The case of the day is Diamond Films Netherlands Cooperatief v. TV Azteca S.A.B. de C.V. (N.Y. Sup. Ct. 2024). Diamond sued TV Azteca in New York to enforce a Renegotiation and Free Television Output Agreement between the parties. Its lawyers sent a letter of request to the Mexican central authority (under the Hague Service Convention, rather than a letter rogatory under the Inter-American Convention). The central authority passed the documents to a Mexican court, which arranged to have the documents delivered to TV Azteca’s domicile in accordance with Mexican law.

TV Azteca challenged the service in the Mexican court, but the court declined to rule on the challenge and instead sent a certificate to the New York court under Article 6 of the Convention indicating that service had been effected. The New York court, in reliance on the certificate, entered a default judgment against TV Azteca (which, it seems, had appeared in the New York case). It noted that the Mexican court had approved the service by issuing the certificate and that TV Azteca’s efforts to challenge the service via an amparo proceeding had failed. But a few months later, a higher Mexican court reversed and decided that the constitutional challenge to the service should have granted and the service annulled. I would not presume to judge the decision of a Mexican court on a question of Mexican law, but I will say that the decision, which is an exhibit to an affidavit in the case, is highly formalistic in a style familiar from past encounters with Latin American decisions under the Convention.

The question was: did the New York court have to vacate the default judgment in light of the later Mexican decision annulling the service?

The New York judge’s decision was not a model to follow. She wrote: “As between the [Mexican courts’] subsequent reversal and the Hague Convention, this court is compelled to extend comity to the Hague Convention.” This makes no sense. A state gives comity to another state, not to a treaty. And doing what the treaty requires is showing comity to Mexico.

The judge also wrote: “Disregard of the original valid certificate is the
equivalent of disregarding the Hague Convention. It would create confusion and open the door to questioning valid certificates of service of process in the future. Instead, the Hague Convention envisions finality.” Well, the Article 6 certificate is presumptively accurate, but I do not think it is conclusively accurate. It is not really good practice for a state to annul service after it has sent the Article 6 certificate. But if that should happen, is it right to follow the certificate even when it’s clear that the courts in the receiving state have held that the service was invalid? I am not at all sure.

What is most odd about the case is that the contract had a provision allowing for service on TV Azteca by serving someone in California, and Diamond had also effected service in that way. That was an easy and correct path to upholding the default judgment.

Image credit: Eduardo Burciaga (CC BY-SA 4.0)