Extending for more than 4,000 miles, the Silk Road used to interconnect a network of trade routes across the Asian continent with the Mediterranean world as well as Africa and Europe. The Silk Road once used to transport foreign goods, especially luxuries such as satin, spices, medicines, jewels, and of course, silk, from other parts of the world. Undoubtedly, "the world was getting smaller" then.

Today, the world is no longer "getting" smaller. It has "gotten" smaller. One can easily locate a wide range of foreign goods in any local commerce in the United States. Take for example, drywalls from China, artificial turf from Belgium and brake-pedal manufactured in Japan. With a plethora of foreign goods flooding the local market and becoming the subject of litigation in the U.S., it is becoming increasingly necessary for potential plaintiffs in this country to understand the ways in which a defendant residing abroad may be brought under the jurisdiction of U.S. courts.

The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 20 UST 361, TIAS No. 6638 (1969), is a multilateral treaty designed to simplify the methods for serving process abroad to assure that defendants sued in foreign jurisdictions receive actual and timely notice of suit and to facilitate proof of service abroad.

Pursuant to the Hague Convention, the primary method of service is through the Central Authority established by each member state. However, service through the Central Authority is often time-consuming and costly. Fortunately, the use of the Central Authority for service is not mandatory under the Hague Convention. Alternatively, service of process may be effectuated by mail under Article 10(a) of the Hague Convention, provided that the state of designation does not object. Article 10 provides in relevant part as follows:

Provided the State of destination does not object, the present Convention shall not interfere with—

(a) the freedom to send judicial documents, by postal channels, directly to persons abroad,

(b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,

(c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.

A full text of the Hague Convention, along with information with respect to the identities of the member states, and the status of each member's position with respect service by mail under Article 10(a) may be found at http://www.hcch.net/index_en.php?act=text.display&tid=44.

'Send' v. 'Service'

There is, however, a dispute as to whether service of process (that is service of jurisdictional papers, such as summons, as opposed to non-jurisdiction papers, such as notices of motion) may be effectuated under Article 10(a). The core question in this regard is this: Does the word "send" in Article 10(a) mean the same thing as the word "service" in paragraphs (b) and (c)?

At least in New York, the answer is different depending on which court is answering the question. Decisions in Rissew v. Yamaha Motor Co., Ltd., 129 A.D.2d 94, 515 N.Y.S.2d 352 (4th Dept. 1987), and Sardanis v. Sumitomo Corporation, 279 A.D.2d 225, 718 N.Y.S.2d 66 (1st Dept. 2001), are representative of such split in the authorities. In Rissew, the Fourth Department interpreted the word "send" to mean "service."

Likewise, the U.S. Court of Appeals for the Second Circuit held in Ackermann v. Levine, 788 F.2d 830 (2d Cir. 1986), that service of process may be effected by mail under Article 10(a). The courts in Ackermann and Rissew reasoned that since the Hague Convention as a whole does not address aspects of litigation other than service of process, Article 10(a) would be an anomaly if it related to a subject other than service.

On the other hand, in Sardanis, the First Department viewed Article 10(a) as providing a method for transmitting judicial documents abroad only after service of process has been accomplished. The court in Sardanis stated that "service" is a term of art and that it refers specifically to the process that initiates a lawsuit and secures jurisdiction.

As of date, the New York Court of Appeals has not settled this split in the authorities.

However, according to the member states of the Hague Convention, the answer to the question—whether "send" in Article 10(a) means "service"—is a resounding "Yes." In 2003, the Special Commission of the Hague Convention expressly announced that the word "send" in Article 10(a) means "service," and that service of process by mail is an appropriate method of service under the Hague Convention. The 2003 Special Commission stated in a relevant portion as follows:

1. A Special Commission ["SC"] met in The Hague form 28 October to 4 November 2003 to review the practical operation of the Hague Conventions of…15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters…The Special Commission, which was attended by 116 delegates representing 57 Member States, States party to one or more Convention under review, and observers, unanimously approved the following conclusions and recommendations:

* * *

Alternative channels of transmission

55. The SC reaffirmed its clear understanding that the term "send" in Article 10(a) is to be understood as meaning "service" through postal channels.

56. The SC considered the increasing use of private courier services for the expeditious transmission of documents in a variety of business settings and heard reports that such couriers have been used to serve process under Article 10(a) of the Convention. In light of that, the SC concluded that for the purposes of Article 10(a) the use of a private courier was the equivalent of the postal channel."

"Conclusions and Recommendations Of The Special Commission On The Practical Operation of the Hague Apostille, Evidence and Service Conventions" (Oct. 28 to Nov. 4, 2003), ¶¶1, 55-56.

Moreover, the Special Commission expressly criticized the line of interpretation such as that represented by Sardanis, as being contrary to the meaning and purpose of the Hague Convention. "The Practical Handbook on the Operation of the Hague Convention of 15 November 1965 on the Service Abroad Of Judicial And Extrajudicial Documents In Civil Or Commercial Matters," 2nd ed. (1992) (the Handbook) provides in relevant part:

The view of some of the courts in the United States, as reflected in the decisions cited above (note 24) contradicts what seems to have been the implicit understanding of the delegates at the 1977 Special Commission meeting, and indeed of the legal literature on the Convention and its predecessor treaties.

* * *

The line of cases in the United States district courts mentioned above and the decision of the U.S. Court of Appeals for the Eighth Circuit in Bankston v. Toyota Motor Co. therefore appear to go against the understanding of the French version of Article 10(a) of the 1965 Convention as it had existed throughout the entire history of the predecessor conventions from 1894 through 1954 (the 1954 Convention is currently in force in 30 countries). . . . This theory is based on a textual analysis and practical considerations, which are significantly countered by the historical interpretation of the same terminology.

The Handbook, pgs. 44-45.

Similar to the 2003 Special Commission, the U.S. State Department has likewise stated that it is "incorrect" to suggest that the Hague Convention prohibits as a method of service the sending of a copy of the summons and complaint by registered mail to a defendant in a foreign country. "Letter from Alan J. Kreczko, U.S. Dept. of State Deputy Legal Advisor, to the Administrative Office of the U.S. Courts" (March 14, 1991), quoted in U.S. Department of State opinion regarding the Bankston Case, 30 I.L.M. 260, 261 (1991).

Indeed, the textual distinction between "send" and "serve" in Article 10 merits little weight, if at all, given that the term "service" is not consistently used in the body of the Hague Convention to refer to the service of jurisdictional documents. For example, in both the Preamble and in Article 21 of the Hague Convention, service of jurisdictional documents is referred to as "transmissions" rather than "service." See Volkswagenwerk v. Schlunk, 486 U.S. 694, 707 (1988) (referring to the interchangeable use of the term "transmissions" and "service of process").

Additionally, several members of the Hague Convention have filed statements relating to Article 10(a) demonstrating that they understood the word "send" to be synonymous in this context with "service." See R. Griggs Groups Ltd. v. Filanto Spa, 920 F.Supp. 1100, 1106 (D.N.V. 1996) (Canada and Czechoslovakia referred to Article 10 when declaring whether service might be permitted by mail); Low v. Bayerische Motoren Weke, A.G., 88 A.D.2d 504, 449 N.Y.S.2d 733 (1st Dept. 1982) (Germany objected to service by registered mail under Article 10).

And finally, the Handbook explains that the interchangeable use of the terms "service," "transmissions" and "send" in the Hague Convention arises out of translation of the original text of the Hague Convention from French to English, and that it was not the intent of the Hague Convention to exclude service of process through mail. The Handbook explains:

The 1965 Convention was the first text prepared at the Hague Conference on private international law, having an official English version, which dealt with service of documents abroad. Nonetheless, the verb 'adresser' in the French version of Article 10(a) of the 1965 Convention, which is rendered in the English version by the verb 'send', had been employed in substantially the same context in the three predecessor treaties drafted at The Hague.

The Handbook, pg. 44.

New York Case Law

Since the publication of the 2003 Special Commission's report, the New York courts are beginning to properly interpret the effect of Article 10(a) as it was intended by the Hague Convention, i.e., to permit service of process by mail. See Gouiran Family Trust v. Gouiran, 40 A.D.3d 400, 836 N.Y.S.2d 566 (1st Dept. 2007) (service of process by registered mail to a defendant in France is permitted under the Hague Convention); Fernandez v. Univan Leasing, 15 A.D.3d 343, 790 N.Y.S.2d 155 (2d Dept. 2005) ("[A]rticle 10 of the Hague Convention permits service of process by mail directly to the person abroad provided that the State of designation does not object in its ratification to such service"); Keesler v. Fuji Heavy Industries, Ltd., 862 N.Y.S.2d 815, 19 Misc.3d 1112A (Sup. Ct. Westchester Co. 2008) (service of process by registered mail to a defendant in Japan was proper under Article 10(a)); Sayeduzzaman v. Bertha, Index No. 10496/2007 (Sup. Ct. Queens Co. Oct. 7, 2008) ("Inasmuch as Article 10 of the Hague Convention permits service of process through the postal channels, the service of the defendants by registered mail return receipt was proper").

Also see, United National Retirement Fund v. Ariela, Inc., 643 F.Supp.2d 328 (SDNY 2008) ("As Mexico has made a declaration regarding Article 10 which does not expressly prohibit or object to service via postal channels, this Court finds that [service via international registered mail] is proper under Article 10(a) of the Hague Convention").

It is unclear, however, whether these recent decisions allowing for service of process by mail under the Hague Convention are driven by the guiding material published by the Hague Convention with respect to Article 10(a). So, to mail or not to mail? Certainly, the Hague Convention says "mail!" We will have to wait and see whether the New York Court of Appeals agrees.

Mark A. Canizio is a partner at Duane Morris in New York. Jessica Y. Singh is an associate at the firm.

Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.