The first two briefs are on file in Water Splash v. Menon, the Supreme Court case on the interpretation of Article 10(a) of the Hague Service Convention. First is the petitioner’s brief, of course, and there’s also an amicus brief from the United States in support of the petitioner’s view.

I was very glad to see that the government’s brief addressed the question, not really presented in the case but lurking in the way the petition for cert. was phrased, about whether Article 10(a) authorizes service by mail or rather simply permits it. “Although Article 10(a) of the Hague Service Convention does not affirmatively authorize service of process by mail, it is properly construed as permitting service of process by postal channels where such service satisfies otherwise applicable law.” You can’t get much clearer than that!

Both briefs seem to me to suggest that the Convention applies only to service of process, and not to service (or transmission) of other judicial documents. Indeed, it’s an important part of the argument. Article 10(a) must refer to service of process, the amicus brief suggests, because Article 1, the provision setting out the scope of the Convention, refers only to service of process:

As this Court has previously explained, the Convention’s negotiating history demonstrates that its applicability was consciously limited to instances requiring the transmission of documents to other countries for purposes of “service of process in the technical sense.” A preliminary draft of Article 1 referred to “all cases in which there are grounds to transmit or to give formal notice of a judicial or extrajudicial document in a civil or commercial matter to a person staying abroad.” That preliminary draft, however, was criticized for “suggest[ing] that the Convention could apply to transmissions abroad that do not culminate in service.” As a result, the final version of Article 1 was revised, such that the Convention now “applies only to documents transmitted for service abroad.” The decision below cannot be reconciled with this Court’s authoritative construction of Article 1 and the negotiating history upon which the Court relied.

But can that be right? If it is, how do we account for the Convention’s reference to extrajudicial documents? In American practice, we would never say that when we serve an extrajudicial document abroad, we are “serving process.” It may be that civil law countries require extrajudicial documents to be delivered using a method such as signification or notification, but that is just to say that the document has to be served in a particular formal way, not that it constitutes process (a summons, a subpoena, a writ, or whatever) in our sense. Even the term “judicial documents” is broader than summonses and the like. As explained in the Practical Handbook (¶ 77), it refers to “instruments of contentious or non-contentious jurisdiction” and includes “the defendant’s reply, decisions and judgments delivered by a member of a judicial authority, as well as witness summonses (subpoenas), and requests for discovery of evidence sent to the parties …” Indeed, “the concept of judicial and extrajudicial documents is to be construed broadly” (¶ 82).¹Prior versions of the Handbook may have contributed to the confusion here. See, for example, ¶ 46 of the Third Edition. In short, I think there is some confusion, in Volkswagen itself and in arguments that quote it, about “service” as something distinct from “service of process.” Documents other than process can be “served” (as we use the term “service” in US practice), which we all know from FRCP 5. Given the importance both briefs attach to the importance of looking to the views of the other contracting parties on the meaning of the Convention, I do not see why we would want to rest conclusions about Article 10(a)’s meaning on arguments that seem to narrow the scope of the Convention as a whole beyond what was intended.

I’ve addressed this issue in a small way in prior posts: you may want to refer to this one from April 2012, and this one from way back in November 2011.

All this said, it’s good to see the government take the right view about the outcome of the case, and let’s hope the Court agrees.

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  Prior versions of the Handbook may have contributed to the confusion here. See, for example, ¶ 46 of the Third Edition.