Water Splash: Reaction to the Oral Argument

Here is the transcript of the oral argument in the Water Splash case. Nothing in the transcript makes me want to revise the view I gave earlier this week about the likely outcome of the case. It still seems likely to me that the case will come out in the petitioner’s favor, and my best guess is that it’s a unanimous decision.

There was some attention paid to the issue of whether Article 10(a) affirmatively authorizes service by mail, or rather simply permits service by mail if otherwise authorized by the law of the forum. It seems likely to me that the court will now get this right, thus resolving another split of authority correctly. However, I am concerned that the Court may end up saying, as the government said in its amicus brief, that the Convention applies only to service of the summons and complaint, not to other judicial documents, contrary to the views of the Permanent Bureau. This would make life easier for American litigants, for sure, but it would raise comity concerns in those countries that would object to service of other judicial documents via methods not authorized or permitted by the Convention.

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