Process agent
What is a process agent?
The rules of English civil procedure require process of legal proceeding before an English (or Welsh) Court to be served in England or Wales (or, at the limit, in adjacent territorial waters[1]. Note: service in Scotland will not do. This means you can serve process on someone rowing a boat in the Bristol Channel, but not in Glasgow. Also, if your Process Agent is moored on a barge off the coast of Berwick-upon-Tweed, depending on the prevailing current, you may or may not be able to service process there.
This means if you have a contract with a counterparty who has no place of business in England, Wales (or their territorial waters), it will need to appoint a process agent on whom you can serve court papers should, heaven forfend, you need to. There are many businesses which act as process agents, although they charge rather 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.
A process agent is a business located England or Wales (or, in theory, adjacent territorial waters) which accepts service of legal proceedings filed in English courts on behalf of a person who has no place of business in England or Wales.
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.
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
- ↑ In the Civil Procedure Rules the jurisdiction is defined as “unless the context requires otherwise, England and Wales and any part of the territorial waters of the United Kingdom adjoining England and Wales”, so therefore the UK’s territorial waters adjoining Scotland or Northern Ireland are out of bounds.