The case of the day is Water Splash v. Menon (S. Ct. 2017). The Supreme Court, in a unanimous decision, put to rest the circuit split about whether Article 10(a) of the Hague Service Convention permits service of process by mail. Happily, the state and federal courts in the United States are all now on the same page with the Special Commission of the Hague Conference, the US State Department, most if not all foreign courts, and more or less all writers on the subject: Article 10(a) does indeed permit service by mail.
The opinion, by Justice Alito, begins not with the key word in Article 10(a)—“send”—but rather with the structure of the Convention as a whole. The Court looked to the preamble of the Convention and Article 1, which limit the scope of the Convention to service of documents abroad, and it noted that if Article 10(a) had to do with something other than “service,” it would be “superfluous.” I think the focus on the structure of the Convention is right, but I think the Court went about this the wrong way. The problem is that the Convention, properly interpreted, governs service of all judicial documents, not just service of process. That, at least, is the view of ¶ 77 of the Practical Handbook, and I think it’s right for reasons I gave in a prior post. Although the Court avoided a holding on this issue (saying, in a footnote, that it was assuming arguendo that the Convention was not limited to service of process, but noting that the Volkswagen case suggested it was thus limited), it seems poised to limit the scope of the Convention to process in a later case. I think this issue is unlikely to have practical implications for US practitioners, though. If you decide that country A requires that judicial documents other than summonses be served by way of the Convention, nothing prevents you from making a request under the Convention (US lawyers are competent to make such requests under US law).
The Court acknowledged the use of the word “send” in Article 10(a) but held that the word has a broad definition, and that if there really was an ambiguity, then it would be proper to look to traditional methods of treaty interpretation. And these methods lead very clearly to the conclusion that Article 10(a) does permit service by mail. In particular, the Court focused on the clear drafting history, the practice of other states that are party to the Convention, the views of the Executive, and the French text, which is equally authentic.
I was glad to see the Court took seriously the government’s point that despite the wording of the question presented in the petition for cert., it should distinguish carefully between authorization and permission. We now know that the Convention permits but does not authorize service by mail. Service by mail is authorized under the Convention only if (1) the foreign state has not objected and (2) the law of the forum (e.g., FRCP 4) authorizes service by mail in the particular case.
Check out my Water Splash resources page, which has links to the briefs, the argument, some key authorities, the lower court’s decision, and my prior coverage. I’m gratified that my prediction of an 8-0 decision panned out. Perhaps I’ll place a bet on a horse at the Belmont Stakes next month!