You've Got Mail - Service of Process by Mail is Satisfactory under the Hague Service Convention

ABSTRACT: The United States Supreme Court ruled on May 22, 2017, that the Hague Convention, on the service of judicial documents abroad, permits service by mail if the receiving country has not objected to service by mail and service by mail is authorized under otherwise-applicable law.

Serving judicial documents on individuals and companies located outside the United States can be a time-consuming and expensive process. First, you have to figure out if the person or entity to be served is located in a country covered by the Convention on the Service Abroad of Judicialand Extrajudicial Documents in Civil and Commercial Matters (a.k.a. the
“Hague Convention”) or another international service treaty.  Then, you have to determine whether that country opposes certain Articles of the Convention or other applicable service treaties.  After all of that, you still have to jump through the country-specific hoops to effectuate proper service.

But on May 22, 2017, the United States Supreme Court provided a definitive answer to one question over which there has been a long-standing disagreement.  Specifically, the Court resolved the split among courts as to whether the Convention permits service by mail. 

Until now, some courts, like those in the Fifth and Eighth Circuits and in Texas, had held that the Convention does not permit service by mail.  See Nuovo Pignone v. Storman Asia M/V, 310 F.3d 374 (5^th Cir. 2002); Bankston v. Toyota Motor Corp., 889 F.2d. 172, 173-74 (8^th Cir. 1989); Velasco v. Ayala, 312 S.W.3d 783 (Tex. Ct. App. 2009).  In contrast, courts in the Second, Fourth and Ninth Circuits and in California had concluded that the Convention allows service by mail.  See Ackerman v. Levine, 788 F.2d 830 (2nd Cir. 1986); Koehler v. Dodwell, 152 F.3d 304 (4^th Cir. 1998); Brockmeyer v. May, 383 F.3d 798 (9^th Cir. 2004); Shoel Kako v.Superior Court, 33 Cal.App.3d 808 (Cal. App. 1973).

In Water Splash, Inc. v. Menon, 2017 LEXIS 3212, the Supreme Court unanimously sided with those courts which have allowed service of process by mail.  Specifically, the Court held that the Convention permits service by mail if: (a) the receiving country has not objected to service by mail; and (b) service by mail is authorized under otherwise-applicable law. 

At issue in Water Splash was the text of Article 10 of the Convention.  The English version states:

“Provided the State of destination does not object, the present Convention shall not interfere with –

(a)    The freedom to send judicial documents, by postal channels, directly to persons abroad,

(b)   The freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,

(c)    The freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.”

(Emphasis added).The dispute in Water Splash and the other cases in which parties contested service by mail under the Convention centered around the use of the word “send” in Article 10(a) compared to the use of the phrase “to effect service” in Articles 10(b) and 10(c).

To reach its unanimous decision in Water Splash, the Court looked at the text of the Convention, the structure of the Convention, and extratextual sources.  The Court emphasized that “the scope of the Convention is limited to service of documents” and that in fact, “[e]ven the Convention’s full title [Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters] reflects that the Convention concerns ‘Service Abroad.’”

Because the entire framework of the Convention concerns service of documents, according to the Court, “it would be quite strange if Article 10(a) – apparently alone among the Convention’s provisions – concerned something other than service of documents.” Thus, for “Article 10(a) to do any work, it must pertain to sending documents for purposes of service.”(Emphasis in original).

The defendant futilely tried to counter that logic by arguing that Article 10(a) applies to “post answer judicial documents” but does not apply to service of process documents.  But the Court rejected that argument, because “[i]f the drafters wished to limit Article 10(a) to a particular subset of documents, they presumably would have said so.” Plus, Article 10(a) uses the same phrase “judicial documents” as used in Articles 10(b) and 10(c).  Therefore, “the notion that Article 10(a) governs a different set of documents than 10(b) or 10(c) is hard to fathom.” 

The Court even relied on the French version of the Convention to support the conclusion that the Convention permits service by mail.  The Court noted that the “French version of the Convention is ‘equally authentic’ to the English version.”  And the French counterpart to the word “send” in Article 10(a) is “addresser” which “has been consistently interpreted as meaning service or notice.”

Finally, the Court looked at the drafting history of the convention, the Executive Branch’s interpretation of the Convention and views of the other parties to the Convention.  All of those extratextual sources supported the Court’s determination that the Convention allows service by mail. 

Although the Convention allows service by mail, that “does not mean that the Convention affirmatively authorizes service by mail.”  Rather, Article 10(a) “simply provides that, as long as the receiving state does not object, the Convention does not ‘interfere with … the freedom’ to serve documents through postal channels

As the Court noted, some signatory countries (the Czech Republic, Bulgaria, Hungary, Kuwait and Turkey among them) have objected to all or parts of the service methods mentioned in Article 10.    In those countries, service by mail is not acceptable under the Convention.  For a complete list of countries that have opposed all or some of Article 10 (and other Articles of the Convention), see the “Table Reflecting Applicability of Articles 8(2), 10(a)(b) and (c), 15(2) and 16(3) of the Hague Service Convention” (December 2015) here.

The decision in Water Splash may make serving judicial documents in foreign jurisdictions which have not objected to service by mail easier.  But parties will still need to analyze the specific service methods allowed by the country in which a person or entity is to be served.  Plus, service by mail must be an appropriate means of service under the law of the originating state.  If the receiving country has not objected to service by mail and service by mail is authorized under the applicable state law, then under Water Splash, service by mail is permissible.  So, check your mail if you are located in or have company facilities in countries which allow service by mail.  You may have just been validly served.