Resolving a long-standing disagreement among the U.S. Circuit Courts of Appeal, the U.S. Supreme Court unanimously held that service-by-mail of a complaint on a foreign corporation can be effective under the Hague Service Convention to drag that company into litigation in a U.S. court. Water Splash, Inc. v. Menon, No. 10-254, 2017 WL 2216933 (May 22, 2017). Rejecting the argument that service-by-mail is not permitted under the Hague Service Convention, the Court found that there are two conditions that must be satisfied to make the service-by-mail effective: First, the court where the lawsuit is venued must permit service-by-mail; and second, the country of the recipient of service must be a signatory to the Hague Service Convention and not have objected to service-by-mail. If both conditions are satisfied, then the service is effective, and it’s litigation game on.

The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (the "Hague Service Convention") provides for a variety of ways to effect service, e.g., by diplomatic or consular agents. See: https://travel.state.gov/content/travel/en/legal-considerations/judicial/service-of-process.html. The Water Splash case, however, addressed only service-by-mail.

The issue that had split the circuits was whether the language in the Hague Service Convention Section 10(a) that states "send judicial papers" should be construed to include "process." The principal argument defendant raised was that the word "process" appears in Sections 10(b) and 10(c), but not in Section 10(a), and therefore process was not included. The Court analyzed the language and context of the Hague Service Convention and concluded that it is included. The Court also found that the record established that Canada, as the country of the recipient of service, had not objected to service-by-mail, but did not establish whether Texas law permits serving process by mail. That the Texas state court judge granted Water Splash permission to serve defendant Menon in Canada by mail was apparently not sufficient. The Court thus remanded the case to the Texas state court to determine the Texas law service issue.

More complete information on the operation of the Hague Service Convention can be found in the Service Section of the website of the Hague Conference on Private International Law. There you can find the current list of countries that are party to the Hague Service Convention; each country’s reservations, declarations, and notifications relating to the operation of the Convention; the date the Convention entered into force for each country; and designated foreign central authorities. Specifically, click on "Central and other authorities," find the country of interest, click on its "Central Authority & practical information" link, and look for any objections under Section 10(a). Although it would be prudent to check for objections before attempting service-by-mail, at the time of this writing the following countries have not objected: Canada, France, Japan, Italy, and the United Kingdom. And the following countries have objected: Australia, Bulgaria, China, Czech Republic, Germany, Hungary, Kuwait, Latvia, Russia, Slovenia, and Turkey.

Interestingly, Rule 4(f)(2)(c) of the U.S. Federal Rules of Civil Procedure appears to satisfy the first condition if a signed receipt is obtained. Otherwise, we will have to see how this clarification of the availability of service-by-mail on persons outside the United States is implemented, as future case law will determine.