SCOTUS Symposium: Answering a longstanding question

In Water Splash v. Menon, the Supreme Court finally resolved the question of whether the Hague Service Convention's provision allowing litigants to "send judicial documents by postal channels" allows service by mail or merely allows delivery by mail once proper service of process has already been made under other provisions of the convention.

On May 22, the Court unanimously (except for Justice Gorsuch, who was not sitting) held that the convention authorizes service by mail in any country with a very important caveat: the receiving state must not have objected to service by mail and indeed must affirmatively authorize mail service in litigation:

"To be clear, this [holding] does not mean that the Convention affirmatively authorizes service by mail. Article 10(a) simply provides that, as long as the receiving state does not object, the Convention does not 'interfere with . . . the freedom' to serve documents through postal channels. In other words, in cases governed by the Hague Service Convention, service by mail 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."

The Court began with a textual analysis, noting that even if "send" should be interpreted to mean something different than "serve" (which was used in other provisions), "[t]hat would not imply that [it] must exclude service. Instead, "send[ing]" could be a breader concept that includes service but is not limited to it."  The Court also found "[t]hree extratextual sources . . . especially helpful" in interpreting the provision: the Convention's drafting history, the consistent views of the Executive Branch over the last half-century, and the views of other signatories to the convention. It concluded that all sources weighed in favor interpreting "send" to include initial service.

It may seem like a minor question, but any litigator who handles transnational cases has probably come across the issue--the question has been litigated for more than thirty years and has been a frequent topic for scholarly writing. The circuits were sharply divided--the Second, Fourth, Seventh, and Ninth Circuits had held that the Hague Convention allowed service by mail, whereas the Fifth Circuit, Eighth Circuit, and district courts in the Third and Eleventh Circuits had held that it did not. The issue had arisen in more than 120 reported cases.

Water Splash may not be the most exciting case of the term, but having a definitive answer will make make a lot of litigators' lives easier and will save on litigation costs. At least until more parties start litigating the question of whether email counts as a "postal channel" for purposes of service...