El Salvador is not a party to any international convention or treaty on service of documents or obtaining evidence to which the United States is also a party. Judicial assistance is governed generally by the Vienna Convention on Consular Relations (Article 5 (f) and (j), 21 UST 77, 596 UNTS 261) to which the United States and El Salvador are parties. There are a variety of methods of effecting service of process as explained below. Procedures are not limited to letters rogatory. Voluntary depositions can be taken on notice or pursuant to a commission and need not be taken on U.S. consular premises, although a U.S. consular seal is generally required in order for the proceeding to be admissible in the United States (28 U.S.C. 1781). Compulsion of evidence can be obtained pursuant to a letter rogatory. There is no treaty in force on enforcement of judgments.
Threshhold Question: Is Enforcement of a Judgment in the Foreign Country Foreseen at Any Time in the Future? If so, it may be advisable to consult with local foreign counsel to ascertain how to proceed. In countries whose laws do not provide for other methods of service, letters rogatory may be the only method of service when enforcement of a judgment is anticipated.
Applicability of International Treaty or Convention:
El Salvador is not a party to the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters. Although El Salvador is a party to the Additional Protocol to the Inter-American Convention on letters rogatory, it is not a party to the Convention itself. The United States has a treaty relationship only with countries which are a party to both the Convention and the Additional Protocol.
Prohibition Against Service By U.S. Consular Officers:
United States Foreign Service Officers are prohibited by Federal regulation (22 CFR 92.85) from serving process on behalf of private litigants or appointing others to do so, State law notwithstanding.
Service by Mail:
Non-compulsory service (not subpoenas) generally may be attempted by international registered mail, return receipt. But see Federal Trade Commission v. Compagnie de Saint-Gobain-Pont-a-Mousson , 636 F. 2d 1300 (D.C. Cir. 1980). Registered mail, return receipt requested, may be sent to most countries in world. To ascertain whether such mail service exists in a foreign state, see the U.S. Postal Service home page under the business section, or contact the nearest U.S. Postal Service Business Center to review the International Mail Manual. This manual may also be obtained from the U.S. Government Printing Office (GPO). The GPO Home Page can be found at http://www.access.gpo.gov. Alternately, you may contact the Publications Section of the U.S. Government Printing Office, Washington, D.C. 20402, tel. (202) 512-1800, fax (202) 512-2250.
Service by Agent:
For personal service, it is generally necessary to retain the services of a local attorney in the foreign country who can either effect service, or arrange for some other person to effect service. The attorney (or his/her agent) can execute an affidavit of service before a local notary or at the American Embassy. The fee for notarization by a U.S. consular officer is $55.00. Lists of foreign attorneys are available from the U.S. Department of State, Office of American Citizens Services and directly from the American Embassy. See also the Martindale-Hubble Law Directory, Law Digest Volume.
Service by Letter Rogatory:
Service may be requested by a court in the United States in the form of a formal request to the appropriate judicial authority of the foreign country pursuant to a letter rogatory. The letter rogatory is transmitted by the Department of State to the American Embassy. The Embassy transmits the request to the Foreign Ministry which forwards the request to the Ministry of Justice. Eventually the case is assigned to an appropriate court in the foreign country which will arrange for service of process. The procedure generally takes from six months to a year to accomplish. See 28 U.S.C. 1696; 28 U.S.C. 1781 (a)(2); Rule 4 (i)(1)(B), Fed. R. Civ. P.; Rule 28 (b), Fed. R. Civ P.; Article 5(j), Vienna Convention on Consular Relations, (21 UST 77, TIAS 6820, 596 UNTS 261); 22 CFR 9.54, 92.66.
Service by publication or execution of a waiver of service before a U.S. consular officer may also be used as substituted service. Consult local foreign counsel regarding the advisability of these methods of service.
Service of Subpoena:
28 U.S.C. 1783, 1784, and rule 45 of the Federal Rules of Civil Procedure, 28 U.S.C. Appendix provide for service of a subpoena upon a national or resident of the United States in a foreign country. There are no provisions for service upon non-U.S. nationals or residents. Pursuant to 22 C.F.R. 92.86 – 92.89, when directed by the Department of State, officers of the Foreign Service will serve a subpoena issued by a court of the United States on a national or resident of the United States who is in a foreign country unless such action is prohibited by the law of the foreign country. State criminal subpoena and orders to show cause may also be served by officers of the Foreign Service when directed by the Department of State. In general, officers of the Foreign Service are not authorized to serve state and federal civil subpoena unless directed to so by the Department of State.
Applicability of International Treaty or Convention:
El Salvador is not a party to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters.
El Salvador Process Service
The taking of depositions of willing witnesses and compulsion of evidence from unwilling witnesses pursuant to a letter rogatory is governed by Article 5 (f) (voluntary depositions and 5(j) (letters rogatory) of the Vienna Convention on Consular Relations to which the United States and El Salvador are parties and 22 U.S.C. 4215; 22 U.S. 4221; 18 U.S.C. App. Fed. R. Civ. P., Rules 15 and 17; 28 U.S.C. Fed. R. Civ. P., Rules 28-31; 22 CFR 92.55 – 92.66 (general authority of U.S. consular officers in judicial assistance matters).
Voluntary depositions may be taken in El Salvador on notice or pursuant to a commission (28 U.S.C. App. Fed R. Civ. P. Rule 28 (b)(2)). American attorneys may travel to El Salvador to participate in depositions either on U.S. consular premises or at other locations. Contact the U.S. Embassy directly to schedule the availability of U.S. consular premises.
If depositions are conducted on U.S. consular premises, a U.S. consular officer must be present throughout the proceedings for security reasons. Due to other consular responsibilities, the scheduling of such depositions would be subject to consular officer availability. You must also contact the U.S. Embassy in advance if the deposition is to be taken outside consular premises to ensure the availability of a U.S. consular officer to administer oaths to the witness(es), stenographer, and/or interpreter. Depositions can also be taken on written interrogatories and cross interrogatories (28 U.S.C. Fed. R. Civ. P., Rule 31). A general information flyer on obtaining evidence abroad , providing more detailed information about arranging depositions at U.S. embassies, is available from the Department of State, Office of American Citizens Services.
U.S. Federal, State or Local Government Participants:
If a U.S., state or local government official is to participate in a deposition, such government officials should contact the Office of American Citizens Services, Department of State, (202) 647-5118, fax (202) 647-3732 to initiate the process of obtaining the host country clearance.
Compulsion of Evidence:
If the witness is not willing to be deposed voluntarily, and compulsion is required, it will be necessary to request the cooperation of the foreign judicial authorities pursuant to a letter rogatory. See Rule 28(b), Fed. R. Civ. P.; 4 Morre”s Federal Practice 28.05-28/8 (2nd ed. 1950); Ristau, International Judicial Assistance (Civil and Commercial), Vol. I, 3-36 et seq., International Law Institute, 1984 (1990 Supp); Article 5(j) of the Vienna Convention on Consular Relations (1963). The questions will be put to the witness by a foreign judge in a foreign court. It is not generally possible for an American attorney to participate in the proceedings, although this can be requested in the letter rogatory. Participation of local foreign counsel may be requested as an alternative.
Compulsion of Documents and Physical Evidence:
As in the taking of depositions, United States consular officials have no authority to compel the production of any document or other article. However, production of documents and other physical evidence may be compelled through the foreign courts by letters rogatory.
Authentication and Translation Requirements for Letters Rogatory from the U.S. for Use in El Salvador:
El Salvador requires that Letters Rogatory and accompanying documents be translated into Spanish and that the original English language document, bearing the seal of the court in the United States and the signature of the judge, be authenticated for use in El Salvador. The United States and El Salvador are parties to the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents, 527 UNTS 189, 20 ILM 1405-1419 (1981). Letters Rogatory issued by state courts in the U.S. can be authenticated with the Hague Legalization Convention “apostille” certificate by the designated authorities in the offices of the Secretary of State of the state. For letters rogatory issued by federal courts in the U.S., clerks and deputy clerks of U.S. courts are authorized to affix the Hague Legalization Convention “apostille” certificate. For documents originating with U.S. federal executive and administrative agencies, contact the U.S. Department of State Authentications Office at 1-800-688-9889. All documents must be translated into Spanish.
Authentication of Documents in El Salvador Intended for Use in the United States:
Public Documents from El Salvador intended for use in the United States can be authenticated by the El Salvador authority designated to affix the Hague Legalization Convention apostille on documents. The competent authority is the Ministry of Foreign Relations, General Directorate for the Foreign Service, Carretera a Santa Tecla, Km 6 1/2, San Salvador, El Salvador, tel: 011-503-243-3740; 3776; 3707. There is no fee charged by El Salvador for this service.
El Salvador Process Service
If you have further questions, contact of Office of American Citizens Services, Inter-American Services Division, Room 4811 N.S., Department of State 2201 C. Street N.W., Washington, D.C. 20520-4818, (202) 647-5118.
U.S. Embassy Assistance:
To contact the American Embassy directly regarding the scheduling of a deposition, contact the American Citizens Services Section, Consular Section, American Embassy, Final Blvd. Station Antiguo Cuscatlan, Unit 3116, San Salvador, El Salvador, 011 (503) 218-4444; Fax: 011-(503) 278-5522. You can also write to the Embassy at APO AA 34023.