How are commercial proceedings commenced? Is service necessary and, if so, is this done by the court (or its agent) or by the parties?
Litigation (2nd edition)
Proceedings are initiated by submitting a statement of claim (“Klage”) directly to the court of first instance. An action is officially pending upon receipt by the competent court. Nowadays, claims (and other documents) are usually submitted to the competent court via an electronic communication system as legal professions are obliged to use such system.
A claim has to be written in the German language and needs to contain the following minimum requirements:
- name and address of the court to which the claim is submitted;
- names and addresses of the defendant(s)/the parties and their legal representatives (if known);
- the matter and amount in dispute;
- the relief sought and the facts on which the relief sought is based.
A statement of claim may, but does not have to contain legal reasoning and it is not required to present evidence at this state.
After having received a claim, the court will examine whether the procedural minimum requirements for the hearing of a claim are met, and if so, will forward the claim to the defendant. Within Austria, claims are served by the court, usually via registered mail (or, once represented by a lawyer, via the mandatory electronic filing system that connects courts and law offices). Service outside of Austria is either governed by the EU regulation on the service of documents in civil or commercial matters (within the European Union) or by bilateral or multilateral agreements (outside of the European Union).
Commercial proceedings are commenced when a complaint is served onto the defendant. The service of the complaint is made by an authority of the court, and administrative affairs related to the service are handled by the court clerk (CCP, Article 98).
When service has to be effected in a foreign country, it will be commissioned by the presiding judge to the competent government agency of that country or the Japanese ambassador, minister, or consul stationed in that country (Id., Article 108).
Commercial proceedings are initiated by the service of summons on the defendant. Such service is performed through a bailiff appointed by the claimant.
There is no possibility to start proceedings with postal delivery.
Litigation in China commences when the court of first instance accepts the case. Based on CPL, the thresholds for court to accept a case include: 1) the plaintiff is a stake holder in the dispute; 2) the defendant is specified; 3) the remedies to be sought and supporting facts are submitted; 4) subject to the jurisdiction of the court.
After filing by plaintiff, the court of first instance shall within seven days accept the case which satisfies the thresholds of filing, or otherwise issue a ruling on non-acceptance of the case. Plaintiff disagreeing with such ruling has the right to appeal once accordingly.
Service is necessary in China. It is made by court not the parties. Where the party being served cannot be duly found, the documents of complaint shall be served by way of a public announcement (e.g., an announcement on a newspaper). With effect from the date of public announcement, the documents shall be deemed served after 60 days. When a foreign element is involved in the case, that period of time is 3 months.
Commercial proceedings commence with submitting the statement of claims to the Court. The court has to obligation to communicate the procedural acts to the parties and to notify the dates of the court hearings.
Communications are usually sent via ordinary mail/postal service in a closed envelope with a confirmation of receipt. The court can use its own procedural agents. There are alternatives to the ordinary mail, such as fax, email or any other mean of communication with confirmation of receipt.
However, the court cannot rule on a claim if the parties were not legally summoned. These summonses are issued by the judge’s order, any irregularity concerning them, including irregular communication, represents a ground for annulment of the judgement.
Commercial proceedings are commenced by filing a writ of summons in one of the District Courts, setting out the nature of the claim and the relief sought. A writ of summons may be either specially indorsed, containing the full statement of claim, or generally indorsed, setting out only the relief sought, save that in actions for libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage, and actions in which fraud is alleged by the plaintiff, where the writ of summons must be generally indorsed. Following the filing of the writ of summons, an official copy of the writ is required to be served on every defendant within a period of 12 months. The writ of summons may be renewed by the court for a period of 6 months from the date of renewal if the court is satisfied that reasonable efforts have been made to serve the writ, or that that there are other good reasons justifying the renewal. Service is usually carried out by licensed private process servers instructed by the parties.
Proceedings are instituted by the filing of a writ of summons to the court. The writ of summons must include certain information, such as the names of the parties, the plaintiff’s claim, detailed submissions on points of fact and law made by the plaintiff in support of his claim, and the documents and other evidence on which the plaintiff intends to rely.
The court will then have the writ of summons served on the defendant or sent to the defendant’s legal counsel. Today, service can be done digitally. Upon service, the court will direct the defendant to file a statement of defence within a specified period of time depending on the size and complexity of the case.
To commence commercial proceedings before the courts, the plaintiff submits a case writ to the court (the case writ includes the plaintiff’s name, domicile and legal representative as well as the defendant’s name and domicile). The court bailiff department is responsible to serve a notice to the defendant by notifying the defendant with the case writ.
A court commences proceedings within five days after filing a statement of claim. Following that, the court officially notifies the parties by sending a court ruling by which the proceedings were commenced.
However, once such initial notification of the parties is made, it is subsequently a burden of each party to monitor the conduct of proceedings and the dates of hearings – the lack of further notifications cannot be a ground for challenging a court’s decision. Such monitoring has to be done through an online court system (https://kad.arbitr.ru/), which also allows to make electronic filing of a statement of claim, a statement of defence and other procedural documents.
In Mexico, commercial proceedings are commenced when the plaintiff files its complaint before the Civil Court along with all relevant documents, defendants addresses, and the names of any witnesses they intend to call.
Once a claim is admitted by the Judge, the defendant will be summoned to court and must respond the claim within 15 business days following such notification, unless it is an executive commercial trial, in which case the complaint must be replied within 8 business days.
Every Court has clerks that are in charge of delivering personal notifications to the parties in their designated addresses. Daily notifications are published in a Judicial Bulletin. All of these services are public and provided for by the Courts.
Civil law proceedings are commenced by the plaintiff filing the complaint. The complaint needs to contain, apart from the names of the parties and the competent court, a specific request for relief (bestimmter Klageantrag) and a concise statement of the facts of the case (Klagegegenstand), sec. 253 (2) ZPO.
Service of process is necessary and is effected by the court ex officio if service is required by law upon the court’s order. Sec. 195 ZPO also allows for attorney-to-attorney service if both parties are represented by attorneys.
There are typically three ways to commence commercial proceedings:
- by a writ of summons (used when the facts are disputed);
- by an originating summons or motion (used for cases with no (or few) factual disputes, such that the proceedings focus on legal issues or interpretation of legal documents); or
- by a petition or motion (only used for resolving particular matters, such as a winding-up petition for compulsory liquidation).
Generally speaking, most commercial actions in Hong Kong are commenced by writ of summons. Service by the plaintiff (or its agent) is required on each of the defendants.
Commercial proceedings are commenced by tabling a “Cause” (details of the claim) before the Royal Court and delivering the Summons for that Cause to HM Sergeant (an agent of the Court) for service upon the other parties in the proceedings.
The prescription period will stop running at the point at which the Summons is delivered to HM Sergeant.
In general, commercial proceedings will stand instituted by filing a claim/petition before the appropriate court/forum and serving the counter party is not a pre-requisite to commencement of proceedings.
Thus, in case of a suit, the proceedings are commenced by filing a plaint i.e. the claim with the court. The claimant must also pay the requisite court fees for such filing subsequent to which the court issues summons to the defendant. The summons issued by the court normally contains a direction to the defendant to appear before it and respond to the claim in the form of a written statement of defence.
Order V (Rules 9 to 30) of the Code governs the principles pertaining to service of summons upon the defendant. It is provided that the summons is served either by an authorised officer of the court or by the court itself through registered post, speed post or any other such courier services with due acknowledgement. In addition to this, a copy of summons signed by the court may be given to the plaintiff for service to the defendant personally.
Under the Arbitration Act, the arbitration proceedings commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent from the claimant.
Isle of Man
Commercial proceedings are commenced by the filing of a claim form which should set out the details of the grounds of the claim and the relief sought. Service of the claim form once issued by the court is necessary. Subject to any other direction the court would normally expect the claimant to arrange for service of the claim form on the defendant and other interested parties.
Rule 2.36 in effect provides that where the defendant is represented by an advocate and the advocate is authorised to accept service and such has been notified to the party serving and personal service is not required by a court order, the claim form must be served by leaving it at the business address of the defendant’s advocate.
Rule 2.37(1) provides that the claimant may, and where rule 2.36 or rule 2.41 (service out of the jurisdiction) does not apply must, cause the claim form to be served by a coroner, (the local equivalent of a service/enforcement bailiff) on the defendant in accordance with the methods specified in Rule 2.37(3). The rule is subject to rule 2.28 (service on minors and patients) and does not apply where (a) an order under rule 2.30 permits service by an alternative method; or (b) the claim form is to be served out of the jurisdiction.
Commercial proceedings generally start by serving the writ initiating the proceedings, which is normally a summons or, in certain cases (e.g.: labour proceedings; precautionary proceedings), a motion to the court and the decree scheduling the first hearing. The service is made by the process server. Under certain conditions lawyers can also perform service on their own.
Civil litigation is commenced by the filing of a complaint. If the commercial dispute purely involves a monetary claim, the court, through its own process server, will serve the summons and the complaint to the defendant. The summons will order the defendant to respond to the complaint. In cases where title to property is involved, and the defendant is not based in the Philippines or the whereabouts of the defendant are unknown, the summons and the complaint may be served by publication in a newspaper of general circulation. The party who filed the complaint will cause the publication and bear the cost thereof.
Usually, once the claim is filed, the counterparty is summoned to challenge it. The summons is served by the court by postal delivery or by an enforcement agent if postal delivery was not effective. However, in certain lawsuits (Injunctions or Enforcement Proceedings) and depending on the circumstances, the summons may only take place later in the process.
In contentious proceedings, the proceeding commences when a petition or motion for an interim injunction or freezing order is filed in court.
The court then serves the action on the adverse party for the adverse party’s statement of defence to the action (or the resolution on the commencement of proceedings to all the parties to the proceedings) electronically or by mail. A document is deemed served on the addressee’s confirmation of delivery.
If the addressee fails to confirm delivery (in the case of certified mail, such as the case of a petition being served on the defendant for the statement of defence) or collect the mail, the document is deemed delivered under RCCP after a certain period of time, which also applies if the addressee does not learn about the mail – the so-called deemed service applies.
If legal documents are to be served in the EU Member States, the EU regulations apply. If documents are to be served outside the EU, the relevant authority of the country is served a request for service under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.
If the country is not a signatory to any multilateral international treaty, the courts proceed according to a bilateral or convention arrangement, and where existing arrangements such as a bilateral or convention arrangement do not exist, diplomatic channels are used under Act No. 97/1963 Coll. on international private and procedural law.
Civil proceedings are initiated by a plaintiff applying for summons. When the court is satisfied that the summons application meets the stipulated requirements as to form and content and is not manifestly unfounded, the court issues a summons requiring the defendant to respond to the claim within the time limit set by the court (normally two to four weeks from when the summons was served on the defendant). The summons must be served on the defendant, which is done by the court. If the defendant fails to submit a statement of defence with the court in a timely manner, a default judgment may be rendered against the defendant.
Proceedings are commenced when the court issues a claim form (by stamping it with the court’s seal), as prepared and requested by the claimant. The claim form is the first ‘statement of case’ and includes the name of the court in which the claimant wants to be heard, the parties and the parties’ addresses, details of the claim and the remedy sought by the claimant. Once the claim form has been issued, the claimant must serve it on the defendant
- within four months, if the claim form is to be served within the jurisdiction, or
- within six months, if the claim form is to be served outside the jurisdiction (in which case the court’s permission may be required).
The commercial proceedings commence by registering the statement of claim and paying the applicable court fees. Service is the first step in the proceedings and the same is done by the court. If the court clerks fail to conduct the service, the court may decide that the service is done by the court clerks with the guidance of the party in the interest of whom the service is being conducted (i.e. the plaintiff in the case of a statement of claim).
Commercial proceedings commence with the filing of a complaint. The complaint is filed by means of a bailiff notice drafted by the plaintiff’s attorney and personally served in the defendant’s domicile through a certified court bailiff, who serves as a judicial courier whose affirmations are presumed to be truthful as they enjoy public faith in their official capacity. Basically the complaint must identify the parties, the empowered court, the cause and purpose of the litigation, existing a mandatory obligation for the document to be written in Spanish, the official language of the country.
The first hearing commences with the summoning of the disputing parties by the court bailiff appointed for the case. The procedure for a proper summon is regulated under Articles 122 to 127 of the HIR. Service is necessary and this is done by the court or its authorized agent.
First, the court bailiff will summon the plaintiff for the first hearing. If the plaintiff fails to attend the first hearing, the presiding judge will request the bailiff to re-summon the plaintiff. A maximum of 3 summons will be attempted by the court. If the plaintiff still fails to attend the claim will be declared as inadmissible. In such case, the plaintiff has the right to re-submit the claim once after paying the fees of the unattended court hearings. Similarly, the same mechanism will be applied to the defendant. If the defendant fails to attend the first hearing, the court may decide the claim and issue an ex parte decision, which may be challenged by the defendant by requesting a retrial of the case.
The first step to commencing commercial proceedings is to file a writ or originating summons in court. Once this is done, the writ or originating summons will be sealed by court and be assigned a suit or originating summons number. The writ should be endorsed with a statement of claim. Otherwise, a concise statement of the nature of the claim or the relief required in the action shall be stated in the writ.
Service of all cause papers are necessary and is done by the respective parties’ solicitors.
Commercial procedures in Chile can start directly on a complaint, or through the so-called "pretrial measures" (interim measures and injunctions). In both cases, the first decision issued in the procedure must be personally notified to the defendant. This notification is usually made by an assistant official of the administration of justice. While this official is a minister of public faith (like a Notary Public), the general rule is that the parties must pay him to make the notifications that proceed.
Commercial proceedings in front of the courts of Malta are generally initiated by means of a sworn application or application which must be filed by the applicant in the court registry. The said sworn application when filed against a person who is either domiciled or resident or present in Malta would need to be notified in accordance with the ordinary rules of Maltese procedure through the court registry. If following service the defendant does not file a sworn reply he would be deemed contumacious.
As regards defendants who are not present in Malta and are outside the jurisdiction of Malta but resident, domiciled or present in one of the Member States of the European Union, service would be effected through the designated transmitting agency in accordance with Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extra judicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000.
As regards defendants who are absent from Malta, not resident within any Member State of the European Union, or otherwise their address is unknown, upon a request made by the plaintiff to the court, the court would order the appointment of curators in order to represent the interests of the said respondent. The curators would receive the sworn application on behalf of the respondent and would be responsible with communicating with the respondent, serving him with the sworn reply and representing him in the proceedings.
Generally, commercial proceedings in Switzerland are commenced by lodging a request for a conciliation hearing before the conciliation authority or – if this is admissible in the particular case – by directly filing a statement of claim with the competent court (for more details see question 4).
The parties address all their submissions to the competent court, which will serve the opposing party (i.e. service is not made by the parties themselves). According to the CCP, the court must send summonses, orders and decisions to parties domiciled in Switzerland by registered mail or by other means against confirmation of receipt. Service of court documents outside the territory of Switzerland must generally occur by way of judicial assistance unless any bilateral or multilateral treaty ratified by Switzerland provides otherwise.
The proceedings before the courts are commenced with the filing of the action with the Secretariat of the Court and the subsequent service of the filed action to the defendant. The service is carried out by a court bailiff on the initiative of the plaintiff within the deadlines set by the GCCP. In particular, with reference to the ordinary procedure, the action shall be served to the defendant within (30) thirty days from its submission to the court (the deadline is extended to sixty (60) days in case the defendant is a resident of another country or of an unknown residence). In particular monetary proceedings, the deadline for the summoning of the defendant to participate to the proceedings shall take place up until thirty days (or sixty as per above) before the hearing.
Proceedings are initiated by filing a writ of summons to the court. The writ of summons shall state the formalities regarding the parties, their representatives and counsel. In addition, it shall state the claim that is being asserted, the factual and legal grounds upon which the claim is based, the evidence that will be presented and finally the claim for relief (a statement of the outcome the plaintiff is requesting by way of judgment). The writ of summons shall also state the basis upon which the court has jurisdiction to hear the case, if this may be in doubt, and the plaintiff’s view on the further proceedings of the case.
If the writ is considered sufficiently detailed, the court will serve the summons to the defendant and order the defendant to file a written reply, normally within three weeks. If the defendant is represented by legal counsel, the writ of summons will be served digitally.
Depending on the required procedure that has to be followed to initiate the lawsuit, the defendant will be notified either by a bailiff (writ of summons) or by the court’s clerk (request).
In federal court, a lawsuit is commenced by the filing of a complaint with the court. The plaintiff (or its agent) must also serve a copy of the complaint, along with a summons, on the defendant. In most circumstances, the plaintiff will serve the complaint on the defendant directly, rather than through an attorney’s office.
The process for commencing commercial disputes in state courts is determined by each state’s procedural rules but is generally consistent with the federal procedure, as the majority of states have adopted all or substantially all of the FRCP.
In order to avoid dismissal, the complaint must contain a short and plain statement of the claim and facts giving rise to a "plausible" (rather than merely "conceivable") entitlement to relief; detailed factual allegations are generally not required. For commercial disputes alleging fraud or mistake, a heightened pleading standard applies and a plaintiff must plead with particularity the circumstances constituting fraud or mistake.
Commercial proceedings commence upon filing a statement of claim with court (along with any supporting documents) and payment of court fees (or, alternatively, obtaining an exemption based on an insolvency judgment).
After a claim is filed, the court clerk must initiate the serving process within two days of filing a complete statement of claim and, if applicable, payment of court fees by the plaintiff. The court clerk serves the filed documents to the defendant(s) and the date of the first hearing to the parties.
If a defendant is an Iranian national registered in the Judiciary’s portal at www.adliran.ir, the court clerk sends the documents via the portal. When electronically sent, documents are deemed to have been served once received in the recipient’s electronic account (which means right after it is sent by the court’s clerk).
If a defendant is an Iranian national but not registered in the portal, or if it is a foreign national domiciled in Iran, the documents will be physically served at the defendant’s address identified by the plaintiff or otherwise advised by the defendant.
If a defendant is domiciled in a foreign jurisdiction, the court clerk must serve the documents through the Iranian consulate in such jurisdiction, and the hearing session date must not be less than two months from the service date.
If a plaintiff does not know the address of a defendant, the notice of the statement of claim must be published in a widely circulated newspaper; and the hearing session date must not be less than one month from the publication date.
There is no preferred method of serving documents in Iran in relation to foreign proceedings.
Commercial proceedings are initiated by a writ of summons (statement of claim), which is served on the defendant by a bailiff upon the claimant’s instructions.
The summons contain a statement of the facts, the claim(s) and the legal basis for the claim(s), the defenses of the defendant which are known to the claimant and a list of the relevant evidence on which the claimant intends to rely.
The claimant must file the summons with the court registrar after they are served.
Proceedings begin with the filing of the complaint with the Court or the Arbitration Center. The judge and the arbitrators are electronically designated at random. If the complaint is admitted, the defendant is summoned; this is done by personnel from the Court or the Arbitration Center. Service of process through agents or one of the parties lacks efficacy and is deemed not to have taken place.
Pursuant to Article 42 of the Civil Procedures Law, a claim is brought to the court at the request of the plaintiff by submitting his statement of claim with what is known as the Case Management Office or by the electronic registration thereof.
The statement of claim must contain certain data including:
A. The plaintiff's name, title, identity card number, if any, profession, domicile, workplace and his representative's name, title, identity card number, if any, profession, domicile, workplace and postal address, fax number or email. If the plaintiff has no domicile in the state, he shall designate an address for service or notification.
B. The name of the defendant, his title, identity card number, if any, profession, domicile or address of service, workplace and telephone number and his representative's name, title, profession, domicile, workplace if he works for others. In case that the defendant or his representative have no known domicile or workplace, the last domicile, residence, workplace, postal address, fax number or email shall be mentioned.
C. Subject of the case, requests and supporting documents.
D. Date of submitting the statement of claim to the Case Management Office.
E. The court to which the case has been brought.
F. The signature of the plaintiff or his representative.
Once the case has been reviewed and the court fees paid, the court allocates a case number and schedules a date for the first hearing which is usually after 10-14 days, and then notifies the defendant/s.
This means that service or notification is necessary.
Notification is made pursuant to a party's request or the court's order through a Court Bailiff. However, the court may also authorize the plaintiff or his representative to notify, and notification may also be made by third party. Such as a courier company.
If the Court Bailiff or the party carrying out the notification fails to notify, he shall convey this to the Case Management Office or a competent judge as to order the appropriate notification method.
Notification of a party is very important and if not carried out properly and a judgment is issued in absentia, this could mean the invalidity of the judgment.
Having said that, notifying a party is not always a simple exercise and may significantly delay procedures.
If the address of the defendant as submitted by the plaintiff at the time of filing the statement of claim is not accurate, the court will order investigating the address from the relevant authorities such as the immigration, the telecommunication companies, the water and electricity authority, the Road and Transportation authority, the Economic Department and the free zones in case of a company.
If after carrying out all means of investigating a party’s address the same was not located, the court will order notification by publication in the newspapers.
The plaintiff has to send the copy of the claim and all the documents attached to it to the defendant: the proof of the claim being sent has to be attached to the copy sent to the Court. After the claim is filed the court has to decide on either to dismiss, return the claim or to accept the claim and commence the proceedings. In 3 days, the defendant is to be notified about the decision of the court.