Imperfections of Existing Practice The shortcomings, deficiencies and imperfections of existing practice in transnational litigation are the problems with which the Commission must deal. They are summarized below. A. Personal Service of Judicial Documents Abroad Recent Supreme Court decisions extending the possibility of personal jurisdiction through personal service of process in another state and requiring in quasi-in-rem and in rem actions better notice to defendants whose addresses are known than by mere publication enhance the importance of service of judicial documents in foreign territory. Service abroad, especially in civil law countries, is beset with difficulties. Information on methods of service provided by foreign law is generally unavailable. Inquiries recently directed to foreign governments by the Department of State at the request of the Commission may produce helpful information concerning methods and procedure for securing such service. In existing practice, retention of a foreign attorney practicing in the jurisdiction where service is sought is likely to be the only expeditious way to obtain prompt advice, but that may entail more expense to the parties than the litigation warrants. The usual method of requesting service of judicial documents in civil law jurisdictions is by letter rogatory, but American courts do not customarily issue letters rogatory for that purpose. United States consuls may be legally powerless to effect service in a particular case. Foreign Service regulations prevent consular officers from making service of process, except for cases provided for by federal statute. Applicable foreign law may also prevent such service. Except for recent treaties with the United Kingdom and Ireland, the United States has no treaties which specifically authorize American consuls or other persons to serve judicial documents in a foreign country. Service in the absence of a treaty is at the sufferance of the foreign country, and how far such sufferance may extend is a question in every case. For these reasons, service of subpoenas abroad on American citizens whose testimony is desired in criminal cases in the federal district courts, or who have failed to respond to a notice to appear before a foreign court to testify on letters rogatory from a federal district court, as provided by Section 1783 of the United States Judicial Code, is impossible in those countries which forbid consuls to make service. A further problem is verification of proof of service. If service is made by an official of the foreign country, rather than by an American consul, the fact that foreign laws generally do not provide for oaths in such matters may make it difficult or impossible to obtain a sworn certificate of service. An oath, however, may be essential to the validity of the proof of service under American law. Also, some foreign countries will not recognize an American judgment based upon service on a party in the foreign country unless such service has been made in accordance with the law of that country. Accordingly, a person who is a party to an action in one of our state or federal courts, and who is required to make service of documents abroad, in order to protect his rights at home, may be completely frustrated, and may suffer personal loss as a result. B. Personal Service of Judicial Documents in the United States for Similarly a citizen of a foreign country, engaged in a lawsuit at home, or an American citizen who is a party to a litigation in a foreign court, who wishes to have documents served in the United States, may be equally frustrated and prejudiced. In the past, letters rogatory for the service of documents, the usual civil law method of requesting such a service, have been returned unexecuted by courts in the United States. Our courts have looked upon letters rogatory as properly confined to the securing of evidence, and have considered it improper to use letters rogatory for the purpose of service. These courts have also hesitated to effect service of process, if this might give the foreign court personal jurisdiction over the person served, even though jurisdiction of civil law courts may not depend upon such personal service. While the United States Government does not object to service on persons within the United States by mail or by a foreign consul, such service by a foreign consul may be impossible or impractical either because not authorized by foreign law, or for physical reasons such as the great distance of the residence of the person to be served from the consulate and the prohibitive cost of travel. C. Obtaining Testimony Abroad Even more serious consequences may follow when an American litigant finds that he cannot successfully get evidence abroad from a necessary witness in a form which he can use in his lawsuit in a state or federal court. He may lose his case if the evidence is crucial to his position and unavailable. Under the Federal Rules of Civil Procedure, which reflect state practice in general, testimony of persons in foreign countries is obtained |