Fiction of Notification in International Civil Process: Legal Rudiment or Efficient Instrument?

The circumstances existing nowadays effectively refute a statement that the system of international legal assistance stays on a way of linear progression. Many cases demonstrate a failure of international assistance, as the application of legal fictions becomes more common. This article is an attempt to offer a reasonable opinion on how to take an application of legal fiction within a service of legal process abroad. Based on an analysis of the origin and place of legal fiction, the author concludes that the fiction of service of legal process is a way to level down an existing standard of proof, which is aimed to keep the balance between two constitutional rights: the right to judicial protection on one hand and the right to be heard on the other hand. Each state decides independently how low and in what way the standard of proof should be set on its territory. But the problem is to bring a different standard of different states in a correlation within an international civil process. The lack of such correlation may make a further recognition and enforcement impossible. Therefore, it undermines the balance. Fiction of service of legal process provided with an international treaty on a legal assistance successfully mitigates such a risk. Legal fiction provided with Hague Convention of 1965 is a relevant example. However high chance to break a balance exist, when this type of relations is not governed by an international treaty. In this case the court has to decide whether the fiction of service of legal process is applicable. The author believes that solutions proposed in this article may help to keep to a minimum a possibility to upset the balance between two important constitutional rights.