A Challenge to Hague Service by Mail Is Now Before the SCOTUS…Finally

In Water Splash v. Menon, case number 16-254 before the U.S. Supreme Court, a long-standing and deep split of authority on a basic question involving international service of process has finally reached the high court. This case was granted certiorari by the Court in early December 2016. It has been briefed by both sides and is now set for argument to proceed on March 22, 2017. The question presented is whether the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention) allows service of process by mail.
This issue arises quite often in product liability cases where the defendant is a foreign entity. The Hague Service Convention is a treaty that allows for service of process of legal documents from one member country to another member country without the use of consular or diplomatic channels. It was created in 1965 and its purpose was to create a uniform method for delivering notice of a foreign lawsuit to entities overseas. The United States is a signatory to the treaty along with other prominent countries that host multinational manufacturers within their borders, such as Canada, China, Germany and Japan.

Under the provisions of the treaty, each member state designated a central authority that would channel service of process from a foreign court intended for a person or entity that resides within its country. Service through a country’s central authority is often carried out by a company that specializes in international service of process. As a result, it is expensive and time-consuming. Some plaintiffs’ attorneys who may try to avoid the expense of serving a foreign entity through its country’s designated central authority have relied on Article 10(a) of the Hague Service Convention to convince courts that service of process on a foreign entity through U.S. mail is a sufficient method for service of process under the treaty.

Article 10(a) of the Hague Service Convention states, in pertinent part: “Provided the state of designation does not object, the present Convention does not interfere with … the freedom to send judicial documents by postal channels directly to the person abroad.”

We have written about the Hague Service Convention on this blog in the past. It is a topic of particular interest to risk management professionals, attorneys and in-house counsel who defend foreign entities and product liability lawsuits in the United States. This is due to the fact an ambiguity has arisen in the way courts have interpreted this treaty in the past and, in particular, their interpretation of Article 10(a). The age-old question of whether the drafters’ use of the term “send” includes within its meaning “service of process” may ultimately be resolved in the Water Splash case now before the Court.

We are hopeful the Court will put to rest the struggle that has existed among litigants and the courts in their interpretation of Article 10(a). Frankly, a decision that creates uniformity among all U.S. state and federal courts in the way this provision of the treaty is interpreted will be helpful. However, it is hoped that the Court’s decision does not undermine the two-fold purpose of the treaty: (1) to provide clear and sufficient notice of a lawsuit that is pending against a person in a foreign land, and (2) to also allow that foreign entity or person to have a fair amount of time to take the necessary steps to defend. We will continue to follow the Water Splash case and will report back to our readers on this site with the Court’s decision once it has been published.

This blog post was published originally on February 27, 2017.