Contracting Around the Hague Service Convention

9 Pages Posted: 18 Sep 2019 Last revised: 12 Dec 2019

See all articles by John F. Coyle

John F. Coyle

University of North Carolina School of Law

Robin Effron

Brooklyn Law School

Maggie Gardner

Cornell Law School

Date Written: September 18, 2019

Abstract

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

Suggested Citation

Coyle, John F. and Effron, Robin and Gardner, Maggie, Contracting Around the Hague Service Convention (September 18, 2019). 53 UC Davis Law Review Online 53 (2019); Cornell Legal Studies Research Paper No. 19-36; Brooklyn Law School, Legal Studies Paper; UNC Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3456109

John F. Coyle (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States
919-843-9634 (Phone)

HOME PAGE: http://www.law.unc.edu/faculty/directory/coylejohnf/

Robin Effron

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

Maggie Gardner

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

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