International litigation and asset recovery require pursuing defendants and their assets across borders; therefore, it is a routine aspect of BVI litigation for claimants to serve legal documents abroad. Two recent decisions should significantly decrease the delay in effecting service abroad and pave the way for a more efficient approach to service out in the future.
In countries such as Russia, the general rule is that service of legal documents can be effected only in accordance with the Hague Convention process. This is often a time-consuming process and, in Russia, gives no guarantee that physical service will take place.
Even in countries where service via the Hague Convention is not required, since the Court of Appeal decision in VTB Bank v Katunin,(1) the tendency of many claimants has been to attempt service via all possible permitted methods and, only after those methods have proved to be unsuccessful, to then seek the court's permission to serve by alternative methods.
Historically, the procedural landscape has allowed uncooperative defendants to delay service of legal proceedings by many months.
In 2018 the BVI Commercial Court held that a claim form was deemed to be served on a Russian defendant, who had been duly notified of a hearing at which service of the claim would have been effected in accordance with the Hague Convention but which the defendant failed to attend.(2) In addition, the court allowed for all future documents in the proceedings to be served at the registered address of a BVI company beneficially owned by the defendant.
In separate proceedings, the court permitted a claimant to serve defendants located in the United Arab Emirates by alternative methods where the claimant had attempted, unsuccessfully, to serve the defendants personally and through the UAE public notary department, but had taken no steps to serve via the UAE government.(3) In doing so, the court took into account that there was no formal method for effecting service via government channels and that, even if there were, service via such a method would likely be impracticable.
The court's approach indicates a willingness to reduce the delays that can be brought about by service out and suggests that the court may be open to innovative approaches in seeking permission to serve by alternative methods.
For further information on this topic please contact Jonathan Addo or Christopher Pease at Harneys' Tortola office by telephone (+1 284 494 2233) or email ([email protected] or [email protected]). Alternatively, contact Vicky Lord or James Noble at Harneys' Hong Kong office by telephone (+852 5806 7800) or email ([email protected] or [email protected]). The Harneys website can be accessed at www.harneys.com.
Endnotes
(1) BVIHCMAP 2015/0004 and 2015/0007.
(2) JSC MCC Eurochem v Valery Rogalskiy (BVIHC(COM) 2015/0097).
(3) Commercial Bank of Dubai v Mohamed Al-Sari (BVIHC(COM) 2017/114).
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