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Published online by Cambridge University Press: 27 February 2017
In this first decision by the United States Supreme Court on the scope and application of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, better known as the Hague Service Convention, petitioner, a West German company, challenged the respondent’s attempt to serve process on petitioner by serving its wholly owned U.S. subsidiary in accordance with the state’s rules rather than pursuant to the procedures of the Convention. The Circuit Court of Cook County, Illinois, found that the relationship between the German parent and the U.S. subsidiary was such that, under state-law rules of agency, the U.S. subsidiary was the parent’s involuntary agent for service of process. Because service could thus be perfected entirely within the United States, the court held that it was not necessary to follow the procedures of the Hague Service Convention. The Illinois Appellate Court affirmed, and the Illinois Supreme Court denied leave to appeal. The U.S. Supreme Court (per O’Connor, J.) affirmed and held: (1) the Hague Service Convention is “mandatory” and preempts inconsistent state-law methods of service in all cases to which it applies; (2) the Convention applies where there is occasion to transmit a document abroad to charge persons with formal notice of a pending action; and (3) whether it is necessary to transmit a document abroad for such purposes is determined by the forum state’s internal law.
1 Opened for signature Nov. 15, 1965, 20 UST 361, TIAS No. 6638, 658 UNTS 163 [herein after Convention].
2 145 Ill. App. 3d 594, 503 N.E.2d 1045 (1986).
3 112 Ill.2d 595 (1986).
4 108 S.Ct. 2104, 2108.
5 Id..
6 Id. at 2109–10.
7 Convention, supra note 1, Art. 1.
8 108 S.Ct. at 2109–10 (quoting the Preamble to the Convention, supra note 1).
9 Id. at 2110.
10 Id. at 2112.
11 Id.
12 Id. at 2114 (Brennan, J., concurring).
13 Id. at 2113 (quoting the Preamble to the Convention, supra note 1).
14 Id. at 2112.
15 Id. at 2115 (quoting 3 Conférence de La Haye de Droit International Privé, Actes et Documents de la Dixième Session (Notification) 367 (1965) (emphasis supplied by Justice Brennan)).
16 See, e.g., Hantover, Inc. v. Omet S.N.C. of Volentieri & C., No. 87-1140-CV-W-JWO (W.D. Mo.-June 9, 1988); Pochop v. Toyota Motor Co., 111 F.R.D. 464 (S.D. Miss. 1986).
17 The Court’s opinion suggests a different distinction. The majority concluded that, if service is deemed completed domestically, subsequent communications abroad do not implicate the Convention if they are private in nature. Presumably, service by mail could be distinguished on the ground that it requires the intervention of public authorities (i.e., the postal authorities). This distinction, however, is unsatisfactory: should the result be any different if the services of a private courier were used? The distinction proposed in the text would distinguish service on an agent from forms of service requiring the intervention of any third party, whether public or private.
18 107 S.Ct. 2542 (1987), summarized in 81 AJIL 944 (1987).
19 See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950). The petitioner in Schlunk did not challenge either the constitutionality of the method of service employed or the state’s basis for personal jurisdiction over it, and the Supreme Court accordingly did not address those issues. Compare Cannon Mfg. Co. v. Cudahy Packing Co., 267 U.S. 333 (1925) (activities within forum state of a wholly owned subsidiary are not sufficient to subject parent corporation to forum’s jurisdiction).