Understanding the Hague Service Convention: Is Mail Service Permitted? | Practical Law

Understanding the Hague Service Convention: Is Mail Service Permitted? | Practical Law

This Update outlines the general analytical framework for determining whether the Hague Service Convention provides for international service of process by mail.

Understanding the Hague Service Convention: Is Mail Service Permitted?

Practical Law Legal Update 5-533-8065 (Approx. 3 pages)

Understanding the Hague Service Convention: Is Mail Service Permitted?

by Practical Law Litigation
Published on 16 Jul 2013 • USA (National/Federal)
This Update outlines the general analytical framework for determining whether the Hague Service Convention provides for international service of process by mail.
One of the most hotly contested issues in international litigation is whether legal process may be served by mail under Article 10(a) of the Hague Service Convention. The answer is determined not only by the Convention itself, but also US law and the laws of the nation in which service is to be made (destination state). This Update outlines the general analytical framework for determining whether the Convention provides for mail service.
  • Step 1. Check whether the case is governed by the Hague Service Convention. The Convention's procedures generally control service of US process in other Hague Convention member states. The Hague Conference on Private International Law's website lists the Convention's member states. However, the Convention's procedures are not triggered if:
    • the case is not a civil or commercial matter;
    • the defendant's address is unknown; or
    • the defendant can be served inside the US.
  • Step 2. If the Convention's procedures apply, check whether the destination state has objected to mail service under Article 10(a) of the Convention. If it has, service by international mail is not an option. The Hague Conference on Private International Law's website lists whether its member states object to mail service under Article 10(a).
  • Step 3. If the destination state has not objected to mail service, check whether the case law for the relevant US jurisdiction interprets Article 10(a) as permitting initial process (as opposed to other documents) to be served by mail. US federal courts are split on this issue. For example:
    • the US Courts of Appeals for the Second and Ninth Circuits have held that the Convention permits service of process by mail; and
    • the US Courts of Appeals for the Fifth and Eighth Circuits have held that the Convention does not permit service of process by mail.
  • Step 4. If the destination state has not lodged an objection and the forum's case law permits service of process by mail under Article 10(a), mail service in federal cases may be made under:
    • FRCP 4(f)(2)(A), as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction;
    • FRCP 4(f)(2)(C)(ii), by using any form of mail that the court clerk addresses and sends to the individual and that requires a signed receipt, unless prohibited by the foreign country's law; or
    • FRCP 4(f)(3), as ordered by the court so long as the service method used is not prohibited by international agreement.
For a detailed analysis of service under the Convention, see Practice Note, Serving Process Under the Hague Service Convention for US Proceedings.