In Water Splash v. Menon, the Supreme Court will resolve the longstanding circuit split about whether Article 10(a) of the Hague Service Convention allows service of process by mail. As I noted in my post on Multisports USA v. TheHut.com, there’s a difficulty in the way the question on cert. has been presented. The question, as it appears in the petition, is: “Does the Hague Service Convention authorize service of process by mail?” The key word, the problematic word, is “authorize.” The question presented in the case is whether Article 10(a) has anything at all to do with service of process by mail or whether it only applies to service of documents other than the summons or other process. But the word “authorized” raises an entirely different question, on which there is also a (possible) circuit split but which is not part of the case before the court.

In Ackerman v. Levine, 788 F.2d 830 (2d Cir. 1986), as interpreted by Papir v. Wurms, No. 02 Civ. 3273 (RCC), 2005 WL 372061 (S.D.N.Y. Feb. 15, 2005), the Second Circuit held that Article 10(a) affirmatively authorizes service of process by mail. That is, service by mail is proper under FRCP 4(f)(1), which authorizes all internationally agreed methods of service, and it is unnecessary to look to FRCP 4(f)(2)(C)(ii) or 4(f)(3). This has important procedural consequences. Under Ackerman/Papir, it is not necessary for the clerk to address and send the papers, as it is under FRCP 4(f)(2)(C)(ii), nor is it necessary to seek leave of court, as it is under FRCP 4(f)(3).

In Brockmeyer v. May, 383 F.3d 798 (9th Cir. 2004), on the other hand, the Ninth Circuit held that Article 10(a) merely permits service by mail. The procedural implication is that service by mail in a Convention is state is not authorized by FRCP 4(f)(1), and it’s necessary to find another provision in the law of the forum, such as FRCP 4(f)(2)(C)(ii) or 4(f)(3).

The Supreme Court should be careful, in its decision, not to use the word “authorized,” or if it does, at least to note that it is not deciding whether the Convention authorizes or merely permits service by mail.

My own view on the merits of the question is that the text of Article 10 strongly supports the Ninth Circuit’s view. Article 10 says that the Convention “shall not interfere with” a party’s freedom to send judicial documents via the postal channel. The phraseology strongly suggests to me that there must be some underlying right, presumably in the law of the forum, to send documents by postal channels. But as I have argued, this is a question the Supreme Court should decline to reach.