Contracting Around the Hague Service Convention
9 Pages Posted: 18 Sep 2019 Last revised: 12 Dec 2019
Date Written: September 18, 2019
When a plaintiff wishes to commence an action against a non-resident foreign defendant in an American forum, it may need to serve that defendant with process abroad. The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention) provides a mechanism for achieving that goal. Under terms of this treaty—which has been ratified by 75 nations—each signatory is required to maintain a central authority that will serve process upon local defendants at the request of U.S. plaintiffs. In practice, however, the act of serving process upon defendants in particular foreign countries may present challenges. In Russia, it is currently impossible for a U.S. plaintiff to serve process upon a defendant because that nation’s central authority refuses to accept requests from the United States. In China, the central authority sometimes takes more than a year to serve process on local defendants.
These complications raise the question of whether it is possible for private actors to contract around the Hague Service Convention so as to avoid the need to interact with central authorities in foreign nations. The California Supreme Court will soon take up this issue when it hears oral argument in Rockefeller Technology Investments (Asia) VII v. Changzhou SinoType Technology Company, Ltd. In this Essay, we first discuss how that particular case should be resolved. We explain that while it is possible to contract around the Convention, the language in the parties’ contract in SinoType failed to do so. We then discuss alternative drafting strategies that future parties might utilize in order to succeed where the parties in SinoType failed.
Keywords: Hague Service Convention, transnational civil litigation, service of process, private ordering
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