Parties in cross-border litigation in US courts often ask whether legal papers can be served by mail on parties located outside of the United States, or whether service must be made through a Central Authority or other official channel under the Hague Service Convention. The US Supreme Court’s decision on Monday in Water Splash, Inc. v. Menon clarifies US law on this question.

The Court held that, while the Convention does not affirmatively authorize service by mail, service by mail is still permissible when the Convention applies, if two conditions are met:

  • “[S]econd, service by mail is authorized under otherwise-applicable law.”

The issue before the Court in Menon arose after a Canadian defendant failed to respond to a legal complaint mailed to her by a Texas plaintiff. While a number of US courts have held that service by mail is valid under Article 10(a) of the Hague Service Convention, others have held that while Article 10(a) permits the “send[ing]” of documents through “postal channels,” it does not permit “service” through postal channels.

The Court’s decision, which resolves the meaning of Article 10(a) in all US proceedings, should simplify service of process in US cross-border litigation. However, the Court’s conditions mean that service will still involve more than just dropping legal papers in a post box.

US litigants planning to make service by mail on a non-US party should consider the following questions:

  • First, has the non-US jurisdiction objected to service by mail? When ratifying the Hague Service Convention, some jurisdictions rejected Article 10 in full or in part. When a jurisdiction has objected to Article 10(a), the Court’s decision in Menon appears to prohibit service by mail in connection with a US proceeding.
  • Second, does the US jurisdiction affirmatively authorize service by mail under the circumstances of the case? US jurisdictions generally authorize service by mail, but many prohibit it under special circumstances (e.g., service on a minor). Some jurisdictions also require a litigant to include other documents when service is made by mail (e.g., a return receipt). When the law of a non-US jurisdiction does not specifically permit (but also does not prohibit) service by mail, federal courts generally require that the documents be mailed by a court clerk.
  • Third, are additional steps required by the law of the non-US jurisdiction under the circumstances? The Court’s decision in Menon did not address the need to comply with the rules of non-US jurisdictions that do allow service by mail. Nevertheless, litigants who do not comply with those rules proceed at significant risk. Many non-US jurisdictions imposed conditions on service by mail when ratifying the Convention. US courts applying Menon may treat those as “objections” to non-compliant service. Similarly, many US jurisdictions also require that service by mail be authorized, or at least not prohibited, by the law of the non-US jurisdiction.

While the Court’s decision in Menon may not significantly alter the rules of the game regarding service by mail in some US jurisdictions (e.g., New York), it will change the rules in others. Given the steps involved in making service via a Central Authority or official channels under the Hague Service Convention, the Menon decision may spark interest in postal channels as an efficient alternative for litigants in US cross-border proceedings.