Should The Postman Ringeth? Service of Process Abroad by Mail Under the Hague Service Convention

June 6, 2017

On May 22, 2017, in an 8-0 decision, the US Supreme Court held in Water Splash v. Menon that the Hague Service Convention does not per se prohibit service of process overseas by mail. Before firing up the postal meter to send that next lawsuit overseas, however, you should understand the context for Water Splash and its limitations.

The United States is one of the 71 countries that have joined the Hague Service Convention (also known as the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters). The purpose of the Hague Service Convention is to clarify and expedite the procedures to be followed when transmitting documents related to civil lawsuits across international boundaries.

Under the Hague Service Convention, “central authorities” identified by member countries accept service of documents from other member states and deliver such documents within their borders (provided that other conditions of the convention have been met). In the United States, the Office of International Judicial Assistance in the Department of Justice serves as the central authority. The convention does not, however, require “central authorities” to be used to transmit documents related to civil lawsuits across international boundaries. Rather, the convention expressly contemplates the use of a number of alternative channels for transmission of documents, such as traditional diplomatic channels.

Water Splash considered whether the Hague Service Convention forecloses the use of postal channels for the service of process between two Hague Service Convention member states—in this case, the plaintiff resided in the United States and the defendant resided in Canada.  Article 10(a) of the convention provides that if the receiving state “does not object,” the convention “shall not interfere with the freedom to send judicial documents, by postal channels, directly to persons abroad.” In Water Splash, the relevant jurisdiction (Canada) had not objected to the use of postal channels under Article 10(a). Nonetheless, a Texas state appellate court had held that Article 10(a) did not apply to service of process by mail, focusing on the article’s use of the word “send” rather than “serve,” and that the Hague Service Convention therefore foreclosed the use of mail for service of process between member states. This reasoning was in line with some other courts that had held that the convention prohibited service of process by mail. The Supreme Court readily dispensed with this limitation, however, finding that the plain text of Article 10(a), as well as the negotiating history and the practice of member states under the Convention, all weighed against this restrictive interpretation.

Thus, after Water Splash, it is clear that the Hague Service Convention does not per se prohibit the use of postal channels to effect service of process across international borders.

The practical impact of this decision is more limiting than it may appear at first blush. As the Court cautioned, the fact that the Hague Service Convention does not prohibit service by mail “does not mean that the convention affirmatively authorizes service by mail.” Parties to the convention have the option of affirmatively objecting to postal delivery, and a number of countries have done so, such as China, Germany, India, Korea, Venezuela, and others. On the other hand, a number of countries have not objected to service of process or the delivery of other judicial documents by mail under Article 10(a), including Belgium, Colombia, France, Pakistan and the United States, among others. Companies in the United States should consider whether Water Splash means that foreign plaintiffs will now be more willing to serve process for claims filed in foreign courts via mail than they were before when the law in the United States on this issue was less clear. The Hague Conference on Private International Law maintains a list of the countries that have objected to the use of mail under Article 10(a).

Thus, while Water Splash clarifies the Hague Service Convention does not outlaw service by mail, it does not answer the question of whether service by mail is permissible or effective under the relevant circumstances. In deciding how to accomplish service abroad, it will be important to understand whether the relevant country objected to service by mail when it joined the convention and whether relevant local rules authorize service by mail. Service of process must comport with the rules of the sending and receiving jurisdiction, which may prohibit or restrict service of process by mail.

Water Splash (which dealt with service of process on a private individual) did not address the separate statutory scheme under US law for serving foreign sovereigns. Under the Foreign Sovereign Immunities Act (FSIA), service of process on a foreign state, a political subdivision of a foreign state, or an agency or instrumentality of a foreign state must be made pursuant to a prioritized list of prescribed methods—and a party can only turn to the next method on the list “if service cannot be made” under the higher-priority methods on the list. See 28 U.S.C. § 1608. Under the FSIA, unless there is a special arrangement between parties, service on a foreign sovereign must first be attempted through an international convention on service of judicial documents such as the Hague Service Convention. If service under an international convention cannot be made, the FSIA permits service of process by mail (if allowed under the law of the receiving country) or (as a last resort) through diplomatic channels. Water Splash is unlikely to have much impact on the amount of time required to effectuate service on foreign sovereigns under the FSIA. Whether process is sent via mail or (where applicable) through the Hague Service Convention’s central authority, a court is likely to wait months after attempted service before deeming service could not be made and authorizing the next available method of service on a foreign sovereign.

Finally, service by mail, even when permissible, could complicate efforts to enforce a judgment in a jurisdiction outside of the United States, particularly when seeking to enforce a default judgment. The United States is not a party to any bilateral or multilateral treaties on recognition and enforcement of judgments. Thus, recognition and enforcement of US judgments in foreign jurisdictions is governed by the relevant foreign country’s local law and the international law principles of comity and reciprocity. In some foreign legal systems, a judgment will not be enforced unless it satisfies both international standards as to jurisdiction and internal requirements as to notice. Many foreign courts resist enforcing US judgments, especially default judgments, in large part because US methods of service of process do not comport with the foreign jurisdiction’s notions of proper notice. Even now, service of process through the central authority pursuant to the Hague Service Convention may not be sufficient to overcome a foreign court’s resistance to enforcement. We doubt that mail service will receive more favorable treatment. Accordingly, in many cases, use of the relevant country’s “central authority” (either on its own, or in combination with another method of service) may prove to be the most effective means of achieving legal certainty when serving process and ultimately placing a judgment (particularly one obtained by default) in the best position to be enforced.

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For more information please contact Steven K. Davidson (sdavidson@steptoe.com, or +1 202 429 8077) or Michael J. Baratz (mbaratz@steptoe.com, or +1 202 429 6468), partners in Steptoe’s Complex Commercial Disputes Group based in our Washington office. We are also pleased to announce that Brian Egan (began@steptoe.com, or +1 202 429 8009), former legal adviser at the US Department of State, has joined the firm as our partner.  His advice is invaluable when litigating international and cross-border disputes. Additionally, our partner in Beijing, Richard Wagner (rwagner@steptoe.com, or +86 10 5834 1009), who is an experienced commercial litigator, is well-versed with the challenges of serving process in Asia.