Supreme Court Settles Hague Convention Mail Service Question

In a recent decision in Water Splash Inc. v. Menon the United States Supreme Court resolved the question whether service of process by mail is permissible under the Hague Service Convention.

At issue was the language of Article 10 of the Convention, which provides that the Convention shall not interfere with the “freedom to send judicial documents, by postal channels, directly to persons abroad.”  Because Article 10 does not refer specifically to service, the question, on which a number of lower courts have disagreed, is whether the phrase “send judicial documents,” as used in Article 10, applies specifically to service of process.  The Court unanimously answered the question in the affirmative.

Recognizing that the Convention’s very point is to deal with service of judicial process, the Court stated that “it would be quite strange” if Article 10 did not deal with service of documents.  The Court stated: “In order for Article 10 to do any work, it must pertain to sending documents for the purposes of service.”  The Court’s detailed analysis of the drafting history of the Convention, the U.S. State Department’s position, as well as the positions on this issue by other signatories to the Convention, all supported the Court’s conclusion.

Importantly, the Court’s decision is not a blanket permission to serve by mail whenever one is serving under the Hague Convention.  The Court expressly did not hold that the Convention authorizes service by mail.  Rather, it held that the Convention permits service by mail on two conditions:  (a) provided the receiving state has not objected to service by mail; and (b) provided service by mail is authorized by the jurisdiction in which the action was commenced.  Since a number of U.S. states do not authorize service by mail, Article 10 would not permit such service for actions commenced in those states.