Is international service of process by mail permitted under the Hague Service Convention?
In this case the Supreme Court will determine whether the Hague Service Convention permits parties to serve foreign defendants with process through the mail. Water Splash argues that Article 10(a) and surrounding provisions of the Hague Service Convention indicate that the term “send” was intended to include service of process by mail. Water Splash also asserts that sources beyond the text of Hague Service Convention portray this same intention. In opposition, Menon argues that the Hague Service Convention text unambiguously indicates that the word “send” does not include service of process, and the Court should not look to external sources where the text of the treaty is unambiguous.
Questions as Framed for the Court by the Parties
In 1965, the member states of the Hague Conference on Private International Law, including the United States, adopted a treaty known as the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”). Article 10(a) of the Hague Service Convention states:
“Provided the State of destination does not object, the present Convention shall not interfere with — (a) the freedom to send judicial documents, by postal channels, directly to persons abroad[.]”
The question presented is:
Does the Hague Service Convention authorize service of process by mail?
Water Splash, Inc. is a Delaware corporation with its principal place of business in Champlain, New York. Water Splash sued Tara Menon, a citizen of Canada residing in Quebec, in Galveston, Texas for unfair competition, conversion, tortious interference with business relations, and conspiracy. Water Splash alleged that Menon began working as a sales manager for South Pool, a competitor of Water Splash, while still working for Water Splash as its regional sales representative. In 2012, Water Splash discovered that Menon had submitted some of its designs and drawings, including “trade names and product design information belonging to Water Splash,” as a sales manager for South Pool in a bid to Galveston for the construction of “splash pads” at two parks. Water Splash had not provided Menon with permission to submit these bids for on South Pool’s behalf.
Because Menon resided in a foreign country, Water Splash filed a motion for alternative service of process pursuant to Texas Rule of Civil Procedure 108(a). The trial court granted Water Splash’s motion requesting permission to serve Menon by “first class mail, certified mail, and Federal Express to Menon’s address” and “by email to each of Menon’s known email addresses.”
When Menon failed to file an answer or appear, Water Splash moved for default judgment alleging that it had “diligently” sought service of process by sending a letter to Menon’s Quebec address by certified mail and first class mail as well as requesting a return receipt. Furthermore, Water Splash alleged that Menon’s emails proved that she knew the suit existed. The trial court granted Water Splash’s motion for default judgment against Menon and also awarded actual and punitive damages and attorneys’ fees.
Menon sought to set aside the default judgment and filed a motion for new trial, arguing that she was not served with process. Menon asserted that Water Splash’s service of process was not sufficient under Rule 108(a)’s requirement that service in a foreign country must be “pursuant to the terms of any treaty or convention.” Menon argued that under the Hague Service Convention, of which the United States is a party, Water Splash would have to go through a “Central Authority” that acts as an agent to handle various matters regarding requests for service of process, instead of directly sending any judicial documents to the persons abroad.
Article 10(a) of the Hague Service Convention states that the Convention does not interfere with “the freedom to send judicial documents, by postal channels, directly to persons abroad.” Menon argues that because Article 10(a) uses the word “send” rather than “service”—which is found in other sections of the Convention—the drafters meant to exclude only the “sending” of judicial documents and not “service.” As such, Menon argued that Water Splash’s alternative service of process by mail, which thereby bypasses the Central Authority, was unacceptable under provisions of the Hague Service Convention.
Water Splash responds by arguing that service of process by mail is an acceptable form of alternative service.Water Splash argues that Article 10(a)’s exclusion applies and thus allows service of process by mail so long as the state of destination does not object, which Canada does not.The trial court denied Menon’s motion for new trial. The Fourteenth Circuit, however, overturned the trial court’s decision and concluded that the provisions of the Hague Service Convention does not allow for service of process by mail or email.
Water Splash appealed to the Supreme Court, which granted certiorari on December 2, 2016.
TEXTUAL INTERPRETATION OF ARTICLE 10(a) OF THE HAGUE SERVICE CONVENTION
Water Splash, Inc. (“Water Splash”) argues that the word “send” in Article 10(a) encompasses service of process, including service of process by mail. In reaching this conclusion, Water Splash argues that the Court should begin by looking at the actual text of the Convention, including provisions outside of the Article at issue. Water Splash first contends that the preamble of the Hague Service Convention (“the Convention”) limits the purpose of the Convention to issues surrounding foreign service of process. Thus, it asserts provisions related to anything other than service would be outside the scope of the Convention. Furthermore, Water Splash argues that even though the Convention uses the words “serve” or “service” throughout the text and uses the verb “send” only in Article 10(a), the Court should not presume that this change was intentional. Rather, Water Splash contends that since evidence of “scope and purpose” limits the Convention to issues involving service, the Court should not find this change in language to indicate an intent to exclude service of process from Article 10(a).
As additional textual support for its interpretation, Water Splash points to the interaction between Article 10 and Article 21: Article 10 allows a signatory nation to object to the transmission of “judicial documents, by postal channels, directly to the persons abroad,” and Article 21 provides a process through which a signatory nation may make such an objection. Therefore, Water Splash contends that because a signatory nation would have no reason or authority to object to mailing of judicial documents not related to service, Article 10(a)’s use of the word “send” must include service of process.
In opposition, Menon argues that the word “send” does not include service of process. Menon supports this argument by first asserting that the Convention is unambiguous. Menon argues that, according to the presumption of statutory interpretation that a change in repeated language signals a change in meaning, Article 10(a)’s change of text from “service” to “send” indicates the drafters intended a different meaning. Furthermore, Menon rebuts the argument that this change in language was the result of a drafting mistake by indicating that it would make sense to include the related ideas of service of process and service of additional judicial documents within the same article.
Menon additionally argues that the surrounding provisions support her reading of Article 10(a). She asserts that the preamble, rather than limiting the Convention solely to service of process, actually encompasses a broader range of judicial documents. Menon argues that the preamble expresses an intention to coordinate governmental involvement, not to eliminate such involvement through the use of ordinary mail. Menon responds to Water Splash’s argument concerning Articles 10 and 21 by arguing that signatory nations do have the authority to object to the use of mail for non-service documents, which would result in the “non-enforcement” of any documents sent through the mail.
THE USE OF EXTRA-TEXTUAL MATERIALS
Water Splash argues that in interpreting the meaning of Article 10(a), the Court should also consider materials outside of the Convention’s text. In analyzing these outside materials, Water Splash asserts that reports from the Convention’s drafting indicate that the drafters did not intend for it to apply to any documents other than service of process. Water Splash contends that in addition to the drafters, the signatories to the Convention also believed Article 10(a) included service of process. In support of this argument, Water Splash argues that the historical treaties that preceded the Convention make clear that the drafters intended service to be included within the provision. Water Splash also asserts that the external “contemporaneous statements” of those who attended the conference indicate the intention to include service of process within the word “send.” For example, Water Splash argues that a report by the Executive Branch representing that Article 10(a) includes service of process by mail is entitled to “great weight.”
Additionally, Water Splash argues that the Court should consider external sources created after the drafting and signing of the Convention when interpreting the Article. Water Splash highlights a letter from the Executive Branch indicating disapproval of a federal case that interpreted this provision as excluding service by mail. Water Splash argues that the Court may give the opinions of other countries who signed the Convention “considerable weight,” and lists foreign reports and court decisions indicating that this provision includes service of process. Water Splash asserts that scholarship in this area also argues in favor of including service of process within the purview of Article 10(a), and that the Court should consider this scholarship in making its decision.
On the other hand, Menon argues that courts should not look beyond the text of a treaty if the language is unambiguous, as it is here. Menon asserts that a “text-centric methodology” based upon the Constitution’s allocation of treaty responsibilities among the three branches of government is required to interpret the treaty. More specifically, the Constitution mandates that the President negotiate the treaty; the legislature ratify and implement the treaty; and the judicial branch interpret the treaty. Consequently, Menon contends that it is the politically elected actors of the executive and legislative branch who are vested with law-making power. Thus, Menon asserts that the Court should focus on what these actors read and ratified in the actual text, rather than attempting to determine the subjective intent of the drafters who did not have constitutional law-making power.
Menon also argues that when the text is unambiguous, the Court needs permission from the legislative branch to use external sources to guide interpretation. She asserts that using these sources, or “customary international law,” does not comport with the constitutional requirement that the legislative branch institute all federal law. To further support this point, Menon analogizes the impermissible use of “customary international law” to the condemnation of “general law” in Erie. She asserts that just as Erie instructed courts to not consider natural law in interpreting laws, the Court should not consider customary international law in interpreting the treaty.
Finally, Menon specifically addresses two of the external sources proposed by Water Splash. First, Menon argues that the Court should not give deference to the views of the Executive Branch just because a treaty is at issue. Rather, she asserts that the view of the Executive Branch should only be considered when its involvement gives it “special insight” in the matter, which is not the case for this unambiguous text. Second, Menon specifically disagrees with Water Splash that European external sources should be considered, as European legal systems often approach issues of interpretation differently than American courts.
WHETHER DIRECT MAIL SERVICE PROVIDES SUFFICIENT NOTICE AND FAIRNESS
Menon argues that service of process by mail is not conducive to fairness and would incentivize forum signatory nations to adopt practices that do not notify foreign defendants that they are being served.For example, a forum nation could allow effective service of process where the mail can be left in the defendant’s mailbox, even if it is not likely that the service of process would ever reach the defendant. She cautions that this practice could encourage United States courts to enter judgments against foreign defendants who do not have knowledge of the underlying proceedings. Such failure to comport with due process, she argues, was one of the concerns that the Hague Convention was designed to protect against.
The United States, in support of Water Splash, frames this as a matter of whether defendants will have enough time to defend the suit and argues that there is no basis to show that postal channels are less likely to give foreign defendants notice of a suit.Moreover, the United States argues that using diplomatic channels to provide service of process, as proposed by Menon, is very time-consuming, whereas postal channels are not necessarily slow.
WHETHER DIRECT MAIL SERVICE IS EFFICIENT
The United States, in support of Water Splash, argues that if service of process is not allowed through mail, cross-border service of process would become more “burdensome” and thus detrimentally affect cross-border litigation. The United States argues that such an effect would go against the Convention’s express purpose of “simplifying and expediting” service abroad. For one, it notes that disallowing service of process through mail would inevitably cause a higher number of requests for service submitted to Central Authorities. The United States points out that many of the countries that allow for service of process by mail say that service through their Central Authorities takes weeks or months. Similarly, there is a level of uncertainty and delay for litigants using Central Authorities because some other countries do not indicate how long service through their Central Authorities take. Moreover, the United States point to the comparatively higher costs associated with going through the Central Authority, which in the United States will involve a $95 fee. Consequently, the United States argues, the execution time and cost associated with sending requests through foreign Central Authorities, or with the other methods ascribed in the Convention, would decrease efficiency and raise costs for services abroad. As such, the United States argues, service through mail will often be significantly faster than those proposed by the Convention.
Menon rebuts this argument by saying that the Convention specifically provides for the creation of a system that is cost-efficient and fast. To argue otherwise, Menon says, is “an affront to the system itself.” Menon points out that service through direct mail is a way for litigants to bypass the system, thereby becoming a “system to avoid the system.”
WHETHER DIRECT MAIL SERVICE IS SUFFICIENTLY RELIABLE
One concern raised by the Court of Appeals is that mail is too uncertain for service of process, particularly when the Convention’s drafters provided other methods of service, including diplomatic channels and Central Authorities.
In opposition, the United States, in support of Water Splash, argues that courts should not second-guess the reliability of service by mail in foreign countries. It contends that there is no basis to think mail is too unreliable when compared with Central Authorities, especially since mail is a commonly used means to transmit documents initially to the Central Authority abroad and then again to return the certificate of service. Moreover, the United States points to Article 15 of the Convention, which provides protections for defendants, including proof that the document was served as required by the receiving state; the document was actually delivered; and service or delivery was done in time.
Menon, however, contends that such an argument is incongruous. She argues that an argument cannot be made that both frames the system set up by the Convention as efficient and fast—such as by providing protections to ensure adequate service is met—and, at the same time, be cumbersome and costly when it comes to effectuating service.
- Michelle Casady, Justices to Decide If Hague Treaty Allows Service By Mail, Law360 (Dec. 2, 2017).