Resolving an issue that has divided state courts and the federal circuit courts, the U.S. Supreme Court ruled today in Walter Splash, Inc. v. Menon, No. 16-254, that the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (referred to colloquially as the Hague Service Convention), permits parties to serve documents by mail so long as the recipient’s country has not objected.
At issue was Article 10(a) of the Hague Service Convention, which reads: “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.” Rejecting a narrower reading, the Court held that the phrase “send judicial documents” must be read broadly to include service of initial process. The Service Convention allows for service by mail, the Court reiterated, if the recipient’s country has not objected and such service is otherwise authorized under applicable law.
Beyond resolving a previously unresolved issue, Justice Alito’s unanimous opinion for the Court is notable for another reason: unlike other opinions interpreting domestic statutes in which Justice Alito and other Justices have refused to look at “legislative history,” the Walter Splash decision looks to various “external” sources as an aid to interpretation. The French version of the Hague Service Convention must also be considered as “equally authentic,” Justice Alito wrote, and it includes the word addresser, which has been interpreted to mean “service or notice.” Justice Alito also pointed to the statements and testimony of Philip Amram, member of the U.S. delegation involved in drafting Hague Service Convention, and his article written shortly after the treaty’s passage, earlier drafts of the Convention, which stated that service by mail would be allowed. Justice Alito also pointed to the decisions of courts in other countries – Canada, the U.K., Greece, and the Court of Justice of the European Communities – that have similarly decided the issue.
For more information about the Hague Service Convention or managing litigation against a non-U.S. based entity please contact Kathleen Barnett Einhorn, Esq., Chair of the Firm’s Complex Commercial Litigation Group, at firstname.lastname@example.org or Jennifer Borek, Esq., Partner in the Complex Commercial Litigation Group, at email@example.com.