Can private parties contract out of the Hague Service Convention?

Abstract

Treaties are concluded by States but often impose rights and obligations directly upon private parties. Can private parties contract out of a treaty including States’ oppositions without explicit permissions granted by the treaty? The complexity between party autonomy and State sovereignty is reflected in recent cases and unsettled debates regarding the Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters of November 15, 1965 (“HSC”). The HSC contains a large number of oppositions made by 65 Contracting States including China, Germany, India, and Singapore. Combining public and private international law, this paper aims to explore the correlative relationship between party autonomy and State sovereignty in applying the HSC.

Keywords:

• party autonomy
• State sovereignty
• service
• opposition
• reservations
• Hague Service Convention
• declaration

A. Introduction

The Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters of November 15, 1965 (the “HSC”) has created the largest multilateral mechanism of international service of process amongst 84 States.¹ This mechanism is mainly constituted by “Central Authorities” established by each Contracting State to serve judicial or non-judicial foreign documents in civil or commercial litigations.²

The HSC also allows other methods of service, such as service conducted through diplomatic or consular agents of the State of origin (Article 8),³ postal channels (Article 10 (a)),⁴ and judicial officers or other competent persons (Article 10 (b) and (c)) (collectively “non-Central Authorities Methods of Service”).⁵

Although a considerable amount of scholarly work has been published on the HSC,⁶ it has not resolved a new debate on whether private parties can contract out of the HSC when a defendant is located in a foreign HSC Contracting State. “Private parties contracting out of the HSC” refers to the practice where private parties agree to waive service (or formal service) and replace it with cross-border notice (or informal service) which aims to inform a foreign-based defendant of pending litigation in the forum.⁷ It is crucial that courts should be careful not to authorise private parties to circumvent the HSC when there are judicial documents transmitted to a Contracting State.⁸ This is because the HSC Contracting States have international obligations to comply with the Convention. For example, in Plastic Molded Techs., Inc. v. Bayerische Motoren Werke Aktiengesellchaft, the United States District Court for the Eastern District of Michigan was unpersuaded by the plaintiff's reliance on the License Agreement that the defendant had waived service, holding that service must be conducted according to the HSC to the defendant in Germany.⁹

There is a line of cases in the US and other countries where courts increasingly tend to allow private parties to contract out of the HSC.¹⁰ For example, in Camphor Technologies, Inc. v. BIOFER, S.P.A, parties concluded an exclusive distributorship agreement including a notice provision.¹¹ The plaintiff served process on the defendant in Italy by registered mail as outlined in the notice provision. The defendant moved to dismiss on the ground that the plaintiff did not serve process according to the HSC. The plaintiff countered that the notice provision did not violate the HSC in spirit or form, because Italy has not objected to service by mail. The Superior Court of Connecticut held that the plaintiff’s argument that the agreement between the parties governed the requirements of service of process is unpersuasive because service of process to commence an action in a court did not fall within the notice provision.¹² Nevertheless, in footnote 4 of the judgment, the court hinted that private parties could contract out of the HSC.¹³

In Alfred E. Mann Living Trust v ETIRC Aviation S.a.r.l., (“Alfred”) the Supreme Court of New York County saw no reason why private parties could not contract out of the HSC.¹⁴ The plaintiff was allowed to serve the defendant guarantor residing in the Netherlands by email in accordance with the provisions of their contract. The court observed that “precluding a contractual waiver of the service provisions of the Hague Convention would allow people to unilaterally negate their clear and unambiguous written waivers of service by the simple expedient of leaving the country”.¹⁵ Notably, the Netherlands has not made reservations on Article 10(a) of the Convention regarding sending documents by post.¹⁶

In Rockefeller Tech. Invs. (Asia) VII v. Changzhou SinoType Tech. Co., Ltd (“Rockefeller”), the California Supreme Court (the highest court in California) concluded that the transmission of judicial documents by Federal Express in China was valid because the parties allegedly agreed to replace service with notice by mailing of judicial documents; consequently, the HSC was not applicable.¹⁷ In Tang Yimin v. China Development Bank, et al. (“Tang Yimin”), the Supreme People’s Court of China allowed a Japanese defendant to opt out of Japan’s opposition against postal service under the HSC by providing their Japanese postal address to the court, accepting service, and returning the service receipt.¹⁸ In contrast, China mandates that private parties located in its territory must adhere to the HSC, including its opposition against the postal service, when the forum is in another HSC Contracting State, and Article 294 of the Chinese Civil Procedure Law forbids the service of foreign judicial documents by mail in China.¹⁹ Notably, China’s opposition under the HSC was irrelevant in Rockefeller, because the California Supreme Court held that the transmission of judicial documents constituted notice rather than service, and the HSC was waived by agreement. In Tang Yimin, the Supreme People’s Court of China held that the HSC was a private law convention and no conflict existed between Japan’s opposition against the postal service and private parties’ disposal of their procedural rights.

Following Rockefeller, in Seagate Technology v. Goel (“Seagate Technology”), the California Court of Appeal held that when private parties agreed to waive formal service of process under Californian law in favour of informal notification, the HSC’s requirements for service of process did not apply.²⁰ Therefore, it upheld service by registered mail on the defendant in India which, like China, also opposed postal service under the HSC.²¹ Most recently in 2024, Rockefeller was cited with approval by the United States Court of Appeals for the Ninth Circuit in Voltage Pictures, LLC v Gussi S.A. de C.V. (“Voltage Pictures”).²² The Ninth Circuit is the largest appellate court with 15 districts in the US.²³ In Voltage Pictures, the Ninth Circuit considered Rule 12.5 of the Independent Film & Television Alliance Rules for International Arbitration, which explicitly allows parties to waive the HSC in court procedures to obtain confirmation of an Arbitrator’s award.²⁴ Gussi SA argued that service should follow the HSC. The Ninth Circuit held that this argument was “immaterial” because Gussi SA, a citizen of Mexico, waived application of the HSC by signing the Distribution and License Agreement.²⁵ Although Voltage Pictures concerns the service of a notice of motion instead of judicial documents,²⁶ it, nevertheless, suggests the realistic possibility that the Ninth Circuit would allow parties to contract out of the HSC in cases of serving judicial documents.²⁷

This line of cases has led to hot debates among academics and practitioners.²⁸ Professor Ronald Brand and nine other prominent academics argue that since the HSC permits private parties to contract out of it by appointing a local agent, private parties should also be allowed to contract out of the HSC by waiving service.²⁹ The international service expert, Mr. Ted Folkman, has expressed concerns:³⁰

[Seagate Technology] allows private parties to define something that looks exactly like service of process and has the same purpose and effect as service of process as something other than service of process to evade the requirements of The Hague Service Convention. This would be fine if the Convention was just aimed at facilitating the parties’ freedom of choice. But the Convention also protects foreign states from what some of them regard as infringements on their judicial sovereignty when foreign litigants do things like serve process in their territory. When a state objects to service by postal channels in its territory, it is asserting its own interests, not (just) the interests of people in its territory who may be served with process. A litigant can waive his own interests, but why should he be able to waive the interests of the state?

Professor George A Bermann and another six prominent academics opined that:³¹

Every year, private parties in different countries that are parties to the [HSC] Convention enter into myriad private contracts … including provisions regarding service of process … those provisions cannot alter the United States’ international law obligation to ensure that its courts enforce the [HSC] provisions related to methods of service abroad.

They and many others have voiced concerns that judgments allowing private parties to contract out of the HSC may not be recognisable and enforceable in HSC Contracting States where the US judicial documents were transmitted when these States consider that private parties cannot contract out of the HSC.³²

This debate centres on two legal issues: can private parties contract out of the HSC? If so, what language is necessary to do that?

Addressing both issues, this paper contributes to the scholarship by reorienting the existing debate which misses a nuanced but critical fact: Contracting States have different policies or legal reasons underlying their oppositions to postal service under the HSC.³³ Alfred, Rockefeller, Tang Yimin, and Seagate should have been distinguished from one another. This is because comparative law studies demonstrate that, although China and India have the same opposition against the postal service, they do this for different reasons.³⁴ In contrast to China, Japan, and India, the Netherlands does not oppose postal service.³⁵ This paper suggests that courts should determine the reasons that States make oppositions under the HSC and decide whether private parties can contract out of it accordingly. Providing guidance to the courts, the paper divides Contracting States’ oppositions into three categories and argues that a court should distinguish oppositions aiming to protect sovereignty from those made for other reasons, such as protecting a defendant’s right. Addressing whether private parties can contract out of the HSC is significant for three main reasons.

Firstly, the complementary and controversial relationship between private contracting and State sovereignty in the application of the HSC presents a crucial treaty application issue. Private parties, such as natural persons and organisations, are not Contracting Parties to a treaty. Private parties who contract out of a convention differ from a State denouncing a convention. In the former case, the convention is still applicable to the State where the private parties are domiciled, whereas in the latter case, the convention is neither applicable to the State nor the private parties domiciled there.³⁶ Some conventions grant explicit permissions with respect to private contracting. Examples include the United Nations Convention on Contracts for the International Sale of Goods (“CISG”)³⁷, the United Nations Convention on the Use of Electronic Communications in International Contracts (“Convention on Electronic Communications”),³⁸ and the United Nations Convention on International Settlement Agreements Resulting from Mediation.³⁹ Other conventions contain implicit permissions. For example, due to the proliferation of free trade agreements and bilateral investment treaties concluded between the same States, private parties can often select the most favourable treaties to determine issues such as tariff rates and investment arbitration.⁴⁰ Another example is the Hague Evidence Convention.⁴¹ Since its treaty texts are different from those of the HSC, it is controversial whether the Hague Evidence Convention is mandatory or non-mandatory, whilst the HSC is widely recognised as having a “non-mandatory” but “exclusive” nature.⁴² According to US jurisprudence, the Hague Evidence Convention allows Contracting States to determine whether private parties can bypass it.⁴³ In contrast, some other conventions are generally considered to disallow private parties to opt-out, even if it does not contain a provision that addresses private contracting. One typical example is conventions safeguarding human rights, such as the Convention on the Rights of the Child which requires its Contracting States to “take all feasible measures” to ensure children less than fifteen years old do not “take a direct part in hostilities.”⁴⁴ Another example involves conventions that impose responsibility on private parties through States, such as the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.⁴⁵ A further example is a convention on sovereignty as well as related rights and obligations of a State, such as the United Nations Convention on the Law of the Sea.⁴⁶ This is because private parties have no standing to determine the territory, liability, diplomatic relationships, etc of a State. Unlike the above-mentioned conventions, the HSC concerns both private litigation rights and State sovereignty without explicit provisions on (dis)allowing private contracting. Thus, it is unsettled whether the HSC implicitly allows private contracting or does not allow it at all.

Secondly, the issue of whether private parties can contract out of the HSC (including States’ oppositions under that Convention) implicates 65 out of 84 HSC Contracting States who make oppositions under Articles 8 and 10 to various extents.⁴⁷ Therefore, it is a serious legal issue concerning a large number of States and impacts the functionality of the only existing global service mechanism established in the world.⁴⁸

Thirdly, although the general operation of the HSC is rated favourably by some Contracting States,⁴⁹ literature also suggests that service via Central Authorities creates “unwarranted expense and delay” in some States,⁵⁰ and is impossible when a Contracting State declines to cooperate⁵¹ or cannot cooperate due to wars.⁵² Moreover, despite electronic service of process having been adopted by many States,⁵³ the HSC, as drafted in 1965, faces difficulties in obtaining consensus amongst all Contracting States to recognise electronic service.⁵⁴ Consequently, service of process via the Central Authorities under the HSC is sometimes costly, inefficient, and uncertain, which has negative impacts on the predominant goal of service: to protect a defendant’s right to a fair trial and a plaintiff’s right to access justice.⁵⁵ Party autonomy is “a universal principle of private international law”,⁵⁶ thus private parties are able to choose courts and the applicable law.⁵⁷ Service by agreement is also permitted in many HSC Contracting States.⁵⁸ Therefore, in practice, many private parties have contracted for a means of service or notice not provided by the HSC in their international commercial contracts.⁵⁹ Proper interpretation of HSC will thus provide much-needed guidance for private parties and courts.⁶⁰

This paper has six Sections. Section A is this introduction. Section B focuses on the “non-mandatory but exclusive” nature of the HSC. It suggests that besides lex fori, the forum should also consider whether agreements contracting out of the HSC are illegal under the law of the place of destination. Section C addresses the legal nature and effect of HSC Contracting States’ oppositions under the HSC. Section D divides Contracting States’ oppositions under the HSC into three categories and compares reasons for those oppositions. Section E analyses the recognition and enforcement of relevant judgments in both the State of destination and other Contracting States of the HSC. Section F concludes the paper by advising private parties on how to draft an agreement to transmit judicial documents across borders.

B. “Non-mandatory but exclusive” character of the Hague Service Convention

Answering whether private parties can contract out of a Contracting State’s oppositions should start from the widely accepted “non-mandatory but exclusive” character of the HSC.⁶¹ “Non-mandatory” means that the lex fori decides when to serve abroad; and when service abroad is necessary, the “exclusive” character requires applying the HSC to determine how to conduct service.⁶²

This character comes from Article 1 of the HSC and is clarified by two leading cases: Volkswagen Aktiengesellschaft v Schlunk (“Schlunk”) by the Supreme Court of the United States⁶³ and Segers and Rufa BV v. Mabanaft GmbH (“Seger”) by the Supreme Court of the Netherlands (Hoge Raad).⁶⁴ Schlunk concerned whether service could be affected by a foreign corporation by serving its domestic agent in the forum. The Supreme Court of the United States held that when “the internal law of the forum state defines the applicable method of serving process as requiring the transmittal of documents abroad, then the Hague Service Convention applies.”⁶⁵ Therefore, under Illinois law, the German defendant and its US subsidiary were so closely related that the US subsidiary could be considered an agent of the German defendant to receive service. Because service was affected within the United States, the HSC did not apply.⁶⁶ Similarly, in Segers, the appellants, appealing a decision of the Court of Appeal at the Hague, issued a notice by summons and served the German defendant through service on its attorney at the Hague.⁶⁷ The respondent did not appear, and the appellants sought entry of a default judgment against it.⁶⁸ The Supreme Court of the Netherlands held that the HSC did not set out the circumstance in which a document must be sent abroad “for service”.⁶⁹ This issue is thus left to the domestic law of the Contracting State of origin of the document.⁷⁰

Citing Schlunk, in Water Splash. Inc v. Menton, the Supreme Court of the United States held that “send” in Article 10(a) of the HSC means service by mail, which “is permissible if two conditions are met: first, the receiving state has not objected to service by mail; and second, service by mail is authorized under otherwise-applicable law.”⁷¹

Schlunk, Seger, and Water Splash are significant. Nevertheless, there was no “service abroad” in Schlunk and Seger because they both involved a local statute that permits service on a local agent. Although there is “service abroad” in Water Splash, it does not involve parties contracting out of the HSC. Private contracting out of the HSC involves a tension where cross-border transmission of judicial documents is deemed as a notice in the forum (ie no occasion to serve documents abroad according to lex fori so no need to follow the HSC), while the place of destination considers the transmission to be service (ie the HSC must be followed).

A contract to transmit judicial documents abroad to a defendant to notify it of a pending litigation is a type of procedural contract.⁷² Such contracts originate from the litis contestatio in Roman law; and, besides agreements to transmit judicial documents, they also include agreements by which parties choose forums, exclude certain types of evidence, choose forensic experts, agree on the form (written, oral, or combination) of proceedings and costs, etc.⁷³ Sitting in the nebulous intersection of civil procedure law and contract law, procedural contracts bring challenging applicable law questions: whether such contracts should be subject to civil procedure law, substantive law (eg contract law which may include foreign law), or a combination of both (eg the law of civil procedural contracts).⁷⁴

Contracts to transmit judicial documents abroad can be characterised as a procedural issue because they design rules directed to governing or regulating “the mode or conduct of court proceedings”.⁷⁵ Forum regit processum requires that lex fori should be applied to matters of procedure.⁷⁶ However, it does not mean to disregard the sovereignty of the State of destination when the transmission of judicial documents is conducted in its territory, regardless of whether the transmission is considered to be notice or service by the forum.⁷⁷ In the UK, the overriding requirement in conducting cross-border service of process is that “no process may be served in a manner which is contrary to the law of the country where service is to be effected.”⁷⁸ This is because, in domestic service of process, there is only one forum. However, when transmitting a judicial document in a State of destination that considers service to be a public judicial act, the parties essentially deal with two “forums”.⁷⁹ The “non-mandatory but exclusive” character of the HSC strikes a balance between the interests of the two “forums” by allowing the State of origin to determine when to serve abroad and the Convention to decide how to serve. Allowing lex fori to unilaterally allow private parties to contract out of the sovereign interest of a State of destination under the HSC will unfortunately destroy that balance.

If contracts to transmit judicial documents abroad are considered substantive, they need to comply with contract law and related conflict of laws. As a matter of contract law, in Ralli Bros v Compania Naviera Sota y Aznar, Scrutton LJ held that: “ … where a contract requires an act to be done in a foreign country, it is in the absence of very special circumstances, an implied term of the continuing validity of such provision that the act to be done in the foreign country shall not be illegal by the law of that country.”⁸⁰ In terms of conflict of laws for contracts, an English contract, which was illegal ab initio according to the law of a friendly foreign country and was made by the parties to defy the foreign law, should and will be held invalid on account of illegality.⁸¹ The underlying reason for this rule is international comity and the fear that without it foreign countries would have “a just cause for complaint”.⁸² Similarly, Article 9(3) of the Rome I Regulation grants discretion to courts to determine whether or not to enforce a contract by giving effect to the overriding mandatory provisions of the place of contract performance when these provisions render the contract performance unlawful.⁸³ In the US, §360(1) of Restatement 1st of Conflict of Laws states that “if performance of a contract is illegal by the law of the place of performance at the time for performance, there is no obligation to perform so long as the illegality continues”.⁸⁴ Restatement 2nd of Conflict of Laws distinguishes “the effect of illegality upon the validity of the contract” from “the existence of illegality as such”.⁸⁵ The former is subject to the proper law of the contract; the latter is determined by the law of the place of performance.⁸⁶ Applying the law of the place of performance, the forum should first decide whether illegality may be established; if illegality is established, the forum will refer to the local contract law of the State selected by application of §§ 187–188 to determine the effect of this illegality upon the rights of the parties under the contract. According to § 202(2), “when performance is illegal in the place of performance, the contract will usually be denied enforcement”.⁸⁷ Case law also demonstrates that the law of the place of performance governs matters related to the legality of performance, impossibility of performance, and other grounds for non-performance.⁸⁸

In conclusion, regardless of whether contracts to transmit judicial documents abroad are characterised as procedural or substantive, besides lex fori, the forum should also consider whether such agreements are illegal under the law of the place of destination. This conclusion should enrich the non-mandatory but exclusive character of the HSC.

C. Legal nature and effects of Contracting States’ oppositions

Determining whether a Contracting State’s “opposition” (the term used in Article 21(2)(a) HSC) is in substance a reservation, interpretative declaration, or a political declaration is critical to determine whether the HSC allows private parties to contract out of a State’s opposition. This analysis is important, because, if the oppositions are reservations, they place other Contracting States under an international law obligation to comply with them in their dealings with the opposing State.

According to the Vienna Convention on the Law of Treaties (“VCLT”)⁸⁹ and the Guide to Practice on Reservations to Treaties adopted by the International Law Commission (“the Guide to Practice”),⁹⁰ a reservation means a “unilateral statement, however, phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.”⁹¹ In contrast, “interpretative declaration” refers to “a unilateral statement, however, phrased or named, made by a State or an international organisation, whereby that State or that organisation purports to specify or clarify the meaning or scope of a treaty or of certain of its provisions.”⁹² Unlike a reservation, an interpretative declaration does not affect treaty relations between the declarant and other State parties to the treaty.⁹³ A unilateral political declaration is neither a reservation nor an interpretative declaration; they are suggested not to be made with the ratification of a treaty but through the United Nations General Assembly or other appropriate organs.⁹⁴

The HSC is one of the few Hague Conference on Private International Law (“HCCH”) conventions containing a large number of oppositions. In relation to Articles 8 and 10 of HSC, 55 States titled their statements as declarations, 3 States as reservations, and 7 States did not specify whether the statements are declarations or reservations.⁹⁵ Examples include:

Statements labelled as declarations: eg, Austria:⁹⁶

Austria objects to the service of documents effected directly through foreign diplomatic or consular agents within its territory, as proposed in Article 8 para. 1 unless the document is to be served upon a national of the state in which the documents originate. Austria objects to the methods of service set out in Article 10 within its territory.

(Note: Austria also filed a distinctly labelled Reservation stating that service on the Republic of Austria may only be made through diplomatic channels.)

Statements labelled as reservations: eg, Brazil:⁹⁷

Brazil is opposed to the use of the methods of transmission of judicial and extrajudicial documents provided for in Article 8 of the Convention. Brazil is opposed to the methods of transmission of judicial and extrajudicial documents provided for in Article 10 of the Convention.

(Note: Brazil also filed a distinctly labelled Declaration pursuant to Articles 5 and 7 (translation in Portuguese) and Article 6 (the required certificate must be signed by a qualified judge))

Statements with unspecified labels: eg, India:⁹⁸

The service of judicial documents through diplomatic or consular channels will be limited to the nationals of the State in which the documents originate.

India is opposed to the methods of service provided in Article 10.

Notably, the mixed labelling of “declarations” and “reservations” rarely exists in other conventions regulating civil or commercial issues.⁹⁹ For example, Contracting States of the CISG consistently use declarations regarding its scope of application.¹⁰⁰ Further examples include the Convention on Electronic Communications,¹⁰¹ HCCH Conventions such as the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents and the Choice of Court Convention.¹⁰² The question regarding the HSC is whether these statements, regardless of how States label them, are by nature “reservations” under the VCLT.

1. Legal nature

Although the text of HSC never uses the word “reservation”, all States’ “oppositions” under Articles 8 and 10 of the HSC should be considered as reservations for four main reasons.

Firstly, Articles 8, 10, and 21 of the HSC should be interpreted as allowing reservations.¹⁰³ These provisions should be distinguished from provisions in other conventions that explicitly exclude reservations, such as in the Rome Statute of the International Criminal Court.¹⁰⁴ They are also distinct from Articles 309 and 310 of the UNCLOS, which allows declarations or statements, however, phrased or named, that do not purport to exclude or modify the legal effect of the provisions of the UNCLOS in their application to the reserving State.¹⁰⁵

Secondly, the travaux préparatoires of the HSC do not support the view that Articles 8, 10, and 21 forbid reservations. This is in contrast with the UNCLOS, which does not allow States to make reservations because it was negotiated as a “package deal”.¹⁰⁶

Thirdly, state practice about the HSC and the adopted position of HCCH support the view that reservations under Articles 8 and 10 are allowed. A typical example is when Contracting States make opposition statements with unspecified labels. The HCCH website puts their statements under the title of Declarations and Reservations, which means these States likely consider that “declarations” and “reservations” should have the same legal effect under Articles 8 and 10.¹⁰⁷ In contrast to the HCCH, the International Labour Organization does not allow reservations, notwithstanding there being no express prohibition in International Labour Organization Conventions. Therefore, a State's opposition to Articles 8 and 10 of the HSC, however, labelled as “reservation” or “declaration”, should have the same legal effect as reservations.

Last but not least, States’ oppositions under Articles 8 and 10 of the HSC are not interpretative declarations, because they do not aim to specify or clarify the meaning or scope of these provisions.¹⁰⁸ Examples of interpretative declarations include the UK's interpretation of “parents” when ratifying the Rights of the Child Convention 1989¹⁰⁹ and Syria’s reference of “force” to economic and political coercion.¹¹⁰ Neither are they policy or political declarations, which do not intend to have any legal effect on the treaty.¹¹¹ “This type of declaration may be a statement of the general policy of the state towards the subject matter of the treaty, or a disclaimer that ratification does not signify recognition of a particular party as a state”.¹¹² States oppositions under Articles 8 and 10 of the HSC clearly intend to create legal effects, namely, excluding the application of the relevant provisions to the opposing State.

2. Legal effects

A reservation can exclude the application of a relevant treaty provision in whole or in part on the declaring State. Article 20.1 of the VCLT regulates the acceptance of and objection to a reservation. If a treaty expressly authorises its Contracting States to make a reservation, such reservation does not require any subsequent acceptance by the other Contracting States unless the treaty provides so.¹¹³ This is the case for the HSC, because its Articles 8 and 10 expressly allow its Contracting States to declare their opposition¹¹⁴ or objection.¹¹⁵ Therefore, States’ reservations pursuant to these two Articles do not require any subsequent acceptance by other Contracting States.¹¹⁶

The VCLT provides two circumstances where a reservation requires subsequent acceptance by other Contracting States.¹¹⁷ Neither would apply to the HSC. The first circumstance is set out in Article 20.2 of the VCLT. This Article provides that a reservation made by a Contracting State requires acceptance by all other Contracting States if the object and purpose of a treaty evinces an intention that the application of the treaty in its entirety between all the Contracting States is “an essential condition of the consent of each one to be bound by the treaty”.¹¹⁸ The HSC aims to improve international judicial assistance for the service of judicial and extrajudicial documents so that addressees can be notified in sufficient time.¹¹⁹ The application of the HSC in its entirety between all its Contracting States is not required; therefore, Article 20.2 of the VCLT does not apply to reservations made pursuant to Articles 8 and 10 of the HSC.¹²⁰ The other circumstance can be found in Article 12.3 of the VCLT, which provides that unless the relevant treaty otherwise provides, a reservation’s efficacy depends on its acceptance by the competent organ of an international organisation, if that treaty is a constituent instrument of that international organisation.¹²¹ The HSC is not a constituent instrument of the HCCH or any other international organisation. Therefore, Article 12.3 of the VCLT is not applicable.

Failing Article 20.2, a State is taken to have tacitly accepted another State’s reservation if the former does not raise any objection to the reservation by the end of twelve months after it was notified of the reservation, or by the date it consents to be bound by the treaty, whichever is later.¹²² For example, the United States has never objected to China’s reservation on postal service; therefore, it should be taken as having tacitly accepted China’s reservation. China’s reservation has defined the conventional relations between China and the United States such that the United States has an international obligation to comply with China’s reservation when a judicial document needs to be transmitted to a defendant located in China.¹²³ This conclusion is supported by Article 20.4 (the general rule of acceptance of and objections to reservations) and Article 21.1 of the VCLT.¹²⁴

Therefore, regardless of whether oppositions are labelled as reservations or declarations, they should be considered reservations in nature and constitute part of the HSC such that a non-opposing State has an international obligation to comply with them in its relations with the opposing State.¹²⁵

D. Three categories of oppositions

To facilitate courts to determine whether to allow private parties to contract out of the HSC, this Section divides a State’s oppositions under Articles 8 and 10 of the HSC into three categories. The first category includes oppositions which practically cannot be contracted out of by private parties. Whether private parties can contract out of an opposition in the second and third category, depends on whether the opposition is related to protecting the sovereignty of the State of destination.

1. First category: oppositions practically cannot be contracted out of by private parties

The first category includes oppositions made under Articles 8, 10(b) and (c) of the HSC. Private parties cannot practically conduct service in a State of destination without its permission under Article 10(b) and (c), because both methods of service rely on the assistance of judicial officers, officials, or other competent persons of that State.¹²⁶ If the State of destination does not allow those competent persons to effect service, private parties cannot obtain assistance from them. Moreover, private parties cannot opt out of the reservation made by the State of destination against diplomatic service under Article 8 of the HSC. This is because if diplomatic service is made without complying with the law of the State of destination, consular officers may violate the Vienna Convention on Consular Relations.¹²⁷

2. Second and third categories

The second and third category is limited to States’ oppositions made under Article 10(a) (postal service). When deciding whether private parties can contract out of a State’s opposition, a court should distinguish oppositions related to the protection of judicial sovereignty (ie the third category) from oppositions made for other reasons (ie the second category). Regarding the former, the forum should be very cautious when approving private parties’ contracts opting out of the HSC. As for the latter, if private parties contract out of the HSC for a method of service or notice that can sufficiently ensure a defendant’s right to a fair trial under the lex fori, the forum can accept the parties’ contract.

(a) Human rights and State sovereignty

According to the VCLT, treaty interpretation should be made “in the light of its object and purpose”.¹²⁸ The HSC aims to bring the “judicial and extrajudicial documents to be served abroad” to “the notice of the addressee in sufficient time” (emphasis added).¹²⁹ The arrangement of mutual judicial assistance is “for that purpose”.¹³⁰ A defendant’s right to a fair trial is a fundamental human right, ensuring a defendant is notified of a foreign pending proceeding in sufficient time to enable them to defend the case.¹³¹ The HSC also safeguards the plaintiff’s right to justice without unreasonable delay, as Article 15 allows a court to render a judgment even if no certificate of service has been received in prescribed circumstances, such as if at least six months have elapsed since the transmission of the document.¹³² Therefore, the human rights goal of the HSC is to protect a defendant’s right to a fair trial and a plaintiff’s right to access to justice.¹³³ Both are well-endorsed as fundamentals of international litigation by human rights conventions and related jurisprudence.¹³⁴

Human rights and State sovereignty constitute two complementary pillars of the modern dualist international legal order.¹³⁵ Conflict of laws is also “potentially foreign affairs in a private-law key”.¹³⁶ The phrase “sovereignty or security” of a State of destination appears in Article 13 of the HSC and allows the State to reject the request for Central Authority service.¹³⁷ In Germany, this phrase is interpreted as “indispensable principles of the rule of law”.¹³⁸ For example, the Second Senate of the Federal Constitutional Court (Bundes-verfassungsgericht-BverfG) invoked Article 13 and refused to fulfil a service request of a class action complaint filed in the Southern District of New York.¹³⁹ Furthermore, a Swiss court rejected the service of an injunction ordering a Swiss employer not to pay its employee and transfer the fund to his creditor in Austria, because this was an enforcement measure violating the Swiss territoriality principle.¹⁴⁰ However, sovereignty should not be abused. “Sovereignty or security” is widely considered to be restrictively interpreted and should be narrower than public policy.¹⁴¹ Moreover, Article 13 is not applicable if the sole reason for rejection is that the internal law of the State of destination grants it exclusive jurisdiction over the subject matter or does not permit the action upon which the request is based.¹⁴²

Protecting sovereignty also underlies some States’ oppositions under Articles 8 and 10 of the HSC. This is because, in many civil law countries, service must be conducted by States and is considered to be a public function exclusively belonging to the State by its sovereignty. For example, China opposes postal service under the HSC, and protecting its judicial sovereignty is an important underlying reason.¹⁴³ Article 294 of the Chinese Civil Procedure Law allows foreign judicial documents to be served within China only in circumstances permitted by a treaty, diplomatic channels, or with the consent of the competent Chinese authorities.¹⁴⁴ Like China, in Germany, service first aims to “give the receiving state control about the involvement of its companies and residents in foreign actions … second … is to use sovereignty as a shield for its resident companies and residents by prohibiting private direct service.”¹⁴⁵ South Korea and Japan may associate service with sovereignty.¹⁴⁶

In common law countries, service of process can subject a defendant to the power of the court, and in this sense, is considered as an attribute of State sovereignty.¹⁴⁷ However, unlike in civil law countries, the responsibility for actual service belongs to the party instead of the court.¹⁴⁸ Australia is one of few common law countries limiting the postal service under the HSC to registered mail.¹⁴⁹ This requirement should be understood to protect the defendant’s right to a fair trial rather than protecting Australia’s judicial sovereignty.¹⁵⁰ Only a few common law countries oppose postal service under the HSC but India is one of them.¹⁵¹ Section 29(c) of the Indian Code of Civil Procedure provides that “[s]ummonses and other processes issued by any other Civil or Revenue Court outside India to which the Central Government has, by notification in the Official Gazette, declared the provisions of this section to apply, may be sent to the Courts in the territories to which this Code extends, and served as if they were summonses issued by such Courts”. This section applies to all civil courts in HSC Contracting States;¹⁵² accordingly, it is the prerogative of the civil court of India to conduct service for foreign proceedings when the HSC applies. However, this does not mean India's opposition to the postal service under the HSC is to protect its judicial sovereignty.¹⁵³ This is because Indian private international law permits service through courts and registered post.¹⁵⁴ Rather, the prerogative of the civil court of India to conduct service for foreign proceedings largely aims to protect Indian defendants’ right to a fair trial (eg date of delivery or service can be determined from a procedural and evidential point). Singapore also opposes postal service under the HSC.¹⁵⁵ Since Humpuss Sea Transport Pte Ltd (in compulsory liquidation) v PT Humpuss Intermoda Transportasi TBK and another, Singaporean courts consider private means of service to be the default means of service of their own proceedings abroad, and no case suggests that service of foreign process in Singapore by private means would be considered a contravention of Singaporean sovereignty.¹⁵⁶ Therefore, common law countries that oppose postal service under the HSC typically do so for reasons such as protecting a defendant’s right to a fair trial, requesting mutuality or reciprocity in international affairs (as many countries are opposed to postal service), and the confidence in their Central Authorities to efficiently conduct service (thus reducing the need to resort to postal service), etc.

(b) Second category: oppositions not to protect State sovereignty

Deciding whether private parties can contract out of States’ oppositions in this category should be informed by the trend that international civil procedure law has placed more weight on adequate service rather than correct formalistic service.

Correct service may not be adequate service

“Correct service” requires service to strictly comply with the procedural requirement of the applicable law. It includes strict compliance with requirements such as the mode, the language, and the statute of limitations of service. Conversely, “adequate service” focuses on the substance of service, which is to inform the defendants of a pending trial and afford them adequate time to defend their cases.¹⁵⁷ Based on the rich jurisprudence of international and national courts, the human-rights feature of service implies that adequate service should be preferred over correct service.

Courts have held that correct service may not constitute adequate service. For example, in Klomps v Michel, the Court of Justice of the EU (“CJEU”) held that:¹⁵⁸

… to the fact that the laws of the Contracting States on the service of court documents (e.g. the Brussels Convention), like the international conventions on this subject (e.g. the [HSC]), have as their object the safeguarding of the interests of defendants … the court must consider whether, in a particular case, there are exceptional circumstances which warrant the conclusion that, although service was duly effected, it was, however, inadequate for enabling the defendant to take steps to arrange for his defence … 

The Court continued:¹⁵⁹

In considering whether it is confronted with such a case, the court in which enforcement is sought may take account of all the circumstances of the case in point, including the means employed for effecting service, the relations between the plaintiff and the defendant or the nature of the steps which had to be taken in order to prevent judgment from being given in default. If for example, the dispute concerns commercial relations and if the document which instituted the proceedings was served at an address at which the defendant carries on his business activities the mere fact that the defendant was absent at the time of service should not normally prevent him from arranging this defence … 

Debaecker v Bouwman involved the circumstance where the plaintiff carried out correct service on the defendant according to the applicable Belgian law.¹⁶⁰ The CJEU, again, ruled against a formalistic manner of interpreting service and required courts to consider whether the service did not, in fact, enable the defendant to arrange for his defence.¹⁶¹

In Lancray v Peters, the CJEU held that recognition and enforcement of a foreign judgment should be refused if the judgment-rendering court failed to conduct correct service (“service has not been effected in due form”) regardless of whether the defendant was afforded adequate time to defend their cases. However, it was held that the defective service may be cured according to the law of the judgment-rendering court.¹⁶² Similarly in Phillips v Symes (No. 3), the English language claim was removed erroneously from the service package by the Swiss Central Authority under the HSC, and the defendant in Switzerland was served with a German translation of the claim containing particulars in greater detail than the claim form itself.¹⁶³ Although the service was not correct under Swiss law, the House of Lords held that the service was sufficient according to English law because the defendants suffered no prejudice from the omission of the English language claim form.¹⁶⁴ Therefore, when service, although conducted incorrectly, has informed the defendant of a pending trial and afforded them sufficient time to defend their cases, the forum can consider that the defendant has been adequately served or notified, as long as the lex fori or an applicable convention permits the defective service to be cured.¹⁶⁵

Waive service

Notably, Alfred, Rockefeller, and Seagate, all involved choice of court clauses agreed by parties favouring the forum. This is significant. The United States shares the common-law tradition of England and Wales regarding service.¹⁶⁶ Historically, in England and Wales, courts only have jurisdiction over a defendant who has submitted to the proceedings,¹⁶⁷ or has been present in the forum at the time of service in cross-border disputes.¹⁶⁸ In order to entertain disputes against a foreign defendant who left the forum before the writ was about to be served, courts may allow service out of the jurisdiction on the defendant in circumstances allowed by statutes.¹⁶⁹ Therefore, cross-border service of process plays a dual role in many common-law countries: to establish jurisdiction and notify a foreign-based defendant.¹⁷⁰ When parties conclude a valid choice of court clause favouring the forum, the cross-border service loses its legal significance in establishing jurisdiction. In such cases, courts often allow parties to waive service by replacing it with notice, as long as the notification warrants the defendant’s right to a fair trial and the plaintiff’s right to access to justice.

Adequate service can be validly waived when conditions under the applicable law are met.¹⁷¹ According to the European Court of Human Rights (hereinafter “ECtHR”), valid waivers should satisfy two requirements.¹⁷² Firstly, the subject who is waiving the right must be aware of the existence of the proceedings.¹⁷³ For example, the notice allows a defendant adequate time to organise their defence. Secondly, if the defendant is in default, the lex fori secures the defendant’s right to a new examination of the case “in terms that allow him to fully defend his legal position once he has been made aware of the existence of the judgment given in default”.¹⁷⁴ In the United States, Rule 4(d) of the Federal Rules of Civil Procedure (“FRCP”) provides that parties have a duty to avoid unnecessary expenses of serving the summons so a plaintiff can discuss with a defendant whether the service can be waived.¹⁷⁵ Rule 4(f)(3) of FRCP, embodying the right to be heard, also allows a plaintiff to seek other means of service not prohibited by international agreement. For example, in BTL Indus v Rejuva Fresh LLC, the plaintiff repeatedly attempted to have the defendant waive service through counsel and attempted to serve her at her business address.¹⁷⁶ The United States District Court for the District of Maine held that forcing the plaintiff to attempt to serve the defendant in Thailand would be “a waste of time and money given that she is clearly already aware of the suit against her”.¹⁷⁷ Therefore, the plaintiff was authorised to serve the defendant by email.¹⁷⁸ However, if a violation of foreign sovereignty is involved, courts may not allow parties to waive the requirement of an international agreement.¹⁷⁹

Avoid undue formalism

Adequate service should be preferred because determining a defendant's right to a fair trial should avoid undue formalism.¹⁸⁰ In Sovtransavto Holding v Ukraine, the ECtHR strongly suggests avoiding “excessive formalism” and holds that, to review whether a defendant's right to a fair trial has been observed, “it is essential to have regard to the circumstances of the individual case”.¹⁸¹ Another example is the trend in international civil litigation to move from correct service to adequate service. Significantly, as distinct from the Brussels Convention, neither the Brussels I Regulation nor Brussels Ia Regulation¹⁸² necessarily require due service (ie correct service) but do require adequate service meaning that “the right of defence is effectively respected”.¹⁸³ In ASML, the CJEU held that in service “a mere formal irregularity, which does not adversely affect the rights of defence, is not sufficient” to reject the recognition and enforcement of a foreign judgment.¹⁸⁴ The lawmaker’s focus is “the safeguard of the defendant’s right to defence in the State of origin, and not as much – or not only – respect for national or international regulations [including the HSC] for effective service”.¹⁸⁵ A further example is the class action notice in the United States¹⁸⁶ A court can adopt US mail, electronic means, or other methods as long as they are “best notice practicable under the circumstances” to notify potential class members.¹⁸⁷

To conclude, when a State’s opposition is not for the purposes of protecting its sovereignty, determining whether parties can contract out of this opposition should correspond to the HSC’s goal to protect the defendant’s right to a fair trial. It is essential for the forum to have regard to the circumstances of an individual case and to focus on whether replacing service with notice by private contracts will or has afforded the foreign-based defendant adequate service or notice under lex fori, rather than correct service (which means to mechanically follow a State of destination’s oppositions). The circumstances of the individual case include whether the service clause is inherently ambiguous or tainted by any contractual vindicating factor, whether parties have a choice of court agreement, whether the defendant is evading service or in fact informed of the litigation, whether the plaintiff made a reasonable and good faith mistake, and whether the applicable law allows incorrect service to be cured.¹⁸⁸ From these aspects, private parties in both Alfred and Seagate should be allowed to replace service with notice and contract out of the HSC upon the courts’ decisions that the contract has protected the defendants’ right to a fair trial. This is because neither case involves an opposition made to protect State sovereignty. In Tang Yimin, the Supreme People’s Court of China should have allowed the defendent to opt out of Japan’s opposition to postal service only when this opposition is not to protect Japan’ sovereignty.

(c) Third category: oppositions relating to protecting State sovereignty

The forum should be cautious to allow private parties to replace service with cross-border notice according to the lex fori when the State of destination opposes to cross-border non-Central Authorities Methods of Service under the HSC to protect their sovereignty. This is because it is debatable as to whether the HSC applies only to formal service.

According to the court in Schlunk, “service” has a well-established technical meaning.¹⁸⁹ It refers to the formal delivery of documents that are legally sufficient to charge the defendant with notice of a pending action.¹⁹⁰ In Rockefeller, the Supreme Court of California held that the HSC applied only to “formal” service, which is conceptualised as containing two components: (1) service as a method of obtaining personal jurisdiction over a defendant and (2) formalised notification of court proceedings to allow a party to appear and defend against the action.¹⁹¹

The Supreme Court of California is wrong in Rockefeller because the HSC applies to both formal and informal service. After the Central Authority of a requesting State forwards a request for service to the Central Authority of a requested State, the latter will execute the request for service or cause it to be executed according to Article 5, which is constituted by three methods:¹⁹²

1. A method prescribed by the internal law of the requested State for the service of documents (Article 5(1)(a)); or

2. A particular method requested by the forwarding authority, unless this method is incompatible with the law of the requested State (Article 5(1)(b)); or

3. Simple delivery to an addressee who accepts the document voluntarily (Article 5(2)).

After successfully transmitting documents for the purpose of service by any of the above methods, the Central Authority of the requested State should issue a certificate.¹⁹³ Therefore, Article 5 shows that the HSC includes both formal service and informal simple delivery.

Besides Article 5, the terms “deliver” and “delivery” also appear in Article 15 of the HSC. Under Article 15(1), judgment shall not be given until it is established that:¹⁹⁴

1. the document was served in accordance with the law of the requested State … or actually delivered to the defendant or to the latter’s residence by another method provided for by the Convention; and

2. that, in either of these cases, the service or the delivery was effected in sufficient time to enable the defendant to defend.

Therefore, Article 15(1) also supports the view that the HSC is not limited to formal service. Nevertheless, the terms “deliver” and “delivery” are not limited to “informal service”. This is because, besides informal service, they also include any methods of transmission that can make the addressee voluntarily accept documents such as transmission by direct diplomatic or consular channels without compulsion (Article 8(1)).¹⁹⁵

Moreover, in Rockefeller, the California Supreme Court held that “[t]he distinction between formal service and mere notice appears consistent with the Practical Handbook.”¹⁹⁶ Such a view fails to appreciate the discussion in paragraph 55 of the Practical Handbook. According to the Handbook:

[t]he terms used in the French text are “signifié ou notifié.” The use of the two terms in the French version of Article 1(1), contrary to the English version’s reference only to “service”, reflects the distinction made between these two terms in States such as France or Belgium.¹⁹⁷

The Practical Handbook concludes that “[in] the common law systems, the term ‘service’ covers both ‘signification (service)’ and ‘notification’” (emphasis added).¹⁹⁸ This is consistent with paragraph 53 of the Practical Handbook, which provides that “the term ‘service’ generally refers to the delivery of judicial and/or extrajudicial documents to the addressees, of which the degree of formality varies from State to State”¹⁹⁹ (emphasis added). This suggests that the drafters of the HSC were aware that the concept of “formal” service may vary across Contracting States such that an activity may be considered as service in one State and as notice in another. While an autonomous definition of service and waiver of service may be desirable for achieving consistent implementation of the HSC, the concern is that such a definition could potentially hinder the wide acceptance of the Convention. On the other hand, intentionally omitting such a definition creates a deliberate gap, making the Convention acceptable to both civil law and common law countries.

In conclusion, a forum should be very cautious to enforce a private contract opting out of the HSC by selecting a method of service or notice that is considered by another Contracting State as violating its “opposition” where it relates to protecting its sovereignty.

E. Judgment recognition and enforcement

The above sections suggest investigating the reasons behind a State’s opposition to certain channels of transmission under the HSC. One challenge is that States are not required to provide reasons when declaring their oppositions, making it difficult to pursue this line of inquiry. This concern might be better addressed during the judgment recognition and enforcement stage. When a judgment is to be recognised and enforced in the destination State, the court in that State should be able to interpret the underlying reasons for that State’s opposition under the HSC.

The Choice of Court Convention and the Convention of 7 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (“the Hague Judgments Convention”)²⁰⁰ enable judgment-enforcement courts to reconcile the resistance to contracting out of the Hague Service Convention with the emerging trend allowing such practices. Both Conventions provide that judgment recognition and enforcement may be refused when:

the document which instituted the proceedings or an equivalent document, including a statement of the essential elements of the claim … was notified to the defendant in the requested State in a manner that is incompatible with fundamental principles of the requested State concerning service of the document. (emphasis added)²⁰¹

Neither convention defines “notification”.²⁰² According to the explanatory report of the Choice of Court Convention, “the concept of ‘notification’ … is of a general, factual nature … not a technical, legal concept.”²⁰³ The court at the State of destination may refuse the recognition and enforcement of a judgment if it considers the transmission of documents in that case has violated its fundamental principles of service.²⁰⁴ That is to say, when a court in the “service/notice destination” is asked to recognise a judgment, it might find that a waiver of service under the HSC is not incompatible with fundamental principles of service and enforce the judgment notwithstanding parties’ opting out of their oppositions under the HSC. Namely, although at the treaty-ratification process, a State does not give reasons for its opposition to particular modes of service because States are not required to do so, this does not mean, at the foreign judgment recognition proceedings, the State’s judges are prevented from determining whether private contracts, which violate the State’s opposition under the HSC, harms its fundamental principles of law.

For example, the Rockefeller judgment is likely not recognisable and enforceable in China, because the transmission of judicial documents in China, although labelled as notice by the parties, was considered to be service in China. Respecting judicial sovereignty is the fundamental principle of service in China.²⁰⁵ However, supposing the defendant in Rockefeller is located in Singapore, although Singapore also opposes service by post, its courts may recognise and enforce the Rockefeller judgment by holding that private contracting is not inconsistent with the fundamental principle of service under Humpuss Sea Transport Pte Ltd.

Importantly, this section does not suggest that “notification” or “notify” in the Hague Judgments Convention and the Hague Choice of Court Convention should be equated to “notice”.²⁰⁶ “Notification” and “notify” are deliberately chosen by the HCCH Diplomatic Conference to avoid the different legal meanings in national laws concerning “notice” or “service”.²⁰⁷ This cautious approach exemplifies that an activity to transmit a judicial document across borders may be considered as notice in the State of origin but as service in the State of destination. The Judgments Convention and the Choice of Court Convention allow the State of destination to address the effects of such cross-border transmission according to fundamental principles concerning service.²⁰⁸

The more challenging scenario is, if a judgment is considered unrecognisable and unenforceable by the court of the State of destination due to violating its fundamental principles of service, could a third country recognise and enforce this judgment? The Choice of Court Convention and the Judgments Convention suggest that this is possible. The reason is both Conventions provide that “recognition or enforcement may be refused (emphasis added)” when notification is incompatible with fundamental principles of service at the State of destination.²⁰⁹ Therefore, the third State can exercise discretion according to its law to independently decide whether to recognise and enforce the judgment.

F. Conclusions and prospects

In Rockefeller, the clause to transmit judicial documents from the United States to China indicates:

[t]he Parties shall provide notice in the English language to each other at the addresses set forth in the Agreement via Federal Express or similar courier, with copies via facsimile or email, and shall be deemed received 3 business days after deposit with the courier … [t]he Parties consent to service of process in accord with the notice provisions above.

This is a badly drafted clause from at least four aspects. Firstly, it fails to clearly express the parties’ intention to waive formal service of process and replace it with notice. Consequently, in this clause, the “notice” actually appears to be “service” in contravention of the HSC. Secondly, it assumes a document is deemed to be received after depositing with the courier, which is like fictitious service on a State official in some civil law countries.²¹⁰ This cannot ensure that the foreign defendant is duly informed of the pending litigation and may lead to abuse and injustice.²¹¹ Agreements to opt out of the HSC should have “a sufficient showing that … [parties] voluntarily, knowingly, and intelligently waived … due-process rights.”²¹² Thirdly, it ignores the fact that China opposes Article 10(a) of the HSC, its domestic law considers service as a judicial act, and the activity of transmitting judicial documents by post in its territory is considered as service instead of notice. Agreements to opt out of the HSC should only be concluded between parties located in States that either do not make a reservation under Article 10(a) of the HSC or fall into the second category of States discussed above. Finally, the best way to avoid disputes on service is to replace transmitting judicial documents abroad with serving the foreign defendant’s agent in the forum.²¹³

A concern regarding the allowance for private parties to contract out of the HSC is the potential for a ripple effect, wherein private parties might then be permitted to contract out of other conventions. However, this concern is questionable. Many conventions, aside from the HSC, either already permit private parties to contract out of their provisions or do not have a “non-mandatory but exclusive” nature.²¹⁴ The Supreme Court of the United States has defined comity as:

neither a matter of absolute obligation, on the one hand, nor of mere courtesy and goodwill, upon the other. But it is the recognition that one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience and to the rights of its own citizens or of other persons who are under the protection of its laws.²¹⁵

Guided by comity, national courts should balance the predominant human rights goal of the HSC with judicial sovereignty underlying some of its Contracting States’ oppositions. If a Contracting State’s opposition to postal service is not to protect its judicial sovereignty, courts are suggested to accept private contracting when the contract can warrant a defendant’s right to a fair trial. However, if a Contracting State’s opposition is related to the protection of its sovereignty, courts should be mindful that the method of notice agreed to by the private parties may be considered service by the opposing State, thus be cautious to allow private parties to contract out of the HSC. Hopefully, this approach can help national courts and private parties to navigate the unsettled legal dilemma of whether private parties can contract out of the HSC. Meanwhile, the HCCH should also actively explore ways to enhance the efficiency of the Central Authorities under the HSC.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965, 658 UNTS 163, [hereinafter HSC]. See its status table as at 6 June 2024, available at https://www.hcch.net/en/instruments/conventions/status-table/?cid = 17. For comments, see David McClean, International Co-operation in Civil and Criminal Matters (Oxford University Press, 2002) 23–55. In this paper, a State of destination refers to the State where a defendant is located and the transmission of judicial documents is completed.

2 HSC, Arts 2-6. This paper focuses on the service of judicial documents on a defendant in a Contracting State of the HSC in civil or commercial proceedings. Due to the length limit of this paper, it does not cover service of non-judicial documents or subpoenas where the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, Mar. 18, 1970, 847 UNTS 231 often needs to be considered.

3 HSC, Art 8.

4 Ibid. Art 10(a). The Special Commission on the HSC held in 2003 reaffirmed that “send” in Art 10(a) (English version) means “service” through postal channels, although disputes remain in the US, see Hague Conference on Private International Law, Practical Handbook on the Operation of the Service Convention (4th edn, 2016) 79–93 [hereinafter Practical Handbook].

5 HSC, Arts 10(b)-(c). Burda Media, INnc. V. Viertel, 417 F. 3d 292, at 300 (2d Cir. 2005). The foreign State of destination is “the country in which the act [of transmission of judicial documents] has to be done.” See Kahler v Midland Bank Ltd [1950] AC at 36, 39 and 48.

6 Eg, L Andrew Cooper, “International Service of Process by Mail under the HSC”, (1991) 13 Michigan Journal of International Law 698, 698–719; Rita M Alliss, “The Mandatory Nature of the HSC in the United States Is the Forum’s Victory Notes”, (1990) 23 Vanderbilt Journal of Transnational Law 179, 179–230; Qisheng He, “The Implementation of the Hague Service Abroad Convention in the Mainland China”, (2009) 2 Wuhan University International Law Review 62, 62–80.

7 This paper is limited to instances when private parties are of relatively equal status entering into fair negotiation, and in exchange for valuable consideration, agree to be bound by an agreement to transmit judicial documents to inform the foreign party of the pending litigation in a consensual way. See Helen Hershkoff and Judith Resnik, “Contractualisation on Civil Litigation in the United States: Procedure, Contract, Public Authority, Autonomy, Aggregate Litigation, and Power”, in Anna Nylund and Antonio Cabral (eds) Contractualisation of Civil Litigation (Intersentia, 2023) 421.

8 Rockefeller Tech. Invs. (Asia) VII v. Changzhou SinoType Tech. Co., Ltd., 460 P.3d 764, 776 (Cal. 2020), cert. denied, 141 S. Ct. 374 (2020) (the court was careful to say that its “conclusion does not authorize circumventing the Hague Service Convention where the Convention would otherwise apply”).

9 Plastic Molded Techs., Inc. v. Bayerische Motoren Werke Aktiengesellchaft, 2009 U.S. Dist. LEXIS 144003, 2009 WL 10680593.

10 Infra n 11, 15, 18, 21, and 23. For other common law countries, see eg Bindaree Beef Pty Limited v Chinatex (Australia) and Ors, [2018] NSWSC 1499 (Austl.), where the New South Wales Supreme Court in Australia allowed service of process by mail to a defendant in China based on parties’ agreement without considering China’s opposition to service by post under the HSC.

11 Camphor Technologies, Inc. v. BIOFER, S.P.A, 50 Conn. Supp. 227 (Conn. Super. Ct. 2007).

12 Ibid, at 234 (holding that “the notice provision in the present case refers to notice of regular business activities per the contract”).

13 Ibid.

14 Alfred E. Mann Living Trust v ETIRC Aviation S.a.r.l., 78 A.D.3d 137 at 141. The Supreme Court of New York County is a trial-level court.

15 Ibid at 141.

16 Like the Netherlands, the UK does not oppose service by post under Art 10(a) of the HSC. A relevant case is Clear Spring Property & Casualty Insurance Co. v. Arch Nemesis LLC (D. Kan. 2023) Case No. 22-2435-DDC-TJJ (“Clear Spring”), which involved service on a defendant located in the UK and the United States District Court for the District of Kansas upheld parties’ consent to contract out of the HSC (holding that “plaintiff need not serve defendant in accord with an international agreement when the parties to a contract consent beforehand ‘to submit to the jurisdiction of a given court [or] to permit notice to be served by the opposing party[.]’”). In this case, the court held that the contract’s terms for alternative service did not apply for the party who was neither an “underwriter” of, nor a signatory to, the contract, pages 20 and 29 of the judgment, available at https://lettersblogatory.com/wp-content/uploads/2023/10/USCOURTS-ksd-2_22-cv-02435-0.pdf.

17 Rockefeller, supra n 8.

18 Tang Yimin v. China Development Bank, et al. (appeal case regarding dispute over guaranty contract), (2019) Zui Gao Fa Min Zhong 395 Hao.

19 HCCH, Declaration/Reservation/Notification – China, HCCH available at https://www.hcch.net/en/instruments/conventions/status-table/notifications/?csid = 393&disp = resdn. Zhōnghuá rénmín gònghéguó mínshì sùsòng fǎ (中华⼈⺠共和国⺠事诉讼法) [Civil Procedure Law of the People’s Republic of China] (promulgated by the Standing Comm. Nat’l People’s Cong., Apr. 9, 1991, effective Apr. 9, 1991), most recently amended at the 5^th Session of the Standing Committee of the Fourteenth National People’s Congress on 1 September 2023, Art 294.

20 Seagate Technology v. Goel. 2022 WL 3571988 (Cal. App. Ct. 2022).

21 Ibid.

22 Voltage Pictures, LLC v Gussi S.A. de C.V. (9^th Circuit 2024) No. 23–55123 D.C. No. 2:21-cv-04751-FLA-RAO, page 13 of the judgment, available at https://lettersblogatory.com/wp-content/uploads/2024/03/23-55123-1.pdf?utm_source = mailpoet&utm_medium = email&utm_source_platform = mailpoet&utm_campaign = letters-blogatory-1 (Rockefeller is cited to the holding that ‘[w]hen a party files an action in federal district court, federal procedural law generally governs service … unless the party-to-be served waived its protections).

23 What is the Ninth Circuit, https://www.ca9.uscourts.gov/judicial-council/what-is-the-ninth-circuit/.

24 Voltage Pictures, pages 5–6 of the judgment (indicating that IFTA Rule 12.5 provides “[s]ervice of any petition, summons or other process necessary to obtain confirmation of the Arbitrator’s award may be accomplished by any procedure authorized by applicable law, Treaty or Convention, except that the parties waive application of the Hague Convention for Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters with respect to service of process.”)

25 Ibid, footnote 7, page 31. Notably, Mexico made a declaration opposing postal service under Art 10(a) of the HSC, see https://www.hcch.net/en/instruments/conventions/status-table/notifications/?csid = 412&disp = resdn.

26 Ibid, pages 17 and 31 (Voltage’s motion papers were not issued by a court and “[s]erving a notice of motion in an already commenced action is less cumbersome than serving process to initiate a new action, which generally requires the service of summons and a pleading, most commonly a complaint”). The motion papers were not transmitted abroad; and instead, they were mailed to Gussi SA’s attorneys in the US.

27 For comments, see Case of the Day: Voltage Pictures v Gussi, https://lettersblogatory.com/2024/03/09/case-of-the-day-voltage-pictures-v-gussi-2/?utm_source = mailpoet&utm_medium = email&utm_source_platform = mailpoet&utm_campaign = letters-blogatory-1.

28 Eg, Robin Effron, Ted Folkman, Lemuel Lopez, & Gifany Ten-Ten L. Tongohan, Panel Discussion at the New York International Law Weekend: Rethinking the Service of Documents in Cross-Border Transactions (Oct 30. 2021).

29 Application of Professors of International Litigation for Leave to File Brief Amici Curiae by David B Goodwin, and Peter Trooboff, Rockefeller Tech. Invs. (Asia) VII v. Changzhou Sinotype Tech. Co. Ltd., in the Supreme Court of the State of California, Case No. S249923 at 7, 13.

30 Ted Folkman, Case of the Day: Seagate Technology v. Goel, Letters Blogatory(22 Aug 2022), available at https://lettersblogatory.com/2022/08/22/case-of-the-day-seagate-technology-v-goel/.

31 Brief for Professor George A Bermann et al as Amici Curiae Supporting Petitioner Changzhou Sinotype Technology Co., Ltd, at 6, Changzhou Sinotype Tech. Co. v. Rockefeller Tech. Invs. (Asia) VII, 141 S. Ct. 374 (2020) (No. 20-238).

32 John F Coyle, Robin J Effron & Maggie Gardner, “Contracting around the Hague Service Convention,” (2019) 53 University of California at Davis Law Review Online 53, 60; Brief for the Petitioner, Changzhou Sinotype Tech. Co. v. Rockefeller Tech. Invs. (Asia) VII, 141 S. Ct. 374 (2020) (No. 20-238) at 4. John F Coyle, How California Broke the Hague Service Convention – TLBlog.org, Transnational Litigation Blog (2022), available at https://tlblog.org/how-california-broke-the-hague-service-convention/.

33 Eg, Coyle, Effron & Gardner ibid; Jie (Jeanne) Huang, Changzhou Sinotype Technology Co., Ltd, Hague Service Convention and Judgment Enforcement in China, available at https://conflictoflaws.net/2020/changzhou-sinotype-technology-co-ltd-hague-service-convention-and-judgment-enforcement-in-china/; Apostolos Anthimos, Supreme Court of California (Rockefeller Tech. Invs. (Asia) VII v. Changzhou Sinotype Tech. Co. Ltd). A European Reading of the Ruling, available at https://conflictoflaws.net/2020/supreme-court-of-california-rockefeller-technology-investments-asia-v-changzhou-sinotype-technology-co-ltd-a-european-reading-of-the-ruling/.

34 See infra Section D.2(a).

35 Declaration of the Netherlands, https://www.hcch.net/en/instruments/conventions/status-table/notifications/?csid = 413&disp = resdn.

36 Eg, UN Convention on the Rights of the Child, opened for signature 20 Nov. 1989, 1577 UNTS 3, Art 52 [“Convention on Rights of the Child”] allows a State Party to denounce the Convention by written notification. It has no provision to allow or forbid a private party to opt out of it. For denunciation, see eg, European Commission for Democracy Through Law (Venice Commission), Report on the Domestic Procedures of Ratification and Denunciation of International Treaties, Strasbourg, 22 March 2022, CDL-AD (2022)001, Opinion No. 1045/2021.

37 UN Convention on Contracts for the International Sale of Goods opened for signature on 11 April 1980, 1489 UNTS 59, Art 6 allows private parties to exclude its application, derogate from, or vary the effect of any of its provisions.

38 UN Convention on the Use of Electronic Communications in International Contracts, opened for signature Jan. 16, 2006, UN Doc A/60/21, Art 3.

39 UN Convention on International Settlement Agreements Resulting from Mediation, opened for signature Aug. 7, 2019, UNTS 3369 C.N.154.2019, Art 8 .1(b) allows a member state to declare to apply the Convention only to the extent of private parties’ agreement.

40 Jie (Jeanne) Huang, “Procedural Models to Upgrade BITs: China’s Experience”, (2018) 31 Leiden Journal of International Law 93, 96; Rudolf Adlung and Martin Molinuevo, “Bilateralism in Services Trade: Is There Fire Behind the (BIT-) Smoke?”, (2008) 11 Journal of International Economic Law 365, 370.

41 Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, opened for signature March 18, 1970, 847 UNTS 231, [hereafter Hague Evidence Convention, or the HCCH Evidence Convention].

42 For the nature of the HCCH Evidence Convention, see Hague Conference on Private International Law, Practical Handbook on the Operation of the Evidence Convention 9–12 (2016).

43 Eg, in the United States, private parties can rely on the Federal Rules of Civil Procedure rather than the Hague Evidence Convention for taking evidence in another Contracting State, Société Nationale Industrielle Aérospatiale v. United States District Court, 482 U.S. 522, 107 S.Ct. 2542 (1987). For comments, see Martin Davies, “Bypassing the Hague Evidence Convention: Private International Law Implications of the Use of Video and Audio Conferencing Technology in Transnational Litigation”, (2007) 55 American Journal of Comparative Law 205, 208. In contrast, many other Contracting States forbid private parties to bypass the Evidence Convention. For example, China requires taking evidence in China for proceedings in another Contracting State to the Hague Evidence Convention should go through the Convention, see Xiongbin Qiao, “Analysis on Implementation of the Hague Evidence Convention in China [Haiya Quzheng Gongyue zai Woguo de Shizheng Fenxi]”, (2010) 4 Journal of Political Science and Law [Zhengfa Luncong] 205, 205.

44 Convention on the Rights of the Child, supra n 36, Art 38.2.

45 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 17 Dec 1997, Art 2, available at https://www.oecd.org/corruption/oecdantibriberyconvention.htm [“Bribery Convention”].

46 UN Convention on the Law of the Sea, opened for signature Dec. 10, 1994, 1833 UNTS 397. [“UNCLOS”].

47 HSC, Arts 8, 10, 21. Table Reflecting Applicability of Articles 8(2), 10(a)(b) and (c), 15(2) and 16(3) of the HSC, available at https://assets.hcch.net/docs/6365f76b-22b3-4bac-82ea-395bf75b2254.pdf.

48 Regional service mechanisms include eg, the Inter-American Convention on Letters Rogatory, Jan. 30, 1975, 1438 UNTS 263, 14 International Legal Materials 325; Additional Protocol, May 8, 1979, 1438 UNTS 322; Regulation 2020/1784 of the European Parliament and of the Council of Nov. 25, 2020, on the service in the Member States of judicial and extra judicial documents in civil and commercial matters (service of documents) (recast), 2020 OJ L405/40, 40 [“Regulation 2020/1784”].

49 Summary of Responses to the Questionnaires on the Use of Information Technology in the Operation of the HCCH Service and Evidence Conventions, 5, (2019) available at https://www.hcch.net/en/instruments/conventions/publications1/?dtid = 33&cid = 17. The 2019 survey conducted by the Hague Conference on Private International Law received 34 responses from its Members, among them 91% rated favourably the general operation of the HSC.

50 Eric Porterfield, “Too Much Process, Not Enough Service: International Service Of Profess Under The HSC”, (2013) 86 Temple Law Review 331, 331. For example, India does not provide an estimated time for execution of a request; in China, the time for execution of a request is around 6 months; in Australia, this time is 3 months or more; in the United States, this time is within 30 business days of receipt. See HCCH, Central Authority & practical information for the HSC, available at https://www.hcch.net/en/instruments/conventions/status-table/?cid = 17. In Teetex LLC v. Zeetex, LLC (ND Cal Sept 7, 2022) 2022 US Dist LEXIS 161443, at 3, the plaintiff first attempted to serve the defendant in China via the Chinese Central Authority. In more than six months, the plaintiff inquired with the Chinese Central Authority on three occasions and received no response. In contrast, the time to effect service is within one month of receiving documents between EU Member States: Regulation 2020/1784, Art 11(2) supra n 48.

51 Kadmon Corp., LLC v. Ltd. Liab. Co. Oncon, 2023 U.S. Dist. LEXIS 36070, 2023 WL 2346340. Since June 1 2003, Russia has refused to execute US service requests under the HSC on objections to a fee imposed by the United States: US Department of State, Bureau of Consular Affairs, Judicial Assistance Country Information – Russian Federation, TRAVEL.STATE.GOV (Nov. 15, 2013), available at https://travel.state.gov/content/travel/en/legal/Judicial-Assistance-Country-Information/RussianFederation.html.

52 Jie (Jeanne) Huang, “Conflicting Declarations Under the Hague Service Convention Amid the Russo-Ukrainian War: Dilemmas and Preliminary Solutions”, (2022) 116 American Journal of International Law 752.

53 Eg, e-CODEX in the EU; Regulation 2020/1784, supra n 48, at Arts 5 and 19; see generally Apostolos Anthimos and Marta Requejo Isidro (eds), The European Service Regulation (Edward Elgar, 2023).

54 Electronic service includes service by fax, email, and social networking sites. See Summary of Responses to the Questionnaires on the Use of Information Technology in the Operation of the HCCH Service and Evidence Conventions (2014 and 2019), available at https://www.hcch.net/en/instruments/conventions/publications1/?dtid = 33&cid = 17. For a case that considered that electronic service to a defendant located in a state is not allowed if the state has made an opposition to postal service, see Smart Study Co. v. Acuteye-US, No. 1:21-cv-5860-GHW, 2022 U.S. Dist. LEXIS 129872 (S.D.N.Y. July 21, 2022). For cases holding a different view, see Sulzer Mixpac AG v. Medenstar Indus. Co., 312 F.R.D. 329 (S.D.N.Y. 2015); Fourte Int’l Ltd. BVI v. Pin Shine Indus. Co., No. 18-cv-00297-BAS-BGS, 2019 U.S. Dist. LEXIS 8723, at *2 (S.D. Cal. Jan. 17, 2019).

55 See infra Section D.2.

56 SC Symeonides, “The Scope and Limits of Party Autonomy in International Contracts: A Comparative Analysis”, in F Ferrari & DP Fernández Arroyo (eds), Private International Law: Contemporary Challenges and Continuing Relevance (Edward Elgar, 2019) 101. HCCH has endorsed party autonomy in many of its instruments such as the Convention on Choice of Court Agreements, Jun. 30, 2005, Art 5, available at https://www.hcch.net/en/instruments/conventions/full-text/?cid = 98 [hereinafter “Choice of Court Convention”]; and the Hague Principles on Choice of Law in International Commercial Contracts, Art 2, Mar. 19, 2015, available at https://www.hcch.net/en/instruments/conventions/full-text/?cid = 135.

57 Peter Nygh, Autonomy in International Contracts (Oxford University Press, 1999) 2.

58 Service of the claim by the contractually agreed method is allowed by eg, Civil Procedure Rules (1998), SI 1998/3132, r. 6.15 (UK); Uniform Civil Procedure Rules 2005 (NSW) r 10.5 (Austl.); and FED. R. CIV. P. 49(d).

59 See John F Coyle & Christopher R Drahozal, “An Empirical Study of Dispute Resolution Clauses in International Supply Contracts”, (2019) 52 Vanderbilt Journal of Transnational Law 323, 381–82 (finding that 19.6% of international supply agreements filed with the Securities and Exchange Commission contain service of process clauses).

60 Brief for Professor George A Bermann et al in support of Amici Curiae Supporting Petitioner Changzhou Sinotype Technology Co., Ltd, at 9.

61 See eg David McClean, “Service of Process” in Paul Beaumont and Jayne Holliday (eds) A Guide to Global Private International Law (Hart, 2022) 161, 164–65.

62 HSC, Art 1; Hague Conference on Private International Law, Special Commission on the HSC 2009, Prel Doc No 10, para 6.

63 486 U.S. 694 (1988).

64 Segers and Rufa BV v. Mabanaft GmbH, 28 ILM 1584, 1585 (1989).

65 Schlunk, at 700.

66 Ibid, at 707. See also Gallagher v. Mazda Motor of Am., Inc., 781 F. Supp. 1079, 1082 (E.D. Pa. 1992); Apollo Technologies Corp. v. Centrosphere Indus. Corp., 805 F. Supp. 1157, 1188–89 (D.N.H. 1992).

67 Segers and Rufa BV v. Mabanaft GmbH, 28 I.L.M. 1584, 1585 (1989).

68 Ibid.

69 Ibid.

70 Ibid, at 1586–87, where the Supreme Court of the Netherlands held that, according to Dutch law, the HSC is applicable in all cases when the defendant domiciled in one of the Contracting States to the Convention and a document has to be sent abroad for service or notification. Therefore, a notice of appeal intended for a defendant who has his domicile or his habitual residence in one of the Contracting States has to be seen as a document for which “there is occasion to transmit [it] for service abroad” within the meaning of Art 15 of the Convention. Consequently, the Supreme Court of the Netherlands concluded that the Convention should be applied, and no default judgment could be entered.

71 Water Splash, Inc. v. Menon, 137 S. Ct. 1504, 1513 (2017).

72 Anna Nylund and Antonio Cabral (eds), Contractualisation of Civil Litigation (Intersentia, 2023) 3.

73 Ibid, 26–31; Antonio Cabral, “Designing Procedure by Contract: Litigation Agreements in Contemporary Civil Procedure Debate”, (2019) 9 International Journal of Procedural Law 363, 364.

74 Nylund and Cabral, supra n 72, 7.

75 Eg, John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 (Austl.), at [99]-[100] (“[M]atters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure.”)

76 Ibid.

77 Service should not be conducted in a manner contrary to the law of the country where service is to be effected. For England and Wales see eg, Civil Procedure Rules (1998), SI 1998/3132, at r. 22(3), and 6.40(4); Ferrarini S.p.A. & Others v. Magnol Shippinh Co. Inc. (The “Sky One”) [1988] 1 Lloyd’s Rep. 238 (CA); for Australia, see eg, Federal Court Rules 2011 (Cth) r 10.43(2) (Austl.), Sanum Investments Limited v ST Group Co., Ltd (No.2) [2019] FCA 1047. Cf. Habib Bank Ltd v Central Bank of Sudan [2007] 1 WLR 470 (England and Wales) (personal service in Sudan is proper even though not provided for in Sudanese law).

78 Lord Collins of Mapesbury and Jonathan Harris (eds), Dicey, Morris and Collins on the Conflict of Laws (16^th edn, Sweet & Maxwell, 2022) 10–077.

79 Ibid, 10–062, 10–073 (indicating that in the context of the HSC, the notification of opposition to the non-Central Authorities Methods of Service is conclusive as to whether these Methods have been excluded in the relevant state of destination).

80 Ralli Bros v Compania Naviera Sota y Aznar, [1920] 2 KB 287 at 304.

81 Foster v Driscoll [1929] 1 KB 470, 521 (focusing on “the real object and intention of the parties necessitates them joining in an endeavour to perform in a foreign and friendly country some act which is illegal by the law of such country”). Unlike Foster, Ralli Bros “is concerned only with whether the contract between the parties necessarily involves the performance of an act which is illegal by the law of the place of performance, irrespective of the object and intention of the parties”, see Magdeev v Tsvetkov [2020] EWHC 887, [307]. Similarly, in Australia, according to Fullerton Nominees P/L v Damargo, [2000] WASCA 4, Australian courts will not enforce an action on a contract which, though lawfully made in Australia, was made to violate the laws of a friendly country.

82 [1929] 1 KB 470, 510 per Lawrence LJ. FA Mann, “Illegality in the Conflict of Laws” (1956) 19 Modern Law Review 523, 523.

83 Art 9(3) of the Rome I Regulation (providing that regard shall be had to the nature, purpose, and consequence of application or non-application of overriding mandatory provisions). See Jonathan Harris, “Mandatory Rules and Public Policy under the Rome I Regulation” in Franco Ferrari and Stefan Leible (eds), Rome I Regulation: The Law Applicable to Contractual Relations in Europe (European Law Publishers, 2009), 269, 318. Case C-135/15 Hellenic Republic v Nikiforidis [2016] ECLI:EU:C:2016:774, [2017] I.C.R. 147, at [50]–[51].

84 § 360(1) of Restatement 1^st of Conflict of Laws.

85 §§ 188, 198-202, and 204–207 of Restatement 2^nd of Conflict of Laws.

86 Comment (c) of Restatement 2^nd of Conflict of Laws §202.

87 Restatement 2^nd of Conflict of Laws §202(2).

88 New York Life Ins. v Dodge, 246 U.S. 357; Zimmerman v. Sutherland, 274 U.S. 253; Mayer v. Hungarian Commercial Bank, 21 F. Supp. 144, 148–49 (1937).

89 Vienna Convention on the Law of Treaties, opened for signature on 23 May 1969, 1155 UNTS 331.

90 Guide to Practice on Reservations to Treaties 2011, [2011] 2(2) Y.B. Int’l L. Comm’n 26, U.N. Doc. A/CN.4/SER.A/2011/Add.1.

91 VCLT, supra n 89, at Art 2(1)(d); see also Guide to Practice, supra n 90, at Arts 1.1.1 and 1.1.6.

92 Guide to Practice, supra n 90, at Art 1.2.

93 Marco Benatar, “From Probative Value to Authentic Interpretation-the Legal Effects of Interpretative Declarations” (2011) 1–2 Revue Belge de Droit International 170, 177, 179.

94 Palitha TB Kohona, “Some Notable Developments in the Practice of the UN Secretary-General as Depositary of Multilateral Treaties: Reservations and Declarations” (2005) 99 American Journal of International Law 433, 447. The Guide to Practice excludes policy or political declarations from its examination of reservations and declarations, see Art 1.5 of the Guide to Practice, supra n 90.

95 For the names of these States, see infra notes 96, 97, and 98.

96 Statements labelled as declarations under Arts 8 or 10 of the HSC (55 states): Austria, Andorra, Argentina, Azerbaijan, Belgium, Botswana, Bulgaria, China, Croatia, Cyprus, Czech, Denmark, El Salvador, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Israel, Japan, Kuwait, Latvia, Lithuania, Luxembourg, Malta, Marshall Islands, Mexico, Monaco, Nicaragua, Norway, Pakistan, Paraguay, Philippines, Portugal, Korea, Moldova, Romania, Saint Vincent, San Marino, Serbia, Seychelles, Singapore, Slovakia, Slovenia, Sri Lanka, Sweden, Switzerland, Tunisia, Turkey, Ukraine, UK, Venezuela, Vietnam. For Austria, see https://www.hcch.net/en/instruments/conventions/status-table/notifications/?csid = 1425&disp = resdn.

97 Statements labelled as reservations: Georgia, Poland, and Brazil. For Brazil, see https://www.hcch.net/en/instruments/conventions/status-table/notifications/?csid = 1399&disp = resdn.

98 Statements with unspecified labels: Australia, Iceland, Montenegro, North Macedonia, Russia, Egypt, and India. For India, see https://www.hcch.net/en/instruments/conventions/status-table/notifications/?csid = 984&disp = resdn.

99 On their HCCH official webpages, the heading in the status tables is common to all HCCH conventions whether or not they have “reservations”.

100 Out of 97 Contracting States, 23 use “declare” in their statements and none makes reservations or use “reserve” in their statements. See Status of CISG, supra n 37, https://uncitral.un.org/en/texts/salegoods/conventions/sale_of_goods/cisg/status.

101 4 out of 15 Contracxting States use declarations to delimitate the Convention’s scope of application in their territories and none makes reservations or uses “reserve” in their statement. See UN Commission on International Trade Law, Status: Convention on Electronic Communications, supra n 38, https://uncitral.un.org/en/texts/ecommerce/conventions/electronic_communications/status.

102 The Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, ratified by 126 Contracting States, is the most widely adopted HCCH convention. None of those States makes reservations or uses “reserve” in their statement. See HCCH, Status Table: Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, available at https://www.hcch.net/en/instruments/conventions/status-table/?cid = 41. Regarding the Choice of Court Convention, 29 out of 33 Contracting Parties made declarations according to Arts 19, 20, 21, 22, 26, 28, or 30 under the Choice of Court Convention. See HCCH, Status Table: Convention of 30 June 2005 on Choice of Court Agreements, available at https://www.hcch.net/en/instruments/conventions/status-table/?cid = 98. The HCCH website indicates that the UK made both declarations, reservations, and depositary communications, but the detailed statement made by the UK is divided into two sections (ie Notice from the Depositary and Declarations), available at https://www.hcch.net/en/instruments/conventions/status-table/notifications/?csid = 1318&disp = resdn.

103 Mark E Villager, Commentary on the 1969 Vienna Convention on the Law of Treaties (2009) 267 (indicating that “reservations are permitted”).

104 Rome Statute of the International Criminal Court, (Jul. 17 July 1998), 2187 UNTS 90., Art 120 (indicating “[n]o reservations may be made to this Statute”). For other treaties explicitly prohibiting reservations, see eg, Convention on Biological Diversity, (Jun. 5, 1992), 1760 UNTS 79., Art 37, and United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, (Oct. 14, 1994), 1954 UNTS 3., Art 37.

105 UNCLOS supra n 46, at Arts 309–310 also forbid states to make reservations (unless expressly permitted elsewhere in the UNCLOS).

106 Ibid at Art 109: “No reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention.” For the “package deal” approach adopted at the negotiation conferences leading to UNCLOS, see George K Walker, “Professionals’ and States’ Interpretative Declarations (Understandings, Statements, or Declarations) for the 1982 Law of the Sea Convention”, (2007) 21 Emory International Law Review 461, 498.

107 Eg the statement made by India, supra n 98. See also the statement made by Egypt which contains the word “declaration”, but it is under the title of “reservation”, see Egypt, available at https://www.hcch.net/en/instruments/conventions/status-table/notifications/?csid = 398&disp = resdn.

108 Guide to Practice, supra n 90 Art 1.2. Jeremy Hill, Modern Treaty Law and Practice (Cambridge University Press, 2023) 136.

109 1577 UNTS 3 No. 27531; 28 ILM (1989); UKTS (1992) No. 44

110 Guide to Practice, supra n 90, Art 1.2. Hill, supra n 108, 137.

111 Eg Guide to Practice, supra n 90, Arts 1.5.1-1.5.3.

112 Hill, supra n 108, 140.

113 VCLT, supra n 89, at Art 20.1. For comments, see Villager, supra n 103 at 283–84. Notably, late reservations, modified reservations, or reservations submitted under a treaty that is silent on reservations will be accepted in the UN secretary-general’s deposit only if no state party objects to it within a specified period, see Palitha TB Kohona, “Some Notable Developments in the Practice of the UN Secretary-General as Depositary of Multilateral Treaties: Reservations and Declarations” (2005) 99 American Journal of International Law 433, 435, 438, and 443.

114 HSC, Art 8.

115 Ibid at Art 10.

116 UN Treaty Section of the Office of Legal Affairs, Treaty Handbook, at 3.5.5, UN Sales No E.12.V1 (2018), available at https://treaties.un.org/pages/Resource.aspx?path = Publication/TH/Page1_en.xml.

117 Hill (n 108) 149–150. ([Reservation] will not, therefore, be legally effective about another contracting state unless that state has accepted it either expressly or by necessary implication. The only exception is when a reservation has been expressly authorised by the treaty).

118 VCLT, supra n 89, at Art 20.2.

119 HSC, Preamble.

120 Ibid at Arts 21 and 31(e). VCLT supra n 89 at Art 20.2 indicates “it must transpire from the treaty’s object and purpose (together with the limited number of States) that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty.” For comments, see Villager supra n 103 at 285.

121 VCLT supra n 89 at Art 12.3.

122 Ibid at Art 12.5.

123 See Benatar, supra n 93, at 189.

124 VCLT supra n 89 at Arts 20.4 (a) and (c).

125 VCLT supra n 89 at Art 21.1. In the United States, the HSC is considered to be self-executory and the supreme law of the land binding upon the states: US CONST. art. VI, cl. 2. See eg, Vorhees v. Fischer & Krecke, 697 F.2d 574 (4th Cir. 1983). Courts have been compelled to recognise the supremacy of the HSC when it conflicts with state or federal service of process procedures, see eg, Ackermann v. Levine, 788 F.2d 830 (2d Cir. 1986). In many countries (eg, Canada and the UK), a treaty needs to be enacted into law by an appropriate legislative body before it and reservations made by other Contracting States can create domestic force, see J W Horn, “Service of Process Abroad – the Hague Convention and Other Matters”, (1991) 49 Advocate (Vancouver Bar Ass’n) 177, 177.

126 HSC, Art10(b) and (c).

127 Vienna Convention on Consular Relations, opened for signature April 18, 1961, 596 UNTS 261, Art 5(j).

128 VCLT, supra n 89, at Art 31.1.

129 HSC, Preamble. Addressees include both plaintiffs and defendants and even third parties in a litigation. However, in practice, disputes on service are typically brought by the defendants.

130 Ibid at Preamble, Arts 15-16.

131 Dieter Martiny, “Mutual Legal Assistance in Civil and Commercial Matters”, in Max Planck Encyclopedias of International Law, 15, available at https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/law-9780199231690-e965?prd = MPIL (last visited April 30, 2023).

132 HSC, Art 15.

133 Practical Handbook, supra n 4, at 4–5.

134 Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 Nov 1950, 1953 ETS No. 005 Art 6(1) [hereinafter ECHR]. Hadjianastassiou v Greece, 252 Eur. Ct. H.R. (ser. A) at 29–37 (1992) (albeit a criminal case, the defendant’s lack of awareness of the grounds of judgment within the period allowed for bringing an appeal infringed the combined provisions of Arts 6(1) and (3) of the ECHR). The applicability of Art 6 (1) to civil cases is uncontested, see Council of Europe, “Guide on Article 6 of the European Convention on Human Rights-Right to a Fair Trial (Civil Limb)” (2022) 14. Charter of Fundamental Rights of the European Union, 2016 OJ C202/59, at Art 47 [hereinafter EU Charter]. Fernando Gascón Inchausti, “Service of proceedings on the defendant as a safeguard of fairness in civil proceedings: in search of minimum standards from EU legislation and European case-law”, (2017) 13 Journal of Private International Law 475, 475 (indicating “[t]he constitutionalization of the legal position of persons seeking justice, especially at the supranational level, is based on two prominent ideas: ‘access to justice’ and ‘fair trial’.”)

135 Samantha Besson, “Sovereignty”, in Max Planck Encyclopedias of International Law, 139 (2011), available https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/law-9780199231690-e1472.

136 Karen Knop and Annelise Riles, “Space, Time, and Historical Injustice: A Feminist Conflict-of-Laws Approach to the Comfort Women Agreement” (2016) 102 Cornell Law Review 853, 914.

137 HSC, Art 13.

138 Practical Handbook, supra n 4, at 72.

139 BVerfG, 2 BvR 1198/03, July 25, 2003, https://dejure.org/dienste/vernetzung/rechtsprechung?Gericht = BVerfG&Datum = 25.07.2003&Aktenzeichen = 2%20BvR%201198/03. Other similar cases rejecting a service request due to violating German sovereignty include Rechtsprechung OLG Koblenz, June 27, 2005, 12 VA 2/04. For comments, see Hans-Eric Rasmussen-Bonne, “The Pendulum Swings Back: The Cooperative Approach of German Courts to International Service of Process”, in Peter Hay et al (eds) Resolving International Conflicts, (Central European University Press, 2009) 234.

140 Practical Handbook, supra n 4, at 73.

141 Ibid.

142 HSC, Art 13.

143 Zheng Sophia Tang, Yongping Xiao, and Zhengxin Huo, Conflict of Laws in the People’s Republic of China (Elgar Asian Commercial Law and Practice, 2016) 119.

144 At the time of the attempted service by FedEx on Changzhou, the relevant provision of the CPL was numbered Art 261. There is no material difference between former Art 261 and current Art 277.

145 Rasmussen-Bonne, supra n 139 at 237, 239 (service has long been characterised as “an exercise of sovereign administrative authority … ”).

146 For South Korea, see Kwang Hyun Suk, “Country Report South Korea”, in Adeline Chong (ed), Recognition and Enforcement of Foreign Judgments in Asia (Asian Business Law Institute, 2017) 194. For Japan, see Keisuke Takeshita, “Sovereignty and National Civil Procedure: An Analysis of State Practice in Japan”, (2016) 9 Journal of East Asia & International Law 361–378 (“[f]rom perspective of the Japanese state, certain judicial acts of foreign courts, such as the service of court notices and the receipt of evidence, are considered as a manifestation of sovereignty”). See also Toshiyuki Kono, “Country Report Japan”, in Chong (ed) ibid, 111 (indicating “as a matter of fact”, Japan does not consider service by post [under the HSC] as violating its sovereignty, “but not as a new lawful service”). The Supreme Court of Japan held that service by a consignee privately hired by a plaintiff did not comply with the HSC: Saikō Saibansho [Sup.Ct.] 28 Apr 1998, 1994 (O) 1838 Minshū No 52-3, at 853.

147 Cookney v Anderson, per Lord Westbury L.C. (1863) 1 De G. J. & S. 365, 46 E.R. 146.

148 McClean, supra n 61, 163 and Dicey, Morris and Collins, supra n 78, 10-062.

149 Declaration/Reservation/Notification – Australia, HCCH Australia, available at https://www.hcch.net/en/instruments/conventions/status-table/notifications/?csid = 1062&disp = resdn. Because registered mail is a type of postal service under Article 10(a) of the HSC it is debatable whether Australia’s requirement of registered mail is a reservation.

150 See Reid Mortensen, Richard Garnett and Mary Keyes, Private International Law in Australia (3rd edn, LexisNexis Butterworths, 2015) 69–71.

151 See supra n 98. Punjab National Bank (International) Ltd. v. Boris Shipping Ltd. and Ors, [2019] EWHC 1280 (QB).

152 Zulfiquar Memon et. al, India: Strict Compliance Of Section 29(C) Of The Code Of Civil Procedure Code, 1908 By Foreign Courts Under The Hague Convention, 1965, MONDAQ, https://www.mondaq.com/india/civil-law/1124346/strict-compliance-of-section-29c-of-the-code-of-civil-procedure-code1908-by-foreign-courts-under-the-hague-convention-1965 (last visited May 24, 2023); Mondaq, India: Process Of Service Of Summons In India Under The Hague Convention, MONDAQ, https://www.mondaq.com/advicecentre/content/2794/Process-Of-Service-Of-Summons-In-India-Under-The-Hague-Convention.

153 Anupama Sharma v Union of India, (2014) SCC Online Bom 229 (Bombay High Court), at 11 (although India opposed Art 10 of the HSC and the summons were delivered by private means, the court held that the Petitioner should challenge the service before the New York Court if it “has any objection regarding service of the said summons on the ground that it is not originated from the authority of the Judicial officer”).

154 Stellina Jolly & Saloni Khanderia, Indian Private International Law, (Hart, 2021) 81–82.

155 Singapore-declarations, https://www.hcch.net/en/instruments/conventions/status-table/notifications/?csid = 1512&disp = resdn.

156 Ong & Co. v Chow YL Carl [1987] SLR(R) 281 (holding that service of a writ is an exercise of judicial power) was overturned by Humpuss Sea Transport Pte Ltd (in compulsory liquidation) v PT Humpuss Intermoda Transportasi TBK and another [2015] SGHC 144.

157 Sufficient time to defend a case refers to the time at which proceedings are commenced. Under the Brussels Convention, the possibility of having recourse at a later stage against a judgment given in default of the defendant’s appearance, should not be considered as an equally effective alternative to defending the proceeding before judgment is delivered, see Case C-123/91, Minalmet v Brandeis [1992] ECR I-5674, at § 19. Nevertheless, Art 34(2) of the Brussels I Regulation requires the defendant to commence proceedings to challenge the judgment when they could do so, see Case C-283/05 ASML Netherlands BV v Semiconductor Industry Services GmbH EU:C:2006:787.

158 Case 166/80 Klomps v Michel, [1980] ECR 414, at § 20.

159 Ibid, at § 21.

160 Case 49/84 Debaecker v Bouwman [1985] ECR 713, at § 19–20 (the circumstances include whether a plaintiff informed the defendant of pending litigation at the defendant’s new address after correct service).

161 Ibid.

162 Case C-305/88 Lancray v Peters [1990] ECR I-2742, at § 22-31; Case C-522/03 Scania Finance France v Rockinger EU:C:2005:606, at § 26.

163 [2008] UKHL 1, [2008] 1 WLR 180, paras 20 and 29.

164 Ibid, para 31.

165 Other authorities include Olafsson v Gissurarson (No. 2), [2008] EWCA Civ 152, [2008] 1 WLR 2016; Golden Ocean Assurance Ltd v Martin (The Goldean Mariner) [1990] 2 Lloyd’s Rep 215. Notably, all these authorities do not involve violation of the sovereignty of the State of destination.

166 Dicey, Morris and Collins, supra n 78, 10-062.

167 Ibid, 11R-062.

168 Ibid, 11R-037. Burnham v. Superior Court of California, 496 U.S. 604 (1990).

169 For England and Wales, see Civil Procedure Rules (1998), SI 1998/3132 (UK), at r. 6.36 and Practice Direction 6B; Jonathan Hill and Adeline Chong, International Commercial Disputes: Commercial Conflict of Laws in English Courts (4th Edn, Hart Publishing, 2010) 219; Ardavan Arzandeh, “‘Gateways’ within the Civil Procedure Rules and the Future of Service-out Jurisdiction in England” (2019) 15 Journal of Private International Law 516, 518. For Australia, see eg UCRP (2005, NSW) Sch 6. For the US, see eg New York Consolidated Laws, Civil Practice Law and Rules – CVP § 302; Allan Ides and Christopher N May, Civil Procedure: Cases and Problems (ASPEN Law & Business 2003) 50.

170 McClean, supra n 61, at 160-61; FED.R.CIV.P. 4(K)(1). Omni Capital International Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987) (quoting Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444–45 (1946) (“[S]ervice of summons is the procedure by which a court … asserts jurisdiction over the person of the party served.”)

171 See eg, Comprehensive Merch. Catalogs, Inc. v. Madison Sales Corp., 521 F.2d 1210 (7th Cir. 1975); Nat’l Equip. Rental, Ltd. v. Dec-Wood Corp., 51 Misc. 2d 999, 274 N.Y.S.2d 280 (App. Term 1966).

172 Inchausti, supra n 134, 481.; Dilipak and Karakaya v. Turkey (Appl. no. 7942/05 &24838/05), (2014), at §§ 80 and following; Aždajić v. Slovenia (Appl. no. 71872/12), (2015), at §§ 50 and following.

173 Ibid.

174 Ibid.

175 Rule 4(d) of the FRCP. Notably, the reference to waiver of service under Federal Rule 4(d)(3), in effect, permits “service” by mail and requires more than just notice. The contents for formal service and service by mail are not different. Ides and May, supra n 169, 219–20.

176 2023 U.S. Dist. LEXIS 95958 *2; 2023 WL 3795302.

177 Ibid.

178 Ibid.

179 Orsi v. Falah, No. 11-10451-DPW, 2012 U.S. Dist. LEXIS 136798, 2012 WL 4469120, at *1, 4 (D. Mass. Sept. 25, 2012) (denying a FRCP Rule 4(f)(3) motion to serve a member of the United Arab Emirates royal family by alternate means of service to avoid offence to foreign jurisdictions).

180 Abubakri Yekini & Paul Beaumont, “Pragmatism and Private International Law”, in Paul Beaumont & Jayne Holliday (eds), A Guide to Global Private International Law (Hart, 2022) 17, 20–21.

181 Case of Sovtransavto Holding v Ukraine, (Appl. no. 48553/99), (2002), at § 81.

182 Council Regulation (EC) 44/2001 of 22 December 2000, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 2001 OJ L21/1, 10, Art 34(2); Regulation (EU) 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), 2012 OJ L351/1, 15, Art 45(1)(b).

183 ASML Netherlands BV v Semiconductor Industry Services (“ASML”), EU:C:2006:787, at § 18–20

184 Ibid, at § 47.

185 Inchausti, supra n 134, 499.

186 FRCP, Rule 23(c)(2).

187 Eg, Norflet ex rel. Norflet v. John Hancock Life Ins. Co., 658 F. Supp. 2d 350 (D. Conn. 2009).

188 Ides and May, supra n 169, 228.

189 Schlunk, at 701.

190 Ibid. See also Gary B Born & David Westin, International Civil Litigation in United States Courts: Commentary and Materials, 153 (2d edn, Springer, 1992) (defining service of process as a procedure by which a plaintiff delivers to a defendant a complaint and a summons, which directs the defendant to answer to the complaint.)

191 260 Cal. Rptr. 3d, at 449–50.

192 Art 5 of the HSC, The Practical Handbook, supra n 4, 59 (Chart I operation of the main channel of transmission).

193 Arts 6 and 7 of the HSC.

194 Practical Handbook, supra n 4, at LII and page 60-Chart 3 (Art 15: defendant’s protection before decision).

195 Ibid, page 59-Chart 2 (Operation of the alternative and derogatory channels of transmission).

196 Rockefeller, at 449.

197 Practical Handbook, supra n 4, at 55.

198 Ibid.

199 Practical Handbook, supra n 4, at 53.

200 Convention of 7 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, opened for signature 2 July 2019, available at https://www.hcch.net/en/instruments/conventions/full-text/?cid = 137.

201 Ibid, at Art 7(1)(a)(ii); Choice of Court Convention, supra n 102, at Art 9(c)(ii).

202 Francisco Garcimartín & Geneviève Saumier, Explanatory Report on the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, ¶ 251.

203 Trevor Hartley & Masato Dogauchi, Explanatory Report on the Convention of 30 June 2005 on Choice of Court Agreements, footnote 223.

204 Garcimartin & Saumier, supra n 202, at 251–53; Hartley & Dogauchi Report, supra n 203, at n 187.

205 Similarly, Chinese courts have refused to recognise and enforce two Uzbekistan judgments on public policy grounds, because the service of process was inconsistent with the China-Uzbekistan Judicial Assistance Treaty and infringed on China’s judicial sovereignty. Choryanasixizmat Co., Ltd v. Huoerguosi Haihong Trade Co., Ltd, 2011 Min Si Ta Zi Di 18 Hao (Urumqi Interm. People’s Court, 2011) and Uzprommashimpeks Co. v. Wenzhou Jinshi Entertainment Apparatus Manufacturing Co., Ltd., 2014 Min Si Ta Zi Di 9 Hao (Wenzhou Interm. People’s Court, 2014).

206 Judgments Convention, supra n 200, at Art 7(1)(a)(i)-(ii); Choice of Court Convention, supra n 102, at Art 9(c)(i)-(ii). Notably, the French text has notifié and notification. In the service context, both provisions in French were influenced by the practice in France where signification is affected by a huissier de justice and notification is service by any other means, and both contrasted with remise simple or simple delivery.

207 Ronald A Brand and Paul Herrup, The 2005 Hague Convention on Choice of Court Agreements: Commentary and Documents (Cambridge University Press, 2008) 113.

208 Ibid.

209 Hague Judgments Convention, supra n 200 at Art 7(1)(a)(ii); Choice of Court Convention, supra n 102, at Art 9(c)(ii). Brand and Herrup, supra n 207, at 110.

210 For criticism of fictitious service, see Dicey, Morris and Collins, supra n 78, 10-065.

211 Private contracts for service or notice of process should comply with due process of law, and notice should be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action”: Mullane v. Central Hanover Bank & Trust Co., 339. U.S. 306, 314 (1950).

212 Underwood Farmers Elevator v Leidholm, 460 N.W.2d 711 (N.D. 1990).

213 Schlunk, 486 U.S. 694 (1988).

214 See supra n 36-47.

215 Hilton v. Guyot, 159 U.S. 113, 16 S. Ct. 139 (1895), at [*163].