Process agent

Negotiation Anatomy™ →Go uptown A process agent in the Bristol Channel, yesterday Rule 6.11, Rules of Civil Procedure 6.11 (1) Where – (a) a contract contains a term providing that, in the event of a claim being started in relation to the contract, the claim form may be served by a method or at a place specified in the contract; and (b) a claim solely in respect of that contract is started, the claim form may, subject to paragraph (2), be served on the defendant by the method or at the place specified in the contract. (2) Where in accordance with the contract the claim form is to be served out of the jurisdiction, it may be served – (a) if permission to serve it out of the jurisdiction has been granted under rule 6.36; or (b) without permission under rule 6.32 or 6.33. Walk-away | Escalation | Algorithm | Heuristic | subject matter expert | Operationalisation | Playbook | Smart contract | Dead horse | Knife fight | 7 wastes | Cruddy legal advice Index: Click ᐅ to expand: Negotiation Negotiation hacks Contract Tell me more Sign up for our newsletter — or just get in touch: for ½ a weekly 🍺 you get to consult JC. Ask about it here.

Process agent
/ˈprəʊsɛs ˈeɪʤᵊnt/ (n.)

An agent located in a jurisdiction who is appointed by a contracting counterparty outside that jurisdiction to accept service of legal proceedings filed against it in the courts of that jurisdiction, to discharge the procedural requirement that they are physically served within the jurisdiction.

For English law contracts the jurisdiction in question is that of “the courts of England and Wales” — there is no such thing as United Kingdom law — the rules of English civil court procedure require process physically to be served within England or Wales (or, in theory, their adjacent territorial waters). Service in Scotland — or its territorial waters — will not do. This means you can serve process on someone rowing a boat in the Bristol Channel, but not in Inverness, much less on someone escaping in rowing a boat to, for example, the Isle of Skye.

A contracting counterparty whom you cannot rely on being in England or Wales should you have to sue it — one who has no permanent place of business there — you might ask to appoint as its agent a company who reliably will be there, and who is prepared to receive process served upon the counterparty and pass it on to head office. That person is a “process agent”.

The best kind of process agent is an English-domiciled affiliate of the contracting entity who is happy to perform that role, as it generally will do it for free. But if you don’t have one, there are dedicated process agency businesses who will act as your process agent for, naturally enough, a suitably outrageous fee.

Who needs one?

Any counterparty who does not have a permanent place of business in England or Wales. Or their adjacent territorial waters. Process agents are standard in English law contracts with overseas counterparties.

How do I get a one?

Many corporate trust and agency businesses act as process agents, although they charge outrageously for the service. Law firms used to do it, but they charged even more, and even then complained they couldn’t make any money out of it.

If you have an affiliate, agent or investment manager or buddy in England or Wales, best ask them if they will accept service on your behalf.

It would make a great play

It would be kind of cool to set up a process agency business on a barge moored in the Bristol Channel, just to make service on that process agent as hard as is humanly possible, and potentially impossible if a great storm blew in from the Atlantic on the last day of the statute of limitations. Would make a great play. Actually, now you mention it - The ISDA Protocol. We quite like the idea of a process agent so in thrall to McKinsey that it has outsourced its whole operation to India

Careful with the territorial waters

If your process agent is moored on a barge — say, off the coast of Berwick-upon-Tweed — then depending on the prevailing current, you may or may not be able to service process there.

A process agent in New York?

The New York rules of civil procedure are here. As you might expect, they seem complicated. CT Corporation seems to charge a lot for serving process — so we assume there is a reason for that.

See also

• Process Agent - ISDA provision
• Part 6 of the Civil Procedure Rules, governing the service of process