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Abstract
Under US civil procedure law, it is permissible to waive "personal" service of court documents, i.e., service of such documents through the ordinary channels of authority, and instead allow private service, e.g., between the parties by mail. In cross-border cases, however, this is only permissible under US law if the foreign jurisdiction does not prohibit such service on recipients located there. A decision has now been issued by the US District Court (Southern District of NY) dealing with private service in Liechtenstein in light of Rule 4 and Rule 12 US FRCP.*
Keywords
Service, Liechtenstein, right to be heard, civil proceedings, nunc pro tunc
Legal sources
Hague Service Convention of November 15, 1965, Federal Rule of Civil Procedure, jurisdictional norm, Service of Process Act, State Security Act
I. Facts of the case (US District Court 1:25-cv-07626)
The plaintiff (Plaintiff) is a company incorporated under the laws of Delaware (US) that specializes in the deployment, operation, and management of autonomous vehicles. The first defendant (Defendant 1) is a public limited company based in Zug, Switzerland. The second defendant (Defendant 2) is a limited liability company based in Liechtenstein.
Plaintiff and Defendant 1 entered into an agreement (Alliance Agreement) under which Plaintiff was to advance USD 30 million to Defendant 1 to support Defendant 1 in launching a program for autonomous vehicles in the US. Plaintiff and Defendant 2 then entered into a guarantee agreement whereby Defendant 2 guaranteed Defendant 1's obligation to repay the advance to Plaintiff. Pursuant to the Guarantee, Plaintiff and Defendant 2 consented to personal jurisdiction in the US and agreed to the following methods of service:
"Each party hereby irrevocably waives personal service of any and all legal process, summons, notices, and other documents and other service of process of any kind and consents to such service in any suit, action or proceeding brought in the United States with respect to or otherwise arising out of or in connection with this Agreement by any means permitted by applicable laws, including by mailing thereof (by registered or certified mail, postage prepaid) to the address of such party specified herein (and shall be effective when such mailing shall be effective, as provided therein)."1
The warranty agreement further stipulates that any notification, inquiry, or request to Defendant 2 must be made by email.
According to the plaintiff, defendant 1 breached its obligations under the Alliance Agreement, and defendant 2 subsequently failed to repay the plaintiff the USD 30 million in accordance with the terms of the guarantee agreement. On September 15, 2025, the plaintiff took legal action and served the complaint on defendant 2 via UPS Worldwide Express and by email.2 Defendant 2 then requested the return of the complaint due to incorrect service in accordance with Federal Rule of Civil Procedure 12(b)(5),3 since, according to Defendant 2, in light of the contractual agreement (and analogous to 4(f) (3) FRCP), Liechtenstein law only recognizes service by courts and prohibits any private service of relevant documents. The plaintiff objected to this and, in the alternative, requested an order pursuant to Federal Rule of Civil Procedure 4(f)(3) approving the service already effected on Defendant 2 nunc pro tunc4.
The court now had to clarify the following legal question, among others: Did the plaintiff effectively serve the complaint on Defendant 2, which is based in Liechtenstein (Federal Rule of Civil Procedure 12(b)(5))5? A key preliminary question in this regard is whether private service of court documents on a company based in Liechtenstein is permissible or even prohibited.
II. Legal framework (Federal Rules of Civil Procedure Rule)
Rule 4(f) FRCP regulates the permissible methods of service of procedural documents on persons abroad (i.e., non-US). Paragraph 1 emphasizes ordinary service in accordance with the Hague Convention. Paragraph 2 regulates cases in which there is no international agreement with the country of residence of the recipient (in this case, Liechtenstein) and recognizes three permissible alternatives: First (A), ordinary service as regulated by law in proceedings before the local courts of general jurisdiction. Second (B) according to the general rules on national procedure for cross-border requests for legal assistance. And thirdly, (C) sublit i the personal delivery6 of a copy of the summons and the complaint to the person, unless prohibited by the law of the foreign state7.
Paragraph 3 serves as a method for all other cases "by other means not prohibited by an international agreement, as ordered by the court."8
US case law expressly recognizes that contracting parties may agree in advance on or specify in more detail the permissible methods of service,9 including postal service instead of personal service. In such cases, the intention of the contract generally determines what is considered the correct method of service.10 However, according to US case law, alternative methods of service must be reasonably suitable for providing the party whose interests are to be affected by the lawsuit or proceedings with actual knowledge and giving them a reasonable opportunity to comment. The practical circumstances of the individual case are a factor in assessing whether the constitutional requirements are met.11
In the present case, it was disputed whether the chosen method of service in Liechtenstein was "permissible" (meaning: not prohibited). Whether the service has other legal effects is, however, irrelevant under Rule 4 FRCP in the absence of an international agreement.
III. Legal framework (Liechtenstein)
Unlike Switzerland, Liechtenstein is not a member of the Hague Convention12 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (1965). There are also no corresponding bilateral agreements with the USA,13 which means that the admissibility of private service of court documents, as permitted in principle by the FRCP, must be assessed under national law.
A. Relationship to the JN
In Liechtenstein, cross-border service of judicial documents is carried out in accordance with the provisions on international legal assistance in civil matters, which are enshrined in Liechtenstein in Sections 27–29 of the Jurisdiction Act (JN).14 Essentially, these provisions stipulate that the competent Liechtenstein court must, upon request, provide legal assistance to foreign courts under certain circumstances (Section 27(1) JN). However, the JN does not cover the case of "private service for court proceedings abroad." In other words, such cases do not fall within the scope of the JN, which does not, however, prohibit such constellations. The JN neither states that requests for legal assistance are the exclusive or mandatory means of serving foreign documents (in foreign proceedings), nor does it declare service by private means (e.g., by mail, e-mail) invalid, provided that foreign procedural law permits corresponding contractual service between private parties or the contractual waiver of service by the (competent foreign) court. In fact, the JN neither expressly prohibits a specific form of service nor does the law stipulate that the service of foreign documents in all cases must be submitted by means of a request for legal assistance.
The case (S.D.N.Y., 1:25-cv-07626) does not therefore affect the JN, as service was not effected by the court or by persons delegated with sovereign authority, but by private parties to the proceedings, which is permissible under US procedural law, unlike under Liechtenstein law (unless prohibited by foreign law).
B. Relationship to the Liechtenstein Service Act ( ZustG)
Similar to the JN, the Liechtenstein Zustellgesetz (ZustG) applies.15 The ZustG regulates how public authorities in Liechtenstein or abroad must proceed if they wish to have official documents served legally in Liechtenstein (e.g., Art. 14 para. 1 ZustG).16 However, the ZustG does not regulate "private service" as permitted by the FRCP. Treating the ZustG as the exclusive regulation for all (physical) service of foreign court documents would even go beyond its express scope of application.17 There is no explicit "prohibition" of private service in the ZustG; it is simply that such service does not have the legal effects under the ZustG (in Liechtenstein).
C. Relationship to the State Security Act ( )
According to Article 2 of Liechtenstein's 1949 National Security Act, it is a criminal offense to perform acts on behalf of a foreign state on Liechtenstein territory without authorization that would otherwise be performed by an authority or official. The law aims to protect national sovereignty from unauthorized official acts by foreign governments (or those who claim to exercise foreign government powers).
However, it does not target the private actions of a litigant who sends court documents to another litigant. Under Liechtenstein law, the mere sending of (foreign) documents does not constitute official service or any other sovereign act (and therefore has no legal effect under the JN for Liechtenstein). In the case of a US civil lawsuit, a plaintiff who sends a subpoena and a statement of claim to a
The defendant in Liechtenstein is not acting "on behalf" of the US government. He is acting in his private capacity as a party to a civil lawsuit.
Art. 2 of the State Security Act thus sanctions unauthorized actions "on behalf of a foreign state" that are, by their nature, attributable to an authority. An interpretative extension of Art. 2 of the State Security Act to include partisan, contractually agreed deliveries between private individuals does not result from either the wording or the meaning of the provision.
The US courts have already recognized this distinction and have established in previous case law that in such cases the US "has no interest in the delivery; this is entirely the responsibility of the private party."18 In the US, the respective "Service" is primarily regarded as part of the procedural obligations of the parties.19 The court is not directly involved in service, but only regularly checks retrospectively whether it has been carried out properly. As long as the requirements of FRCP Rule 4 are met, the fact that a private individual carries out the service is normal and legally valid.
The most important consequence is that this is not a "delegation" (or entrusting) in the European sense of the transfer of sovereign powers. There is no original state monopoly on service that would need to be delegated at all. Rather, the US system treats service in civil proceedings as a task that is typically performed privately, with the state only intervening to confirm its validity retrospectively. Therefore, the private service of documents (by mail or email) is not an act of foreign sovereignty, and Art. 2 of the State Security Act does not apply in such circumstances.
Against this background, it would be contrived to characterize a party to proceedings who sends a summons from the US to a contractual partner in Liechtenstein by post, citing a negotiated service clause, as someone who is "acting on behalf of a foreign state" within the meaning of Art. 2 of the National Security Act. The scenario envisaged in Art. 2 of the National Security Act, for example a foreign bailiff or public prosecutor attempting to exercise coercive powers in Liechtenstein without authorization, is fundamentally different and does not provide a basis for criminalizing or invalidating a contractual postal service.
These interpretations also correspond to the legal opinion of US courts, which have already examined similar issues in connection with service of process in Liechtenstein. In the case of Marks v. Alfa Group (2009)20, the competent US court examined Sections 27–29 JN and concluded that "the law neither expressly prohibits any form of service nor does it state that service must be effected by means of a request for legal assistance or that Liechtenstein law prescribes this type of service for international legal documents." The applicable legal norms are silent on the validity of informal or direct service in such cases. If the Liechtenstein legislature had wanted to prohibit other methods of service, it could have expressly stipulated this.
Equally relevant is the decision in Lewis v. Di-meo Construction Co.21 The court rejected the view that a private individual serving a writ of summons is in fact acting on behalf of a foreign authority, on the grounds that in the US, a party to legal proceedings serves writs in their own name and not as a representative of the government. A private individual who serves documents by mail in Liechtenstein is not acting on behalf of the foreign state.22
IV. Decision pursuant to S.D.N.Y., 1:25-cv-07626
The district court found that Defendant 2 had in fact been made aware of the lawsuit and that this therefore complied with the constitutional right to due process.23 According to US case law, service by email alone satisfies the requirements of due process if a plaintiff can demonstrate that the email is likely to reach the defendant.24 According to the district court, both methods of service used by the plaintiff are suitable for informing interested parties of the pending proceedings and giving them the opportunity to raise their objections.25 The plaintiff's request for an order to approve alternative service by UPS Worldwide Express and email nunc pro tunc was therefore granted. The district court also recognized that the relevant Liechtenstein law only applies to service at the request of a foreign court (i.e., legal assistance under JN). No such request has been made in the present case, which means that the case falls outside the scope of these legal acts. Under current Liechtenstein law, there is no prohibition on private service within the meaning of US case law. This is also consistent with the previous case law of the US district courts involved.26 This is also because, under US procedural law, service is typically a process initiated by the party and carried out in practice by private individuals, in which the state or the court does not normally act as the serving authority itself, but rather service is carried out by uninvolved private individuals (classically: private process servers).
and only in exceptional cases (or by order) uses state organs such as the US Marshal. There is therefore no sovereign act of service by the court itself or a delegation of such sovereign authority.27
Since service by UPS Worldwide Express was contractually agreed and, as required by the contract, is not prohibited by Liechtenstein law (contractual overlay), the statement of claim was duly served.
According to the court, an objection to the contractually agreed private service would also affect the protection of legitimate expectations (substantive law venire contra factum proprium or its formal law counterpart in US procedural law, estoppel) and would be estopped (procedural prohibition of the objection).
The defendant's motion pursuant to Federal Rule of Civil Procedure 12(b)(5), i.e., dismissal of the action, was therefore denied.
V. Conclusion
There is no legal provision in Liechtenstein that prohibits or penalizes the private service of foreign court documents in Liechtenstein in accordance with the US Federal Rules of Civil Procedure for use in foreign proceedings. Whether such service is effective or enforceable under Liechtenstein law is irrelevant to the FRCP.
To recapitulate the court decision S.D.N.Y., 1:25-cv- 07626, it should also be noted that the contractual provision chosen by the parties to the proceedings, according to which service outside the US must be "permissible" (meaning: not prohibited), is probably based on Rule 4 (f) para. 2 (C) [sublit i] FRCP ("unless prohibited by the foreign country's law [...] delivering a copy of the summons and of the complaint to the individual personally"),
However, this standard does not apply to legal entities based abroad due to Rule 4(h)(2) FRCP. The contractual overlay through the chosen methods of service resolves this legal, obviously dispositive limitation.
As long as the service is ordered by a court and no international agreement prohibits it, the U.S. Court of Appeals28 considers that it may also be permissible (in particular if the right to a fair hearing is observed) if it would be inadmissible abroad (under local law).29 However, as far as can be seen, there are no detailed guidelines on this. The US District Court has thus doubly secured itself with the order and the reference to legality under foreign law (Liechtenstein).
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Footnotes
* US District Court (Southern district of NY), Memorandum opinion and order, 25-cv-7626 (JGK), cited as S.D.N.Y., 1:25-cv-07626, available at: (https://www.law360.com/dockets/documents/6978e04550e29ed2d7a7ba09) (February 2, 2026).
1. "Each party hereby irrevocably waives personal service of all judicial documents, summonses, notices, and other documents, as well as any other service of any kind, and consents to such service in any lawsuit, proceeding, or other proceeding brought in the United States relating to or otherwise arising out of or in connection with this agreement, by any means permitted by applicable law, including by sending it by mail (registered or certified mail, postage prepaid) to the address of the relevant party specified herein (which shall be effective if such mailing is effective as provided therein)." (Own translation; emphasis added by author).
2. Service on Defendant 1 was effected in accordance with the Agreement on the Service of Judicial and Extrajudicial Documents Civil or Commercial Matters Abroad of November 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163 ("Hague Convention"). Postal delivery is also mentioned as a permissible method in the Hague Convention: "Provided the State of destination does not object, the present Convention shall not interfere with – a) Convention"). Postal service is also mentioned as a permissible method in the Hague Convention: "Provided the State of destination does not object, the present Convention shall not interfere with – a) the freedom to send judicial documents, by postal channels, directly to persons abroad [...]". For Austria, it should be noted that this jurisdiction does not accept private postal service pursuant to Art. 10 of the Hague Convention ("Opposition to the use of methods of transmission pursuant to Article 8 para. 2 and Article 10"), see website on the Hague Convention, available at (https://www.hcch.net/en/instruments/conventions/status-table/notifications/?csid=1425&disp=resdn) (1. 2.2026).
3. Available at: (https://www.uscourts.gov/forms-rules/current-rules-practice-procedure/federal-rules-civil-procedure) (January 30, 2026); cf. For such cases, see, for example, Campbell, The Service of Court Documents in Germany from the Perspective of a California Lawyer, DAJV, 86.
4. In the present case, "nunc pro tunc" means that the court retroactively approves the service already effected on Defendant 2 (by UPS and email) and retroactively grants it the same effect from the time of service at that time, as if it had been properly ordered from the outset.
5. According to Federal Rule of Civil Procedure 12(b)(5), the action fails if service is insufficient ("insufficient service of process"). The plaintiff bears the burden of proof for proper service.
6. Note: The obligation to serve documents in person was contractually waived in this specific case; see above.
7. Alternatively, any type of postal item addressed and sent by the clerk to the person and requiring a signed receipt, provided that this is not prohibited by the law of the foreign country (C sublit ii).
8. Translation and emphasis added by author. According to US case law, service under Rule 4(f)(3) is neither a last resort nor extraordinary assistance. It is merely one of several means of effecting service on a foreign defendant (KPN B.V. v. Corcyra D.O.O., No. 08-cv-1549, 2009 WL 690119, *1 (S.D.N.Y. March 16, 2009). See also Rio Properties, Inc., Plaintiff-appellee, v. Rio International Inter-link, Defendant-appellant. Rio Properties, Inc., Plaintiff-appellee, v Rio International Interlink, Defendant-appellant, 284 F.3d 1007 (9th Cir. 2002), U.S. Court of Appeals for the Ninth Circuit – 284 F.3d 1007 (9th Cir. 2002). The court clarified there: It is not necessary to exhaust all other means specified in Rule 4(f) (e.g., diplomatic channels/letters rogatory) before applying for a court order under Rule 4(f)(3). Rule 4(f)(3) ranks equally with 4(f)(1) and 4(f)(2).
9. See Greystone CDE, LLC v. Santa Fe Pointe L.P., No. 07-cv-8377, 2007 WL 4230770, *3 (S.D.N.Y. Nov. 30, 2007). (Note that sol-such agreements "are permissible and will be upheld by courts in the event of a dispute"); see also Reed & Martin, Inc. v. Westinghouse Elec. Corp., 439 F.2d 1268, 1276 (2d Cir. 1971) ("[C]ontracting parties may agree in advance to submit to the jurisdiction of a particular court, to permit service by the opposing party, or even to waive service entirely.").
10. With reference to Greystone, 2007 WL 4230770, at *3.
11. S.D.N.Y., 1:25-cv-07626, p. 7 (re III.A).
12. For such cases, see, for example, Campbell, Die Zustellung von gerichtlichen Schriftstücken in Deutschland aus der Sicht eines kalifornischen Anwalts (The Service of Court Documents in Germany from the Perspective of a California Lawyer), DAJV, 84– 87.
13. On the "diplomatic" route, see Mähr in Schuhmacher (ed.), Handbook of Liechtenstein Civil Procedure Law (2020), 4.116.
14. Act of December 10, 1912, on the exercise of jurisdiction and the competence of courts in civil matters (Jurisdiction Norm, JN).
15. Law of October 22, 2008, on the Service of Official Documents (Service of Documents Act; ZustG).
16. See Mähr in Schuhmacher (ed.), Handbook of Liechtenstein Civil Procedure Law (2020), 4.105 ff.
17. "This law regulates the service of documents to be transmitted by authorities in the enforcement of laws, as well as the service of documents from foreign authorities to be carried out by them." (Art. 1 ZustG).
18. Lewis v. Dimeo Const. Co., 41 F.Supp.3d 108 (2014).
19. See Crowley, Rule 4: Service by Mail May Cost You More Than a Stamp, 61 Indiana Law Journal 217 (1986), 218 f; historically, this procedure served to relieve the US Marshals.
20. Marks v. Alfa Group, 615 F. Supp. 2d 375 (E.D. Pa. 2009) was a case in the Eastern District of Pennsylvania involving a Liechtenstein defendant (a foundation). The plaintiffs attempted service by registered mail under US FRCP Rule 4(f)(2)(C)(ii). The defendant argued that this service was invalid because Liechtenstein law allegedly only allows letters rogatory. Presiding Judge Bartle found that Liechtenstein law does not expressly prohibit service by mail.
21. Lewis v. Dimeo Construction Co., 41 F. Supp. 3d 108 (D. Mass. 2014): This case (from the District of Massachusetts) concerned a product liability lawsuit against Hilti AG. The plaintiffs had served Hilti with the summons and complaint directly by registered mail without prior court order. A magistrate judge considered whether this service should be approved retroactively (nunc pro tunc) under Rule 4(f)(3). The discussion focused on Liechtenstein law, as Hilti AG argued that the service violated the sovereignty and laws of Liechtenstein. The argument that direct service by a private individual in Liechtenstein was punishable as a violation of sovereignty was repeated (with reference to Art. 2 of the State Protection Act).
22. "In the service of documents in a legal dispute, one party acts as a private individual and not on behalf of the United States. The United States has no interest whatsoever in the service, which is entirely the responsibility of the private individual." (Lewis v. Dimeo Const. Co., 41 F.Supp.3d 108 (2014); own translation).
23. See Marks, 615 F. Supp. 2d at 380 (approving service under Rule 4(f)(3) on a Liechtenstein defendant by registered mail nunc pro tunc); Lewis, 41 F. Supp. 3d at 112–13 (id.); Exp.-Imp. Bank of U.S. v. Asia Pulp & Paper Co., Ltd., No. 03-cv-8554, 2005 WL 1123755, *5 (S.D.N.Y. May 11, 2005) (approving service on foreign defendants by international courier nunc pro tunc).
24. F.T.C. v. PCCare247 Inc., No. 12-cv-7189, 2013 WL 841037, *4 (S.D.N.Y. Mar. 7, 2013).
25. Citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
26. See Marks v. Alfa Grp., 615 F. Supp. 2d 375, 378 (E.D. Pa. 2009) (finding that Liechtenstein's Code of Civil Procedure "does not expressly prohibit any form of service"); Lewis Dimeo Constr. Co., 41 F. Supp. 3d 108, 112 (D. Mass. 2014) (same). In contrast to the older decision Jung v. Neschis, No. 01 Civ. 6993, 2003 WL 1807202 (S.D.N.Y. Apr. 7, 2003)
The Jung decision (unpublished, but cited in later cases) accepted the argument that Liechtenstein law requires service by letter rogatory and does not permit direct service. As noted in Marks, this finding was based solely on the statement of a lawyer (without any counterstatement) who claimed that Liechtenstein law prohibited other methods.
27. Federal Rules of Civil Procedure, Rule 4. Summons (c) Service (2) By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint. and (3) By a Marshal or Someone Specially Appointed. At the plaintiff's request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916. Decision (Supreme Court): National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311 (1964). The Supreme Court accepted the validity of a contractual agent clause and held that service on an "agent authorized by appointment ... to receive service of process" under Rule 4 was valid. In this respect, acceptance of service can be constructed through the private appointment of an agent, which dogmatically anchors the statement that service is not necessarily understood as (only) a sovereign judicial act.
28. See footnote 8.
29. See, however, StGH 2021/064 (albeit on the judicial gathering of information abroad, not service of process): "However, if an action is taken by private parties in the country on the instructions of a foreign court and thus a circumvention of legal assistance cannot be ruled out, then this is certainly close to the criminal offense under Art. 2 of the State Security Act."
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