Service of Originating Documents in Judicial and Administrative Proceedings Against the Government of Canada in other States

Circular Note No. JLA-1446 of March 28, 2014

The Department of Foreign Affairs, Trade and Development (Legal Affairs Bureau) presents its compliments to Their Excellencies the Heads of Diplomatic Missions and notified Chargés d’affaires, a.i. accredited to Canada and has the honour to refer to the matter of service of originating documents in judicial or administrative proceedings against the Government of Canada in other States.

1. Summary

Customary international law concerning the immunity of States from legal process before the authorities of other States provides for special rules regarding the service of judicial and administrative proceedings on sovereign States. Mainly, proper service of such documents is accomplished diplomatically through transmission by the forum State’s Ministry of Foreign Affairs, through its diplomatic mission accredited to the defendant State, to the headquarters of the defendant State’s Ministry of Foreign Affairs in its capital, with at least a sixty-day delay before the next step in proceedings. The Department requests the assistance of Their Excellencies the Heads of Diplomatic Missions and notified Chargés d’affaires, a.i. accredited to Canada to inform their respective State authorities in the diplomatic, legal and judicial spheres of the contents of this note.

2. Context

The Department notes that customary international law concerning State immunity from legal process before the authorities of other States provides for special rules regarding the service of judicial and administrative proceedings on sovereign States. State immunity, in its various procedural and substantive manifestations, is an attribute of the sovereignty of each State. This principle of customary international law is therefore intricately tied to the dignity and equality of all States, and to the respect and due regard which States owe each other in the community of nations. The special rules for service on a State speak directly to the fact that they are entitled to greater consideration than private entities.

The Department is circulating this statement of the relevant international law in this matter due to a number of recent and ongoing instances where service of proceedings in other jurisdictions was improperly made against the Government of Canada. These cases of improper service have given rise to protracted procedural complications to the detriment of all parties involved. While the Government of Canada is willing to fulfil its legal obligations in other jurisdictions as defined and circumscribed under international law, its participation in litigation in other jurisdictions is contingent on the fulfilment of the relevant procedural criteria, including proper service. Given the complexities of modern litigation and the transnational nature of governmental operations, there is practical need for the protections afforded to States in international law with respect to proper service.

3. Specific elements of State immunity as it relates to proper service

The Department would therefore like to underscore that proper service of originating judicial or administrative documents on a foreign State is accomplished diplomatically through transmission by the forum State’s Ministry of Foreign Affairs, through its diplomatic mission accredited to the defendant State, to the headquarters of the defendant State’s Ministry of Foreign Affairs in its capital. Service on a diplomatic mission or consular post is therefore invalid, however accomplished, and additionally constitutes a breach of Article 22 of the Vienna Convention on Diplomatic Relations or of Article 31 of the Vienna Convention on Consular Relations, which respectively provide for the inviolability of the premises of diplomatic missions and consular posts.

The Department also notes that customary international law requires that States be given an appropriate delay to prepare for the next step in proceedings after the service of originating documents. This recognizes the complex and transnational nature of each State’s operations and the consequent need for more time to prepare for upcoming litigation in another jurisdiction than would normally be afforded to a local private party, notably to name local legal counsel, to locate records which may be spread across several localities and to prepare any jurisdictional arguments. The laws of several States, including Australia, the United Kingdom of Great Britain and Northern Ireland and the United States of America, as well as that of Canada, provide for a sixty-day or two-month delay between service and the next step in proceedings, and the Department considers that sixty days is the minimum period which could satisfy this requirement of an appropriate delay.

The Department finally notes that Canada’s missions abroad have no legal or juridical personality separate from that of the Government of Canada. As such, any judicial or administrative proceedings naming as a defendant a Canadian mission, or anyone other than the “Government of Canada”, would be invalid and improperly served.

4. Canadian approach to proper service

The Department has the pleasure of noting that, under Canada’s State Immunity Act, all other States receive in Canada the protections laid out above with respect to service by diplomatic means to their Ministries of Foreign Affairs in their respective capitals of Canadian originating documents with at least sixty days’ notice before the next step in proceedings.

In circumstances where Canada is not served in accordance with the norms laid out above, the Department advises that the Government of Canada reserves the right not to participate in judicial or administrative proceedings. The Government of Canada further reserves the right to restrict the privileges and immunities granted in Canada to other States where these exceed the protections granted to Canada in those other States, as provided under Canada’s State Immunity Act.

For future reference, proper service of judicial and administrative proceedings directed to the “Government of Canada” must be accomplished diplomatically by the forum State’s Ministry of Foreign Affairs through transmission from its diplomatic mission accredited to Canada, under cover of a diplomatic note, to the headquarters of the Department of Foreign Affairs, Trade and Development in Ottawa, with at least a sixty-day delay before the next step in proceedings, at the following address:

Department of Foreign Affairs, Trade and Development
Criminal, Security and Diplomatic Law Division (JLA)
125 Sussex Drive
Ottawa, ON
K1A 0G2
CANADA

An accompanying translation into one of Canada’s official languages, English or French, of proceedings drafted in another language would be very useful in helping the Government of Canada to respond promptly to such proceedings.

5. Request

The Department requests the assistance of Their Excellencies the Heads of Diplomatic Missions and notified Chargés d’affaires, a.i. accredited to Canada to inform their respective State authorities, including the legal affairs unit of their respective Ministries of Foreign Affairs as well as courts and other judicial and administrative bodies, of the existence and contents of this note.

The Department of Foreign Affairs, Trade and Development (Legal Affairs Bureau) avails itself of this opportunity to renew to Their Excellencies the Heads of Diplomatic Missions and notified Chargés d’affaires, a.i. accredited to Canada the assurances of its highest consideration.

Ottawa, March 28, 2014