SERVICE OF PROCESS IN JAPAN
From the U.S. State Department circular on Japan Judicial Assistance
The United States and Japan are a parties to the Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil and Commercial Matters. Persons requesting service of process of U.S. documents in Japan in civil and commercial matters should execute the USM-94 form or the new interactive Service Convention form available from the Hague Conference on Private International Law web page. The request form should be completed in duplicate and submitted with two sets of the documents to be served directly by the requesting attorney or clerk of court to the Japanese Central Authority.
The Japanese Central Authority is Ministry of Foreign Affairs, 2-2-1 Kasumigaseki Chiyoda-ku, Tokyo 100-8919 Japan. The person executing the request form should be either an attorney or clerk of court. The applicant should include attorney at law or clerk of court title on the identity and address of applicant and signature/stamp fields. See the U.S. response to the 2003 Questionnaire in preparation for the Special Commission on the Practical Operation of the Convention. Question 17.3 addressed the issue of who is authorized under U.S. law to execute a request under the Convention. Attorneys should cite Rule 4 of the Federal Rules of Civil Procedure or comparable state statute permitting attorneys to execute service requests. Proof of service is transmitted to the requester by the Japanese central authority through the Japanese embassy and consulates in the United States. For general guidance about how to transmit requests for service of process, see our Hague Service Convention feature. See also Japan’s response to the 2003 Questionnaire in preparation for the Special Commission on the Practical Operation of the Hague Service Convention and the new edition of the Practical Handbook on the Operation of the Hague Service Convention. Service of Criminal Subpoenas U.S. consular officers are permitted to serve criminal subpoenas on U.S. citizens and U.S. Lawful Permanent Residents abroad pursuant to 22 CFR 92.86, when specifically authorized by the Department of State. Service on a member of the U.S. Military in Japan
It is possible to effect service on members of the U.S. Armed Forces in Japan through the Japanese central authority. Service by mail may also be used if state law permits (APO and FPO are U.S. mail). Also, contact the Judge Advocate General’s (JAG) Office at the Pentagon for the particular branch of the service (tel: 703-545-6700).
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The plaintiff filed a suit with the NY family court to claim for a return of a child from the defendant. The show cause order accompanied by the plaintiff's affidavit was sent directly to the defendant in Japan by postal channel. The order was necessary to commence the procedure but a Japanese translation thereof was not attached. The NY family court rendered a judgment in favour of the plaintiff in the absence of the defendant. The plaintiff sought enforcement of the judgment in Japan. Hachioji Branch of Tokyo District Court held as follows and dismissed the case. Japanese Code of Civil Procedure requires as one of the conditions for recognition and enforcement of a foreign judgment that the defeated defendant has received service of summons or any other necessary orders to commence procedures in light of enabling a defeated defendant to arrange for his/her defense. It is considered that, for the purpose of enabling a Japanese defendant to arrange for his/her defense, a Japanese translation must be attached to a document to be served and be served in accordance with the due process of judicial co-operation. In this case, the requirement for recognition and enforcement of a foreign judgment is not met because the show cause order was sent to the defendant without its translation.Tokyo District Court. Judgment of February 24, 1998
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(b) It is not against the principle of reciprocity under Article 21 of Vienna Convention on the law of treaties that the State that has declared the objection to Article 8, paragraph 1 of the Service Convention performs service through its consular agents in Japan, which has not declared such objection. The plaintiff filed a claim with the German court. The consular agent in Japan served the written complaint to the defendant by registered mail. The German court rendered a judgment in favour of the plaintiff in the absence of the defendant. The plaintiff sought enforcement of the judgment in Japan. Tokyo District Court held as following (these are only the points concerning service): (a) The consular agent may serve documents by registered mail as the method under Article 8, paragraph 1 of the Convention. (b) It is not against the principle of reciprocity under Article 21 of Vienna Convention on the law of treaties that the State that has declared the objection to Article 8, paragraph 1 of the Service Convention performs service through its consular agents in Japan, which has not declared such objection. Supreme Court, Judgment, April 28, 1998 This case concerns an action for the recognition and enforcement of an order issued by the Hong Kong High Court before Hong Kong was returned to China on July 1, 1997. Supreme Court held as follows (there are only the points concerning service); "Service of summons or any other necessary orders to commence procedures" against the defendant provided in Article 118ii of the Code of Civil Procedure does not have to comply with the laws and rules of our civil procedure. However it is required that the process of service gives the defendant actual knowledge of the commencement of action and not hinder the exercise of his/her right to defense. In addition, the viewpoint of realizing clear and stable procedures leads to the following interpretation of Article 118ii. Where a convention is concluded regarding judicial co-operation between our country and the judgment country for the service of judicial documents and it is required that service of judicial documents necessary to commence an action be undertaken in accordance with the methods provided by the convention, process of service that does not abide by the methods of the convention does not satisfy the requirement provided in Article 118ii. Japan and the United Kingdom, which had sovereignty over Hong Kong at that time, are parties to the Service Convention. Service, as in the present case, by means of direct delivery by a person who is asked personally to do so by the respondent is not permitted by the Convention. Moreover we are unable to find a basis for it in the bilateral treaty between our country and the United Kingdom, the "Consular Treaty between Japan and the United Kingdom of Great Britain and Northern Ireland." Therefore service of the above-mentioned Notice of Motion to the appellants should be regarded as an illegal action that does not satisfy the requirement provided in Article 118ii of the Code of Civil Procedure.
