Peter, thanks for your thoughts on this. I agree with your point about efficiency—it’s plainly better for a US plaintiff to know as early as possible whether its judgment will be enforced in Germany. But there are many cases and even categories of cases in which US plaintiffs will not need to seek recognition or enforcement in Germany, and in those cases it seems that the German court’s views on a judgment’s entitlement to enforcement in Germany should not have a bearing on whether the case can proceed in the United States in the first instance.

First, the review process cuts both ways. If a US party found that its request for service was not entertained by the German Central Authority in question, it could challenge this decision, and try to persuade the Court of Appeals to effect service.

Secondly, as regards the consequences: Looking at the issue from a German perspective, I would agree that we would most likely disregard a foreign court’s decision to treat service as invalid, if service has been effected in accordance with the Convention, and if the German court was of the opinion that the matter fell within the scope of the Convention – which it clearly does, if it requests service under the Convention. However, a German judge would most likely argue that the decision to treat the matter as invalid is, de facto, a decision that is relevant only at the enforcement stage: If a judgment were to be enforced in the United States, the German decision to hold the service invalid will have no practical consequences.

However, if enforcement is being sought in Germany, then one of the requirements for recognition and enforcement of a US judgment pursuant to Sec. 328 para 1. No. 2 German Civil Code is lacking. From the efficiency of process point of view, the Germans would argue, their approach is to be preferred. The US party knows fairly early there is no point to conclude a long and potentially expensive litigation in the United States if they know of the German courts’ attitude to service. At the same time, the German party knows, if they expect enforcement to be relevant only in Germany, whether they will need to defend the US action on the merits or whether they can run the risk of having a judgment against them which will subsequently be not enforced over here.