Congratulations to Thomas G. Vanderbeek, who has published a student note in the Vanderbilt Law Review on the problem of “contracting around” the Hague Service Convention in light of Rockefeller v. Changzhou Sinotype. Vanderbeek correctly identifies two approaches to the problem. The first approach focuses on giving effect to the Convention’s terms, particularly its insistence on the power of states to object to alternate methods of service in their territory. The second approach focuses on the goal of facilitating the parties’ choices and agreements concerning service. Readers can read my own views about which of these approaches is right in my (unsuccessful) petition to the Supreme Court. Vanderbeek takes the very reasonable view that we should look for a way to harmonize the two approaches.
The Note proposes waiver of service as an answer to the riddle. The idea is that a party waives service by contract, in advance, and that if that happens, then the plaintiff should be able to send notice of the action to the defendant in a way that avoids involving the Convention. I am a big fan of the waiver-of-service provisions of FRCP 4, and in general, I use it unless it’s inappropriate, and I think opposing counsel who use it are classy.
But I am not sure a waiver approach that involves sending notice of the action to the defendant abroad really works. In an ordinary waiver case, the plaintiff asks the defendant to waive service at the beginning of the lawsuit, and the defendant returns a written acknowledgement that it has waived service. There’s no problem with that, and I agree with Vanderbeek that sending the request for waiver does not implicate the Convention (because the request is just a request and not a judicial document being sent abroad for service). But if the defendant is not going to acknowledge the waiver, then in a sense the notice of the action is not just a request, but a document that must be delivered to the defendant in order to bring the defendant before the court (because due process requires notice). John Coyle, Maggie Gardner, and Robin Effron made this point in their 2019 article on Rockefeller. (John notes the new paper in a recent post at the Transnational Litigation Blog, which is how I learned of it). Vanderbeek acknowledges this view, though he doesn’t agree with it. I think this disagreement is really the heart of the matter after Rockefeller.