Water Splash v. Menon: The Respondent’s Brief

The respondent has filed her brief in Water Splash v. Menon, the case on Article 10(a) of the Hague Service Convention. I am not going to comment at length on the details of the brief. May I gently suggest that if you’re talking about Plato’s theory of forms or John Finnis on natural law in a brief on treaty interpretation, something has gone wrong somewhere.

The basic point of the brief is that the text of Article 10(a) is unambiguous, and that its plain meaning favors the respondent. This is highly implausible. How can it be that all the parties to a treaty, including the US government, think it means one thing, and that in fact it unambiguously means the opposite? So I think the argument fails from the get-go: the Convention is at least ambiguous. The majority rule is at least a possible reading. With that point established, there is not much else to say about the brief or its explanations about why, when a treaty’s text is unambiguous, resort to various interpretative methods is improper.

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.

2 thoughts on “Water Splash v. Menon: The Respondent’s Brief

Leave a Reply

Your email address will not be published. Required fields are marked *