Domestic Waiver Obviates Need for Service Abroad

Rockefeller Tech. Inv. (Asia) VII v. Changzhou Sinotype Tech., Ltd., No. S249923 (Cal. Apr. 2, 2020)

Back in 2018, the Court of Appeal vacated an arbitration award entered by default. The defaulting defendant agreed in a contract to service by FedEx. But the Court of Appeal ruled that FedEx service was nonetheless impermissible, because the defendant was in China and China objected to Article 10 of Hague Service Convention, which permits service through postal channels. As I said back then, the reasoning of the case seemed somewhat overbroad. Evidently, the California Supreme Court agreed, as it granted review and here reverses the Court of Appeal.

Indeed, the Supreme Court seems to have found the Court of Appeal’s decision even more overbroad then I did. In a unanimous opinion by Justice Corrigan, the Court discerns three principles out of the U.S. Supreme Court’s Hague Convention jurisprudence. First, the Hague applies only to “service of process in the technical sense,” i.e., to the process for formal delivery of whatever documents the lexi fori—the law of forum jurisdiction—determines are required to establish jurisdiction and notice. Second, whether there is occasion for transmission of documents for service abroad is also a lex fori issue. And third, if foreign service of process is required, that service must comply with the Hague.

Here, the analysis doesn’t need to get past step two. Service of process fulfills two roles. It is required for a court to establish personal jurisdiction over the defendant. And it is required to afford the defendant notice of the proceedings. But under California law (and the law of every U.S. jurisdiction I’m aware of) a party can consent to both personal jurisdiction and the form of notice, even it would not otherwise satisfy statutory or constitutional standards. Both California and federal cases recognize that such consent can be obtained in a pre-dispute contract. 

Here, Defendant consented to personal jurisdiction in California when it agree to arbitrate its claims under the pertinent contract in a JAMS-administered arbitration in LA. See Code Civ. Proc. § 1293. It also consented to notice by FedEx as adequate “service of process.”  Indeed, with regard to arbitrations, the Code of Civil Procedure specifically recognizes that arbitration initiating documents can “be served in the manner provided in the arbitration agreement for the service of such petition and notice.” § 1290.4(a).

Thus, because, under California law, formal service was unnecessary based on the parties’ agreement, there was no occasion to transmit service of formal process abroad. That being the case, the Hague is not implicated.

Court of Appeal reversed.

Haguein' It Up in Hong Kong

Whyenlee Indus., Inc., No. A155008 (D1d4 Mar. 22, 2019)

Question regarding the validity of Hague Convention service on a company in Hong Kong. Company was served by a process server without prior service on the Hong Kong Central Authority. That is generally permitted under the alternative service provisions in Hague Article 10(b) and (c), which permit parties to “effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.” But countries can opt out of that my making a reservation.

Hong Kong has, in fact, made an Article 10 reservation. The U.K. originally made one on its behalf in 1970, and then China did an essentially identical one when it took over in 1997. It says:

With reference to the provisions of sub-paragraphs b and c of Article 10 of the Convention, documents for service through official channels will be accepted in the Hong Kong Special Administrative Region only by the Central Authority or other authority designated, and only from judicial, consular or diplomatic officers of other Contracting States.

At first, that seems like a full opt-out. But on closer reading, the limitation applies only to “documents for service through official channels.” So when documents are for service outside of official channels—like documents served on a private party by a process server—the reservation does not apply. So says the State Department, some materials from the Hong Kong government, and most cases interpreting both the Hong Kong reservation and the U.K reservation it was based on. 

Writ denied.

Service Abroad ...

Rockefeller Tech. Inv. (Asia) VII) v. Changzhou Sinotype Tech. Co., Ltd., No. B272170 (D2d3 Jun 1, 2018)

Plaintiff, a US-based investment fund, won a $414 million default arbitration judgment against Defendant, a Chinese company. Over a year later, ChinaCo moved to vacate, arguing, among other things, that it was never properly served. The superior court declined to vacate. Although ChinaCo wasn’t properly served under the Hague Convention, the court found that it had consented to mail service in the underlying agreement that was the subject of the dispute, so resort to the Hague wasn’t necessary. 

Hagueness

Inversiones Papaluchi v. Superior Court, No. B285092 (D2d5 Feb. 27, 2018)

For some random reason, cases arising from helicopters crashes in South America seem to loom large in the jurisprudence of personal jurisdiction and service of process. This is another one.

Sometimes a Guy Has to Go Hague

Water Splash, Inc. v. Melon, No. 16-254 (U.S. May 22, 2017)

This is from the big Supremes. But it’s a Hague service issue. So I just can’t resist the sheer CivPro excitement!

In Rem

Buchanan v. Soto, No. D065652 (D4d1 Nov. 6, 2015)

Wife, facing a collections action, transferred some marital property to Husband’s separate ownership. Plaintiff won the collection case and then sued Husband and Wife for fraudulent conveyance. She had some trouble serving Husband, who had allegedly been deported to Mexico before the case was filed. Wife unconvincingly claimed not to know Husband’s address there. After several attempts to serve Husband at the pre-deportation residence, the court permitted service by publication. Husband defaulted and Plaintiff ultimately won a judgement against both Wife and (defaulted) Husband, with the court finding that the property had been fraudulently transferred by Wife to avoid collections.