The U.S. Supreme Court Loosens Restrictions on International Service in Civil Disputes Rules
In Water Splash, Inc. v. Menon, a unanimous Supreme Court resolved a long-standing circuit split by holding that the Hague Service Convention (the “Convention”)
Courts lack the power to assert personal jurisdiction over a defendant unless the procedural requirement of effective service of process is satisfied.
The Supreme Court granted certiorari in Water Splash to resolve a circuit split between the U.S. Courts of Appeals for the Fifth and Eighth Circuits on one hand, and the Second and Ninth Circuits on the other.
Water Splash, Inc. (“Water Splash”) sued its former employee, Tara Menon (“Menon”), in a Texas state court. Because Menon resided in Canada, Water Splash (as required by the Texas civil procedure rules) sought and obtained the court’s permission to effect service on Menon by mail.
The Supreme Court’s Interpretation of Article 10(a) of the Hague Service Convention
The Supreme Court approached the issue by deploying the traditional methods of treaty interpretation. The Court first observed that the text and structure of the Convention strongly supported the interpretation that the Convention permitted service by mail. Menon’s primary contention to the contrary was that because Article 10(a) did not include the word “service” or any of its variants, the phrase “to send judicial documents” must mean something other than the “service of judicial documents,” which is included in Articles 10(b) and (c) of the Convention.
The Court, however, noted that the scope and structure of the Convention was limited to the service of judicial documents. Article 1 of the Convention states that the Convention “shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” In Volkswagenwerk Aktiengesellschaft v. Schlunk, the Court interpreted Article 1 as making clear that the Convention only applied “when there is both transmission of a document from the requesting state to the receiving state, and service upon the person for whom it is intended.”
The Supreme Court next addressed Menon’s argument that no superfluity resulted because Article 10(a) does not pertain to the service of process and pertains only to the service of post-answer judicial documents. The Court found this interpretation implausible. The Court noted that other sections of the Convention refer to particular documents, like a writ of summons, whereas Article 10(a) refers broadly to “judicial documents.” Thus, the Court concluded that had the framers of the Convention intended Article 10(a) to be applied narrowly, they would have included language limiting Article 10(a) to a particular subset of judicial documents. Menon’s argument, by contrast, assumed the phrase “judicial documents” refer only to a particular subset of judicial documents—a position the Court found unconvincing.
After concluding that the structure of the Convention strongly suggested that Article 10(a) refers to the service of process, the Court turned to Menon’s argument that, unlike other provisions of the Convention, Article 10(a) does not include the word “service.” The Court concluded that Menon’s textual argument “fail[ed] on its own terms.”
To resolve this ambiguity, the Court turned to three traditional extra-textual sources: the treaty’s drafting history, the views of the federal Executive, and the views of other signatories to help interpret the treaty.
The Supreme Court then remanded the case so that the Texas Court of Appeals could consider whether the Texas law authorizes service by mail used by Water Splash—a question the lower court did not reach since it concluded that the Convention prohibited such service outright.
The Supreme Court in Water Splash resolved the question that has long divided federal courts, and held that the Hague Service Convention permitted service by mail. In reaching this decision, the Court employed the traditional tools of treaty interpretation established by its precedents. These interpretative methods are similar—although not identical—to the interpretive rules prescribed by the Vienna Convention on the Law of Treaties,
In addition to examining the text and the structure of the Convention, the Supreme Court paid particular attention—as it had in prior treaty interpretation cases—to the contemporaneous drafting history (as demonstrated by various statements of the members of the U.S. delegation that negotiated the Convention), the constituent position of the federal Executive, and the practical construction of the treaty adopted by other countries signatories. This willingness to consider these extra-textual sources in the context of treaty interpretation stands in contrast to the skepticism expressed by many members of the Supreme Court about looking to similar extra-textual sources (such as legislative history) when construing a statute. That is because the Supreme Court generally views a treaty as a contract, although between different countries, and approaches the interpretive task accordingly.
Importantly, the Supreme Court noted that, although the Convention permits service by mail, that service is subject to two requirements: First, the receiving state must not object to service by mail and, second, service by mail must be authorized under otherwise-applicable laws. Thus, the Convention simply does not prohibit service by mail, but does not answer the question of whether a company seeking to effect service internationally may rely on that method. Because proper service of process is required for a court’s personal jurisdiction over a defendant, companies seeking to serve defendants residing internationally should therefore make sure to employ these additional steps:
Consult local rules and the rules of the receiving state to determine the appropriate method of service, including whether these rules authorize service by mail and whether a court’s permission to effect service via that method is required;
If local rules require it, obtain permission from the local court before serving a defendant through international mail; and
Determine whether service by mail is allowed by the receiving state, including whether the receiving state imposes any conditions on such service.