February 16, 2018 Articles

Clarity or Confusion? International Service of Process

Yesenia E. Cárdenas-Colenso and Hunter B. Oliver

During its last term, the U.S. Supreme Court sought to clarify the scope of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (Convention) as it pertains to service of process by mail. For international defendants, particularly those sued in jurisdictions throughout the United States, this was a much-anticipated opinion. For years, whether an international defendant was properly served with process depended largely on the jurisdiction in which it was served. If a defendant was sued in the Second, Fourth, Seventh, or Ninth Circuits, service of process by mail would likely be considered proper. If, however, a defendant was sued in the Fifth or Eighth Circuits, that defendant had a viable argument for quashing such service as invalid.

In Water Splash, Inc. v. Menon, ––– U.S. ––––, 137 S. Ct. 1504 (2017), the Court unanimously held that article 10(a) of the Convention indeed permits service by mail. However, writing for the Court, Justice Alito specifically warned that the Court’s decision did “not mean that the Convention affirmatively authorizes service by mail.” In other words, while the Court’s holding aligns with the interpretations of numerous special commissions, the U.S. State Department, and other foreign courts, the validity of an attempted service of process by mail remains an issue necessitating further analysis.

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