Water Splash: Notes on Volkswagen from the new ABA Treatise

The publication of the new ABA treatise, which I noted yesterday, reminded me that I had already written about the question I noted last month in my discussion of the government’s amicus brief in the Water Splash case, namely whether the Hague Service Convention applies to all judicial documents, or just to the summons and complaint. Here is a short excerpt from my chapter in the new book, without the footnotes.

In addition to the issue of which law governs the question whether there is occasion to transmit a document for service abroad, there is also an issue about whether a particular transmission of a document is a transmission for service abroad. This issue arises rarely, since in the overwhelming majority of cases applying the Hague Service Convention, the documents transmitted are the summons and complaint, and there can be no doubt that in such cases the transmission is for service. But the issue does sometimes arise in the service of process context. For example, in an in personam case within the admiralty or maritime jurisdiction, where a party seeks an attachment (e.g., attachment of a vessel), under Rule B of the Supplemental Rules for Admiralty or Maritime Claims, a default judgment cannot enter unless the plaintiff has served notice of the attachment on the defendant. The requirement of notice is distinct from the requirement of service of process. In Hyundai Merchant Marine Co. v. Grand China Shipping (Hong Kong) Co., the court held that the convention did not apply to transmission of the notice required by Rule B because service of the notice was not service of process in the strict sense. Another example is in the Pennsylvania state courts, where it is possible to commence an action by filing a praecipe for a writ of summons rather than a complaint. A plaintiff who files the praecipe instead of a complaint can serve process by serving the summons alone, without the complaint. One commentator has suggested that when the plaintiff later serves the complaint, the Hague Service Convention does not apply because the service of the complaint is not, under Pennsylvania law, service of process.

This view expressed in Hyundai and in the Pennsylvania commentary stems from a dictum in Volkswagen suggesting that the convention applies only to “service of process in the technical sense”:

The negotiating history supports our view that Article 1 refers to service of process in the technical sense. The committee that prepared the preliminary draft deliberately used a form of the term “notification” (formal notice), instead of the more neutral term “remise” (delivery), when it drafted Article 1. Then, in the course of the debates, the negotiators made the language even more exact. The preliminary draft of Article 1 said that the present Convention shall apply in all cases in which there are grounds to transmit or to give formal notice of a judicial or extrajudicial document in a civil or commercial matter to a person staying abroad. … (“La presente Convention est applicable dans tous les cas ou il y a lieu de transmettre ou de notifier un acte judiciaire ou extrajudiciaire en matiere civile ou commerciale a une personne se trouvant a l’etranger”). … To be more precise, the delegates decided to add a form of the juridical term “signification” (service), which has a narrower meaning than “notification” in some countries, such as France, and the identical meaning in others, such as the United States. The delegates also criticized the language of the preliminary draft because it suggested that the Convention could apply to transmissions abroad that do not culminate in service. The final text of Article 1 eliminates this possibility and applies only to documents transmitted for service abroad. The final report (Rapport Explicatif) confirms that the Convention does not use more general terms, such as delivery or transmission, to define its scope because it applies only when there is both transmission of a document from the requesting state to the receiving state, and service upon the person for whom it is intended.

The view that the convention applies only to service of the summons and complaint and not to service of other documents accords with the view taken by some foreign courts, and several U.S. courts have reached the same conclusion in cases involving temporary restraining orders or preliminary injunctions, where the perceived need for speedy notice has led the courts to conclude that notices of injunctions or motions for entry of an injunction need not be served by a method prescribed by the convention even though they occur at the beginning of a case.

But there are good reasons to question whether Volkswagen should be read to mean that the convention should be construed so strictly. First, the convention applies whenever there is occasion to transmit a judicial or extrajudicial document for service abroad. Extrajudicial documents can be “transmitted for the purpose of service” using the same methods prescribed for transmission of judicial documents. It seems clear that documents involved in service of process, strictly defined, will always be judicial rather than extrajudicial documents. Thus if the convention should be construed as the Hyundai court suggests, then the convention’s reference to transmission of extrajudicial documents has no apparent meaning. Second, in French, Article 1 reads: La présente Convention est applicable, en matière civile ou commerciale, dans tous les cas où un acte judiciaire ou extrajudiciaire doit être transmis à l’étranger pour y être signifié ou notifié. “Signification” refers to service that must be made by personal delivery by a judicial officer or huissier, while “notification” refers to service that can be made by mail or even fax. Under the French Code de Procédure Civile, there are times after the commencement of an action when a document is served by notification (e.g. notification entre avocats). The better rule seems to be that the convention should apply whenever a judicial document has to be transmitted for service abroad, whether or not the document is “process” in the strict sense.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. Folkman also serves as an arbitrator and is a member of the Commercial and Consumer Panels of the American Arbitration Association. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's treatise on International Aspects of US Litigation (J. Berger, ed. 2017), and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012 and 2014 - 2016.

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