Process agent

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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.

There are many businesses which act as process agents, although they charge heavily for doing so. If you have an affiliate, agent or investment manager 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.

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.

New York

The New York rules of civil procedure do not require service of process within the state of New York, nor even her territorial waters. Your process service guy can travel far and wide, serving the miscreant in whichever jurisdiction he may find an authorised representative to whom he can hand the papers. As long as he trots back and files an affidavit of service in the New York court, that will do. Therefore - however much money CT Corporation may reap persuading its offshore clients otherwise, foreigners conducting their affairs under the laws of the state of New York need not appoint a NY process agent.

Who needs one?

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

See also

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