The United States Supreme Court recently issued a ruling on what constitutes effective service under the Hague Service Convention, resolving a long-standing circuit split. The case was brought before the Court after a U.S. employer tried suing a former employee after she moved out of the country. In the ruling, the Court determined that the Hague Service Convention does not prohibit service of process by mail.
A Texas-based company Water Splash, Inc. filed a lawsuit against one of its former employees, alleging unfair competition, tortious interference, and conversion. The employee, a resident of Quebec, Canada, had begun working for a competitor of Water Splash before leaving the company. Water Splash served the employee via mail, and when she failed to appear, a default judgment was entered against her. She appealed the default judgment on grounds that service by mail is not valid under the Hague Service Convention. The Appellate Court agreed, and she prevailed before the case made its way to the Supreme Court.
Pursuant to the Hague Service Convention, every country must designate a central authority where requests for service of process are to be sent. When a request is received, the designee must arrange for service and provide a certification of service to the requester.
The Supreme Court, resolving a long-standing federal district and circuit split, found that this rule does not serve to render other means of service ineffective. Two states can agree that other methods of service will also be acceptable. In rendering its decision, the Court analyzed the contextual background of the provision at issue, and also looked beyond the four corners of the Hague Service Convention—taking the drafting history, and views of the other signatories into consideration.
Some of these other sources stated that Article 10 permits service by direct mail, provided the receiving state does not object. Moreover, multiple foreign courts have held that service by mail is appropriate and effective.
After a holistic review, the Court determined that the underlying purpose of the Convention was to ensure that documents served abroad are brought to notice of the addressee in a reasonable period of time. The Court ultimately remanded the case, so that the Texas courts could determine whether Texas law authorizes service by mail.
Some view this decision as a setback, as the holding effectively rubber stamps service of process on foreign corporations by mail. However, the decision may not be as sweeping as it appears. The Supreme Court declined to address the issue as to whether the mailed documents must be translated into the intended recipient’s national language. The Hague Service Convention requires such a translation when service is affected through the centralized designated authority. It is unclear whether that holds true when service is affected via mail.
The issue of translation will also be decided by the Texas courts on remand. Service without the appropriate translation may still be a valid argument against proper service, even if the mail was received, read, and understood.
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