- Higher Regional Court of Munich silently departs from the Hague Service Convention where service would take too long
- What are the practical implications of this case?
- What was the background?
- What did the court decide?
- Case details
Dispute Resolution analysis: According to Section 185 No 3 ZPO, service may be affected by public notice if service abroad does not promise to be successful. This is already the case if the duration of the service by way of legal assistance cannot be reasonably expected of the party carrying out the service. However, it must be taken into account that the public announcement endangers the defendant’s right to be heard. In deciding whether service in proceedings for means of order can be affected by public notice, the interests of the creditor in effective legal protection must, therefore, be weighed against the interests of the debtor in being heard by a court of law in relation to the hearing under Section 891 sentence 2 ZPO. The Higher Regional Court of Munich (OLG) has decided that the interests of the creditor outweigh the interests of the debtor in any event if, on the basis of previous experience, it is to be expected that service by way of legal assistance in one country will take one and a half years or even longer and the creditor informs the debtor of the application for a means of order, the application for public service and the possibility of appointing an agent for service in Germany via the electronic communication channels known to the creditor and also used by the debtor. Written by Katharina Hoffmann, associate, and Dr Ralf Hafner, MSc (KCL), partner, both BEITEN BURKHARDT Rechtsanwaltsgesellschaft mbH, Munich, Germany.
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