Can The Requirements of the Hague Service Convention Be Waived Via Contract?

The answer is "maybe."

What are the requirements of the Hague Service Convention?

The HSC is an international treaty created in the 1960s intended to make cross-border service of process more uniform and standardized. “Service of process is, of course, required for a court to have jurisdiction over the litigants and is the principal method of giving notice to a defendant that they are being sued. What is being served are copies of court papers — like a Complaint, summons, etc. — from the plaintiff in one country to parties in another country. In general, the HSC allows nations to authorize three types of service. Under Article V, service of process is done by sending the relevant papers to the foreign nation’s Central Authority. The Central Authority then delivers the court papers. Under Article X of the HSC, service may be accomplished by mail or by a non-judicial, non-governmental personal process server. Many nations have limited international service of process to the Article V procedures.

legal paperwork contract

Can requirements be waived?

So, according to a couple of recent cases, the question of whether the requirements of the HSC can be waived depends on how the contract is written. The first case is the California Supreme Court’s decision in Rockefeller Technology Investments (Asia) VII v. Changzhou Sinotype Technology Co., Ltd., 9 Cal.5th 125 (2020).

The California Supreme Court stated the two purposes of service of process we noted above. The court held that the contract at issue must accomplish waiver or acceptance of both aspects of service of process. In that case. the contract stated that the “… Parties hereby submit to the jurisdiction of the Federal and State Courts in California…” That provision was held sufficient to give the California courts (and arbitration panels) personal jurisdiction over the parties.

With respect to notice, the contract at issue specifically provided for notice to be provided at the addresses set forth in the contract via Federal Express or a similar courier. On a very technical point, the California court held that this notice did NOT constitute the “transmittal” judicial documents for service abroad within the meaning of the HSC. As such, the HSC procedures were not triggered even though the foreign nation in question — China — does not permit international service of process via mail. The court concluded that the parties had agreed to the jurisdiction of the California courts and that the parties had agreed to an informal notice of the proceedings via overnight delivery. As such, meeting the formal requirements of the HSC was not required.

By contrast, in a New York federal case, it was held that there was NO valid waiver of the requirements of the HSC. See Cawthon v. Zhousunyijie, Case No. 22-cv-3021 (LJL). (S.D.N.Y. 2023). In that case, the defendant filed a copyright infringement case against a Chinese national who resided in China. The relevant language from the contract is this:

  • “(i) … I am located outside of the United States and I consent to the jurisdiction of any judicial district in which Amazon may be found.
  • (ii) I agree to accept service of process from the person who provided notification … [hereunder]…”

The original international service of process was accomplished by sending the copyright infringement Complaint (and other documents) as attachments to an email sent to an email address provided by the defendant. Ultimately, the New York federal court held that email service was not valid service of process and that the requirements of the HSC must be met. The court reasoned that the phrase “accept service of process” meant that some service of process must be accomplished. In other words, there was no waiver of service (or of notice) even though the parties had submitted to the jurisdiction of U.S. courts. Second, since the court papers were attached to the email, there WAS a transmittal of court papers across international borders. Because China does not allow international service of process via mail (or email), the attempted service of process via email was deemed a violation of the HSC.

Let Ancillary Legal Handle Your International Service of Process

For more information, contact Ancillary Legal at (404) 459-8006. We have the deep experience, staffing, and resources to help you satisfy the requirements for proper and valid international service of process. We focus on litigation support domestically and internationally and can ensure that your time can stay focused on the substance of your matter and not procedural technicalities. Contact us today to find out how we can help you.

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