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For the 71 countries signing the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, commonly called the Hague Convention, international service of legal papers and process would seem straightforward.
Article 2 requires all signatories to establish a “Central Authority” to receive and facilitate requests from foreign litigants for service of originating process. Article 10(a) allows litigants to bypass the destination country’s Central Authority by sending the documents to be served “by postal channels, directly to persons abroad” unless the destination country has made a declaration to the contrary.
But the language of Article 10(a) has been the source of much litigation.
Article 10(a) 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… (emphasis added)
As may be expected, “send” rather than “serve” has led to different interpretations in different courts. U.S. federal courts have split over the issue. Most federal courts follow the law of the 9th Circuit (western states), accepting service of documents sent per Article 10(a) only when the forum court also authorizes mail service, and when the procedural rules for mail service are followed. (Brockmeyer v. May, 383 F.3d 798 (9th Cir. 2004).
But the federal appeals courts in the 2nd Circuit (NY, VT and CT) have ruled mailed service of process is valid. Ackermann v Levine, 788 F.2d 830 (2nd Cir 1986). While courts in the 5th and 8th Circuits have held that mailed documents overseas defendants lacks formality and is invalid. (Nuovo Pignone v. Storman Asia M/V, 310 F.2d 374, 384 (5th Cir. 2002).
Service by mail is often the most efficient and cost-effective method. So lawyers and litigants dealing with international service of process are looking forward to the U.S. Supreme Court’s currently-pending review of Water Splash, Inc. v. Menon. In Menon, the Texas Court of Appeals ruled that service by mail on a Canadian defendant was improper. The Texas Supreme Court declined the case, but the U.S. Supreme Court will hear the case this term.
Until this issue is resolved, litigants should follow the rules law in their jurisdiction, and consider alternative methods of service. Service may be available through the subject country’s Central Authority, directly through diplomatic channels, or, if the state of destination does not object, directly through judicial officers, officials, or other competent persons of the state of destination. See Convention, arts. 8, 9, 10(b)-(c).
Sources:
Hague Convention on Service Abroad
U.S. Supreme Court docket
U.S. State Department guidelines
We serve lots of process and legal papers, including international defendants in the United Kingdom, Canada, Mexico, Europe, Asia and Latin America.
John A. DeMarr, P.I., 877-493-3463 Toll-free 877-493-3463.
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