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Published online by Cambridge University Press: 27 February 2017
* [Reproduced from the slip opinion provided by the U.S. Supreme Court. The concurring opinion appears at I.L.M. page 1100. The Supreme Court's opinion in the Aerospatiale case appears at 26 I.L.M. 1021 (1987). [The Hague Convention on Service Abroad of Judicial and Extra-judicial Documents in Civil and Commercial Matters appears at 4 I.L.M. 341 (1965).]
* The concurrence believes that our interpretation does not adequately guarantee timely notice, which it denominates the “ primary” purpose of the Convention, albeit without authority. Post, at 4. The concurrence instead proposes to impute a substantive standard to the words, “service abroad.” Post, at 2. Evidently, a method of service would be deemed to be “service abroad ” within the meaning of Article 1 if it does not provide notice to the recipient “in due time.” Post , at 6, 8. This due process notion cannot be squared with the plain meaning of the words, “ service abroad.”The contours of the concurrence's substantive standard are not defined and we note that it would create some uncertainty even on the facts of this case. If the substantive standard tracks the Due Process Clause of the Fourteenth Amendment, it is not self-evident that substituted service on a subsidiary is sufficient with respect to the parent. In the only cases in which it has considered the question, this Court held that the activities of a subsidiary are not necessarily enough to render a parent subject to a court's jurisdiction, for service of process or otherwise. Cannon Mfg. Co. v. Cudahy Packing Co., 267 U. S. 333, 336-337 (1925); Consolidated Textile Co. v. Gregory, 289 U. S. 85, 88 (1933); see 18A W. Fletcher, Cyclopedia of Law of Private Corporations § 8773 pp. 250-254 (rev. ed. 1988). Although the particular relationship between VWAG and VWoA might have made substituted service valid in this case, a question that we do not decide, the factbound character of the necessary inquiry makes us doubt whether the standard suggested by the concurrence would in fact be “remarkably easy” to apply, see post, at 8.
1 The head of the United States delegation to the Convention described notification au parquet as follows: “ This is a system which permits the entry of judgments in personam by default against a nonresident defendant without requiring adequate notice. There is also no real right to move to open the default judgment or to appeal, because the time to move to open judgment or to appeal will generally have expired before the defendant finds out about the judgment Under this system of service, the process-server simply delivers a copy of the writ to a public official's office. The time for answer begins to run immediately. Some effort is supposed to be made through the Foreign Office and through diplomatic channels to give the defendant notice, but failure to do this has no effect on the validity of the service….“There are no … limitations and protections [comparable to due process or personal jurisdiction] under the notification au parquet system. Here jurisdiction lies merely if the plaintiff is a local national; nothing more is needed.” S. Exec. Rep. No. 6, at 11-12 (statement by Philip W. Amram). See also S. Exec. Doc. C, at 5 (letter of submittal from Secretary of State Rusk); Amram, The Revolutionary Change in Service of Process Abroad in French Civil Procedure, 2 Int'l Law. 650, 650-651 (1968).
2 3 Actes et Documents 367 (emphasis in original; footnote omitted): “ However, when confronted with the strict letter of the provision, one can always ask the question of knowing whether or not, when a State permits the service or notification of a person in a foreign country to be made (au parquet], the convention is applicable.
3 See S. Exec. Doc. C, at 8 (“[T]he convention … requires … major changes, in the direction of modern and efficient procedures, in the present practices of many other” nations)(emphasis added).
4 See S. Exec. Rep No. 6, at 7 (“It is to our great advantage to obtain binding commitments from other governments that they will adhere to [the] principles” embodied in due process)(statement by Richard D. Kearney) (emphasis added).
5 See S. Exec. Doc. C, at 1 (“[T]he convention makes important changes in the practices of many civil law countries, moving those practices in the direction of our generous system of international judicial assistance and our concept of due process in the service of documents“).
6 In words reiterated by Secretary of State Rusk, the delegation observed that “[i]n its broadest aspects the convention makes no basic changes in U. S. practices.”S. Exec. Doc. C, at 20.See alsoid., at 8