to transnational litigants more efficient. This pro-active and dynamic step, as reflected in the Rules, gives the judicial system a much-needed boost in ensuring that cases involving parties who reside or hold business in different parts of the world can expect swift disposition of their cases.
