Paper of the Day: Jie Huang on Contracting Out of the Service Convention

Friend of Letters Blogatory Jie (Jeanne) Huang (University of Sydney Faculty of Law) has posted a new paper: “Can Private Parties Contract Out of The Hague Service Convention?” The paper makes an important contribution by observing that the states that have objected to service by postal channels under the Service Convention do not always object for the same reasons. Jeanne’s view is that courts should decide the “contracting out” question differently, depending on the reason for the state’s objection. If the objection is about state sovereignty, then it should be the state’s objection to waive. If the objection is about protection of private parties, then the private party should have the option to waive. She points to Germany and China as examples of states whose objections focus on sovereignty, and Australia and India as examples of states whose objections focus on the defendant’s right to receive notice.

Australia is an interesting example because it has said that service by post is okay if it is done by registered mail. one way of looking at this is to say, as I think Jeanne does, that the requirement of registered mail, which is the form of mail that is most certain to reach the recipient and that provides the best proof of receipt, is indeed about notice. But is it also possible to see registered mail as the form of mail that brings the defendant into the most direct contact with an agent of the state—the postman—and thus minimizes the offense to the idea that only the state has the power to serve process? I don’t state that view with much confidence it is right. I also don’t really know whether the postman is a state agent in other countries in the way that he is in the United States.

I think Jeanne is right to say that the comity issues are much starker in states like China than in, say, Australia, and I think she has identified a split in perspective between the civil law and common law worlds. But what should follow? The real issue, to me, seems to be the Convention’s exclusive nature. If the plaintiff must serve process using a method the Convention permits, and if we agree that the Convention does not permit service by post because a state has objected to it,1 the question of “contracting around” seems to me to answer itself. Surely a state that wants to allow private parties to contract around its objection can say so in its declaration or reservation.

There is a lot more in the paper that will repay reading. Congratulations, Jeanne!

  1. I use the word “object” without delving into the paper’s interesting discussion about how states’s positions about Article 10 should be treated for purposes of the law of treaties. Some states cast them as reservations, others as declarations, and for some the state’s characterization of its own statements is unclear. Jeanne’s position is that all should be treated as reservations, which strikes me as the right view for practical reasons, though I don’t have much to say about the discussion on this point.

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