Implementation of Selected Private-Law Service of Process Mechanisms into Russian Procedural Law

This article examines the relationship between the public-law and private-law approaches to cross-border service of process as a foundational issue of international civil procedure. The subject matter of the study encompasses: the theoretical conceptions of the legal nature of service of process; the trend towards convergence of these two approaches in contemporary judicial practice; the mechanisms of alternative service under United States law (Rule 4(f)(3) of the Federal Rules of Civil Procedure) and the law of England and Wales (Rule 6.8 of the Civil Procedure Rules); the effective service standard developed in the case law of the Supreme Court of the Russian Federation; and the feasibility and conditions for incorporating private-law service mechanisms into Russian procedural legislation, including the procedural safeguards required to protect the parties to proceedings. The methodological framework of the study rests upon the comparative law method, applied in analysing the legislation and judicial practice of the United States, England and Wales, and the Russian Federation. The systemic and functional methods are employed in examining cross-border service mechanisms in their interrelationship; the formal-legal method is applied in construing the provisions of international treaties and domestic procedural legislation. The scientific novelty of the study lies in the demonstration that the driving force behind the convergence of the public-law and private-law approaches to service of process is not globalisation as such, but rather the targeted objective of countering the abuse of procedural rights — both by addressees evading service and by initiating parties selecting methods that fail to ensure the addressee's actual knowledge of the proceedings. On this basis, the author puts forward de lege ferenda proposals for the incorporation into Russian procedural legislation of a mechanism whereby the parties to proceedings may propose a specific method of service, subject to two mandatory procedural safeguards — one procedural in nature (judicial authorisation) and one substantive (statutory criteria for the admissibility of the proposed method of service) — designed to strike a balance between the effectiveness of judicial protection and the rights of the party to be served.